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United States citizen under section 203(a)(1) of the Act; and
(3) A married beneficiary is classified as the married son or daughter of a United States citizen under section 203(a)(3) of the Act.
(i) Enforcement of affidavit of financial support and intent to petition for legal custody. A guarantee of financial support and intent to petition for legal custody on Form 1-361 may be enforced against the alien's sponsor in a civil suit brought by the Attorney General in the United States District Court for the district in which the sponsor resides, except that the sponsor's estate is not liable under the guarantee if the sponsor dies or is adjudicated as bankrupt under title 11, United States Code. After admission to the United States, if the beneficiary of a petition requires enforcement of the guarantee of financial support and intent to petition for legal custody executed by the beneficiary's sponsor, the beneficiary may file Form I-363 with the Service office having jurisdiction
the beneficiary's residence in the United States. If the beneficiary is under eighteen years of age, any agency or individual (other than the sponsor) having legal custody of the beneficiary, or a legal guardian acting on the alien's behalf, may file Form I-363. (57 FR 41066, Sept. 9, 1992, as amended at 63 FR 12986, Mar. 17, 1998]
fies as a shortage occupation within the Department of Labor's Labor Market Information Pilot Program; and
(3) Accompanied by any other required supporting documentation.
(b) Jurisdiction. Form I-140 or 1-360 must be filed with the Service Center having jurisdiction over the intended place of employment, unless specifically designated for local filing by the Associate Commissioner for Examinations.
(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).
(d) Priority date. The priority date of any petition filed for classification under section 203(b) of the Act which is accompanied by an individual labor certification from the Department of Labor shall be the date the request for certification was accepted for processing by any office within the employment service system of the Department of Labor. The priority date of any petition filed for classification under section 203(b) of the Act which is accompanied by an application for Schedule A designation or with evidence that the alien's occupation is a shortage occupation within the Department of Labor's Labor Market Information Pilot Program shall be the date the completed, signed petition (including all initial evidence and the correct fee) is properly filed with the Service. The priority date of a petition filed for classification as a special immigrant under section 203(b)(4) of the Act shall be the date the completed, signed petition (including all initial evidence and the correct fee) is properly filed with the Service. The priority date of an alien who filed for classification as a special immigrant prior to October 1, 1991, and who is the beneficiary of an approved 1-360 petition after October 1, 1991, shall be the date the alien applied for an immigrant visa or adjustment of status. In the case of a special immigrant alien who applied for adjustment
8204.5 Petitions for employment-based
immigrants. (a) General. A petition to classify an alien under section 203(b)(1), 203(b)(2), or 203(b)(3) of the Act must be filed on Form I-140, Petition for Immigrant Worker. A petition to classify an alien under section 203(b)(4) (as it relates to special immigrants under section 101(a)(27)(C)) must be filed on kForm I360, Petition for Amerasian, Widow, or Special Immigrant. A separate Form I140 or 1-360 must be filed for each beneficiary, accompanied by the applicable fee. A petition is considered properly filed if it is:
(1) Accepted for processing under the provisions of part 103;
(2) Accompanied by any required individual labor certification, application for Schedule A designation, or evidence that the alien's occupation quali
before October 1, 1991, Form I-360 may the training received. If such evidence be accepted and adjudicated at a Serv- is unavailable, other documentation ice District Office or sub-office.
relating to the alien's experience or (e) Retention of section 203(6) (1), (2), or training will be considered. (3) priority date. A petition approved on (2) Ability of prospective employer to behalf of an alien under sections 203(b) pay wage. Any petition filed by or for (1), (2), or (3) of the Act accords the
employment-based immigrant alien the priority date of the approved which requires an offer of employment petition for any subsequently filed pe- must be accompanied by evidence that tition for any classification under sec- the prospective United States employer tions 203(b) (1), (2), or (3) of the Act for has the ability to pay the proffered which the alien may qualify. In the wage. The petitioner must demonstrate event that the alien is the beneficiary this ability at the time the priority of multiple petitions under sections date is established and continuing 203(b) (1), (2), or (3) of the Act, the alien until the beneficiary obtains lawful shall be entitled to the earliest priority permanent residence. Evidence of this date. A petition revoked under sections ability shall be either in the form of 204(e) or 205 of the Act will not confer copies of annual reports, federal tax rea priority date, nor will any priority turns, or audited financial statements. date be established as a result of a de- In a case where the prospective United nied petition. A priority date is not States employer employs 100 or more transferable to another alien.
workers, the director may accept a (f) Maintaining the priority date of a statement from a financial officer of third or sixth preference petition filed the organization which establishes the prior to October 1, 1991. Any petition prospective employer's ability to pay filed before October 1, 1991, and ap- the proffered wage. In appropriate proved on any date, to accord status cases, additional evidence, such as under section 203(a)(3) or 203(a)(6) of profit/loss statements, bank account the Act, as in effect before October 1, records, or personnel records, may be 1991, shall be deemed a petition ap- submitted by the petitioner or proved to accord status under section quested by the Service. 203(b)(2) or within the appropriate clas- (h) Aliens with extraordinary ability. sification under section 203(b)(3), re- (1) An alien, or any person on behalf of spectively, of the Act as in effect on or the alien, may file an 1-140 visa petiafter October 1, 1991, provided that the tion for classification under section alien applies for an immigrant visa or 203(b)(1)(A) of the Act as an alien of exadjustment of status within the two traordinary ability in the sciences, years following notification that an arts, education, business, or athletics. immigrant visa is immediately avail- (2) Definition. As used in this section: able for his or her use.
Extraordinary ability means a level of (g) Initial evidence-(1) General. Spe- expertise indicating that the individual cific requirements for initial sup- is one of that small percentage who porting documents for the various em- have risen to the very top of the field ployment-based immigrant classifica- of endeavor. tions are set forth in this section. In (3) Initial evidence. A petition for an general, ordinary legible photocopies of alien of extraordinary ability must be such documents (except for labor cer- accompanied by evidence that the alien tifications from the Department of has sustained national or international Labor) will be acceptable for initial fil- acclaim and that his or her achieveing and approval. However, at the dis- ments have been recognized in the field cretion of the director, original docu- of expertise. Such evidence shall inments may be required in individual clude evidence of a one-time achievecases. Evidence relating to qualifying ment (that is, a major, international experience or training shall be in the recognized award), or at least three of form of letter(s) from current or former the following: employer(s) or trainer(s) and shall in- (i) Documentation of the alien's reclude the name, address, and title of ceipt of lesser nationally or interthe writer, and a specific description of nationally recognized prizes or awards the duties performed by the alien or of for excellence in the field of endeavor;
(ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
(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.
(5) No offer of employment required. Neither an offer for 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 con
tracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.
(i) Outstanding professors and researchers. (1) Any United States employer desiring and intending to employ a professor or researcher who is outstanding in an academic field under section 203(b)(1)(B) of the Act may file an I-140 visa petition for such classification.
(2) Definitions. As used in this section:
Academic field means a body of specialized knowledge offered for study at an accredited United States university or institution of higher education.
Permanent, in reference to a research position, means either tenured, tenuretrack, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.
(3) Initial evidence. A petition for an outstanding professor or researcher must be accompanied by:
(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:
(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by others about 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 others in the same or an allied academic field;
(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;
(ii) Evidence that the alien has at least three years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree will only be acceptable if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. Evidence of teaching and/ or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien; and
(iii) An offer of employment from a prospective United States employer. A labor certification is not required for this classification. The offer of employment shall be in the form of a letter from:
(A) A United States university or institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien's academic field;
(B) A United States university or institution of higher learning offering the alien a permanent research position in the alien's academic field; or
(C) A department, division, or institute of a private employer offering the alien a permanent research position in the alien's academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.
(j) Certain multinational executives and managers. (1) A United States employer may file a petition on Form I-140 for classification of an alien under section 203(b)(1)(C) of the Act as a multinational executive or manager.
(2) Definitions. As used in this section:
(A) One of two subsidiaries both of which are owned and controlled by the same parent or individual;
(B) One of two legal entities owned and controlled by the same group of individuals, each individual owning and
controlling approximately the same share or proportion of each entity; or
(C) In the case of a partnership that is organized in the United States to provide accounting services, along with managerial and/or consulting services, and markets its accounting services under an internationally recognized name under
agreement with worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting' services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office.
Executive capacity means an assignment within an organization in which the employee primarily:
(A) Directs the management of the organization or a major component or function of the organization;
(B) Establishes the goals and policies of the organization, component, or function;
(C) Exercises wide latitude in discretionary decisionmaking; and
(D) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
Managerial capacity means an assignment within an organization in which the employee primarily:
(A) Manages the organization, or a department, subdivision, function, or component of the organization;
(B) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
(C) If another employee or other employees are directly supervised, has the
authority to hire and fire or rec- corporation or other legal entity by ommend those as well as other per- which the alien was employed overseas; sonnel actions (such as promotion and and leave authorization), or, if no other (D) The prospective United States employee is directly supervised, func- employer has been doing business for tions at a senior level within the orga- at least one year. nizational hierarchy or with respect to
(ii) Appropriate additional evidence. In the function managed; and
appropriate cases, the director may re(D) Exercises direction over the day
quest additional evidence. to-day operations of the activity or
(4) Determining managerial or erectuve function for which the employee has
capacities—(i) Supervisors as managers. A authority.
first-line supervisor is not considered Multinational means that the quali
to be acting in a managerial capacity fying entity, or its affiliate, or sub
merely by virtue of his or her supersidiary, conducts business in two or
visory duties unless the employees sumore countries, one of which is the
pervised are professional. United States.
(ii) Staffing levels. If staffing levels Subsidiary means a firm, corporation,
are used as a factor in determining or other legal entity of which a parent
whether an individual is acting in a owns, directly or indirectly, more than half of the entity and controls the enti
managerial or executive capacity, the
reasonable needs of the organization, ty; or owns, directly or indirectly, half of the entity and controls the entity;
component, or function, in light of the or owns, directly or indirectly, 50 per
overall purpose and stage of develop
ment of the organization, component, cent of a 50–50 joint venture and has equal control and veto power over the
or function, shall be taken into ac
count. An individual shall not be conentity; or owns, directly or indirectly,
sidered to be acting in a managerial or less than half of the entity, but in fact controls the entity.
executive capacity merely on the basis (3) Initial evidence-(i) Required evi
of the number of employees that the dence. A petition for a multinational
individual supervises or has supervised executive or manager must be accom
or directs or has directed. panied by a statement from an author
(5) Offer of employment. No labor cerized official of the petitioning United
tification is required for this classificaStates employer which demonstrates
tion; however, the prospective emthat:
ployer in the United States must fur(A) If the alien is outside the United nish a job offer in the form of a stateStates, in the three years immediately
ment which indicates that the alien is preceding the filing of the petition the
to be employed in the United States in alien has been employed outside the a managerial or executive capacity. United States for at least one year in a
Such letter must clearly describe the managerial or executive capacity by a duties to be performed by the alien. firm or corporation, or other legal enti- (k) Aliens who are members of the proty, or by an affiliate or subsidiary of sessions holding advanced degrees or such a firm or corporation or other aliens of exceptional ability. (1) Any legal entity; or
United States employer may file a pe(B) If the alien is already in the tition on Form I-140 for classification United States working for the same of an alien under section 203(b)(2) of the employer or a subsidiary or affiliate of Act as an alien who is a member of the the firm or corporation, or other legal professions holding an advanced degree entity by which the alien was em- or an alien of exceptional ability in the ployed overseas, in the three years pre- sciences, arts, or business. If an alien is ceding entry as a nonimmigrant, the claiming exceptional ability in the alien was employed by the entity sciences, arts, or business and is seekabroad for at least one year in a mana- ing an exemption from the requirement gerial or executive capacity;
of a job offer in the United States pur(C) The prospective employer in the suant to section 203(b)(2)(B) of the Act, United States is the same employer or then the alien, or anyone in the alien's a subsidiary or affiliate of the firm or behalf, may be the petitioner.