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(2) Definitions. As used in this section: Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
(3) Initial evidence. The petition must be accompanied by documentation showing that the alien is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the arts, or business.
(i) To show that the alien is a professional holding an advanced degree, the petition must be accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree
foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive postbaccalaureate experience in the specialty.
(ii) To show that the alien is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:
(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
(iii) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the benefičiary's eligibility.
(4) Labor certification or evidence that 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.
(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 if exemption would be in the national interest. 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.
(1) Skilled workers, professionals, and other workers. (1) Any United States employer may file a petition on Form I-140 for classification of an alien under section 203(b)(3) as a skilled worker, professional, or other (unskilled) work
(2) Definitions. As used in this part:
Other worker means a qualified alien who is capable, at the time of petitioning for this classification, of performing unskilled labor (requiring less than two years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
Professional means a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions.
Skilled worker means an alien who is capable, at the time of petitioning for this classification, of performing skilled labor (requiring at least two years training or experience), not of a temporary seasonal nature, for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.
(3) Initial evidence-(i) Labor certification or evidence that alien qualifies for Labor Market Information Pilot Program. 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, 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 a shortage occupation with the Labor Market Pilot Program, a fully executed uncertified Form ETA750 in duplicate must accompany the petition. The job offer portion of an individual labor certification, Schedule A application, or Pilot Program application for a professional must demonstrate that the job requires the minimum of a baccalaureate degree.
(ii) Other documentation—(A) General. Any requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien.
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied by evidence that the alien meets the educational, training or experience, and any other requirements of the individual labor certification, meets the requirements for Schedule A designation, or meets the requirements for the Labor Market Information Pilot Program occupation designation. The minimum requirements for this classification are at least two years of training or experience.
(C) Professionals. If the petition is for a professional, the petition must be accompanied by evidence that the alien holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a member of the professions. Evidence of a baccalaureate degree shall be in the form of an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study. To show that the alien is a member of the professions, the petitioner must submit evidence showing that the minimum of a baccalaureate degree is required for entry into the occupation.
(D) Other workers. If the petition is for an unskilled (other) worker, it must be accompanied by evidence that the alien meets any educational, training and experience, and other requirements of the labor certification.
(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. 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 job, i.e., one which
requires at least two years of training associated with the religious denomiand/or experience.
nation and which is exempt from tax(m) Religious workers—(1) An alien, or ation as described in section 501(c)(3) of any person in behalf of the alien, may the Internal Revenue Code of 1986 as it file an I-360 visa petition for classifica- relates to religious organizations. tion under section 203(b)(4) of the Act Minister means an individual duly auas a section 101(a)(27)(C) special immi- thorized by a recognized religious degrant religious worker. Such a petition nomination to conduct religious wormay be filed by or for an alien, who (ei- ship and to perform other duties usuther abroad or in the United States) for ally performed by authorized members at least the two years immediately pre- of the clergy of that religion. In all ceding the filing of the petition has cases, there must be a reasonable conbeen a member of a religious denomi
nection between the activities pernation which has a bona fide nonprofit
formed and the religious calling of the religious organization in the United
minister. The term does not include a States. The alien must be coming to
lay preacher not authorized to perform the United States solely for the pur- such duties. pose of carrying on the vocation of a
Professional capacity means an activminister of that religious denomina
ity in a religious vocation or occupation, working for the organization at
tion for which the minimum of a the organization's request in a profes
United States baccalaureate degree or sional capacity in a religious vocation
a foreign equivalent degree is required. or occupation for the organization or a bona fide organization which is affili
Religious denomination means a reliated with the religious denomination
gious group or community of believers
having some form of ecclesiastical govand is exempt from taxation as an organization described in section 501(c)(3)
ernment, a creed or statement of faith, of the Internal Revenue Code of 1986 at
some form of worship, a formal or inthe request of the organization. All
formal code of doctrine and discipline, three types of religious workers must
religious services and ceremonies, eshave been performing the vocation,
tablished places of religious worship, professional work, or other work con
religious congregations, or comparable tinuously (either abroad or in the
indicia of a bona fide religious denomiUnited States) for at least the two-year
nation. For the purposes of this definiperiod immediately preceding the fil
tion, an inter-denominational religious ing of the petition. Professional work
organization which is exempt from taxers and other workers must obtain per
ation pursuant to section 501(c)(3) of
the Internal Revenue Code of 1986 will manent resident status through immigration or adjustment of status on or
be treated as a religious denomination. before September 30, 1997, in order to Religious occupation means an activimmigrate under section 203(b)(4) of
ity which relates to a traditional relithe Act as section 101(a)(27)(C) special
gious function. Examples of individuals immigrant religious workers.
in religious occupations include, but (2) Definitions. As used in this sec- are not limited to, liturgical workers, tion:
religious instructors, religious counBona fide nonprofit religious organiza
selors, cantors, catechists, workers in tion in the United States means an orga
religious hospitals or religious health nization exempt from taxation as de- care facilities, missionaries, religious scribed in section 501(c)(3) of the Inter
translators, or religious broadcasters. nal Revenue Code of 1986 as it relates This group does not include janitors, to religious organizations, or one that maintenance workers, clerks, fund has never sought such exemption but raisers, or persons solely involved in establishes to the satisfaction of the the solicitation of donations. Service that it would be eligible there- Religious vocation means a calling to for if it had applied for tax exempt sta- religious life evidenced by the demtus.
onstration of commitment practiced in Bona fide organization which is affili- the religious denomination, such as the ated with the religious denomination taking of vows. Examples of individmeans an organization which is closely uals with a religious vocation include,
but are not limited to, nuns, monks, and religious brothers and sisters.
(3) Initial evidence. Unless otherwise specified, each petition for a religious worker must be accompanied by:
(i) Evidence that the organization qualifies as a nonprofit organization in the form of either:
(A) Documentation showing that it is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations (in appropriate cases, evidence of the organization's assets and methods of operation and the organization's papers of incorporation under applicable state law may be requested); or
(B) Such documentation as is required by the Internal Revenue Service to establish eligibility for exemption under section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations; and
(ii) A letter from an authorized official of the religious organization in the United States which (as applicable to the particular alien) establishes:
(A) That, immediately prior to the filing of the petition, the alien has the required two years of membership in the denomination and the required two years of experience in the religious vocation, professional religious work, or other religious work; and
(B) That, if the alien is a minister, he or she has authorization to conduct religious worship and to perform other duties usually performed by authorized members of the clergy, including a detailed description of such authorized duties. In appropriate cases, the certificate of ordination or authorization may be requested; or
(C) That, if the alien is a religious professional, he or she has at least a United States baccalaureate or its foreign equivalent required for entry into the religious profession. In all professional cases, an official academic record showing that the alien has the required degree must be submitted; or
(D) That, if the alien is to work in another religious vocation or occupation, he or she is qualified in the religious vocation or occupation. Evidence of such qualifications may include, but need not be limited to, evidence establishing that the alien is a nun, monk,
or religious brother, or that the type of work to be done relates to a traditional religious function.
(iii) If the alien is to work in a nonministerial and non-professional capacity for a bona fide religious organization which is affiliated with the religious denomination, the letter from the authorized official must explain how the affiliation exists. A tax-exempt certificate indicating that the affiliated organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations is required in this instance.
(iv) In appropriate cases, the director may request appropriate additional evidence relating to the eligibility under section 203(b)(4) of the Act of the religious organization, the alien, or the affiliated organization.
(4) Job offer. The letter from the authorized official of the religious organization in the United States must also state how the alien will be solely carrying on the vocation of a minister (including any terms of payment for services or other remuneration), or how the alien will be paid or remunerated if the alien will work in a professional religious capacity or in other religious work. The documentation should clearly indicate that the alien will not be solely dependent on supplemental employment or solicitation of funds for support. In doubtful cases, additional evidence such as bank letters, recent audits, church membership figures, and/or the number of individuals currently receiving compensation may be requested.
(n) Closing action—(1) Approval. An approved employment-based petition will be forwarded to the United States Consulate selected by the petitioner and indicated on the petition. If a United States Consulate is not designated, the petition will be forwarded to the consulate having jurisdiction over the place of the alien's last residence abroad. If the petition indicates that the alien will apply for adjustment to permanent residence in the United States, the approved petition will be retained by the Service for consideration with the application for permanent resident (Form I-485).
(2) Denial. The denial of a petition for by assets owned by the alien entreclassification under section 203(b)(1), preneur, provided that the alien entre203(b)(2), 203(b)(3), or 203(b)(4) of the Act preneur is personally and primarily lia(as it relates to special immigrants ble and that the assets of the new comunder section 101(a)(27)(C) of the Act) mercial enterprise upon which the petishall be appealable to the Associate tion is based are not used to secure any Commissioner for Examinations. The of the indebtedness. All capit shall be petitioner shall be informed in plain valued at fair market value in United language of the reasons for denial and States dollars. Assets acquired, diof his or her right to appeal.
rectly or indirectly, by unlawful means (3) Validity of approved petitions. Un- (such as criminal activities) shall not less revoked under section 203(e) or 205 be considered capital for the purposes of the Act, an employment-based peti- of section 203(b)(5) of the Act. tion is valid indefinitely.
Commercial enterprise means any for(56 FR 60905, Nov. 29, 1991, as amended at 59
profit activity formed for the ongoing FR 502, Jan. 5. 1994; 59 FR 27229, May 26, 1994;
conduct of lawful business including, 60 FR 29753, June 6, 1995; 61 FR 33305, June 27,
but not limited to, a sole proprietor1996)
hip, partnership (whether limited or
general), holding company, joint ven$204.6 Petitions for employment cre- ture, corporation, business trust, or ation aliens.
other entity which may be publicly or (a) General. A petition to classify an privately owned. This definition inalien under section 203(b)(5) of the Act cludes a commercial enterprise conmust be filed on Form I-526, Immigrant sisting of a holding company and its Petition by Alien Entrepreneur. The wholly-owned subsidiaries, provided petition must be accompanied by the that each such subsidiary is engaged in appropriate fee. Before a petition is a for-profit activity formed for the onconsidered properly filed, the petition going conduct of a lawful business. must be signed by the petitioner, and This definition shall not include a nonthe initial supporting documentation commercial activity such as owning required by this section must be at- and operating a personal residence. tached. Legible photocopies of sup- Employee means an individual who porting documents will ordinarily be provides services or labor for the new acceptable for initial filing and ap- commercial enterprise and who reproval. However, at the discretion of ceives wages or other remuneration dithe director, original documents may rectly from the new commercial enterbe required.
prise. In the case of the Immigrant In(b) Jurisdiction. The petition must be vestor Pilot Program, “employee" also filed with the Service Center having ju- means an individual who provides servrisdiction over the area in which the ices or lab in a job which has been new commercial enterprise is or will be created indirectly through investment principally doing business.
in the new commercial enterprise. This (c) Eligibility to file. A petition for definition shall not include indeclassification as an alien entrepreneur pendent contractors. may only be filed by any alien on his or Full-time employment means employher own behalf.
ment of a qualifying employee by the (d) Priority date. The priority date of new commercial enterprise in a posia petition for classification as an alien tion that requires a minimum of 35 entrepreneur is the date the petition is working hours per week. In the case of properly filed with the Service or, if the Immigrant Investor Pilot Program, filed prior to the effective date of these "full-time employment" also means regulations, the date the Form I-526 employment of a qualifying employee was received at the appropriate Service in a position that has been created inCenter.
directly through revenues generated (e) Definitions. As used in this sec- from increased exports resulting from tion:
the Pilot Program that requires a minCapital means cash, equipment, in- imum of 35 working hours per week. A ventory, other tangible property, cash job-sharing arrangement whereby two equivalents, and indebtedness secured or more qualifying employees share a