Employment-Based Immigrants

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1633-93]

RIN 1115-AD55

Employment-Based Immigrants

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service regulations on employment-based immigrant petitions. The

promulgation of this proposed rule is necessary to clarify and revise a

number of issues concerning employment-based immigrant petitions which

have arisen since the enactment of the Immigration Act of 1990. This

proposed rule will provide more guidance to the public in filing

employment-based immigrant petitions.

DATES: Written comments must be submitted on or before August 7, 1995.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC

20536. To ensure proper handling, please reference INS No. 1633-93 on

your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Michael W. Straus, Senior Immigration Examiner, Adjudications Division,

Immigration and Naturalization Service, 425 I Street, NW., Room 3214,

Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION: Section 121 of the Immigration Act of 1990

(IMMACT), Public Law 101-649, dated November 29, 1990, amended section

203 of the Immigration and Nationality Act (Act) by creating new

classifications and procedures for employment-based immigration. On

November 29, 1991, the Immigration and Naturalization Service (Service)

promulgated regulations implementing section 121 of IMMACT (see 56 FR

60897-60913). Since the promulgation of its regulation, the Service has

encountered a number of issues concerning employment-based petitions

which require clarification and revision. On December 12, 1991, the

President signed the Miscellaneous and Technical Immigration and

Naturalization Amendments of 1991 (MTINA), Public Law 102-232, which

modified IMMACT. In light of the changes made by MTINA and the issues

which need clarification and revision, the Service proposes to amend 8

CFR 204.5.

Section 203(b) of the Act, as amended by section 121 of IMMACT,

created five new employment-based immigrant categories as follows:

1. Priority workers.

A. Aliens with extraordinary ability;

B. Outstanding professors and researchers;

C. Certain multinational executives and managers.

2. Members of the professions holding advanced degrees and aliens

of exceptional ability.

3. Skilled workers, professionals, and other workers.

4. Certain special immigrants.

5. Employment creation immigrants.

Since the promulgation of the Service's regulations on employment-

based immigrants on November 29, 1991, the Service has encountered a

number of issues in adjudicating employment-based petitions which

require revision or clarification. This regulation proposes to amend

the current regulation on employment-based petitions in order to

clarify portions of the regulations which have been problematic for the

Service and the public. The proposed rule addresses petitions for

employment-based immigrants, as well as priority dates for employment-

based petitions, evidence required to show ability to pay the wage

offered, and validity of labor certifications and employment-based

petitions following changes in employer and job location. The Service

will issue a separate proposed regulation on petitions for employment

creation aliens at a later date.

Filing of the Petition

Most of the employment-based immigrant categories require that an

employer desire and intend to employ an alien within the United States.

See section 204(a)(1)(D) of the Act. The present regulation on

employment-based petitions does not define the term ``employer'' as

used in the statute. The Service has determined that this term should

be clarified to provide some guidance to the public and to adjudicators

on whether a petitioner qualifies as an employer. The proposed rule

provides that the alien beneficiary must have an employer-employee

relationship with the petitioner as indicated by the employer's ability

to hire, pay, fire, supervise, or otherwise control the work of the

employee. This definition of ``United States employer'' is consistent

with the definition of this term in the H-1B regulations. See 8 CFR

214.2(h)(4)(ii). It is also consistent with the general definition of

employment found in case law. See e.g. Matter of Pozzoli, 14 I&N Dec.

569 (Reg. Comm. 1974).

In the case of employers who are persons, the proposed regulation

limits qualifying employers to individuals who are United States

citizens or lawful permanent residents. Aliens, other than lawful

permanent residents, may not offer permanent employment to U.S. or

other workers who seek to apply for the job offered. Allowing for

aliens other than lawful permanent residents to file an immigrant

petition is inconsistent with the overall statutory scheme.

Specifically, all nonimmigrants who enter the United States, including

those for whom there is no maximum duration of stay, are admitted for a

limited period of time and for a particular purpose. Upon completion of

their purpose for staying in the United States, they must depart,

extend, or change their nonimmigrant status. The limited nature of

their stay in the United States precludes them from being able to

extend a permanent offer of employment and, therefore, from submitting

an employment-based petition to accord immigrant status. Consequently,

petitioning employers who are in nonimmigrant status are not competent

to offer permanent employment, because their status is neither settled,

stabilized, nor permanent. See Matter of Thornhill, 18 I&N Dec. 34, 35-

36 (Comm. 1981). The Service notes that this proposed regulation is in

accord with Department of Labor policy, which precludes nonimmigrants

from filing labor certifications due to their temporary status. See

Department of Labor, Technical Assistance Guide No. 656, Labor

Certifications, at page 136. Accordingly, the Service proposes to limit

the persons who are able to submit employment-based petitions to U.S.

citizens and lawful permanent residents.

Priority Date

Following the enactment of IMMACT, the Service issued a proposed

rule which provided that the priority date for an employment-based

petition would be the date of filing an employment-based petition with

the Service. See 56 FR 30703-30714, July 5, 1991. After receipt of

comments to the proposed rule, the Service decided to continue the

established rule on assignment of priority dates, which set the

priority date as the date the office within the employment service

system of the Department of Labor received the application for labor

certification. See 56 FR 60897-60913. The Service also decided to add a

new provision which allowed an alien to retain the priority date of any

employment-based petition which the Service approved on his or her

behalf, unless it is revoked. See 56 FR 60905; 8 CFR 204.5(e).

Before IMMACT became effective, the Department of Labor permitted

an employer to substitute qualified labor certification beneficiaries

after issuance of the labor certification. The petitioner

[[Page 29773]] could return the labor certification to the certifying

officer and request that another beneficiary be substituted. See

Employment and Training Administration, Technical Assistance Guide No.

656, p. 105. In implementing IMMACT, the Department of Labor eliminated

substitution of labor certification beneficiaries. See 56 FR 54920-

54930; 20 CFR 656.30(c)(2). The Department of Labor determined that

substitution of labor certification beneficiaries was unfair to U.S.

workers and other aliens seeking to immigrate, was subject to fraud and

abuse, and constituted a significant administrative burden. See 56 FR

54926. In 1994, the United States Court of Appeals for the District of

Columbia Circuit enjoined enforcement of the Department of Labor's

regulation precluding substitution of labor certification

beneficiaries, based on the Administrative Procedure Act. See Kooritzky

v. Reich, 17 F.3d 1509 (D.C. Cir. 1994). As a result of this decision,

employers may request substitution of labor certification

beneficiaries. In light of the court's decision, the Service has

reconsidered its regulations on assigning priority dates.

The Service has concluded that it is unfair to other aliens who

seek to immigrate to the United States on employment-based petitions if

the substituted alien gains the priority date of the original alien

beneficiary, since those aliens would receive a later priority date

than a substituted alien. Currently, in certain employment-based

immigrant categories, such as the third preference ``other worker''

category, an alien who benefits from a labor certification substitution

can immigrate ahead of another alien who has been waiting for an

immigrant visa for several years. Not only would allowing substituted

aliens to receive the earlier priority date be unfair to other

intending immigrants, it would also be contrary to the Service's policy

of assigning a priority date to the alien rather than to the employer

(see 8 CFR 204.5(e)).

Providing a priority date based on an employer's substitution of a

labor certification beneficiary also carries the potential for fraud

and abuse. Continuing this practice may encourage the creation of a

market for labor certifications, particularly in categories in which

there is a lengthy wait to receive an immigrant visa. For instance, it

is conceivable that the original alien beneficiary might be induced to

engage in the fraudulent practice of selling his or her status as a

labor certification beneficiary to a substituted alien.

The Service, therefore, proposes to set the priority date for an

alien who has been substituted for another alien on a labor

certification as the date the employer requested the substitution. This

proposed rule will be fair to other aliens who apply under employment-

based immigrant categories, and would be consistent with the Service's

policy of according a priority date to the alien rather than to the

employer, thereby eliminating an inducement to commit fraud.

Retention of Employment-Based Priority Dates

The Service's current regulation provides that an alien retains the

priority date of any petition filed under the first, second, or third

employment-based categories which the Service approved on his or her

behalf. See 8 CFR 204.5(e). A petition revoked under sections 204(e) or

205 of the Act, however, will not confer a priority date. Section 205

of the Act permits the Attorney General to revoke an approved petition

for good and sufficient cause. The regulations governing revocation

distinguish between automatic revocation and revocation on notice. See

8 CFR part 205. For employment-based petitions, automatic revocation

occurs upon invalidation of a labor certification, death of the

petitioner, written withdrawal by the petitioner, or by dissolution of

the petitioner's business. See 8 CFR 205.1(c). The Service has

determined that the current regulation is difficult to administer,

because the Service is not usually notified of actions which may result

in automatic revocation. In addition, the regulation treats those

aliens who fall under the automatic revocation provisions differently

from those aliens whom the petitioner no longer seeks to employ for

various reasons. For example, under the current regulation, if the

petitioning employer dissolves or goes out of business, the petition is

automatically revoked and the beneficiary loses his or her priority

date. See 8 CFR 205.1(c)(4). However, if the petitioning employer

remains in business but later decides not to offer the position to the

beneficiary, the beneficiary can use the priority date for any

subsequent petition filed on his or her behalf. Accordingly, the

Service proposes to amend 8 CFR 204.5(e) to state that only a petition

revoked on notice pursuant to 8 CFR 205.2 for fraud or

misrepresentation will not confer a priority date for any subsequently

filed employment-based petition. This change will allow for consistency

and fairness in assignment of priority dates and easier administration

for the Service.

Maintaining Priority Dates for Employment-Based Petitions Filed Before

October 1, 1991

The current regulation states that any petition filed before

October 1, 1991, and approved under section 203(a)(3) or 203(a)(6) of

the Act, as in effect before October 1, 1991, shall be deemed a

petition approved to accord status under section 203(b)(2) or within

the appropriate classification under section 203(b)(3) respectively, of

the Act, provided the alien applies for an immigrant visa or adjustment

of status within the 2 years following notification that an immigrant

visa is immediately available. See 8 CFR 204.5(f). As of October 1,

1991, the priority dates for all employment-based immigrant categories

were current. Subsequently, however, visa numbers for the other

(unskilled) worker subcategory of section 203(b)(3) of the Act quickly

became over-subscribed and retrogressed, as did visa numbers for some

employment-based categories for natives of India, China, and the

Philippines. Because many aliens who were current on October 1, 1991,

were unable to complete the immigration process due to the rapid

retrogression of visa numbers, this regulation needs to be amended out

of fairness to these aliens. To further Congress' intent in enacting

section 161(c)(4) of IMMACT, the Service proposes to amend the

regulation to state that a petition filed under section 203(a)(3) or

203(a)(6) of the Act before October 1, 1991, and approved on any date,

shall be deemed a petition approved under section 203(b)(2) or

203(b)(3) of the Act, provided the alien applies for an immigrant visa

or adjustment of status within a 2-year time period during which the

immigrant visa is continuously available.

Section 161(c)(4)(B) of IMMACT provides that the automatic

conversion of petitions filed under section 203(a)(3) or 203(a)(6) of

the Act before October 1, 1991, shall not occur if the priority date

for issuance of a visa has been available for a 2-year period. In the

current regulation, the 2-year period commences following notification

that an immigrant visa is immediately available. See 8 CFR 204.5(f).

Since the promulgation of this regulation in 1991, the Service has had

difficulty defining the term ``notification that an immigrant visa is

immediately available.'' In the case of beneficiaries of approved

petitions who apply for adjustment of status under section 245 of the

Act, the Service only notifies the alien of the priority date for the

approved petition. For alien beneficiaries who apply for immigrant

visas, notification depends [[Page 29774]] on when the alien received

immigrant visa forms from a U.S. consulate, the Transitional Immigrant

Visa Processing Facility, or the National Visa Center. This method of

determining when notification occurs leads to inconsistencies between

those aliens who apply for adjustment of status and those who apply for

an immigrant visa. For purposes of uniformity, the 2-year period will

commence upon approval of the petition or when the priority date

becomes available, whichever is later. A visa number must be

continuously available during the 2-year period. Should the priority

date retrogress within the 2-year period after which a visa number

becomes available, the 2-year period provided for under section

161(c)(4)(B) of IMMACT will commence anew at the time the priority date

once again becomes current. This change allows for consistency and

adheres to the language of IMMACT.

Additional Evidence

The current regulation requires the petitioner to establish ability

to pay the wage offered in the form of an annual report, a Federal tax

return, or an audited financial statement. See 8 CFR 204.5(g)(2). In

appropriate cases, the petitioner may submit or the Service may request

additional evidence such as a profit/loss statement, bank account

record, or personnel record. During the past 2 years, the Service has

found that other documents such as payroll records and W-2 forms are

useful types of evidence in establishing ability to pay the wage

offered. Therefore, the Service proposes to add these two types of

evidence to the list of examples of additional evidence. The proposed

addition of these two types of documents does not suggest that the

Service intends to allow these documents as primary evidence of ability

to pay.

Validity of Section 203(b) Petitions and Labor Certifications

Following the issuance of a labor certification by the Department

of Labor or the approval of an employment-based petition by the

Service, the job location or the structure and ownership of the

petitioning employer may change. Following the implementation of

IMMACT, the Service and the Department of Labor entered into an

agreement that the Service will determine the validity of labor

certifications once the Department of Labor issues a labor

certification. The proposed rule at 8 CFR 204.5(h) essentially restates

the Department of Labor's regulation on validity and invalidation of

labor certifications. See 20 CFR 656.30. In addition, it states that

when an alien immigrates under an employment-based immigrant category,

based on a labor certification, the labor certification will no longer

be valid. The Service believes that an alien should not be able to

immigrate and then re-immigrate using the same labor certification.

This provision is consistent with Department of Labor policy, which

states that a non-Schedule A labor certification is limited to a

specific job opportunity. See Employment and Training Administration,

Technical Assistance Guide No. 656 at 104. See Matter of Harry Bailen

Builders, 19 I&N Dec. 412 (Comm. 1986) (holding that, based on the

advice of the Department of Labor, the specific job opportunity ceases

to exist when an alien immigrates based on the labor certification). It

is not relevant whether the alien commenced the offered employment upon

obtaining permanent resident status based on the labor certification.

To allow an alien to use a labor certification twice would enable the

alien to circumvent the immigration process if he or she abandons or

otherwise loses his or her permanent residence and seeks to reimmigrate

to the United States. Specifically, if the alien is able to use the

labor certification twice, the alien can circumvent the labor

certification requirement. Such a situation is not fair to other aliens

who seek to immigrate to the United States. Moreover, it encourages

fraud by discouraging the alien beneficiary from actually filling the

job offered. Accordingly, the Service proposes to amend this regulation

to provide that a labor certification is no longer valid when the alien

immigrates to the United States under an employment-based category,

based on that labor certification.

In furtherance of the agreement with the Department of Labor, the

Service proposes to add a new paragraph on validity of labor

certifications, based on changes of employer and job location.

I. Changes in Job Location

For non-Schedule A labor certifications, if the location of the job

offered to the alien changes after the labor certification is approved,

the Service will determine if the labor certification remains valid.

The Service will follow existing Department of Labor regulations which

provide that a labor certification is valid within the normal commuting

distance of the site of the original offer of employment. See 20 CFR

656.30(c)(2); 20 CFR 656.3 (definition of area of intended employment).

Any location within a Metropolitan Statistical Area (MSA) is deemed to

be within normal commuting distance. See 20 CFR 656.3. A Schedule A

labor certification is valid throughout the United States. See 20 CFR

656.30(c)(1).

In the case of non-Schedule A labor certifications where there is a

job location change after the approval of an Immigrant Petition for

Alien Worker (Form I-140) or labor certification, the petitioning

employer must file an I-140 petition with the service center having

jurisdiction over the new location where the alien beneficiary will be

employed. For Schedule A labor certifications, if there is a change in

job location, the alien must submit a signed job offer Form ETA 750 at

his or her interview for adjustment of status or immigrant visa.

II. Successorship in Interest

In cases where a petitioning entity changes ownership, the issue

may arise whether the employment relationship has so changed as to

render the petition invalid. Based on the above-noted agreement with

the Department of Labor, the Service will determine whether there has

been a ``successorship in interest'' and, therefore, whether an

approved visa petition and/or labor certification remain valid.

Generally, if a new employer is a ``successor in interest'' to the

original petitioning employer, the Service will reaffirm the validity

of the visa petition and/or labor certification. Successorship in

interest can occur when the petitioning employer, or a division

thereof, is merged, acquired or purchased by another business. A

business restructuring or reorganization should not affect the validity

of a petition, unless the job and/or wages offered to the beneficiary

have changed. To establish successorship in interest, the successor

entity must demonstrate substantial continuity with the original

petitioner. The Service proposes that, to establish successorship in

interest, the new employer must establish that it has substantially

assumed the rights, duties, obligations and assets of the original

employer and continues to operate the same type of business as the

original employer. The new employer must also submit evidence of

ability to pay the proffered wage. In addition, the successor in

interest must also demonstrate that the original employer had the

ability to pay the proffered wage when the labor certification was

filed, if the Service did not approve an employment-based petition on

behalf of original employer. See Matter of Dial Auto Repair Shop, Inc.,

19 I&N Dec. 481 (Comm. 1986). The Service invites comments on whether

the ``substantial [[Page 29775]] assumption'' standard provides

sufficient guidance to the public, reflects current business practice,

and preserves the integrity of the immigration process. In addition,

the Service welcomes comments on alternative ways to define

successorship in interest.

To establish successorship in interest, the new employer must

submit a Form I-140 with the service center having jurisdiction over

the intended place of employment along with documentation of

successorship of interest and ability to pay. If the service center

determines that the petitioner fails to qualify as a successor in

interest, it will deny the I-140 petition. The petitioner may pursue an

appeal with the Administrative Appeals Unit. If the service center

finds that the petitioner is a successor in interest, it will approve

the petition and accord the beneficiary the priority date of the

previously approved petition.

Aliens of Extraordinary Ability

The current regulation at 8 CFR 204.5(h)(2) defines extraordinary

ability as a level of expertise indicating that the individual is one

of that small percentage who have risen to the very top of a field of

endeavor. The regulation lists evidence which needs to be presented to

establish extraordinary ability. See 8 CFR 204.5(h)(3). Since the

implementation of IMMACT, there has arisen some confusion over the role

of various types of evidence listed in 8 CFR 204.5(h)(3). The evidence

listed is intended to be a guideline for the petitioner and the Service

to determine extraordinary ability in order to make the adjudicative

process easier for both the petitioner and the Service. The fact that

an alien may meet three of the listed criteria does not necessarily

mean that he or she meets the standard of extraordinary ability. The

Service adjudicator must still determine whether the alien is one of

that small percentage who have risen to the very top of his or her

field of endeavor. Accordingly, the Service proposes to amend the

regulations to state that meeting three of the evidentiary standards is

not dispositive of whether the beneficiary is an alien of extraordinary

ability.

By statute, aliens who immigrate under this category do not require

a labor certification to work in their area of extraordinary ability,

since by definition, they will not be competing with the U.S. labor

market. The situation is different, however, where the alien's primary

source of earned income will be derived from an activity unrelated to

his or her field of extraordinary ability. In such a case, the alien

may, in fact, be competing primarily with U.S. workers engaged in the

unrelated field, thereby necessitating a test of the labor market and a

labor certification. While the Service recognizes that aliens having

extraordinary ability may reasonably be expected to engage in secondary

activities within their field of extraordinary ability, whether or not

for pay, the Service is responsible for ensuring that the alien's entry

will not have an adverse impact on the U.S. labor market. The Service,

therefore, proposes that the alien's primary source of earned income

must come from the specific activity or activities for which he or she

seeks priority worker classification.

Outstanding Professors and Researchers

Since the implementation of IMMACT, there has been some confusion

over the role of various types of evidence listed in 8 CFR 204.5(i)(3).

As in the case of the regulations governing petitions for aliens of

extraordinary ability, the evidence listed is intended to be a

guideline for the petitioner and the Service to determine whether the

beneficiary stands apart in the academic community through eminence and

distinction based on international recognition. See 56 FR 30703-30714

dated July 5, 1991. This list of evidence makes the adjudicative

process easier for both the petitioner and the Service. The fact that

the beneficiary may meet two of the listed criteria does not

necessarily mean that he or she has the international recognition to be

considered an outstanding researcher or professor. The Service

adjudicator must still determine whether the alien is recognized

internationally as outstanding in the academic field specified in the

petition. The Service, therefore, proposes to amend this regulation to

specifically state that having two types of the listed evidence does

not compel a finding that the beneficiary is recognized internationally

as outstanding.

The Service has also reviewed the five types of evidence listed in

8 CFR 204.5(i)(3)(i). The Service has determined that two of the

paragraphs need to be reworded. Paragraph (i)(3)(i)(C) states that the

petitioner may submit published material written by others about the

beneficiary's work in the academic field. Some petitioners have

interpreted this paragraph to mean that any reference to the

beneficiary's work, including a reference in a footnote or

bibliography, meets the evidentiary criteria of this paragraph. The

Service proposes to amend the language of paragraph (i)(3)(i)(C) to

require that the publication discuss or analyze the beneficiary's work

in the academic field. A short reference to the beneficiary's work in a

professional publication does not demonstrate that he or she is

recognized as outstanding. A much better indicator of the importance of

the alien's work in the academic community is a thorough discussion or

analysis of the beneficiary's work.

In 8 CFR 204.5(i)(3)(i)(D), the petitioner may submit evidence of

the beneficiary's participation, either individually or on a panel, as

the judge of the work of others in the same or related academic field.

The Service believes that most college or university professors are

involved in judging the work of others, and the Service has found that

meeting the criteria under this paragraph is not a good indicator of

whether the beneficiary is recognized as outstanding. Judging the work

of other authorities and experts in the alien's academic field is a

better measure of the beneficiary's international recognition.

Therefore, the Service proposes to amend the paragraph to specify that

the alien can meet the criteria in paragraph (i)(3)(i)(D) by submitting

evidence that the beneficiary has judged the work of other professors,

researchers, and Ph.D. candidates in the alien's academic field.

Section 203(b)(1)(B)(iii)(III) of the Act allows a private employer

to petition an outstanding professor or researcher to conduct research

if the employer has at least three persons engaged in research

activities and has achieved documented accomplishments in the academic

field. One issue that has arisen is whether a government agency which

conducts research can petition an outstanding professor or researcher.

It is the position of the Service that some government agencies such as

the National Institutes of Health and the Food and Drug Administration

should be able to file petitions on behalf of outstanding alien

researchers, who may have valuable contributions to bring to the

agency's research efforts. In order to allow for government agencies to

sponsor certain outstanding researchers, the Service proposes to amend

the regulation to include government agencies on the list of United

States employers.

Multinational Executives and Managers

Section 203(b)(1)(C) of the Act provides for the immigration of

multinational executives and managers if the alien, in the 3 years

preceding the time of his or her application for classification and

admission into the United States, has been employed for at least 1 year

in a managerial or executive position abroad with the same

[[Page 29776]] employer, or a subsidiary or affiliate thereof. To

accommodate managers or executives who have been in the United States

in nonimmigrant status for over 3 years, 8 CFR 204.5(j)(3)(i)(B)

provides that an alien, already working in the Unites States for the

same employer or a subsidiary or affiliate of the firm or corporation

which employed the alien abroad as a manager or executive during at

least one of the 3 years preceding his or her entry as a nonimmigrant,

would qualify as a multinational executive or manager. In the case of

an alien who is currently outside the United States, he or she must

have been employed abroad by an affiliate, branch, or subsidiary of the

petitioner as a manager or executive for at least 1 year during the 3-

year period immediately preceding the filing of the petition. See 8 CFR

204.5(j)(3)(i)(A). Section 204.5(j)(3) of the regulations inadvertently

omitted situations where the alien was in lawful nonimmigrant status

while working for an unrelated employer, but worked for a qualifying

company abroad in a managerial or executive position during at least 1

of the 3 years preceeding the filing of the petition. The fact that the

alien is working in the United States should not preclude him or her

from qualifying as a priority worker. Aliens who have worked for an

unrelated employer should be treated the same as aliens who are outside

the United States for purposes of eligibility. Accordingly, the Service

proposes to allow U.S. employers to file petitions on behalf of those

aliens for managerial or executive positions.

Advanced Degree Holders and Aliens of Exceptional Ability

The current regulation defines ``exceptional ability'' as a degree

of expertise significantly above that ordinarily encountered in the

sciences, arts, or business. See 8 CFR 204.5(k)(2). The regulation at 8

CFR 204.5(k)(3)(ii) lists evidence which needs to be presented to

establish exceptional ability. Since the Implementation of IMMACT,

there has been some confusion over the role of various types of

evidence listed in the regulation. As in the cases of aliens of

extraordinary ability and outstanding professors and researchers, the

Service intended that this list of evidence be a guideline for the

petitioner and the Service to determine exceptional ability. Providing

a list of possible types of evidence makes the adjudicative process

simpler for both the petitioner and the Service. The fact that an alien

may meet three of the listed criteria does not necessarily mean that he

or she meets the standard of exceptional ability. The Service

adjudicator must still determine whether the alien has a degree of

expertise significantly above that ordinarily encountered in the

sciences, arts, or business. Accordingly, the Service proposes to amend

the regulation to state that meeting three of the evidentiary standards

is not dispositive of whether the beneficiary is an alien of

exceptional ability.

Under section 203(b)(2)(A) of the Act, professionals holding

advanced degrees or their equivalent also qualify for classification

under the employment-based second category. The Joint Explanatory

Statement of the Committee of Conference, made at the time Congress

adopted IMMACT, stated that the equivalent of an advanced degree is ``a

bachelor's degree with at least five years progressive experience in

the professions.'' See H.R. Rep. No. 101-955, 101st Cong., 2d Sess. 121

(1990). Accordingly, the current regulation states that the job offer

portion of the labor certification application (Form ETA-750) must

demonstrate that the job requires a professional holding an advanced

degree or equivalent. See 8 CFR 204.5(k)(4)(i). Since the Service began

adjudicating petitions under the current regulation, some petitioners

have interpreted this regulation to allow job offers which require only

a bachelor's degree, plus 5 years of progressive experience, but not an

advanced degree. This interpretation does not comport with the language

of section 203(b)(2)(A) of the Act which, on its face, states that a

job offer must require an advanced degree or equivalent in order to

qualify the beneficiary as an advanced degree holder. Requiring a

bachelor's degree and 5 years of experience does not equate to a

requirement that the beneficiary hold an advanced degree. In order for

the beneficiary to qualify as an advanced degree holder, the job

offered in the labor certification must also accept an advanced degree

as a minimum job requirement. Therefore, the Service proposes that the

regulation be amended to state that if the job offer portion of the

labor certification requires a person holding a bachelor's degree,

followed by at least 5 years of experience in the specialty, it must

also accept an advanced degree holder in the same field as meeting the

minimum job requirements.

Section 212(a)(5)(C) of the Act states that a petition filed under

the employment-based second category requires a labor certification.

Section 203(b)(2)(B) of the Act provides that ``the Attorney General

may, when he deems it to be in the national interest, waive the

requirement * * * that an alien's services in the sciences, arts,

professions, or business are sought by an employer in the United

States.'' The Service has determined that a waiver of the job offer

constitutes a waiver of the labor certification. See 56 FR 60897-60913

dated November 29, 1991. Soon after the promulgation of the final rule

on employment-based immigrant petitions in November of 1991, the

President signed the Miscellaneous and Technical Immigration and

Naturalization Amendments of 1991 (MTINA). The MTINA added

professionals to the list of aliens who are eligible to request a

national interest waiver of the labor certification. Accordingly, the

Service proposes to amend 8 CFR 204.5(k)(4)(ii) to add professionals to

the list of aliens whom the service center director can exempt from the

labor certification requirement.

After the Service issued a proposed regulation on employment-based

immigrant petitions at 56 FR 30703-30714 on July 5, 1991, several

commenters suggested that the Service define the term ``national

interest.'' The Service decided not to define the term ``national

interest'' in the final regulation. See 56 FR 60897-60913 dated

November 29, 1991. At that time, the Service believed that it was

appropriate to leave the application of the national interest waiver as

flexible as possible and that each case should be judged on its own

merits.

Since the promulgation of the final regulation on November 29,

1991, the Service has received numerous petitions filed under the

employment-based second category, which request a waiver of the labor

certification requirement in the national interest. Since IMMACT became

effective in 1991, the Service has been flexible in approving national

interest waivers in a variety of situations. The Administrative Appeals

Unit (AAU) has issued a number of non-precedent decisions on the

national interest waiver. The AAU has listed some factors which relate

to national interest. See Matter of ________, EAC 92 091 50126 (July

21, 1992). They include improving the U.S. economy, improving

conditions of U.S. workers, improving education and training of

children and under-qualified workers, improving health care, providing

affordable housing, improving the environment, and a request from an

interested government agency. Although these factors provide a list of

national goals or objectives, they do not provide much guidance to the

public or to Service adjudicators with respect to which aliens merit a

national interest waiver.

Without specific guidelines, the service centers have found it

difficult to [[Page 29777]] determine which aliens should qualify for

the waiver. It has proven to be very difficult to determine on a case-

by-case basis which petitions deserve a ``national interest'' waiver.

The Service believes that, absent published general guidelines, it is

very difficult to adjudicate consistently national interest waivers.

Based on the Service's experience in adjudicating national interest

waivers since 1991, the Service proposes that the petitioner establish

four elements to qualify for a national interest waiver. These elements

will allow for greater consistency in adjudication of national interest

waivers as well as provide guidance to the public. They do not limit,

or attempt to define, which types of activities are in the national

interest. The four elements do, however, provide common indicators of

whether the alien's admission to the United States would benefit the

national interest.

The first element is that the alien must have at least 2 years of

experience in the area in which he or she will benefit the United

States. The Service believes that requiring some background in the area

in which the alien will benefit the national interest is an appropriate

measure of whether the alien has the commitment to pursue the activity

which will promote a national interest, as stated in the petition.

Unlike an alien who immigrates based on a labor certification, an alien

who immigrates based on a national interest waiver does not require a

specific job offer and a sponsoring employer. It is, therefore, more

difficult in such waiver cases for the Service to determine whether the

alien has the commitment to engage in the activity which will promote a

national interest following his or her admission as an immigrant.

To illustrate this problem, the Service notes that it has received

a number of petitions, accompanied by a request for a national interest

waiver, from professionals who recently received an advanced degree and

claim that they will be engaged in activities which will be in the

national interest. One example is an attorney who recently passed the

state bar examination and promises to devote some of his practice to

representing indigent persons. Another example is someone who has just

graduated from medical school and states that he or she will practice

in a medically under-served area. Such petitions have been problematic

for the Service to adjudicate. The aliens claim they will be engaged in

activity in which they do not have a ``track record.'' Under the

current regulations, the Service has no means to determine whether the

alien is truly committed to performing the activity which promotes the

national interest. The Service believes that it is appropriate to

require the alien to have 2 years of full-time experience in the field

of endeavor which will promote the national interest. The Service does

not believe, however, that the required period of experience should

include time in which the alien was a full- or part-time student. It is

the position of the Service that 2 years of full-time experience is the

minimum period of time to measure the alien's commitment to work in an

area which will promote the national interest. In addition, this 2-year

full-time experience requirement is necessary to determine whether the

alien has sufficient qualifying experience in the field to play a

significant role in an activity which will prospectively benefit the

United States.

The second element is that the national interest waiver not be

based purely on the alien's ability to ameliorate a local labor

shortage. Although the legislative history of IMMACT and MTINA does not

address the meaning of the term ``national interest,'' Congress clearly

stated, in section 212(a)(5)(C) of the Act, that all aliens who

immigrate under the second and third employment-based categories

require a labor certification. Section 203(b)(2)(B) of the Act allows

the Attorney General to waive the requirement that an alien's services

in the sciences, arts, professions, or business be sought by an

employer in the United States if it is in the national interest. By

enacting the national interest waiver, Congress created an exception to

the general labor certification requirement. It would, therefore, be

superfluous to allow an alien to be exempted from the labor

certification requirement based purely on a shortage of available U.S.

workers. Congress has delegated to the Department of Labor the

determination of whether local labor shortages exist. See section

212(a)(5)(A) of the Act. This does not mean, however, that the

existence of a national labor shortage would not be relevant to whether

an alien should be granted a national interest waiver. The fact that

the alien has skills which are not available in the overall U.S. labor

market may be a relevant consideration in deciding whether to grant a

national interest waiver. However, should the Service determine that

the basis of the request for a national interest waiver is solely to

alleviate a local labor shortage, a labor certification will be the

appropriate basis to qualify for an employment-based petition.

The plain language of the term ``national interest'' supports the

Service's position on local labor shortages. The dictionary defines the

word ``national'' as ``pertaining to a whole nation'' or ``concerning

or encompassing an entire nation.'' See The Random House College

Dictionary (Rev. Ed. 1975). If the basis of the request for a national

interest waiver is merely to solve a labor shortage in a limited area

of the country, the impact of the alien's employment cannot be said to

pertain directly to the entire Nation. There must be an impact on the

Nation as a whole.

In conclusion, the Service has determined that local labor market

concerns, standing alone, are not an appropriate basis for a national

interest waiver, which exempts the alien from the normal labor

certification requirement. Accordingly, the Service proposes to

preclude aliens from obtaining a national interest waiver based purely

on a local labor shortage.

The third element in determining whether the alien should be given

a national interest waiver is that the alien will be involved in an

undertaking which will substantially benefit prospectively the United

States. This requirement follows the statutory language of section

203(b)(2)(B) of the Act, which makes it clear that the waiver request

should be premised on an activity which will further an important

national goal. The emphasis of this element is on the particular

national goal the alien's proposed undertaking will promote.

The fourth element in determining whether the labor certification

and job offer should be waived in the national interest is that the

alien play a significant role in that activity which will prospectively

benefit the United States. The Service has received a large number of

requests for a national interest waiver from aliens who play relatively

minor roles in an important project or activity which affects the

national interest. One example is an alien who is an entry-level

engineer who works for a company which conducts important research into

new sources of energy, such as fusion. Another example is a physician

who claims that he or she will work in primary-care, which the

President's health care proposal emphasizes. In both examples, the

alien states that he or she will be working in a field which will

promote a national goal or cause. While this may be true, merely

working in an area which benefits the national interest is not a

sufficient basis to grant a national interest waiver. The alien must

also establish that he or she will [[Page 29778]] play a significant

role in advancing the particular national interest. In other words, the

alien has the burden of proof that he or she will have a significant

impact on an activity which will benefit the national interests of the

United States.

This proposed regulation will serve as a guideline for aliens who

apply for a national interest waiver. It emphasizes both the manner in

which the alien will contribute to the national interest, as well as

the activity or employment itself. The Service believes that the alien

must show that he or she will play a significant role in an undertaking

which will prospectively benefit the United States.

Skilled Workers, Professionals, and Other Workers

The employment-based third category under section 203(b)(3) of the

Act has subcategories for professionals, skilled workers, and unskilled

workers. Although there are 40,000 immigrant visa numbers allocated

annually to the employment-based third category, section 203(b)(3)(B)

of the Act limits the annual admissions of unskilled workers to 10,000.

In order to qualify as a skilled worker, the job offered must require

at least 2 years of training or experience. Under the current

regulation, the Service determines whether a job offered is skilled or

unskilled based on the minimum experience or training requirements

which the prospective employer places on the job, as certified by the

Department of Labor on Form ETA 750. See 8 CFR 204.5(l)(4). Block

number 14 on Form ETA 750A (Offer of Employment) lists the minimum

experience for a worker to satisfactorily perform the job offered. As a

matter of practice, the Department of Labor permits the minimum

experience required to satisfactorily perform the job offered to be in

the job offered or in a related occupation.

The Service has received a number of petitions in which the minimum

experience requirement in a related occupation is 2 years or more and

the minimum experience requirement in the job offered is less than 2

years. This regulation proposes to place the beneficiary into the

unskilled category if the experience requirement on Block 14 on Form

ETA 750A for the job offered shows less than 2 years of experience. To

do otherwise would mean that a job applicant could meet one of the

minimum job offer requirements with less than 2 years of experience in

the job itself. The Service has determined that focusing on the

experience required for the job offered comports with the language of

section 203(b)(3)(A)(i) of the Act which defines skilled workers as

qualified immigrants who are capable of performing skilled labor,

requiring at least 2 years of experience or training. Accordingly, the

Service proposes to add a sentence to emphasize that a worker will be

considered unskilled if a job applicant can meet the minimum experience

requirements in the job offered with less than 2 years of experience.

Religious Workers

Section 151(a) of IMMACT created a new immigrant category for

ministers, religious professionals, and other religious workers.

Section 101(a)(27)(C)(iii) of the Act provides that in order to qualify

under this category, a minister must have been carrying on the vocation

of minister during the previous 2 years. The Act also requires

professional and other religious workers to carry on the religious work

during the previous 2 years. The regulation currently states that

ministers and religious workers must have been performing the vocation

of minister or religious work continuously, either abroad or in the

United States, for at least the 2-year period immediately preceding the

filing of the petition. See 8 CFR 204.5(m)(1). The Service proposes to

amend the regulation to expressly require that the 2 years of

experience be full-time.

Before Congress enacted IMMACT in 1990, section 101(a)(27)(C) of

the Act classified ministers as special immigrants. Under this

category, the alien had to establish that he was ``an immigrant who

continuously for at least two years immediately preceding the time of

his application for admission to the United States has been, and who

seeks to enter the United States solely for the purpose of carrying on

the vocation of minister of a religious denomination.'' This language

is virtually identical with the current statute, except that Congress

added a category for religious workers. The legislative history

indicates that Congress did not intend to overrule pre-existing case

law interpreting the experience requirement under former section

101(a)(27)(C) of the Act. See H. Rep. No. 723, 101st Cong., 2nd Sess.

75 (1990). In Matter of Faith Assembly Church, 19 I&N Dec. 391, 393

(Comm. 1986), the Commissioner determined that the term ``solely''

applies to both the alien's proposed ministerial activities as well as

to the alien's previous experience as a religious minister. Because of

the legislative history and the similarity in the statutory language,

it is appropriate for the Service to require that the 2 years of

experience be full-time. In addition, this interpretation is consistent

with the statutory framework, under which IMMACT also created a

nonimmigrant category for religious workers. See section 101(a)(15)(R)

of the Act. The 2-year experience requirement is the only difference

between the nonimmigrant and immigrant religious worker category.

Compare id with section 101(a)(27)(C)(iii) of the Act. Both categories

require 2 years of membership in the religious denomination. Since

membership in a religious denomination may entail some part-time

volunteer work, part-time employment should not suffice to qualify the

alien as a special immigrant religious worker. Permitting such part-

time employment to count towards meeting the experience requirement for

immigrant religious workers would render the distinction between the

two categories, and, therefore, the experience requirement itself,

superfluous.

Accordingly, the Service proposes to amend the regulation to

expressly require that the 2 years of experience be full-time. In order

for the qualifying experience to be considered full-time, the alien

must have worked in a qualifying religious vocation or occupation for

at least 35 hours per week or more, depending on what constitutes

``full-time'' experience in the particular religious occupation or

vocation.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Commissioner of the

Immigration and Naturalization Service certifies that this rule will

not, if promulgated, have a significant adverse economic impact on a

substantial number of small entities. This proposed rule merely

modifies existing regulations for employment-based immigration. It will

not significantly change the number of persons who immigrate to the

United States based on employment-based petitions. Any impact on small

business entities will be, at most, indirect and attenuated.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory

Planning and Review, and the Office of Management and Budget has waived

its review process under section 6(a)(3)(A). [[Page 29779]]

Executive Order 12612

The regulation will not have substantial direct effects on the

States, on the relationship between the National Government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service

certifies that she has addressed this rule in light of the criteria in

Executive Order 12606 and has determined that it will have no effect on

family well-being.

List of Subjects in 8 CFR Part 204

Administrative practice and procedure, Aliens, Employment,

Immigration, Forms.

Accordingly, part 204 of chapter I of title 8 of the Code of

Federal Regulations is proposed to be amended as follows:

PART 204--IMMIGRANT PETITIONS

1. The authority citation for part 204 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,

1255; 8 CFR part 2.

2. In Sec. 204.5, paragraph (c) is revised to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(c) Filing petition. Any United States employer desiring and

intending to employ an alien may file a petition for classification of

the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or

203(b)(3) of the Act. An alien, or any person in the alien's behalf,

may file a petition for classification under section 203(b)(1)(A) or

203(b)(4) of the Act (as it relates to special immigrants under section

101(a)(27)(C) of the Act). For purpose of this part, a United States

employer must be a person who is a United States citizen or permanent

resident, a firm, corporation, contractor, or other association or

organization in the United States which engages a person to work in the

United States, which has an employer-employee relationship with respect

to employees as indicated by the fact that it may hire, pay, fire,

supervise, or otherwise control the work of such employee.

* * * * *

3. In Sec. 204.5, paragraph (d) is amended by adding the following

sentence immediately after the first sentence, to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(d) Priority date. * * * If the United States employer substitutes

another alien on a labor certification, the priority date shall be the

date the employer requests the substitution. * * *

* * * * *

4. In Sec. 204.5, paragraph (e) is amended by revising the third

sentence to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(e) Retention of section 203(b)(1), (2), or (3) priority date.--* *

* A petition revoked pursuant to 8 CFR 205.2 for fraud or

misrepresentation will not confer a priority date, nor will any

priority date be established as a result of a denied petition. * * *

* * * * *

5. In Sec. 204.5, paragraph (f) is revised to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(f) Maintaining the priority date of a third or sixth preference

petition filed prior to October 1, 1991--Any petition filed before

October 1, 1991, and approved on any date, to accord status under

section 203(a)(3) or 203(a)(6) of the Act, as in effect before October

1, 1991, shall be deemed a petition approved to accord status under

section 203(b)(2) or within the appropriate classification under

section 203(b)(3), respectively, of the Act as in effect on or after

October 1, 1991, provided that the alien applies for an immigrant visa

or adjustment of status within the two-year period following approval

of the petition during which an immigrant visa is continuously

available for his or her use.

* * * * *

Sec. 204.5 [Amended]

6. Section 204.5(g)(2) is amended in the last sentence by adding

the phrase ``payroll records, W-2 forms,'' immediately after the phrase

``bank account records,''.

7. In Sec. 204.5, paragraphs (h) through (n) are redesignated as

paragraphs (i) through (o), respectively, and a new paragraph (h) is

added to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(h) Validity of section 203(b) petitions and labor certifications--

(1) A petition approved pursuant to section 203(b) of the Act is valid

indefinitely unless revoked under section 205 of the Act. A labor

certification is valid until the alien immigrates or adjusts status

under an employment-based petition based on the labor certification,

unless there is a finding by the Service or the State Department that

the labor certification was obtained through fraud or a material

misrepresentation.

(2) Changes in job location--(1) Non-schedule A labor

certificatons. A labor certification is valid only for the area within

normal commuting distance of the site of the original offer of

employment. Any location within a Metropolitan Statistical Area is

deemed to be within normal commuting distance. If there is a change in

job location after a Form I-140 Immigrant Petition for Alien Worker has

been approved, the petitioner shall file a new Form I-140 petition with

the service center having jurisdiction over the intended place of

employment.

(ii) Schedule A labor certifications. A Schedule A labor

certification is valid anywhere in the United States.

(3) Successorship in interest. If there has been a successor in

interest to the original petitioning employer, the Service will

reaffirm the validity of the labor certification or previously approved

Form I-140 petition for the new employer. For purposes of this

paragraph, to be a successor in interest, the new employer must have

substantially assumed the duties, rights, obligations, and assets of

the original employer. In addition, the new employer must offer the

same wages and working conditions to its employees, offer the

beneficiary the same job as stated in the labor certification, and

continue to operate the same type of business as the original employer.

The new employer must submit a Form I-140 petition with the service

center having jurisdiction over intended place of employment along with

evidence that it is a successor in interest and documentation showing

the change in ownership and ability to pay the wage offered. If the

Service did not approve a petition filed by the original employer, the

new employer must also establish that the original employer had the

ability to pay the proffered wage when the labor certification was

submitted.

* * * * *

8. In Sec. 204.5, newly redesignated paragraphs (i)(4) and (i)(5)

are revised to read as follows: [[Page 29780]]

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(i) * * *

(4) If the above standards do not readily apply to the

beneficiary's occupation, the petitioner may submit comparable evidence

to establish the beneficiary's eligibility. Meeting three of the

evidentiary standards listed in paragraph (i)(3) of this section is not

dispositive of whether the beneficiary is an alien of extraordinary

ability. The petitioner has the burden of proof to establish that he or

she is an alien of extraordinary ability.

(5) No offer of employment required. Neither an offer of employment

in the United States nor a labor certification is required for this

classification; however, the petition must be accompanied by clear

evidence that the alien is coming to the United States to continue work

in the area of expertise. Such evidence may include letter(s) from

prospective employer(s), evidence of prearranged commitments such as

contracts, or a statement from the beneficiary detailing plans on how

he or she intends to continue his or her work in the United States. The

alien's primary source of earned income must come from the specific

activity or activities for which he or she seeks classification as an

alien of extraordinary ability.

* * * * *

9. Section 204.5 is amended by:

a. Revising newly redesignated paragraph (j)(3)(i) introductory

text;

b. Revising newly redesignated paragraph (j)(3)(i) (C) and (D); and

by

c. Revising the first sentence in newly redesignated paragraph

(j)(3)(iii)(C), to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(j) * * *

(3) * * *

(i) Evidence that the professor or researcher is recognized

internationally as outstanding in the academic field specified in the

petition. Such evidence shall consist of at least two of the following.

Meeting two of the following evidentiary standards listed in paragraph

(j)(3)(i) of this section is not dispositive of whether the beneficiary

is recognized internationally as outstanding in the academic field

specified in the petition. The petitioner has the burden of proof to

establish that the beneficiary is an outstanding researcher or

professor:

* * * * *

(C) Published material in professional publications written by

others discussing or analyzing the alien's work in the academic field.

Such material shall include the title, date, and author of the

material, and any necessary translation;

(D) Evidence of the alien's participation, either individually or

on a panel, as the judge of the work of other professors, researchers,

or Ph.D. candidates in the same or related academic field;

* * * * *

(iii) * * *

(C) A department, division, or institute of a private employer or a

state, local, or Federal Government agency offering the alien a

permanent research position in the alien's academic field. * * *

* * * * *

10. In Sec. 204.5, newly redesignated paragraph (k)(3)(i) is

amended by redesignating paragraphs (k)(3)(i) (C) and (D) as paragraphs

(k)(3)(i) (D) and (E) respectively; and by adding a new paragraph

(k)(3)(i)(C) to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(k) * * *

(3) * * *

(i) * * *

(C) If the alien is already in the United States working for an

employer which is not the same employer or a subsidiary or affiliate of

the entity by which the alien was employed overseas, in the three years

preceding the filing of the petition, the alien has been employed

outside the United States for at least one year in a managerial or

executive capacity by a firm or corporation, or other legal entity, or

by an affiliate or subsidiary of such a firm or corporation or other

legal entity;

* * * * *

11. In Sec. 204.5, newly redesignated paragraphs (l)(1),

(l)(3)(iii), and (l)(4) are revised to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(l) Aliens who are members of the professions holding advanced

degrees or aliens of exceptional ability. (1) Any United States

employer may file a petition on Form I-140 for classification of an

alien under section 203(b)(2) of the Act as an alien who is a member of

the professions holding an advanced degree or an alien of exceptional

ability in the sciences, arts, or business. If the alien is seeking an

exemption from the requirement of a job offer in the United States

pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone

in the alien's behalf, may be the petitioner.

* * * * *

(3) * * *

(iii) If the standards in paragraph (l)(3) do not readily apply to

the beneficiary's occupation, the petitioner may submit comparable

evidence to establish the beneficiary's eligibility. Meeting three of

the evidentiary standards listed in paragraph (l)(3)(ii) of this

section is not dispositive of whether the beneficiary is an alien of

exceptional ability. The petitioner has the burden of proof to

establish that the alien is an alien of exceptional ability.

(4) Labor certification or evidence that the alien qualifies for

Labor Market Information Pilot Program--(i) General. Every petition

under this classification must be accompanied by an individual labor

certification from the Department of Labor, by an application for

Schedule A designation (if applicable), or by documentation to

establish that the alien qualifies for one of the shortage occupations

in the Department of Labor's Labor Market Information Pilot Program. To

apply for Schedule A designation or to establish that the alien's

occupation is within the Labor Market Information Program, a fully

executed uncertified Form ETA-750 in duplicate must accompany the

petition. The job offer portion of the individual labor certification,

Schedule A application, or Pilot Program application must demonstrate

that the job requires a professional holding an advanced degree or the

equivalent, or an alien of exceptional ability. If the job offer

portion of the labor certification requires a baccalaureate degree or

foreign equivalent degree followed by at least five years of

progressive post-baccalaureate experience in the specialty, it must

also provide that an advanced degree holder may meet the minimum job

requirements.

(ii) Exemption from job offer. The director may exempt the

requirement of a job offer, and thus of a labor certification, for

aliens of exceptional ability in the sciences, arts, or business and

members of the professions if exemption would be in the national

interest.

(A) To show that such exemption would be in the national interest,

the petitioner must establish the following:

(1) The alien has at least two years of full-time experience in the

activity in which he or she will benefit the United States;

(2) The alien's request for a waiver of the labor certification

requirement is not based purely on a local labor shortage;

(3) The alien will engage in an undertaking which will

substantially benefit prospectively the United States;

and [[Page 29781]]

(4) The alien will play a significant role in the undertaking

described in paragraph (l)(4)(ii)(A)(3).

(B) To apply for the exemption, the petitioner must submit Form

ETA-750B, Statement of Qualifications of Alien, in duplicate, as well

as evidence to support the claim that such exemption would be in the

national interest.

* * * * *

12. In Sec. 205.5, newly redesignated paragraph (m)(4) is revised

to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(m) * * *

(4) Differentiating between skilled and other workers. The

determination of whether a worker is a skilled or other worker will be

based on the requirements of training and/or experience placed on the

job by the prospective employer, as certified by the Department of

Labor. A worker will be considered unskilled if the prospective

employer's minimum experience requirement, as certified by the

Department of Labor, indicates that less than two years of experience,

either in the job offered or in a related occupation, is required. In

the case of a Schedule A occupation or a shortage occupation within the

Labor Market Pilot Program, the petitioner will be required to

establish to the director that the job is a skilled one, i.e., one

which requires at least two years of training and/or experience.

* * * * *

Sec. 204.5 [Amended]

13. In Sec. 204.5, newly redesignated paragraph (n)(1) is amended

in the fourth sentence by adding the phrase ``on a full-time basis''

immediately after the phrase ``or other work''.

14. In Sec. 204.5, newly redesignated paragraph (n)(3)(ii)(A) is

amended by adding the phrase ``full-time'' between the words ``of'' and

``experience''.

15. In Sec. 204.5, newly redesignated paragraph (n)(4) is amended

in the second sentence by adding the phrase ``and will be working for

the religious organization on a full-time basis'' immediately after the

term ``or solicitation of funds for support''.

16. In Sec. 204.5, newly redesignated paragraph (o)(1) is revised

to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *

(o) Closing action--(1) Approval. An approved employment-based

petition will be forwarded to the Department of State National Visa

Center. If the petition indicates that the alien will apply for

adjustment to permanent residence in the United States, the approved

petitions will be retained by the Service for consideration with the

application for permanent resident (Form I-485).

* * * * *

Sec. 204.5 [Amended]

17. In Sec. 204.5, newly redesignated paragraph (o)(3) is removed.

Dated: March 3, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-13806 Filed 6-5-95; 8:45 am]

BILLING CODE 4410-10-M