. 60897 . Rules and Regulations                                                                       Federal Resister    ...
&0898       Federal Register I Vol. 56; No. 230 I Friday. November 29. 1991 I Rules and Regulations individual labor cerli...
: ·. Federal Register     f   Vol. 56, No. 230    I   Friday, November 29, 1991        I   Rules imd. Regulations "       ...
60900       Federal Register    I   Vol. 56, No. 230   I   Friday. November 29, 1991        I   Rules and RegulationsExpla...
Federal Register     I    Vol. 56, No. 230    I   Friday. November 29, 1991       I   Rules and Regulations            609...
Federal ·Register. / · Vol. 56, No. 23() [ FridQy, November 29, ..1991         f. Rules   an!i Regulations, .reference.to ...
Federal Register   I   Vol. 56. No. 230   I   Friday. November 29, 1991       I   Rules and Regulations         60903Requi...
60904       Federal Register     I   vol.   sa,· No. Z30 j Friday. November 29, 1991 I           Rules and Regulationsareu...
60906       Federal Register     I   Vol. 56, No. 230   I   Friday. November 29. 19!n.        I   Rules and Regulationsyea...
Federal Register     I   Vol. 56, No. 230     t Friday. November 29. 1991 I Rules and Regulations                    60907...
Original EB-5 FR Notice 1991
Original EB-5 FR Notice 1991
Original EB-5 FR Notice 1991
Original EB-5 FR Notice 1991
Original EB-5 FR Notice 1991
Original EB-5 FR Notice 1991
Original EB-5 FR Notice 1991
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Original EB-5 FR Notice 1991


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Original EB-5 FR Notice 1991

  1. 1. . 60897 . Rules and Regulations Federal Resister Vol. 56. No. 230 Friday. Novefnbe.r 29. 1991ThiS seC1ion of the FEDERAL REGISTER comments from interested parties by order to aetermine whethercontains regulatory documents having August 5, 1991. · reinstatement of concurrent filinggeneral •PPIi<:abiBty and legal effee~ most The Service received 340 comments becomes desi:rable. The final rule thusof wfli<:h ere keyed to end cod"died in provides that""peiitlons may bethe Code of Federal Regulations. which is on the proposed rule. All or the ·published under 50 titles pursuant to 44 comments.were reviewed and specifically designated lor local filing byu.s.c. 151(). considered in writing this final rule. The the Associate Commissioner forThe Code of Federal Regulations is sold discussion which follows groups the Examinations. This would permit aby the Superintendent of Documents. comments into major subject areas . general reinstatement of concurrentPficos of new books are listed in the . where comments were made, provides filing or more limited d esignations, iffirst FEDERAL REG.ISTER iSsue of ea<:h the Service position on the issue. and appropriate:week. indicates any revisions made based on A great number or commenters the comments. · expressed ·concern about the transition to the provisions of the new law. MostDEPARTMENT OF JUSTICE Procedural Issues of these commcnlell feltlhatlhc ServiceImmigration and Naturalization There were four procedural issues In should provide for automatic conversion~Ice the proposed rule which elicited a of third and sixth preference petitions to substantial number of comments: Filing the new classifications. The proposed8 CFR Parts 103 and 204 o! petitions only at Service Centers. rule in8tCad c.ontained the requirement. transition to the new law, priority dates. imposed by .the Act, that a new.!INS No.1434c91) and determination or the abiUty of 8 employment:llased-immigration petition prospective employer to pay the must be filed by October 1, 1993 to RtN 1115-AC59 immigrants wage. retain a priority date established for a The Service proposed that petitions third or sixth preference petition before Employment-Based Immigrants for employment-based Immigrants be October 1, 1991. On October 1.1991.AGENCY: Immigration and Naturalization filed only al the four Service Centers. ln. however. the President signed into lawService. Justice. effect. this means the elimination of . the Anned Fan:es Immigration concurrenl filing at local offices of AdjustmentA ct or 1991, Public Law 102-ACTION: Final rule. employment-based petitions with i10. Section 4i of this law createdSUMMARY: This final rule implements applications for permanent residence essenUal)y the conversion system ·section 1Zt of the Immigration Act of [Form 1-485). There were two reasons suggested by the.commenters. Any third1990. Public Law 101~9. November 29, for this proposal. First, it appears that as or sixth pre!e:rence petition !iled before1990 (IMMACT), by providing of October 1, 1991, visa numbers will be October t ,1991, e nd approved on apypetitioning procedures for employment- current for the new employrnent,besed date will be deemed a petillon approvedbased lmmigrants·imder sections 203[b) classifications, and the Service did not . under s" ectlorts 203[b)[2) or zOO[b)(3) of[1) through [5) of the Immigration and want an oppressive workload to fall to the Act, respectively. The final rule hasNationality Act [Act). It will also local o!!iccs. Seeond. during the been adjusted to renee! this change toimplement new immigrant transition to the provisions of the new the statute.classifications end requirements law, training and guidance could be In the proposed rule, the Serviceestablished by Public Law 101~9. end concentrated at the four Service Indicated that for classification underclarify, for ·the general public and Centers. aections 203[b) [1), (2). and [3) or thebusinesses. requirements lor One hundred and fourteen Act, the priority date of the petitionclassification and admission for these commenters objected to this proposal, would be the date the petition wasnew immigrant classifications. This rule for the most part seeing it not only as properly filed with the Service. Thisis necessary to help American shifting work to the Servi ce Centers but proposal rcsu.lt0 d in 186 comments. Thebusinesses hire highly skilled, specially also as increasing the total Service ·public concern arose from.the !act thattrained per.s onnel to fill increasingly workload. Some of these commenters many petiliqns urider the newsophisticated jobs for which domestic suggested that concurrent filings be classifications will continue to bepersonnel cannot be found. suspended only temporarily. accompanied by individual labor As provide<( in a final rule published . certifications from the Department ofEFFECTIVE DATE: November ZQ, 1991. by the Service on October 2. 1991 [56 FR · Labor. Commenters pointed to lengthy. FOR FURTHER INFORMATION CONTAcm 49839), the Service will not reinstate processing times at some Department ofEdward H. Skerrelt. Senior Immigration concurrent filing. As explaine<t in the Labor certi!yi.ng offices and suggestedExaminer, or Carla J.. Hengerer, . . preamble to that rule, the Service wishes that both employers and aliens In someImmigration Examiner, Adjudicatlons · to ensure uniformity of adjudlcaUon, to areas of !,he country would beDivision, Immigration a.nd the degree possible. This goal seems disadvantaged. The most significantNaturalization Service, 425 I Street NW.. best accomplished if jurisdiction over o.bjection to this proposal came from theroom 71ZZ, Washington. DC 20536. these petitions is assigned to the four · Department of Labor itsel!.tolephone [202) 514-3946. Service Centers. rather than to the many The final rule renects a return toSUPPUMENTARY INFORMATION: On July local o!!iccs. However. the Service · priority date establishment as continued5.1991, at 56 FR 30703, the Immigration intends to monitor the adjudication In current reg·ulation. When a petitionand Naturali:zatioo Service published a process during its first few months lor classification under section 203[b)[2)proposed rule with request lor under the new regulatory scheme in or (31 or the Act is accompanied by an
  2. 2. &0898 Federal Register I Vol. 56; No. 230 I Friday. November 29. 1991 I Rules and Regulations individual labor cerlification from the of the ability of lhe prospective selecled by Congress. Accordingl y. lhe Department of Labor, lhe priority date employer lo pay lhe wage. Twelve rules stand.ards governing will be the earliest date lhe application commenters found the requirement. es "extraordinary abilily" are comparablefor certiflc:alion we a accepted for stated In lhe proposed rule. lo be lo the Schedule A/Group II standardsprocessh•lfby any office within the restrictive or cumbersome. Suggestions governing exceptional ability" and lheemployment service system of the ranged from accepling types ol financial rules standards governing "exceptionalDepartment of Labor. For a petition evidence olher than an annual reporl or ability" are less reslriclive than the ·which was not preceded by an tax return to waiving the ·requirement Schedule A/Croup II standardsindividual application to the Deparlmenl lor eslablished employers or asking lor governing "exceptionaf"abilily." Anof Labor. including a petition wlth an documentation only·in questionable alien meeting the criteria for•pplication for Sdiedule A cases. "extraordinary" under 8 CFR 2M.s[h)determination or with evidence that the Tbe Service will retain lhe need not obtain a labor certification., Analiens occupation is a shortage requirement-as provided in lhe proposed alien who fails to meet these criteriaoccupation within tho Department of rule. wilh two modificalions. First. ·the may qualify as "exceptional" by meelingLabors Labor Market Information final rule w ill allow organizations which the crileria ol 8 CFR 204.5(k) however.Program. the priority dale will be the employ at leasl100 workers to submit a such a petilion must be accompanied bydale on which the pelilion is properly slatemenl from a financial officer of the a labor cerlification.ln alien whofile(! wilh the Service. organization on the organizations would also meet the criteria rar As a consequence of this ability to pay lhe wage. Second. lhe ftnal "exceplional" under Schedule A{Croupmodification, lhe paragraph in the rule will permit organizalions to Il-lhough lhat alien mighl also q ualifyproposed rule concerning labor demonstrate ability to pay the wage by under lhe rule as "exJraordinary"- hascerlificalion applications filed before submilting an audiled financial the addilional option. il visa avaflabilityOclober 1 . 1991 is unnecessary and will statement. or other circumstances make itbe removed from the final rulo. desirable. lo seek classificalion as an Tbe final rule also contains a new Aliens ol Extraordinary Ability "exceptional" aHen under sectionprovision.. 8 CFR 204.5(e). which should Four commenlers questioned how the 203(b)(2). thereby avoiding lhe necessilyhelp to alreviate past problems with standards in lhe proposed rule for a of lhe employer obtaining an individualemployment-based priority dales. This showing "exlraordinary abilily" under labor cerlificalion.part will allow an alien to relain the the firsl employmenl·based The Service received essentially lhreepriorily date of an employmenl-based classification relaled to those requiredpel ilion on his or her behalf which has for a showing of "exceptional abilily" sorts of objecllons toils staQdards for under lhe Department of Labors exlraordinary abillly. firs I. threebeen approved under seclions 203(b) (1).(2), or (3) of the Act. This priority d ale, Schedule A/Croup IJ. Schedule A/Croup commenters argued lhat the defimiliononce cslablished. will apply to II. found al 20 CFR 656.10. exempts itself-a level or abilily indica ling lhat cerlaln aliens or "exceptional ability" the alien is one or the "few who bassubsequent petitions on behalf of lhealien under sections 203(b) (1). [2). or (3) from the need to obtain an individual risen to lhe very top" of Ihe field-wasof lhe Act.lt will only be lost if Ihe labor certification. !MMACT crealed a too stringent, and suggesled lhat theinitial petition is revoked under sections new immigrant visa preference word "few" be removed from lhe204(e) or 205 of the Act. Tbe priority classification for alien• of definition. Second, nineteen commentersdate will n 0t. however. be applicable to "exlraordinary ability" (aa well as a believed that the crilerla governing !hepelitions under section 203(b) (4} or (5) new noniJlUtllgrant visa classification for. delerrnlnalion or extraordinary abilityof Ihe Act, or to family-based such aliens). !I also carried over a could exclude some a liens who do inclassificalipns. Nor will a petitioning separale Immigrant visa preference fact possess extraordinary ubility inemployer be permitted to· subslitule a classification for aliens of ..exceptional business. Finally. one commenter Ielldifferent alien for lhe original on a labor ability." !I is lhe Services duty. then. to that all athletes performing al a majorcertification and relain the original d iscern the slandarda that Cong.reso league level should be deemed to havepriorily dale. meant to apply to these lwo exlraordinary ability. Section 204.5(d) of lhe final rule has classifications. Tbe legislative hislory To address the objection 10 thealso been changed to provide a melhod indicates at House Report 101- 723. p. 59. definilion llself. the Service reexaminedfor assigning priority doles to peliliona that Congress intended for IMMACTs the legislative hislory on Ibis point. Infor classification as a special immigrant "exlraordinary ability" classification to House ReporllOl-723, lhe Houseunder section 203(b)(4) of lhe Act. The be comparable to the Department of : Committee on the Judiciary used ·thepriorily dale for such a petition shall be Labors "exceptional abilily" standard words "small percentage" where t.h elhe dale the completed. signed pelilion. set out in Schedule A/Croup 11. proposed rule used "few." Tbe final ruleincluding .all initial evidence and lhe Unforlunately. IMMICT also uses the has been revised accordingly.correcl fee. is properly filed with the term "exceptional ability" when Afler considering Ihe objectionService. A n alien whose application for reremns to certain immigrants under the concerning business persons. thesuch special immigrant classification new second employmenl-based !Service has concluded lhat.the trulyunder the prior law was filed before classification: yei iMMACT !ndicales ex.lraordinary business person canOctober 1, 1991 but had no I been that Us "excepllonalability" qualify based on the criteria set forlh inadjudicaled as of that date must file a classification is a 1ess restrictive one the pmposed rule. Several of lhe crileria ..Form 1-JOO for classificalion under than its "extraordinary ability" including such indicia of achievement asscclion 20G(b)[4). However. the priorily classification. Therefore. lMMACTs awards. arlicles by or about Ute alien Indate shall be lhe date t]Je alien "exceplional ability" classification is major publications. and salary level. aresubmitted Ihe application under prior necessarily also less restrictive than the wrillen In terms broadly applicable evenlaw for an Immigrant visa or adjuslment Department of·Labors Schedule A/ within the business community. Inor slatus. . Group ll"exceplional ability" slandard. : addilion. 8 CFR Z04:S(h)(4) permits -lhose The final general issue which mel Despile Ihe undesirable confusion. who believe lhe eslablished criteria do ·with some public response was the issue however, the Service must use the terms not readily apply lo their occupation lo ·
  3. 3. : ·. Federal Register f Vol. 56, No. 230 I Friday, November 29, 1991 I Rules imd. Regulations " 60899 submit comparable evidence of outstanding. or if the alien had full Another commenter objected that theextra6rdinary ability. responsibility for couraes taught. proposed rule required that the affiliate The Service disagrees lhat all alhletes Experience as a laboratory or teaching of an international accountingperforming at the major league level assistant will not qualify towa.rd the partnership must market its servicesshould automatically meet lhe three-year research or teac.birig under the same internationall.y"extraordinary ability" standard. requirement. · ·· recognized name. This commenter notedPerformance at lhat level may Five commenters felt that the · that some or these firms do not alwaysfrequently help to establish that the requirement that a teaching offer be for use the same name in differentathlete meets several of I he listed a tenured or tenure-track poOsition was countries. The Service may be flexible incriteria. However. section 203(b}(l}(A}(i} too stringent, and e few commentera felt accepting evidence, such as annualof the AcL as aMended by aectlon·121(a} that the requirement of three years of reports. demonstrating that the variousof Public Law 101~9. slates that the experience was unfair. Both of these affiliates of the accounting partnershipaliens extraordinary ability must be requirements are statutory; therefore. use substantially the same name. The"demonstrated by sustained national or lhe Service could not change the final statute specifically limits thisinternational acclaim." Not all athletes, rule on either point. eubsection. however. to accountingparticularly those new to major league Finally. the Service changed lhe partnerships !hot market theircompetition. would be able to meet lhis evidentiary criterion at 8 CFR accounting services "under the samestandard. A bl~nket rule for all major 204.5(i)(3}(i}(A). In thll proposed rule, the internationally recognized name," andleague athletes would contravene petitioner was required to submit lhe Service cannot deviate from thisCongress intent to reserve this category evidence that the alien had received requirement.to " that small percentage of individuals major international awards. The wOrd Two commenters felt lhat thewho have risen to lhe very top of their "international" has been removed in requirement or lhe regulation lhat thefield of e ndeavor." order to accommodate lhe ·possibility United States entity be doing business For clarification. the Service has that an alien..might be recognized for one year went beyond the languagesubdivided some of the eligibility internationally as outstanding for having of the statute. One of these commenterscriteria so that there are now ten. This received a major award that is not also felt lhat lhe lansuase "which haspart has also been changed to l!lake international. employees" must be removed from theclear lhat athletic and business·reluted definition of doing business in lhatcontributions of major significance will Certain Multinational Executives and staffing levels are not controlling whenmeet the criterion relating to lhe aliens Managers determining managerial or executiveoriginal contributions in the field. Seventy-two commenters found lhe capacities.Outstanding Professors and Researchers proposed definition of affiliate, us The hinguage "which has employees" There were two primary areas of applied to multinational executives and has been removed in the finalcomment regarding the proposed rule us managers. to be too restrictive. For the regulation. but the requirement of doingIt relates to outstanding professors and most port the commentera felt that the business for one year will be retained.researchers. . definition did not reflect business · This requirement is similar to one Sixty-five commenters. several from reality. pertaining to intra-company transfereesmajor academic institutions, advised In lhe final regulation, the definition under the L-1 nonimmigrantlhat it is unusual for colleges a nd of affiliate will be changed to comport classification. The requirement. whichuniversities to place researchers in with lhe current definillon of affiliate os has been in existence for a nu mber oftenured or tenure-track positions. In lhe found at 8 CPR 214.2(1}(1}(ii}(L}as it years. provides for a on.e-year limitationfinal rule. the SeiVice recognizes that a applies to nonimigrant intr.acompany on the initial admission of an L-1research position having no fiXed term transferees. This definition is broader nonimmigrant coming to a new business.and in which the employee will and more attuned to lhe commenlers After one year lhe allen may apply forordinarily have an expeo::tation of concerns than lhe definition in the an extension or stay, provided thepermantnt employment is "comparable proposed rule. This part of the final rule qualifying United States entity is still into a tenured or t enure-track position does not require that a group of operation. The Service bus found lhatwithin lhe meaning of section individuals entirely own and control two the one-year time limit is important as a203(b}(1)(B}(iii}(ll) of the Act. The finallegal entities in order for the entities to measure of t.he viability of lhe Unitedrule has been modified t·o reflect this be considered affiliated. Nor does this States employer. It should be· noted that,recognition. part require each individual in the group although lhis rule prohibits the approval Fifty-nine commenters urged lhe directly to own and control the same of an immigrant visa petition on behalfService to consider significant research . proportion or each entity. . of an multi~national executive ortoward an advanced degree as counting One commenter noted the inclusion of manager coming to work for a newtoward determination oF lhe three-year international accounting partnerships in business, a qualified alien would not berequirement of teaching and/or researCh the definition and urged lhat tiimilar · · precluded from obtaining L-1experience. A few commenters also felt arrangements in Other industries :be nonimmigrant status for one year andthat teaehing experience gained·by a included. The lnelusiont of interrtallonal then tieeking adjustment or status to thatcandidate for an advanced degree accounting partnerships as affiliate~ · of tawful permanent resident based onshould count in meeting the !~aching/ was through fi specific provision of this immigrant visa classification.research requirement. Public Law 101-&19 at section 206(a}, AUens Who Are Me!DI>era ~~ the. The final rule reflects that research or which mandated lhat the Service apply Professions Holding Advanced Degreesteaching experience gained while that inclusion when adjud>cating or Aliens. of Exception~! Ability .working on an advanced degree will petitions for classification under section ·count toward the three·year requirement 203(b}(l}(C). The Service has no The statute indicates that members ofonly if the advanced degree has been authority to extend this application the professions holding advancedgranted and only if the research is beyond international accounting degrees or lheir equivalent may qualifyrecognized within the academic field as partnerships. · · for this classification. The Joint
  4. 4. 60900 Federal Register I Vol. 56, No. 230 I Friday. November 29, 1991 I Rules and RegulationsExplanatory Statement of the Committee the third classification or to have Service has re!Xoved the requirementof Conference on this point 10ys that the experience equaling to an advanced that the alien present evidence thnt hee(lulvalent of an advanced degree shall degree under the second. on alien must or she is in a traditionally self-employedbe "a bachelors degree with at least have at least o bachelors degree. occupation or that hia or her oceupntionfive years progressive experience in the Therefore. the Service believes thaL to Is a shortage occupation within thoprofessions." In the proposed rule, the carry out Congreu intenL it must Department of Labor• Labor MarketSc:rvice followed thia guidance 1111d require bachelor• deqee in both Information Pilot Program.required the alien to have a United contextt, and cannot pennil an alien to One commenter indicated that the jobStates advanced degree or a foreign meet this minimum requirement through offer exemption should be available toequivalent advanced degree. To qualify experience alone. The Service also profesaionels as well as alieni orfor the exception. the petitioner must malntainl that the equivalent of an exceptional ability. The at.atute.demonstrate that the alien hat at least a advanced degree-« baccalaureate plue however. limits this provision to aliensba chelors degree. or a foreign live years or progressive experience in of exceptional ability.equivalent degree. pluslivo years of the professions-equates to no more Some commenters also asked that theprogressive experience In the profeuion. than a masters degree. Persons formerly phrase "in the national Interest" boTho Service interpreted thlt qualifying for third preference by virtue defined. One commcnter suggested thatcombination to equate with a maatera of education and experience equating to tho phraoe should apply to any aliendegree. and Indicated that if a doctoral a bachelors degree will qualify for the who would substantially benentdegree wa.s customarily required by the third employment cate;gory u skiUed prospectively the national economy,specialty. the alien wou.ld be required to workers with more than two years of cultural or educational interest.. orhave a doctorate. The Service notes that training and experience. These welfare of the United Statea. The 1cta foreign advanced degree detennined individual• •• well a a holden or lttell requires this showing of all aU ensby an evaluator to be the equivalent of a baccalaureate degree wlU feU into the aeelclng to qualify as "exceptional." butUnited States doctorate will qualify. same preference categ<)ry. adds the "national intereat" test to Eighty-three commentero felt that the Seventeen commenten fell that the penni I a job offer waiver for certainrequirement that aliens have degrees, criteria pertaining to a ahowing of alieni who have already satisfied theboth for this classification and for exceptional ability were not flexible "prospective national beneflt" test. Theprofessional status in the third enough to demonstrate that a business Service, therefore. cannot equate theclassification, was too reatrleiJvo. person waa of exceptional ability. The two standards. Congreu hu notSeveral commentors were perplexed Service dlsagreet. Several of the criteria. provided a more particular definition ofthat no aubstilule of experience alone concemlJ18 such Indicia of achievement the phrue In the national interest. Thefo: a baccalaureate waa allowed. Some as degrees of higher education, Service believes it appropriate to leavepointed to past Service case law which experience. ulary level and the application of this t.eat as flexible uallowed for subsUtution of experience membership In professional poulble. although clearly an ellenfor academic worl<. Some pointed to the assoelaliona. are written in terms seeklng to meet the standard must makeServicea regula tiona pertaining to H-lB broadly applicable within the buslneu a ahowlng signi6cantly above thatnonimmigranta which allow for community. The Service has. however, necessazyto prove "prospectiveequivalence of experience, and some changed this part to permit those who national benefit." The burden will realpointed to section 214{1) or the Act, aa believe the established criteria do not with the allen to establish thatamended by secUon ZOS(c) of the readlly apply to their occupation to exemption from, or waiver of. the fobImmigration Act of 1990, wherein submit comparable evidence of offer will be in the nstional intorest.equivalency to the bachelora or higher exceptional ability. Each case will be judged on Ita owndegree is pennitted lor H-18 With regard to the level of work the merits.n.onimmlgranta. Other commenters allen will be performing in the United SI<Uied Wori<ers, Prof~t~slonals, a.ndpointed to certain countriea where States, the Onal rule clarifie1 that the fobpossession of a degree Ia not the usual offer portion of the lodividuallabor OtberWosbnnonn for cluaificallon aa e professional certification, the Schedule A application. AI noted In the previous aec;tion. 83 Thelinal rule wW not change with or the Pilot Program appUcation must comment en objected to the requirementregard to academic requlreme.nta for •how that the fob reqlllres a that an alien actually posseu aeither professionals holding advanced profe11ional holding an advanced baccalaureate degree (or a foreigndegree& or professional• In the third degree (or it1 equivalent) or an alien of equivalent degree) and that the Serviceclasailicallon. The Act ala tea that. in exceptional ability. has made no allowance for an alien toorder to qualify under the second Four commonlera asked whether an qualify through experience In tl•cclassification, alien members of the exemption from, or waiver of. the job profession. Once again. the language ofprofessions must hold "advanced offer for an exceptional alien constituted the 1tatute atates that the proresalonaldegrees or their equivalent." AI the waiver of tho labor c:crlllication. The mual have a baccalaureate. The Service,legislative history diseuued above Service has consulted with therefore. will malce no chango in tholo.Ucates, the equivalent of en advanced Congre11ional sources and the final rule.degree ~"a bachelora degree with at Department of Labor on this issue. and Thirty-eJsbt commenters u11ed theleast five yean progreuive experience aU partiu are in qreement that Service to allow education to countIn the professions." Because neither the exemption from. or waiver of, the job when calculating the required two yearsAct nor Ita legillatlve hlatory Indicates offer constitutea waiver of the labor of training or experienca lor akilledthat bachelors or adva.nced degrees certification. The final rule reflects this workert. The final rule contains a part -must be United Statea degree., the determination. whereln ,posl-seoondary education willService wUJ recognize foreign equivalent Since tho final rule c:larilies that count when calculating this requirement.d ogrees. But both the Act and it¥ exemption from the job offer Thirty commenters indicated that thelegislative history make clear that, In requirement constitute a exemption from propO$ed regulation was not cieor onorder to qualify aa a profeulonal under the labor certification requirement. tho how the Service would distinguish
  5. 5. Federal Register I Vol. 56, No. 230 I Friday. November 29, 1991 I Rules and Regulations 60901between skilled and other workers. The not define the term professional in the Some commenlers felt that thefinal rule reOects lhatthis determinalion · context of religious workero. It docs so definition of religious denomination waswill be based on the requirements of in the context of ..skilled workers, written with an unfair bias towardtraining and/or experience placed on professionals, and other workero ... western religious tradition. Thethe job by the prospective employer, as There the Act specifies that a definition has been rewritten in the finalcertified by the Department of Labor. In "professional" must have a rule to show lhat, in addition toa Schedule A or Pilot Program case. the baccalaureate degree. The Act does not evidence of lhe listed faciO!$, apetitioner will be required to require a United States degree. and the petitioner may submit evidence ofdemonstrate to the Service. through a Service will therefore recognize an comparable indicia of a bona fideshowing of industry standards or equivalent foreign degree. The Act does religious denomination.employers past practice, that the job is not. however. refer to gaining Some additional commenters notedskilled: i.e.. one which requires at least baccalaureate degree equivalency that the proposed regulation did not taketwo years of training and/or experience. through experience. as the legislative into consideration the existence of bona With regard to the work a history does with respect to an fide Inter-denominational religiousprofessional will be doing in the United advanced degnee. Therefore. the Service organizalioqs, such as lhe Billy GrahamStates, the final rule clarifies that the job believes lhat, to carry out C<>ngresss Evangelistic Association. The Serviceolfer portion of the individual labor intent, it must require a baccalaureate will accommodate these organizationscertification, the Schedule A application. for professionals in all employment· in lhe final rule by treating them asor the Pilot Program applicalion must based immigrant contexts. Second. lhe denominations provided that they canshow that the job requires a distinction between religious establish that their United Statesprofessional holding a baccalaureate professionals and other workers in a organizations are exempt from taxationdegree. · religious vocation or occupation will pursuant to section 501(c)(3) of theReliglowr Worken have little practical elfecl. The visa Internal Revenue Code. numbero for both groups are limited to a A few commenters felt that certain Nineteen commenters objected to total of no more than 5.000 a year. additional religious occupations shouldwhat they construed as a requirement in Therefore, a religious worker may belhe proposed rule that an alien seeking be placed in the definition of religious admitted within the 5.000 limit whether occupation. No such change in the finalto qualify as a minister within the or not he or she is deemed a religiousmeaning of section 10l(a)(2?) of the Act rule io neces.sary. however. because the professional. Therefore. the Service has definition is written in terms generalmust possess a baccalaureate degree. not changed this requirement in the finalThe proposed rule. however. imposed no enough to comprise occupations in rule. addition to those listed. Further, the rulesuch requirement. Rather. it must bedemonstrated thatlhe alien has been Several commenters felt that the clearly states that the list of examples isauthorized by a recognized religious definition of bona fide nonprofit, illustrative rather than exhaustive.denomination to conduct religious religious organization in the United Some commenlers objected lhattheworship and to petfonn other dulles States should be broader and should not definition of religious vocation-ausually performed by authorized make specific reference to exemption calling to religious life "as evidenced bymembers of the clergy of that rellgion. from taxation as described in section the taking of vows"-was overly Some commenters objected to the 501(c)(3) of the Internal Revenue Code of restrictive. The Service agrees that thedefinition of minister as being unfairly 1986 as it relates to religious definition should not exclude thosebiased toward Christian religions. It was organizations. Commenters also faiths in wh. ch "a calling to religious ithe Services intent to draft a broad objected to the requirement that proof of life .. may be demonstrated byenough definition to be applicable to the organizations lax-exempt status be comparable means other than takingnon-Christian ministers of religion. The pari of the petitions in.ilial evidence. vows. The definition has been revisedfinal rule has therefore been amended to The Service views lhe definition and accordingly.make clear that the guiding principle is the requirement that proof of tax-exempt Employment Creation Immigrantsthat there be a reasonable connection status be furnished as fair. If a religiousbetween the activities performed and organization relies for ita tax~exempt - In an effort to effectuate the intent ofthe religious calling of the minister. The status oo its governing body. then that Congress In enacting the employmentService will indicate in its operations proof should be subm.illed with lhe creation provisions o( the Immigrationinstructions the circumstances under petition. The Internal Revenue Service Act of 1990 and to respond positivelywhich ordained Buddhist monks. (IRS) routinely makes decisions where possible to the comments on thecommissioned officers of the Salvalion concerning lhe non·prolit nature of any proposed rule, the Service has includedAnny, ordained deacons. and others organizalion which is seeking tax~ a number of substantive changes jn themay be considered as ministers of exempt status. Whenever IRS has final rule.re1igion. already made a deterrilination in this The Iitle of Form I...S26 referred to alB Thirly·eight commentet8 objected to regard, lhe Service will defer to that CFR 204.6{a) has been changed fromt he requirement that religious decision. However, because churches. "Petition for immigrant Entrepreneur,"professionals possess the minimum of a unlike other religious organiutions. are which Is the title of the fonn as found inUnited States baccalaureate degree or not required to apply for lax-exempt the proposed rulemaking. to ..Immigrantits foreign equivalent and that there was status (and !hereby prove that they are Petition by Allen Entrepreneur."no provision for qualification as a non-profit organizations) In order to Additionally, an internal inconsistencyreligious professional through claim exemption, the final rule bas been in the proposed rulemeking has beeneKperience. The commenters noted that revised to provide that if for any reason clarified. The proposed rule stated atthe Act does not specify a degree an organization has never sought such § 204.6(a) that "the petition must berequirement for a religious. worker in a tax-exempt status Crom IRS, the Service signed by the petitioner or by his or herprofessional capacity. will allow the organization to submit to authorized representative," and at The rule included this requirement for the Service the same documentation § 2M.G(c) that it could be filed only bytwo reasons. first. while the Act does required by IRS. the alien entrepreneur. Accordingly, the
  6. 6. Federal ·Register. / · Vol. 56, No. 23() [ FridQy, November 29, ..1991 f. Rules an!i Regulations, .reference.to authorized represent.atives definition to·be broad. Discussing the ·, · independent .contractors. The Service . has been rempved from I 204.6(a). employment creation provision in recognizee that certain business . The Seryice received suggestions that Senate Report 101-55, the Senate enterprises rely heavily on independent · District Offices and suboffices, rather Committee on the judiciary endorsed the contractors. and that the required than the Service Centers: should have requirements set out for nonimmigrant investment of capital may result in jurisdiction to adjudicate immigrant , "treaty investors" at 22 CFR 41.5l.ln creating opportunities for new and petitions by alien entrepreneurs. The note 5.1-2 to 22 CFR 41.51, the existing independent contracts. Yet the Service has considered this alternative Department of State has indicated that Service interprets the Act to require the but concluded that the final rule should " investment" includes the investment of creation of long-term. full-time remain as proposed. The Service is debt, Second. the overwhelming employment by the enterprise. concemed with uniformity of majority of those commenting on this Accordingly, the Service has concluded adjudication and is concentr8ting its Issue supported such a change, believing that independent contractors, whose training in this area at the Service that excluding debt from the definition relationship with the enterprise is less Centers. The need for consistent of capita1 would ignore modem business than that of employer-employee and adjudication of the often higl)ly practice .and serverly limit the number of may often last only a short time. do not technical proposals in these new investors eligible or willing to apply properly fall within the definition of petitions outweighs, for the time being. under the employment creation employee. any benefit offered by,pe!Oitling their provision. filing in District Offices or sub-offices. The definition has also been changed In the proposed rule. the definition of The Service haa decided, however, to to exclude assets "directly or Indirectly" full-time employment did not contain a assign jurisdiction for adjudic8tion of acquired. by unlawful means. These specific reference to the concept of job- Form 1-526 only to the Service Center words were added to effectuate sharing. The Service has added a direct having jurisdiction over the area in Congresss intent that the visa process reference to job-sharing and a specific which the alien entrepreneurs new be discontinued "if it becomes known to exclusion of part-time employment. commercial.enterprise Is principally the Government that the money invested Under the common job-sharing doing business. Petitioners may not file was obtained by the alien through other arrangement, two employees simply with the Service Center having · than legal means (such as money combine to fill what is clearly jurisdiction over the area in which the obtained through the sale of illegal demonstrated as one full-time enterprise is estab)ished. This change Is drugs)-" S. Rep. No. 101-55. lOlst Cong.. employment position. Therefore, the designed to facilitate a more even 1st Sess. 21 (1989). Service interprets the Aclto require the d istribution of petitions among the Fifty-s>Oven commenters objected to creation of the requisite number of full· jurisdictions of the four Service Centers, the proposed definition ofinvest, which time employment positions. even if two Definitions required the net infusion of capitol into employees combine to fill a single the United States economy from abroad. position. Several commenters sought the The definition of capital was limited This requirement has therefore been inclusion of parHime employment in the proposed rule by excluding all eliminated in the final rule. After further within the definition through the use of types of intangible property. cash review, the Service agrees that C<?ngress various formulae for combining hours equivalents. and debt financing has not specifically required that capital worked to obtain the equivalent of a arrangements. Two commenters come from abroad in the statute or normal work week: The Service cannot recommended that intangible proper ty during it:s discussion in the Senate accept these sUggestions. Evcri putting count as capita l; four recommended that Judiciary Committee. Imposing such a aside the complications that such cash equivalent count; and fifty-six requirement would therefore exceed formulae would invite, the Act precludes recommended that indebtedness count. Congressional intent, ignore modem their use: Section 203(b)(5) of the Act Two commenters, on the other hand. felt business: prnc-licee. and create grave requires that the new commercial that it was both reasonable and enforcement problems. enterprise must "treate full-time commercially vlable to exclude debt Tlie definition of commercial employment." The service therefore from the definition. . enterprise was clarified and expanded cannot fi nd that part-time employment Under the final rule, the definition of to encompass wholly-owned is consistent with the clea r language of capital includes cash equivalents-such subsldlo rles of holding companies, Ten as certificates of deposit. Treasury the statue. · commenters stated that the definition bonds, or other instruments that can be should l>e expanded, and six The final rule includes a definition.oi converted readily into cash-and com men ters specifically called fo r the the term troubled business. In the indebtedness. To qualify as capital. inclusion of the holding company/ · proposed rule, the Service sought indebtedness must be secured by assets subsidiary example under the comments relating to the concept of job owned by the alien entrepreneJJr, commercial enterprise definition. Two creation and its relation,tp job retention provided that the alien entrepreneur is commenters called for the definition of within a failing business. Five · . · personally and primarily liable and that commercial enterp.rise to encompass commenters felt that job retention the assets of the new commercial not-folprofit entities. Because not-for- should count toward meeting the ·enterPrise upon which the petilion is. profit en.titles do not fundamentally , statutory requirement of employment based are not used to secure any of the "engage in commerce," the Service does creation. Additionally, the Service indebtedencss. This requirement is not find the inclusion of such cntitie1s to determined that job retention comports designed to ensure that, by investing be consistent with the statute. with Congressional·intent. SeeS. Debate capital. the alien entrepreneur has Seventeen commcnters suggested that · on Conf. Rep.. S 358. 136 Cong. Rec. placed funds or other capital assets · independent cont.ractors be included in S17105-18(0ct. 1989). Therefore, the directly at risk. the definition of employee. The final rule term "troubled l)usiness" has been The Service has expanded the defines employee to include only t.hose defined in the final rule. and the term is definition of capital for tw9 ,.f!asons. persons directly employed in a full·time referenced within the final rule at 8 CFR First, the legislative history of the Act position by the new enterprise. This 204.6(j)(3)(ii) relating evidenliary suggests tha t Congress intended the •ection specifically excludes requirements of employment creation.
  7. 7. Federal Register I Vol. 56. No. 230 I Friday. November 29, 1991 I Rules and Regulations 60903Required Amouat or Capital Ten commentera felt that the 140 amount and employment creation The proposed rule reqUired a capital percent atandard was too restrictive. requirementJ.invell.ment or one miUion dollars and 18 commenlers requested State Dealgoation of a High(St.OOO.OOO) for all areas. Eigbty.two clorlncallon of both the 140 percent Unemployment Areacommentera called for lowering the · standard and the change of ope.rationsamount of capital required to make a language. Three comm:enters Tho proposed rule did not contain anyqualifylna investment in a targeted recommended clarification of the lime at provision under which on area within aemployment area to live hundred which net worth was measured. non·rurol ores-I.e .. within either athousand dollars ($500.000). The The fino I rule restructures and melropoHtan etatistical area or a city orcommontors felt that lowering the clurifies the three establishment criteria. town with 8 population or 2.0.000 orlnvcstlnent capital requirement would FlrHI. the lansuoge relotins to the more-<:auld qualify as an area or highpromote the purpose of the Act to crcallonof an original business has unemployment. and thus as e targeted•tirnulate Investment In rural and high been retained. Second, the provision employmenlarea. Twelve commentersunemployment &r<!as. They further felt relating to purchase of an existing called for the Service to change thethal•lable businesses could be bualneu hao been simplified, and the definition of IJ!rgeted employment areamaintained with the lower investment operational ch~na• langu~ge bas been and provide a method by which aomo~nL The final rule contains the removed. Instead. the fmal rule now component or a non-rural area could solowered inveslment amount or 6ve states that eJtabUshment may colllli•t of . qualify.hun~ thousands dollars (SSOO.OOOJ for the purcllase ol an u.lsltng busmess and "Mto Service oannol. of COUl$C:. ;;~herrural end high unemployment areas. No the rwtructure or reorganiulion of that the 1tatuiO". definition of targetedother adjualmenta in qualifying existing businesaloto a new commercial employment area. The Service hasInvestment amounts were made. enlerpri~C. Third. the language regarding concluded. bowever, that theAlthough the Act gives the Attomey establishment through the expansion of designation or smaller geographic orCenerol authority to raise the qualifying an exiallng business. without brinaing political areas within metropolitanInvestment amount for high employment inlo exl&lence a new commercial slalistlcal areas or within cities orore as. no commentera supported such a enlerpri!e. has been clarified. towns with a population of 20,000 orchonae ond the Service does not wish to Substantial chanse has been defined more as a reds of high unemploymentpursue ony Increase at the outset of the more precisely to mean a 40 percent would comport with the intent ofprogram. Increase either In the net worth or In the Congrcsa regarding targeted number of employees, so that the new employment areas.Multiple lnvetlotS This part of the rule contains a net worth or number of employees Severn! commenters expressed amounts to at leasl140 percent of the method for tho designation of suchconctm lhat employment positions business• pre-expansion net worth or geosraphlo or political subdivisions ascreated as a result of the establishmcnl number o! employees. For example. a oreAl of hig~ unemployment. Under theor new enterpriaea by multiple Investors. business wilh a pre-expansion net worth final rule, 8 ll8le govemmcnt maysome of whom inay not be seeking visu of $S miDion dollors would meet this delegate lo any agency. board. or otherundet the provaion. should be allocated criterion foUowina a capital infusion of appropriate a tate governmental entityonly lo those aU en entrepreneura $2 million dollars. resulting In a net the authority to certify that geographicseeking cleuificallon under section worth of $7 million dollars (i.e, 140! of or polillcaltubdlvlslons of non-rwelw:l(b)(S) or the Act. The final rule pre·expanslon net worth of S5 million areas wlthlo the etat.o qualify as areas ofcontain• language permitting this dollora). high unemployment. The delegationpractice and recognize$ any reasonable mutt be reported to the Immigration andasreemente among alien entrepreneurs ll wu• ·~.:»led lhut the St:rvi~ Nalurallzation Sen1lee through theregordinl!ldentification and allocation abandon the 40 percent increase Associate Commissioner forof the creoted positions. The final rule requirement in favor of a sliding scale Examinations prior to Issuance of anyalso moku clear tho~ in the case of rule. under which larger businesses area deslgnalion. The evidence of suchmultiple lnveslors. all sources of capital could expand by smaller percentages area designations thai a state provideslnvcoted In the enterprise must be and still qualify. The 40 percent rule, it to a prospective alien enttepreneurldenllfled and mual hove been acquired was argoed, might discourage shouM lnclcde a description or theby lawful means. This includes capital lnveatmonlln larger existing enterprises. boundaries of the geographic or politicallnvcotcd by individuals who are seeking alncc expanding by a fixed percentage subdivision and Uoe method or methodsvisas under this section. becomee more difficult the larger the by which Ihe unemployment statistics existing enterprise ia. Although the were obtained.Esta~U..hmeot of a New Commercial Service eppreclates lhia concern. it basElllerprile This ptr11t not intended to place an concluded thai the simplicity of unneceua,. burden upon any state. Tbe propooed rule allowed for three applleahon alTered by the standard 40 With respect to googrsphic 8J!d politicalmethods by which an allen entrepreneur percent rule Is preferable. at least at the subdivisions of thla ei%e. however. thecould eatabllab a new commercial outset of the program. The Service h.. Servlco believe• that the enterprise ofenterpri~e: The creation of an original therefore retained the 40 percent assembling and evaluating the databueiaeu. the purchase of an existing atandan! but wUI consider. after necessary to •elect targeted areas. andbusloe.. with subsequent changes to aoseui,. how the prosrom operate$ .particularly the enterprise of deflningthat buelnesse organization and under lha t standard. whether some the boundaries of euch areas. should notoperation. and the infusion of capital modlfiCitlon io desirable. be conducted exclusively at the Federalinto an existing business such that a The fioal rule has also been changed level wlt.hout providing someaubotanUallncrease In its·net worth or to clarify that the Investor seeking to opportunity for particip~tion from statenumber of employees resulted. eslabliah a new commercial enterprise or local aovemment. This part of theSubstAntial was de lined as140 percent throush the expansion of an exlstins· rule It merely Intended to afford theor tho pro·tnveslment figure. business Is not exonipt from the capital states a method whereby particular
  8. 8. 60904 Federal Register I vol. sa,· No. Z30 j Friday. November 29, 1991 I Rules and Regulationsareu of high unemployment within their alien through other than legal means a State aovernment entity is containedboundarieo may qualify as "targeted," (such u money received through the therein. The final rule also relaxesand to allow allen entrepreneurs the 10le of illegal drugs)." S. Rep. 101-55. p. requirement• governing the ·source ofoppor1unity to invest in such areas Zt. data •bowing thot an area is one of highunder the targeted employment area Employment Creation unemployment and permita petitionersguidelines. Including lowered to submit evidence. without obtainingInvestment amounts. The lnltlol evidence requirement State certificntlon, that a county within relating to the creation of employment a metropolitan atotlstical area is one oflnlllal Evidence has bean restructured 1 now 1nd high unemployment.Esloblisl•menl encompasses the concept of job retention following the infusion of Removal of Conditions The proposed rule contained initial capitol Into a troubled business. In orderevidence requirements relating to The Service will publish a separate to demonstrate that job retention meets rule esta~lishing the prooe<:lures andestobllthmcnt of a new commercial the employment creation criteria, theenterprise. 1"he final rule contains criterio for removal of the conditional. ellen entrepreneurs petition must be basis of residence for employment ·additional examples of the types of legal accompanied by evidence that theagreements evidencing the creation Immigrants. These procedures number or exleting employees is being and criteria will take into account thee.tabllshment of a new commercial maintained or will be maintained at noenterprise. The rmal rule also provides requirements tel for1h in this rule. · , leu t11an the pre-Investment level for afor the poulbility that a newcommercial enterprise may be located in period or at leaot two yean. This evidence shall be eubmilled using a :~~:~::;;~:;~~~t~~a~font~=:~ta jurisdiction and yet be organized In viewa of the Interagency Working Croup copy or a comprehensive business plan discussed below. and the Services1uch a manner that no evidence of and appropriate evidence of thelawful creation may be available within conalderablo experience in the process required number of qualifying for removing conditione established bythat Jurisdiction. employees. such as the 1-9 form or rclevontlRS formJ. the Immigration Marriage Fraudlnveslmonl Amendments o£1086. · The evidentiary showing necessary to Engaged in Monogement lnl~~gency Working Croupe~tablish that the petitioner either has The proposed rule required theInves ted or Ia In the process of investingsubmission or evidence that the alien The Ofnce of Management and Budgettho required amount of capital is entl<lproncur participated either in the (OMB) has determined that. because ofmodeled ofter requirements used by the doy·to-day management or the new the employment creation provisions or 8Department of State for nonimmigrant commercial enterprise or in policy CFR ·204.6. this Ia a major rule within the"treaty Investors." As with that formulation. Eight commenters objected meaning or tcclion l(b) of Executiveprogram. the concept of investment here to this requirement. The Senate Onder 12291. Under section a{ b) of E.O.connotes the placing of funds or other Committee on the Judiciary 8pecifically 12291. OMB II exempting INS fromcopita I uset. at risk for the purpciae or endorsed a requirement of some degree preparing for thlt tpeclfic rule thegenerotlng a return on the funds placed or participation on the pari of the allen regulatory Impact analysis ordinarilyat rlslc. Evidence of mere intent to entrepreneur beyond mere passive required for a major rule. However, inlnveat, or of prospective investment lnveatment. 111e final rule requires the interest or public policy onalysis andarransementt entailing no present evidence or auch participation. and . In order to asteu the economic impactcommitment. will not suffice to show contoine odditlonallanguage to address of the employment creation visathat the petitioner is actively In the rellrictlons placed on limited partners. program, the Department of Justice andprocess of Investing. The alien must the Service hove established anshow actual commitment of the required Torseted Employment Areas lnterosoncy working group chaired byamount or capital. The final rule The proposed rule required the the Service and composed ofcontains the evidentiary categories pelllloncr to provide evidence that the represcntotlves from the Departments ofcontained In the proposed rule. as well new commcrclol enterprise has· been State, Commerce. Treasury.lgricullure.os an added category to accommodate e1tobllshed within a targeted and Labor and the Small Businessthe revised definitions of capital and employment area. The final rule carries Administration. The Service is nowInvest. over thlo requirement but also provide• developing. In consultation with OMB. for the aubmlsslon by the petitioner of a the formula by which the working group Lnwful Snurce of Capital letter from an authorized body of o State will collect and analyze data over a 1"he !inol rule requires a petitioner to government which certifies that a two.year period on auch economic andfurnish ac!ditional evidence as pari or par11cular geographic or political demographic aspects of the program astho Initial evidentiary showing. The eubdlvlslon within a nonrural area level of Investment. size of business;petitioner muateubmit foreign busineu qualiflee u an area of high type of Industry. and Impact ori targetedreg~tratlon records. personal and unemployment. Under the propOsed rule, employment areas. The working groupcommercial tax returns, evidence the high unemployment criteria could will focue on Indicators of the programsIdentifying any other sources or capital, only be applied to metropolitan succeu: auch as ettimates of how theand evidence of judicial or etatlsticol are01 or to cities or towns program haa affected dilfeiJDt economicadministrative actions involving money with 8 population or 211,000 or nore. The sectors end whether prograrjljudgmenta against the petitioner. This final rule at8 CFR 204.6(i) allows for lnvestmenta hovo created long-termadditional evidentiary requirement da.Jgnotlon or smaller areas within employm~nt. As the Service devised thecurrlei out Congresss instruction that metropolitan statistical areas or within proposed and final rules. e.8encjes ··"proeesslns of an individual visa not cillee or towns with a population ·of : within the workiqg group}:onlributedcontinue under this section If It becomes 20.000 or more to bo designated as breas dots on such lulies as how·to defineknown to the Government that the or high unemployment. ond the · ta:raetcd 6rcoa and where to s~t .money Invested was obtained by the evldcntlory requirement of • letter from minimum Investment levels.
  9. 9. 60906 Federal Register I Vol. 56, No. 230 I Friday. November 29. 19!n. I Rules and Regulationsyears following notification ihat an accompanied by evidence that the alien clear evidence that the alien is comingimmigrant visa Is immediately available has sustained national or International to the United States to continue work infor his or her use. acclaim ond that his or her the area of expertise. Such evidence (g) Initial evidence-(1) Gencrol. achievements have been recognized in maY include letter(s) from prospectiveSpecific requirement-s for initial the field of expertise. Such evidence employer{s). evidence of prearrangedsupporting documents for the various shoJI include evidence of a one· limo commitments such as contracts. or aemployment-based immigrant achievement (that is. a major. statement from the beneficiary detailingclassifications are set forth in this international recognized award). or at plans on bow he or she intends tosection. In general, ordinury legible least three of the following: continue his or her work in the Unitedphotocopies of such documents (except (i) Documentation of the alien"s States.for labor certifications from the receipt of lesser nationally or (i) Outstanding professors andDepartment of Labor) will be ar.ceptable internationally recognized prizes or researchers. (1) Any United Statesfor initial filing end approval. However. oward.s for excellence in the field of employer desiring and intending toat the discretion of the director, original endeavor; employ a professor or researcher who isdocuments may be required in (II) Documentation of the alien"s outstanding in an academic field underindividual cases. Evidence relating to membership in associations in the field section 203(b){l)(BJ or the Act may filequalifying experience or training shall for which classification is sought, which an 1- 140 visa petition for suchbe in the form of letter(s) from current or require outstanding achievements of . classification.former employer(s) or trainer(s) and . their members. as judged by recognized (2) Definitions. As used in this section:shall include the name. address. and national or international experts in their disciplines or fields; Academic field means a body oftitle of the writer. and a specificdescription of the duties performed by (iii) Publlshed material about the alien specialized knowledge offered for study in professional or major trada at an accredited United Statesthe alien or of the training received. If publications or other major media, university or institution of highersuch evidence is unavailable, other education.documentation relating to the aliens relating to the aliens work in the field for which classification is sought. Such Permanen~ in reference to a researchexperience or training will beconsidered. evidence shall include the title, dote. position. means either tenured, tenure· (2) Ability ofprospective employer to and author of the material, and any track. or for a term of indefinite orpay wage. Any petition filed by or for an necessary translation: unlimited duration. and in which theemployment-based immigrant which (iv) Evidence of the aliens employee will ordinarily have anrequires an offer of employment must be participation. either individually or on a expectation of conti.nued employmentaccompanied by evidence that the panel. as a judge of the work of others In unless there is good cause !orprospective United States employer has the same or an allied field of . termination.the ability to pay the proffered wage. specification for which classification is (3)/nitial evidence. A petition for anThe petitioner must de-monstrate this sought: outstanding professor or researcherability at the time the priority date is (v) Evidence of the aliens original must be accompanied by:~stablished and continuing until the scientific. scholarly, artistic. athletic. or (i) Evidence that the professor orbeneficiary obtains lawful permanent business-related contributions of major researcher is recognized internationallyresidence. Evidence of this ability shall significance in the field; as outstanding in the academic fieldbe either in the form of copies of annual (vi) Evidence of the aliens authorship specified In the petition. Such evidencereports, federal tax returns, or audited of scholarly articles in the field, In shall consist of at least two of thefinancial statements. In a case where professional or major trade publications following:the prospective United States employer or other major media: (A) Documentation of the alien"semploys tOO or more workers. the (vii) Evidence of the display of the receipt of major prizes or awards fordirector may accept a statement from a alien" work in the field at artistic s outstanding achievement In thefinancial officer of the organization exhibitions or showcases: academic field;which establishes the prospective (viii) Evidence that the alien has (B) Documentation of the aliensemployers ability to pay the proffered performed in a leading or critical role for membership in associations in thewage. In appropriate cases, additional organizations or establishments that academic field which requireevidence. such as profit/loss statements, have a distinguished reputation: outstanding achlevements of theirbank account records. or personnel (lx) Evidence that the alien has members:records, may be s ubmitted by the commanded a high salary or other significantly high remuneration for (C) Published material in professionalpetitioner or requested by the Service. publications written by others about the (h) A/lens with extroordinory services, In relation to others in the aliens work In the academic field. Suchability-tll An alien, or any person on field: orbehalf of the alien. may file an l-140 (x) Evidence of commercial successes material shall include the title. date. andvisa petition for classification under In the performing arts, as shown by box author of the material, and anysection 203(b}(l)(A) of the Act as an office receipts or record. cassette, necessary translation:alien of extraordinary ability in the compact disk. or video sales. (D) Evidence of the alien"ssciences, art&, education, business, or (4) If the above standards do not participation. either individually or on aathletics. readily apply to the bcneflclarys panel. as the judge of the work of others (2) Definition. As used in this section: occupation. the petitioner may submit in the same or an allied academic field: Extraordinary ability means a level of comparable evidence to establish tile (E) Evidence of the aliens originalexpertise indicating that the individual bencficiary"s elisibility. · . scientific or scholarly researchis one of that small percentage who (5) No offer of employment requireq. contributions to the academic field: orhave risen to the very top of the field of Neither an offer for employment in the {F) Evidence of the alien"s authorshipendeavor. United States nor a labor certification is of scholarly books or articles (in (3) Initial evidence. A petition for an required for this classification: however, scholarly journals with international alien of extraordinary ability must be the petition must be accompanied by circ~lation) in the academic field:
  10. 10. Federal Register I Vol. 56, No. 230 t Friday. November 29. 1991 I Rules and Regulations 60907 (ii) Evidence that the alien has at least considered to be an affiliate of the or owns. directly or indirectly. less thanthree years of experience in teaching United Stales partnership if It markets half of the entity. but in fact controls theand/or research In the academic field. Its accounting services under the same entity.Experience in leaching or research while internationally recognized name under (3) Initial evidence- {i) Requiredworking on an advanced desree will the agreement with the worldwide evidence. A petition for a multinationalonly be acceptable if the alien has coordinating organization of which the executive or manager must boacquired the degree. and If the teaching United States partnership is also a accompanied by a statement from anduties were such that he or she bad full member. authorized olflcial of the petitioningresponsibility for the class taught or if Doing business means the regular. United Stales employer whichthe research conducted toward the systematic, and continuous provision of demonstrates that:degree has been recognized within the goods and/or services by a firm, (A) If the alien is outside the Unitedacademic field as outstanding. Evidence corporation, or other entity and does not Stoles. in the three years Immediatelyof teaching and/or research experience include the mere presence of an agent or preceding the filing of the petition theshall be in the form of letler(s) from office. alien has been employed outside thecurrent or former employer(s) and shall Executive capacity means an United States for at least one year in ainclude the name, address. and title of as.signment within an organization in managerial or executive capacity by athe writer. and a specific description of which the employee primarily: firm or corporation. or other legal enlily.the duties performed by the alien; and (A) Directs the management of the or by an affiliate or subsidiary of such a (iii) An offer of employment from a organization or a major component or firm or corporation or other legal entity;prospective United Slates employer. A function of the organization; orlabor certification Ia not required for this (B) Establishes the goals and policies (B) If the alien Ia already in the Unitedclassification. The offer of employment of the organization, component, or Stales working for the same employer orshall be in the form of a letter from: function; a subsidiary or affiliate of the firm or (A) A United State• university or (C) Exercises wide latitude in corporation. or other legal entity byinstitution of higher learning offering the discretionary declsionmaking; and which the alien was employed overseas,alien a tenured or tenure-track leaching (D) Receives only general supervision or direction from higher level in the three years preceding entry as aposition in the aliens academic field; nonimmigrant, the alien wae employed (B) A United States university or executives. the board of directors. or by the entity abroad for at least oneinslitul.ion of higher learning offering the stocklwlders of the organization. year in a managerial or executivealien a permanent research position in Managerial capacity means an capacity:the aliens academic field; or assisrument within an organization in (C) The prospective employer in the (C) A department, division. or institute which the employee primarily: United States Ia the same employer or aof a private employer offering the alien a (A) Manages the organization. or apermanent research position In the department, subdivision, function. or subsidiary or affiliate of the firm oralien·a academic field. The department, component of the organization; corporation or other legal entity bydivision. or institute must demonstrate (B) Supervises and controls the work which the alien was employed overseas;that it employs at least three persons of other supervisory, professional, or andfull-time in research positions. and that managerial employees. or manages an (D) The prospective United Statesit has achieved documented essential function within the employer has been doing business for ataccomplishments in an academic field. organi:zation. or a department or least one year. (j) Certain multinational executives subdivision of tho organization; (ii) Appropriate additional evidence.and managers. (1) A United States (C) If another employee or other In appropriate cases, the director mayemployer may file a petition on Form 1- employees are directly supervised, has request additional evidence.140 for classification of an alien under the authority to hire and fire or (4) Determining managerial orsection 203(b)(1)(C) of the Act as a recommend those as well as other exectuve capacities.-(i) Supervisors asmullir!alional executive or manager. personnel actions (such as promotion manosers. A first-line supervisor is not (2) Definitions. As used in this section: and leave authorization), or. if no other considered to be acting in a mana,gerial Affiliate means: employee is directly supervised, capacity merely by virtue of his or her (A) One of two subsidiaries both of functions at a senior level witbin tho supervisory duties unless the employees which are owned and controlled by the organizational hierarchy or with respect supervised are professional. same parent or individual; to the function managed; and (ii) Staffing levels. If 8laffing levels [B) One of two legal entities owned (D) Exercises direction over the day- are used as a factor in determining and controlled by the same sroup of to-day operations of the activity or whether an individual is acting In a Individuals, each Individual owning and function for which the employee has managerial or executive capacity, the controlling approximately the same authority. reasonable needs of the organization. share or proportion of each entity; or Multinational means that the component, or function, in light of the (C) In the case of a partnership that is qualifying entity, or its affiliate, or overall purpose and stage of organized In the United States to subsidiary. conducts business in two or development of the organization,provide accounting services. aJong with more countries. one of which is the component. or function, shall be takenmanagerial and/or consulting services. United Stales. into account. An Individual shall not beand markets its accounllng services Subsidiary means a flrm. corporation. considered to be acting In a managerialunder an Internationally recognized or other legal entity of which a parent or executive capacity merely on thename under an agreement with a owns. directly or indirectly. more than basis of the number of employees thatworldwide coordinating organiz.ation half of the entity and controls the entity: the individual supervises or hasthat is owned and controlled by the or owns. directly or indirectly. half of supervised or directa or has directed.member accounting firms. a partnership the entity and controls the entity: or [5) Offer of employment. No labor(or similar organization) that is owns, directly or indirectly. 50 percent certification is required for thisorganized outside the United States to of a 50-50 joint venture and has equal classification: however, the prospectiveprovide accounting services shall be control and veto power over the entity; employer in the United States must