[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR204.8]

[Page 168-170]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 204--IMMIGRANT PETITIONS--Table of Contents
 
Sec. 204.8  Petitions for employees of certain United States businesses operating in Hong Kong.

    (a) General. A petition to accord an alien status as an employee of 
a United States business operating in Hong Kong pursuant to section 124 
of the Immigration Act of 1990 shall be filed by the employer on Form I-
140, Immigrant Petition for Alien Worker. Since section 124 provides for 
up to 12,000 additional visa numbers only in each of fiscal years 1991 
through 1993, petitions for these employees will not be accepted after 
September 30, 1993.
    (b) Definitions. As used in this section:
    Affiliate means one of two subsidiaries both of which are owned and 
controlled by the same parent or individual or one of two legal entities 
owned and controlled by the same group of individuals, each individual 
owning and controlling approximately the same share or proportion of 
each entity. Effective October 1, 1991, in the case of a partnership 
that is organized in the United States to provide accounting services 
along with managerial and consulting services and that markets its 
accounting services under an internationally recognized name under an 
agreement with a worldwide coordinating organization that is owned and 
controlled by the member accounting firms, a partnership (or similar 
organization) that is organized outside the United States to provide 
accounting services shall be considered to be an affiliate of the United 
States partnership if its markets its accounting services under the same 
internationally recognized name under the agreement with the worldwide 
coordinating organization of which the United States partnership is also 
a member.
    Executive capacity means an assignment within an organization in 
which the employee primarily:
    (i) Directs the management of the organization or a major component 
or function of the organization;

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    (ii) Establishes the goals and policies of the organization, 
component, or function;
    (iii) Exercises wide latitude in discretionary decision-making; and
    (iv) Receives only general supervision or direction from higher 
level executives, the board of directors, or stockholders of the 
organization.
    Managerial capacity means an assignment within an organization in 
which the employee primarily:
    (i) Manages the organization, or a department, subdivision, 
function, or component of the organization;
    (ii) Supervises and controls the work of other supervisory, 
professional, or managerial employees, or manages an essential function 
within the organization, or a department or subdivision of the 
organization;
    (iii) Has the authority to hire and fire or recommend those as well 
as other personnel actions (such as promotion and leave authorization) 
if another employee or other employees are directly supervised, or, if 
no other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and
    (iv) Exercises direction over the day-to-day operations of the 
activity or function for which the employee has authority.
    Officer means, with respect to a business entity, the chairman or 
vice-chairman of the board of directors of the entity, the chairman or 
vice-chairman of the executive committee of the board of directors, the 
president, any vice-president, any assistant vice-president, any senior 
trust officer, the secretary, any assistant secretary, the treasurer, 
any assistant treasurer, any trust officer or associate trust officer, 
the controller, any assistant controller, or any other officer of the 
entity customarily performing functions similar to those performed by 
any of the foregoing officers.
    Parent means a firm, corporation, or other legal entity which has 
subsidiaries.
    Specialized knowledge means, with respect to an organization, that 
an alien has a special knowledge of the organization's product and its 
application in international markets or has an advanced level of 
knowledge of processes and procedures of the organization.
    Subsidiary means a firm, corporation, or other legal entity of which 
a parent owns, directly or indirectly, more than half of the entity and 
controls the entity; or owns, directly or indirectly, 50 percent of a 
50-50 joint venture and has equal control and veto power; or owns, 
directly or indirectly, less than half the entity, but in fact controls 
the entity.
    Supervisor means any individual having authority, in the interest of 
the employer, to hire, transfer, suspend, lay off, recall, promote, 
discharge, assign, award, or discipline other employees, or 
responsibility to direct them, or to adjust their grievances, or 
effectively recommend such action, if in connection with the foregoing, 
the exercise of such authority is not merely of a routine or clerical 
nature, but requires the use of independent judgement.
    United States business, as used in this section, means an entity or 
organization created under the laws of the United States which has a 
United States principal place of business and which is at least 50 
percent owned by United States citizens or permanent residents.
    (c) Jurisdiction. The petition must be filed at the Service Center 
having jurisdiction over the corporate headquarters of the business in 
the United States. There will be no concurrent filing of a petition with 
an application for status as a permanent resident (Form I-485).
    (d) Eligibility. The alien beneficiary must:
    (1) Be a resident of Hong Kong who:
    (i) Is employed in Hong Kong and has been employed in Hong Kong 
during the 12 previous consecutive months; or
    (ii) Is employed outside of Hong Kong during a temporary absence 
(i.e., of limited duration) from Hong Kong at the request of the 
employer and had been employed in Hong Kong for 12 consecutive months 
prior to such absence(s); and

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    (2) Be employed as an officer or supervisor or in a capacity that is 
managerial or executive or involves specialized knowledge, by a 
qualifying business entity. A qualifying business entity is one which:
    (i) Is owned and organized in the United States (or is the 
subsidiary or affiliate of a business owned and organized in the United 
States);
    (ii) Employs at least 100 employees in the United States and at 
least 50 employees outside the United States (not necessarily all in 
Hong Kong); and
    (iii) Has a gross annual income of at least $50,000,000.
    (3) Have an offer of employment in the United States from the United 
States business entity as an officer or supervisor or in a capacity that 
is managerial or executive, or involves specialized knowledge. The offer 
of employment must:
    (i) Be effective from the time of filing the petition through and 
including the time of entry into the United States, and
    (ii) Provide for salary and benefits comparable to the salary and 
benefits provided to others with similar responsibilities and experience 
within the same company.
    (e) Determining managerial or executive capacities--(1) Supervisors 
as managers. A first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties of 
the supervisor's supervisory duties unless the employees supervised are 
professional.
    (2) Staffing levels. If staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive 
capacity, the reasonable needs of the organization, component, or 
function in light of the overall purpose and stage of development of the 
organization, component, or function shall be taken into account. An 
individual shall not be considered to be acting in a managerial or 
executive capacity merely on the basis of the number of employees that 
the individual supervises or has supervised or directs or has directed.
    (f) Evidence to accompany petition. A petition filed on Form I-140 
shall be accompanied by:
    (1) Form ETA-750B, Statement of Qualifications of Alien; and
    (2) A letter from the employer attesting to the information 
contained in paragraph (d) of this section. Since the alien's move to 
the United States from Hong Kong does not need to take place 
immediately, the employer's information on the job in the United States 
will be determined by the circumstances of the individual case. If 
immediate immigration is intended, a specific job description must be 
included with the employer's attestation. If immigration will be 
deferred, a simple commitment by the employer that a qualifying job will 
be available in the United States will be acceptable. Prior to seeking 
admission to the United States, a deferred visa applicant must present a 
specific job description letter for redetermination of eligibility. Such 
letter shall be presented to the visa-issuing consular post, or to the 
Service office where the alien is applying for adjustment of status in 
the United States.
    (g) Closing action--(1) Approval. If the alien is residing in Hong 
Kong, an approved petition will be forwarded for visa processing to the 
United States Consulate at Hong Kong. Whether the alien is in Hong Kong 
or is adjusting in the United States, the legend ``HONG KONG SEC. 124'' 
will be clearly printed in the block used for indicating preference at 
the top of Form I-140.
    (2) Denial. The denial of a petition filed under this provision 
shall be appealable to the Associate Commissioner, Examinations. 
Notification of denial and appeal rights, and the procedure for appeal 
shall be the same as those contained in 8 CFR 103.3.
    (3) Revocation. A petition approved under this provision shall be 
automatically revoked for the same reasons provided in 8 CFR 205.1(c). 
The procedure for revocation on notice shall be the procedure described 
in 8 CFR 205.2. Termination of employment shall be grounds for automatic 
revocation; however, a transfer within the same company to a different 
division, section, subsidiary, or affiliate (regardless of geographical 
location) will not be disqualifying.

[56 FR 23210, May 21, 1991, as amended at 57 FR 14792, 14793, Apr. 23, 
1992]

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