[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR204.5]

[Page 106-115]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
PART 204_IMMIGRANT PETITIONS--Table of Contents
 
Sec. 204.5  Petitions for employment-based immigrants.

    (a) General. A petition to classify an alien under section 
203(b)(1), 203(b)(2), or 203(b)(3) of the Act must be filed on Form I-
140, Petition for Immigrant Worker. A petition to classify an alien 
under section 203(b)(4) (as it relates to special immigrants under 
section 101(a)(27)(C)) must be filed on kForm I-360, Petition for 
Amerasian, Widow, or Special Immigrant. A separate Form I-140 or I-360 
must be filed for each beneficiary, accompanied by the applicable fee. A 
petition is considered properly filed if it is:
    (1) Accepted for processing under the provisions of part 103;
    (2) Accompanied by any required individual labor certification, 
application for Schedule A designation, or evidence that the alien's 
occupation qualifies as a shortage occupation within the Department of 
Labor's Labor Market Information Pilot Program; and
    (3) Accompanied by any other required supporting documentation.
    (b) Jurisdiction. Form I-140 or I-360 must be filed with the Service 
Center having jurisdiction over the intended place of employment, unless 
specifically designated for local filing by the Associate Commissioner 
for Examinations.
    (c) Filing petition. Any United States employer desiring and 
intending to employ an alien may file a petition for classification of 
the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 
203(b)(3) of the Act. An alien, or any person in the alien's behalf, may 
file a petition for classification under section 203(b)(1)(A) or 
203(b)(4) of the Act (as it relates to special immigrants under section 
101(a)(27)(C) of the Act).
    (d) Priority date. The priority date of any petition filed for 
classification under section 203(b) of the Act which is accompanied by 
an individual labor certification from the Department of Labor shall be 
the date the request for certification was accepted for processing by 
any office within the employment service system of the Department of 
Labor. The priority date of any petition filed for classification under 
section 203(b) of the Act which is accompanied by an application for 
Schedule A designation or with evidence that the alien's occupation is a 
shortage occupation within the Department of Labor's Labor Market 
Information Pilot Program shall be the date the completed, signed 
petition (including all initial evidence and the correct fee) is 
properly filed with the Service. The priority date of a petition filed 
for classification as a special immigrant under section 203(b)(4) of the 
Act shall be the date the completed, signed petition (including all 
initial evidence and the correct fee) is properly filed with the 
Service. The priority date of an alien who filed for classification as a 
special immigrant prior to October 1, 1991, and who is the beneficiary 
of an approved I-360 petition after October 1, 1991, shall be the date 
the alien applied for an immigrant visa or adjustment of status. In the 
case of a special immigrant alien who applied for adjustment

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before October 1, 1991, Form I-360 may be accepted and adjudicated at a 
Service District Office or sub-office.
    (e) Retention of section 203(b) (1), (2), or (3) priority date. A 
petition approved on behalf of an alien under sections 203(b) (1), (2), 
or (3) of the Act accords the alien the priority date of the approved 
petition for any subsequently filed petition for any classification 
under sections 203(b) (1), (2), or (3) of the Act for which the alien 
may qualify. In the event that the alien is the beneficiary of multiple 
petitions under sections 203(b) (1), (2), or (3) of the Act, the alien 
shall be entitled to the earliest priority date. A petition revoked 
under sections 204(e) or 205 of the Act will not confer a priority date, 
nor will any priority date be established as a result of a denied 
petition. A priority date is not transferable to another alien.
    (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 years following notification that an 
immigrant visa is immediately available for his or her use.
    (g) Initial evidence--(1) General. Specific requirements for initial 
supporting documents for the various employment-based immigrant 
classifications are set forth in this section. In general, ordinary 
legible photocopies of such documents (except for labor certifications 
from the Department of Labor) will be acceptable for initial filing and 
approval. However, at the discretion of the director, original documents 
may be required in individual cases. Evidence relating to qualifying 
experience or training shall be in the form of letter(s) from current or 
former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties 
performed by the alien or of the training received. If such evidence is 
unavailable, other documentation relating to the alien's experience or 
training will be considered.
    (2) Ability of prospective employer to pay wage. Any petition filed 
by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United 
States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date 
is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited 
financial statements. In a case where the prospective United States 
employer employs 100 or more workers, the director may accept a 
statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. In 
appropriate cases, additional evidence, such as profit/loss statements, 
bank account records, or personnel records, may be submitted by the 
petitioner or requested by the Service.
    (h) Aliens with extraordinary ability. (1) An alien, or any person 
on behalf of the alien, may file an I-140 visa petition for 
classification under section 203(b)(1)(A) of the Act as an alien of 
extraordinary ability in the sciences, arts, education, business, or 
athletics.
    (2) Definition. As used in this section:
    Extraordinary ability means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very 
top of the field of endeavor.
    (3) Initial evidence. A petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained 
national or international acclaim and that his or her achievements have 
been recognized in the field of expertise. Such evidence shall include 
evidence of a one-time achievement (that is, a major, international 
recognized award), or at least three of the following:
    (i) Documentation of the alien's receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field 
of endeavor;

[[Page 108]]

    (ii) Documentation of the alien's membership in associations in the 
field for which classification is sought, which require outstanding 
achievements of their members, as judged by recognized national or 
international experts in their disciplines or fields;
    (iii) Published material about the alien in professional or major 
trade publications or other major media, relating to the alien's work in 
the field for which classification is sought. Such evidence shall 
include the title, date, and author of the material, and any necessary 
translation;
    (iv) Evidence of the alien's participation, either individually or 
on a panel, as a judge of the work of others in the same or an allied 
field of specification for which classification is sought;
    (v) Evidence of the alien's original scientific, scholarly, 
artistic, athletic, or business-related contributions of major 
significance in the field;
    (vi) Evidence of the alien's authorship of scholarly articles in the 
field, in professional or major trade publications or other major media;
    (vii) Evidence of the display of the alien's work in the field at 
artistic exhibitions or showcases;
    (viii) Evidence that the alien has performed in a leading or 
critical role for organizations or establishments that have a 
distinguished reputation;
    (ix) Evidence that the alien has commanded a high salary or other 
significantly high remuneration for services, in relation to others in 
the field; or
    (x) Evidence of commercial successes in the performing arts, as 
shown by box office receipts or record, cassette, compact disk, or video 
sales.
    (4) If the above standards do not readily apply to the beneficiary's 
occupation, the petitioner may submit comparable evidence to establish 
the beneficiary's eligibility.
    (5) No offer of employment required. Neither an offer for employment 
in the United States nor a labor certification is required for this 
classification; however, the petition must be accompanied by clear 
evidence that the alien is coming to the United States to continue work 
in the area of expertise. Such evidence may include letter(s) from 
prospective employer(s), evidence of prearranged commitments such as 
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.
    (i) Outstanding professors and researchers. (1) Any United States 
employer desiring and intending to employ a professor or researcher who 
is outstanding in an academic field under section 203(b)(1)(B) of the 
Act may file an I-140 visa petition for such classification.
    (2) Definitions. As used in this section:
    Academic field means a body of specialized knowledge offered for 
study at an accredited United States university or institution of higher 
education.
    Permanent, in reference to a research position, means either 
tenured, tenure-track, or for a term of indefinite or unlimited 
duration, and in which the employee will ordinarily have an expectation 
of continued employment unless there is good cause for termination.
    (3) Initial evidence. A petition for an outstanding professor or 
researcher must be accompanied by:
    (i) Evidence that the professor or researcher is recognized 
internationally as outstanding in the academic field specified in the 
petition. Such evidence shall consist of at least two of the following:
    (A) Documentation of the alien's receipt of major prizes or awards 
for outstanding achievement in the academic field;
    (B) Documentation of the alien's membership in associations in the 
academic field which require outstanding achievements of their members;
    (C) Published material in professional publications written by 
others about the alien's work in the academic field. Such material shall 
include the title, date, and author of the material, and any necessary 
translation;
    (D) Evidence of the alien's participation, either individually or on 
a panel, as the judge of the work of others in the same or an allied 
academic field;
    (E) Evidence of the alien's original scientific or scholarly 
research contributions to the academic field; or
    (F) Evidence of the alien's authorship of scholarly books or 
articles (in scholarly journals with international circulation) in the 
academic field;

[[Page 109]]

    (ii) Evidence that the alien has at least three years of experience 
in teaching and/or research in the academic field. Experience in 
teaching or research while working on an advanced degree will only be 
acceptable if the alien has acquired the degree, and if the teaching 
duties were such that he or she had full responsibility for the class 
taught or if the research conducted toward the degree has been 
recognized within the academic field as outstanding. Evidence of 
teaching and/or research experience shall be in the form of letter(s) 
from current or former employer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties 
performed by the alien; and
    (iii) An offer of employment from a prospective United States 
employer. A labor certification is not required for this classification. 
The offer of employment shall be in the form of a letter from:
    (A) A United States university or institution of higher learning 
offering the alien a tenured or tenure-track teaching position in the 
alien's academic field;
    (B) A United States university or institution of higher learning 
offering the alien a permanent research position in the alien's academic 
field; or
    (C) A department, division, or institute of a private employer 
offering the alien a permanent research position in the alien's academic 
field. The department, division, or institute must demonstrate that it 
employs at least three persons full-time in research positions, and that 
it has achieved documented accomplishments in an academic field.
    (j) Certain multinational executives and managers. (1) A United 
States employer may file a petition on Form I-140 for classification of 
an alien under section 203(b)(1)(C) of the Act as a multinational 
executive or manager.
    (2) Definitions. As used in this section:
    Affiliate means:
    (A) One of two subsidiaries both of which are owned and controlled 
by the same parent or individual;
    (B) One of two legal entities owned and controlled by the same group 
of individuals, each individual owning and controlling approximately the 
same share or proportion of each entity; or
    (C) In the case of a partnership that is organized in the United 
States to provide accounting services, along with managerial and/or 
consulting services, and markets its accounting services under an 
internationally recognized name under 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 it markets its accounting services under the same internationally 
recognized name under the agreement with the worldwide coordinating 
organization of which the United States partnership is also a member.
    Doing business means the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other 
entity and does not include the mere presence of an agent or office.
    Executive capacity means an assignment within an organization in 
which the employee primarily:
    (A) Directs the management of the organization or a major component 
or function of the organization;
    (B) Establishes the goals and policies of the organization, 
component, or function;
    (C) Exercises wide latitude in discretionary decisionmaking; and
    (D) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization.
    Managerial capacity means an assignment within an organization in 
which the employee primarily:
    (A) Manages the organization, or a department, subdivision, 
function, or component of the organization;
    (B) Supervises and controls the work of other supervisory, 
professional, or managerial employees, or manages an essential function 
within the organization, or a department or subdivision of the 
organization;
    (C) If another employee or other employees are directly supervised, 
has the

[[Page 110]]

authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), 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
    (D) Exercises direction over the day-to-day operations of the 
activity or function for which the employee has authority.
    Multinational means that the qualifying entity, or its affiliate, or 
subsidiary, conducts business in two or more countries, one of which is 
the United States.
    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, 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 over the 
entity; or owns, directly or indirectly, less than half of the entity, 
but in fact controls the entity.
    (3) Initial evidence--(i) Required evidence. A petition for a 
multinational executive or manager must be accompanied by a statement 
from an authorized official of the petitioning United States employer 
which demonstrates that:
    (A) If the alien is outside the United States, in the three years 
immediately 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; or
    (B) If the alien is already in the United States working for the 
same employer or a subsidiary or affiliate of the firm or corporation, 
or other legal entity by which the alien was employed overseas, in the 
three years preceding entry as a nonimmigrant, the alien was employed by 
the entity abroad for at least one year in a managerial or executive 
capacity;
    (C) The prospective employer in the United States is the same 
employer or a subsidiary or affiliate of the firm or corporation or 
other legal entity by which the alien was employed overseas; and
    (D) The prospective United States employer has been doing business 
for at least one year.
    (ii) Appropriate additional evidence. In appropriate cases, the 
director may request additional evidence.
    (4) Determining managerial or exectuve capacities--(i) 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 
unless the employees supervised are professional.
    (ii) 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.
    (5) Offer of employment. No labor certification is required for this 
classification; however, the prospective employer in the United States 
must furnish a job offer in the form of a statement which indicates that 
the alien is to be employed in the United States in a managerial or 
executive capacity. Such letter must clearly describe the duties to be 
performed by the alien.
    (k) 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 an alien is claiming 
exceptional ability in the sciences, arts, or business and 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.

[[Page 111]]

    (2) Definitions. As used in this section: Advanced degree means any 
United States academic or professional degree or a foreign equivalent 
degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of 
progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily 
required by the specialty, the alien must have a United States doctorate 
or a foreign equivalent degree.
    Exceptional ability in the sciences, arts, or business means a 
degree of expertise significantly above that ordinarily encountered in 
the sciences, arts, or business.
    Profession means one of the occupations listed in section 101(a)(32) 
of the Act, as well as any occupation for which a United States 
baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation.
    (3) Initial evidence. The petition must be accompanied by 
documentation showing that the alien is a professional holding an 
advanced degree or an alien of exceptional ability in the sciences, the 
arts, or business.
    (i) To show that the alien is a professional holding an advanced 
degree, the petition must be accompanied by:
    (A) An official academic record showing that the alien has a United 
States advanced degree or a foreign equivalent degree; or
    (B) An official academic record showing that the alien has a United 
States baccalaureate degree or a foreign equivalent degree, and evidence 
in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate 
experience in the specialty.
    (ii) To show that the alien is an alien of exceptional ability in 
the sciences, arts, or business, the petition must be accompanied by at 
least three of the following:
    (A) An official academic record showing that the alien has a degree, 
diploma, certificate, or similar award from a college, university, 
school, or other institution of learning relating to the area of 
exceptional ability;
    (B) Evidence in the form of letter(s) from current or former 
employer(s) showing that the alien has at least ten years of full-time 
experience in the occupation for which he or she is being sought;
    (C) A license to practice the profession or certification for a 
particular profession or occupation;
    (D) Evidence that the alien has commanded a salary, or other 
renumeration for services, which demonstrates exceptional ability;
    (E) Evidence of membership in professional associations; or
    (F) Evidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, 
or professional or business organizations.
    (iii) If the above standards do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence 
to establish the beneficiary's eligibility.
    (4) Labor certification or evidence that alien qualifies for Labor 
Market Information Pilot Program--(i) General. Every petition under this 
classification must be accompanied by an individual labor certification 
from the Department of Labor, by an application for Schedule A 
designation (if applicable), or by documentation to establish that the 
alien qualifies for one of the shortage occupations in the Department of 
Labor's Labor Market Information Pilot Program. To apply for Schedule A 
designation or to establish that the alien's occupation is within the 
Labor Market Information Program, a fully executed uncertified Form ETA-
750 in duplicate must accompany the petition. The job offer portion of 
the individual labor certification, Schedule A application, or Pilot 
Program application must demonstrate that the job requires a 
professional holding an advanced degree or the equivalent or an alien of 
exceptional ability.
    (ii) Exemption from job offer. The director may exempt the 
requirement of a job offer, and thus of a labor certification, for 
aliens of exceptional ability in the sciences, arts, or business if 
exemption would be in the national interest. To apply for the exemption, 
the petitioner must submit Form ETA-750B, Statement of Qualifications of 
Alien,

[[Page 112]]

in duplicate, as well as evidence to support the claim that such 
exemption would be in the national interest.
    (l) Skilled workers, professionals, and other workers. (1) Any 
United States employer may file a petition on Form I-140 for 
classification of an alien under section 203(b)(3) as a skilled worker, 
professional, or other (unskilled) worker.
    (2) Definitions. As used in this part:
    Other worker means a qualified alien who is capable, at the time of 
petitioning for this classification, of performing unskilled labor 
(requiring less than two years training or experience), not of a 
temporary or seasonal nature, for which qualified workers are not 
available in the United States.
    Professional means a qualified alien who holds at least a United 
States baccalaureate degree or a foreign equivalent degree and who is a 
member of the professions.
    Skilled worker means an alien who is capable, at the time of 
petitioning for this classification, of performing skilled labor 
(requiring at least two years training or experience), not of a 
temporary or seasonal nature, for which qualified workers are not 
available in the United States. Relevant post-secondary education may be 
considered as training for the purposes of this provision.
    (3) Initial evidence--(i) Labor certification or evidence that alien 
qualifies for Labor Market Information Pilot Program. Every petition 
under this classification must be accompanied by an individual labor 
certification from the Department of Labor, by an application for 
Schedule A designation, or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of 
Labor's Labor Market Information Pilot Program. To apply for Schedule A 
designation or to establish that the alien's occupation is a shortage 
occupation with the Labor Market Pilot Program, a fully executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The 
job offer portion of an individual labor certification, Schedule A 
application, or Pilot Program application for a professional must 
demonstrate that the job requires the minimum of a baccalaureate degree.
    (ii) Other documentation--(A) General. Any requirements of training 
or experience for skilled workers, professionals, or other workers must 
be supported by letters from trainers or employers giving the name, 
address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien.
    (B) Skilled workers. If the petition is for a skilled worker, the 
petition must be accompanied by evidence that the alien meets the 
educational, training or experience, and any other requirements of the 
individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience.
    (C) Professionals. If the petition is for a professional, the 
petition must be accompanied by evidence that the alien holds a United 
States baccalaureate degree or a foreign equivalent degree and by 
evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or 
university record showing the date the baccalaureate degree was awarded 
and the area of concentration of study. To show that the alien is a 
member of the professions, the petitioner must submit evidence showing 
that the minimum of a baccalaureate degree is required for entry into 
the occupation.
    (D) Other workers. If the petition is for an unskilled (other) 
worker, it must be accompanied by evidence that the alien meets any 
educational, training and experience, and other requirements of the 
labor certification.
    (4) Differentiating between skilled and other workers. The 
determination of whether a worker is a skilled or other worker will be 
based on the requirements of training and/or experience placed on the 
job by the prospective employer, as certified by the Department of 
Labor. In the case of a Schedule A occupation or a shortage occupation 
within the Labor Market Pilot Program, the petitioner will be required 
to establish to the director that the job is a skilled job, i.e., one 
which

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requires at least two years of training and/or experience.
    (m) Religious workers. (1) An alien, or any person in behalf of the 
alien, may file an I-360 visa petition for classification under section 
203(b)(4) of the Act as a section 101(a)(27)(C) special immigrant 
religious worker. Such a petition may be filed by or for an alien, who 
(either abroad or in the United States) for at least the two years 
immediately preceding the filing of the petition has been a member of a 
religious denomination which has a bona fide nonprofit religious 
organization in the United States. The alien must be coming to the 
United States solely for the purpose of carrying on the vocation of a 
minister of that religious denomination, working for the organization at 
the organization's request in a professional capacity in a religious 
vocation or occupation for the organization or a bona fide organization 
which is affiliated with the religious denomination and is exempt from 
taxation as an organization described in section 501(c)(3) of the 
Internal Revenue Code of 1986 at the request of the organization. All 
three types of religious workers must have been performing the vocation, 
professional work, or other work continuously (either abroad or in the 
United States) for at least the two-year period immediately preceding 
the filing of the petition. Professional workers and other workers must 
obtain permanent resident status through immigration or adjustment of 
status on or before September 30, 1997, in order to immigrate under 
section 203(b)(4) of the Act as section 101(a)(27)(C) special immigrant 
religious workers.
    (2) Definitions. As used in this section:
    Bona fide nonprofit religious organization in the United States 
means an organization exempt from taxation as described in section 
501(c)(3) of the Internal Revenue Code of 1986 as it relates to 
religious organizations, or one that has never sought such exemption but 
establishes to the satisfaction of the Service that it would be eligible 
therefor if it had applied for tax exempt status.
    Bona fide organization which is affiliated with the religious 
denomination means an organization which is closely associated with the 
religious denomination and which is exempt from taxation as described in 
section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to 
religious organizations.
    Minister means an individual duly authorized by a recognized 
religious denomination to conduct religious worship and to perform other 
duties usually performed by authorized members of the clergy of that 
religion. In all cases, there must be a reasonable connection between 
the activities performed and the religious calling of the minister. The 
term does not include a lay preacher not authorized to perform such 
duties.
    Professional capacity means an activity in a religious vocation or 
occupation for which the minimum of a United States baccalaureate degree 
or a foreign equivalent degree is required.
    Religious denomination means a religious group or community of 
believers having some form of ecclesiastical government, a creed or 
statement of faith, some form of worship, a formal or informal code of 
doctrine and discipline, religious services and ceremonies, established 
places of religious worship, religious congregations, or comparable 
indicia of a bona fide religious denomination. For the purposes of this 
definition, an inter-denominational religious organization which is 
exempt from taxation pursuant to section 501(c)(3) of the Internal 
Revenue Code of 1986 will be treated as a religious denomination.
    Religious occupation means an activity which relates to a 
traditional religious function. Examples of individuals in religious 
occupations include, but are not limited to, liturgical workers, 
religious instructors, religious counselors, cantors, catechists, 
workers in religious hospitals or religious health care facilities, 
missionaries, religious translators, or religious broadcasters. This 
group does not include janitors, maintenance workers, clerks, fund 
raisers, or persons solely involved in the solicitation of donations.
    Religious vocation means a calling to religious life evidenced by 
the demonstration of commitment practiced in the religious denomination, 
such as the taking of vows. Examples of individuals with a religious 
vocation include,

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but are not limited to, nuns, monks, and religious brothers and sisters.
    (3) Initial evidence. Unless otherwise specified, each petition for 
a religious worker must be accompanied by:
    (i) Evidence that the organization qualifies as a nonprofit 
organization in the form of either:
    (A) Documentation showing that it is exempt from taxation in 
accordance with section 501(c)(3) of the Internal Revenue Code of 1986 
as it relates to religious organizations (in appropriate cases, evidence 
of the organization's assets and methods of operation and the 
organization's papers of incorporation under applicable state law may be 
requested); or
    (B) Such documentation as is required by the Internal Revenue 
Service to establish eligibility for exemption under section 501(c)(3) 
of the Internal Revenue Code of 1986 as it relates to religious 
organizations; and
    (ii) A letter from an authorized official of the religious 
organization in the United States which (as applicable to the particular 
alien) establishes:
    (A) That, immediately prior to the filing of the petition, the alien 
has the required two years of membership in the denomination and the 
required two years of experience in the religious vocation, professional 
religious work, or other religious work; and
    (B) That, if the alien is a minister, he or she has authorization to 
conduct religious worship and to perform other duties usually performed 
by authorized members of the clergy, including a detailed description of 
such authorized duties. In appropriate cases, the certificate of 
ordination or authorization may be requested; or
    (C) That, if the alien is a religious professional, he or she has at 
least a United States baccalaureate or its foreign equivalent required 
for entry into the religious profession. In all professional cases, an 
official academic record showing that the alien has the required degree 
must be submitted; or
    (D) That, if the alien is to work in another religious vocation or 
occupation, he or she is qualified in the religious vocation or 
occupation. Evidence of such qualifications may include, but need not be 
limited to, evidence establishing that the alien is a nun, monk, or 
religious brother, or that the type of work to be done relates to a 
traditional religious function.
    (iii) If the alien is to work in a non-ministerial and non-
professional capacity for a bona fide religious organization which is 
affiliated with the religious denomination, the letter from the 
authorized official must explain how the affiliation exists. A tax-
exempt certificate indicating that the affiliated organization is exempt 
from taxation in accordance with section 501(c)(3) of the Internal 
Revenue Code of 1986 as it relates to religious organizations is 
required in this instance.
    (iv) In appropriate cases, the director may request appropriate 
additional evidence relating to the eligibility under section 203(b)(4) 
of the Act of the religious organization, the alien, or the affiliated 
organization.
    (4) Job offer. The letter from the authorized official of the 
religious organization in the United States must also state how the 
alien will be solely carrying on the vocation of a minister (including 
any terms of payment for services or other remuneration), or how the 
alien will be paid or remunerated if the alien will work in a 
professional religious capacity or in other religious work. The 
documentation should clearly indicate that the alien will not be solely 
dependent on supplemental employment or solicitation of funds for 
support. In doubtful cases, additional evidence such as bank letters, 
recent audits, church membership figures, and/or the number of 
individuals currently receiving compensation may be requested.
    (n) Closing action--(1) Approval. An approved employment-based 
petition will be forwarded to the National Visa Center of the Department 
of State if the beneficiary resides outside of the United States. If the 
Form I-140 petition indicates that the alien has filed or will file an 
application for adjustment to permanent residence in the United States 
(Form I-485) the approved visa petition (Form I-140), will be retained 
by the Service for consideration with the application for permanent 
residence (Form I-485). If a visa is available, and Form I-485 has not 
been filed, the alien will be instructed on the Form I-797, Notice of 
Action,

[[Page 115]]

(mailed out upon approval of the Form I-140 petition) to file the Form 
I-485.
    (2) Denial. The denial of a petition for classification under 
section 203(b)(1), 203(b)(2), 203(b)(3), or 203(b)(4) of the Act (as it 
relates to special immigrants under section 101(a)(27)(C) of the Act) 
shall be appealable to the Associate Commissioner for Examinations. The 
petitioner shall be informed in plain language of the reasons for denial 
and of his or her right to appeal.
    (3) Validity of approved petitions. Unless revoked under section 
203(e) or 205 of the Act, an employment-based petition is valid 
indefinitely.

[56 FR 60905, Nov. 29, 1991, as amended at 59 FR 502, Jan. 5, 1994; 59 
FR 27229, May 26, 1994; 60 FR 29753, June 6, 1995; 61 FR 33305, June 27, 
1996; 67 FR 49563, July 31, 2002]