[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

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



[[Page 107]]



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



[[Page 113]]



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,



[[Page 114]]



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]