[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: 8CFR204.8]



[Page 121-124]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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



[[Page 122]]



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;

    (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,



[[Page 123]]



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

    (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.



[[Page 124]]



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]