Rules and Regulations

ThiS seC1ion of the FEDERAL REGISTER contains regulatory documents having general •PP'Ii<:abiBty and legal effee~ most of wfli<:h ere keyed to end cod"died in the Code of Federal Regulations. which is published under 50 titles pursuant to 44 u.s.c. 151()'. The Code of Federal Regulations is sold by the Superintendent of Documents. Pficos of new books are listed in the . first FEDERAL REG.ISTER iSsue of ea<:h week.

DEPARTMENT OF JUSTICE

Immigration and Naturalization ~Ice

8 CFR Parts 103 and 204

!INS No.1434c91)

RtN 1115-AC59

Employment-Based Immigrants

AGENCY: Immigration and Naturalization Service. Justice. ACTION: Final rule.

SUMMARY: This final rule implements section 1Zt of the Immigration Act of 1990. Public Law 101~9. November 29, 1990 (IMMACT), by providing petitioning procedures for employment­based lmmigrants·imder sections 203[b) [1) through [5) of the Immigration and Nationality Act [Act). It will also implement new immigrant classifications end requirements established by Public Law 101~9. end clarify, for ·the general public and businesses. requirements lor classification and admission for these new immigrant classifications. This rule is necessary to help American businesses hire highly skilled, specially trained per.sonnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found. EFFECTIVE DATE: November ZQ, 1991.

. FOR FURTHER INFORMATION CONTAcm Edward H. Skerrelt. Senior Immigration Examiner, or Carla J .. Hengerer, . . Immigration Examiner, Adjudicatlons · Division, Immigration a.nd Naturalization Service, 425 I Street NW .. room 71ZZ, Washington. DC 20536. tolephone [202) 514-3946. SUPPUMENTARY INFORMATION: On July 5.1991, at 56 FR 30703, the Immigration and Naturali:zatioo Service published a proposed rule with request lor

comments from interested parties by August 5, 1991.

The Service received 340 comments on the proposed rule. All or the · comments. were reviewed and considered in writing this final rule. The discussion which follows groups the comments into major subject areas . where comments were made, provides the Service position on the issue. and indicates any revisions made based on the comments. ·

Procedural Issues

There were four procedural issues In the proposed rule which elicited a substantial number of comments: Filing o! petitions only at Service Centers. transition to the new law, priority dates. and determination or the abiUty of 8 prospective employer to pay the immigrant's wage.

The Service proposed that petitions for employment-based Immigrants be filed only al the four Service Centers. ln. effect. this means the elimination of . concurrenl filing at local offices of employment-based petitions with applications for permanent residence [Form 1-485). There were two reasons for this proposal. First, it appears that as of October 1, 1991, visa numbers will be current for the new employrnent,besed classifications, and the Service did not . want an oppressive workload to fall to local o!!iccs. Seeond. during the transition to the provisions of the new law, training and guidance could be concentrated at the four Service Centers.

One hundred and fourteen commenters objected to this proposal, for the most part seeing it not only as shifting work to the Service Centers but also as increasing the total Service workload. Some of these commenters suggested that concurrent filings be suspended only temporarily.

As provide<( in a final rule published . by the Service on October 2. 1991 [56 FR · 49839), the Service will not reinstate concurrent filing. As explaine<t in the preamble to that rule, the Service wishes to ensure uniformity of adjudlcaUon, to the degree possible. This goal seems best accomplished if jurisdiction over these petitions is assigned to the four Service Centers. rather than to the many local o!!iccs. However. the Service · intends to monitor the adjudication process during its first few months under the new regulatory scheme in

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order to aetermine whether · reinstatement of concurrent filing becomes desi:rable. The final rule thus provides that""peiitlons may be specifically designated lor local fil ing by the Associate Commissioner for Examinations. This would permit a general reinstatement of concurrent filing or more limited designations, if appropriate:

A great number or commenters expressed ·concern about the transition to the provisions of the new law. Most of these commcnlell feltlhatlhc Service should provide for automatic conversion of third and sixth preference petitions to the new classifications. The proposed rule in8tCad c.ontained the requirement. imposed by .the Act, that a new. employment:llased-immigration petition must be filed by October 1, 1993 to retain a priority date established for a third or sixth preference petition before October 1, 1991. On October 1.1991. however. the President signed into law the Anned Fan:es Immigration Adjustment'Act or 1991, Public Law 102-i10. Section 4i of this law created essenUal)y the conversion system · suggested by the.commenters. Any third or sixth pre!e:rence petition !iled before October t ,'1991, end approved on apy date will be deemed a petillon approved under s"ectlorts 203[b)[2) or zOO[b)(3) of the Act, respectively. The final rule has been adjusted to renee! this change to the statute.

In the proposed rule, the Service Indicated that for classification under aections 203[b) [1), (2). and [3) or the Act, the priority date of the petition would be the date the petition was properly filed with the Service. This proposal rcsu.lt0d in 186 comments. The

·public concern arose from.the !act that many petiliqns urider the new classifications will continue to be accompanied by individual labor certifications from the Department of Labor. Commenters pointed to lengthy processing times at some Department of Labor certi!yi.ng offices and suggested that both employers and aliens In some areas of !,he country would be disadvantaged. The most significant o.bjection to this proposal came from the

· Department of Labor itsel!. The final rule renects a return to

priority date establishment as continued In current reg·ulation. When a petition lor classification under section 203[b)[2) or (31 or the Act is accompanied by an

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individual labor cerlification from the Department of Labor, lhe priority date will be the earliest date lhe application for certiflc:alion we a accepted for processh•lfby any office within the employment service system of the Department of Labor. For a petition which was not preceded by an individual application to the Deparlmenl of Labor. including a petition wlth an •pplication for Sdiedule A determination or with evidence that the alien's occupation is a shortage occupation within tho Department of Labor's Labor Market Information Program. the priority dale will be the dale on which the pelilion is properly file(! wilh the Service.

As a consequence of this modification, lhe paragraph in the proposed rule concerning labor cerlificalion applications filed before Oclober 1 . 1991 is unnecessary and will be removed from the final rulo.

Tbe final rule also contains a new provision .. 8 CFR 204.5(e). which should help to alreviate past problems with employment-based priority dales. This part will allow an alien to relain the priorily date of an employmenl-based pel ilion on his or her behalf which has been approved under seclions 203(b) (1). (2), or (3) of the Act. This priority dale, once cslablished. will apply to subsequent petitions on behalf of lhe alien under sections 203(b) (1). [2). or (3) of lhe Act.lt will only be lost if I he initial petition is revoked under sections 204(e) or 205 of the Act. Tbe priority date will n0t. however. be applicable to pelitions under section 203(b) (4} or (5) of I he Act, or to family-based classificalipns. Nor will a petitioning employer be permitted to· subslitule a different alien for lhe original on a labor certification and relain the original priorily dale.

Section 204.5(d) of lhe final rule has also been changed to provide a melhod for assigning priority doles to peliliona for classification as a special immigrant under section 203(b)(4) of lhe Act. The priorily dale for such a petition shall be lhe dale the completed. signed pelilion. including .all initial evidence and lhe correcl fee. is properly filed with the Service. An alien whose application for such special immigrant classification under the prior law was filed before October 1, 1991 but had no I been adjudicaled as of that date must file a Form 1-JOO for classificalion under scclion 20G(b)[4). However. the priorily date shall be lhe date t]Je alien submitted I he application under prior law for an Immigrant visa or adjuslment or slatus. .

The final general issue which mel with some public response was the issue'

of the ability of lhe prospective employer lo pay lhe wage. Twelve commenters found the requirement. es stated In lhe proposed rule. lo be restrictive or cumbersome. Suggestions ranged from accepling types ol financial evidence olher than an annual reporl or tax return to waiving the ·requirement lor eslablished employers or asking lor documentation only·in questionable cases.

Tbe Service will retain lhe requirement-as provided in lhe proposed rule. wilh two modificalions. First. ·the final rule will allow organizations which employ at leasl100 workers to submit a slatemenl from a financial officer of the organization on the organization's ability to pay lhe wage. Second. lhe ftnal rule will permit organizalions to demonstrate ability to pay the wage by submilting an audiled financial statement.

Aliens ol Extraordinary Ability Four commenlers questioned how the

standards in lhe proposed rule for a showing "exlraordinary abilily" under the firsl employmenl·based classification relaled to those required for a showing of "exceptional abilily" under lhe Department of Labor's Schedule A/Croup IJ. Schedule A/Croup II. found al 20 CFR 656.10. exempts cerlaln aliens or "exceptional ability" from the need to obtain an individual labor certification. !MMACT crealed a new immigrant visa preference classification for alien• of "exlraordinary ability" (aa well as a new noniJlUtllgrant visa classification for. such aliens). !I also carried over a separale Immigrant visa preference classification for aliens of .. exceptional ability." !I is lhe Service's duty. then. to d iscern the slandarda that Cong.reso meant to apply to these lwo classifications. Tbe legislative hislory indicates at House Report 101-723. p. 59. that Congress intended for IMMACT's "exlraordinary ability" classification to be comparable to the Department of : Labor's "exceptional abilily" standard set out in Schedule A/Croup 11. Unforlunately. IMMI\CT also uses the term "exceptional ability" when reremns to certain immigrants under the new second employmenl-based classification: yei iMMACT !ndicales that Us "excepllonalability" classification is a 1ess restrictive one than its "extraordinary ability" classification. Therefore. lMMACT's "exceplional ability" classification is necessarily also less restrictive than the Department of·Labor's Schedule A/ Group ll"exceplional ability" slandard. :

Des pile I he undesirable confusion. however, the Service must use the terms

selecled by Congress. Accordingly. lhe rule's stand.ards governing "extraordinary abilily" are comparable lo the Schedule A/Group II standards governing ''exceptional ability" and lhe rule's standards governing "exceptional ability" are less reslriclive than the · Schedule A/Croup II standards governing "exceptionaf"abilily." An alien meeting the criteria for "extraordinary" under 8 CFR 2M.s[h) need not obtain a labor certification., An alien who fails to meet these criteria may qualify as "exceptional" by meeling the crileria ol 8 CFR 204.5(k) however. such a petilion must be accompanied by a labor cerlification.l\n alien who would also meet the criteria rar "exceplional" under Schedule A{Croup Il-l hough lhat alien mighl also qualify under lhe rule as "exJraordinary"- has the addilional option. il visa avaflability or other circumstances make it desirable. lo seek classificalion as an "exceptional" a Hen under section 203(b)(2). thereby avoiding lhe necessily of lhe employer obtaining an individual labor cerlificalion.

The Service received essentially lhree sorts of objecllons toils staQdards for exlraordinary abillly. firs I. three commenters argued lhat the defimilion itself-a level or abilily indica ling lhat the alien is one or the "few who bas risen to lhe very top" of I he field-was too stringent, and suggesled lhat the word "few" be removed from lhe definition. Second, nineteen commenters believed that the crilerla governing !he delerrnlnalion or extraordinary ability could exclude some 'aliens who do in fact possess extraordinary ubility in business. Finally. one commenter I ell that all athletes performing al a major league level should be deemed to have exlraordinary ability.

To address the objection 10 the definilion llself. the Service reexamined the legislative hislory on Ibis point. In House ReporllOl-723, lhe House Committee on the Judiciary used ·the words "small percentage" where t.he proposed rule used "few." Tbe final rule has been revised accordingly.

Afler considering I he objection concerning business persons. the

!'Service has concluded lhat.the truly ex.lraordinary business person can qualify based on the criteria set forlh in the pmposed rule. Several of lhe crileria .. including such indicia of achievement as awards. arlicles by or about Ute alien In major publications. and salary level. are wrillen In terms broadly applicable even within the business community. In addilion. 8 CFR Z04:S(h)(4) permits -lhose who believe lhe eslablished criteria do · not readily apply lo their occupation lo ·

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submit comparable evidence of extra6rdinary ability.

The Service disagrees lhat all alhletes performing at the major league level should automatically meet lhe "extraordinary ability" standard. Performance at lhat level may frequently help to establish that the athlete meets several of I he listed criteria. However. section 203(b}(l}(A}(i} of the AcL as aMended by aectlon·121(a} of Public Law 101~9. slates that the alien's extraordinary ability must be "demonstrated by sustained national or international acclaim." Not all athletes, particularly those new to major league competition. would be able to meet lhis standard. A bl~nket rule for all major league athletes would contravene Congress' intent to reserve this category to " that small percentage of individuals who have risen to lhe very top of their field of endeavor."

For clarification. the Service has subdivided some of the eligibility criteria so that there are now ten. This part has also been changed to l!lake clear lhat athletic and business·reluted contributions of major significance will meet the criterion relating to lhe alien's original contributions in the field.

Outstanding Professors and Researchers There were two primary areas of

comment regarding the proposed rule us It relates to outstanding professors and researchers. .

Sixty-five commenters. several from major academic institutions, advised lhat it is unusual for colleges and universities to place researchers in tenured or tenure-track positions. In lhe final rule. the Sei'Vice recognizes that a research position having no fiXed term and in which the employee will ordinarily have an expeo::tation of permantnt employment is "comparable'' to a tenured or tenure-track position within lhe meaning of section 203(b}(1)(B}(iii}(ll) of the Act. The final rule has been modified t·o reflect this recognition.

Fifty-nine commenters urged lhe Service to consider significant research toward an advanced degree as counting toward determination oF lhe three-year requirement of teaching and/or researCh experience. A few commenters also felt that 'teaehing experience gained·by a candidate for an advanced degree should count in meeting the !~aching/ research requirement.

The final rule reflects that research or teaching experience gained while working on an advanced degree will count toward the three· year requirement only if the advanced degree has been granted and only if the research is recognized within the academic field as

outstanding. or if the alien had full responsibility for couraes taught. Experience as a laboratory or teaching assistant will not qualify towa.rd the three-year research or teac.birig requirement. · · ·

Five commenters felt that the · ' requirement that a teaching offer be for a tenured or tenure-track poOsition was too stringent, and e few commentera felt that the requirement of three years of experience was unfair. Both of these requirements are statutory; therefore. lhe Service could not change the final rule on either point.

Finally. the Service changed lhe evidentiary criterion at 8 CFR 204.5(i)(3}(i}(A). In thll proposed rule, the petitioner was required to submit evidence that the alien had received major international awards. The wOrd "international" has been removed in order to accommodate lhe ·possibility that an alien . .might be recognized internationally as outstanding for having received a major award that is not international.

Certain Multinational Executives and Managers

Seventy-two commenters found lhe proposed definition of affiliate, us applied to multinational executives and managers. to be too restrictive. For the most port the commentera felt that the definition did not reflect business · reality.

In lhe final regulation, the definition of affiliate will be changed to comport with lhe current definillo'n of affiliate os found at 8 CPR 214.2(1}(1}(ii}(L}as it applies to nonimigrant intr.acompany transferees. This definition is broader and more attuned to lhe commenlers' concerns than lhe definition in the proposed rule. This part of the final rule does not require that a group of individuals entirely own and control two legal entities in order for the entities to be considered affiliated. Nor does this part require each individual in the group directly to own and control the same

. proportion or each entity. . One commenter noted the inclusion of

international accounting partnerships in the definition and urged lhat tiimilar ' · arrangements in Other industries :be included. The 'lnelusiont of interrtallonal accounting partnerships as affiliate~ was through fi specific provision of Public Law 101-&19 at section 206(a}, which mandated lhat the Service apply that inclusion when adjud>cating petitions for classification under section · 203(b}(l}(C). The Service has no authority to extend this application beyond international accounting partnerships. · ·

' Another commenter objected that the proposed' rule required that the affiliate of an international accounting partnership must market its services under the same internationall.y recognized name. This commenter noted that some or these firms do not always use the same name in different countries. The Service may be flexible in accepting evidence, such as annual reports. demonstrating that the various affiliates of the accounting partnership use substantially the same name. The statute specifically limits this eubsection. however. to accounting partnerships !hot market their accounting services "under the same internationally recognized name," and lhe Service cannot deviate from this requirement.

Two commenters felt lhat the requirement or lhe regulation lhat the United States entity be doing business for one year went beyond the language of the statute. One of these commenters also felt lhat lhe lansuase "which has employees" must be removed from the definition of doing business in lhat staffing levels are not controlling when determining managerial or executive capacities.

The hinguage "which has employees" has been removed in the final regulation. but the requirement of doing business for one year will be retained. This requirement is similar to one pertaining to intra-company transferees under the L-1 nonimmigrant classification. The requirement. which has been in existence for a number of years. provides for a on.e-year limitation on the initial admission of an L-1 nonimmigrant coming to a new business. After one year lhe allen may apply for an extension or stay, provided the qualifying United States entity is still in operation. The Service bus found lhat the one-year time limit is important as a measure of t.he viability of lhe United States employer. It should be· noted that, although lhis rule prohibits the approval of an immigrant visa petition on behalf of an multi~national executive or manager coming to work for a new business, a qualified alien would not be

· precluded from obtaining L-1 nonimmigrant status for one year and then tieeking adjustment or status to that

· of tawful permanent resident based on this immigrant visa classification.

AU ens Who Are Me!DI>era ~~ the. Professions Holding Advanced Degrees or Aliens. of Exception~! Ability .

The statute indicates that members of the professions holding advanced degrees or lheir equivalent may qualify for this 'classification. The Joint

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Explanatory Statement of the Committee of Conference on this point 10ys that the e(lulvalent of an advanced degree shall be "a bachelor's degree with at least five years progressive experience in the professions." In the proposed rule, the Sc:rvice followed thia guidance 1111d required the alien to have a United States advanced degree or a foreign equivalent advanced degree. To qualify for the exception. the petitioner must demonstrate that the alien hat at least a bachelor's degree. or a foreign equivalent degree. pluslivo years of progressive experience In the profeuion. Tho Service interpreted thlt combination to equate with a maater'a degree. and Indicated that if a doctoral degree wa.s customarily required by the specialty. the alien wou.ld be required to have a doctorate. The Service notes that a foreign advanced degree detennined by an evaluator to be the equivalent of a United States doctorate will qualify.

Eighty-three commentero felt that the requirement that aliens have degrees, both for this classification and for professional status in the third classification, was too reatrleiJvo. Several commentors were perplexed that no aubstilule of experience alone fo: a baccalaureate waa allowed. Some pointed to past Service case law which allowed for subsUtution of experience for academic worl<. Some pointed to the Service' a regula tiona pertaining to H-lB nonimmigranta which allow for equivalence of experience, and some pointed to section 214{1) or the Act, aa amended by secUon ZOS(c) of the Immigration Act of 1990, wherein equivalency to the bachelor' a or higher degree is pennitted lor H-18 n.onimmlgranta. Other commenters pointed to certain countriea where possession of a degree Ia not the usual nonn for cluaificallon aa e professional

Thelinal rule wW not change with regard to academic requlreme.nta for either professionals holding advanced degree& or professional• In the third clasailicallon. The Act ala tea that. in order to qualify under the second classification, alien members of the professions must hold "advanced degrees or their equivalent." AI the legislative history diseuued above lo.Ucates, the equivalent of en advanced degree ~"a bachelor' a degree with at least five yean progreuive experience In the professions." Because neither the Act nor Ita legillatlve hlatory Indicates that bachelor's or adva.nced degrees must be United Statea degree., the Service wUJ recognize foreign equivalent d ogrees. But both the Act and it¥ legislative history make clear that, In order to qualify aa a profeulonal under

the third classification or to have experience equaling to an advanced degree under the second. on alien must have at least o bachelor's degree. Therefore. the Service believes thaL to carry out Congreu' intenL it must require ' bachelor'• deqee in both contextt, and cannot pennil an alien to meet this minimum requirement through experience alone. The Service also malntainl that the equivalent of an advanced degree-« baccalaureate plue live years or progressive experience in the professions-equates to no more than a master's degree. Persons formerly qualifying for third preference by virtue of education and experience equating to a bachelor's degree will qualify for the third employment cate;gory u skiUed workers with more than two years of training and experience. These individual• •• well a a holden or baccalaureate degree wlU feU into the same preference categ<)ry.

Seventeen comment en fell that the criteria pertaining to a ahowing of exceptional ability were not flexible enough to demonstrate that a business person waa of exceptional ability. The Service dlsagreet. Several of the criteria. concemlJ18 such Indicia of achievement as degrees of higher education, experience. ulary level and membership In professional assoelaliona. are written in terms broadly applicable within the buslneu community. The Service has. however, changed this part to permit those who believe the established criteria do not readlly apply to their occupation to submit comparable evidence of exceptional ability.

With regard to the level of work the allen will be performing in the United States, the Onal rule clarifie1 that the fob offer portion of the lodividuallabor certification, the Schedule A application. or the Pilot Program appUcation must •how that the fob reqlllres a profe11ional holding an advanced degree (or it1 equivalent) or an alien of exceptional ability.

Four commonlera asked whether an exemption from, or waiver of. the job offer for an exceptional alien constituted waiver of tho labor c:crlllication. The Service has consulted with Congre11ional sources and the Department of Labor on this issue. and aU partiu are in qreement that exemption from. or waiver of, the job offer constitutea waiver of the labor certification. The final rule reflects this determination.

Since tho final rule c:larilies that exemption from the job offer requirement constitute a exemption from the labor certification requirement. tho

Service has re!X'oved the requirement that the alien present evidence thnt he or she is in a traditionally self-employed occupation or that hia or her oceupntion Is a shortage occupation within tho Department of Labor'• Labor Market Information Pilot Program.

One commenter indicated that the job offer exemption should be available to profesaionels as well as alieni or exceptional ability. The at.atute. however. limits this provision to aliens of exceptional ability.

Some commenters also asked that the phrase "in the national Interest" bo defined. One commcnter suggested that tho phraoe should apply to any alien who would substantially benent prospectively the national economy, cultural or educational interest.. or welfare of the United Statea. The 1\ct lttell requires this showing of all aU ens aeelclng to qualify as "exceptional." but adds the "national intereat" test to penni I a job offer waiver for certain alieni who have already satisfied the "prospective national beneflt" test. The Service, therefore. cannot equate the two standards. Congreu hu not provided a more particular definition of the phrue In the national interest. The Service believes it appropriate to leave the application of this t.eat as flexible u poulble. although clearly an ellen seeklng to meet the standard must make a ahowlng signi6cantly above that necessazyto prove "prospective national benefit." The burden will real with the allen to establish that exemption from, or waiver of. the fob offer will be in the nstional intorest. Each case will be judged on Ita own merits.

SI<Uied Wori<ers, Prof~t~slonals, a.nd OtberWosbn

AI noted In the previous aec;tion. 83 comment en objected to the requirement that an alien actually posseu a baccalaureate degree (or a foreign equivalent degree) and that the Service has made no allowance for an alien to qualify through experience In tl•c profession. Once again. the language of the 1tatute atates that the proresalonal mual have a baccalaureate. 'The Service, therefore. will malce no chango in tho final rule.

Thirty-eJsbt commenters u11ed the Service to allow education to count when calculating the required two years of training or experienca lor akilled workert. The final rule contains a part -whereln ,posl-seoondary education will count when calculating this requirement.

Thirty commenters indicated that the propO$ed regulation was not cieor on how the Service would distinguish

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between skilled and other workers. The final rule reOects lhatthis determinalion · 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 a Schedule A or Pilot Program case. the petitioner will be required to demonstrate to the Service. through a showing of industry standards or employers' past practice, that the job is skilled: i.e .. one which requires at least two years of training and/or experience.

With regard to the work a professional will be doing in the United States, the final rule clarifies that the job olfer portion of the individual labor certification, the Schedule A application. or the Pilot Program applicalion must show that the job requires a professional holding a baccalaureate degree. ·

Religlowr Worken Nineteen commenters objected to

what they construed as a requirement in lhe proposed rule that an alien seeking to qualify as a minister within the meaning of section 10l(a)(2?) of the Act must possess a baccalaureate degree. The proposed rule. however. imposed no such requirement. Rather. it must be demonstrated thatlhe alien has been authorized by a recognized religious denomination to conduct religious worship and to petfonn other dulles usually performed by authorized members of the clergy of that rellgion.

Some commenters objected to the definition of minister as being unfairly biased toward Christian religions. It was the Service's intent to draft a broad enough definition to be applicable to non-Christian ministers of religion. The final rule has therefore been amended to make clear that the guiding principle is that there be a reasonable connection between the activities performed and the religious calling of the minister. The Service will indicate in its operations instructions the circumstances under which ordained Buddhist monks. commissioned officers of the Salvalion Anny, ordained deacons. and others may be considered as ministers of re1igion.

Thirly·eight commentet8 objected to the requirement that religious professionals possess the minimum of a United States baccalaureate degree or its foreign equivalent and that there was no provision for qualification as a religious professional through eKperience. The commenters noted that the Act does not specify a degree requirement for a religious. worker in a professional capacity.

The rule included this requirement for two reasons. first. while the Act does

not define the term professional in the context of religious workero. It docs so in the context of .. skilled workers, professionals, and other workero ... There the Act specifies that a "professional" must have a baccalaureate degree. The Act does not require a United States degree. and the Service will therefore recognize an equivalent foreign degree. The Act does not. however. refer to gaining baccalaureate degree equivalency through experience. as the legislative history does with respect to an advanced degnee. Therefore. the Service believes lhat, to carry out C<>ngress's intent, it must require a baccalaureate for professionals in all employment· based immigrant contexts. Second. lhe distinction between religious professionals and other workers in a religious vocation or occupation will have little practical elfecl. The visa numbero for both groups are limited to a total of no more than 5.000 a year. Therefore, a religious worker may be admitted within the 5.000 limit whether or not he or she is deemed a religious professional. Therefore. the Service has not changed this requirement in the final rule.

Several commenters felt that the definition of bona fide nonprofit, religious organization in the United States should be broader and should not make specific reference to exemption from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations. Commenters also objected to the requirement that proof of the organization's lax-exempt status be pari of the petition's in.ilial evidence.

The Service views lhe definition and the requirement that proof of tax-exempt status be furnished as fair. If a religious organization relies for ita tax~exempt status oo its governing body. then that proof should be subm.illed with lhe petition. The Internal Revenue Service (IRS) routinely makes decisions concerning lhe non·prolit nature of any organizalion which is seeking tax~ exempt status. Whenever IRS has already made a deterrilination in this regard, lhe Service will defer to that decision. However, because churches. unlike other religious organiutions. are not required to apply for lax-exempt status (and !hereby prove that they are non-profit organizations) In order to claim exemption, the final rule bas been revised to provide that if for any reason an organization has never sought such tax-exempt status Crom IRS, the Service will allow the organization to submit to the Service the same documentation required by IRS.

Some commenlers felt that the definition of religious denomination was written with an unfair bias toward western religious tradition. The definition has been rewritten in the final rule to show lhat, in addition to evidence of lhe listed faciO!'$, a petitioner may submit evidence of comparable indicia of a bona fide religious denomination.

Some additional commenters noted that the proposed regulation did not take into consideration the existence of bona fide Inter-denominational religious organizalioqs, such as lhe Billy Graham Evangelistic Association. The Service will accommodate these organizations in lhe final rule by treating them as denominations provided that they can establish that their United States organizations are exempt from taxation pursuant to section 501(c)(3) of the Internal Revenue Code.

A few commenters felt that certain additional religious occupations should be placed in the definition of religious occupation. No such change in the final rule io neces.sary. however. because the definition is written in terms general enough to comprise occupations in addition to those listed. Further, the rule clearly states that the list of examples is illustrative rather than exhaustive.

Some commenlers objected lhatthe definition of religious vocation-a calling to religious life "as evidenced by the taking of vows"-was overly restrictive. The Service agrees that the definition should not exclude those faiths in wh.ich "a calling to religious life .. may be demonstrated by comparable means other than taking vows. The definition has been revised accordingly.

Employment Creation Immigrants

- In an effort to effectuate the intent of Congress In enacting the employment creation provisions o( the Immigration Act of 1990 and to respond positively where possible to the comments on the proposed rule, the Service has included a number of substantive changes jn the final rule.

The Iitle of Form I...S26 referred to alB CFR 204.6{a) has been changed from "Petition for immigrant Entrepreneur," which Is the title of the fonn as found in the proposed rulemaking. to .. Immigrant Petition by Allen Entrepreneur." Additionally, an internal inconsistency in the proposed rulemeking has been clarified. The proposed rule stated at § 204.6(a) that "the petition must be signed by the petitioner or by his or her authorized representative," and at § 2M.G(c) that it could be filed only by the alien entrepreneur. Accordingly, the

Federal ·Register. / · Vol. 56, No. 23() [' FridQy, November 29, . .1991 f. Rules an!i Regulations

, .reference.to authorized represent.atives has been rempved from I 204.6(a).

The Seryice received suggestions that District Offices and suboffices, rather than the Service Centers: should have jurisdiction to adjudicate immigrant , petitions by alien entrepreneurs. The Service has considered this alternative but concluded that the final rule should remain as proposed. The Service is concemed with uniformity of adjudication and is concentr8ting its training in this area at the Service Centers. The need for consistent adjudication of the often higl)ly technical proposals in these new petitions outweighs, for the time being. any benefit offered by,pe'!Oitling their filing in District Offices or sub-offices.

The Service haa decided, however, to assign jurisdiction for adjudic8tion of Form 1-526 only to the Service Center having jurisdiction over the area in which the alien entrepreneur's new commercial. enterprise Is principally doing business. Petitioners may not file with the Service Center having · jurisdiction over the area in which the enterprise is estab)ished. This change Is designed to facilitate a more even d istribution of petitions among the jurisdictions of the four Service Centers,

Definitions The definition of capital was limited

in the proposed rule by excluding all types of intangible property. cash equivalents. and debt financing arrangements. Two commenters recommended that intangible proper ty count as capita l; four recommended that cash equivalent count; and fifty-six recommended that indebtedness count. Two commenters, on the other hand. felt that it was both reasonable and commercially vlable to exclude debt from the definition. .

Under the final rule, the definition of capital includes cash equivalents-such as certificates of deposit. Treasury bonds, or other instruments that can be converted readily into cash-and indebtedness. To qualify as capital. indebtedness must be secured by assets owned by the alien entrepreneJJr, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial

·enterPrise upon which the petilion is. based are not used to secure any of the indebtedencss. This requirement is designed to ensure that, by investing capital. the alien entrepreneur has placed funds or other capital assets · directly at risk.

The Service has expanded the definition of capital for tw9 ,.f!asons. First, the legislative history of the Act suggests tha t Congress intended the

·, ' · independent .contractors. The Service . definition to·be broad. Discussing the employment creation provision in Senate Report 101-55, the Senate Committee on the judiciary endorsed the requirements set out for nonimmigrant "treaty investors" at 22 CFR 41.5l.ln note 5.1-2 to 22 CFR 41.51, the Department of State has indicated that " investment" includes the investment of debt, Second. the overwhelming majority of those commenting on this Issue supported such a change, believing that excluding debt from the definition of capita 1 would ignore modem business practice .and serverly limit the number of investors eligible or willing to apply under the employment creation provision.

The definition has also been changed to exclude assets "directly or Indirectly" acquired. by unlawful means. These words were added to effectuate Congress's intent that the visa process be discontinued "if it becomes known to the Government that the money invested was obtained by the alien through other than legal means (such as money obtained through the sale of illegal drugs)-" S. Rep. No. 101-55. lOlst Cong .. 1st Sess. 21 (1989).

Fifty-s>Oven commenters objected to the proposed definition ofinvest, which required the net infusion of capitol into the United States economy from abroad. This requirement has therefore been eliminated in the final rule. After further review, the Service agrees that C<?ngress has not specifically required that capital come from abroad in the statute or during it:s discussion in the Senate Judiciary Committee. Imposing such a requirement would therefore exceed Congressional intent, ignore modem business: prnc-licee. and create grave enforcement problems.

Tlie definition of commercial enterprise was clarified and expanded to encompass wholly-owned subsldlo rles of holding companies, Ten commenters stated that the definition should l>e expanded, and six com men ters specifically called for the inclusion of the holding company/ · subsidiary example under the commercial enterprise definition. Two commenters called for the definition of commercial enterp.rise to encompass not-fol'profit entities. Because not-for­profit en.titles do not fundamentally "engage in commerce," the Service does not find the inclusion of such cntitie1s to be consistent with the statute.

Seventeen commcnters suggested that independent cont.ractors be included in the definition of employee. The final rule defines employee to include only t.hose persons directly employed in a full·time position by the new enterprise. This •ection specifically excludes

recognizee that certain business . enterprises rely heavily on independent · contractors. and that the required investment of capital may result in creating opportunities for new and existing independent contracts. Yet the Service' interprets the Act to require the creation of long-term. full-time employment by the enterprise. Accordingly, the Service has concluded that independent contractors, whose relationship with the enterprise is less than that of employer-employee and may often last only a short time. do not properly fall within the definition of employee.

In the proposed rule. the definition of full-time employment did not contain a specific reference to the concept of job-sharing. The Service has added a direct reference to job-sharing and a specific exclusion of part-time employment. Under the common job-sharing arrangement, two employees simply combine to fill what is clearly demonstrated as one full-time employment position. Therefore, the Service interprets the Acl'to require the creation of the requisite number of full· time employment positions. even if two employees combine to fill a single position. Several commenters sought the inclusion of parHime employment within the definition through the use of various formulae for combining hours worked to obtain the equivalent of a normal work week: The Service cannot accept these sUggestions. Evcri putting aside' the complications that such formulae would invite, the Act precludes their use: Section 203(b)(5) of the Act requires that the new commercial enterprise must "treate full-time employment." The service therefore cannot find that part-time employment is consistent with the clea r language of the statue. ·

The final rule includes a definition.oi the 'term troubled business. In the proposed rule, the Service sought comments relating to the concept of job creation and its relation,tp job retention within a failing business. Five · . · commenters felt that job retention should count toward meeting the

, statutory requirement of employment creation. Additionally, the Service determined that job retention comports with Congressional·intent. SeeS. Debate

· on Con f. Rep .. S 358. 136 Cong. Rec. S17105-18'(0ct. 1989). Therefore, the term "troubled l)usiness" has been defined in the final rule. and the term is referenced within the final rule at 8 CFR 204.6(j)(3)(ii) relating evidenliary requirements of employment creation.

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Required Amouat or Capital The proposed rule reqUired a capital

invell.ment or one miUion 'dollars (St.OOO.OOO) for all areas. Eigbty.two commentera called for lowering the · amount of capital required to make a qualifylna investment in a targeted employment area to live hundred thousand dollars ($500.000). The commontors felt that lowering the lnvcstlnent capital requirement would promote the purpose of the Act to •tirnulate Investment In rural and high unemployment &r<!as. They further felt thal•lable businesses could be maintained with the lower investment omo~nL The final rule contains the lowered inveslment amount or 6ve hun~ thousands dollars (SSOO.OOOJ for rural end high unemployment areas. No other adjualmenta in qualifying Investment amounts were made. Although the Act gives the Attomey Cenerol authority to raise the qualifying Investment amount for high employment ore as. no commentera supported such a chonae ond the Service does not wish to pursue ony Increase at the outset of the program.

Multiple lnvetlotS Severn! commenters expressed

conctm lhat employment positions created as a result of the establishmcnl or new enterpriaea by multiple Investors. some of whom inay not be seeking visu undet the provaion. should be allocated only lo those aU en entrepreneura seeking cleuificallon under section w:l(b)(S) or the Act. The final rule contain• language permitting this practice and recognize$ any reasonable asreemente among alien entrepreneurs regordinl!ldentification and allocation of the creoted positions. The final rule also moku clear tho~ in the case of multiple lnveslors. all sources of capital lnvcoted In the enterprise must be ldenllfled and mual hove been acquired by lawful means. This includes capital lnvcotcd by individuals who are seeking visas under this section.

Esta~U..hmeot of a New Commercial Elllerprile

Tbe propooed rule allowed for three methods by which an allen entrepreneur could eatabllab a new commercial enterpri~e: The creation of an original bueiaeu. the purchase of an existing busloe .. with subsequent changes to that buelness'e organization and operation. and the infusion of capital into an existing business such that a aubotanUallncrease In its·net worth or number of employees resulted. SubstAntial was de lined as140 percent or tho pro·tnveslment figure.

Ten commentera felt that the 140 percent atandard was too restrictive. and 18 commenlers requested clorlncallon of both the 140 percent standard and the change of ope.rations language. Three comm:enters recommended clarification of the lime at which net worth was measured.

The fino I rule restructures and clurifies the three 'establishment criteria. FlrHI. the lansuoge relotins to the crcallonof an original business has been retained. Second, the provision relating to purchase of an existing bualneu hao been simplified, and the operational ch~na• langu~ge bas been removed. Instead. the fmal rule now states that eJtabUshment may colllli•t of the purcllase ol an u.lsltng busmess and the rwtructure or reorganiulion of that existing businesaloto a new commercial enlerpri~C. Third. the language regarding establishment through the expansion of an exiallng business. without brinaing inlo exl&lence a new commercial enlerpri!e. has been clarified. Substantial chanse has been defined more precisely to mean a 40 percent Increase either In the net worth or In the number of employees, so that the new net worth or number of employees amounts to at leasl140 percent of the business'• pre-expansion net worth or number o! employees. For example. a business wilh a pre-expansion net worth of $S miDion dollors would meet this criterion foUowina a capital infusion of $2 million dollars. resulting In a net worth of $7 million dollars (i.e, 140'!' of pre·expanslon net worth of S5 million dollora).

ll wu• ·~.:»led lhut the St:rvi~ abandon the 40 percent increase requirement in favor of a sliding scale rule. under which larger businesses could expand by smaller percentages and still qualify. The 40 percent rule, it was argoed, might discourage lnveatmonlln larger existing enterprises. alncc expanding by a fixed percentage becomee more difficult the larger the existing enterprise ia. Although the Service eppreclates lhia concern. it bas concluded thai the simplicity of applleahon alTered by the standard 40 percent rule Is preferable. at least at the outset of the program. The Service h .. therefore retained the 40 percent atandan! but wUI consider. after aoseui,. how the prosrom operate$ under lha t standard. whether some modlfiCitlon io desirable.

The fioal rule has also been changed to clarify that the Investor seeking to eslabliah a new commercial enterprise throush the expansion of an exlstins· business Is not exonipt from the capital

amount and employment creation requirementJ.

State Dealgoation of a High Unemployment Area

Tho proposed rule did not contain any provision under which on area within a non·rurol ores-I.e .. within either a melropoHtan etatistical area or a city or town with 8 population or 2.0.000 or more-<:auld qualify as an area or high unemployment. and thus as e targeted employmenlarea. Twelve commenters called for the Service to change the definition of IJ!rgeted employment area and provide a method by which a component or a non-rural area could so

. qualify. "Mto Service oannol. of COUl'$C:. ;;~her

the 1tatuiO". definition of targeted employment area. The Service has concluded. bowever, that the designation or smaller geographic or political areas within metropolitan slalistlcal areas or within cities or towns with a population of 20,000 or more as a reds of high unemployment would comport with the intent of Congrcsa regarding targeted employment areas.

This part of the rule contains a method for tho designation of such geosraphlo or political subdivisions as oreAl of hig~ unemployment. Under the final rule, 8 ll8le govemmcnt may delegate lo any agency. board. or other appropriate a tate governmental entity the authority to certify that geographic or polillcaltubdlvlslons of non-rwel areas wlthlo the etat.o qualify as areas of high unemployment. The delegation mutt be reported to the Immigration and Nalurallzation Sen1lee through the Associate Commissioner for Examinations prior to Issuance of any area deslgnalion. The evidence of such area designations thai a state provides to a prospective alien enttepreneur shouM lnclcde a description or the boundaries of the geographic or political subdivision and Uoe method or methods by which I he unemployment statistics were obtained.

This ptr11t not intended to place an unneceua,. burden upon any state. With respect to googrsphic 8J!d political subdivisions of thla ei%e. however. the Servlco believe• that the enterprise of assembling and evaluating the data necessary to •elect targeted areas. and .particularly the enterprise of deflning the boundaries of euch areas. should not be conducted exclusively at the Federal level wlt.hout providing some opportunity for particip~tion from state or local aovemment. This part of the rule It merely Intended to afford the states a method whereby particular

60904 Federal Register I 'vol.' sa,· No. Z30 j Friday. November 29, 1991 I Rules and Regulations

areu of high unemployment within their boundarieo may qualify as "targeted," and to allow allen entrepreneurs the oppor1unity to invest in such areas under the targeted employment area guidelines. Including lowered Investment amounts.

lnlllal Evidence Esloblisl•menl

The proposed rule contained initial evidence requirements relating to estobllthmcnt of a new commercial enterprise. 1"he final rule contains additional examples of the types of legal agreements evidencing the e.tabllshment of a new commercial enterprise. The rmal rule also provides for the poulbility that a new commercial enterprise may be located in a jurisdiction and yet be organized In 1uch a manner that no evidence of lawful creation may be available'within that Jurisdiction. lnveslmonl

The evidentiary showing necessary to e~tablish that the petitioner either has Inves ted or Ia In the process of investing tho required amount of capital is modeled ofter requirements used by the Department of State for nonimmigrant "treaty Investors." As with that program. the concept of investment here connotes the placing of funds or other co pita I uset. at risk for the purpciae or generotlng a return on the funds placed at rlslc. Evidence of mere intent to lnveat, or of prospective investment arransementt entailing no present commitment. will not suffice to show that the petitioner is actively In the process of Investing. The alien must show actual commitment of the required amount or capital. The final rule contains the evidentiary categories contained In the proposed rule. as well os an added category to accommodate the revised definitions of capital and Invest.

Lnwful Snurce of Capital 1"he !inol rule requires a petitioner to

furnish ac!ditional evidence as pari or tho Initial evidentiary showing. The petitioner muateubmit foreign busineu reg~tratlon records. personal and commercial tax returns, evidence Identifying any other sources or capital, and evidence of judicial or administrative actions involving money judgmenta against the petitioner. This additional evidentiary requirement currlei o'ut Congress's instruction that "proeesslns of an individual visa not continue under this section If It becomes' known to the Government that the money Invested was obtained by the

alien through other than legal means (such u money received through the 10le of illegal drugs)." S. Rep. 101-55. p. Zt. Employment Creation

The lnltlol evidence requirement relating to the creation of employment has bean restructured 11nd now encompasses the concept of job retention following the infusion of capitol Into a troubled business. In order to demonstrate that job retention meets the employment creation criteria,' the ellen entrepreneur's petition must be accompanied by evidence that the number or exleting employees is being maintained or will be maintained at no leu t11an the pre-Investment level for a period or at leaot two yean. This evidence shall be eubmilled using a copy or a comprehensive business plan and appropriate evidence of the required number of qualifying employees. such as the 1-9 form or rclevontlRS formJ.

Engaged in Monogement The proposed rule required the

submission or evidence that the alien entl'<lproncur participated either in the doy·to-day management or the new commercial enterprise or in policy formulation. Eight commenters objected to this requirement. The Senate Committee on the Judiciary 8pecifically endorsed a requirement of some degree or participation on the pari of the allen entrepreneur beyond mere passive lnveatment. 111e final rule requires evidence or auch participation. and . contoine odditlonallanguage to address rellrictlons placed on limited partners. Torseted Employment Areas

The proposed rule required the pelllloncr to provide evidence that the new commcrclol enterprise has· been e1tobllshed within a targeted employment area. The final rule carries over thlo requirement but also provide• for the aubmlsslon by the petitioner of a letter from an authorized body of o State government which certifies that a par11cular geographic or political eubdlvlslon within a nonrural area qualiflee u an area of high unemployment. Under the propOsed rule, the high unemployment criteria could only be applied to metropolitan etatlsticol are01 or to cities or towns with 8 population or 211,000 or n\ore. The final rule at8 CFR 204.6(i) allows for da.Jgnotlon or smaller areas within metropolitan statistical areas or within cillee or towns with a population ·of : 20.000 or more to bo designated as breas or high unemployment. ond the evldcntlory requirement of • letter from

a State aovernment entity is contained therein. The final rule also relaxes requirement• governing the ·source of data •bowing thot an area is one of high unemployment and permita petitioners to submit evidence. without obtaining State certificntlon, that a county within a metropolitan atotlstical area is one of high unemployment.

Removal of Conditions

The Service will publish a separate rule esta~lishing the prooe<:lures and criterio for removal of the conditional. basis of residence for employment · creation Immigrants. These procedures and criteria will take into account the requirements tel for1h in this rule. · ,

:~~:~::;;~:;~~~t~~a~font~=:~t viewa of the Interagency Working Croup discussed below. and the Service's conalderablo experience in the process for removing conditione established by the Immigration Marriage Fraud Amendments o£1086. ·

lnl~~gency Working Croup The Ofnce of Management and Budget

(OMB) has determined that. because of the employment creation provisions or 8 CFR ·204.6. this Ia a major rule within the meaning or tcclion l(b) of Executive Onder 12291. Under section a{ b) of E.O. 12291. OMB II exempting INS from preparing for thlt tpeclfic rule the regulatory Impact analysis ordinarily required for a major rule. However, in the interest or public policy onalysis and In order to asteu the economic impact of the employment creation visa program, the Department of Justice and the Service hove established an lnterosoncy working group chaired by the Service and composed of represcntotlves from the Departments of State, Commerce. Treasury.l\gricullure. and Labor and the Small Business Administration. The Service is now developing. In consultation with OMB. the formula by which the working group will collect and analyze data over a two. year period on auch economic and demographic aspects of the program as level of Investment. size of business; type of Industry. and Impact ori targeted employment areas. The working group will focue on Indicators of the pro'gram's succeu: auch as ettimates of how the program haa affected dilfei'J'Dt economic sectors end whether prograrjl lnvestmenta hovo created long-term employm~nt. As the Service devised the proposed and final rules. e.8encjes ·· within the workiqg group}:onlributed dots on such lulies as how·to define

· ta:raetcd 6rcoa and where to s~t . minimum Investment levels.

60906 Federal Register I Vol. 56, No. 230 I Friday. November 29. 19!n. I Rules and Regulations

years following notification ihat an immigrant visa Is immediately available for his or her use.

(g) Initial evidence-(1) Gencrol. Specific requirement-s for initial supporting documents for the various employment-based immigrant classifications are set forth in this section. In general, ordinury legible photocopies of such documents (except for labor certifications from the Department of Labor) will be ar.ceptable for initial filing end 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 de-monstrate this ability at the time the priority date is ~stablished 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 tOO 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 s ubmitted by the petitioner or requested by the Service.

(h) A/lens with extroordinory ability-tll An alien, or any person on behalf of the alien. may file an l-140 visa petition for classification under section 203(b}(l)(A) of the Act as an alien of extraordinary ability in the sciences, art&, 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 ond that his or her achievements have been recognized in the field of expertise. Such evidence shoJI include evidence of a one· limo 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 oward.s for excellence in the field of endeavor;

(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) Publlshed material about the alien in professional or major trada 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, dote. 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:

(lx) 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 bcneflclary's occupation. the petitioner may submit comparable evidence to establish tile bencficiary"s elisibility. · .

(5) No offer of employment requireq. 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 bow 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){l)(BJ or the Act may file an 1-140 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. Permanen~ 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 conti.nued employment unless there is good cause !or

. termination. (3)/nitial 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 achlevements 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 circ~lation) in the academic field:

Federal Register I Vol. 56, No. 230 t Friday. November 29. 1991 I Rules and Regulations 60907

(ii) Evidence that the alien has at least three years of experience in teaching and/or research In the academic field. Experience in leaching or research while working on an advanced desree will only be acceptable if the alien has acquired the degree. and If the teaching duties were such that he or she bad 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 letler(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 Slates employer. A labor certification Ia not required for this classification. The offer of employment shall be in the form of a letter from:

(A) A United State• university or institution of higher learning offering the alien a tenured or tenure-track leaching position in the alien's academic field;

(B) A United States university or inslitul.ion 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·a 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 1-140 for classification of an alien under section 203(b)(1)(C) of the Act as a mullir!alional 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 sroup 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. aJong with managerial and/or consulting services. and markets its accounllng services under an Internationally recognized name under an agreement with a worldwide coordinating organiz.ation 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 Stales 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 as.signment 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 declsionmaking; and

(D) Receives only general supervision or direction from higher level executives. the board of directors. or stocklwlders of the organization.

Managerial capacity means an assisrument 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 organi:zation. or a department or subdivision of tho organization;

(C) If another employee or other employees are directly supervised, has the 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 witbin tho organizational hierarchy or with respect to the function managed; and

(D) Exercises direction over the day­to-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 Stales.

Subsidiary means a flrm. 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 bo accompanied by a statement from an authorized olflcial of the petitioning United Stales employer which demonstrates that:

(A) If the alien is outside the United Stoles. 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 enlily. or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or

(B) If the alien Ia already in the United Stales 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 wae employed by the entity abroad for at least one year in a managerial or executive capacity:

(C) The prospective employer in the United States Ia 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 manosers. A first-line supervisor is not considered to be acting in a mana,gerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional.

(ii) Staffing levels. If 8laffing 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 directa or has directed.

[5) Offer of employment. No labor certification is required for this classification: however, the prospective employer in the United States must

60908 f'ederal Register I Vol. 56, No. 230 I Friday, November 29, 1991 I Rules and Regulations

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 oro liens of excepllonol ability. (I) Any United Stales employer may file o petition on Form 1-140 for classification of an allen 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. lf un 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 purnuant to section 203(b)(2)(B) of the Act. then the alien. or anyone in tho alien's behalf, may be the·petitioner.

(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 reqwred 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 10l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent Ia the minimum requirement for entry into the occupation.

(3) Initial evidence. The petition must be accompanied by documentation showing that the. alien is a profeuional holding an adva.nced 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 Stales 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 apecialty.

(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 foro particutor 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 Progrom-(i) General. Every petition under t.his 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 o1ien'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. (iii 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 sci,ences. orle, or business

I! exemption would be in the national interest. To apply !or the exemption, the petitioner must submit Form ETA-7508. Statement of Qualifications of Alien, In duplicate, as well as evidence to support the claim that such exemption would be in the national interest.

(1) Skilled workers. professionals, and other workers. (1) Any United States employer may file a petition on Form 1-140 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. Releva.nt 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 certi!lcation 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 execulcd·uncertifled 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 documentotion-[A) General. Any requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or

Federal Register I Vol. 56, No. 230 I Friday. November 29, 1991 I Rules and Regulations 60909

employers giving the name. address. and title or the trainer or employer, and 8

description of the training re<:eived or the experience of tbe &I fen.

(BJ SJtil/ed W'Orlrers. 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 N!quirements for Schedule A designation, or mefls the requirements for the lAbor Mark• t Information Pilot Program oc.:upation deaignation. The minimum requirements for this. classificati011 are at least two years of training or experience.

(CJ Professionals. If the petition is for a professional. the petition must be accompanied by evidence that the alien holds a United Stall!s baccalaureate degree or a foreign equivalent degree. and by evidence th1tthe alien is a member of the professions. Evidence or a baccalaureate degree shall be in the form of an official college or Wliversity record showing the date the baccalaureate de:gree 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 or a baccalaureate degree is-required for entry into the occupation.

(D) Other workers. U the petition is for an unskilled (other) worker. it must be accompanied by evidence that the alien meets any edu.:aticnal.training aod experience. and other requirements of the Ia bar certification.

(4) Differentiotins be/ween ski/fed and other workers The determination of whether a worker is a skilled or other worker will be based on the requirements of training aJJ.d(or elqlerience placed. on the job by the prospective employer, 8B certified by the Department of !Abor.ln the case of a Scl>edule A occupation or a shoring~ occupation within the Labar Market Pilot Program, the petitioner will be required to establish to the director that the job is a skUied job.. Le .. one which requires at least two years of trainin& and( or exparience.

(m) Religious workers-(t) An alien. or any person In behalf of the alien.. may file an l-360 visa petition for classificetion under section 203(b)(4) of' the Act as a section 10l(a)(:!7)(CJ special Immigrant religious worker. Such a petitioD may be filed by or for on Wen., who (either abroad or in the United States) far atleasrthe twa years · immediately preceding the filing ofthe petition has been a member of a religious denomination which bas a bona fide nonprofit religious organization In the United States. The

alien must be eomi'ng, to the United States solely for the putpase ol carrying· on the vacation of a minister of that religious denomination, working for tho organization at the organization's request in a professional capacity in a religious vocation or occupation for the organ.izalion or a bona fide organization whiclr 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 ather work continuously (either abroad or in the United States] far at least the twa· year period immediately preceding the filing of the petition. Petitions far professional workers and other workers must be filed an or before September 30. 1994.

(2) Definitions. As used in this section: Bono fide nonprofit religious

organization in the United States. means an organization exempt from taxation as described in section 501(clt3l of the Internal Revenue Code of 1986 as it relates to religious organizaliollJ. 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 affiliate(/ with tlte religious denominatiOn means an organizatfon which is closely assacialed with the religious denomination and which is exempt from taxation u described in section 501(cj(3) of' the Internal Revenue Code of 1988 8B it relates to religfous organiza lions.

Minister means an Individual duly authorized by a recognized religious denomination to condu.:l religious warship and to perform other duties usually performed by authorized members of the clergy of that rer~gion. l'n. all cases. there must be a reasonabfe connection between the activities performed end the religious calllng. of the minister. The term does not include a lay preacher oat authorized to pedorm. such duties.

Professional capacity means an activity in a re1igious vocation or occupation for which the minimum of a United States baccalaureate degree or • foreign equivalent degree Is required.

Religious denomination means a rell&ioua group or community of believers having some form of eccleslasticat government. a creed or statement of faith. some form or worship, a formal or Informal code of doctrine and discipline. religious services and ceremonies. established places of religious warship. religious

congregations. or comparable indicia of a bona· fide religious denomination. For the purposes of this definition. an inter· denomlnatior:at religious organization which is.exempt from taxation pursuant to section 501(cJ(3) of the fnternal Revenue Code of 1986 will be treated as a religious d"enominalion.

Religious occupation means an activity which relates to a traditional religious function. Examples of individuals Ill religious occupations include. but are not fUDited to. liturgical workers. religious instructors. religious counselors, cantors. catechists. workers in religious hospitals or religious health care facilities. missionaries. religious · translators. oc religious broadcasters. This group does not include janitors. maintenance workers. clerka, fund raisers, or persons solely involved in the solicitation or donations.

Religious vocation means a calling to religious life evidenced by the. demonstration of commitment practiced in the religiou denomination, such as the tal<ing of vows. Examples of individuols with a religiOus vocation include. but are nat limited Ia. nuns. monks. and religious brothers and sisters. .

(3) Initial evidence. Unless otherwise specified, each petition for a religious worker must be accompanied by:

(iJ Evidence that the organization qualifies as s nonprofit organization in the form of either:

(A} Documentarian showing that it is exempt From taxation fn accordance with section 501(cj(3] of the Internal Revenue Ca~e of 1986 as it relates to· religious organitations (in appropriate cases. evidence of the organization's assets and methods of operation and the · organization's papers al incorporation under applicable state law may be . requested): or

(B} Sucb documentation u is· required by tbe·lntemat-Revenue Service to · establish eligibility for exemption nnd'er section 501(c)(3J of the Internal· Revenue Code of 1986 as it relates to religious organizatiarn; end

(iit A lerter £rom an authorized official of the religious argani.zation in the. United States which (as applicable to the particula: alient establishes:

(At That. immediately prior to the filing a.f the ~tition, the allen bas tlie required twa years of membership in the denominoJio11" o.nd tho requited two years ot experience. in the religious vacation.. professional religious work. or other religious work: and

(BJThat.lfthealienls a miniater, be or she hoa acthorizotion to conduct religious walShip and to perform ather duties usually performed· by authorized

Federal Register I Vol. 56, No. 230 I Friday. November 29, 1991 I Rules and Regulations 60911 '

lawfully authorized to be employed in . the United States mc!uding. but not limited to. a cooditional resident. a temporary tesideA!. an asylee. a refugee. or an alieto remajnins in the United Statelt uader suspension ol deportation. This dettnition does aot include the alien entrepreneur. the alien entreprene\D''I spouse~ sons. or daughters. or ""Y llOfl.lJnmisrant alien.

!lura/ area ,.eans any area not within either a -tropoljtan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or lown bavifts a population of 20.000 or more.

Targeted employment area meaM an area which. at the time of investmenL is a rural area or an area which has experienced unemployment of at least 150 percent or the national average rate.

Troubled business means a business that has been in existence for at least two years. has Incurred a net loss for accountfn8 purposes [determined on the ba•is of generally accepted accounting principles) cluring the twelve- or twenty· four month period prior to the priority date on the alien entrepreneur's Form 1-526. and the 106s for such period is at least equal to twenty percent of the troubled business's net worth prior to such loss. For purposes of determining whether or not the troubled business has been in exlslence for two years. successors in interest to the troubled business will be deemed to have been in existence foo the aame period of time as the business they 8\ICceeded.

!ORequiredamoWIIsafcopitoL (11 General. Unlesa otherwise specified. the amount of capital necessary to make a qualifying invatment in the United States it one million United State~ dollars ($1.000,000).

(Z) Targefed employment orea. The amount of capital nece888J'Y to make a qualifying investment in a targeted employment area within the United States ia five hundred thousand United States doUars ($500.000).

(3) High Clllp/oyment area. The amount of capital necessary to make a qualifyln$ investmelll in a high employment area within the United States. as defined in section 203(b)(Sj(CJ(iif) of the Act, Is one million United Stales doUan ($1.000.000}.

(g) Multiple inw:stai$-{1) General The establishment of a new commercial enterprise may be used as the hssis of a petition for classification as an alien entrepreneur by more than one investor, provided each petitioning investor has invested or is actively in the process or investing the required amount for the area-in which the new commercial enterprise is principally doing business. and provided each lnd.lvidual

investment results in the creation of at least ten fulr-time positions for qualifying employees. The establis~ment of a new commercial enterprise may be used as tbe basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise. Including persons who are not seeking classl!ication under section Z03[b)(5) of the Act and non­natural persona. both foreign and domestic. provided that the source(s) of all capital invested is identified and. all invested capital has been derived by lawful meana.

(2) Employment creation allocation. The total numbl!r of full-time positions created for qualifyln$ employees. shall be allocsted solely to thos~ alien entrepreneurs who have used the establishment of the new commercial enterprise as the basts o[ a petition on Form I-S26. No- allocation need be made arnoni persollS not seeking classlfication under section 2.03(b}{5) of the Act or among non-natural persons. either foreign or domestic. The Service shall recognize any reasonable agreement made among tl\e alien entrepreneurs in regard to the identification and allocation of such qualifying positions.

(b) Establishment of a new commercial enterprise. The establishment of a new commercial enterprise may constat of'

(1) The creation of an original business;

(2) The purchase of an existm, business and simulfaneous or subseq!M!nt restructuring or reorganization such that & new commercial enterprise results: or

(3) The expansion of an existing business tluough the investment of the required amonnt.so that a substantial ch1Jll81! in the net worth or number of employees retults from the investment of capital Substantial change means a 40 percent U.crease either in the net worth, or in the number of empl<>yecs. so that the new net worth. or number of employees amounlll to at least140 percent of the pre...xpaosion net worth or number of employees. Establishment of a new commercial enterprise in this manner does ool exempt the petitioner from the requirements of 8 CFR ~-6UJ. (2) and [3) relating to the required amount o£ capital investment and the creation of full-time employment for ten qualifying employees.. In the case of a capital investment in. a troubled· . business. employment creation may meet tbe Cliteria ·set forth in 8 Cf'R 204.6(j](3)(ii). . . . .

(i) srate desig.naJion of a high unemployment orca. The slate · government of any state of the United

States may designat·e a particular geographic or political subdivision located wit&ina metropolitan statistical area or within a city or town having a population ol20,000 or more witbn such state as an area ol high unemploymen) (at least 150 percent of the national a-verage rate). Evidence. ol such designation. including's description or the boundaries of the geographic or politicaf subdivision and the method or methods by which the unemployment statistics were obtained, may be provided t<> a p.rospective alien entrepreneur fOr submission with Form 1-526. ~fore any such designation is made. an offlcial olthe state must notify the Associate Commissioner for Examinations of the agency. board. or other appropriate governmental body of the state which sbaU be delegat•d the authority to certify that the geographic or political subdivision is a high unemployment area.

(j) Initial evidence til occompcny petition. A petition submitted for cJassi!ication as an alien enlrepreneur must be accompanied by evidence that the allen bas invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 quaHfying emp[oyees. The petitioner may be required to suomi!' information or documentation lllat the Service deems appropriate in addition to that listed below.

(1) To show that a new commercial enterprise has been established by the petitioner in the United States. t'le · petition mast be accompanied by:

(i') As applicable, articles of incorporation; certificate of merger or consolidation, partnersl\lp agreement. certificate or limited partnership. joint venture agreement, business trust agreement. or other similar organizational document for the new commercial enterprise:

(ii) A cerlilkata evidencing a&thority to do busineso in a state or municipality or, if the form of the business does not require any such certificate or the State or municipality does not issue such a certificate, a statement to that effect: or

(iii} Evidence that. as of a date certain after November 29. 1990. the required amount of capital for the are& In which an enterprise is located has been transfer:red to an exis~ business. and that the investment has resulted ln a subsianlial increase In the net worth or number of em'plo'yees of I be business to which the capital was transferred. This evidence must be in the form ot stocli purchase agreements .. ipvestmeot . agreements. c'ertified financial reports.

6091Z· · Federal Register I Vol. 56. No. 230 I Friday, November 29, 1991 I Rules &l'\d Regulations

payroll records, or any similar lnatruments. agreements. or documents evidencing the Investment in the commercial enterprise and the resulting substantial change In the net worth, number or employees. .

(2) To show that the petitioner has lnvcated or Is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose or generating 8 return on the copriol placed at risk. Evidence of mere

. Intent to Invest. or of prospective lnveotment arrangements entailing no present commitment, will not suffice to show that the petitioner Ia active.ly In the. process of investing. 'n!e alien m~at 1how actual commitment of the required amount of capital. Such evidence may Include, but need not be limited to:

(I) Bank stllement(s) showing amount(oj deposited in United States buslneu accolipt(s) for the enterprise;

(II) Evidence of assets which have been purchased for use In the United Stotee enlerpri,e, Including invoices, sole~ rc'celpta, And purchase contract& containing sufficient information to Identify auch assets, their purchase costs. do to or purchase, and purchasing entity:

(Ill) Evidence of property transferred from abroad for useln the United State• enterprise. Including United State.s Cuttoma Service commercial entry documenll, bills of lading, and franait Insurance policieo containing ownership Information and sufficient information to Identify the property and to indicate the fair market value of such property;

(tv) Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for tho rea of 81oclc (voting or nonvoting, common or preferred). Such stock may not Include terms requiring the new commerciAl enterprise to redeem it at the holder's requeall or

(v) Evidence of any loan or mortgage agreement, promissory note, security agreement. or other evidence or borrowing which is secured by assets of the petitioner. other than those or the new commercial enterprise. and for which the petitioner I• personaUy and primarily liable.

(3) To ohow that the petitioner has lnveoted, or II actively In the procesa of lnveating. capital obtained through lawful meant, the petition must be accompanied. as applicable, by:

(I} Foreign bue,nes.s resi.stration records;

(II) Co,.Porate, Partnership (or any other entity In any form which has flied In any country o• aubpivislo11thereor any return described in this subpart).

and personal tax retumo including Income. franchise. prope"y (whether real. personal, or Intangible). or any other tax retuma of any kind filed within five years, with any laxing jurisdiction in or outside the Un.iled States by or on behalf or the petitioner;

(Ill) Evidence ldenllfylng any other source(s) or capital; or

(lv) CerllRed copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental adminlstrollve proceedings, and any private civil actions (pending or otherwloe) involving monetary judgments against the petitioner from any court In or outtlde the United States wl~~nth• p .. t nneen years.

(4)/ob creotion-{i) Cenerol. To show that a new commercial ente.rprise wiU create not fewer than ten (tO) full·lime poolUona for qualifying employees, the petition muot be accompanied by:

(A) Documentation consisting or photocopies of relevant tax records, Form l-9, or other olmllar document& for len (10) qualifying employees. if such employees have already been hired following the establishment of the new commercial enterprise; or

(0) A copy of a comprehensive buslneu plan showing that. due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employeea wW ruul~ Including approximate dates, within the next two yeara. ilnd when ouch employees will be hired.

(U) Troubled business. To show that a new commercial enterprite which has · been eotabli•hed through a capital . lnveotmentln a troubled business meets the olltutory employment creation · req~Iremcnt, the petition must be accompanied by evidence that the number of existing employees is being or wl.ll be maintained at no less than the pre·lnvcstmentlevel for a period of at leoat two years. Photocopies of tax records. Formo 1-9. or other relevant documenll for the qualifying employees and a comprehenaive business plan ehall be tubmltted In aupporl of the petition.

(5) To ohow that the petitioner Is or will be engaged in the management of the new commercial enterprise, either through the exercioe of day·to-<lay managerial control or through policy formulation, as opposed to maintaining a purely pesslve role In regard to the lnvcotmcnl, tho pe tition must be accomP,anlcd by:

(I) A s,lotement of tho position title that the petitioner haa or will have In the new enterprise and a complete deacriptlon of the position's dulles:

(II) Evidence that the petitioner is a corporete officer or a meQiber of the corporate board or directors: or

(Iii) If the new enterprise It a partnership, either limited or general, evidence that the petitioner Ia engaged In either direct management or policy making acllvilies. For purposes of this section, If the pelllloner Is a limited partner ond the limited partnership agreement provides the petitioner with· certain rights, powers, and duties normally granted to limited partners under the Uniform Umited Partnership Ac~ the petitioner will be considered sufficiently engaged In the management of the new commercial enterprise.

(6)1f applicable, to show lhatthe new commercial enterprise has created or wiU create employment in a targeted employment area. the petition must be · accompanied by:

(i) In the c.ooe of a rural area, evidence thotthe new commercial enterprise ia principally doing business within a civil jurisdiction not located within any standard metropolitan statistical area as designated by the Office of Management and Budget, or within any city or town having a population of 20,000 or more as baaed on the most rocent decennial cenaus of the United States; or

(II) In the case of a high unemployment area:

(A) Evidence thalthe metropolitan otaliotical area. the apecllic county within a metropolitan otatistical area, or the county In which a city or town with a population of 20.000 or more ia located. In which the new commercial enterprioe Ia principally doing business has experienced an average unemployment rate or 150 percent of the· national average rate; or

(B) A letter from an authorized body of the government of the stale In which .the new commercial enterprise Is located which corllRes that the geographic or political aubdivision or the metropolitan otollstlcal a.rea or or the city or town with a population of 20,000 or more In which the enterprise ia principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.8{1).

(k) Oeci1ion. The petitioner will. be notified· of the decision. and. If the petition to denied. of the reasono for the dental and or the petllloner'o ri.ght of appeal to the Associate Con)missioner for Hxamlnouona tn accordance with the provision• or partl03 or this chapter. The declalon must specify whether or not the new commercial enterprise Is principally doing busineu within a , targeted empl9ymont area.

Federal Register I Vol. 56, No. 230 I Friday, November 29, 1991 I Rules and Regulations 609i3

(I) Disposition of approved petition. The approved petition will be forwarded to the United States consulate selected by the petitioner and Indicated on the petition . .If a consulate has not been designated. the petition will be forwarded to the consulate having · jurisdicti-on over the place of the petitioner"s last residence abroad. If· the petitioner is eligible for adjustment of status to conditional pennanent residence, and if the petition Indicates that the petitioner intends to apply for such adjostment. the approved petition will be retained by the Service for consideration in conjunction with the application for adjus tment of status.

Dated: November 22.1991. Cone McNary, Commil'sioner.lmmigrotfon and Noturolizalion 58rvice. (FR Doc. 91-28586 File<lll-27-91; 8:45 em) •wMO coor .,., .. ,...,

DEPARTMENT OF TRANSPORTATION

Federal Aviation AdmlnlatTaUon

14 CFR Part 39

(Doc:l!et No. 10-NII-t7-AD; Amendment • 1063; AD 11·22-43)

Alrworthlneaa Directives; McDonnell Douglas !Model DC-9 Serlea Airplane-. Including C..9 (Military); Model DC-t-80 (MD-80) Senea Airplanes; and Model MD-88 Airplanes

AOEHCr. Federal Aviation Administration (FAA), DOT. ACTION: Final rule.

SUMMARY: This amendment adopts a new airworthiness directive (AD), applicable to McDonnell Douglas Model DC-9 series airplanes, which requires Installation of a "tailcone unsafe" indication system and modification or the tailcone release actuating mechanism shroud. This amendment is prompted by instances or tailcone departure from the aiJplane during landing roll. This condition. if not corrected!, could result In a hazard to incoming or departing aircraf~ particularly during night or low visibility conditions. DATU: Effective January 3. 1992.

The incorporation by reference of certain publications listed ln the regulations is approved by the Director of the Federal Register as of January 3. 1992. ADDRESSEs: The applicable service Information may be obtained from McDonnell Douglas Corporation, 3855 Lakewoood Boulevard, Long Beach,

California 90801: Attn: Business Unit Manager, Technical Publications & Technical Administration Support C1-L5B (4~). This information may be examined at the FAA. Northwest Mountain Region, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton. Washington: or at the Los Angeles Ai1"1;raft Certification Office, 3229 East Spring Street. Long Beach, California: or at the Office or the Federal Register. 1100 L.Street NW., Room 8401, Washi11gton, DC. FDR FURTHEJIINFDRMAT10H CONTACT: Mr. Andrew R. Gfrerer, Aerospace Engineer. FAA. Northwest Mountain Region, Los Angeles Airtt'aft Certification Office. 3229 East Spring Street, Long Beach, California 9080~ 2425; telephone (zt3} 988-6338. IUPPUMSNTAIIY INFORMATION: A proposal to amend Part 39 of the Federal Aviation Regulations to Include a.n airworthiness directive, applicable to McDonnell Douglas Model DC-9 series airplanes. i,ncluding C-9 (Military): Model DC-&-«~ series airplanes and Model MJ>-:88 aiJplanes, which requires installation of a "tail cone unsafe" Indication system and modification of the tallcone release actuating mechanism shroud, was published as a notice of prpposed rulemaking (NPRM) In the Federal Register on July 10. 1990 (55 FR 28223}, and as a Supplemental NPRM on April 26. 1991 (56 FR 19329).

Interested persona have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter 1upported the proposed rule in ila entirety.

Two commenters pointed out that a conflict exists between McDonnell Douglas Serilice Bulletin 5$-199, Revision 2, dated March 16. 1989, which ls referenced In this proposed rule, and McDonnell Douglae Service Bulletin 5:l­

·24S, which Is reference<! in a separate proposed rule (Docket 91-NM-13~AD (56 FR 37169, August 5, 1991)J. Furthennore, McDonnell Douglas Service Bulletin 5$-245 references McDonnell Douglas Service Bulletin 53- · 163, Revision 3, which describea the Installation of suppori filling P/N 4927640-503 and is the subJect of another proposed rulemaking action. Service Bulletin 5$-199, Revision 2, describes the installation of support fitting P/N 5958379-SOland Is the · subject of this final rule. Tlie · commenters requeste<! chirification on .· this point. '!:he FAA: concurs that a · conflict does exist. Subsequent to the Issuance of the NPRM related to this AD· action, the FAA·reviewed and approved

Revision 3 of McDonnell Douglas Service Bulletin 5$-199, dated July 15, 1991. The FAA has also reviewed and· approved Revision 1 or McDonnell · Douglas Service Bulletin 53-245; <Ia ted June 12, 1991, which deletes all references to McDonnell Douglas · Se'rvice Bulletin 53-163. The final ruls for tlils action has been revised to require modification of the tailcone release handles in accordance with Revision 3 of Service Bulletin 53-i99. Airplanes that have been modified ln accordance with the original issue: Revision 1. or Revision 2 or Servfce Bulletin 53'-199 will require no additional work.

Three ciommenters objected to the addition of a shroud over the taitcone · release actuating mechanism on Model DC-9-80 series airplanes. These commenters slated that there Is no guidance to accomplish the modification and that there is no justification :for the shroud. In addition, one of these commenters stated that there has never been a report of the tailcone release actuating mechanism being activated during night on any of the airplanes In its Oeet. and that it is highly unlikely that there ever will be. The FAA does not concur that the rule Is not justified with regard to Model CD-9-80 series aiJplanes. As stated In the preamble to · the Notice, there have been at least two Incidents involving Model DC-9-«l series airplanes in which the tailcone release mechanism was inadvert:ently activated during Right. The intent or the modification required by this Ad action is to preclude such activations from occurring. With regard to the commenters· concerns over the lack o( available guidance for accomplishing the modification, the FAA concurs that no eervice information has been ~ssued yet which contains specific modification procedurea. However, the 24-month compliance period provides ample time. such that a suitable modification can be developed by affected operators and approved by the FAA.

One commenter requested lhnt the · rule be revised to extend the compliance time for the required modification of Model DC-&-«~ series airplanes ·d ue to the increased downtime, work hours. and costs that will be required. The FAA does not concur with this request. In developing an appropriate com pi lance time, the·FAA considered not only the degree of urgency associated with addressing the subject unsafe condllion. · but the time necessary to develop a · m!)dificatlon, provide parts. aitd· eecoritplishing installation during oper4tors' normal mainlenanet: schedules. The compliance time, Rs