UNCLASSIFIED (U)

9 FAM 502.4

EMPLOYMENT-BASED IV CLASSIFICATIONS

(CT:VISA-930; 08-22-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 502.4-1 Employment-based iv classifications Overview

(CT:VISA-433; 08-09-2017)

a. Every fiscal year, at least 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of U.S. immigration law. Employment-based IVs are divided into five preference categories. Certain spouses and children may accompany or follow-to-join employment-based immigrants. See 9 FAM 502.5 for Fourth Preference IV Classification.

b. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to create higher wages and employment rates for workers in the United States, and to protect their economic interests. The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that employment-based immigrant visas be adjudicated.

9 fam 502.4-2 employment first preference (Priority worker) IV Classification

9 FAM 502.4-2(A) Related Statutory and Regulatory Authority

9 FAM 502.4-2(A)(1) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

INA 101(a)(44) (8 U.S.C. 1101(a)(44)); INA 203(b) (8 U.S.C. 1153(b)).

9 FAM 502.4-2(A)(2) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

8 CFR 204.5(h)(2)-(3); 22 CFR 42.32(a).

9 FAM 502.4-2(A)(3) Public Law

(CT:VISA-1; 11-18-2015)

Visa Waiver Permanent Program Act, Public Law 106-396, Sec. 302.

9 FAM 502.4-2(B) Priority Workers Introduction (Employment First Preference IV Classification)

(CT:VISA-930; 08-22-2019)

a. Defining Priority Workers: The statute designates the following aliens as priority workers who may be entitled to status as employment-based first preference applicants:

(1) Aliens with extraordinary ability (see 9 FAM 502.4-2(C) below);

(2) Outstanding professors and researchers (see 9 FAM 502.4-2(D) below); and

(3) Certain multinational executives and managers (see 9 FAM 502.4-2(E) below).

b. Petitions for Priority Workers:

(1) DHS must approve petitions in all of the above categories.

(2) Aliens of extraordinary ability may file petitions with DHS on their own behalf. Employer-sponsored immigrants must be beneficiaries of approved petitions filed by the employer.

(3) An approved petition is prima facie evidence that the alien qualifies for priority worker status. Your review of the applicant's qualifications in one of the categories above should focus on confirming the truthfulness of the information contained in the petition and identifying potential fraud, not on re-adjudicating the petition. For additional guidance on when to return a petition to DHS for potential revocation, contact your country desk officer in VO/F.

c. Spouse and Children of Priority Workers: The spouse or the child of a marriage which existed at the time of the principal aliens admission into the United States or adjustment of status to that of Legal Permanent Resident (LPR) is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired subsequent to the principal aliens admission or adjustment of status to that of LPR is not entitled to derivative status. Further information regarding following-to-join eligibility of derivative spouse and children is available at 9 FAM 502.1-1(C)(2).

9 FAM 502.4-2(C) Aliens With Extraordinary Ability (Employment First Preference IV Classification)

(CT:VISA-192; 09-28-2016)

a. Defining Extraordinary Ability:

(1) To be considered as an alien with extraordinary ability, the alien must have sustained national or international acclaim. The aliens accomplishments in the field of science, art, education, business, or athletics must be recognized in the form of extensive documentation. The alien must be seeking to enter the United States to continue work in the field, and the entry of such alien must substantially benefit prospectively the United States.

(2) 8 CFR 204.5(h)(2) defines extraordinary ability as follows: Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the top of the field of endeavor.

b. Evidence of Extraordinary Ability:

(1) DHS regulations (8 CFR 204.5(h)(3)) state the documentary evidence that is to be submitted along with the petition. Such evidence must include:

(a) Evidence of a one-time achievement (that is a major, internationally recognized award); or

(b) At least three of the following:

(i) Evidence of receipt of a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor;

(ii) Evidence of membership in associations which require outstanding achievements of their members, as judged by recognized experts;

(iii) Published material in professional or major trade publications or major media about the aliens work;

(iv) Evidence of participation on a panel, or individually, as a judge of the work of others in the field;

(v) Evidence of original scientific, scholarly, artistic, or business-related contributions of major significance;

(vi) Evidence of authorship of scholarly articles in professional journals or other major media;

(vii) Evidence of the display of the aliens work in exhibitions or showcases;

(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments having a distinguished reputation;

(ix) Evidence of high salary or high remuneration 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.

(2) If the above standards do not readily apply, the petitioner may submit comparable evidence to establish eligibility.

c. Labor Certification/Job Offer (Aliens of Extraordinary Ability): Although no offer of employment (including a labor certification) is required, the alien must include with the petition convincing evidence that he or she is coming to continue work in the area of expertise. Evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments, such as contracts, or a statement from the beneficiary detailing plans for continuing work in the United States.

9 FAM 502.4-2(D) Outstanding Professors and Researchers (Employment First Preference IV Classification)

(CT:VISA-97; 03-21-2016)

a. Defining Outstanding Professors and Researchers: An alien may qualify as a priority worker outstanding professor or researcher if the alien:

(1) Is recognized internationally as outstanding in a specific academic area;

(2) Has at least three years of experience in teaching or research in the academic area; and

(3) Has the required offer of employment (see 9 FAM 502.4-2(D) paragraph c below).

b. Evidence of Outstanding Achievement: The Department of Homeland Security regulations (8 CFR 204.5(i)(3)) indicate the evidence required in submitting a petition for classification as an outstanding professor or researcher. Such evidence must include evidence of international recognition as outstanding in the specific academic area.

(1) Generally, this evidence must consist of at least two of the following:

(a) Documentation of receipt of major international prizes or awards for outstanding achievement in the academic area;

(b) Documentation of the aliens membership in associations in the academic field, which require outstanding achievements of their members;

(c) Published material in professional publications written by others about the aliens work;

(d) Evidence of participation on a panel, or individually, as the judge of the work of others in the same, or an allied, academic field;

(e) Evidence of original scientific or scholarly research contributions; or

(f) Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

(2) If the above standards do not readily apply, the petitioner may submit comparable evidence to establish eligibility.

c. Labor Certification/Job Offer (Outstanding Professors and Researchers): Aliens coming to the United States as outstanding researchers or professors do not require labor certification. However, such aliens must have a letter from a(n):

(1) U.S. university or institution of higher learning offering the alien a tenured or tenure-track teaching or research position in the academic field; or

(2) Department, division, or institute of a private or non-profit employer offering the alien a comparable research position in the academic field. The department must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in the academic field.

9 FAM 502.4-2(E) Certain Multinational Executives and Managers (Employment First Preference IV Classification)

(CT:VISA-1; 11-18-2015)

a. Defining Multinational Executives and Managers: An alien may qualify as a priority worker multinational executive or manager if, during the three year period preceding the time of the aliens application for classification and admission into the United States:

(1) The alien has been employed for at least one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof; or

(2) The alien has been an employee of INTELSAT or any successor or separated entity of INTELSAT and has maintained lawful nonimmigrant status as a G-4 for at least one year; and

(3) The alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

b. Defining Other Terms Related to Multinational Executives and Managers:

(1) Defining Affiliate: The term affiliate as used in this section 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 entirely owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity; or

(c) In the case of a partnership that is organized in the United States to provide accounting services, along with managerial and/or consulting services, and markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services is considered to be an affiliate of the U.S. partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the U.S. partnership is also a member.

(2) Defining Doing Business: 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.

(3) Defining Executive Capacity: The term executive capacity as defined in INA 101(a)(44)(B) of the Immigration and Nationality Act means an assignment within an organization in which the employee primarily:

(a) Directs the management of the organization or a major component or function of the organization;

(b) Establishes the goals and policies of the organization, component, or function;

(c) Exercises wide latitude in discretionary decision-making; and

(d) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

(4) Defining Managerial Capacity:

(a) Managerial capacity as defined in INA 101(a)(44)(A) means an assignment within an organization in which the employee primarily:

(i) Manages the organization, or a department, subdivision, function, or component of the organization;

(ii) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) 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 within the organization hierarchy or with respect to the function managed; and

(iv) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

(b) A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of supervisory responsibilities unless the employees supervised are professional.

(5) Defining Multinational: Multinational means that the qualifying entity, or its affiliate or subsidiary, conducts business in two or more countries, one of which is the United States.

(6) Defining Subsidiary: Subsidiary is defined as a firm, corporation, or other legal entity of which a parent 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.

c. Labor Certification/Job Offer (Multinational Executives and Managers): No labor certification is required for aliens in this classification. However, the prospective U.S. employer must furnish a job offer in the form of a statement which indicates that the alien will be employed in the United States in a managerial or executive capacity. The letter must clearly describe the duties to be performed.

9 FAM 502.4-3 Employment Second Preference IV Classification

9 FAM 502.4-3(A) Related Statutory and Regulatory Authorities

9 FAM 502.4-3(A)(1) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

INA 203(b) (8 U.S.C. 1153(b)); INA 203(d) (8 U.S.C. 1152(d)).

9 FAM 502.4-3(A)(2) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

22 CFR 42.32(b).

9 FAM 502.4-3(A)(3) Public Law

(CT:VISA-1; 11-18-2015)

Nursing Relief Act, Public Law 106-95, sec. 5.

9 FAM 502.4-3(B) Professionals Holding Advanced Degrees (Employment Second Preference IV Classification)

(CT:VISA-553; 04-02-2018)

a. Qualification for Classification: An alien may qualify as an employment-based second preference immigrant if the alien is a member of the professions holding an advanced degree or the equivalent. The alien must be the beneficiary of a petition approved by the Department of Homeland Security. (See 9 FAM 502.4-3(C).)

b. Evidence of Professional Status, Advanced Degrees: Evidence to establish an alien as a member of the professions holding an advanced degree should be in the form of the following:

(1) An official academic record showing possession of an advanced degree (or foreign equivalent); or

(2) An official academic record showing possession of a baccalaureate degree (or foreign equivalent); and

(3) A letter from current or former employer(s) showing at least five years of progressive post-baccalaureate experience in the specialty.

c. Definitions: USCIS uses the following definitions when reviewing employment-based second preference petitions:

(1) Advanced Degree: Advanced degree means any U.S. academic or professional degree (or foreign equivalent degree) above that of baccalaureate.

(2) Doctorate Degree Equivalent: In the context of employment-based second preference immigrant visa classifications (Professionals with Advanced Degrees), if a doctorate (or a foreign equivalent degree) is normally required by the specialty, the alien must possess such a degree. Note that DHS will not consider a combination of education and experience to be equivalent to a doctorate.

(3) Masters Degree Equivalent: In the context of immigrant visa classification for E2 professionals with advanced degrees, the conference committee report (H.R. Rep. No. 101-955) states that a bachelor degree plus five years of progressive experience in the professions should be considered as the equivalent of a master's degree.

(4) Profession: INA 101(a)(32) defines "profession" (in the context of employment-based immigrant visas) as including but not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. DHS regulations also include any occupation for which a U.S. baccalaureate degree (or foreign equivalent) is the minimum requirement for entry into the occupation.

9 FAM 502.4-3(C) Aliens of Exceptional Ability (Employment Second Preference IV Classification)

(CT:VISA-1; 11-18-2015)

a. Defining Exceptional Ability:

(1) An alien may qualify as an employment-based second preference immigrant if the alien has exceptional ability in the sciences, arts, or business, which will substantially benefit prospectively the national economy, cultural, or educational interests, or welfare of the United States. The aliens services in the sciences, arts, or business must be sought by an employer in the United States.

(2) "Exceptional ability" has been defined as something more than what is usual, ordinary, or common, and requires some rare or unusual talent, or unique or extraordinary ability in a calling which, of itself, requires that talent or skill. Individuals must have attained a status in their field wherein contemporaries recognize exceptional ability.

b. Evidence of Exceptional Ability:

(1) The possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning or a license to practice, or certification for a particular profession or occupation, should not, by itself, be considered sufficient evidence of such exceptional ability.

(2) To establish evidence of exceptional ability, the petition must be accompanied by at least three of the following:

(a) An official academic record showing 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) Letter(s) from current or former employer(s) showing evidence the alien has at least ten years of full-time experience in the occupation;

(c) A license to practice the profession or certification for a particular profession or occupation;

(d) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

(e) Evidence of membership in professional associations;

(f) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations; or

(g) Comparable evidence to establish the beneficiary's eligibility.

9 FAM 502.4-3(D) Petitions (Employment Second Preference IV Classification)

(CT:VISA-825; 06-03-2019)

a. E2 Petitions - Who May File: Any U.S. employer may file a petition for classification of an alien under INA 203(b)(2) as an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is claiming exceptional ability and seeking an exemption from the job offer requirement under INA 203(b)(2)(B), then the alien, or anyone on the alien's behalf, may file the petition.

b. E2 Petitions - Where to File: Petitions must be filed with the appropriate DHS service center in accordance with USCIS instructions for the Form I-140, Immigrant Petition for Alien Worker.

c. E2 Petitions Disposition of Petition: If the beneficiary is outside of the United States, or in the United States but will apply abroad, DHS will forward the approved petition to the National Visa Center.

d. Significance of Approved Petition: The alien must be the beneficiary of a petition approved by the Department of Homeland Security. An approved petition is prima facie evidence that the alien qualifies for E2 status. Your review of the applicant's qualifications should focus on confirming the truthfulness of the information contained in the petition and identifying potential fraud, not on re-adjudicating the petition.

9 FAM 502.4-3(E) Labor Certification/Job Offer (Employment Second Preference IV Classification)

(CT:VISA-553; 04-02-2018)

a. Consular Officers Responsibility in Labor Certification Cases: If the applicant is applying for a visa on the basis of a labor certification, you must determine that the applicant has the professional or occupational qualifications on which certification is based.

b. National Interest Waivers of Labor Certification/Job Offer:

(1) Although a labor certification is generally required for the second preference category, USCIS may waive the labor certification requirement if it determines that such waiver is in the national interest. A waiver is considered to be in the national interest if the petitioner can establish, based on Matter of In Re: New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998) that:

(a) The alien must seek employment in an area that has substantial intrinsic merit;

(b) The waiver request is not based solely on local labor shortage, but rather the proposed benefit to be provided will be national in scope; and

(c) It must be demonstrated that the national interest would be adversely affected if the employer is required to proceed with the labor certification process.

(2) Certain Physicians: Section 5 of Public Law 106-95, the Nursing Relief Act, establishes special rules for national interest waivers filed by or on behalf of physicians who are willing to work in an area of the United States designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals or at facilities operated by the Department of Veterans Affairs (VA). While it is unlikely that an alien applying abroad will have completed the necessary licensing and certification requirements, a physician living abroad who has met the necessary requirements may seek a national interest waiver of the job offer requirement. The legislation directs the Secretary of the Department of Homeland Security to grant a national interest waiver of the job offer requirement to any alien physician who:

(a) Agrees to work full-time in a clinical practice for the period fixed by the statute (generally five years; three if the petition was filed prior to November 1, 1998);

(b) Will provide service in HHS Medically Underserved Areas, Primary Medical Health Professional Shortage Areas, or Mental Health Professional Shortage Areas; or a VA facility; and

(c) Provides a determination from HHS, VA, or another federal agency having knowledge of the physician's qualifications that the physician's work is in the public interest.

9 FAM 502.4-3(F) Spouse and Children (Employment Second Preference IV Classification)

(CT:VISA-1; 11-18-2015)

The spouse or the child of a marriage which existed at the time of the principal alien's admission into the United States is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired subsequent to the principal alien's admission is not entitled to derivative status. Further information regarding following-to-join eligibility of derivative spouse and children is available at 9 FAM 502.1-1(C)(2).

9 FAM 502.4-4 Employment Third Preference IV Classification

9 FAM 502.4-4(A) Related Statutory and Regulatory Authority

9 FAM 502.4-4(A)(1) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

INA 101(a)(32) (8 U.S.C. 1101(a)(32)); INA 203(b)(3) (8 U.S.C. 1153(b)(3)); INA 203(d) (8 U.S.C. 1153(d)); INA 212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)).

9 FAM 502.4-4(A)(2) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

22 CFR 42.32(c); 8 CFR 204.5(l)(2).

9 FAM 502.4-4(A)(3) Public Law

(CT:VISA-1; 11-18-2015)

District of Columbia Appropriations, Fiscal Year 1998, Public Law 105-100, sec. 203(e)(1).

9 FAM 502.4-4(B) Employment Third Preference IV Classifications

(CT:VISA-192; 09-28-2016)

a. Defining Skilled Worker: DHS regulations 8 CFR 204.5(l)(2) define a skilled worker as one who, at the time of petitioning, is capable of performing skilled labor (requiring at least two years training or experience) not of a temporary or seasonal nature, and for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision. (See INA 203(b)(3)(A)(i).)

b. Defining Profession: INA 101(a)(32) defines profession as including, but not limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. DHS has also held that an occupation may generally be considered to be a profession within the meaning of INA 101(a)(32) if the attainment of a baccalaureate degree is usually the minimum requirement for entry into that occupation.

c. Defining Other Worker: DHS regulations define other worker to mean a qualified alien capable, at the time of petitioning, of performing unskilled labor, requiring less than two years training, not of a temporary or seasonal nature, and for which there are no qualified workers available in the United States.

9 FAM 502.4-4(C) Employment Third Preference Labor Certifications, Petitions

(CT:VISA-553; 04-02-2018)

a. Consular Officers Responsibility in Labor Certification Cases: You must not issue an immigrant visa to any third preference employment-based immigrant until you are in receipt of an approved petition accompanied by a labor certification granted by the Department of Labor (see the Foreign Labor Certification Web Site), or evidence that the aliens occupation is on the Department of Labors Schedule A (see 20 CFR 656.15). Prior to issuance, you must determine that the applicant has the professional or occupational qualifications on which certification is based.

b. Significance of Approved Preference Petition: A certification under INA 212(a)(5)(A) is included in the approval of the preference petition. The Department of Homeland Security is responsible for determining the eligibility of an alien for preference immigrant status. You should not re-adjudicate the petition, but rather should review the petition to determine whether:

(1) The supporting evidence is consistent with the approval;

(2) There was any misrepresentation of a material fact; and

(3) The alien meets the requirements of the employment offered.

9 FAM 502.4-4(D) Spouse and Children of Employment Third Preference Cases

(CT:VISA-930; 08-22-2019)

The spouse, or the child of a marriage which existed at the time of the principal aliens admission into the United States as a Lawful Permanent Resident (LPR), or the alien's adjustment of status to that of LPR, is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired subsequent to the principal aliens admission as an LPR, or the alien's adjustment of status to that of LPR, is not entitled to derivative status. Further information regarding following-to-join eligibility of derivative spouse and children is available at 9 FAM 502.1-1(C)(2).

9 fam 502.4-5 employment fifth preference IV classification (Investors, employment creation)

9 FAM 502.4-5(A) Related Statutory and Regulatory Authorities

9 FAM 502.4-5(A)(1) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

INA 203(b)(5) (8 U.S.C. 1154(b)(5)); INA 212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)).

9 FAM 502.4-5(A)(2) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

8 CFR 204.6(e); 22 CFR 42.32(e).

9 FAM 502.4-5(A)(3) Public Law

(CT:VISA-1; 11-18-2015)

Public Law 102-395, sec. 610; Public Law 111-83, sec. 548; Public Law 112-176, sec. 1.

9 FAM 502.4-5(B) Entitlement to Employment Fifth Preference Status (Investors, Employment Creation)

(CT:VISA-930; 08-22-2019)

a. Investor, Employment Creation Status: An alien may qualify as an employment creation immigrant and may be entitled to employmentbased fifth preference status if the:

(1) Alien seeks to enter the United States to create a new commercial enterprise;

(2) Commercial enterprise was established by the alien;

(3) Alien made the investment after November 29, 1990, or the alien is actively in the process of investing;

(4) Capital invested is at least $1,000,000 (or $500,000 in targeted employment areas) (see 9 FAM 502.4-5(B) paragraph e below); and

(5) Enterprise benefits the U.S. economy and creates fulltime employment for not fewer than 10 U.S. citizens or aliens lawfully authorized to be employed in the United States (excluding the investor and the investors spouse or children).

b. Defining Terms Related to Employment Fifth Preference Status:

(1) Defining Capital: DHS regulations define capital as cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital must be valued at fair market value in U.S. dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) are not considered capital. The U.S. District Court in Zhang, et al. v. United States Citizenship and Immigration Services, et al., No. 15-cv-995 (D.C. Nov. 30, 2018) held that EB-5 investment amounts sourced from uncollateralized loans qualified as cash contributions rather than indebtedness to the new venture, and therefore qualified as "capital" under DHS regulations. Due to potential ongoing litigation or changes, for any questions, please contact VO/L/A.

(2) Defining Commercial Enterprise:

(a) DHS regulations define commercial enterprise as any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned.

(b) This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for profit activity formed for the ongoing conduct of a lawful business. This definition does not include noncommercial activities such as owning and operating a personal residence.

(3) Defining Regional Center: DHS regulations (8 CFR 204.6(e)) define regional center as any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased capital investment. This can include entities ranging from a state government agency to a consortium of exporters, specifically an entity benefiting a particular geographic region of the United States. If the new commercial enterprise is engaged indirectly or directly in lending money to job-creating businesses, such job-creating businesses must be located within the geographic limits of the regional center to help improve regional productivity. In addition, to be eligible for the reduced minimal capital requirement, such a money-lending enterprise may only lend money to businesses located within targeted areas.

(4) Defining Rural Area: The INA defines rural area as any area other than an area within a metropolitan statistical area or within the outer boundary of any city or town having a population of 20,000 or more (based on the most recent U.S. decennial census).

(5) Defining Targeted Employment Area: The INA defines targeted employment area as an area that at the time of the investment was a rural area or an area that has experienced high unemployment (of at least 150 percent of the national average rate).

c. Establishing Commercial Enterprise: Criteria for establishing a new commercial enterprise are as follows:

(1) Creation of an original business;

(2) Purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results; or

(3) Expansion of an existing business through the investment of the required amount, so that a substantial change in the net worth or number of employees or both results from the investment of capital.

(a) In general, substantial change means a 40 percent increase in the net worth, or the number of employees (but not less than 20), so that the new net worth, or number of employees, amounts to at least 140 percent of the pre-expansion net worth or number of employees or both.

(b) If the new commercial enterprise is a holding company, the full requisite amount of capital must be made available to the businesses most closely responsible for creating the employment on which the petition is based.

(c) In order for a petitioner to be considered to have established a new commercial enterprise, the petitioner must have had a hand in its actual creation. For example, signing on as a new partner, subsequent to an organization's creation, neither makes such partner responsible for the original creation of the commercial enterprise nor does that automatically constitute substantial change in the enterprise, unless the other requirements are met as well.

d. Targeted Employment Areas: Of the 10,000 numbers allotted annually for employmentbased fifth preference applicants, not less than 3,000 of the visas made available may be reserved for qualified immigrants whose investment will create employment in a targeted employment area. See 9 FAM 502.4-5(B) paragraph b(5) above for a definition of targeted employment area and rural area.

e. Capital Required: In general, the capital required for an alien investor must be $1,000,000. However, the Secretary of the Department of Homeland Security, in consultation with the Secretaries of State and Labor, may, from time to time, prescribe regulations increasing this amount.

(1) Adjustment for High Employment Areas: The Secretary of the Department of Homeland Security may specify an amount of capital required which is greater than the specified $1,000,000 (but not greater than $3,000,000) if the investment made is in a part of a metropolitan statistical area that at the time of the investment is:

(a) Not a targeted employment area; and

(b) An area with an unemployment rate significantly below the national average unemployment rate.

(2) Adjustment for Targeted Employment Areas: In the case of an alien investing in a targeted area, the Secretary of the Department of Homeland Security may specify an amount of capital required which is less than the specified $1,000,000 (but not less than $500,000).

(3) Current Requirement: DHS has set the required investment at $1,000,000 for high employment areas and at $500,000 for targeted employment areas.

(4) Placing the Capital at Risk: To qualify toward the amount of capital needed under the statutory requirements, money or assets must be placed at risk and made available to the business most directly responsible for the creation of the employment opportunities. For example, money or assets used as reserve funds, as a means to facilitate a debt arrangement, or as promissory notes not due in substantial part within the two-year conditional period (see 9 FAM 502.4-5(D) paragraph b) do not constitute a qualifying contribution of capital toward the amount required for an alien investor. Promissory notes, however, may constitute evidence of capital if they are due in substantial part prior to the end of the period. Until such time as an alien completes payments on such a promissory note, they may not enter into a redemption agreement with the new commercial enterprise. Further, if the new commercial enterprise is a holding company, the capital must be available to the business(es) most closely responsible for creating the employment upon which the petition is placed.

f. Meeting the Job Creation Requirement: Aliens meet the requirement of job creation by establishing reasonable methodologies for determining the number of jobs created, including such jobs created indirectly through revenues generated from increased exports resulting from the investment. Such methodologies may include:

(1) Multiplier tables;

(2) Feasibility studies;

(3) Analyses of foreign and domestic markets for goods or services exported; or

(4) Economically or statistically valid forecasting devices which indicate the likelihood that the business will result in increased employment.

g. Spouse and Children: The spouse, or the child of a marriage which existed at the time of the principal aliens admission into the United States or adjustment of status to that of Legal Permanent Resident (LPR), is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired subsequent to the principal aliens admission is not entitled to derivative status. Further information regarding following-to-join eligibility of derivative spouse and children is available at 9 FAM 502.1-1(C)(2).

9 FAM 502.4-5(C) Immigrant Investor Pilot Program

(CT:VISA-553; 04-02-2018)

a. Pilot Program: The Immigrant Investor Pilot Program sets aside up to 3,000 immigrant visas annually for aliens who make qualifying investments in commercial enterprises located in regional centers in the United States. These regional centers will promote economic growth, including increased sales, improved regional productivity, job creation, and increased domestic capital investment. This is not a permanent program but rather a pilot program with a set end date; see the current visa bulletin for details about whether visas are authorized under this program. See 9 FAM 502.4-5(B) for a definition of regional center.

b. Petition Requirements for Investor Visa Pilot Program: Aliens petitioning as investors under the Investor Visa Pilot Program must demonstrate the following:

(1) The investment is within a DHS-approved regional center;

(2) The investment will create 10 or more jobs;

(3) There is an actual commitment of the required capital in the commercial enterprise;

(4) The capital invested was lawfully gained;

(5) The investment is bona fide; and

(6) He or she will play an active role in the day-to-day managerial control or in the job policy formulation.

NOTE: If the enterprise is a limited partnership, USCIS has determined that investment in a limited partnership will meet the active investment requirement of the regulations without the need for further involvement as long as the partnership agreement permits active involvement by the limited partners.

9 FAM 502.4-5(D) IV Processing for Employment Fifth Preference Cases (Investors, Employment Creation)

(CT:VISA-553; 04-02-2018)

a. Labor Certification, Petition Requirements: Investors are not subject to the labor certification requirements of INA 212(a)(5)(A). The alien must, however, be the beneficiary of an approved employmentbased fifth preference petition filed with the DHS.

b. Conditional Resident Status: Alien investors and derivative family members will be admitted to the United States in conditional immigrant status for two years. After two years, the investor and his or her family must petition for the removal of conditions within a 90-day period before the second anniversary of the granting of conditional permanent residence. DHS will then determine whether the enterprise was established and in continuous operation during the applicable period. If so, the alien will be granted permanent residence.

 

 

 

 

UNCLASSIFIED (U)