9 FAM 502.4 EMPLOYMENT-BASED IV CLASSIFICATIONS

UNCLASSIFIED (U)

9 FAM 502.4

EMPLOYMENT-BASED IV CLASSIFICATIONS

(CT:VISA-1858; 10-31-2023)
(Office of Origin: CA/VO)

9 FAM 502.4-1 Employment-based iv classifications Overview

(CT:VISA-1829; 09-12-2023)

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. 22 CFR 42.11 identifies the following classification symbols for employment-based IVs in accordance with the INA:

Employment 1st Preference (Priority Workers)
E11	Person with Extraordinary Ability	INA 203(b)(1)(A).
E12	Outstanding Professor or Researcher	INA 203(b)(1)(B).
E13	Multinational Executive or Manager	INA 203(b)(1)(C).
E14	Spouse of E11, E12, or E13	INA 203(d), INA 203(b)(1)(A), INA 203(b)(1)(B), & INA 203(b)(1)(C).
E15	Child of E11, E12, or E13	INA 203(d), INA 203(b)(1)(A), INA 203(b)(1)(B), & INA 203(b)(1)(C).
Employment 2nd Preference (Professionals Holding Advanced Degrees or Persons of Exceptional Ability)
E21	Professional Holding Advanced Degree or Person of Exceptional Ability	INA 203(b)(2).
E22	Spouse of E21	INA 203(b)(2) & INA 203(d).
E23	Child of E21	INA 203(b)(2) & INA 203(d).
Employment 3rd Preference (Skilled Workers, Professionals, or Other Workers)
E31	Skilled Worker	INA 203(b)(3)(A)(i).
E32	Professional Holding Baccalaureate Degree	INA 203(b)(3)(A)(ii).
E34	Spouse of E31 or E32	INA 203(b)(3)(A)(i), INA 203(b)(3)(A)(ii), & INA 203(d).
E35	Child of E31 or E32	INA 203(b)(3)(A)(i), INA 203(B)(3)(A)(ii), & INA 203(d).
EW3	Other Worker (Subgroup Numerical Limit)	INA 203(b)(3)(A)(iii).
EW4	Spouse of EW3	INA 203(b)(3)(A)(iii) & INA 203(d).
EW5	Child of EW3	INA 203(b)(3)(A)(iii) & INA 203(d).
Employment 5th Preference (Employment Creation Conditional Status) (Petitions Filed Before March 15, 2022)
C51	Employment Creation, Outside Targeted Area	INA 203(b)(5)(A).
C52	Spouse of C51	INA 203(b)(5)(A) & INA 203(d).
C53	Child of C51	INA 203(b)(5)(A) & INA 203(d).
T51	Employment Creation in Targeted Rural/High Unemployment Area	INA 203(b)(5)(B).
T52	Spouse of T51	INA 203(b)(5)(B) & INA 203(d).
T53	Child of T51	INA 203(b)(5)(B) & INA 203(d).
R51	Regional Center Program, Not in Targeted Area	INA 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended.
R52	Spouse of R51	INA 203(b)(5), INA 203(d), & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended.
R53	Child of R51	INA 203(b)(5), INA 203(d), & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended.
I51	Regional Center Program, Target Area	INA 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended.
I52	Spouse of I51	INA 203(b)(5), INA 203(d), & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended.
I53	Child of I51	INA 203(b)(5), INA 203(d), & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended.
Employment 5th Preference (Employment Creation Conditional Status) (Petitions Filed On or After March 15, 2022)
NU1	Investor in Non-Regional Center, Unreserved	INA 203(b)(5), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
NU2	Spouse of NU1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
NU3	Child of NU1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RU1	Investor in Regional Center, Unreserved	INA 203(b)(5), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RU2	Spouse of RU1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RU3	Child of RU1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
NR1	Investor in Non-Regional Center, Set Aside - Rural	INA 203(b)(5), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
NR2	Spouse of NR1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
NR3	Child of NR1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
NH1	Investor in Non-Regional Center, Set Aside – High Unemployment	INA 203(b)(5), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
NH2	Spouse of NH1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
NH3	Child of NH1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RR1	Investor in Regional Center, Set Aside - Rural	INA 203(b)(5), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RR2	Spouse of RR1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RR3	Child of RR1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RH1	Investor in Regional Center, Set Aside – High Unemployment	INA 203(b)(5), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RH2	Spouse of RH1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RH3	Child of RH1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RI1	Investor in Regional Center, Set Aside - Infrastructure	INA 203(b)(5), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RI2	Spouse of RI1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).
RI3	Child of RI1	INA 203(b)(5), INA 203(d), Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395),as drafted, & Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).

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-1858; 10-31-2023)

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

(1) Individuals 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 the above categories.

(2) Individuals 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 applicant 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 when the principal was admitted into the United States or adjusted status to LPR is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired after the principal's 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) Individuals with Extraordinary Ability (Employment First Preference IV Classification)

(CT:VISA-1858; 10-31-2023)

a. Defining “Extraordinary Ability”:

(1) To be considered as an individual with extraordinary ability, the individual must have sustained national or international acclaim. Their accomplishments in the field of science, art, education, business, or athletics must be recognized in the form of extensive documentation. The applicant must be seeking to enter the United States to continue work in the field, and the entry of such an individual 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: DHS regulations (8 CFR 204.5(h)(3)) list the documentary evidence to submit with the petition. USCIS conducts an analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for classification as a person with extraordinary ability.

c. Labor Certification/Job Offer: Although no offer of employment (including a labor certification) is required, the individual must include with the petition convincing evidence that they are 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-1756; 04-13-2023)

a. Defining “Outstanding Professors and Researchers”: An individual may qualify as a priority worker outstanding professor or researcher if they:

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

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

(3) Have 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. USCIS conducts an analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for this classification.

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

(1) U.S. university or institution of higher learning offering them 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 them 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-1858; 10-31-2023)

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

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

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

(3) They seek to enter the United States 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 “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;

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

(2) 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 acting in a managerial capacity merely by virtue of supervisory responsibilities unless the employees supervised are professional.

c. Labor Certification/Job Offer (Multinational Executives and Managers): No labor certification is required for applicants in this classification. However, the prospective U.S. employer must furnish a job offer in the form of a statement which indicates that the applicant 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-1756; 04-13-2023)

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

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

(CT:VISA-1858; 10-31-2023)

a. Defining Exceptional Ability:

(1) An individual may qualify as an employment-based second preference immigrant if they have 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 beneficiary’s 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: 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 profession or occupation, is not, by itself, sufficient evidence of such exceptional ability. USCIS conducts an analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for this classification.

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

(CT:VISA-1756; 04-13-2023)

a. E2 Petitions - Who May File: Any U.S. employer may file a petition for classification of an individual under INA 203(b)(2) as a member of the professions holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business. If an individual is seeking an exemption from the job offer requirement under INA 203(b)(2)(B)(i), then they may file the petition as a self-petitioner.

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 individual must be the beneficiary of a petition approved by the Department of Homeland Security. An approved petition is prima facie evidence that the applicant 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-1566; 06-22-2022)

a. Your Responsibility in Labor Certification Cases: If the applicant is applying for a visa based on 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 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 beneficiary 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 applicant 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 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 before 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-1858; 10-31-2023)

The spouse or the child of a marriage which existed when the principal applicant was admitted into the United States is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired after the principal applicant'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-1858; 10-31-2023)

a. Defining “Skilled Worker”: DHS regulations 8 CFR 204.5(l)(2) define a “skilled worker” as one who, at the time of petitioning, can perform 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 training for 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 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 individual 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-1858; 10-31-2023)

a. Your Responsibility in Labor Certification Cases: You must not issue an IV to any third preference employment-based IV applicant until you receive 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 applicant’s occupation is on the Department of Labor’s Schedule A (see 20 CFR 656.15). Before issuance, you must determine that the applicant has the professional or occupational qualifications on which certification is based. For information on the validity and limitations of labor certifications, see 9 FAM 302.1-5(B)(4).

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 applicant for preference immigrant status. You should not readjudicate 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 applicant meets the requirements of the employment offered.

c. It is permissible for the applicant to pay a recruiter or other third party to secure a job with a U.S. employer, if the applicant does not pay fees for the labor certification when the applicant and petitioner are represented by the same attorney.

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

(CT:VISA-1858; 10-31-2023)

The spouse, or child of a marriage which existed when the principal applicant was admitted into the United States as an LPR, or adjusted status to LPR, is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired after the principal applicant’s admission as an LPR, or adjustment of status to 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-1756; 04-13-2023)

INA 203(b)(5) (8 U.S.C. 1153(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-1113; 07-20-2020)

8 CFR 204.6; 22 CFR 42.32(e).

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

(CT:VISA-1756; 04-13-2023)

Public Law 102-395, sec. 610; Public Law 108-156; Public Law 111-6; Public Law 111-8; Public Law 111-68; Public Law 111-83, sec. 548; Public Law 112-176, sec. 1; Public Law 114-53; Public Law 114-113; Public Law 114-223; Public Law 115-31; Public Law 115-56; Public Law 115-141; Public Law 116-59; Public Law 116-69; Public Law 117-103.

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

(CT:VISA-1858; 10-31-2023)

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

(1) Applicant seeks to enter the United States to engage in a new commercial enterprise;

(2) Applicant has invested Capital in a new commercial enterprise after November 29, 1990;

(3) Capital invested is at least $1,000,000 (or $500,000 for investments in a targeted employment area) for petitions filed before March 15, 2022; and at least $1,050,000 (or $800,000 for investments in targeted employment areas and infrastructure projects);

(4) The Capital is expected to remain invested for not less than two years;

(5) Enterprise benefits the U.S. economy and creates full–time employment for not fewer than 10 U.S. citizens or noncitizens authorized to be employed in the United States (excluding the investor and the investor’s spouse, or children);

(6) For petitions filed on or after March 15, 2022 until September 30, 2026, if the applicant has or intends to pool the investment Capital with one or more qualified immigrants, the Capital must be invested in a new commercial enterprise affiliated with a regional center that been designated by the Secretary of Homeland Security based on a proposal for the promotion of economic growth, including prospective job creation and increased domestic capital investment that has filed application for approval of the investment project or enterprise under 8 U.S.C. 1153 (b)(5)(F);

(7) For petitions filed before March 15, 2022, an applicant who seeks to rely on indirect job creation as explained in the USCIS Policy Manual must invest Capital in a new commercial enterprise affiliated with a regional center that been designated by the Secretary of Homeland Security based on a proposal for the promotion of economic growth, including prospective job creation and increased domestic capital investment.

b. For more background, eligibility requirements, effective dates and definitions of terms related to employment fifth preference status, refer to the USCIS Policy Manual, Volume 6, Part G - Investors.

c. Spouse and Children: The spouse, or child of a marriage which existed when principal applicant was admitted into the United States or adjusted status to LPR, is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired after the principal applicant’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 502.4-5(C) IV Processing for Employment Fifth Preference Cases (Investors, Employment Creation)

(CT:VISA-1858; 10-31-2023)

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

b. EB-5 petitioners (in stand-alone investments or regional centers) must show engagement in the new commercial enterprise (NCE) which can be shown through either day-to-day managerial control or through policy formulation. For NCEs structured as limited partnerships, which generally do not permit managerial control by limited partners, USCIS regulations have long stated that an individual is sufficiently engaged in management if the individual is a limited partner, and the limited partnership agreement provides the investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act. The regulations do not explicitly address limited liability companies (LLCs), which have grown significantly in popularity since the original EB-5 regulations were promulgated. Nevertheless, because LLCs can be flexibly structured to provide a similar ownership and governance structure as a limited partnership and the regulations permit policy formulation to satisfy the engagement requirement, a member of an NCE structured as an LLC may be considered sufficiently engaged in policy formulation in a manner similar to a limited partner for NCEs structured as limited partnerships (i.e., through their engagement in policy formulation by virtue of the rights, powers, and duties normally granted to them under the applicable statute governing the formation of their entity).

c. Conditional Resident Status: Noncitizen 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 their 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, the Capital investment was sustained, and the requisite jobs were created. If so, the noncitizen will be granted permanent residence.

UNCLASSIFIED (U)