Section 204.5 - [Effective 4/1/2024] Petitions for employment-based immigrants

16 Analyses of this regulation by attorneys

  1. USCIS Updates Guidance on Demonstrating Ability to Pay Prospective Employees

    Harris Beach PLLCApril 17, 2023

    By way of background, immigration regulations found at 8 C.F.R. §204.5(g)(2) require I-140 petitioners to demonstrate the company’s ability to pay a foreign national beneficiary upon the granting of his or her permanent residency, stating:Ability of prospective employer to pay wage Any petition filed by or for an employment- based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. In a case where the prospective United States employer employs 100 or more workers, the director may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage. In appropriate cases, additional

  2. New Rules for EB1B, E3, H1B1, and CW1

    Alexander J. SegalFebruary 9, 2016

    EB1B OUTSTANDING PROFESSORS AND RESEARCHERS: COMPARABLE EVIDENCE PERMITTEDA petitioner who is filing an immigrant visa petition on behalf of an alien in the EB1B preference category for outstanding professors and researchers must submit specific evidence that demonstrates that the beneficiary is an outstanding professor or researcher. These regulations are found in 8 C.F.R. 204.5(i)(3)(i). The new regulation, which will be found in 8 C.F.R. 204.

  3. Regulation Requiring Special Immigrant Religious Workers to Maintain Lawful Status is Invalid, Federal Court Holds

    Jackson Lewis P.C.David S. JonesApril 20, 2015

    It was denied by USCIS because Alencar did not have proper work authorization under immigration regulations, providing that an eligible applicant must have worked in a religious occupation for at least two years “in lawful immigration status” before the petition is filed.” 8 C.F.R. §204.5(m). The Church and Alencar filed an appeal with the Administrative Appeals Office, but the denial was affirmed.In 2011, Alencar and the Church brought a suit against USCIS claiming, among other things, that the regulation used to deny the immigrant visa petition was ultra vires, or “beyond the powers” of the agency to promulgate.

  4. Could Einstein Get a Green Card? Proposed DHS Changes Signal New Opportunities for American Colleges and Universities

    Obermayer Rebmann Maxwell & Hippel LLPGregory EckMay 20, 2014

    Such material shall include the title, date, and author of the material, and any necessary translation; 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; Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field. 8 CFR 204.5(i)(3). These six categories contain no “comparable evidence provision” so that no matter how outstanding a scholar may be, if she does not have evidence of two or more of the above, then the path to a green card will stop at a red light.

  5. Plugged In: An EV Newsletter Vol 1 No 6

    Dickinson WrightSuzanne SukkarJune 29, 2023

    ectric-vehicle-transition-batteries-2022-12. 2 See: Rodriguez-Sanchez, Jose Ivan, “Immigrants in Strategic Sectors of the U.S. Economy and America’s Labor Shortage Crisis,” Rice University’s Baker Institute for Public Policy, June 14, 2022, https://www.bakerinstitute.org/research/immigrants-in-strategic-sectors-of-the-us-economy-and-americas-labor-shortage-crisis.3See Walker, Kathleen Campbell, “NAFTA TN and E Visas Support U.S. Consumers, Investment and Jobs,” National Foundation for American Policy (NFAP) Policy Brief, April 2018. https://nfap.com/wp-content/uploads/2018/04/DAY-OF-RELEASE.TN-and-E-Visas.April-2018-1.pdf.4 See Miller, Eric and Laura Collins, “How the United States-Mexico-Canada Agreement can address U.S. labor market mismatches,” The George W. Bush Institute – SMU Economic Growth Initiative at The George W. Bush Institute, December 2022. https://www.bushcenter.org/publications/how-the-united-states-mexico-canada-agreement-can-address-u-s-labor-market-mismatches.5 See 8 CFR 204.5(l)(2) (definition of professional).[View source.]

  6. PERM 101: Employment Verification Letters

    Dickinson WrightAlexandra CrandallMay 28, 2021

    (The letter should also give details about the former supervisor’s affiliation with the former employer.)Where a previous employing entity is now defunct, a beneficiary may try to obtain a letter from a former coworker or supervisor that explains the status of the previous entity.Where a beneficiary was self-employed, the beneficiary should gather documentation confirming the duration and scope of work. (This could include financial statements, service agreements, business formation documents, letters from former customers, etc.)See 8 CFR § 204.5(g).Please note that while some employers have had success using the alternatives described above in support of I-140 petitions, USCIS is not required to accept alternative evidence. Simply put, if a PERM form requires employment experience, then the I-140 petition should provide an employment verification letter as contemplated in the regulations.

  7. Department of Homeland Security (DHS) Publishes Final Rule Improving Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

    Seyfarth Shaw LLPGabriel MozesDecember 5, 2016

    Under the new rule, approved I-140 petitions will remain valid for priority date retention purposes unless the petition is revoked because of fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. I-140 petitions that have been approved for 180 days or more will remain valid, for various other purposes, including job portability under INA section 204(j), H-1B AC21 extensions, and eligibility for employment authorization in compelling circumstances (more below) under final 8 CFR 204.5(p), absent a particular finding.2. 10-day and 60-day Nonimmigrant “Grace” Periods The H-1B program’s 10-day pre- and post-employment grace periods will extend to other types of nonimmigrant workers, including E-1, E-2, E-3, L-1 and TN workers.

  8. Graças a Deus - Considerações a respeito de imigração para Igrejas Evangélicas brasileiras após a Sentença no Caso Alencar

    Law Office of Gerald R. NowotnyJune 8, 2016

    Em 7 de abril de 2015, O Tribunal de Recursos da Terceira Região dos EUA, no processo Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015) decidiu que serem ilegais os requisitos regulamentares que exigem experiência de trabalho qualificada para ter status legal de imigração. Em decorrência desta decisão, o Serviço de Cidadania Americana e Imigração (o USCIS) decidiu acatar a decisão sobre a igreja Shalom Pentecostal em âmbito nacional e não mais indefere solicitações de obreiros religiosos imigrantes com base nos requisitos de status legal do artigo 8 CFR 204.5(m)(4) e (11). Este artigo examina os requisitos e oportunidades para igrejas brasileiras em decorrência da decisão do Tribunal.

  9. Revised Rules for H-1B1, E-3 and CW-1 Workers and EB-1 Petitioners

    Baker, Donelson, Bearman, Caldwell & Berkowitz, PCMelanie WalkerMarch 9, 2016

    Filing procedures for extension of stay and change of status requests have been updated to include the E-3 and H-1B1 nonimmigrant classifications. Petitions for outstanding professors and researchers can now rely on a broader range of comparable evidence and substitute such comparable evidence for the currently listed evidence in 8 C.F.R. 204.5(i)(3)(i)(A)-(F). This flexibility now gives petitioners an ability to support their filings with a broader scope of materials to show their achievement and not limit petitioners to only the detailed list.

  10. Immigration Update: H-1B Cap Season and a Cautionary Fairy Tale; Changing ESTA/VWP Questions Answered; Improvements to E-3, H-1B1, CW-1 and EB-1 Regulations

    Baker, Donelson, Bearman, Caldwell & Berkowitz, PCFebruary 16, 2016

    Filing procedures for extension of stay and change of status requests have been updated to include the E-3 and H-1B1 nonimmigrant classifications. Petitions for outstanding professors and researchers can now rely on a broader range of comparable evidence and substitute such comparable evidence for the currently listed evidence in 8 C.F.R. 204.5(i)(3)(i)(A)-(F). This flexibility now gives petitioners an ability to support their filings with a broader scope of materials to show their achievement and not limit petitioners to only the detailed list.