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OI 204.4 Third-and sixth-preference petitions.
Filing. A third- or sixth-preference petition shall be considered as having been properly filed only if it i signed under oath or affirmation, is submitted with the required fee, and is accompanied by statement of Qualifications of Alien and Job Offer for Alien Employment forms bearing an individually-issued labor certification, as provided in
8 CFR 204.1(c)
When a petition has been properly field, the filing date is retained even if it is necessary to return the petition for additional documentation or information.
If the petition is not accompanied by a required individual labor certification but with the claim that a certification has been issued and forwarded to a United States consular office, the petition shall be returned to the petitioner, or to his attorney if he is represented, with the request that he write to the consular office for the certification and that he resubmit the petition with that document when he has received it.
If the petition is accompanied by a copy of the required individual labor certification, certified by an attorney in accordance with 8 CRF 204.2 (f) to be a true and complete copy of the original, the petition shall be accepted, and if executed properly under oath and the filing fee paid, it shall be considered as properly filed unless it is subsequently determined that the certification is not a true and complete copy of the original. Where the location of the original certification is not explained,
the petitioner, or his attorney where he is represented, shall be requested to submit the original is at the same consular post where the beneficiary intends to apply for an immigrant visa and if there is no reason to doubt the authenticity of the certified copy the petition may be approved and forwarded to that consular post with the following endorsement made in the " Remarks" block of the approved petition: "Original labor certification previously forwarded to American Consul at (enter name of appropriat
e consular post)."
Effect of filing a subsequent petition for a professional, scientist, or artist. (Revised)
Concurrent filing. A member of the professions or a person with exceptional ability in the sciences or the arts may qualify for either third preference classification or sixth-preference classification, or both. If a qualified alien seeks both classifications, a separate petition must be filed for each. (Revised)
Previously filed third-Preference petition. If a third-preference petition was previously filed, and if the facts concerning any job offer and the alien's intended employment remain the same, then, a new petition may be file by the proposed employer for sixth preference classification. (Revised)
Previously filed sixth-preference petition. If a sixth-preference petition was previously filed and if the facts concerning the job offer and the alien's intended employment remain the same, then, a new petition may be filed by the alien, or his designated agent, for third-preference classification. (Revised)
Documentation requirements. A separate set of supporting documents is not required when petitions are concurrently filed. All documentation submitted in support of a prior preference petition, including any valid labor certification. (individual or Schedule A), may be considered in adjudicating the subsequent preference petition. In the case of a third-preference filed prior to the requirement that it be supported by a job offer, the Labor Form ETA 750 must accompany the new petition. (Revised)
Priority dates. The allotment of priority dates will be in accordance with
8 CFR 204.1(c)
(2). However, in the cases of a subsequently filed petition supported by a Schedule A labor certification the priority date will be the date established by the filing of the initial petition.
Change of Classification of pending petitions. No change of classification of a pending third or sixth-preference petition is allowed.
Authority to issue. Certifications under section 212(a)(14) will ordinarily be issued by a Certifying Officer appointed by the Regional Administrator (or the Administrator for the District of Columbia of the Employment and Training Administration, U.S. Department of Labor, for the area wherein the employment is to occur. However, they may also be issued by a certifying Officer designated by the Employment is to occur. However, they may also be issued by a Certifying Officer designated by the Employment
and Training Administration. Officers engaged in adjudication of petitions or applications requiring labor certifications should familiarize themselves with the name and signature of the certifying officer having jurisdiction over is suance of certifications in their area, and should be alert to any changes in designation of certifying officers.
Acceptance and issuance dates of labor certifications. The date on which a certification request is accepted for processing by a State employment Service office of the Department of Labor is evidenced by an endorsement showing the date and "L.O." for local office, "R.O." for regional office, or "N.O." for national office. Thus, a certification will bear two dates-- an acceptance date and a date showing final action. The validity of the certification commences to run from the date of finrather than from
the date of acceptance.
A sixth-preference petition will be considered to have been filed as of the date of acceptance of the application for certification by any office within the employment service system of the Labor Department.
Certification based on Schedule A. If the supporting documents establish that the beneficiary is qualified in an occupation on the current Schedule A, the decision on the petition shall be made without referring Statement of Qualifications of Alien and Job offer for Alien Employment Forms and supporting documents to the Administrator.
The adjudicating officer shall apply the regulations contained in 20 CFR 656 when deciding the validity o a Schedule A entitlement. Specifically, application of the definition of "employment" contained in 20 CFR 656.50 requires that permanent, full-time work be contained in the job offer for a favorable ruling under 20 CFR 656.10. "Full-time" will generally mean forty ours work per week. However, this is not a fixed requirement. Hours of employment may vary with occupation and with industry. For example
, a corporate executive (Group IV) may normally be employed for 37 hours per week. This would be "full-time" in that situation. (Revised)
Certification for professional, scientist, or artist.
General. When the petitioner has obtained a labor certification based on Statement of Qualifications of Alien and Job Offer for Alien
Employment forms and submits the forms with the labor certification affixed for an occupation in a profession or in the sciences or the arts, the adjudicating officer must nevertheless make a determination concerning the benificiary's qualifications. (Revised; RELEASED ADVANCE)
If the beneficiary is found to be unqualified in the profession, art or science for which the certification wa issued, the petition should be denied notwithstanding the issuance of the certification.
Certifications for physicians or surgeons. Item 6(6)(3) of the instructions attached to form I-140 (edition of 1-1-77 or later) describes the evidence which must be submitted before a physician or surgeon may be considered as being eligible for immigrant status. Unless the evidence described therein is submitted in support of a Form I-140 petition shall be denied for failure to establish eligibility for the classification sought. (Revised)
Erroneously presented certification. If a certification issued by the Department of Labor is presented to the Service on behalf of an alien for whom a visa petition is not being filed and he will apply for an immigrant visa outside the United States, the person presenting the certification shall be advised to return it to the Department of Labor office which issued it for Transmittal to the appropriate United States consular office. (Redesignated; formerly par. (6); RELEASED ADVANCE)
Certification for live-in employment. An employer intending to apply for a labor certification for a job in which the alien will be required to live at his place of employment should be informed that he must submit to the local State employment service Supplemental Statement for Live-At-Work Job Offers form as well as Statement of Qualifications of Alien and Job Offer for Alien Employment forms. (revised and redesignated; formerly par. (7); RELEASED ADVANCE)
Certification requests by voluntary agencies. The Department of Labor has authorized certain voluntary agencies to submit Statement of Qualifications of Alien forms, with or without Job Offer for Alien Employment forms, directly to the Employment and Training administration in Washington, D. C., so that it may consider the issuance of labor certifications on behalf of aliens sponsored by those agencies. For the purpose of identifying such cases, the name of the sponsoring agency will appear in the upper
left-hand corner of the Statement of Qualifications of Alien Form. (Revised and redesignated; formerly par. (8); (RELEASED ADVANCE)
Invalidation of labor certification. A petition may be denied on the ground that the certification issued pursuant to a Job Offer for Alien Employment form is invalid under the Provisions of 20 CFR Part 656 when it is found that the actual wages and working conditions differ significantly from those specified in the Job Offer for Alien Employment form: such a denial may be made with or without consulting the Department of Labor. The denial order shall specify the manner in which the actual wages and work
ing conditions differ from those represented in the job offer on which the certification was based and shall indicate that the denial is without prejudice to reconsideration upon the petitioner's submittal of a new labor certification based upon the actual wages and working conditions.
When doubt Exists whether the actual wages and working conditions vary significantly enough form those represented in the job offer on which the certification was based to warrant the conclusion that the certification is invalid under 20 CFR part 656, the Employment and Training Administration may be consulted for a determination of that matter.
A petition which has been denied on the basis that the certification is invalid under 20 CFR Part 656 is considered as having been denied "for Lack of a certification" and no appeal lies from such a denial.
General. Statement of Qualifications of Alien form which must accompany each third- or sixth-preference petition, contains information concerning the beneficiary and his qualifications and must be supported by documentary evidence of those qualifications. If the beneficiary is clearly unqualified, the petition should be denied. When examination of the petition indicates that the petition may be approvable if the beneficiary is qualified, the petition shall be returned to the petitioner with a request for
those documents before further action is taken.
Advisory opinion of Labor Department. When a service officer adjudicating a petition for a beneficiary claiming an occupational status on Schedule a is unable to determine whether the alien is so qualified, he may request an advisory opinion from the Division of Labor Certification, United states Employment Service, Washington, DC 20213. (Revised)
When a Service office disagrees with the Division of Labor Certification' advisory opinion, an individual letter will be addressed to the Division of Labor Certification, setting forth the basis for the disagreement and requesting the Division of Labor Certifications' comments with respect to the position of the Service office. Although the advisory opinions of other government agencies are entitled to great weight, the ultimate decision concerning a beneficiary's qualifications rests with the Service. (
Other advisory opinions. The Service may solicit or require the petitioner to obtain the advisory opinions of individual experts, universities, or other organizations and governmental agencies in the particular scientific or artistic field in which the alien is engaged concerning the alleged exceptional ability of a third-preference beneficiary. In obtaining such opinion the party consulted should be requested to furnish in writing a specific and detailed account of the facts and data considered in arrivi
ng at the conclusion. If the opinion is adverse to the petitioner and is being considered as a possible factor in denying the petition, the petitioner shall be apprised of the opinion and shall be given a reasonable opportunity or rebuttal before a decision is made.
License to practice profession. There is no requirement in the statute that a member of a profession must establish that he is qualified to practice that profession in the United States. The petitioner shall not, therefore, be required to submit such evidence. However, if the beneficiary has received alicense or other permission to practice his profession, the petitioner may submit the license or other official permit which the beneficiary has received.
Evaluation of beneficiary's education. In connection with the evaluation of a beneficiary's educational background, the Department of Education has advised that foreign educational terms which appear to be similar to American bachelor's, master's, or doctor's degrees are not necessarily comparable to such terms in the United States. For example, in some countries, a bachelor's diploma or degree is more comparable to a United States; also the completion of a program in a "college" in another country may no
t be the equivalent of completion of a college program in the United States, since a "college" in many other countries is a secondary level institution. Consequently, a professional evaluation of foreign degrees or courses may occasionally be necessary before a petition can be adjudicated. A reliable evaluation of undergraduate courses can be secured from an accredited college or university if the beneficiary is applying for admission as a graduate student. If an evaluation cannot be obtained from an acc
redited college or university, applicants should secure an evaluation from one of the many evaluation organizations.
Instances when a request for an advisory evaluation would be appropriate are where a diploma does not confer a degree recognizable as a baccalaureate or higher degree in this country and a petitioner or applicant asserts that the diploma represents the equivalent of a specified degree in the United States, or when there is any reason to doubt that a diploma conferring a degree is equivalent to a similar degree in the United States. When an evaluation is needed the request shall be made on Form I-72 and th
e following paragraph shall be inserted on the form:
Your petition and supporting documents are being returned. It has been determined after review that an advisory evaluation of the beneficiary's credentials must be obtained before a decision can be made. This evaluation is necessary to determine the level and major field or educational attainment described in the supporting documents in terms of equivalent education in the United states. The Immigration and Naturalization Service does not endorse or recommend evaluators. Many private individuals, organi
zation service does not endorse or recommend evaluators. many private individuals, organizations and educational institutions provide this service. An acceptable evaluation should:
Consider formal education only, not practice experience.
State if the collegiate training was post -Secondary education, i.e. did the applicant complete the U.S. equivalent of high school before entering college?
Provide a detailed explanation of the material evaluated, rather than a simple conclusory statement.
Briefly state the qualifications and experience of the evaluator providing the opinion.
When the petitioner is a well-established organization, college, or university of unquestioned good reputation and intends to employ the beneficiary of a third- or sixth-preference petition in a professional capacity, the petitioner's determination that the beneficiary is qualified for the professional position involved shall be given due weight if the petitioner customarily hires and employs similar professional personnel in the United States in the regular course of its business. When such a well-establ
ished, reputable petitioner files a third- or sixth- preference petition, the filing of the petition, in an of itself, shall be considered as evidence that the petitioner has found the beneficiary qualified for the professional position involved, and the beneficiary's diploma(s) may be accepted as evidence of his scholastic qualifications, without requiring a transcript of his school record.
Interview and investigation.
The petitioner or his authorized representative and the beneficiary may be required to submit to interview to verify the allegations contained in the petition and supporting documents, including the alleged qualifications of the beneficiary. In any interview conducted with respect to a third-preference petition, the interviewer shall also ascertain whether the beneficiary intends to engage in his profession or in his field in the sciences or the arts for the person, firm, or organization issuing the j
ob Offer for Alien Employment form. A third-preference petition should not be approved if the beneficiary does not intend to engage in the professional, artistic or scientific field on which the claim to third-preference eligibility is based. In any interview conducted with respect to a sixth-preference petition, the interviewer shall ascertain whether the petitioner in tends and desires to employ the beneficiary in the capacity indicated in the petition and the job Offer for Alien Employment form. If th
e adjudicating officer has any doubt concerning any material allegation, the petition shall be referred for appropriate investigation to resolve that doubt. (Revised; RELEASED ADVANCE)
The adjudicator will not request an overseas investigation if there are other grounds for denial of the petition. (TM 2/87)
There is a high incidence of misrepresentation involving work experience gained by third and sixth preference beneficiaries in Bangladesh, Hong Kong, India, Pakistan, the people's Republic of China, and Taiwan. Even so, when the adjudicating officer is convinced that the evidence substantiates the work experience, the petition may be approved. All other I-140 visa petitions involving work experience gained in these countries must be sent for overseas investigation. (TM 2/87)
Service field offices will, without exception, submit requests for such investigation directly to and only to the Officer-in-Charge, Hong Kong, in cases involving beneficiaries who allegedly gained work experience in Hong Kong, the people's Republic of China, or Taiwan or to the Officer-in-Charge, New Delhi, in cases involving beneficiaries who allegedly gained work experience in Bangladesh, India, or Pakistan. Requests will not be made directly to an embassy or consulate. (ADDED) (TM 2/87)
All requests of overseas investigations must be made in accordance with the provisions of OI 103.I(c) (1). (ADDED) (TM 2/87)
The adjudicating officer must attach any report of investigation of the beneficiary's qualifications to the petition when it is forwarded to the embassy or consulate where the visa application will be made. (TM 2/87)
Petitions requiring verification of work experience in the People's Republic of China (PRC) must be supported by notarial certificates issued by a notary public office in the country or city in which the beneficiary lived or worked. If notarial certificates are attached the PRC Ministry of Justice will verify that a proper investigation was conducted before the certificate was issued. (TM 2/87)
When a third-preference petition is denied because of lack of qualifications or because the beneficiary does not have a third-preference occupation, consideration shall be given to notifying the petitioner of the procedure for sixth-preference if the occupation is not on the noncertification list (Schedule B, 20 CFR Part 656)
When a sixth-preference petition involving an occupation not included in Schedule A is denied because the petitioner does not desire and intend to employ the beneficiary in the capacity indicated in the job offer on the basis of which a certification was issued or in accordance with the wages or other working conditions set forth in that offer, a copy of the notice of denial shall be forwarded to the Employment and Training Administration, United States Department of Labor, Washington, D.C. 20210. (TM