Volume 2 - Nonimmigrants
Resources
22 CFR 41.61 Students - academic and nonacademic
59 FR 41818 (PDF) - Temporary Alien Workers Seeking H-1B, O, and P Classifications Under the Immigration and Nationality Act--Correction
8 CFR 103.2(a)(1) - Submission and adjudication of benefit requests
8 CFR 103.2(b)(19) - Notification
8 CFR 103.2(b)(8) - Request for Evidence
8 CFR 103.3 - Denials, appeals, and precedent decisions
8 CFR 103.3(a)(2) - AAO appeals
8 CFR 103.5(a)(1)(ii) - Jurisdiction
8 CFR 214.1 - Requirements for admission, extension, and maintenance of status
8 CFR 214.1(c)(5) - Decision in Form I-129 or I-539 extension proceedings
8 CFR 214.1(l)(2) - Period of stay
8 CFR 214.13 - SEVIS fee for certain F, J, and M nonimmigrants
8 CFR 214.2(f) - Students in colleges, universities, seminaries, conservatories, academic high schools, elementary schools, other academic institutions, and in language training programs
8 CFR 214.2(h) - Temporary employees
8 CFR 214.2(h)(1) - Temporary employees
8 CFR 214.2(h)(1)(ii)(E) - H-3 definition
8 CFR 214.2(h)(10) - Denial of petitions
8 CFR 214.2(h)(11) - Revocation of an approved H petition
8 CFR 214.2(h)(12) - Appeal of a denial or a revocation of a petition
8 CFR 214.2(h)(13) - Admission of H beneficiaries
8 CFR 214.2(h)(13)(i)(B) - Admission and allowable periods of stay for H workers
8 CFR 214.2(h)(14) - Extension of H visa petition validity
8 CFR 214.2(h)(15)(ii)(D) - Extension of H-3 stay
8 CFR 214.2(h)(16)(ii) - Effect of approval of a permanent labor certification or filing of a preference petition on H classification
8 CFR 214.2(h)(17) - Effect of a strike
8 CFR 214.2(h)(2) - Petition for temporary employees
8 CFR 214.2(h)(7) - H-3 regulations
8 CFR 214.2(h)(8)(i)(D) - H-3 numerical limitations on special education exchange visitors
8 CFR 214.2(h)(9) - Petitions for temporary workers
8 CFR 214.2(h)(9)(iii)(C) - Validity of approved H-3 petitions and H-4 dependent(s)
8 CFR 214.2(h)(9)(iv) - Validity of approved H-3 petitions and H-4 spouse and dependent(s)
8 CFR 214.2(i) - Representatives of information media
8 CFR 214.2(l) - Intracompany transferees
8 CFR 214.2(m) - Students in established vocational or other recognized nonacademic institutions, other than in language training programs
8 CFR 214.2(o) - Special requirements for admission, extension, and maintenance of status (aliens of extraordinary ability or achievement)
8 CFR 214.2(o)(1)(i) - Aliens of extraordinary ability or achievement
8 CFR 214.2(o)(1)(ii)(A)(1) - Description of classifications, extraordinary ability
8 CFR 214.2(o)(1)(ii)(A)(2) - Description of classifications, extraordinary achievement
8 CFR 214.2(o)(1)(ii)(B) - O2 classification
8 CFR 214.2(o)(10) - Admission
8 CFR 214.2(o)(12)(ii) - Extension period
8 CFR 214.2(o)(13) - Effect of approval of a permanent labor certification or filing of a preference petition on O classification
8 CFR 214.2(o)(16) - Return transportation requirement
8 CFR 214.2(o)(2) - Filing of petitions
8 CFR 214.2(o)(2)(ii)(C) - Evidence required to accompany a petition
8 CFR 214.2(o)(2)(iv) - Other filing situations
8 CFR 214.2(o)(2)(iv)(B) - Services for more than one employer
8 CFR 214.2(o)(3)(ii) - Definitions
8 CFR 214.2(o)(3)(iii) - Evidentiary criteria for an O-1 alien of extraordinary ability in the fields of science, education, business, or athletics
8 CFR 214.2(o)(3)(iv) - Evidentiary criteria for an O-1 alien of extraordinary ability in the arts
8 CFR 214.2(o)(3)(v) - Evidentiary criteria for an alien of extraordinary achievement in the motion picture or television industry
8 CFR 214.2(o)(4) - Petition for an O-2 accompanying alien
8 CFR 214.2(o)(5) - Consultation
8 CFR 214.2(o)(6)(iii) - Approval and validity of petition
8 CFR 214.2(o)(6)(iv) - Approval and validity of petition
8 CFR 214.2(o)(7) - Notification of Decision
8 CFR 214.2(o)(8)(ii) - Automatic Revocation
8 CFR 214.2(o)(9)(ii) - Appeal of Revocation
8 CFR 214.2(p) - Artists, athletes, and entertainers
8 CFR 214.2(p)(1)(ii)(A)(1) - Description of classification
8 CFR 214.2(p)(2)(ii)(D) - Evidence required to accompany a petition for a P nonimmigrant
8 CFR 214.2(p)(4)(i) - Types of classification
8 CFR 214.2(p)(4)(ii)(A) - General criteria and documentary requirements for P-1 athletes
8 CFR 214.2(p)(4)(ii)(B) - Evidentiary requirements for an internationally recognized athlete or athletic team
8 CFR 214.2(p)(4)(iii) - Form of documentation
8 CFR 214.2(p)(4)(iv) - Other filing situations
8 CFR 214.2(p)(7) - Consultation
8 CFR 214.2(q) - Cultural visitors
8 CFR 214.2(q)(1)(iii) - Definitions
8 CFR 214.2(q)(11)(ii) - Wages and working conditions
8 CFR 214.2(q)(2)(ii) - Limitation on admission
8 CFR 214.2(q)(3)(iii)(B) - Cultural component
8 CFR 214.2(q)(3)(iii)(C) - Work component
8 CFR 214.2(q)(3)(iv) - Requirements for international cultural exchange visitors
8 CFR 214.2(q)(4)(i)(A) - Supporting documentation
8 CFR 214.2(q)(4)(i)(B), (C), (D), and (E) - Supporting documentation
8 CFR 214.2(q)(4)(i)(C) - Supporting documentation
8 CFR 214.2(q)(4)(ii)(A) - Supporting documentation
8 CFR 214.2(q)(4)(ii)(B) - Supporting documentation
8 CFR 214.2(q)(5)(i) - Filing of petitions, General
8 CFR 214.2(q)(5)(ii) - Petitions for multiple participants
8 CFR 214.2(q)(5)(iii) - Service, labor, or training in more than one location
8 CFR 214.2(q)(5)(iv) - Service, labor, or training for more than one employer
8 CFR 214.2(q)(5)(v) - Change of employers
8 CFR 214.2(q)(6) - Substitution or replacements of participants in an international cultural exchange visitor program
8 CFR 214.2(q)(7)(iii) - Approval of petition for international cultural exchange visitor program
8 CFR 214.2(q)(7)(iv) - Approval of petition for international cultural exchange visitor program
8 CFR 214.2(q)(8)(i) - Notice of denial
8 CFR 214.2(q)(9)(ii) - Automatic revocation
8 CFR 214.2(q)(9)(iii) - Revocation on notice
8 CFR 214.2(q)(9)(iv) - Notice and decision
8 CFR 214.2(q)(9)(v) - Appeal of a revocation of a petition
8 CFR 214.2(r) - Religious workers
8 CFR 214.3 - Approval of schools for enrollment of F and M nonimmigrants
8 CFR 248.1(a) - Change of Nonimmigrant Classification-General
8 CFR 248.1(b) - Timely filing and maintenance of status
8 CFR 248.3(a) - Requests by petitioners
8 CFR 248.3(g) - Denial of application
8 CFR 274a.12 - Classes of aliens authorized to accept employment
8 CFR 274a.12(c) - Aliens who must apply for employment authorization
INA 101(a)(15)(F) - Academic student definition
INA 101(a)(15)(H) - Alien coming temporarily to the United States to perform services
INA 101(a)(15)(H)(iii) - Definition of H-3
INA 101(a)(15)(I) - Representatives of foreign media
INA 101(a)(15)(L) - Definition of L nonimmigrant classification
INA 101(a)(15)(M) - Vocational student definition
INA 101(a)(15)(O) - Extraordinary ability in arts or athletics
INA 101(a)(15)(P) - Extraordinary ability in arts or athletics as part of a group
INA 101(a)(15)(P)(i) - Definition of P-1 nonimmigrant
INA 101(a)(15)(Q) - Definition of Q nonimmigrant classification
INA 101(a)(15)(R) - Definition of R nonimmigrant classification
INA 101(a)(44) - Definition of managerial capacity and executive capacity
INA 101(a)(46) - Definition of “extraordinary ability” in the arts
INA 204(i) - Definition of Professional Athlete
INA 214(a)(2)(B) - Admission (Stay)
INA 214(b) - Temporary employees
INA 214(c) - Admission of nonimmigrants
INA 214(c)(1) - Importing Employer
INA 214(c)(12) - Fraud prevention and detection fee
INA 214(c)(2) - Petition of importing employer for L nonimmigrant
INA 214(c)(4) - Petition of Importing Employer
INA 214(c)(4)(A) - Petition of importing employer
INA 214(c)(4)(A)(i)(I) - Petition of importing employer for athlete at an internationally recognized level of performance
INA 214(c)(4)(A)(ii)(I) - Petition of importing employer
INA 214(c)(5)(B) - Return Transportation
INA 214(c)(6) - Consultation Requirement
INA 214(m) - Nonimmigrant elementary and secondary school students
INA 248(a) - Change of nonimmigrant classification
Pub. L. 102-110 (PDF) - Armed Forces Immigration Adjustment Act of 1991
Pub. L. 109-463 (PDF) - COMPETE Act of 2006
Pub. L. 110-229 (PDF) - Section 702 of the Consolidated Natural Resources Act of 2008, as amended - Immigration reform for the Commonwealth
Pub. L. 115-232 (PDF) - Section 1045 of the FY 2019 NDAA - Workforce issues for military realignments in the Pacific
Pub. L. 115-91 (PDF) - Section 1049 of the FY 2018 NDAA - Workforce issues for military realignments in the Pacific
Pub. L. 116-283 (PDF) - Section 9502 of the National Defense Authorization Act for Fiscal Year 2021 (FY 2021 NDAA) - Workforce issues for military realignments in the Pacific
Appendices
This appendix provides a general overview of the most common business forms or structures of petitioning employers, agents, or sponsors filing an Immigrant Petition for Alien Workers (Form I-140) or Petition for Nonimmigrant Worker (Form I-129). These forms or structures are also relevant to the new commercial enterprises underlying an Immigrant Petition by Standalone Investor (Form I-526) or Immigrant Petition by Regional Center Investor (Form I-526E).
This appendix includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service (IRS), and basic tax terms. Generally, each business form or structure discussed in this appendix should have an Employer Identification Number (EIN), sometimes also called a Federal Tax Identification Number, or IRS Tax Number.[1] An EIN is used to identify a business entity for IRS purposes.
State law generally governs the formation, operation, and dissolution of business entities. As each state has its own rules for business entities, an officer should refer to the relevant state statute or state authority’s website (such as the California Secretary of State’s Business Programs Division) if there is a specific question about a particular business entity.
A. Sole Proprietorship
1. Definition
A sole proprietorship is a for-profit business owned by one person (or a married couple, in some cases).[2] A sole proprietorship is “a business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity.”[3] Owners may operate on their own or may employ other people. The sole proprietorship is the simplest business form under which a person can operate a business. It is not a separate legal entity from its owner;[4] for example, the owner remains responsible for the business debts.
A sole proprietorship can operate under the name of its owner or it can elect to do business under a fictitious name. The fictitious name is simply a trade name and does not create a legal entity separate from the sole proprietor owner.[5]
2. Taxes
Income from the business is included on the owner’s personal income tax return, U.S. Individual Income Tax Return (IRS Form 1040). The profits and losses of the business are recorded and attached to the Form 1040 on Profit or Loss From Business (Schedule C); Supplemental Income or Loss (Schedule E); or Profit or Loss From Farming (Schedule F).
The owner’s adjusted gross income on Form 1040 is used as net income for ability to pay purposes; however, there are no tax forms that list the business’s current assets and liabilities. When determining a petitioner’s ability to pay the proffered wage, USCIS also considers a sole proprietor’s liquefiable personal assets as well as household expenses and other personal liabilities (such as rent, car payments, and child care expenses).
B. Partnership
A partnership is the relationship between two or more persons or entities who join to carry on a trade or business.[6] Each person or entity contributes to the partnership something of value (for example, money, property, labor, or skill) and expects to share in the profits and losses of the business.[7]
A partnership is created automatically when two or more persons or entities engage in a business enterprise for profit whether or not the persons or entities intend to form a partnership.[8] Partners seeking increased accountability, however, may opt to have their arrangement memorialized in a partnership agreement. The following subsections provide an overview of the most common forms of partnerships. The type of partnership is identified at Schedule B, Line 1 of U.S. Return of Partnership Income (IRS Form 1065).
1. General Partnership
A general partnership is the simplest form of partnership, and as such, general partnerships are simply called partnerships.[9] In a general partnership, all partners or owners may equally share responsibilities and liabilities.
A general partnership has the following characteristics:
- A general partnership is created through an express or implied agreement;[10]
- A general partnership has two or more partners;[11] and
- The owners or partners, which may be other types of entities (such as a corporation or limited liability company), are all liable for all legal actions and debts the company faces.[12]
2. Limited Partnership
A limited partnership[13] is very similar to a general partnership, except that the partnership is partially owned by one or more limited partners and is managed exclusively by its general partner(s).[14]
A limited partnership must have at least one general partner. The general partner, often another type of entity (typically a corporation or limited liability company), has management powers, the right to use partnership property, and is personally liable for the debts of the partnership.[15]
Conversely, limited partners do not participate in the management of the business and are generally liable for the partnership’s debts only to the extent of their contributed investment. Limited partnerships permit a person to invest in a partnership while limiting their liability and involvement in its management. In general, a formal written agreement is required to create a limited partnership.[16]
3. Limited Liability Partnership
In a limited liability partnership (LLP),[17] all partners have limited liability similar to that of limited partners in a limited partnership, but without the limitations on control over the company.[18] Some states limit usage of LLPs to certain professions (for example, lawyers).[19]
4. Limited Liability Limited Partnership
A limited liability limited partnership (LLLP) is a modification of the limited partnership.[20] Similar to a limited partnership, the LLLP consists of one or more general partners and one or more limited partners.[21]
In general, the key features of an LLLP are:
-
The general partners manage the business operations of the LLLP, while the limited partners typically only maintain a passive financial interest;
-
It is designed to offer limited liability to all partners in the partnership; and
-
The partners decide the structure of the organization and the distribution of profits and losses. States usually recommend the partners establish a formal, written partnership agreement.[22]
Not every state allows the formation of or recognizes LLLPs.
5. Taxes
The IRS generally considers partnerships to be pass-through tax entities, which means that the partnership itself does not pay income taxes and all of the profits and losses of the partnership pass through the business to the partners, who pay taxes on their share of the profits (or deduct their share of the losses) on their individual income tax returns.[23] Each partner may share in the profits and losses of the partnership equally, or in proportion to their respective contributions to the partnership or as otherwise set out in a written partnership agreement.
Even though the partnership itself does not pay income taxes, it must file U.S. Return of Partnership Income (IRS Form 1065). This form is an informational return the IRS reviews to determine whether the partners are reporting their income correctly.[24] Net income or loss (notated on tax forms as ordinary business income (loss))[25] is found on IRS Form 1065 or Schedule K and net current assets are calculated from information on Schedule L.
C. Corporation
A corporation is a created by filing articles of incorporation with a state. In the eyes of the law, a corporation is a distinct body separate from its owners and management. Accordingly, a corporation is entitled to all legal rights afforded to individual persons, such as the ability to bring and defend lawsuits or to buy and sell property. The corporation’s most notable feature is that, subject to narrow exceptions, it protects its owners (shareholders) from personal liability for its debts and obligations.[26] A corporation also has directors and officers who run the business.
A corporation has perpetual life. When a shareholder dies or otherwise elects to leave a corporation, the shareholder can transfer their stock to others. Corporate shareholders own the corporation, the board of directors manages the corporation through their direction and control of its officers, and, in almost all cases, the officers oversee the day-to-day operations of the corporation. The shareholders elect the directors, who in turn appoint the corporate officers. Often, particularly in smaller corporations, the same person might serve multiple roles within a corporation: shareholder, director, and officer.[27]
A corporation’s shareholders, directors, and officers must observe particular formalities in a corporation’s operation and administration.[28] For example, corporations must, on at least an annual basis, make decisions regarding a corporation’s management by formal vote and must record those votes in the corporate minutes. Meetings of shareholders and directors must be properly noticed and must meet quorum requirements. Finally, corporations must meet annual reporting requirements in their state of incorporation and in states where they do significant business.[29]
1. Subchapter C Corporations
Corporations that have not elected to be taxed as a subchapter S corporation are by default taxed as a C corporation under Subchapter C of Chapter 1 of the Internal Revenue Code (IRC) where the general tax rules affecting corporations and their shareholders are located.[30]
Taxes[31]
A C corporation files U.S. Corporation Income Tax Return (IRS Form 1120). C corporations (and other entities electing to be taxed as C corporations) are the only type of businesses that must pay income taxes on profits.[32] The subsections below discuss how other corporations file and pay their taxes.
Generally, a C corporation’s taxable profits consist of money kept in the company to cover expenses or expansion (called retained earnings) and profits that are distributed to the owners (shareholders) as dividends. These dividends are taxed twice, as the shareholders also pay taxes on these amounts.[33] Net income (taxable income before net operating loss deduction and special deductions) appears on the IRS Form 1120 or 1120-A, while net current assets are calculated from information on Schedule L of IRS Form 1120 or 1120-A.
To reduce taxable profits, a C corporation can deduct many of its business expenses that the C corporation spends in the legitimate pursuit of profit.[34]
2. Subchapter S Corporations
The subchapter S corporation is a variation of the standard subchapter C corporation. The rules for subchapter S corporations are found in the IRC[35] and provide many of the benefits of partnership taxation while at the same time giving the owners limited liability protection from creditors.
An S corporation has the same corporate structure as a standard C corporation. It is a legal entity, chartered under state law, separate from its shareholders and officers, and there is generally limited liability for corporate shareholders. The difference is that the S corporation files an election on Election by a Small Business Corporation (IRS Form 2553), to be treated differently for federal tax purposes.
As with partnerships, the income, deductions, and tax credits of an S corporation flow through to shareholders annually, regardless of whether distributions (dividends) are made. Therefore, income is taxed solely at the shareholder level and not at the corporate level. To qualify for S corporation status, the corporation must meet certain requirements.[36]
Taxes
An S corporation files U.S. Income Tax Return for an S Corporation (IRS Form 1120-S). The corporate income flows through and is reported on the shareholders’ individual tax returns. The corporation completes and files a Shareholder’s Share of Income, Deductions, Credits, etc. (Schedule K-1) with IRS Form 1120-S for each shareholder. The Schedule K-1 tells shareholders their allocable share of corporate income and deductions.
Shareholders must pay tax on their share of corporate income, regardless of whether it is actually distributed. Net income or loss, notated on tax forms as ordinary business income (loss),[37] appears on the IRS Form 1120-S or its Schedule K, while net current assets are calculated from information on Schedule L.
3. Personal Service Corporation
A personal service corporation is a corporation where the employee-owners are engaged in the performance of personal services. The IRC defines personal services as services performed in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, and consulting.[38]
To qualify as a personal service corporation, substantially all the corporation’s activities must involve the performance of personal services, and a percentage of the corporation’s stock must be owned by employees performing the personal services.[39]
Taxes
A personal service corporation pays tax on its profits as a corporate entity. However, a personal service corporation is not allowed to use the graduated tax rates for other C corporations. Instead, it is subject to a flat tax based on the highest corporate tax rate. Because of the high tax rate, personal service corporations generally distribute their profits as wages to the employee-shareholders. In turn, the employee-shareholders pay personal taxes on their wages.[40]
The personal service corporation files its taxes on IRS Form 1120. This form contains a box for the business to indicate that it is a personal service corporation.[41] Net income or loss is notated on IRS Form 1120 or 1120-A as taxable income before net operating loss deduction and special deductions, while net current assets are calculated from information on IRS Form 1120 Schedule L.
D. Limited Liability Company
A limited liability company (LLC) is a hybrid entity, combining some of the most advantageous features of partnerships and corporations.[42] LLCs were created to provide business owners with the liability protection that corporations enjoy without the double taxation. Under the default tax standard, earnings and losses of an LLC pass through to the owners and are included on their personal tax returns.[43]
LLCs are similar to S corporations, except that LLCs are not limited in the number of owners or types of members.[44] LLCs may be either member-managed (managed by each of its members) or manager-managed (managed by specified managers who may or may not be members of the LLC).[45] The LLC’s operating agreement may distinguish between members and managing members. Generally, if such a distinction is made, managing members of the LLC are allowed a full participatory role in the business’s operation. However, depending on the operating agreement, even regular members may have a role in the business’s operation.
To set up an LLC, organizers file articles of organization with the secretary of state in the state where the LLC is formed. Some states also require the filing of an operating agreement, which is similar to a partnership agreement. LLCs do not necessarily have perpetual life and can be set up to dissolve after a set period of time, such as a specific number of years, upon the occurrence of a triggering event, such as the death or withdrawal of a member, or as otherwise provided in the operating agreement.
The IRS does not recognize an LLC as a classification for federal tax purposes and by default treats multi-member LLCs as a partnership and single-member LLCs as a disregarded entity (similar to a sole proprietorship) for tax purposes. As with other entities, however, an LLC may file an election to be taxed differently (such as a corporation).[46]
1. Taxes
For federal income tax purposes, LLCs with two or more members are treated by default as partnerships (a pass-through entity) and must file the IRS Form 1065, discussed above under Section B, Partnership. Each partner receives a Partner’s Share of Income, Deductions, Credits, etc. (Schedule K-1) for their share of income or losses to be reported on that partner’s individual tax return.
If there is only one member in the LLC, it is treated as a disregarded entity (similar to a sole proprietorship) for tax purposes, and the owner reports the LLC’s income on the owner’s personal individual tax return on Schedules C, E, or F to the IRS Form 1040, discussed above under Section A, Sole Proprietorship.
As an option, LLCs may also elect to be taxed like a corporation by filing Entity Classification Election (IRS Form 8832). They can be treated as a regular C corporation (taxation of the entity’s income before any dividends or distributions to the members and then taxation of the dividends or distributions once received as income by the members), or as an S corporation. These corporations file IRS Form 1120 or 1120-S, discussed above under Section C, Corporation.
E. Non-Profit Organization
1. Overview
A non-profit organization (NPO) is an entity that serves some public purpose and therefore enjoys special treatment under the law, including often having tax-exempt status and the protection of directors, officers, and members from personal liability.[47] Typically, NPOs are engaged in charitable, educational, religious, or artistic activities of public or private interest.[48] Unlike a for-profit business entity, an NPO does not distribute profits to its owners.[49] Instead, any profits must ultimately go back into the organization.
In general, an NPO is formed and governed under state statutes the same as other entity types, and often takes the form of nonprofit corporations or LLCs. Whether incorporated or unincorporated, an NPO must keep records, prepare minutes of meetings, and have a separate bank account.
The board of directors typically makes collaborative decisions regarding the operation of the NPO. The board defines the mission and the policies of the NPO, creates budgets and oversees finances, and hires an executive director. If the NPO has an executive director, the director carries out the daily functions of the NPO under the management of the board. The executive director’s job is also to advise and report information to the board about activities and programs, and to monitor finances.
2. Taxes
An incorporated or unincorporated NPO can qualify for tax-exempt status if it meets certain conditions. In most states, if an NPO qualifies for a federal tax exemption it also automatically qualifies for a state tax exemption. The federal government offers many different types of tax exemptions for non-profits under IRC 501(c).[50] The most popular kind of NPO is called a 501(c)(3).[51] Under this code section, the NPO is exempt from paying federal income taxes and contributions made to the non-profit are generally tax-deductible for the donors.
Most NPOs are required to file an annual informational return, called a Return of Organization Exempt From Income Tax (IRS Form 990 or IRS Form 990EZ), if the organization’s gross receipts exceed $50,000 from sources other than the exempt purpose.[52] Some religious organizations are not required to file IRS Form 990 or 990EZ.[53]
IRS Form 990 provides an analysis of an NPO’s revenue and expenses, and net income is stated on the form as revenue less expenses. The abbreviated balance sheet on IRS Form 990 does not identify which assets and liabilities are current and therefore is not useful for calculating net current assets.
Footnotes
[^ 1] See IRS’s Employer ID Numbers webpage. For an explanation of what types of business structures require an EIN, see IRS’s Do You Need an EIN webpage.
[^ 2] For an explanation of married couples and sole proprietorship, see IRS’s Frequently Asked Questions for Entities webpage.
[^ 3] See Black’s Law Dictionary (11th ed. 2019).
[^ 4] See Matter of United Investment Group (PDF), 19 I&N Dec. 248 (Comm. 1984).
[^ 5] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 3. For a general overview of sole proprietorships, see Jeffrey F. Beatty and Susan S. Samuelson, Business Law and the Legal Environment (Cengage Learning, 2006), p. 755. See the U.S. Small Business Administration’s (SBA’s) Choose a business structure webpage.
[^ 6] See Section 101 of the Uniform Partnership Act (1997). The Uniform Partnership Act is a uniform act from the National Conference of Commissioners on Uniform State Laws for the governance of partnerships. It has been amended several times since its promulgation, most recently in 2011 and 2013. The Uniform Partnership Act has been enacted by most U.S. states.
[^ 7] See the IRS’s Tax Information For Partnerships webpage.
[^ 8] See Section 202(a) of the Uniform Partnership Act (1997).
[^ 9] See IRS’s Instructions for Form 1065.
[^ 10] A partnership can also be formed by estoppel (where a party is held out to be a partner and can be held liable for debts or damages incurred by the partnership). See definition of “partnership by estoppel,” Black’s Law Dictionary (11th ed. 2019). A written general partnership agreement usually identifies the names of the partners; the amount and type of contribution made by each partner; each partner’s initial percentage of ownership; the business activities conducted by the partnership; whether and how partnership interests can be transferred; and the conditions allowing dissolution of the partnership. See Section 103 of the Uniform Partnership Act (1997).
[^ 11] See the IRS’s Tax Information For Partnerships webpage.
[^ 12] See Section 306 of the Uniform Partnership Act (1997).
[^ 13] See the Uniform Limited Partnership Act (2001). The Uniform Limited Partnership Act is another uniform act from the National Conference of Commissioners on Uniform State Laws for the governance of partnerships.
[^ 14] See Angela Schneeman, Law of Corporations and Other Business Organizations (Cengage Learning, 2009), p. 114.
[^ 15] See Sections 201 and 404 of the Uniform Limited Partnership Act (2001).
[^ 16] The elements identified in these written agreements include the names of partners, the amount and type of contribution made by each partner, whether the partners hold a limited partnership interest, each partner’s initial percentage of ownership, the business activities of the limited partnership, whether and how partnership interests can be transferred, and the conditions allowing the dissolution of the limited partnership. See IRS Publication 541, Partnerships.
[^ 17] See IRS’s Instructions for Form 1065. See Section 1001 of the Uniform Partnership Act.
[^ 18] See the U.S. SBA’s Choose a business structure webpage.
[^ 19] See IRS’s SOI Tax Stats - Partnership Study Explanation of Selected Terms webpage.
[^ 20] For an example of limited partnerships and LLLPs, see page 21 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF).
[^ 21] State law created and governs LLLPs. See, for example, page 21 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF), and State of California Franchise Tax Board’s Limited liability limited partnership webpage.
[^ 22] For a discussion of one state’s LLLP provisions, see pages 21 to 23 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF).
[^ 23] See IRS’s Tax Information For Partnerships webpage.
[^ 24] The partnership must also provide a Partner’s Share of Income, Deductions, Credits, etc. (Schedule K-1) to the IRS and to each partner, which breaks down each partner's share of the business's profits and losses. In turn, each partner reports this profit and loss information on Schedule E of the partner’s individual IRS Form 1040. See IRS’s Instructions for Schedule E.
[^ 25] Negative values are represented in parentheses on tax forms.
[^ 26] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 8.
[^ 27] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 8.
[^ 28] See William Meade Fletcher, Cyclopedia of the Law of Private Corporations, Vol. 1, section 41.31 (Sept. 2021 Update). See DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit Co., 540 F.2d 681 (4th Cir. 1976) (court properly ignored the existence of a corporate entity where there was a failure to follow corporate formalities).
[^ 29] See Wachovia Securities, LLC v. Jahelka, 586 F.Supp.2d 972, 1002 (N.D.I.L. 2008) (disregarding a corporation’s existence when it failed to observe required corporate formalities such as holding regular meetings, taking minutes, and maintaining corporate records).
[^ 30] For instructions on electing a different taxation structure, see IRS’s S Corporations webpage and IRS’s Instructions for Form 1120.
[^ 31] When determining whether or not a corporation has the ability to pay the beneficiary the proffered wage, officers should refer to Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay [6 USCIS-PM E.4].
[^ 32] S corporations, partnerships, sole proprietorships, and limited liability companies (LLCs) are not taxed on business profits unless they elect otherwise; instead, the profits pass through the businesses to their owners, who report business income or losses on their personal tax returns.
[^ 33] See IRS Publication 542, Corporations.
[^ 34] In addition to start-up costs, operating expenses, and product and advertising outlays, a C corporation can deduct the salaries and bonuses it pays and all of the costs associated with medical and retirement plans for employees. See IRS’s Instructions for Form 1120.
[^ 35] See 26 U.S.C. 1361.
[^ 36] See IRS’s S Corporations webpage. A subchapter S corporation must be a domestic corporation; have only allowable shareholders (may include persons, certain trusts, and estates, but may not include partnerships, corporations, or non-resident shareholders); have no more than 100 shareholders; have only one class of stock (for example, no preferred stock allowed); and not be an ineligible corporation (such as certain financial institutions, insurance companies, and domestic international sales corporations).
[^ 37] Negative values are represented on tax forms by parentheses.
[^ 38] See 26 U.S.C. 448(d)(2).
[^ 39] See IRS Publication 542, Corporations.
[^ 40] See IRS’s Instructions for Form 1120.
[^ 41] When determining whether or not a corporation has the ability to pay the beneficiary the proffered wage, officers should refer to Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay [6 USCIS-PM E.4].
[^ 42] See the U.S. SBA’s Choose a business structure webpage.
[^ 43] While the default tax treatment for an LLC is pass-through taxation, as with all entities, it may elect to be taxed differently.
[^ 44] See IRS’s SOI Tax Stats - Partnership Study Explanation of Selected Terms webpage.
[^ 45] The powers and duties of members and managers are typically outlined in the LLC’s operating agreement. See U.S. SBA’s Basic Information About Operating Agreements webpage.
[^ 46] See IRS’s Limited Liability Company (LLC) webpage. A professional limited liability company (PLLC) is an LLC organized for the purpose of providing professional services, such as a doctor, chiropractor, lawyer, accountant, architect, landscape architect, or engineer. Some states permit LLCs to engage in the practice of a licensed profession through PLLCs. Exact requirements of PLLCs vary from state to state. Typically, a PLLC's members must all be professionals practicing the same profession. In addition, the limitation of personal liability of members does not extend to professional malpractice claims.
[^ 47] See Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation, sections 1:1, 4:1, and 7:1 (Oct. 2022 Update).
[^ 48] See IRS’s Exempt Organization Types webpage.
[^ 49] See Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation, section 1:2 (Oct. 2022 Update).
[^ 50] See 26 U.S.C. 501.
[^ 51] To qualify, the non-profit organization must be organized and operated exclusively for the exempt purposes set forth in IRC 501(c)(3)—charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals—and no part of their net earnings “may inure to any private shareholder or individual.” See 26 U.S.C. 501(c)(3). See IRS’s Exemption Requirements – 501(c)(3) Organizations webpage.
[^ 52] See IRS’s Instructions for Form 990 Return of Organization Exempt From Income Tax.
[^ 53] See IRS’s Instructions for Form 990 Return of Organization Exempt From Income Tax and IRS’s Tax Guide for Churches and Religious Organizations (PDF).
| O-1A Evidentiary Criterion | Relevant Examples and Considerations |
|---|---|
| Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.[1] |
Examples:
Considerations: While many scholastic awards do not have the requisite level of recognition, there are some Ph.D. scholarships or dissertation awards, for example, that are nationally or internationally recognized as awards for excellence such that they may satisfy the requirements of this criterion. Relevant considerations include, but are not limited to:
For example, an award available only to persons within a single locality, employer, or school may have little national or international recognition, while an award open to members of a well-known national institution (including an R1 or R2 doctoral university[2]) or professional organization may be nationally recognized. |
| Documentation of the beneficiary’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.[3] |
Examples:
Considerations: The petitioner must show that membership in the association requires outstanding achievements in the field for which classification is sought, as judged by recognized national or international experts. Associations may have multiple levels of membership. The petitioner must show that in order to obtain the level of membership afforded to the beneficiary, the beneficiary was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. As a possible example, membership in the Institute of Electrical and Electronics Engineers (IEEE) at the IEEE fellow level requires, in part, that a nominee have “accomplishments that have contributed importantly to the advancement or application of engineering, science and technology, bringing the realization of significant value to society,” and nominations are judged by an IEEE council of experts and a committee of current IEEE fellows.[4] As another possible example, membership as a fellow in the Association for the Advancement of Artificial Intelligence (AAAI) is based on recognition of a nominee’s “significant, sustained contributions” to the field of artificial intelligence, and is judged by a panel of current AAAI fellows.[5] Relevant factors that may lead an officer to a conclusion that the person's membership in one or more associations was not based on outstanding achievements in the field include, but are not limited to, instances where the person's membership was based:
|
| Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in the field for which classification is sought. This evidence must include the title, date, and author of such published material and any necessary translation.[6] |
Examples:
Considerations: Published material that includes only a brief citation or passing reference to the beneficiary’s work is not “about” the beneficiary, relating to the beneficiary’s work in the field, as required under this criterion. However, the beneficiary and the beneficiary’s work need not be the only subject of the material; published material that covers a broader topic but includes a substantial discussion of the beneficiary’s work in the field and mentions the beneficiary in connection to the work may be considered material “about” the beneficiary relating to their work. Moreover, officers may consider material that focuses solely or primarily on work or research being undertaken by a team of which the beneficiary is a member, provided that the material mentions the beneficiary in connection with the work, or other evidence in the record documents the beneficiary’s significant role in the work or research. In evaluating whether a submitted publication is a professional publication, major trade publication, or major media, relevant factors include the intended audience (for professional and major trade publications) and the relative circulation, readership, or viewership (for major trade publications and other major media). |
| Evidence of the beneficiary's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought.[7] |
Examples:
Considerations: The petitioner must show that the beneficiary has not only been invited to judge the work of others, but also that the beneficiary actually participated in the judging of the work of others in the same or allied field of specialization. For example, a petitioner might document a beneficiary’s peer review work by submitting a copy of a request from a journal to the beneficiary to do the review, accompanied by evidence confirming that the beneficiary actually completed the review. |
| Evidence of the beneficiary's original scientific, scholarly, or business-related contributions of major significance in the field.[8] |
Examples:
Considerations: Analysis under this criterion focuses on whether the beneficiary’s original work constitutes major, significant contributions to the field. Evidence that the beneficiary’s work was funded, patented, or published, while potentially demonstrating the work’s originality, will not necessarily establish, on its own, that the work is of major significance to the field. However, published research that has provoked widespread commentary on its importance from others working in the field, and documentation that it has been highly cited relative to other works in that field, may be probative of the significance of the beneficiary’s contributions to the field of endeavor. Similarly, evidence that the beneficiary developed a patented technology that has attracted significant attention or commercialization may establish the significance of the beneficiary’s original contribution to the field. If a patent remains pending, USCIS will likely require additional supporting evidence to document the originality of the beneficiary’s contribution. Detailed letters from experts in the field explaining the nature and significance of the beneficiary’s contribution(s) may also provide valuable context for evaluating the claimed original contributions of major significance, particularly when the record includes documentation corroborating the claimed significance. Submitted letters should specifically describe the beneficiary’s contribution and its significance to the field and should also set forth the basis of the writer’s knowledge and expertise. |
| Evidence of the beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media.[9] |
Examples:
Considerations: In order to meet this criterion, the beneficiary must be a listed author of the submitted article(s) but need not be the sole or first author. In addition, a petitioner need not provide evidence that the beneficiary’s published work has been cited to meet this criterion.[11] In addition, the articles must be scholarly. In the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution and the article is normally peer-reviewed. In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. In non-academic arenas, a scholarly article should be written for learned persons in that field. In evaluating whether a submitted publication is a professional publication or major media, relevant factors include the intended audience (for professional journals) and the circulation or readership relative to other media in the field (for major media). |
| Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.[12] |
Examples:
Considerations: To show a critical role, the evidence should establish that the beneficiary has contributed in a way that is of significant importance to the organization or establishment’s activities. To show an essential role, the evidence should establish that the beneficiary’s role is (or was) integral to the entity. A leadership role in an organization often qualifies as critical or essential. For a supporting role to be considered critical or essential, USCIS considers other factors, such as whether the beneficiary’s performance in the role is (or was) integral or important to the organization or establishment’s goals or activities, especially in relation to others in similar positions within the organization. It is not the title of the beneficiary’s role, but rather the beneficiary’s duties and performance in the role that determines whether the role is (or was) critical or essential. Detailed letters from persons with personal knowledge of the significance of the beneficiary’s role can be particularly helpful in analyzing this criterion. The organization need not have directly employed the beneficiary. In addition, the organization or establishment must be recognized as having a distinguished reputation. Relevant factors for evaluating the reputation of an organization or establishment can include the scale of its customer base, longevity, or relevant media coverage. For academic departments, programs, and institutions, officers may also consider national rankings and receipt of government research grants as positive factors in some cases. For a startup business, officers may consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders commensurate with funding rounds generally achieved for that startup’s stage and industry, as a positive factor regarding its distinguished reputation. |
| Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services as evidenced by contracts or other reliable evidence.[14] |
Examples:
Considerations: If the petitioner is claiming to meet this criterion, then the burden is on the petitioner to provide appropriate evidence establishing that the beneficiary’s compensation is high relative to others working in similar occupations in the field. The following webpages, among others, may be helpful in evaluating the relative compensation for a given field:
Officers should evaluate persons working outside of the United States based on the wage statistics or comparable evidence for that locality, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States. For entrepreneurs or founders of startup businesses, officers consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders in evaluating the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or remuneration for services. |
Footnotes
[^ 1] 8 CFR 214.2(o)(3)(iii)(B)(1).
[^ 2] The Carnegie Classification of Institutions of Higher Education recognizes R1 and R2 doctoral universities as having “very high” or “high” research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Basic Classification Description webpage.
[^ 3] 8 CFR 214.2(o)(3)(iii)(B)(2).
[^ 4] See the IEEE’s Steps to Become an IEEE Fellow webpage.
[^ 5] See the AAAI Fellows Program webpage.
[^ 6] See 8 CFR 214.2(o)(3)(iii)(B)(3).
[^ 7] See 8 CFR 214.2(o)(3)(iii)(B)(4).
[^ 8] See 8 CFR 214.2(o)(3)(iii)(B)(5).
[^ 9] See 8 CFR 214.2(o)(3)(iii)(B)(6).
[^ 10] While many articles accepted for presentation at conferences do not result in publication, there are conferences that peer review and publish accepted presentations in professional journals (sometimes called proceedings), such that they may qualify as scholarly articles under this criterion.
[^ 11] Instead, officers may consider citation evidence relating to the published work as part of the totality analysis to evaluate whether the record establishes that the beneficiary has sustained national or international acclaim and is among the small percentage at the top of the field. For instance, documentation regarding the total rate of citations to the beneficiary’s body of published work relative to others in the field may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary is among the small percentage at the top of the field.
[^ 12] See 8 CFR 214.2(o)(3)(iii)(B)(7).
[^ 13] See SBIR America’s Seed Fund webpage.
| O-1B Evidentiary Criterion: | Relevant Considerations |
|---|---|
| 1. Evidence that the beneficiary has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements.[1] |
Note: This criterion differs from the third criterion, which is specific to organizations and establishments.[2] This criterion requires evidence of:
Evidence may demonstrate a lead role by establishing that the person has a principal role in the event or production. A starring role means a position of great prominence relative to others in the event or production.[3] In evaluating the distinguished reputation of a past production or event, officers may consider factors such as favorable critical reception, high attendance levels, commercial success, or another indicator that the petitioner establishes would tend to distinguish the reputation of an event or production in the relevant field. With regard to demonstrating the distinguished reputation of a prospective event, a petitioner may submit documentation such as advance publicity, endorsements, or other evidence regarding the level of anticipation of the relevant event or production. However, as the available evidence relating to the reputation of a prospective production or event will often be limited, officers may also consider factors such as the reputation of similar past events or productions by the same individuals or entities. In evaluating whether the beneficiary’s participation in a past or future event or production qualifies as lead or starring, officers may consider, for example, whether the beneficiary’s role is highlighted or featured in advertisements, publicity releases, critical reviews, or other materials. The contractual terms offered to the beneficiary may also be relevant to establishing the lead or starring nature of the beneficiary’s participation, especially with regard to a prospective event or production. This criterion does not require that the beneficiary will have a lead or starring role in the specific U.S. events or productions for which O-1 classification is sought, or that such events or productions have a distinguished reputation. It is sufficient for the petitioner to otherwise demonstrate that the beneficiary has performed and will perform a qualifying role in a qualifying production within or outside of the United States. To meet this criterion, the petitioner must submit evidence in the form of critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. Advertisements, publicity releases, and endorsements are promotional materials. Endorsements are public facing and serve a marketing purpose. This exhaustive list does not include unpublished testimonial or recommendation letters. |
| 2. Evidence that the beneficiary has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications.[4] |
To meet this criterion, the petitioner must provide evidence that demonstrates the beneficiary is recognized for achievements nationally or internationally, in the form of:
The beneficiary and the beneficiary’s achievements need not be the only subject of the material in order to qualify as published material about the individual as described in this criterion. For example, published material that covers a broader production, exhibition, or topic, but includes a discussion of the beneficiary, or includes a discussion of the beneficiary’s work or achievement and mentions the beneficiary in connection to the work, may be considered material about the beneficiary. Material may be considered by the beneficiary even if the beneficiary is one of multiple authors. In determining whether the submitted evidence demonstrates that the beneficiary has achieved national or international recognition for achievements, officers consider both the content of the published material and the level of recognition enjoyed by the publication in which it appears. For example, favorable coverage or publication of the beneficiary’s work in major media, as demonstrated by high relative circulation, readership, or viewership figures, could establish national or international recognition of the beneficiary’s achievements. |
| 3. Evidence that the beneficiary has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials.[5] |
Note: This criterion differs from the first criterion, which is specific to productions or events.[6] This criterion requires evidence of:
Evidence may demonstrate a lead role by establishing that the person has a principal role in the organization or establishment. A starring role means a position of great prominence relative to others in the organization.[7] To show a critical role, the evidence should establish that the beneficiary has contributed or will contribute in a way that is of significant importance to the organization or establishment’s activities. Officers consider factors such as whether the beneficiary’s performance in the role has been or will be integral or important to the organization or establishment’s goals or activities, especially in relation to others in similar positions within the organization. Detailed letters from persons with personal knowledge of the significance of the beneficiary’s role can be particularly helpful in addressing this criterion. Letters and testimonials should provide as much detail as possible about the beneficiary’s role and the reputation of the organization or establishment and give the credentials of the author, including the basis of the author’s knowledge of the beneficiary’s role. In addition, the organization or establishment, or the relevant division or department within the entity, must be recognized as having a distinguished reputation. Relevant factors for evaluating the reputation of an entity or its department or division include, but are not limited to, the scale of its customer base, longevity, or relevant media coverage. The organization need not have directly employed the beneficiary. |
| 4. Evidence that the beneficiary has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.[8] |
This criterion requires evidence in the form of publications establishing the beneficiary’s record of major commercial or critically acclaimed success. The publications may include print or online publications or transcripts of radio or video coverage. A submitted publication does not have to be primarily about the beneficiary and may be about a production in which the beneficiary performed. However, the record should demonstrate how the production’s major commercial or critically acclaimed success represents the beneficiary’s success. For instance, a petitioner might establish that a production’s success is in some way attributable to the beneficiary based on the significance of the beneficiary’s contributions. A publication reporting the commercial success of the beneficiary or the beneficiary’s work should reflect that the ratings, receipts, sales, revenue, standing, or other occupational achievement represent major successes in the relevant field. If demonstrating critically acclaimed success, the evidence should demonstrate that the beneficiary’s work has received public-facing praise or positive reviews in the relevant field, such as from professional art, television, or film critics. |
| 5. Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the beneficiary is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the beneficiary's achievements.[9] |
To meet this criterion, the evidence must establish the beneficiary has received significant recognition for one or more achievements from an organization, critic, government agency, or other recognized expert in the field. The word significant in this criterion modifies recognition rather than achievements. Accordingly, although the beneficiary must have one or more achievements, the significance of the recognition is based on who is recognizing the achievements. A testimonial written on behalf of an organization or government agency should explain the basis for the author’s knowledge including the author’s connection to the organization or agency, and the significance of the organization or agency within the relevant field. Likewise, a testimonial from a critic or a recognized expert should explain the basis of the author’s knowledge and describe the author’s credentials including the author’s expertise in the relevant field.[10] The author should also describe and explain the significance of the achievements the author is recognizing. In all cases, a submitted testimonial should detail any achievements that are being recognized by the organization, agency, or individual. However, the testimonial need not describe other types of recognition that the beneficiary has received for a noted achievement. Instead, the testimonial itself may qualify as significant recognition under this criterion when the significance of the recognizing organization, agency, or individual is established. |
| 6. Evidence that the beneficiary has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.[11] |
To demonstrate that the petitioner meets this criterion, the petitioner should provide appropriate evidence establishing that the beneficiary’s past or future compensation is or will be high relative to others working in the field. When evaluating assertions regarding future compensation, officers may consider the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or remuneration for services. Petitioners often submit wage surveys to show a comparison. Wage survey data, including but not limited to government wage survey data such as the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics, may be helpful in evaluating the relative compensation for a given field. When evaluating whether an accurate comparison is being made between the beneficiary’s documented remuneration and the remuneration in the survey, the following considerations, among others, may be relevant:
|
Footnotes
[^ 1] See 8 CFR 214.2(o)(3)(iv)(B)(1) and 8 CFR 214.2(o)(3)(v)(B)(1).
[^ 2] See 8 CFR 214.2(o)(3)(iv)(B)(3) and 8 CFR 214.2(o)(3)(v)(B)(3). A production or event includes examples such as: an art show or exhibit, concert, or theatrical production (for O-1B (arts)); or a film or television show (for O-1B (MPTV)). In contrast, an organization or establishment includes examples such as: a company, collective, or other entity, including but not limited to entities that produce artistic productions or events (for O-1B (arts)); or the production company or studio producing the film or television show (for O-1B (MPTV)).
[^ 3] Consistent with a plain language reading, a “lead” role generally refers to a principal role, while to “star” means to feature in the most prominent or important role. See Merriam-Webster Dictionary’s definition of “lead" and definition of “starring.”
[^ 4] See 8 CFR 214.2(o)(3)(iv)(B)(2) and 8 CFR 214.2(o)(3)(v)(B)(2).
[^ 5] See 8 CFR 214.2(o)(3)(iv)(B)(3) and 8 CFR 214.2(o)(3)(v)(B)(3).
[^ 6] See 8 CFR 214.2(o)(3)(iv)(B)(1) and 8 CFR 214.2(o)(3)(v)(B)(1). A production or event includes examples such as: an art show or exhibit, concert, or theatrical production (for O-1B (arts)); or a film or television show (for O-1B (MPTV)). In contrast, an organization or establishment includes examples such as: a company, collective, or other entity, including but not limited to entities that produce artistic productions or events (for O-1B (arts)); or the production company or studio producing the film or television show (for O-1B (MPTV)).
[^ 7] Consistent with a plain language reading, a “lead” role generally refers to a principal role, while to “star” means to feature in the most prominent or important role. See Merriam-Webster Dictionary’s definition of “lead" and definition of “starring.”
[^ 8] See 8 CFR 214.2(o)(3)(iv)(B)(4) and 8 CFR 214.2(o)(3)(v)(B)(4).
[^ 9] See 8 CFR 214.2(o)(3)(iv)(B)(5) and 8 CFR 214.2(o)(3)(v)(B)(5).
[^ 10] The regulation at 8 CFR 214.2(o)(2)(iii)(B) provides that affidavits written by recognized experts certifying to the recognition and extraordinary ability or extraordinary achievement of the beneficiary shall specifically describe the beneficiary’s recognition and ability or achievement in factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired such information.
[^ 11] See 8 CFR 214.2(o)(3)(iii)(B)(6) and 8 CFR 214.2(o)(3)(v)(B)(6)
Updates
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the nonimmigrant exchange visitor (J) visa classification, including USCIS’ role in the adjudication of waivers of the 2-year foreign residence requirement and change of status requests under the Immigration and Nationality Act (INA).
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify how USCIS evaluates evidence to determine eligibility for the O-1B visa classification for nonimmigrants of extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture or television (MPTV) industry.
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding on-site inspections for special immigrant and nonimmigrant religious worker petitions.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify the validity period of employment authorization for F-1 students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)).
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to reorganize and expand on existing guidance related to special immigrant religious workers.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify how USCIS determines eligibility for L-1 nonimmigrants seeking classification as managers or executives or specialized knowledge workers. Note: This update consolidates and updates guidance that was previously contained in the Adjudicator’s Field Manual (AFM) Chapter 32, as well as related AFM appendices and policy memoranda. This update is not intended to change existing policy or create new policy.
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to further clarify how USCIS evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on persons in science, technology, engineering, or mathematics (STEM) fields.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify how a petitioner may demonstrate that it qualifies for an exemption from the temporary need requirement for a nonimmigrant visa petition for a temporary nonagricultural H-2B worker on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) that falls under the National Defense Authorization Act for Fiscal Year 2021 (FY 2021 NDAA).
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify how USCIS evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on persons in science, technology, engineering, or mathematics (STEM) fields, as well as how USCIS determines whether an O-1 beneficiary’s prospective work is within the beneficiary’s area of extraordinary ability or achievement.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify how USCIS determines whether an O-1B beneficiary is evaluated as a person of extraordinary ability in the arts (O-1B Arts) or as a person of extraordinary achievement in the motion picture or television industry (O-1B MPTV).
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding applications for change of status (COS) to F-1 classification.
U.S. Citizenship and Immigration Services (USCIS) is providing guidance in the USCIS Policy Manual regarding the filing and adjudication of temporary nonagricultural worker (H-2B) nonimmigrant visa petitions that fall under Section 9502 of the National Defense Authorization Act for Fiscal Year 2021 (FY 2021 NDAA).
This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the issue of deference to prior determinations of eligibility by an officer when adjudicating a request for an extension of petition validity.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and clarify guidance for internationally recognized athletes (P-1A nonimmigrants).
This technical update removes the guidance in Volume 2, Part A, Chapter 4, Volume 8, Part G, and Volume 12, Part D, Chapter 2 relating to the administration of the public charge ground of inadmissibility under the Inadmissibility on Public Charge Grounds final rule, 84 FR 41292 (Aug. 14, 2019); as amended by Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357 (Oct. 2, 2019) ( “Public Charge Final Rule”), which was implemented on Feb. 24, 2020. On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. On Nov. 3, 2020, the U.S. Court of Appeals for the Seventh Circuit issued an administrative stay and, on Nov. 19, 2020, a stay pending appeal of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted its stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the nonimmigrant cultural visitor visa classification, commonly known as the “Q” visa category.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and consolidate guidance related to O nonimmigrant classifications.
This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapter 33 of the AFM, related appendices, and policy memoranda.
U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. This guidance becomes effective October 2, 2020. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary.
1 USCIS-PM A - Part A - Public Services
1 USCIS-PM B - Part B - Submission of Benefit Requests
2 USCIS-PM - Volume 2 - Nonimmigrants
7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures
7 USCIS-PM F - Part F - Special Immigrant-Based Adjustment
7 USCIS-PM M - Part M - Asylee Adjustment
11 USCIS-PM A - Part A - Secure Identity Documents Policies and Procedures
U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 332.97 KB) between the AFM and the Policy Manual.
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole
4 USCIS-PM - Volume 4 - Refugees and Asylees
5 USCIS-PM - Volume 5 - Adoptions
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 1, 3.4, 10.2, 10.3(a), 10.3(c), 10.3(e), 10.3(i), 10.4, 10.22, 11.1(c), 13, 14, 17, 23.8, 31.7, 33.10, 34.5, 35, 41.6, 42, 44, 56.1, 56.3, 56.4, 62, 81, 82, 83.1, 83.2, and 83.3 of the AFM, related appendices, and policy memoranda.
Note: On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. The U.S. Court of Appeals for the Seventh Circuit later issued a stay of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted the stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage. The alert text below and related guidance are no longer in effect.
This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of [noncitizens] who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see the USCIS webpage on the injunction.
Note: On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. The U.S. Court of Appeals for the Seventh Circuit later issued a stay of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted the stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage. The alert text below and related guidance are no longer in effect.
U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1 (PDF). For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of [noncitizens] who are exempt from the final rule, see the appendices related to applicability.
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the foreign information media representative nonimmigrant visa classification, commonly known as the “I” visa category.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance on the trainees (H-3) nonimmigrant visa category.
Version History
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