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8 CFR 204.5 (up to date as of 4 18)

Updated: Author: Alina Kanametova

Reference Guides 17 pages Anonymized Access on request

Text of 8 CFR 204.5 as of 4/18: a 17-page snapshot of the regulation governing EB-1 and EB-2 immigrant petition criteria.

O-1 EB-1A EB-2 NIW Petition

About this document

An eCFR regulation on employment-based immigrant petitions under 8 CFR 204.5, updated through April 18, 2024. It sets filing forms, who may file, priority date rules, retained priority dates, and the initial evidence required for multiple immigrant classifications, including EB-1A, outstanding professors/researchers, multinational executives/managers, EB-2, and EB-3. It also defines key terms and evidence for ability to pay, labor certification, and comparable evidence.

Key points

  • Form I-140 is used for 203(b)(1), (2), and (3) petitions; Form I-360 is used for certain special immigrant petitions.
  • Each applicant needs a separate I-140 or I-360, with the required fee and supporting documents.
  • Priority date comes from labor certification acceptance, or from proper USCIS filing when no labor certification is needed.
  • Approved 203(b)(1), (2), or (3) petitions can carry the earliest retained priority date to later qualifying petitions; denied petitions do not.
  • Retained priority date is lost if approval was revoked for fraud, material misrepresentation, labor certification revocation, invalidation, or material error.
  • EB-1A requires national or international acclaim and either a major award or at least three listed types of evidence; comparable evidence is allowed if the standards do not fit.
  • EB-1A does not require a job offer or labor certification, but the filing must show the alien will continue work in the field.
  • EB-2 may be based on an advanced degree or exceptional ability, with labor certification unless the national interest exemption applies.

When it helps

This regulation serves as the rule source for how employment-based immigrant petitions are filed and proved, including EB-1A, EB-1B, EB-1C, EB-2, and EB-3. It also shows what evidence categories and priority-date rules the petition must satisfy.

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