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8 CFR 204.5 (up to date as of 8 15) ENG

Updated: Author: Alina Kanametova

Reference Guides 17 pages Anonymized Access on request

Text of 8 CFR 204.5 (as of 8/15), English version: the regulation setting EB-1A and EB-2 petition evidence standards. 17 pages.

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

About this document

An eCFR regulatory text for employment-based immigrant petitions under 8 CFR 204.5, updated as of Aug. 15, 2023. It sets filing forms, jurisdiction, priority date rules, evidence standards, and employer ability-to-pay requirements, then lays out criteria for EB-1, EB-2, and EB-3 classifications. The text also describes retention and transfer limits for priority dates and the documentation needed for each category.

Key points

  • Form I-140 is used for section 203(b)(1), (2), and (3) petitions; Form I-360 is used for certain special immigrants.
  • Each applicant needs a separate I-140 or I-360 with the correct fee and required supporting evidence.
  • Priority date depends on labor certification filing date, or on proper USCIS filing date when no labor certification is required.
  • Approved 203(b)(1)-(3) petitions can carry the earliest priority date to later qualifying petitions, but denied petitions cannot.
  • Priority date is not transferable to another alien and can be lost if approval is revoked for fraud, misrepresentation, labor-cert issues, or material error.
  • Petitions requiring a job offer must show the employer can pay the offered wage from priority date onward, using tax returns, reports, or audited statements.
  • EB-1A requires national or international acclaim and either a major award or at least three listed types of evidence; no job offer or labor certification.
  • EB-2 exceptional ability can seek a national-interest job-offer waiver with Form ETA-750B and supporting evidence.

When it helps

It serves as the governing regulation for how employment-based immigrant petitions are filed and what evidence each category must include. For an EB-1A or EB-2 NIW file, it shows the regulatory criteria and the job-offer or labor-certification rules the petition must address.

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