EB-1 Petition Valid With or Without Prospective Employer

The following is a January 25, 1993, letter from Edward H. Skerrett, Director, INS Immigrant Branch for Adjudications to Mark Nerenberg. Mr. Nerenberg inquires as to whether an approved immigrant petition for an alien of extraordinary ability remains valid where the petition was filed by a prospective employer and the alien now intends to pursue other vocational opportunities.

Dear Mr. Nerenberg,

In your facsimile message on January 19, you ask whether an approved immigrant petition for an alien of extraordinary ability under section 203(b)(1)(A) remains valid if the petition was filed by a prospective employer and the alien now intends to pursue other vocational pursuits.

Pursuant to section 204(a)(1)(C), a petition for an alien of extraordinary ability under section 203(b)(1)(A) may be filed by the alien or by anyone in the alien's behalf. Furthermore, an alien classifiable under section 203(b)(1)(A) is not required to have a job offer of a labor certification, but must demonstrate how he or she plans to continue work in the United States.  It is our opinion that the petition which is the subject of your inquiry remains valid even through the alien will not be working for the prospective employer as long as the alien can demonstrate how he plans to continue his work in the United States. Therefore, at the time of visa or adjustment interview, the alien should present new documentation to this effect in accordance with 8CFR 204.5(b)(5).

Edward H. Skerrett