immigration and naturalization service, justice §212 · immigration and naturalization service,...

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Immigration and Naturalization Service, Justice § 212.7

(3) In Mexico or Canada. Forms I–185,I–186 or I–586 may be declared void by aconsular officer in Mexico or Canada ifthe card was issued in one of thosecountries.

(4) Grounds. Grounds for voidance of aForm I–185, I–186 or I–586 shall be thatthe holder has violated the immigra-tion laws; that he/she is inadmissibleto the United States; or that he/she hasabandoned his/her residence in thecountry upon which the card wasgranted.

(e) Replacement. If a nonresident alienborder crossing card has been lost, sto-len, mutilated, or destroyed, the personto show the card was issued may applyfor a new card as provided for in thissection. A fee as prescribed in§ 103.7(b)(1) of this chapter must be sub-mitted at time of application for thereplacement card. The holder of aForm I–185, I–186, or I–586 which is inpoor condition because of improperproduction may be issued a new formwithout submitting fee or applicationupon surrendering the original card.

(f) Previous removal or deportation;waiver of inadmissibility. Pursuant tothe authority contained in section 212(d)(3) of the Act, the temporary admis-sion of an alien who is inadmissibleunder paragraph (16) or (17) of section212(a) of the Act is authorized if suchalien is in possession of a Mexican Non-resident Alien Border Crossing Cardand he establishes that he is otherwiseadmissible as a nonimmigrant visitoror student except for his removal or de-portation prior to November 1, 1956, be-cause of entry without inspection orlack of required documents.

[30 FR 10184, Aug. 17, 1965, as amended at 34FR 129, Jan. 4, 1969; 35 FR 3065, Feb. 17, 1970;37 FR 7584, Apr. 18, 1972; 37 FR 8061, Apr. 25,1972; 45 FR 11114, Feb. 20, 1980; 46 FR 25082,May 5, 1981; 48 FR 35349, Aug. 4, 1983; 60 FR40068, Aug. 7, 1995; 62 FR 9074, Feb. 28, 1997; 62FR 10349, Mar. 6, 1997]

§ 212.7 Waiver of certain grounds ofexcludability.

(a) Section 212(h) or (i)—(1) Filing pro-cedure—(i) Immigrant visa or fiance(e)nonimmigrant visa applicant. An appli-cant for an immigrant visa or ‘‘K’’ non-immigrant visa who is excludable andseeks a waiver under section 212(h) or(i) of the Act shall file an application

on Form I–601 at the consular officeconsidering the visa application. Upondetermining that the alien is admissi-ble except for the grounds for which awaiver is sought, the consular officershall transmit the Form I–601 to theService for decision.

(ii) Adjustment of status applicant. Anapplicant for adjustment of status whois excludable and seeks a waiver undersection 212(h) or (i) of the Act shall filean application on Form I–601 with thedirector or immigration judge consid-ering the application for adjustment ofstatus.

(2) Termination of application for lackof prosecution. An applicant may with-draw the application at any time priorto the final decision, whereupon thecase will be closed and the consulatenotified. If the applicant fails to pros-ecute the application within a reason-able time either before or after inter-view the applicant shall be notifiedthat if he or she fails to prosecute theapplication within 30 days the case willbe closed subject to being reopened atthe applicant’s request. If no actionhas been taken within the 30-day pe-riod immediately thereafter, the casewill be closed and the appropriate con-sul notified.

(3) Decision. If the application is ap-proved the director shall completeForm I–607 for inclusion in the alien’sfile and shall notify the alien of the de-cision. If the application is denied theapplicant shall be notified of the deci-sion, of the reasons therefor, and of theright to appeal in accordance with part103 of this chapter.

(4) Validity. A waiver granted undersection 212(h) or section 212(i) of theAct shall apply only to those groundsof excludability and to those crimes,events or incidents specified in the ap-plication for waiver. Once granted, thewaiver shall be valid indefinitely, evenif the recipient of the waiver laterabandons or otherwise loses lawful per-manent resident status, except thatany waiver which is granted to an alienwho obtains lawful permanent resi-dence on a conditional basis under sec-tion 216 of the Act shall automaticallyterminate concurrently with the termi-nation of such residence pursuant tothe provisions of section 216. Separatenotification of the termination of the

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waiver is not required when an alien isnotified of the termination of residenceunder section 216 of the Act, and no ap-peal shall lie from the decision to ter-minate the waiver on this basis. How-ever, if the respondent is found not tobe deportable in a deportation proceed-ing based on the termination, the waiv-er shall again become effective. Noth-ing in this subsection shall precludethe director from reconsidering a deci-sion to approve a waiver if the decisionis determined to have been made inerror.

(b) Section 212(g) (tuberculosis and cer-tain mental conditions)—(1) General. Anyalien who is ineligible for a visa and isexcluded from admission into theUnited States under section 212(a) (1),(3), or (6) of the Act may file an Appli-cation for Waiver of Grounds of Exclud-ability (Form I–601) under section212(g) of the Act at an office designatedin paragraph (2). The family memberspecified in section 212(g) of the Actmay file the waiver for the applicant ifthe applicant is incompetent to file thewaiver personally.

(2) Locations for filing Form I–601.Form I–601 may be filed at any one ofthe following offices:

(i) The American consulate where theapplication for a visa is being consid-ered if the alien is outside the UnitedStates;

(ii) The Service office having juris-diction over the port of entry wherethe alien is applying for admission intothe United States; or

(iii) The Service office having juris-diction over the alien if the alien is inthe United States.

(3) Section 212(a)(6) (tuberculosis). Ifthe alien is excludable under section212(a)(6) of the Act because of tuber-culosis, he shall execute Statement Aon the reverse of page 1 of Form I–601.In addition, he or his sponsor in theUnited States is responsible for havingStatement B executed by the physicianor health facility which has agreed tosupply treatment or observation; and,if required, Statement C shall be exe-cuted by the appropriate local or Statehealth officer.

(4) Section 212(a) (1) or (3) (certain men-tal conditions)—(i) Arrangements for sub-mission of medical report. If the alien isexcludable under section 212(a) (1) or (3)

(because of mental retardation or be-cause of a past history of mental ill-ness) he or his sponsoring family mem-ber shall submit an executed Form I–601 to the consular or Service officewith a statement that arrangementshave been made for the submission tothat office of a medical report. Themedical report shall contain a com-plete medical history of the alien, in-cluding details of any hospitalizationor institutional care or treatment forany physical or mental condition; find-ings as to the current physical condi-tion of the alien, including reports ofchest X-ray examination and of sero-logic test for syphilis if the alien is 15years of age or over, and other perti-nent diagnostic tests; and findings asto the current mental condition of thealien, with information as to prognosisand life expectancy and with a reportof a psychiatric examination conductedby a psychiatrist who shall, in case ofmental retardation, also provide anevaluation of the alien’s intelligence.For an alien with a past history ofmental illness, the medical report shallalso contain available information onwhich the U.S. Public Health Servicecan base a finding as to whether thealien has been free of such mental ill-ness for a period of time sufficient inthe light of such history to dem-onstrate recovery. Upon receipt of themedical report, the consular or Serviceoffice shall refer it to the U.S. PublicHealth Service for review.

(ii) Submission of statement. Uponbeing notified that the medical reporthas been reviewed by the U.S. PublicHealth Service and determined to beacceptable, the alien or the alien’ssponsoring family member shall sub-mit a statement to the consular orService office. The statement must befrom a clinic, hospital, institution, spe-cialized facility, or specialist in theUnited States approved by the U.S.Public Health Service. The alien oralien’s sponsor may be referred to themental retardation or mental healthagency of the state of proposed resi-dence for guidance in selecting a post-arrival medical examining authoritywho will complete the evaluation andprovide an evaluation report to the


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Centers for Disease Control. The state-ment must specify the name and ad-dress of the specialized facility, or spe-cialist, and must affirm that:

(A) The specified facility or specialistagrees to evaluate the alien’s mentalstatus and prepare a complete report ofthe findings of such evaluation.

(B) The alien, the alien’s sponsoringfamily member, or another responsibleperson has made complete financial ar-rangements for payment of any chargesthat may be incurred after arrival forstudies, care, training and service;

(C) The Director, Division of Quar-antine, Center for Prevention Services,Centers for Disease Control, Atlanta,GA. 30333 shall be furnished:

(1) The report evaluating the alien’smental status within 30 days after thealien’s arrival; and

(2) Prompt notification of the alien’sfailure to report to the facility or spe-cialist within 30 days after being noti-fied by the U.S. Public Health Servicethat the alien has arrived in the UnitedStates.

(D) The alien shall be in an out-patient, inpatient, study, or other spec-ified status as determined by the re-sponsible local physcian or specialistduring the initial evaluation.

(5) Assurances: Bonds. In all casesunder paragraph (b) of this section thealien or his or her sponsoring familymember shall also submit an assurancethat the alien will comply with anyspecial travel requirements as may bespecified by the U.S. Public HealthService and that, upon the admissionof the alien into the United States, heor she will proceed directly to the fa-cility or specialist specified for the ini-tial evaluation, and will submit to suchfurther examinations or treatment asmay be required, whether in an out-patient, inpatient, or other status. Thealien, his or her sponsoring familymember, or other responsible personshall provide such assurances or bondas may be required to assure that thenecessary expenses of the alien will bemet and that he or she will not becomea public charge. For procedures relat-ing to cancellation or breaching ofbonds, see part 103 of this chapter.

(c) Section 212(e). (1) An alien who wasadmitted to the United States as an ex-change visitor, or who acquired that

status after admission, is subject tothe foreign residence requirement ofsection 212(e) of the Act if his or herparticipation in an exchange programwas financed in whole or in part, di-rectly or indirectly, by a United Statesgovernment agency or by the govern-ment of the country of his or her na-tionality or last foreign residence.

(2) An alien is also subject to the for-eign residence requirement of section212(e) of the Act if at the time of ad-mission to the United States as an ex-change visitor or at the time of acqui-sition of exchange visitor status afteradmission to the United States, thealien was a national or lawful perma-nent resident of a country which theDirector of the United States Informa-tion Agency had designated, throughpublic notice in the FEDERAL REGISTER,as clearly requiring the services of per-sons engaged in the field of specializedknowledge or skill in which the alienwas to engage in his or her exchangevisitor program.

(3) An alien is also subject to the for-eign residence requirement of section212(e) of the Act if he or she was admit-ted to the United States as an ex-change visitor on or after January 10,1977 to receive graduate medical edu-cation or training, or following admis-sion, acquired such status on or afterthat date for that purpose. However, anexchange visitor already participatingin an exchange program of graduatemedical education or training as ofJanuary 9, 1977 who was not then sub-ject to the foreign residence require-ment of section 212(e) and who proceedsor has proceeded abroad temporarilyand is returning to the United Statesto participate in the same program,continues to be exempt from the for-eign residence requirement.

(4) A spouse or child admitted to theUnited States or accorded status undersection 101(a)(15)(J) of the Act to ac-company or follow to join an exchangevisitor who is subject to the foreignresidence requirement of section 212(e)of the Act is also subject to that re-quirement.

(5) An alien who is subject to the for-eign residence requirement and who be-lieves that compliance therewith wouldimpose exceptional hardship upon his/her spouse or child who is a citizen of


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the United States or a lawful perma-nent resident alien, or that he or shecannot return to the country of his orher nationality or last residence be-cause he or she will be subject to perse-cution on account of race, religion, orpolitical opinion, may apply for a waiv-er on Form I–612. The alien’s spouseand minor children, if also subject tothe foreign residence requirement, maybe included in the application, providedthe spouse has not been a participantin an exchange program.

(6) Each application based upon aclaim to exceptional hardship must beaccompanied by the certificate of mar-riage between the applicant and his orher spouse and proof of legal termi-nation of all previous marriages of theapplicant and spouse; the birth certifi-cate of any child who is a UnitedStates citizen or lawful permanentresident alien, if the application isbased upon a claim of exceptional hard-ship to a child, and evidence of theUnited States citizenship of the appli-cant’s spouse or child, when the appli-cation is based upon a claim of excep-tional hardship to a spouse or childwho is a citizen of the United States.

(7) Evidence of United States citizen-ship and of status as a lawful perma-nent resident shall be in the form pro-vided in part 204 of this chapter. An ap-plication based upon exceptional hard-ship shall be supported by a statement,dated and signed by the applicant, giv-ing a detailed explanation of the basisfor his or her belief that his or hercompliance with the foreign residencerequirement of section 212(e) of theAct, as amended, would impose excep-tional hardship upon his or her spouseor child who is a citizen of the UnitedStates or a lawful permanent residentthereof. The statement shall includeall pertinent information concerningthe incomes and savings of the appli-cant and spouse. If exceptional hard-ship is claimed upon medical grounds,the applicant shall submit a medicalcertificate from a qualified physiciansetting forth in terms understandableto a layman the nature and effect ofthe illness and prognosis as to the pe-riod of time the spouse or child will re-quire care or treatment.

(8) An application based upon the ap-plicant’s belief that he or she cannot

return to the country of his or her na-tionality or last residence because theapplicant would be subject to persecu-tion on account of race, religion, or po-litical opinion, must be supported by astatement, dated and signed by the ap-plicant, setting forth in detail why theapplicant believes he or she would besubject to persecution.

(9) Waivers under Pub. L. 103–416 basedon a request by a State Department ofPublic Health (or equivalent). In accord-ance with section 220 of Pub. L. 103–416,an alien admitted to the United Statesas a nonimmigrant under section101(a)(15)(J) of the Act, or who acquiredstatus under section 101(a)(15)(J) of theAct after admission to the UnitedStates, to participate in an exchangeprogram of graduate medical educationor training (as of January 9, 1977), mayapply for a waiver of the 2-year homecountry residence and physical pres-ence requirement (the ‘‘2-year require-ment’’) under section 212(e)(iii) of theAct based on a request by a State De-partment of Pubic Health, or its equiv-alent. To initiate the application for awaiver under Pub. L. 103–416, the De-partment of Public Health, or itsequivalent, or the State in which theforeign medical graduate seeks to prac-tice medicine, must request the Direc-tor of USIA to recommend a waiver tothe Service. The waiver may be grant-ed only if the Director of USIA pro-vides the Service with a favorablewaiver recommendation. Only theService, however, may grant or denythe waiver application. If granted, sucha waiver shall be subject to the termsand conditions imposed under section214(l) of the Act (as redesignated bysection 671(a)(3)(A) of Pub. L. 104–208).Although the alien is not required tosubmit a separate waiver applicationto the Service, the burden rests on thealien to establish eligibility for thewaiver. If the Service approves a waiv-er request made under Pub. L. 103–416,the foreign medical graduate (and ac-companying dependents) may apply forchange of nonimmigrant status, fromJ–1 to H–1B and, in the case of depend-ents of such a foreign medical grad-uate, from J–2 to H–4. Aliens receivingwaivers under section 220 of Pub. L.103–416 are subject, in all cases, to the


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provisions of section 214(g)(1)(A) of theAct.

(i) Eligiblity criteria. J–1 foreign medi-cal graduates (with accompanying J–2dependents) are eligible to apply for awaiver of the 2-year requirement underPub. L. 103–416 based on a request by aState Department of Public Health (orits equivalent) if:

(A) They were admitted to the UnitedStates under section 101(a)(15)(J) of theAct, or acquired J nonimmigrant sta-tus before June 1, 2002, to pursue grad-uate medical education or training inthe United States.

(B) They have entered into a bonafide, full-time employment contract for3 years to practice medicine at a healthcare facility located in an area or areasdesignated by the Secretary of Healthand Human Services as having a short-age of health care professionals (‘‘HHS-designated shortage area’’);

(C) They agree to commence employ-ment within 90 days of receipt of thewaiver under this section and agree topractice medicine for 3 years at the fa-cility named in the waiver applicationand only in HHS-designated shortageareas. The health care facility namedin the waiver application may be oper-ated by:

(1) An agency of the Government ofthe United States or of the State inwhich it is located; or

(2) A charitable, educational, orother not-for-profit organization; or

(3) Private medical practitioners.(D) The Department of Public Health,

or its equivalent, in the State wherethe health care facility is located hasrequested the Director, USIA, to rec-ommend the waiver, and the Director,USIA, submits a favorable waiver rec-ommendation to the Service; and

(E) Approval of the waiver will notcause the number of waivers grantedpursuant to Pub. L. 103–416 and thissection to foreign medical graduateswho will practice medicine in the samestate to exceed 20 during the currentfiscal year.

(ii) Decision on waivers under Pub. L.103–416 and notification to the alien—(A)Approval. If the Director of USIA sub-mits a favorable waiver recommenda-tion on behalf of a foreign medicalgraduate pursuant to Pub. L. 103–416,and the Service grants the waiver, the

alien shall be notified of the approvalon Form I–797 (or I–797A or I–797B, asappropriate). The approval notice shallclearly state the terms and conditionsimposed on the waiver, and the Serv-ice’s records shall be noted accord-ingly.

(B) Denial. If the Director of USIAissues a favorable waiver recommenda-tion under Pub. L. 103–416 and the Serv-ice denies the waiver, the alien shall benotified of the decision and of the rightto appeal under 8 CFR part 103. How-ever, no appeal shall lie where the basisfor denial is that the number of waiv-ers granted to the State in which theforeign medical graduate will be em-ployed would exceed 20 for that fiscalyear.

(iii) Conditions. The foreign medicalgraduate must agree to commence em-ployment for the health care facilityspecified in the waiver applicationwithin 90 days of receipt of the waiverunder Pub. L. 103–416. The foreign med-ical graduate may only fulfill the req-uisite 3-year employment contract asan H–1B nonimmigrant. A foreign med-ical graduate who receives a waiverunder Pub. L. 103–416 based on a re-quest by a State Department of PublicHealth (or equivalent), and changes hisor her nonimmigrant classificationfrom J–1 to H–1B, may not apply forpermanent residence or for any otherchange of nonimmigrant classificationunless he or she has fulfilled the 3-yearemployment contract with the healthcare facility and in the specified HHS-designated shortage area named in thewaiver application.

(iv) Failure to fulfill the three-year em-ployment contract due to extenuating cir-cumstances. A foreign medical graduatewho fails to meet the terms and condi-tions imposed on the waiver under sec-tion 214(l) of the Act and this para-graph will once again become subjectto the 2-year requirement under sec-tion 212(e) of the Act.

Under section 214(l)(1)(B) of the Act,however, the Service, in the exercise ofdiscretion, may excuse early termi-nation of the foreign medical grad-uate’s 3-year period of employmentwith the health care facility named inthe waiver application due to extenuat-ing circumstances. Extenuating cir-cumstances may include, but are not


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limited to, closure of the health carefacility or hardship to the alien. In de-termining whether to excuse such earlytermination of employment, the Serv-ice shall base its decision on the spe-cific facts of each case. In all cases, theburden of establishing eligibility for afavorable exercise of discretion restswith the foreign medical graduate. De-pending on the circumstances, closureof the health care facility named in thewaiver application may, but need not,be considered an extenuating cir-cumstance excusing early terminationof employment. Under no cir-cumstances will a foreign medicalgraduate be eligible to apply forchange of status to another non-immigrant category, for an immigrantvisa or for status as a lawful perma-nent resident prior to completing therequisite 3-year period of employmentfor a health care facility located in anHHS-designated shortage area.

(v) Required evidence. A foreign medi-cal graduate who seeks to have earlytermination of employment excuseddue to extenuating circumstances shallsubmit documentary evidence estab-lishing such a claim. In all cases, theforeign medical graduate shall submitan employment contract with anotherhealth care facility located in an HHS-designated shortage area for the bal-ance of the required 3-year period ofemployment. A foreign medical grad-uate claiming extenuating cir-cumstances based on hardship shallalso submit evidence establishing thatsuch hardship was caused by unfore-seen circumstances beyond his or hercontrol. A foreign medical graduateclaiming extenuating circumstancesbased on closure of the health care fa-cility named in the waiver applicationshall also submit evidence that the fa-cility has closed or is about to beclosed.

(vi) Notification requirements. A J–1foreign medical graduate who has beengranted a waiver of the 2-year require-ment pursuant to Pub. L. 103–416, is re-quired to comply with the terms andconditions specified in section 214(l) ofthe Act and the implementing regula-tions in this section. If the foreignmedical graduate subsequently appliesfor and receives H–1B status, he or shemust also comply with the terms and

conditions of that nonimmigrant sta-tus. Such compliance shall also includenotifying the Service of any materialchange in the terms and conditions ofthe H–1B employment, by filing eitheran amended or a new H–1B petition, asrequired, under §§ 214.2(h)(2)(i)(D),214.2(h)(2)(i)(E), and 214.2(h)(11) of thischapter.

(A) Amended H–1B petitions. Thehealth care facility named in the waiv-er application and H–1B petition shallfile an amended H–1B petition, as re-quired under § 214.2(h)(2)(i)(E) of thischapter, if there are any materialchanges in the terms and conditions ofthe beneficiary’s employment or eligi-bility as specified in the waiver appli-cation filed under Pub. L. 103–416 andin the subsequent H–1B petition. Insuch a case, an amended H–1B petitionshall be accompanied by evidence thatthe alien will continue practicing med-icine with the original employer in anHHS-designated shortage area.

(B) New H–1B petitions. A health carefacility seeking to employ a foreignmedical graduate who has been granteda waiver under Pub. L. 103–416 (prior tothe time the alien has completed his orher 3-year contract with the facilitynamed in the waiver application andoriginal H–1B petition), shall file a newH–1B petition with the Service, as re-quired under §§ 214.2(h)(2)(i) (D) and (E)of this chapter. Although a new waiverapplication need not be filed, the newH–1B petition shall be accompanied bythe documentary evidence generallyrequired under § 214.2(h) of this chapter,and the following additional docu-ments:

(1) A copy of Form I–797 (and/or I–797A and I–797B) relating to the waiverand nonimmigrant H status grantedunder Pub. L. 103–416;

(2) An explanation from the foreignmedical graduate, with supporting evi-dence, establishing that extenuatingcircumstances necessitate a change inemployment;

(3) An employment contract estab-lishing that the foreign medical grad-uate will practice medicine at thehealth care facility named in the newH–1B petition for the balance of the re-quired 3-year period; and


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(4) Evidence that the geographic areaor areas of intended employment indi-cated in the new H–1B petition are inHHS-designated shortage areas.

(C) Review of amended and new H–1Bpetitions for foreign medical graduatesgranted waivers under Pub. L. 103–416and who seek to have early termination ofemployment excused due to extenuatingcircumstances—(1) Amended H–1B peti-tions. The waiver granted under Pub. L.103–416 may be affirmed, and theamended H–1B petition may be ap-proved, if the petitioning health carefacility establishes that the foreignmedical graduate otherwise remains el-igible for H–1B classification and thathe or she will continue practicing med-icine in an HHS-designated shortagearea.

(2) New H–1B petitions. The Serviceshall review a new H–1B petition filedon behalf of a foreign medical graduatewho has not yet fulfilled the required 3-year period of employment with thehealth care facility named in the waiv-er application and in the original H–1Bpetition to determine whether extenu-ating circumstances exist which war-rant a change in employment, andwhether the waiver granted under Pub.L. 103–416 should be affirmed. In con-ducting such a review, the Serviceshall determine whether the foreignmedical graduate will continue practic-ing medicine in an HHS-designatedshortage area, and whether the new H–1B petitioner and the foreign medicalgraduate have satisfied the remainingH–1B eligibility criteria describedunder section 101(a)(15)(H) of the Actand § 214.2(h) of this chapter. If thesecriteria have been satisfied, the waivergranted to the foreign medical grad-uate under Pub. L. 103–416 may be af-firmed, and the new H1–B petition maybe approved in the exercise of discre-tion, thereby permitting the foreignmedical graduate to serve the balanceof the requisite 3-year employment pe-riod at the health care facility namedin the new H–1B petition.

(D) Failure to notify the Service of anymaterial changes in employment. Foreignmedical graduates who have beengranted a waiver of the 2-year require-ment and who have obtained H–1B sta-tus under Pub. L. 103–416 but fail to:Properly notify the Service of any ma-

terial change in the terms and condi-tions of their H–1B employment, byhaving their employer file an amendedor a new H–1B petition in accordancewith this section and § 214.2(h) of thischapter; or establish continued eligi-bility for the waiver and H–1B status,shall (together with their dependents)again become subject to the 2-year re-quirement. Such foreign medical grad-uates and their accompanying H–4 de-pendents also become subject to depor-tation under section 241(a)(1)(C)(i) ofthe Act.

(10) The applicant and his or herspouse may be interviewed by an immi-gration officer in connection with theapplication and consultation may behad with the Director, United StatesInformation Agency and the sponsor ofany exchange program in which the ap-plicant has been a participant.

(11) The applicant shall be notified ofthe decision, and if the application isdenied, of the reasons therefor and ofthe right of appeal in accordance withthe provisions of part 103 of this chap-ter. However, no appeal shall lie fromthe denial of an application for lack ofa favorable recommendation from theSecretary of State. When an interestedUnited States Government agency re-quests a waiver of the two-year for-eign-residence requirement and the Di-rector, United States InformationAgency had made a favorable rec-ommendation, the interested agencyshall be notified of the decision on itsrequest and, if the request is denied, ofthe reasons thereof, and of the right ofappeal. If the foreign country of thealien’s nationality or last residence hasfurnished statement in writing that ithas no objection to his/her being grant-ed a waiver of the foreign residence re-quirement and the Director, UnitedStates Information Agency has made afavorable recommendation, the Direc-tor shall be notified of the decisionand, if the foreign residence require-ment is not waived, of the reasonstherefor and of the foregoing right ofappeal. However, this ‘‘no objection’’provision is not applicable to the ex-change visitor admitted to the UnitedStates on or after January 10, 1977 toreceive graduate medical education ortraining, or who acquired such statuson or after that date for such purpose;


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except that the alien who commenced aprogram before January 10, 1977 andwho was readmitted to the UnitedStates on or after that date to con-tinue participation in the same pro-gram, is eligible for the ‘‘no objection’’waiver.

(Secs. 103, 203, 212 of the Immigration andNationality Act, as amended by secs. 4, 5, 18of Pub. L. 97–116, 95 Stat. 1611, 1620, (8 U.S.C.1103, 1153, 1182)

[29 FR 12584, Sept. 4, 1964; 29 FR 13242, Sept.24, 1964, as amended at 30 FR 14776, Nov. 30,1965; 32 FR 2500, Feb. 7, 1967; 37 FR 22725, Oct.31, 1972; 46 FR 45327, Sept. 11, 1981; 47 FR44235, Oct. 7, 1982; 48 FR 20684, May 9, 1983; 48FR 23159, May 24, 1983; 48 FR 30610, July 5,1983; 49 FR 48530, Dec. 13, 1984; 53 FR 30017,Aug. 10, 1988; 60 FR 26681, May 18, 1995; 60 FR27598, May 24, 1995; 62 FR 18508, Apr. 16, 1997]

§ 212.8 Certification requirement ofsection 212(a)(14).

(a) General. The certification require-ment of section 212(a)(14) of the Act ap-plies to aliens seeking admission to theUnited States or adjustment of statusunder section 245 of the Act for thepurpose of performing skilled or un-skilled labor, who are preference immi-grants as described in section 203(a) (3)or (6) of the Act, or who are non-preference immigrants as described insection 203(a)(8). The certification re-quirement shall not be applicable to anonpreference applicant for admissionto the United States or to a non-preference applicant for adjustment ofstatus under section 245 who estab-lishes that he will not perform skilledor unskilled labor. A native of theWestern Hemisphere who established apriority date with a consular officerprior to January 1, 1977 and who wasfound to be entitled to an exemptionfrom the labor certification require-ment of section 212(a)(14) of the Actunder the law in effect prior to Janu-ary 1, 1977 as the parent, spouse orchild of a United States citizen or law-ful permanent resident alien shall con-tinue to be exempt from that require-ment for so long as the relationshipupon which the exemption is based con-tinues to exist.

(b) Aliens not required to obtain laborcertifications. The following persons arenot considered to be within the pur-view of section 212(a)(14) of the Act and

do not require a labor certification: (1)A member of the Armed Forces of theUnited States; (2) a spouse or child ac-companying or following to join hisspouse or parent who either has a laborcertification or is a nondependent alienwho does not require such a certifi-cation; (3) a female alien who intendsto marry a citizen or alien lawful per-manent resident of the United States,who establishes satisfactorily that shedoes not intend to seek employment inthe United States and whose fiance hasguaranteed her support; (4) an alienwho establishes on Form I–526 that hehas invested, or is actively in the proc-ess of investing, capital totaling atleast $40,000 in an enterprise in theUnited States of which he will be aprincipal manager and that the enter-prise will employ a person or persons inthe United States of which he will be aprincipal manager and that the enter-prise will employ a person or persons inthe United States who are UnitedStates citizens or aliens lawfully ad-mitted for permnanent residence, ex-clusive of the alien, his spouse andchildren. A copy of a document submit-ted in support of Form I–526 may be ac-cepted though unaccompanied by theoriginal, if the copy bears a certifi-cation by an attorney, typed or rubber-stamped in the language set forth in§ 204.2(j) of this chapter. However, theoriginal document shall be submitted,if submittal is requested by the Serv-ice.

[31 FR 10021, July 23, 1966; 31 FR 10355, Aug.22, 1966, as amended at 34 FR 5326, Mar. 18,1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566,Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR44990, Oct. 13, 1982; 48 FR 19157, Apr. 28, 1983]

§ 212.9 Applicability of section212(a)(32) to certain derivativethird and sixth preference and non-preference immigrants.

A derivative beneficiary who is thespouse or child of a qualified third orsixth preference or nonpreference im-migrant and who is also a graduate ofa medical school as defined by section101(a)(41) of the Act is not consideredto be an alien who is coming to theUnited States principally to performservices as a member of the medicalprofession. Therefore, a derivative


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§ 214.2 Special requirements for ad-mission, extension, and mainte-nance of status.

The general requirements in § 214.1are modified for the following non-immigrant classes:

(a) Foreign government officials—(1)General. The determination by a con-sular officer prior to admission and therecognition by the Secretary of Statesubsequent to admission is evidence ofthe proper classification of a non-immigrant under section 101(a)(15)(A)of the Act. An alien who has a non-immigrant status under section101(a)(15)(A)(i) or (ii) of the Act is to beadmitted for the duration of the periodfor which the alien continues to be rec-ognized by the Secretary of State asbeing entitled to that status. An aliendefined in section (101)(a)(15)(A)(iii) ofthe Act is to be admitted for an initialperiod of not more than three years,and may be granted extensions of tem-porary stay in increments of not morethan two years. In addition, the appli-cation for extension of temporary staymust be accompanied by a statementsigned by the employing official stat-ing that he/she intends to continue toemploy the applicant and describingthe type of work the applicant will per-form.

(2) Definition of A–1 or A–2 dependent.For purposes of employment in theUnited States, the term dependent of anA–1 or A–2 principal alien, as used in§ 214.2(a), means any of the followingimmediate members of the family ha-bitually residing in the same householdas the principal alien who is an officeror employee assigned to a diplomaticor consular office in the United States:

(i) Spouse;(ii) Unmarried children under the age

of 21;(iii) Unmarried sons or daughters

under the age of 23 who are in full-timeattendance as students at post-second-ary educational institutions;

(iv) Unmarried sons or daughtersunder the age of 25 who are in full-timeattendance as students at post-second-ary educational institutions if a formalbilateral employment agreement per-mitting their employment in theUnited States was signed prior to No-vember 21, 1988, and such bilateral em-ployment agreement does not specify

23 as the maximum age for employ-ment of such sons and daughters. TheOffice of Protocol of the Department ofState shall maintain a listing of for-eign states with which the UnitedStates has such bilateral employmentagreements;

(v) Unmarried sons or daughters whoare physically or mentally disabled tothe extent that they cannot adequatelycare for themselves or cannot estab-lish, maintain or re-establish their ownhouseholds. The Department of Stateor the Service may require certifi-cation(s) as it deems sufficient to docu-ment such mental or physical disabil-ity.

(3) Applicability of a formal bilateralagreement or an informal de facto ar-rangement for A–1 or A–2 dependents.The applicability of a formal bilateralagreement shall be based on the foreignstate which employs the principal alienand not on the nationality of the prin-cipal alien or dependent. The applica-bility of an informal de facto arrange-ment shall be based on the foreignstate which employs the principalalien, but under a de facto arrange-ment the principal alien also must be anational of the foreign state which em-ploys him/her in the United States.

(4) Income tax, Social Security liability;non-applicability of certain immunities.Dependents who are granted employ-ment authorization under this sectionare responsible for payment of all fed-eral, state and local income, employ-ment and related taxes and Social Se-curity contributions on any remunera-tion received. In addition, immunityfrom civil or administrative jurisdic-tion in accordance with Article 37 ofthe Vienna Convention on DiplomaticRelations or other international agree-ments does not apply to these depend-ents with respect to matters arisingout of their employment.

(5) Dependent employment pursuant toformal bilateral employment agreementsand informal de facto reciprocal arrange-ments. (i) The Office of Protocol shallmaintain a listing of foreign stateswhich have entered into formal bilat-eral employment agreements. Depend-ents of an A–1 or A–2 principal alien as-signed to official duty in the United


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States may accept or continue in unre-stricted employment based on such for-mal bilateral agreements upon favor-able recommendation by the Depart-ment of State and issuance of employ-ment authorization documentation bythe Service in accordance with 8 CFRpart 274a. The application proceduresare set forth in paragraph (a)(6) of thissection.

(ii) For purposes of this section, aninformal de facto reciprocal arrange-ment exists when the Department ofState determines that a foreign stateallows appropriate employment on thelocal economy for dependents of cer-tain United States officials assigned toduty in that foreign state. The Office ofProtocol shall maintain a listing ofcountries with which such reciprocityexists. Dependents of an A–1 or A–2principal alien assigned to official dutyin the United States may be authorizedto accept or continue in employmentbased upon informal de facto arrange-ments upon favorable recommendationby the Department of State andissuance of employment authorizationby the Service in accordance with 8CFR part 274a. Additionally, the proce-dures set forth in paragraph (a)(6) ofthis section must be complied with,and the following conditions must bemet:

(A) Both the principal alien and thedependent desiring employment aremaintaining A–1 or A–2 status as ap-propriate;

(B) The principal’s assignment in theUnited States is expected to last morethan six months;

(C) Employment of a similar naturefor dependents of United States Gov-ernment officials assigned to officialduty in the foreign state employing theprincipal alien is not prohibited bythat foreign state’s government;

(D) The proposed employment is notin an occupation listed in the Depart-ment of Labor Schedule B (20 CFR part656), or otherwise determined by theDepartment of Labor to be one forwhich there is an oversupply of quali-fied U.S. workers in the area of pro-posed employment. This Schedule B re-striction does not apply to a dependentson or daughter who is a full-time stu-dent if the employment is part-time,consisting of not more than 20 hours

per week, and/or if it is temporary em-ployment of not more than 12 weeksduring school holiday periods; and

(E) The proposed employment is notcontrary to the interest of the UnitedStates. Employment contrary to theinterest of the United States includes,but is not limited to, the employmentof A–1 or A–2 dependents: who havecriminal records; who have violatedUnited States immigration laws or reg-ulations, or visa laws or regulations;who have worked illegally in theUnited States; and/or who cannot es-tablish that they have paid taxes andsocial security on income from currentor previous United States employment.

(6) Application procedures. The follow-ing procedures are applicable to de-pendent employment applicationsunder bilateral agreements and defacto arrangements:

(i) The dependent must submit acompleted Form I–566 to the Depart-ment of State through the office, mis-sion, or organization which employshis/her principal alien. A dependent ap-plying under paragraph (a)(2)(iii) or (iv)of this section must submit a certifiedstatement from the post-secondaryeducational institution confirmingthat he/she is pursuing studies on afull-time basis. A dependent applyingunder paragraph (a)(2)(v) of this sectionmust submit medical certification re-garding his/her condition. The certifi-cation should identify the dependentand the certifying physician and givethe physician’s phone number; identifythe condition, describe the symptomsand provide a prognosis; and certifythat the dependent is unable to main-tain a home of his or her own. Addi-tionally, a dependent applying underthe terms of a de facto arrangementmust attach a statement from the pro-spective employer which includes thedependent’s name; a description of theposition offered and the duties to beperformed; the salary offered; and ver-ification that the dependent possessesthe qualifications for the position.

(ii) The Department of State reviewsand verifies the information provided,makes its determination, and endorsesthe Form I–566.

(iii) If the Department of State’s en-dorsement is favorable, the dependentmay apply to the Service. A dependent


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whose principal alien is stationed at apost in Washington, DC, or New YorkCity shall apply to the District Direc-tor, Washington, DC, or New YorkCity, respectively. A dependent whoseprincipal alien is stationed elsewhereshall apply to the District Director,Washington, DC, unless the Service,through the Department of State, di-rects the dependent to apply to the dis-trict director having jurisdiction overhis or her place of residence. Directorsof the regional service centers mayhave concurrent adjudicative authorityfor applications filed within their re-spective regions. When applying to theService, the dependent must presenthis or her Form I–566 with a favorableendorsement from the Department ofState and any additional documenta-tion as may be required by the Attor-ney General.

(7) Period of time for which employmentmay be authorized. If approved, an appli-cation to accept or continue employ-ment under this section shall be grant-ed in increments of not more thanthree years each.

(8) No appeal. There shall be no ap-peal from a denial of permission to ac-cept or continue employment underthis section.

(9) Dependents or family members ofprincipal aliens classified A–3. A depend-ent or family member of a principalalien classified A–3 may not be em-ployed in the United States under thissection.

(10) Unauthorized employment. Analien classified under section101(a)(15)(A) of the Act who is not aprincipal alien and who engages in em-ployment outside the scope of, or in amanner contrary to this section, maybe considered in violation of section241(a)(1)(C)(i) of the Act. An alien whois classified under section 101(a)(15)(A)of the Act who is a principal alien andwho engages in employment outsidethe scope of his/her official positionmay be considered in violation of sec-tion 241(a)(1)(C)(i) of the Act.

(b) Visitors—(1) General. any B–1 visi-tor for business or B–2 visitor for pleas-ure may be admitted for not more thanone year and may be granted exten-sions of temporary stay in incrementsof not more than six months each, ex-cept that alien members of a religious

denomination coming temporarily andsolely to do missionary work in behalfof a religious denomination may begranted extensions of not more thanone year each, provided that such workdoes not involve the selling of articlesor the solicitation or acceptance of do-nations. Those B–1 and B–2 visitors ad-mitted pursuant to the waiver providedat § 212.1(e) of this chapter may be ad-mitted to and stay on Guam for periodnot to exceed fifteen days and are noteligible for extensions of stay.

(2) Minimum six month admissions. AnyB–2 visitor who is found otherwise ad-missible and is issued a Form I–94, willbe admitted for a minimum period ofsix months, regardless of whether lesstime is requested, provided, that anyrequired passport is valid as specifiedin section 212(a)(26) of the Act. Excep-tions to the minimum six month ad-mission may be made only in individ-ual cases upon the specific approval ofthe district director for good cause.

(3) Visa Waiver Pilot Program. Specialrequirements for admission and main-tenance of status for visitors admittedto the United States under the VisaWaiver Pilot Program are set forth insection 217 of the Act and part 217 ofthis chapter.

(4) Admission of aliens pursuant to theNorth American Fee Trade Agreement(NAFTA). A citizen of Canada or Mex-ico seeking temporary entry for pur-poses set forth in paragraph (b)(4)(i) ofthis section, who otherwise meets ex-isting requirements under section101(a)(15)(B) of the Act, including butnot limited to requirements regardingthe source of remuneration, shall beadmitted upon presentation of proof ofsuch citizenship in the case of Cana-dian applicants, and valid entry docu-ments such as a passport and visa orMexican Border Crossing Card (Form I–186 or I–586) in the case of Mexican ap-plicants, a description of the purpose ofentry, and evidence demonstratingthat he or she is engaged in one of theoccupations or professions set forth inparagraph (b)(4)(i) of this section. Ex-isting requirements, with respect toCanada, are those requirements whichwere in effect at the time of entry intoforce of the CFTA and, with respect toMexico, are those requirements whichare in effect at the time of entry into


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force of the NAFTA. Additionally,nothing shall preclude the admission ofa citizen of Mexico or Canada whomeets the requirements of paragraph(b)(4)(ii) of this section.

(i) Occupations and professions setforth in Appendix 1603.A.1 to Annex 1603of the NAFTA—(A) Research and design.Technical scientific and statistical re-searchers conducting independent re-search or research for an enterprise lo-cated in the territory of another Party.

(B) Growth, manufacture and produc-tion (1) Harvester owner supervising aharvesting crew admitted under appli-cable law. (Applies only to harvestingof agricultural crops: Grain, fiber, fruitand vegetables.)

(2) Purchasing and production man-agement personnel conducting com-mercial transactions for an enterpriselocated in the territory of anotherParty.

(C) Marketing. (1) Market researchersand analyst conducting independent re-search or analysis, or research or anal-ysis for an enterprise located in theterritory of another Party.

(2) Trade fair and promotional per-sonnel attending a trade convention.

(D) Sales. (1) Sales representativesand agents taking orders or negotiat-ing contracts for goods or services foran enterprise located in the territoryof another Party but not deliveringgoods or providing services.

(2) Buyers purchasing for an enter-prise located in the territory of an-other Party.

(E) Distribution. (1) Transportationoperators transporting goods or pas-sengers to the United States from theterritory of another Party or loadingand transporting goods or passengersfrom the United States to the territoryof another Party, with no unloading inthe United States, to the territory ofanother Party. (These operators maymake deliveries in the United States ifall goods or passengers to be deliveredwere loaded in the territory of anotherParty. Furthermore, they may loadfrom locations in the United States ifall goods or passengers to be loadedwill be delivered in the territory of an-other Party. Purely domestic serviceor solicitation, in competition with theUnited States operators, is not per-mitted.)

(2) Customs brokers performing bro-kerage duties associated with the ex-port of goods from the United States toor through Canada.

(F) After-sales service. Installers, re-pair and maintenance personnel, andsupervisors, possessing specializedknowledge essential to the seller’s con-tractual obligation, performing serv-ices or training workers to performservices, pursuant to a warranty orother service contract incidental to thesale of commercial or industrial equip-ment or machinery, including com-puter software, purchased from an en-terprise located outside the UnitedStates, during the life of the warrantyor service agreement. (For the purposesof this provision, the commercial or in-dustrial equipment or machinery, in-cluding computer software, must havebeen manufactured outside the UnitedStates.)

(G) General service. (1) Professionalsengaging in a business activity at aprofessional level in a profession setout in Appendix 1603.D.1 to Annex 1603of the NAFTA, but receiving no salaryor other remuneration from a UnitedStates source (other than an expenseallowance or other reimbursement forexpenses incidental to the temporarystay) and otherwise satisfying the re-quirements of Section A to Annex 1063of the NAFTA.

(2) Management and supervisory per-sonnel engaging in commercial trans-actions for an enterprise located in theterritory of another Party.

(3) Financial services personnel (in-surers, bankers or investment brokers)engaging in commercial transactionsfor an enterprise located in the terri-tory of another Party.

(4) Public relations and advertisingpersonnel consulting with business as-sociates, or attending or participatingin conventions.

(5) Tourism personnel (tour and trav-el agents, tour guides or tour opera-tors) attending or participating in con-ventions or conducting a tour that hasbegun in the territory of anotherParty. (The tour may begin in theUnited States; but must terminate inforeign territory, and a significant por-tion of the tour must be conducted inforeign territory. In such a case, an op-erator may enter the United States


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with an empty conveyance and a tourguide may enter on his or her own andjoin the conveyance.)

(6) Tour bus operators entering theUnited States:

(i) With a group of passengers on abus tour that has begun in, and will re-turn to, the territory of another Party.

(ii) To meet a group of passengers ona bus tour that will end, and the pre-dominant portion of which will takeplace, in the territory of anotherParty.

(iii) With a group of passengers on abus tour to be unloaded in the UnitedStates and returning with no pas-sengers or reloading with the group fortransportation to the territory of an-other Party.

(7) Translators or interpreters per-forming services as employees of an en-terprise located in the territory of an-other Party.

(ii) Occupations and professions notlisted in Appendix 1603.A.1 to Annex1603 of the NAFTA. Nothing in thisparagraph shall preclude a businessperson engaged in an occupation orprofession other than those listed inAppendix 1603.A.1 to Annex 1603 of theNAFTA from temporary entry undersection 101(a)(15)(B) of the Act, if suchperson otherwise meets the existing re-quirements for admission as prescribedby the Attorney General.

(5) Construction workers not admissible.Aliens seeking to enter the country toperform building or construction work,whether on-site or in-plant, are not eli-gible for classification or admission asB–1 nonimmigrants under section101(a)(15)(B) of the Act. However, aliennonimmigrants otherwise qualified asB–1 nonimmigrants may be issued visasand may enter for the purpose of super-vision or training of others engaged inbuilding or construction work, but notfor the purpose of actually performingany such building or construction workthemselves.

(c) Transits—(1) Without visas. An ap-plicant for admission under the transitwithout visa privilege must establishthat he is admissable under the immi-gration laws; that he has confirmedand onward reservations to at least thenext country beyond the United States,and that he will continue his journeyon the same line or a connecting line

within 8 hours after his arrival; how-ever, if there is no scheduled transpor-tation within that 8-hour period, con-tinuation of the journey thereafter onthe first available transport will besatisfactory. Transfers from the equip-ment on which an applicant arrives toother equipment of the same or a con-necting line shall be limited to 2 innumber, with the last transport depart-ing foreign (but not necessarily non-stop foreign), and the total period ofwaiting time for connecting transpor-tation shall not exceed 8 hours exceptas provided above. Notwithstanding theforegoing, an applicant, if seeking tojoin a vessel in the United States as acrewman, shall be in possession of avalid ‘‘D’’ visa and a letter from theowner or agent of the vessel he seeks tojoin, shall proceed directly to the ves-sel on the first available transpor-tation and upon joining the vessel shallremain aboard at all times until it de-parts from the United States. Exceptfor transit from one part of foreigncontiguous territory to another part ofthe same territory, application for di-rect transit without a visa must bemade at one of the following ports ofentry: Agana, Guam, Anchorage, AK,Atlanta, GA, Baltimore, MD, Bangor,ME, Boston, MA, Brownsville, TX, Buf-falo, NY, Charlotte, NC, CharlotteAmalie, VI, Chicago, IL, Christiansted,VI, Dallas, TX, Daytona, FL, Denver,CO, Detroit, MI, Fairbanks, AK, Hart-ford, CT, Honolulu, HI, Houston, TX,Los Angeles, CA, Memphis, TN, Miami,FL, Newark, NJ, New Orleans, LA, NewYork, NY, Niagara Falls, NY, Norfolk,VA, Oakland, CA, Orlando, FL, Phila-delphia, PA, Pittsburgh, PA, Ponce,PR, Port Everglades FL, Portland, OR,San Antonio, TX, San Diego, CA, San-ford, FL, San Francisco, CA, San Juan,PR, Seattle, WA, St. Paul, MN, Tampa,FL, Washington, DC. The privilege oftransit without a visa may be author-ized only under the conditions that thetransportation line, without the priorconsent of the Service, will not refundthe ticket which was presented to theService as evidence of the alien’s con-firmed and onward reservations; thatthe alien will not apply for extension oftemporary stay or for adjustment ofstatus under section 245 of the Act, andthat until his departure from the


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United States responsibility for hiscontinuous actual custody will lie withthe transportation line which broughthim to the United States unless at thedirection of the district director he isin the custody of this Service or othercustody approved by the Commis-sioner.

(2) United Nations Headquarters Dis-trict. An alien of the class defined insection 101(a)(15)(C) of the Act, whosevisa is limited to transit to and fromthe United Nations Headquarters Dis-trict, if otherwise admissible, shall beadmitted on the additional conditionsthat he proceed directly to the imme-diate vicinity of the United NationsHeadquarters District, and remainthere continuously, departing there-from only if required in connectionwith his departure from the UnitedStates, and that he have a documentestablishing his ability to enter somecountry other than the United Statesfollowing his sojourn in the United Na-tions Headquarters District. The imme-diate vicinity of the United NationsHeadquarters District is that arealying within a twenty-five mile radiusof Columbus Circle, New York, NY.

(3) Others. The period of admission ofan alien admitted under section101(a)(15)(C) of the Act shall not exceed29 days.

(d) Crewmen. (1) The provisions ofparts 251, 252, 253, and 258 of this chap-ter shall govern the landing of crew-men as nonimmigrants of the class de-fined in section 101(a)(15)(D) of the Act.An alien in this status may be em-ployed only in a crewman capacity onthe vessel or aircraft of arrival, or on avessel or aircraft of the same transpor-tation company, and may not be em-ployed in connection with domesticflights or movements of a vessel or air-craft. However, nonimmigrant crew-men may perform crewmember dutiesthrough stopovers on an internationalflight for any United States carrierwhere such flight uses a single aircraftand has an origination or destinationpoint outside the United States.

(2) Denial of crewman status in the caseof certain labor disputes (D non-immigrants). (i) An alien shall be deniedD crewman status as described in sec-tion 101(a)(15)(D) of the Act if:

(A) The alien intends to land for thepurpose of performing service on a ves-sel of the United States (as defined in46 U.S.C. 2101(46)) or an aircraft of anair carrier (as defined in section 101(3)of the Federal Aviation Act of 1958);and

(B) A labor dispute consisting of astrike or lockout exists in the bargain-ing unit of the employer in which thealien intends to perform such service;and

(C) The alien is not already an em-ployee of the company (as described inparagraph (d)(2)(iv) of this section).

(ii) Refusal to land. Any alien (excepta qualified current employee as de-scribed in paragraph (d)(2)(iv) of thissection) who the examining immigra-tion officer determines has arrived inthe United States for the purpose ofperforming service on board a vessel oran aircraft of the United States when astrike or lockout is under way in thebargaining unit of the employer, shallbe refused a conditional landing permitunder section 252 of the Act.

(iii) Ineligibility for parole. An aliendescribed in paragraph (d)(2)(i) of thissection may not be paroled into theUnited States under section 212(d)(5) ofthe Act for the purpose of performingcrewmember duties unless the Attor-ney General determines that the paroleof such alien is necessary to protectthe national security of the UnitedStates. This paragraph does not pro-hibit the granting of parole for otherpurposes, such as medical emergencies.

(iv) Qualified current employees. (A)Paragraphs (d)(2)(i), (d)(2)(ii), and(d)(2)(iii) of this section do not apply toan alien who is already an employee ofthe owner or operator of the vessel orair carrier and who at the time of in-spection presents true copies of em-ployer work records which satisfy theexamining immigration officer thatthe alien:

(1) Has been an employee of such em-ployer for a period of not less than oneyear preceding the date that a strike orlawful lockout commenced;

(2) Has served as a qualified crewmanfor such employer at least once inthree different months during the 12-month period preceding the date thatthe strike or lockout commenced; and


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(3) Shall continue to provide thesame crewman services that he or shepreviously provided to the employer.

(B) An alien crewman who qualifiesas a current employee under this para-graph remains subject to the restric-tions on his or her employment in theUnited States contained in paragraph(d)(1) of this section.

(v) Strike or lockout determination.These provisions will take effect if theAttorney General, through the Com-missioner of the Immigration and Nat-uralization Service or his or her des-ignee, after consultation with the Na-tional Mediation Board, determinesthat a strike, lockout, or labor disputeinvolving a work stoppage is inprogress in the bargaining unit of theemployer for whom the alien intends toperform such service.

(e) Treaty traders and investors—(1)Treaty trader. An alien, if otherwise ad-missible, may be classified as a non-immigrant treaty trader (E–1) underthe provisions of section 101(a)(15)(E)(i)of the Act if the alien:

(i) Will be in the United States solelyto carry on trade of a substantial na-ture, which is international in scope,either on the alien’s behalf or as anemployee of a foreign person or organi-zation engaged in trade principally be-tween the United States and the treatycountry of which the alien is a na-tional, taking into consideration anyconditions in the country of which thealien is a national which may affectthe alien’s ability to carry on such sub-stantial trade; and

(ii) Intends to depart the UnitedStates upon the expiration or termi-nation of treaty trader (E–1) status.

(2) Treaty investor. An alien, if other-wise admissible, may be classified as anonimmigrant treaty investor (E–2)under the provision of section101(a)(15)(E)(ii) of the Act if the alien:

(i) Has invested or is actively in theprocess of investing a substantialamount of capital in a bona fide enter-prise in the United States, as distinctfrom a relatively small amount of cap-ital in a marginal enterprise solely forthe purpose of earning a living;

(ii) Is seeking entry solely to developand direct the enterprise; and

(iii) Intends to depart the UnitedStates upon the expiration or termi-nation of treaty investor (E–2) status.

(3) Employee of treaty trader or treatyinvestor. An alien employee of a treatytrader, if otherwise admissible, may beclassified as E–1, and an alien employeeof a treaty investor, if otherwise ad-missible, may be classified as E–2 if theemployee is in or is coming to theUnited States to engage in duties of anexecutive or supervisory character, or,if employed in a lesser capacity, theemployee has special qualificationsthat make the alien’s services essentialto the efficient operation of the enter-prise. The employee must have thesame nationality as the principal alienemployer. In addition, the employeemust intend to depart the UnitedStates upon the expiration or termi-nation of E–1 or E–2 status. The prin-cipal alien employer must be:

(i) A person in the United States hav-ing the nationality of the treaty coun-try and maintaining nonimmigranttreaty trader or treaty investor statusor, if not in the United States, wouldbe classifiable as a treaty trader ortreaty investor; or

(ii) An enterprise or organization atleast 50 percent owned by persons inthe United States having the national-ity of the treaty country and maintain-ing nonimmigrant treaty trader ortreaty investor status or who, if not inthe United States, would be classifiableas treaty traders or treaty investors.

(4) Spouse and children of treaty traderor treaty investor. The spouse and childof a treaty trader or treaty investor ac-companying or following to join theprincipal alien, if otherwise admissible,may receive the same classification asthe principal alien. The nationality ofa spouse or child of a treaty trader ortreaty investor is not material to theclassification of the spouse or childunder the provisions of section101(a)(15)(E) of the Act.

(5) Nonimmigrant intent. An alien clas-sified under section 101(a)(15)(E) of theAct shall maintain an intention to de-part the United States upon the expira-tion or termination of E–1 or E–2 sta-tus. However, an application for initialadmission, change of status, or exten-sion of stay in E classification may not


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be denied solely on the basis of an ap-proved request for permanent laborcertification or a filed or approved im-migrant visa preference petition.

(6) Treaty country. A treaty countryis, for purposes of this section, a for-eign state with which a qualifyingTreaty of Friendship, Commerce, orNavigation or its equivalent existswith the United States. A treaty coun-try includes a foreign state that is ac-corded treaty visa privileges under sec-tion 101(a)(15)(E) of the Act by specificlegislation.

(7) Treaty country nationality. The na-tionality of an individual treaty traderor treaty investor is determined by theauthorities of the foreign state ofwhich the alien is a national. In thecase of an enterprise or organization,ownership must be traced as best as ispracticable to the individuals who areultimately its owners.

(8) Terms and conditions of E treatystatus—(i) Limitations on employment.The Service determines the terms andconditions of E treaty status at thetime of admission or approval of a re-quest to change nonimmigrant statusto E classification. A treaty trader,treaty investor, or treaty employeemay engage only in employment whichis consistent with the terms and condi-tions of his or her status and the activ-ity forming the basis for the E treatystatus.

(ii) Subsidiary employment. Treaty em-ployees may perform work for the par-ent treaty organization or enterprise,or any subsidiary of the parent organi-zation or enterprise. Performing workfor subsidiaries of a common parent en-terprise or organization will not bedeemed to constitute a substantivechange in the terms and conditions ofthe underlying E treaty employment if,at the time the E treaty status was de-termined, the applicant presented evi-dence establishing:

(A) The enterprise or organization,and any subsidiaries thereof, where thework will be performed; the requisiteparent-subsidiary relationship; andthat the subsidiary independentlyqualifies as a treaty organization orenterprise under this paragraph;

(B) In the case of an employee of atreaty trader or treaty investor, thework to be performed requires execu-

tive, supervisory, or essential skills;and

(C) The work is consistent with theterms and conditions of the activityforming the basis of the classification.

(iii) Substantive changes. Prior Serv-ice approval must be obtained wherethere will be a substantive change inthe terms or conditions of E status. Insuch cases, a treaty alien must file anew application on Form I–129 and Esupplement, in accordance with the in-structions on that form, requesting ex-tension of stay in the United States. Insupport of an alien’s Form I–129 appli-cation, the treaty alien must submitevidence of continued eligibility for Eclassification in the new capacity. Al-ternatively, the alien must obtain froma consular officer a visa reflecting thenew terms and conditions and subse-quently apply for admission at a port-of-entry. The Service will deem thereto have been a substantive change ne-cessitating the filing of a new Form I–129 application in cases where there hasbeen a fundamental change in the em-ploying entity’s basic characteristics,such as a merger, acquisition, or sale ofthe division where the alien is em-ployed.

(iv) Non-substantive changes. Prior ap-proval is not required, and there is noneed to file a new Form I–129, if thereis no substantive, or fundamental,change in the terms or conditions ofthe alien’s employment which wouldaffect the alien’s eligibility for E clas-sification. Further, prior approval isnot required if corporate changes occurwhich do not affect the previously ap-proved employment relationship, orare otherwise non-substantive. To fa-cilitate admission, the alien may:

(A) Present a letter from the treaty-qualifying company through which thealien attained E classification explain-ing the nature of the change;

(B) Request a new Form I–797, Ap-proval Notice, reflecting the non-sub-stantive change by filing with the ap-propriate Service Center Form I–129,with fee, and a complete description ofthe change, or;

(C) Apply directly to State for a newE visa reflecting the change. An alienwho does not elect one of the three op-tions contained in paragraph (e)(8)(iv)(A) through (C) of this section, is not


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precluded from demonstrating to thesatisfaction of the immigration officerat the port-of-entry in some othermanner, his or her admissibility undersection 101(a)(15)(E) of the Act.

(v) Advice. To ascertain whether achange is substantive, an alien may filewith the Service Center Form I–129,with fee, and a complete description ofthe change, to request appropriate ad-vice. In cases involving multiple em-ployees, an alien may request that aService Center determine if a mergeror other corporate restructuring re-quires the filing of separate applica-tions by filing a single Form I–129, withfee, and attaching a list of the relatedreceipt numbers for the employees in-volved and an explanation of thechange or changes. Where employeesare located within multiple jurisdic-tions, such a request for advice must befiled with the Service Center in Lin-coln, Nebraska.

(vi) Approval. If an application tochange the terms and conditions of Estatus or employment is approved, theService shall notify the applicant onForm I–797. An extension of stay innonimmigrant E classification may begranted for the validity of the approvedapplication. The alien is not authorizedto begin the new employment until theapplication is approved. Employmentis authorized only for the period oftime the alien remains in the UnitedStates. If the alien subsequently de-parts from the United States, readmis-sion in E classification may be author-ized where the alien presents his or herunexpired E visa together with theForm I–797, Approval Notice, indicat-ing Service approval of a change of em-ployer or of a change in the sub-stantive terms or conditions of treatystatus or employment in E classifica-tion, or, in accordance with 22 CFR41.112(d), where the alien is applyingfor readmission after an absence notexceeding 30 days solely in contiguousterritory.

(vii) An unauthorized change of em-ployment to a new employer will con-stitute a failure to maintain statuswithin the meaning of section237(a)(1)(C)(i) of the Act. In all caseswhere the treaty employee will be pro-viding services to a subsidiary underthis paragraph, the subsidiary is re-

quired to comply with the terms of 8CFR part 274a.

(9) Trade—definitions. For purposes ofthis paragraph: Items of trade includebut are not limited to goods, services,international banking, insurance, mon-ies, transportation, communications,data processing, advertising, account-ing, design and engineering, manage-ment consulting, tourism, technologyand its transfer, and some news-gather-ing activities. For purposes of thisparagraph, goods are tangible commod-ities or merchandise having extrinsicvalue. Further, as used in this para-graph, services are legitimate eco-nomic activities which provide otherthan tangible goods.

Trade is the existing internationalexchange of items of trade for consider-ation between the United States andthe treaty country. Existing trade in-cludes successfully negotiated con-tracts binding upon the parties whichcall for the immediate exchange ofitems of trade. Domestic trade or thedevelopment of domestic marketswithout international exchange doesnot constitute trade for purposes ofsection 101(a)(15)(E) of the Act. This ex-change must be traceable and identifi-able. Title to the trade item must passfrom one treaty party to the other.

(10) Substantial trade. Substantialtrade is an amount of trade sufficientto ensure a continuous flow of inter-national trade items between theUnited States and the treaty country.This continuous flow contemplates nu-merous transactions over time. Treatytrader status may not be established ormaintained on the basis of a singletransaction, regardless of how pro-tracted or monetarily valuable thetransaction. Although the monetaryvalue of the trade item being ex-changed is a relevant consideration,greater weight will be given to morenumerous exchanges of larger value.There is no minimum requirement withrespect to the monetary value or vol-ume of each individual transaction. Inthe case of smaller businesses, an in-come derived from the value of numer-ous transactions which is sufficient tosupport the treaty trader and his or herfamily constitutes a favorable factor inassessing the existence of substantialtrade.


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(11) Principal trade. Principal tradebetween the United States and thetreaty country exists when over 50 per-cent of the volume of internationaltrade of the treaty trader is conductedbetween the United States and thetreaty country of the treaty trader’snationality.

(12) Investment. An investment is thetreaty investor’s placing of capital, in-cluding funds and other assets (whichhave not been obtained, directly or in-directly, through criminal activity), atrisk in the commercial sense with theobjective of generating a profit. Thetreaty investor must be in possessionof and have control over the capital in-vested or being invested. The capitalmust be subject to partial or total lossif investment fortunes reverse. Suchinvestment capital must be the inves-tor’s unsecured personal business cap-ital or capital secured by personal as-sets. Capital in the process of being in-vested or that has been invested mustbe irrevocably committed to the enter-prise. The alien has the burden of es-tablishing such irrevocable commit-ment. The alien may use any legalmechanism available, such as theplacement of invested funds in escrowpending admission in, or approval of, Eclassification, that would not only ir-revocably commit funds to the enter-prise, but might also extend personalliability protection to the treaty inves-tor in the event the application for Eclassification is denied.

(13) Bona fide enterprise. The enter-prise must be a real, active, and oper-ating commercial or entrepreneurialundertaking which produces services orgoods for profit. The enterprise mustmeet applicable legal requirements fordoing business in the particular juris-diction in the United States.

(14) Substantial amount of capital. Asubstantial amount of capital con-stitutes an amount which is:

(i) Substantial in relationship to thetotal cost of either purchasing an es-tablished enterprise or creating thetype of enterprise under consideration;

(ii) Sufficient to ensure the treaty in-vestor’s financial commitment to thesuccessful operation of the enterprise;and

(iii) Of a magnitude to support thelikelihood that the treaty investor will

successfully develop and direct the en-terprise. Generally, the lower the costof the enterprise, the higher, propor-tionately, the investment must be tobe considered a substantial amount ofcapital.

(15) Marginal enterprise. For purposesof this section, an enterprise may notbe marginal. A marginal enterprise isan enterprise that does not have thepresent or future capacity to generatemore than enough income to provide aminimal living for the treaty investorand his or her family. An enterprisethat does not have the capacity to gen-erate such income, but that has apresent or future capacity to make asignificant economic contribution isnot a marginal enterprise. The pro-jected future income-generating capac-ity should generally be realizable with-in 5 years from the date the alien com-mences the normal business activity ofthe enterprise.

(16) Solely to develop and direct. Analien seeking classification as a treatyinvestor (or, in the case of an employeeof a treaty investor, the owner of thetreaty enterprise) must demonstratethat he or she does or will develop anddirect the investment enterprise. Suchan applicant must establish that he orshe controls the enterprise by dem-onstrating ownership of at least 50 per-cent of the enterprise, by possessingoperational control through a manage-rial position or other corporate device,or by other means.

(17) Executive and supervisory char-acter. The applicant’s position must beprincipally and primarily, as opposedto incidentally or collaterally, execu-tive or supervisory in nature. Execu-tive and supervisory duties are thosewhich provide the employee ultimatecontrol and responsibility for the en-terprise’s overall operation or a majorcomponent thereof. In determiningwhether the applicant has establishedpossession of the requisite control andresponsibility, a Service officer shallconsider, where applicable:

(i) That an executive position is onewhich provides the employee withgreat authority to determine the pol-icy of, and the direction for, the enter-prise;


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(ii) That a position primarily of su-pervisory character provides the em-ployee supervisory responsibility for asignificant proportion of an enter-prise’s operations and does not gen-erally involve the direct supervision oflow-level employees, and;

(iii) Whether the applicant possessesexecutive and supervisory skills andexperience; a salary and position titlecommensurate with executive or super-visory employment; recognition or in-dicia of the position as one of author-ity and responsibility in the overall or-ganizational structure; responsibilityfor making discretionary decisions,setting policies, directing and manag-ing business operations, supervisingother professional and supervisory per-sonnel; and that, if the position re-quires some routine work usually per-formed by a staff employee, such func-tions may only be of an incidental na-ture.

(18) Special qualifications. Specialqualifications are those skills and/oraptitudes that an employee in a lessercapacity brings to a position or rolethat are essential to the successful orefficient operation of the treaty enter-prise. In determining whether theskills possessed by the alien are essen-tial to the operation of the employingtreaty enterprise, a Service officermust consider, where applicable:

(i) The degree of proven expertise ofthe alien in the area of operations in-volved; whether others possess the ap-plicant’s specific skill or aptitude; thelength of the applicant’s experienceand/or training with the treaty enter-prise; the period of training or otherexperience necessary to perform effec-tively the projected duties; the rela-tionship of the skill or knowledge tothe enterprise’s specific processes orapplications, and the salary the specialqualifications can command; thatknowledge of a foreign language andculture does not, by itself, meet thespecial qualifications requirement,and;

(ii) Whether the skills and qualifica-tions are readily available in theUnited States. In all cases, in deter-mining whether the applicant possessesspecial qualifications which are essen-tial to the treaty enterprise, a Serviceofficer must take into account all the

particular facts presented. A skill thatis essential at one point in time maybecome commonplace at a later date.Skills that are needed to start up anenterprise may no longer be essentialafter initial operations are completeand running smoothly. Some skills areessential only in the short-term for thetraining of locally hired employees.Under certain circumstances, an appli-cant may be able to establish his or heressentiality to the treaty enterprise fora longer period of time, such as, in con-nection with activities in the areas ofproduct improvement, quality control,or the provision of a service not yetgenerally available in the UnitedStates. Where the treaty enterprise’sneed for the applicant’s special quali-fications, and therefore, the applicant’sessentiality, is time-limited, Serviceofficers may request that the applicantprovide evidence of the period forwhich skills will be needed and a rea-sonable projected date for completionof start-up or replacement of the essen-tial skilled workers.

(19) Period of admission. Periods of ad-mission are as follows:

(i) A treaty trader or treaty investormay be admitted for an initial periodof not more than 2 years.

(ii) The spouse and minor childrenaccompanying or following to join atreaty trader or treaty investor shallbe admitted for the period duringwhich the principal alien is in validtreaty trader or investor status. Thetemporary departure from the UnitedStates of the principal trader or inves-tor shall not affect the derivative sta-tus of the dependent spouse and minorunmarried children, provided the fa-milial relationship continues to existand the principal remains eligible foradmission as an E nonimmigrant toperform the activity.

(iii) Unless otherwise provided for inthis chapter, an alien shall not be ad-mitted in E classification for a periodof time extending more than 6 monthsbeyond the expiration date of thealien’s passport.

(20) Extensions of stay. Requests forextensions of stay may be granted inincrements of not more than 2 years. Atreaty trader or treaty investor invalid E status may apply for an exten-sion of stay by filing an application for


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

extension of stay on Form I–129 and ESupplement, with required accompany-ing documents, in accordance with§ 214.1 and the instructions on thatform.

(i) For purposes of eligibility for anextension of stay, the alien must provethat he or she:

(A) Has at all times maintained theterms and conditions of his or her Enonimmigrant classification;

(B) Was physically present in theUnited States at the time of filing theapplication for extension of stay; and

(C) Has not abandoned his or her ex-tension request.

(ii) With limited exceptions, it is pre-sumed that employees of treaty enter-prises with special qualifications whoare responsible for start-up operationsshould be able to complete their objec-tives within 2 years. Absent special cir-cumstances, therefore, such employeeswill not be eligible to obtain an exten-sion of stay.

(iii) Subject to paragraph (e)(5) ofthis section and the presumption notedin paragraph (e)(22)(ii) of this section,there is no specified number of exten-sions of stay that a treaty trader ortreaty investor may be granted.

(21) Change of nonimigrant status. (i)An alien in another valid non-immigrant status may apply forchange of status to E classification byfiling an application for change of sta-tus on Form I–129 and E Supplement,with required accompanying docu-ments establishing eligibility for achange of status and E classification,in accordance with 8 CFR part 248 andthe instructions on Form I–129 and ESupplement.

(ii) The spouse or minor children ofan applicant seeking a change of statusto that of treaty trader or treaty inves-tor alien shall file concurrent applica-tions for change of status to derivativetreaty classification on the appropriateService form. Applications for deriva-tive treaty status shall:

(A) Be approved only if the principaltreaty alien is granted treaty alien sta-tus and continues to maintain that sta-tus;

(B) Be approved for the period of ad-mission authorized in paragraph (e)(20)of this section.

(22) Denial of treaty trader or treaty in-vestor status to citizens of Canada orMexico in the case of certain labor dis-putes. (i) A citizen of Canada or Mexicomay be denied E treaty trader or trea-ty investor status as described in sec-tion 101(a)(15)(E) of the Act and sectionB of Annex 1603 of the NAFTA if:

(A) The Secretary of Labor certifiesto, or otherwise informs, the Commis-sioner that a strike or other labor dis-pute involving a work stoppage ofworkers is in progress at the placewhere the alien is or intends to be em-ployed; and

(B) Temporary entry of that alienmay adversely affect either:

(1) The settlement of any labor dis-pute that is in progress at the place orintended place of employment, or

(2) The employment of any personwho is involved in such dispute.

(ii) If the alien has already com-menced employment in the UnitedStates and is participating in a strikeor other labor dispute involving a workstoppage of workers, whether or notsuch strike or other labor dispute hasbeen certified by the Department ofLabor, the alien shall not be deemed tobe failing to maintain his or her statussolely on account of past, present, orfuture participation in a strike orother labor dispute involving a workstoppage of workers, but is subject tothe following terms and conditions:

(A) The alien shall remain subject toall applicable provisions of the Act andregulations applicable to all other Enomimmigrants; and

(B) The status and authorized periodof stay of such an alien is not modifiedor extended in any way by virtue of hisor her participation in a strike or otherlabor dispute involving a work stop-page of workers.

(iii) Although participation by an Enonimmigrant alien in a strike orother labor dispute involving a workstoppage of workers will not constitutea ground for deportation, any alienwho violates his or her status or whoremains in the United States after hisor her authorized period of stay has ex-pired will be subject to deportation.

(f) Students in colleges, universities,seminaries, conservatories, academic high


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schools, elementary schools, other aca-demic institutions, and in language train-ing programs—(1) Admission of student—(i) Eligibility for admission. A non-immigrant student and his or her ac-companying spouse and minor childrenmay be admitted into the UnitedStates in F–1 and F–2 classificationsfor duration of status under section101(a)(15)(F)(i) of the Act, if the stu-dent:

(A) Presents a properly completedForm I–20 A–B/I–20 ID, Certificate ofEligibility for Nonimmigrant (F–1)Student Status, which is issued by aschool approved by the Service for at-tendance by foreign students;

(B) Has documentary evidence of fi-nancial support in the amount indi-cated on the Form I–20 A–B/I–20 ID; and

(C) For students seeking initial ad-mission only, intends to attend theschool specified in the student’s visaexcept where the student is exemptfrom the requirement for a visa, inwhich case the student must intend toattend the school indicated on theForm I–20 A–B/I–20 ID.

(ii) Disposition of Form I–20 A–B/I–20ID. Form I–20 A–B/I–20 ID contains twocopies, the I–20 School Copy and the I–20 ID (Student) Copy. For purposes ofclarity, the entire Form I–20 A–B/I–20ID shall be referred to as Form I–20 A–B and the I–20 ID (Student) Copy shallbe referred to as the I–20 ID. When anF–1 student applies for admission witha complete Form I–20 A–B, the inspect-ing officer shall:

(A) Transcribe the student’s admis-sion number from Form I–94 onto his orher Form I–20 A–B (for students seek-ing initial admission only);

(B) Endorse all copies of the Form I–20 A–B;

(C) Return the I–20 ID to the student;and

(D) Forward the I–20 School Copy tothe Service’s processing center for dataentry. (The school copy of Form I–20 A–B will be sent back to the school as anotice of the student’s admission afterdata entry.)

(2) I–20 ID. An F–1 student is expectedto safekeep the initial I–20 ID bearingthe admission number and any subse-quent copies which have been issued tohim or her. Should the student lose hisor her current I–20 ID, a replacement

copy bearing the same information asthe lost copy, including any endorse-ment for employment and notations,may be issued by the designated schoolofficial (DSO) as defined in 8 CFR214.3(l)(1)(i).

(3) Spouse and minor children followingto join student. The spouse and minorchildren following to join an F–1 stu-dent are eligible for admission to theUnited States if the F–1 student is, orwill be within sixty days, enrolled in afull course of study or, if the student isengaged in approved practical trainingfollowing completion of studies. The el-igible spouse and minor children of anF–1 student may be admitted in F–2status if they present the F–1 student’scurrent I–20 ID with proper endorse-ment by the DSO. A new Form I–20 A–B is required where there has been anysubstantive change in the informationon the student’s current I–20 ID.

(4) Temporary absence. An F–1 studentreturning to the United States from atemporary absence of five months orless may be readmitted for attendanceat a Service-approved educational in-stitution, if the student presents:

(i) A current I–20 ID properly en-dorsed by the DSO for reentry if thereis no substantive change on the mostrecent I–20 ID; or

(ii) A new Form I–20 A–B if there hasbeen any substantive change in the in-formation on the student’s most recentI–20 ID, such as in the case of a studentwho has changed the major area ofstudy, who intends to transfer to an-other Service-approved institution, orwho has advanced to a higher level ofstudy.

(5) Duration of status—(i) General. Du-ration of status is defined as the timeduring which an F–1 student is pursu-ing a full course of study at an edu-cational institution approved by theService for attendance by foreign stu-dents, or engaging in authorized prac-tical training following completion ofstudies, plus sixty days to prepare fordeparture from the United States. Thestudent is considered to be maintainingstatus if he or she is making normalprogress toward completing a course ofstudy.

(ii) Change in educational levels. An F–1 student who continues from one edu-cational level to another is considered


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

to be maintaining status, provided thatthe transition to the new educationallevel is accomplished according totransfer procedures outlined in para-graph (f)(8) of this section.

(iii) Annual vacation. An F–1 studentat an academic institution is consid-ered to be in status during the annual(or summer) vacation if the student iseligible and intends to register for thenext term. A student attending aschool on a quarter or trimester cal-endar who takes only one vacation ayear during any one of the quarters ortrimesters instead of during the sum-mer is considered to be in status duringthat vacation, if the student has com-pleted the equivalent of an academicyear prior to taking the vacation.

(iv) Illness or medical conditions. Astudent who is compelled by illness orother medical conditions to interruptor reduce a full course of study is con-sidered to be in status during the ill-ness or other medical condition. Thestudent must resume a full course ofstudy upon recovery.

(6) Full course of study—(i) General.Successful completion of the fullcourse of study must lead to the at-tainment of a specific educational orprofessional objective. A ‘‘full course ofstudy’’ as required by section101(a)(15)(F)(i) of the Act means:

(A) Postgraduate study orpostdoctoral study at a college or uni-versity, or undergraduate or post-graduate study at a conservatory or re-ligious seminary, certified by a DSO asa full course of study;

(B) Undergraduate study at a collegeor university, certified by a school offi-cial to consist of at least twelve semes-ter or quarter hours of instruction peracademic term in those institutionsusing standard semester, trimester, orquarter hour systems, where all under-graduate students who are enrolled fora minimum of twelve semester or quar-ter hours are charged full-time tuitionor are considered full-time for otheradministrative purposes, or its equiva-lent (as determined by the district di-rector in the school approval process),except when the student needs a lessercourse load to complete the course ofstudy during the current term;

(C) Study in a postsecondary lan-guage, liberal arts, fine arts, or other

non-vocational program at a schoolwhich confers upon its graduates recog-nized associate or other degrees or hasestablished that its credits have beenand are accepted unconditionally by atleast three institutions of higher learn-ing which are either: (1) A school (orschool system) owned and operated as apublic educational institution by theUnited States or a State or politicalsubdivision thereof; or (2) a school ac-credited by a nationally recognized ac-crediting body; and which has been cer-tified by a designated school official toconsist of at least twelve clock hoursof instruction a week, or its equivalentas determined by the district directorin the school approval process;

(D) Study in any other language, lib-eral arts, fine arts, or other nonvoca-tional training program, certified by adesignated school official to consist ofat least eighteen clock hours of attend-ance a week if the dominant part of thecourse of study consists of classroominstruction, or to consist of at leasttwenty-two clock hours a week if thedominant part of the course of studyconsists of laboratory work; or

(E) Study in a primary school or aca-demic high school curriculum certifiedby a designated school official to con-sist of class attendance for not lessthan the minimum number of hours aweek prescribed by the school for nor-mal progress towards graduation.

(ii) Institution of higher learning. Forpurposes of this paragraph, a college oruniversity is an institution of higherlearning which awards recognized asso-ciate, bachelor’s, master’s, doctorate,or professional degrees. Schools whichdevote themselves exclusively or pri-marily to vocational, business, or lan-guage instruction are not included inthe category of colleges or universities.Vocational or business schools whichare classifiable as M–1 schools are pro-vided for by regulations under 8 CFR214.2(m).

(iii) Reduced course load. The des-ignated school official may advise anF–1 student to engage in less than afull course of study due to initial dif-ficulties with the English language orreading requirements, unfamiliaritywith American teaching methods, orimproper course level placement. AnF–1 student authorized to reduce


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course load by the DSO in accordancewith the provisions of this paragraph isconsidered to be maintaining status.On-campus employment pursuant tothe terms of a scholarship, fellowship,or assistantship is deemed to be part ofthe academic program of a student oth-erwise taking a full course of study.

(7) Extension of stay—(i) General. AnF–1 student is admitted for duration ofstatus. The student is not required toapply for extension of stay as long asthe student is maintaining status andmaking normal progress toward com-pleting his or her educational objec-tive. An F–1 student who is unable tocomplete a full course of study in atimely manner must apply, in a 30–dayperiod before the completion date onthe Form I–20 A–B, to the DSO for aprogram extension pursuant to para-graph (f)(7)(iii) of this section.

(ii) Completion date on Form I–20 A–B.When determining the program com-pletion date on Form I–20 A–B, theDSO should make a reasonable esti-mate based on the time an average for-eign student would need to complete asimilar program in the same discipline.A grace period of no more than oneyear may be added onto the DSO’s esti-mate.

(iii) Program extension for students inlawful status. An F–1 student who is un-able to meet the program completiondate on the Form I–20 A–B may begranted a program extension by theschool, if the DSO certifies on a FormI–538 that the student has continuallymaintained status and that the delaysare caused by compelling academic ormedical reasons, such as changes ofmajor or research topics, unexpectedresearch problems, or documented ill-nesses. Delays caused by academic pro-bation or suspension are not acceptablereasons for program extension. TheDSO must notify the Service within 30days of any approved program exten-sions by forwarding to the Service dataprocessing center a certification onForm I–538 and the top page of a newForm I–20 A–B showing a new programcompletion date.

(iv) Failure to complete the educationalprogram in a timely manner. An F–1 stu-dent who is unable to complete theeducational program within the timeperiod written on the Form I–20 A–B

and who is ineligible for program ex-tension pursuant to paragraph (f)(7)(iii)of this section is considered to be outof status. Under these circumstances,the student must apply for reinstate-ment under the Provisions of para-graph (f)(16) of this section.

(8) School transfer—(i) Eligibility. AnF–1 student who is maintaining statusmay transfer to another Service-ap-proved school by following the notifi-cation procedure prescribed in para-graph (f)(8)(ii) of this section. An F–1student who was not pursuing a fullcourse of study at the school he or shewas last authorized to attend is ineli-gible for school-transfer and mustapply for reinstatement under the pro-visions of paragraph (f)(16) of this sec-tion.

(ii) Transfer procedure. To transferschools, an F–1 student must first no-tify the school he or she is attending ofthe intent to transfer, then obtain aForm I–20 A–B, issued in accordancewith the provisions of 8 CFR 214.3(k),from the school to which he or she in-tends to transfer. The transfer will beeffected only if the F–1 student com-pletes the Student Certification por-tion of the Form I–20 A–B and returnsthe form to a designated school officialon campus within 15 days of beginningattendance at the new school.

(iii) Notification. Upon receipt of thestudent’s Form I–20 A–B, the DSOmust:

(A) Note ‘‘transfer completed on(date)’’ on the student’s I–20 ID in thespace provided for the DSO’s remarks,thereby acknowledging the student’sattendance;

(B) Return the I–20 ID to the student;(C) Submit the I–20 School copy to

the Service’s Data Processing Centerwithin 30 days of receipt from the stu-dent; and

(D) Forward a photocopy of the FormI–20 A-B School Copy to the schoolfrom which the student transferred.

(9) Employment—(i) On-campus employ-ment. On-campus employment must ei-ther be performed on the school’spremises, (including on-location com-mercial firms which provide servicesfor students on campus, such as theschool bookstore or cafeteria), or at an


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off-campus location which is educa-tionally affiliated with the school. Em-ployment with on-site commercialfirms, such as a construction companybuilding a school building, which donot provide direct student services isnot deemed on-campus employment forthe purposes of this paragraph. In thecase of off-campus locations, the edu-cational affiliation must be associatedwith the school’s established curricu-lum or related to contractually fundedresearch projects at the post-graduatelevel. In any event, the employmentmust be an integral part of the stu-dent’s educational program. Employ-ment authorized under this paragraphmust not exceed twenty hours a weekwhile school is in session. An F–1 stu-dent may, however, work on campusfull-time when school is not in sessionor during the annual vacation. A stu-dent who has been issued a Form I–20A-B to begin a new program in accord-ance with the provision of 8 CFR214.3(k) and who intends to enroll forthe next regular academic year, term,or session at the institution whichissued the Form I–20 A-B may continueon-campus employment incident tostatus. Otherwise, an F-1 student maynot engage in on-campus employmentafter completing a course of study, ex-cept employment for practical trainingas authorized under paragraph (f)(10) ofthis section. An F-I student may en-gage in any on-campus employment au-thorized under this paragraph whichwill not displace United States resi-dents.

(ii) Off-campus work authorization—(A) General. An F–1 student may be au-thorized to work off-campus on a part-time basis in accordance with para-graph (f)(9)(ii) (B) or (C) of this sectionafter having been in F–1 status for onefull academic year provided that thestudent is in good academic standingas determined by the DSO. Part-timeoff-campus employment authorizedunder this section is limited to nomore than twenty hours a week whenschool is in session. A student who isgranted off-campus employment au-thorization may work full-time duringholidays or school vacation. The em-ployment authorization is automati-cally terminated whenever the studentfails to maintain status.

(B) Wage-and-labor attestation require-ment. Except as provided under para-graphs (f)(9)(ii)(C) and (f)(9)(iii) of thissection, a student may be authorized toaccept off-campus employment only ifthe prospective employer has filed alabor-and-wage attestation pursuant to20 CFR part 655, subparts J and K (re-quiring the employer to attest to thefact that it has actively recruited do-mestic labor for at least 60 days for theposition and will accord the studentworker the same wages and workingconditions as domestic workers simi-larly employed.)

(C) Severe economic hardship. If otheremployment opportunities are notavailable or are otherwise insufficient,an eligible F–1 student may request off-campus employment work authoriza-tion based upon severe economic hard-ship caused by unforeseen cir-cumstances beyond the student’s con-trol. These circumstances may includeloss of financial aid or on-campus em-ployment without fault on the part ofthe student, substantial fluctuations inthe value of currency or exchange rate,inordinate increases in tuition and/orliving costs, unexpected changes in thefinancial condition of the student’ssource of support, medical bills, orother substantial and unexpected ex-penses.

(D) Procedure for off-campus employ-ment authorization. The student mustsubmit the application to the DSO onForm I–538, Certification by DesignatedSchool Official. The DSO may rec-ommend the student work off-campusfor one year intervals by certifying onthe Form I–538 that:

(1) The student has been in F–1 statusfor one full academic year;

(2) The student is in good standing asa student and is carrying a full courseof study as defined in paragraph (f)(6)of this section;

(3) The student has demonstratedthat acceptance of employment willnot interfere with the student’s carry-ing a full course of study; and

(4) Either: (i) The prospective em-ployer has submitted a labor-and-wageattestation pursuant to paragraph(f)(9)(ii)(B) of this section, or

(ii) The student has demonstratedthat the employment is necessary toavoid severe economic hardship due to


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unforeseen circumstances beyond thestudent’s control pursuant to para-graph (f)(9)(ii)(C) of this section, andhas demonstrated that employmentunder paragraph (f)(9)(i) and (f)(9)(ii)(B)of this section is unavailable or other-wise insufficient to meet the needsthat have arisen as a result of the un-foreseen circumstances.

(E) Wage-and-Labor attestation appli-cation to the DSO. An eligible F–1 stu-dent may make a request for off-cam-pus employment authorization to theDSO on Form I–538 after the employerhas filed the labor-and-wage attesta-tion. By certifying on Form I–538 thatthe student is eligible for off-campusemployment, and endorsing the stu-dent’s I–20 ID, the DSO may authorizeoff-campus employment in one year in-tervals for the duration of a valid at-testation as determined by the Sec-retary of Labor. The endorsement onthe student’s I–20 ID should read ‘‘part-time employment with (name of em-ployer) at (location) authorized from(date) to (date).’’ Off-campus employ-ment authorized by the DSO under thisprovision is incident to the student’sstatus pursuant to 8 CFR274a.12(b)(6)(ii) and employer-specificand, therefore, exempt from the EADrequirement. The DSO must notify theService of each off-campus employ-ment authorization by forwarding tothe Service data processing center thecompleted Form I–538. The DSO shallreturn to the student the endorsed I–20ID.

(F) Severe economic hardship applica-tion—(1) The applicant should submitto the Service Form I–20 ID, Form I–538, and Form I–765 along with the feerequired by 8 CFR 103.7(b)(1), and anyother supporting materials such as affi-davits which further detail the unfore-seen circumstances that require thestudent to seek employment authoriza-tion and the unavailability or insuffi-ciency of employment under para-graphs (f)(9)(i) and (f)(9)(ii)(B) of thissection. The requirement with respectto paragraph (f)(9)(ii)(B) of this sectionis satisfied if the DSO certifies onForm I–538 that the student and theDSO are not aware of available employ-ment in the area through the Pilot Off-Campus Employment Program. Inareas where there are such Pilot pro-

gram opportunities, this requirementis satisfied if the DSO certifies onForm I–538 that employment under thePilot program is insufficient to meetthe student’s needs. The student mustapply for the employment authoriza-tion on Form I–765 with the Service of-fice having jurisdiction over his or herplace of residence.

(2) The Service shall adjudicate theapplication for work authorizationbased upon severe economic hardshipon the basis of Form I–20 ID, Form I–538, and Form I–765, and any additionalsupporting materials. If employment isauthorized, the adjudicating officershall issue an EAD. The Service direc-tor shall notify the student of the deci-sion, and, if the application is denied,of the reason or reasons for the denial.No appeal shall lie from a decision todeny a request for employment author-ization under this section. The employ-ment authorization may be granted inone year intervals up to the expecteddate of completion of the student’s cur-rent course of study. A student has per-mission to engage in off-campus em-ployment only if the student receivesthe EAD endorsed to that effect. Off-campus employment authorizationmay be renewed by the Service only ifthe student is maintaining status andgood academic standing. The employ-ment authorization is automaticallyterminated whenever the student failsto maintain status.

(iii) Internship with an internationalorganization. A bona fide F-1 studentwho has been offered employment by arecognized international organizationwithin the meaning of the Inter-national Organization Immunities Act(59 Stat. 669) must apply for employ-ment authorization, in person, to theService office having jurisdiction overhis or her place of residence. A studentseeking employment authorizationunder this provision is required topresent a written certification fromthe international organization that theproposed employment is within thescope of the organization’s sponsorship,an I–20 ID endorsed for reentry by theDSO within the last 30 days, and acompleted Form I–765, Application forEmployment Authorization, with thefee required in 8 CFR 103.7(b)(1).


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(10) Practical training. Practical train-ing is available to F–1 students whohave been lawfully enrolled on a full-time basis in a Service-approved col-lege, university, conservatory, or semi-nary for at least nine consecutivemonths. Students in English languagetraining programs are ineligible forpractical training. An eligible F–1 stu-dent may request employment author-ization for practical training in a posi-tion which is directly related to his orher major area of study. There are twotypes of practical training available:

(i) Curricular practical training pro-grams. An F–1 student may be author-ized, by the DSO, to participate in acurricular practical training programwhich is an integral part of an estab-lished curriculum. Curricular practicaltraining is defined to be alternatework/study, internship, cooperativeeducation, or any other type of re-quired internship or practicum whichis offered by sponsoring employersthrough cooperative agreements withthe school. Students who have receivedone year or more of full-time curricu-lar practical training are ineligible forpost-completion practical training. Ex-ceptions to the nine-month in statusrequirement are provided for studentsenrolled in graduate studies which re-quire immediate participation in cur-ricular practical training. A request forauthorization for curricular practicaltraining must be made to the DSO onForm I–538. Upon approving the requestfor authorization, the DSO shall:

(A) Certify the Form I–538 and sendthe form to the Service’s data process-ing center;

(B) Endorse the student’s I–20 ID with‘‘full-time (or part-time) curricularpractical training authorized for (em-ployer) at (location) from (date) to(date)’’; and

(C) Sign and date the I–20 ID beforereturning it to the student. A studentmay begin curricular practical trainingonly after receiving his or her I–20 IDwith the DSO endorsement.

(ii) Optional practical training—(A)General. An F–1 student may apply tothe Service for authorization for tem-porary employment for practical train-ing directly related to the student’smajor area of study. Temporary em-

ployment for practical training may beauthorized:

(1) During the student’s annual vaca-tion and at other times when school isnot in session if the student is cur-rently enrolled and eligible, and in-tends, to register for the next term orsession;

(2) While school is in session, pro-vided that practical training does notexceed twenty hours a week whileschool is in session;

(3) After completion of all course re-quirements for the degree (excludingthesis or equivalent), if the student isin a bachelor’s master’s, or doctoral de-gree program; or

(4) After completion of the course ofstudy. A student must complete allpractical training within a 14 monthperiod following the completion ofstudy.

(B) Termination of practical training.Authorization to engage in practicaltraining employment is automaticallyterminated when the student transfersto another school.

(C) Request for authorization for prac-tical training. A request for authoriza-tion to accept practical training mustbe made to the designated school offi-cial (DSO) of the school the student isauthorized to attend on Form I–538, ac-companied by his or her current FormI–20 ID.

(D) Action of the DSO. In making arecommendation for practical training,a designated school official must:

(1) Certify on Form I–538 that theproposed employment is directly relat-ed to the student’s major area of studyand commensurate with the student’seducational level;

(2) Endorse and date the student’sForm I–20 ID to show that practicaltraining in the student’s major field ofstudy is recommended ‘‘full-time (orpart-time) from (date) to (date)’’; and

(3) Return to the student the Form I–20 ID and send to the Service data proc-essing center the school certificationon Form I–538.

(11) Employment authorization. Thetotal periods of authorization for op-tional practical training under para-graph (f)(10) of this section shall notexceed a maximum of twelve months.Part-time practical training, 20 hoursper week or less, shall be deducted


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from the available practical training atone-half the full-time rate. As requiredby the regulations at 8 CFR part 274a,an F–1 student seeking practical train-ing (excluding curricular practicaltraining) under paragraph (f)(10) of thissection may not accept employmentuntil he or she has been issued an Em-ployment Authorization Document(EAD) by the Service. An F–1 studentmust apply to the INS for the EAD byfiling the Form 1–765. The applicationfor employment authorization must in-clude the following documents:

(i) A completed Form I–765, with thefee required by § 103.7(b)(1); and

(ii) A DSO’s recommendation forpractical training on I–20 ID.

(12) Decision on application for employ-ment authorization. The Service shalladjudicate the Form I–765 and issue anEAD on the basis of the DSO’s rec-ommendation unless the student isfound otherwise ineligible. The Serviceshall notify the applicant of the deci-sion and, if the application is denied, ofthe reason or reasons for the denial.The applicant may not appeal the deci-sion.

(13) Temporary absence from the UnitedStates of F–1 student granted employmentauthorization. (i) A student returningfrom a temporary trip abroad with anunexpired off-campus employment au-thorization on his or her I–20 ID mayresume employment only if the studentis readmitted to attend the sameschool which granted the employmentauthorization.

(ii) An F–1 student who has an unex-pired EAD issued for post-completionpractical training and who is otherwiseadmissible may return to the UnitedStates to resume employment after aperiod of temporary absence. The EADmust be used in combination with an I–20 ID endorsed for reentry by the DSOwithin the last six months.

(14) Effect of strike or other labor dis-pute. Any employment authorization,whether or not part of an academicprogram, is automatically suspendedupon certification by the Secretary ofLabor or the Secretary’s designee tothe Commissioner of the Immigrationand Naturalization Service or the Com-missioner’s designee, that a strike orother labor dispute involving a workstoppage of workers is in progress in

the occupation at the place of employ-ment. As used in this paragraph, ‘‘placeof employment’’ means the facility orfacilities where a labor dispute exists.The employer is prohibited from trans-ferring F–1 students working at otherfacilities to the facility where thework stoppage is occurring.

(15) Spouse and children of F–1 student.The F–1 spouse and children of an F–1student may not accept employment.

(16) Reinstatement to student status—(i)General. The Service may consider rein-stating an F–1 student who makes a re-quest for reinstatement on Form I–539,Application to Extend Time of Tem-porary Stay, accompanied by a prop-erly completed Form I–20 A–B from theschool the student is attending or in-tends to attend, if the student:

(A) Establishes to the satisfaction ofthe Service that the violation of statusresulted from circumstances beyondthe student’s control or that failure toreceive reinstatement to lawful F–1status would result in extreme hard-ship to the student;

(B) Is currently pursuing, or intend-ing to pursue, a full course of study atthe school which issued the Form I–20A–B;

(C) Has not engaged in unauthorizedemployment; and

(D) Is not deportable on any groundother than section 241(a)(1)(B) or (C)(i)of the Act.

(ii) Decision. If the Service reinstatesthe student, the Service shall endorsethe Form I–20 A–B to indicate that thestudent has been reinstated, return theI–20 ID to the student, and forward theschool copy of the form to the Service’sprocessing center for data entry. If theService does not reinstate the student,the student may not appeal that deci-sion.

(g) Representatives to international or-ganizations—(1) General. The deter-mination by a consular officer prior toadmission and the recognition by theSecretary of State subsequent to ad-mission is evidence of the proper clas-sification of a nonimmigrant undersection 101(a)(15)(G) of the Act. Analien who has a nonimmigrant statusunder section 101(a)(15)(G) (i), (ii), (iii)or (iv) of the Act is to be admitted forthe duration of the period for whichthe alien continues to be recognized by


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the Secretary of State as being entitledto that status. An alien defined in sec-tion (101)(a)(15)(G)(v) of the Act is to beadmitted for an initial period of notmore than three years, and may begranted extensions of temporary stayin increments of not more than twoyears. In addition, the application forextension of temporary stay must beaccompanied by a statement signed bythe employing official stating that heor she intends to continue to employthe applicant and describing the typeof work the applicant will perform.

(2) Definition of G–1, G–3, or G–4 de-pendent. For purposes of employmentin the United States, the term depend-ent of a G–1, G–3, or G–4 principal alien,as used in § 214.2(g), means any of thefollowing immediate members of thefamily habitually residing in the samehousehold as the principal alien who isan officer or employee assigned to amission, to an international organiza-tion, or is employed by an inter-national organization in the UnitedStates:

(i) Spouse;(ii) Unmarried children under the age

of 21;(iii) Unmarried sons or daughters

under the age of 23 who are in full-timeattendance as students at post-second-ary educational institutions;

(iv) Unmarried sons or daughtersunder the age of 25 who are in full-timeattendance as students at post-second-ary educational institutions if a formalbilateral employment agreement per-mitting their employment in theUnited States was signed prior to No-vember 21, 1988, and such bilateral em-ployment agreement does not specify23 as the maximum age for employ-ment of such sons and daughters. TheOffice of Protocol of the Department ofState shall maintain a listing of for-eign states which the United Stateshas such bilateral employment agree-ments. The provisions of this para-graph apply only to G–1 and G–3 de-pendents under certain bilateral agree-ments and are not applicable to G–4 de-pendents; and

(v) Unmarried sons or daughters whoare physically or mentally disabled tothe extent that they cannot adequatelycare for themselves or cannot estab-lish, maintain, or re-establish their

own households. The Department ofState or the Service may require cer-tification(s) as it deems sufficient todocument such mental or physical dis-ability.

(3) Applicability of a formal bilateralagreement or an informal de facto ar-rangement for G–1 and G–3 dependents.The applicability of a formal bilateralagreement shall be based on the foreignstate which employs the principal alienand not on the nationality of the prin-cipal alien or dependent. The applica-bility of an informal de facto arrange-ment shall be based on the foreignstate which employs the principalalien, but under a de facto arrange-ment the principal alien also must be anational of the foreign state which em-ploys him or her in the United States.

(4) Income tax, Social Security liability;non-applicability of certain immunities.Dependents who are granted employ-ment authorization under this sectionare responsible for payment of all fed-eral, state and local income, employ-ment and related taxes and Social Se-curity contributions on any remunera-tion received. In addition, immunityfrom civil or administrative jurisdic-tion in accordance with Article 37 ofthe Vienna Convention on DiplomaticRelations or other international agree-ments does not apply to these depend-ents with respect to matters arisingout of their employment.

(5) G–1 and G–3 dependent employmentpursuant to formal bilateral employmentagreements and informal de facto recip-rocal arrangements, and G–4 dependentemployment. (i) The Office of Protocolshall maintain a listing of foreignstates which have entered into formalbilateral employment agreements. De-pendents of a G–1 or G–3 principal alienassigned to official duty in the UnitedStates may accept or continue in unre-stricted employment based on such for-mal bilateral agreements, if the appli-cable agreement includes persons in G–1 or G–3 visa status, upon favorablerecommendation by the Department ofState and issuance of employment au-thorization documentation by theService in accordance with 8 CFR part274a. The application procedures areset forth in paragrpah (g)(6) of this sec-tion.


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(ii) For purposes of this section, aninformal de facto reciprocal arrange-ment exists when the Department ofState determines that a foreign stateallows appropriate employment on thelocal economy for dependents of cer-tain United States officials assigned toduty in that foreign state. The Office ofProtocol shall maintain a listing ofcountries with which such reciprocityexists. Dependents of a G–1 or G–3 prin-cipal alien assigned to official duty inthe United States may be authorized toaccept or continue in employmentbased upon informal de facto arrange-ments, and dependents of a G–4 prin-cipal alien assigned to official duty inthe United States may be authorized toaccept or continue in employmentupon favorable recommendation by theDepartment of State and issuance ofemployment authorization by the Serv-ice in accordance with 8 CFR part 274a.Additionally, the procedures set forthin paragraph (g)(6) of this section mustbe complied with, and the followingconditions must be met:

(A) Both the principal alien and thedependent desiring employment aremaintaining G–1, G–3, or G–4 status asappropriate;

(B) The principal’s assignment in theUnited States is expected to last morethan six months;

(C) Employment of a similar naturefor dependents of United States Gov-ernment officials assigned to officialduty in the foreign state employing theprincipal alien is not prohibited bythat foreign government. The provi-sions of this paragraph apply only toG–1 and G–3 dependents;

(D) The proposed employment is notin an occupation listed in the Depart-ment of Labor Schedule B (20 CFR part656), or otherwise determined by theDepartment of Labor to be one forwhich there is an oversupply of quali-fied U.S. workers in the area of pro-posed employment. This Schedule B re-striction does not apply to a dependentson or daughter who is a full-time stu-dent if the employment is part-time,consisting of not more than 20 hoursper week, and/or if it is temporary em-ployment of not more than 12 weeksduring school holiday periods; and

(E) The proposed employment is notcontrary to the interest of the United

States. Employment contrary to theinterest of the United States includes,but is not limited to, the employmentof G–1, G–3, or G–4 dependents: whohave criminal records; who have vio-lated United States immigration lawsor regulations, or visa laws or regula-tions; who have worked illegally in theUnited States; and/or who cannot es-tablish that they have paid taxes andsocial security on income from currentor previous United States employment.Additionally, the Department of Statemay determine a G–4 dependent’s em-ployment is contrary to the interest ofthe United States when the principalalien’s country of nationality has oneor more components of an inter-national organization or internationalorganizations within its borders anddoes not allow the employment of de-pendents of United States citizens em-ployed by such component(s) or organi-zation(s).

(6) Application procedures. The follow-ing procedures are applicable to G–1and G–3 dependent employment appli-cations under bilateral agreements andde facto arrangements, as well as to G–4 dependent employment applications:

(i) The dependent must submit acompleted Form I–566 to the Depart-ment of State through the office, mis-sion, or organization which employshis or her principal alien. If the prin-cipal is assigned to or employed by theUnited Nations, the Form I–566 must besubmitted to the U.S. Mission to theUnited Nations. All other applicationsmust be submitted to the Office of Pro-tocol of the Department of State. A de-pendent applying under paragraph(g)(2) (iii) or (iv) of this section mustsubmit a certified statement from thepost-secondary educational institutionconfirming that he or she is pursuingstudies on a full-time basis. A depend-ent applying under paragraph (g)(2)(v)of this section must submit medicalcertification regarding his or her con-dition. The certification should iden-tify the dependent and the certifyingphysician and give the physician’sphone number; identify the condition,describe the symptoms and provide aprognosis; certify that the dependent isunable to establish, re-establish, and


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maintain a home or his or her own. Ad-ditionally, a G–1 or G–3 dependent ap-plying under the terms of a de facto ar-rangement or a G–4 dependent must at-tach a statement from the prospectiveemployer which includes the depend-ent’s name; a description of the posi-tion offered and the duties to be per-formed; the salary offered; and ver-ification that the dependent possessesthe qualifications for the position.

(ii) The Department of State reviewsand verifies the information provided,makes its determination, and endorsesthe Form I–566.

(iii) If the Department of State’s en-dorsement is favorable, the dependentmay apply to the Service. A dependentwhose principal alien is stationed at apost in Washington, DC, or New YorkCity shall apply to the District Direc-tor, Washington, DC, or New YorkCity, respectively. A dependent whoseprincipal alien is stationed elsewhereshall apply to the District Director,Washington, DC, unless the Service,through the Department of State, di-rects the dependent to apply to the dis-trict director having jurisdiction overhis or her place of residence. Directorsof the regional service centers mayhave concurrent adjudicative authorityfor applications filed within their re-spective regions. When applying to theService, the dependent must presenthis or her Form I–566 with a favorableendorsement from the Department ofState and any additional documenta-tion as may be required by the Attor-ney General.

(7) Period of time for which employmentmay be authorized. If approved, an appli-cation to accept or continue employ-ment under this section shall be grant-ed in increments of not more thanthree years each.

(8) No appeal. There shall be no ap-peal from a denial of permission to ac-cept or continue employment underthis section.

(9) Dependents or family members ofprincipal aliens classified G–2 or G–5. Adependent or family member of a prin-cipal alien classified G–2 or G–5 maynot be employed in the United Statesunder this section.

(10) Unauthorized employment. Analien classified under section101(a)(15)(G) of the Act who is not a

principal alien and who engages in em-ployment outside the scope of, or in amanner contrary to this section, maybe considered in violation of section241(a)(1)(C)(i) of the Act. An alien whois classified under section 101(a)(15)(G)of the Act who is a principal alien andwho engages in employment outsidethe scope of his/her official positionmay be considered in violation of sec-tion 241(a)(1)(C)(i) of the Act.

(11) Special provision. As of February16, 1990 no new employment authoriza-tion will be granted and no pre-existingemployment authorization will be ex-tended for a G–1 dependent absent anappropriate bilateral agreement or defacto arrangement. However, a G–1 de-pendent who has been granted employ-ment authorization by the Departmentof State prior to the effective date ofthis section and who meets the defini-tion of dependent under § 214.2(g)(2) (i),(ii), (iii) or (v) of this part but is notcovered by the terms of a bilateralagreement or de facto arrangementmay be allowed to continue in employ-ment until whichever of the followingoccurs first:

(i) The employment authorization bythe Department of State expires; or

(ii) He or she no longer qualifies as adependent as that term is defined inthis section; or

(iii) March 19, 1990.(h) Temporary employees—(1) Admis-

sion of temporary employees—(i) General.Under section 101(a)(15)(H) of the Act,an alien may be authorized to come tothe United States temporarily to per-form services or labor for, or to receivetraining from, an employer, if peti-tioned for by that employer. Under thisnonimmigrant category, the alien maybe classified as follows: under section101(a)(15)(H)(i)(a) of the Act as a reg-istered nurse; under section101(a)(15)(H)(i)(b) of the Act as an alienwho is coming to perform services in aspecialty occupation, services relatingto a Department of Defense (DOD) co-operative research and developmentproject or coproduction project, orservices as a fashion model who is ofdistinguished merit and ability; undersection 101(a)(15)(H)(ii)(a) of the Act as


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an alien who is coming to perform agri-cultural labor or services of a tem-porary or seasonal nature; under sec-tion 101(a)(15)(H)(ii)(b) of the Act as analien coming to perform other tem-porary services or labor; or under sec-tion 101(a)(15)(H)(iii) of the Act as analien who is coming as a trainee or asa participant in a special education ex-change visitor program. These classi-fications are called H–1A, H–1B, H–2A,H–2B, and H–3, respectively. The em-ployer must file a petition with theService for review of the services ortraining and for determination of thealien’s eligibility for classification as atemporary employee or trainee, beforethe alien may apply for a visa or seekadmission to the United States. Thisparagraph sets forth the standards andprocedures applicable to these classi-fications.

(ii) Description of classifications. (A)An H–1A classification applies to analien who is coming temporarily to theUnited States to perform services as aregistered nurse, meets the require-ments of section 212(m)(1) of the Act,and will perform services at a facilityfor which the Secretary of Labor hasdetermined and certified to the Attor-ney General that an unexpired attesta-tion is on file and in effect under sec-tion 212(m)(2) of the Act. This classi-fication expired on September 1, 1995,but certain aliens previously accordedH–1A classification are eligible to ob-tain and extension of stay until Sep-tember 30, 1997, pursuant to Public Law104–302.

(B) An H–1B classification applies toan alien who is coming temporarily tothe United States:

(1) To perform services in a specialtyoccupation (except agricultural work-ers, and aliens described in section101(a)(15) (O) and (P) of the Act) de-scribed in section 214(i)(1) of the Act,that meets the requirements of section214(i)(2) of the Act, and for whom theSecretary of Labor has determined andcertified to the Attorney General thatthe prospective employer has filed alabor condition application under sec-tion 212(n)(1) of the Act;

(2) To perform services of an excep-tional nature requiring exceptionalmerit and ability relating to a coopera-tive research and development project

or a coproduction project provided forunder a Government-to-Governmentagreement administered by the Sec-retary of Defense;

(3) To perform services as a fashionmodel of distinguished merit and abil-ity and for whom the Secretary ofLabor has determined and certified tothe Attorney General that the prospec-tive employer has filed a labor condi-tion application under section 212(n)(1)of the Act.

(C) An H–2A classification applies toan alien who is coming temporarily tothe United States to perform agricul-tural work of a temporary or seasonalnature.

(D) An H–2B classification applies toan alien who is coming temporarily tothe United States to perform non-agricultural work of a temporary orseasonal nature, if unemployed personscapable of performing such service orlabor cannot be found in this country.This classification does not apply tograduates of medical schools coming tothe United States to perform servicesas members of the medical profession.The temporary or permanent nature ofthe services or labor to be performedmust be determined by the service.This classification requires a tem-porary labor certification issued by theSecretary of Labor or the Governor ofGuam, or a notice from one of these in-dividuals that such a certification can-not be made, prior to the filing of a pe-tition with the Service.

(E) An H–3 classification applies toan alien who is coming temporarily tothe United States:

(1) As a trainee, other than to receivegraduate medical education or train-ing, or training provided primarily ator by an academic or vocational insti-tution, or

(2) As a participant in a special edu-cation exchange visitor program whichprovides for practical training and ex-perience in the education of childrenwith physical, mental, or emotionaldisabilities.

(2) Petitions—(i) Filing of petitions—(A)General. A United States employerseeking to classify an alien as an H–1B,H–2A, H–2B, or H–3 temporary em-ployee shall file a petition on Form I–129, Petition for Nonimmigrant Work-er, only with the Service Center which


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

has jurisdiction in the area where thealien will perform services, or receivetraining, even in emergent situations,except as provided in this section. Peti-tions in Guam and the Virgin Islands,and petitions involving special filingsituations as determined by ServiceHeadquarters, shall be filed with thelocal Service office or a designatedService office. The petitioner may sub-mit a legible photocopy of a documentin support of the visa petition in lieu ofthe original document. However, theoriginal document shall be submitted ifrequested by the Service.

(B) Service or training in more than onelocation. A petition which requiresservices to be performed or training tobe received in more than one locationmust include an itinerary with thedates and locations of the services ortraining and must be filed with theService office which has jurisdictionover I–129H petitions in the area wherethe petitioner is located. The addresswhich the petitioner specifies as its lo-cation on the I–129H petition shall bewhere the petitioner is located for pur-poses of this paragraph.

(C) Services or training for more thanone employer. If the beneficiary willperform nonagricultural services for,or receive training from, more thanone employer, each employer must filea separate petition with the ServiceCenter that has jurisdiction over thearea where the alien will perform serv-ices or receive training, unless an es-tablished agent files the petition.

(D) Change of employers. If the alien isin the United States and seeks tochange employers, the prospective newemployer must file a petition on FormI–129 requesting classification and ex-tension of the alien’s stay in theUnited States. If the new petition isapproved, the extension of stay may begranted for the validity of the approvedpetition. The validity of the petitionand the alien’s extension of stay shallconform to the limits on the alien’stemporary stay that are prescribed inparagraph (h)(13) of this section. Thealien is not authorized to begin the em-ployment with the new petitioner untilthe petition is approved. An H–1A non-immigrant alien may not change em-ployers.

(E) Amended or new petition. The peti-tioner shall file an amended or new pe-tition, with fee, with the Service Cen-ter where the original petition wasfiled to reflect any material changes inthe terms and conditions of employ-ment or training or the beneficiary’seligibility as specified in the originalapproved petition. An amended or newH–1A, H–1B, H–2A, or H–2B petitionmust be accompanied by a current ornew Department of Labor determina-tion. In the case of an H–1B petition,this requirement includes a new laborcondition application.

(F) Agents as petitioners. A UnitedStates agent may file a petition incases involving workers who are tradi-tionally self-employed or workers whouse agents to arrange short-term em-ployment on their behalf with numer-ous employers, and in cases where aforeign employer authorizes the agentto act on its behalf. A United Statesagent may be: the actual employer ofthe beneficiary, the representative ofboth the employer and the beneficiary,or, a person or entity authorized by theemployer to act for, or in place of, theemployer as it agent. A petition filedby a United States agent is subject tothe following conditions;

(1) An agent performing the functionof an employer must guarantee thewages and other terms and conditionsof employment by contractual agree-ment with the beneficiary or bene-ficiaries of the petition. The agent/em-ployer must also provide an itineraryof definite employment and informa-tion on any other services planned forthe period of time requested.

(2) A person or company in businessas an agent may file the H petition in-volving multiple employers as the rep-resentative of both the employers andthe beneficiary or beneficiaries if thesupporting documentation includes acomplete itinerary of services or en-gagements. The itinerary shall specifythe dates of each service or engage-ment, the names and addresses of theactual employers, and the names andaddresses of the establishment, venues,or locations where the services will beperformed. In questionable cases, acontract between the employers andthe beneficiary or beneficiaries may berequired. The burden is on the agent to


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explain the terms and conditions of theemployment and to provide any re-quired documentation.

(3) A foreign employer who, througha United States agent, files a petitionfor an H nonimmigrant alien is respon-sible for complying with all of the em-ployer sanctions provisions of section274A of the Act and 8 CFR part 274a.

(ii) Multiple beneficiaries. More thanone beneficiary may be included in anH–2A, H–2B, or H–3 petition if the bene-ficiaries will be performing the sameservice, or receiving the same training,for the same period of time, and in thesame location.

(iii) Named beneficiaries. Non-agricultural petitions must include thenames of beneficiaries and other re-quired information at the time of fil-ing. Under the H–2B classification, ex-ceptions may be granted in emergentsituations involving multiple bene-ficiaries at the discretion of the direc-tor, and in special filing situations asdetermined by the Service’s Head-quarters. If all of the beneficiaries cov-ered by an H–2A or H–2B labor certifi-cation have not been identified at thetime a petition is filed, multiple peti-tions naming subsequent beneficiariesmay be filed at different times with acopy of the same labor certification.Each petition must reference all pre-viously filed petitions for that laborcertification.

(iv) Substitution of beneficiaries. Bene-ficiaries may be substituted in and H–2B petitions that are approved for agroup, or H–2B petitions that are ap-proved for unnamed beneficiaries, orapproved H–2B petitions where the joboffered to the alien(s) does not requireany education, training, and/or experi-ence. To request a substitution, the pe-titioner shall, by letter and a copy ofthe petition’s approval notice, notifythe consular office at which the alienwill apply for a visa or the port ofentry where the alien will apply for ad-mission. Where evidence of the quali-fications of beneficiaries is required inpetitions for unnamed beneficiaries,the petitioner shall also submit suchevidence to the consular office or portof entry prior to issuance of a visa oradmission.

(v) H–2A Petitions. Special criteria foradmission, extension, and maintenance

of status apply to H–2A petitions andare specified in paragraph (h)(5) of thissection. The other provisions of§ 214.2(h) apply to H–2A only to the ex-tent that they do not conflict with thespecial agricultural provisions in para-graph (h)(5) of this section.

(3) Petition for registered nurse (H–1A)—(i) General. (A) For purposes of H–1A classification, the term ‘‘registerednurse’’ includes a foreign nurse who isor will be licensed or authorized by theState Board of Nursing to engage inprofessional nurse practice in the stateof intended employment.

(B) A United States employer whichprovides health care services is re-ferred to as a ‘‘facility,’’ and may filean H–1A petition for an alien nurse toperform the services of a registerednurse. A ‘‘facility’’ must also meet theDepartment of Labor’s requirements asdefined in 29 CFR part 504.’’.

(C) The position must involve nurs-ing practice and require licensure orother authorization to practice as aregistered nurse from the State Boardof Nursing in the state of intended em-ployment.

(D) A petition, application for changeof status, or application for extensionof stay for an H–1A nurse may be adju-dicated only at the appropriate INSservice center.

(ii) Definition of registered nurse. Forpurposes of H–1A classification, ‘‘reg-istered nurse’’ shall mean a person whois or will be authorized by a StateBoard of Nursing to engage in reg-istered nurse practice in a state or U.S.territory or possession, and who is orwill be practicing at a facility whichprovides health care services.

(iii) Beneficiary requirements. An H–1Apetition for a nurse shall be accom-panied by evidence that the nurse:

(A) Has obtained a full and unre-stricted license to practice nursing inthe country where the alien obtainednursing education, or has receivednursing education in the United Statesor Canada;

(B) Has passed the examination givenby the Commission on Graduates ofForeign Nursing Schools (CGFNS), orhas obtained a full and unrestricted(permanent) license to practice as aregistered nurse in the state of in-tended employment, or has obtained a


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

full and unrestricted (permanent) li-cense in any state or territory of theUnited States and received temporaryauthorization to practice as a reg-istered nurse in the state of intendedemployment; and

(C) Is fully qualified and eligibleunder the laws (including such tem-porary or interim licensing require-ments which authorize the nurse to beemployed) governing the place of in-tended employment to practice as aregistered nurse immediately upon ad-mission to the United States, and isauthorized under such laws to be em-ployed by the employer. For purposesof this paragraph, the temporary or in-terim licensing may be obtained imme-diately after the alien enters theUnited States.

(iv) Petitioner requirements. The peti-tioning facility shall submit the fol-lowing with an H–1A petition:

(A) A current copy of the Departmentof Labor’s (DOL) notice of acceptanceof the filing of its attestation on FormETA 9029,

(B) A statement that it will complywith the terms of its current attesta-tion, and any attestations accepted byDOL for the duration of the alien’s au-thorized period of stay,

(C) A statement describing any limi-tations which the laws of the state orjurisdiction of intended employmentplace on the nurse’s services,

(D) A statement that notice of thefiling of the petition has been providedby the employer to the bargaining rep-resentative of the registered nurses atthe facility or, where there is no suchbargaining representative, notice ofthe filing has been provided to reg-istered nurses employed at the facilitythrough posting in conspicuous loca-tions. A copy of the notice providedshall be submitted with the petitions,and

(v) Licensure requirements. (A) A nursewho is granted H–1A classificationbased on passage of the CGFNS exam-ination must, upon admission to theUnited States, be able to obtain tem-porary licensure or other temporaryauthorization to practice as a reg-istered nurse from the State Board ofNursing in the state of intended em-ployment. A petition for such a nurse

shall be approved initially for a periodnot to exceed one year.

(B) After admission to the UnitedStates, an H–1A nurse who does nothold a permanent state license musttake and pass the examination forstate licensure as a registered nursewithin six months from the date of hisor her initial admission to the UnitedStates. After this six-month period oftime, the nurse must be granted per-manent state licensure in order tomaintain his or her eligibility for H–1Aclassification in the state of employ-ment or any other state or territory ofthe United States.

(C) A nurse shall automatically losehis or her eligibility for H–1A classi-fication if he or she is no longer per-forming the duties of a registered pro-fessional nurse. Such a nurse is not au-thorized to remain in employment un-less he or she otherwise receives au-thorization from the Service.

(D) A nurse may be granted H–1Aclassification based on passage of theCGFNS examination only until he orshe has been admitted to the UnitedStates, and has had an opportunity totake the state licensure examinationfor registered nurses.

(vi) Other requirements. (A) If the Sec-retary of Labor notifies the Servicethat a facility which employs nurseshas failed to meet a condition in its at-testation, or that there was a misrepre-sentation of a material fact in the at-testation, the Service shall not approvepetitions for or extend the stay ofnurses to be employed by the facilityfor a period of one year from the dateof receipt of such notice.

(B) If the facility’s attestation ex-pires, or is suspended or invalidated byDOL, the Service will not suspend orrevoke the facility’s approved petitionsfor nurses, if the facility has agreed tocomply with the terms of the attesta-tion under which the nurses were ad-mitted or subsequent attestations ac-cepted by DOL for the duration of thenurses’ authorized stay.

(4) Petition for alien to perform servicesin a specialty occupation, services relatingto a DOD cooperative research and devel-opment project or coproduction project, orservices of distinguished merit and abilityin the ield of fashion modeling (H–1B)—(i)(A) Types of H–1B classification. An H–


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1B classification may be granted to analien who:

(1) Will perform services in a spe-cialty occupation which requires theo-retical and practical application of abody of highly specialized knowledgeand attainment of a baccalaureate orhigher degree or its equivalent as aminimum requirement for entry intothe occupation in the United States,and who is qualified to perform serv-ices in the specialty occupation be-cause he or she has attained a bacca-laureate or higher degree or its equiva-lent in the specialty occupation;

(2) Based on reciprocity, will performservices of an exceptional nature re-quiring exceptional merit and abilityrelating to a DOD cooperative researchand development project or a coproduc-tion project provided for under a Gov-ernment-to-Government agreement ad-ministered by the Secretary of Defense;

(3) Will perform services in the fieldof fashion modeling and who is of dis-tinguished merit and ability.

(B) General requirements for petitionsinvolving a specialty occupation. (1) Be-fore filing a petition for H–1B classi-fication in a specialty occupation, thepetitioner shall obtain a certificationfrom the Department of Labor that ithas filed a labor condition applicationin the occupational specialty in whichthe alien(s) will be employed.

(2) Certification by the Departmentof Labor of a labor condition applica-tion in an occupational classificationdoes not constitute a determination bythat agency that the occupation inquestion is a specialty occupation. Thedirector shall determine if the applica-tion involves a specialty occupation asdefined in section 214(i)(1) of the Act.The director shall also determinewhether the particular alien for whomH–1B classification is sought qualifiesto perform services in the specialty oc-cupation as prescribed in section214(i)(2) of the Act.

(3) If all of the beneficiaries coveredby an H–1B labor condition applicationhave not been identified at the time apetition is filed, petitions for newlyidentified beneficiaries may be filed atany time during the validity of thelabor condition application using pho-tocopies of the same application. Eachpetition must refer by file number to

all previously approved petitions forthat labor condition application.

(4) When petitions have been ap-proved for the total number of workersspecified in the labor condition appli-cation, substitution of aliens againstpreviously approved openings shall notbe made. A new labor condition appli-cation shall be required.

(5) If the Secretary of Labor notifiesthe Service that the petitioning em-ployer has failed to meet a condition ofparagraph (B) of section 212(n)(1) of theAct, has substantially failed to meet acondition of paragraphs (C) or (D) ofsection 212(n)(1) of the Act, has will-fully failed to meet a condition of para-graph (A) of section 212(n)(1) of the Act,or has misrepresented any materialfact in the application, the Serviceshall not approve petitions filed withrespect to that employer under section204 or 214(c) of the Act for a period of atleast one year from the date of receiptof such notice.

(6) If the employer’s labor conditionapplication is suspended or invalidatedby the Department of Labor, the Serv-ice will not suspend or revoke the em-ployer’s approved petitions for aliensalready employed in specialty occupa-tions if the employer has certified tothe Department of Labor that it willcomply with the terms of the laborcondition application for the durationof the authorized stay of aliens it em-ploys.

(C) General requirements for petitionsinvolving an alien of distinguished meritand ability in the field of fashion model-ing. H–1B classification may be grantedto an alien who is of distinguishedmerit and ability in the field of fashionmodeling. An alien of distinguishedmerit and ability in the field of fashionmodeling is one who is prominent inthe field of fashion modeling. The alienmust also be coming to the UnitedStates to perform services which re-quire a fashion model of prominence.

(ii) Definitions.Prominence means a high level of

achievement in the field of fashionmodeling evidenced by a degree of skilland recognition substantially abovethat ordinarily encountered to the ex-tent that a person described as promi-nent is renowned, leading, or well-known in the field of fashion modeling.


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

Regonized authority means a person oran organization with expertise in a par-ticular field, special skills or knowl-edge in that field, and the expertise torender the type of opinion requested.Such an opinion must state:

(1) The writer’s qualifications as anexpert;

(2) The writer’s experience givingsuch opinions, citing specific instanceswhere past opinions have been acceptedas authoritative and by whom;

(3) How the conclusions were reached;and

(4) The basis for the conclusions sup-ported by copies or citations of any re-search material used.

Specialty occupation means an occupa-tion which requires theoretical andpractical application of a body of high-ly specialized knowledge in fields ofhuman endeavor including, but notlimited to, architecture, engineering,mathematics, physical sciences, socialsciences, medicine and health, edu-cation, business specialties, account-ing, law, theology, and the arts, andwhich requires the attainment of abachelor’s degree or higher in a specificspecialty, or its equivalent, as a mini-mum for entry into the occupation inthe United States.

United States employer means a per-son, firm, corporation, contractor, orother association, or organization inthe United States which:

(1) Engages a person to work withinthe United States;

(2) Has an employer-employee rela-tionship with respect to employeesunder this part, as indicated by thefact that it may hire, pay, fire, super-vise, or otherwise control the work ofany such employee; and

(3) Has an Internal Revenue ServiceTax identification number.

(iii) Criteria for H–1B petitions involv-ing a specialty occupation—(A) Standardsfor specialty occupation position. Toqualify as a specialty occupation, theposition must meet one of the follow-ing criteria:

(1) A baccalaureate or higher degreeor its equivalent is normally the mini-mum requirement for entry into theparticular position;

(2) The degree requirement is com-mon to the industry in parallel posi-tions among similar organizations or,

in the alternative, an employer mayshow that its particular position is socomplex or unique that it can be per-formed only by an individual with a de-gree;

(3) The employer normally requires adegree or its equivalent for the posi-tion; or

(4) The nature of the specific dutiesare so specialized and complex thatknowledge required to perform the du-ties is usually associated with the at-tainment of a baccalaureate or higherdegree.

(B) Petitioner requirements. The peti-tioner shall submit the following withan H–1B petition involving a specialtyoccupation:

(1) A certification from the Secretaryof Labor that the petitioner has filed alabor condition application with theSecretary,

(2) A statement that it will complywith the terms of the labor conditionapplication for the duration of thealien’s authorized period of stay,

(3) Evidence that the alien qualifiesto perform services in the specialty oc-cupation as described in paragraph(h)(4)(iii)(A) of this section, and

(C) Beneficiary qualifications. To qual-ify to perform services in a specialtyoccupation, the alien must meet one ofthe following criteria:

(1) Hold a United States bacca-laureate or higher degree required bythe specialty occupation from an ac-credited college or university;

(2) Hold a foreign degree determinedto be equivalent to a United Statesbaccalaureate or higher degree re-quired by the specialty occupationfrom an accredited college or univer-sity;

(3) Hold an unrestricted State li-cense, registration or certificationwhich authorizes him or her to fullypractice the specialty occupation andbe immediately engaged in that spe-cialty in the state of intended employ-ment; or

(4) Have education, specialized train-ing, and/or progressively responsibleexperience that is equivalent to com-pletion of a United States bacca-laureate or higher degree in the spe-cialty occupation, and have recogni-tion of expertise in the specialty


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through progressively responsible posi-tions directly related to the specialty.

(D) Equivalence to completion of a col-lege degree. For purposes of paragraph(h)(4)(iii)(C)(4) of this section, equiva-lence to completion of a United Statesbaccalaureate or higher degree shallmean achievement of a level of knowl-edge, competence, and practice in thespecialty occupation that has been de-termined to be equal to that of an indi-vidual who has a baccalaureate orhigher degree in the specialty and shallbe determined by one or more of thefollowing:

(1) An evaluation from an officialwho has authority to grant college-level credit for training and/or experi-ence in the specialty at an accreditedcollege or university which has a pro-gram for granting such credit based onan individual’s training and/or workexperience;

(2) The results of recognized college-level equivalency examinations or spe-cial credit programs, such as the Col-lege Level Examination Program(CLEP), or Program on NoncollegiateSponsored Instruction (PONSI);

(3) An evaluation of education by areliable credentials evaluation servicewhich specializes in evaluating foreigneducational credentials;

(4) Evidence of certification or reg-istration from a nationally-recognizedprofessional association or society forthe specialty that is known to grantcertification or registration to personsin the occupational specialty who haveachieved a certain level of competencein the specialty;

(5) A determination by the Servicethat the equivalent of the degree re-quired by the specialty occupation hasbeen acquired through a combinationof education, specialized training, and/or work experience in areas related tothe specialty and that the alien hasachieved recognition of expertise in thespecialty occupation as a result of suchtraining and experience. For purposesof determining equivalency to a bacca-laureate degree in the specialty, threeyears of specialized training and/orwork experience must be demonstratedfor each year of college-level trainingthe alien lacks. For equivalence to anadvanced (or Masters) degree, the alienmust have a baccalaureate degree fol-

lowed by at least five years of experi-ence in the specialty. If required by aspecialty, the alien must hold a Doc-torate degree or its foreign equivalent.It must be clearly demonstrated thatthe alien’s training and/or work experi-ence included the theoretical and prac-tical application of specialized knowl-edge required by the specialty occupa-tion; that the alien’s experience wasgained while working with peers, su-pervisors, or subordinates who have adegree or its equivalent in the spe-cialty occupation; and that the alienhas recognition of expertise in the spe-cialty evidenced by at least one type ofdocumentation such as:

(i) Recognition of expertise in thespecialty occupation by at least tworecognized authorities in the same spe-cialty occupation;

(ii) Membership in a recognized for-eign or United States association or so-ciety in the specialty occupation;

(iii) Published material by or aboutthe alien in professional publications,trade journals, books, or major news-papers;

(iv) Licensure or registration to prac-tice the specialty occupation in a for-eign country; or

(v) Achievements which a recognizedauthority has determined to be signifi-cant contributions to the field of thespecialty occupation.

(E) Liability for transportation costs.The employer will be liable for the rea-sonable costs of return transportationof the alien abroad if the alien is dis-missed from employment by the em-ployer before the end of the period ofauthorized admission pursuant to sec-tion 214(c)(5) of the Act. If the bene-ficiary voluntarily terminates his orher employment prior to the expirationof the validity of the petition, the alienhas not been dismissed. If the bene-ficiary believes that the employer hasnot complied with this provision, thebeneficiary shall advise the ServiceCenter which adjudicated the petitionin writing. The complaint will be re-tained in the file relating to the peti-tion. Within the context of this para-graph, the term ‘‘abroad’’ refers to thealien’s last place of foreign residence.This provision applies to any employerwhose offer of employment became the


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

basis for an alien obtaining or continu-ing H–1B status.

(iv) General documentary requirementsfor H–1B classification in a specialty oc-cupation. An H–1B petition involving aspecialty occupation shall be accom-panied by:

(A) Documentation, certifications,affidavits, declarations, degrees, diplo-mas, writings, reviews, or any other re-quired evidence sufficient to establishthat the beneficiary is qualified to per-form services in a specialty occupationas described in paragraph (h)(4)(i) ofthis section and that the services thebeneficiary is to perform are in a spe-cialty occupation. The evidence shallconform to the following:

(1) School records, diplomas, degrees,affidavits, declarations, contracts, andsimilar documentation submitted mustreflect periods of attendance, coursesof study, and similar pertinent data, beexecuted by the person in charge of therecords of the educational or other in-stitution, firm, or establishment whereeducation or training was acquired.

(2) Affidavits or declarations madeunder penalty of perjury submitted bypresent or former employers or recog-nized authorities certifying as to therecognition and expertise of the bene-ficiary shall specifically describe thebeneficiary’s recognition and ability infactual terms and must set forth theexpertise of the affiant and the mannerin which the affiant acquired such in-formation.

(B) Copies of any written contractsbetween the petitioner and beneficiary,or a summary of the terms of the oralagreement under which the beneficiarywill be employed, if there is no writtencontract.

(v) Licensure for H classification—(A)General. If an occupation requires astate or local license for an individualto fully perform the duties of the occu-pation, an alien (except an H–1A nurse)seeking H classification in that occu-pation must have that license prior toapproval of the petition to be foundqualified to enter the United Statesand immediately engage in employ-ment in the occupation.

(B) Temporary licensure. If a tem-porary license is available and thealien is allowed to perform the dutiesof the occupation without a permanent

license, the director shall examine thenature of the duties, the level at whichthe duties are performed, the degree ofsupervision received, and any limita-tions placed on the alien. If an analysisof the facts demonstrates that thealien under supervision is authorized tofully perform the duties of the occupa-tion, H classification may be granted.

(C) Duties without licensure. In certainoccupations which generally require li-censure, a state may allow an individ-ual to fully practice the occupationunder the supervision of licensed senioror supervisory personnel in that occu-pation. In such cases, the director shallexamine the nature of the duties andthe level at which they are performed.If the facts demonstrate that the alienunder supervision could fully performthe duties of the occupation, H classi-fication may be granted.

(D) H–1A nurses. For purposes of li-censure, H–1A nurses must provide theevidence required in paragraph(h)(3)(iii) of this section.

(E) Limitation on approval of petition.Where licensure is required in any oc-cupation, including registered nursing,the H petition may only be approvedfor a period of one year or for the pe-riod that the temporary license isvalid, whichever is longer, unless thealien already has a permanent licenseto practice the occupation. An alienwho is accorded H classification in anoccupation which requires licensuremay not be granted an extension ofstay or accorded a new H classificationafter the one year unless he or she hasobtained a permanent license in thestate of intended employment or con-tinues to hold a temporary licensevalid in the same state for the period ofthe requested extension.

(vi) Criteria and documentary require-ments for H–1B petitions involving DODcooperative research and developmentprojects or coproduction projects—(A)General. (1) For purposes of H–1B classi-fication, services of an exceptional na-ture relating to DOD cooperative re-search and development projects or co-production projects shall be those serv-ices which require a baccalaureate orhigher degree, or its equivalent, to per-form the duties. The existence of thisspecial program does not preclude theDOD from utilizing the regular H–1B


263


provisions provided the required guide-lines are met.

(2) The requirements relating to alabor condition application from theDepartment of Labor shall not apply topetitions involving DOD cooperativeresearch and development projects orcoproduction projects.

(B) Petitioner requirements. (1) The pe-tition must be accompanied by a ver-ification letter from the DOD projectmanager for the particular projectstating that the alien will be workingon a cooperative research and develop-ment project or a coproduction projectunder a reciprocal Government-to-Gov-ernment agreement administered byDOD. Details about the specific projectare not required.

(2) The petitioner shall provide a gen-eral description of the alien’s duties onthe particular project and indicate theactual dates of the alien’s employmenton the project.

(3) The petitioner shall submit astatement indicating the names ofaliens currently employed on theproject in the United States and theirdates of employment. The petitionershall also indicate the names of alienswhose employment on the projectended within the past year.

(C) Beneficiary requirement. The peti-tion shall be accompanied by evidencethat the beneficiary has a bacca-laureate or higher degree or its equiva-lent in the occupational field in whichhe or she will be performing services inaccordance with paragraph (h)(4)(iii)(C)and/or (h)(4)(iii)(D) of this section.

(vii) Criteria and documentary require-ments for H–1B petitions for aliens of dis-tinguished merit and ability in the field offashion modeling—(A) General. Promi-nence in the field of fashion modelingmay be established in the case of an in-dividual fashion model. The workwhich a prominent alien is coming toperform in the United States must re-quire the services of a prominent alien.A petition for an H–1B alien of distin-guished merit and ability in the field offashion modeling shall be accompaniedby:

(1) Documentation, certifications, af-fidavits, writings, reviews, or any otherrequired evidence sufficient to estab-lish that the beneficiary is a fashionmodel of distinguished merit and abil-

ity. Affidavits submitted by present orformer employers or recognized expertscertifying to the recognition and dis-tinguished ability of the beneficiaryshall specifically describe the bene-ficiary’s recognition and ability in fac-tual terms and must set forth the ex-pertise of the affiant and the manner inwhich the affiant acquired such infor-mation.

(2) Copies of any written contractsbetween the petitioner and beneficiary,or a summary of the terms of the oralagreement under which the beneficiarywill be employed, if there is no writtencontract.

(B) Petitioner’s requirements. To estab-lish that a position requires promi-nence, the petitioner must establishthat the position meets one of the fol-lowing criteria:

(1) The services to be performed in-volve events or productions which havea distinguished reputation;

(2) The services are to be performedfor an organization or establishmentthat has a distinguished reputation for,or record of, employing prominent per-sons.

(C) Beneficiary’s requirements. A peti-tioner may establish that a beneficiaryis a fashion model of distinguishedmerit and ability by the submission oftwo of the following forms of docu-mentation showing that the alien:

(1) Has achieved national or inter-national recognition and acclaim foroutstanding achievement in his or herfield as evidenced by reviews in majornewspapers, trade journals, magazines,or other published material;

(2) Has performed and will performservices as a fashion model for employ-ers with a distinguished reputation;

(3) Has received recognition for sig-nificant achievements from organiza-tions, critics, fashion houses, modelingagencies, or other recognized experts inthe field; or

(4) Commands a high salary or othersubstantial remuneration for servicesevidenced by contracts or other reli-able evidence.

(viii) Criteria and documentary require-ments for H–1B petitions for physicians—(A) Beneficiary’s requirements. An H–1Bpetition for a physician shall be accom-panied by evidence that the physician:


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

(1) Has a license or other authoriza-tion required by the state of intendedemployment to practice medicine, or isexempt by law therefrom, if the physi-cian will perform direct patient careand the state requires the license orauthorization, and

(2) Has a full and unrestricted licenseto practice medicine in a foreign stateor has graduated from a medical schoolin the United States or in a foreignstate.

(B) Petitioner’s requirements. The peti-tioner must establish that the alienphysician:

(1) Is coming to the United Statesprimarily to teach or conduct research,or both, at or for a public or nonprofitprivate educational or research institu-tion or agency, and that no patientcare will be performed, except thatwhich is incidental to the physician’steaching or research; or

(2) The alien has passed the Federa-tion Licensing Examination (or anequivalent examination as determinedby the Secretary of Health and HumanServices) or is a graduate of a UnitedStates medical school; and

(i) Has competency in oral and writ-ten English which shall be dem-onstrated by the passage of the Englishlanguage proficiency test given by theEducational Commission for ForeignMedical Graduates; or

(ii) Is a graduate of a school of medi-cine accredited by a body or bodies ap-proved for that purpose by the Sec-retary of Education.

(C) Exception for physicians of nationalor international renown. A physicianwho is a graduate of a medical schoolin a foreign state and who is of na-tional or international renown in thefield of medicine is exempt from the re-quirements of paragraph (h)(4)(viii)(B)of this section.

(5) Petition for alien to perform agricul-tural labor or services of a temporary orseasonal nature (H–2A)—(i) Filing a peti-tion—(A) General. An H–2A petitionmust be filed on Form I–129. The peti-tion must be filed with a single validtemporary agricultural labor certifi-cation. However, if a certification isdenied, domestic labor subsequentlyfails to appear at the worksite, and theDepartment of Labor denies an appealunder section 216(e)(2) of the Act, the

written denial of appeal shall be con-sidered a certification for this purposeif filed with evidence which establishesthat qualified domestic labor is un-available. An H–2A petition may befiled by either the employer listed onthe certification, the employer’s agent,or the association of United States ag-ricultural producers named as a jointemployer on the certification.

(B) Multiple beneficiaries. The totalnumber of beneficiaries of a petition orseries of petitions based on the samecertification may not exceed the num-ber of workers indicated on that docu-ment. A single petition can includemore than one beneficiary if the totalnumber does not exceed the number ofpositions indicated on the relating cer-tification, and all beneficiaries will ob-tain a visa at the same consulate or arenot required to have a visa and willapply for admission at the same port ofentry.

(C) Unnamed beneficiaries. The solebeneficiary of an H–2A petition must benamed in the petition. In a petition formultiple beneficiaries, each must benamed unless he or she is not named inthe certification and is outside theUnited States. Unnamed beneficiariesmust be shown on the petition by totalnumber.

(D) Evidence. An H–2A petitionermust show that the proposed employ-ment qualifies as a basis for H–2A sta-tus, and that any named beneficiaryqualifies for that employment. A peti-tion will be automatically denied iffiled without the certification evidencerequired in paragraph (h)(5)(i)(A) ofthis section and, for each named bene-ficiary, the initial evidence required inparagraph (h)(5)(v) of this section.

(E) Special filing requirements. Where acertification shows joint employers, apetition must be filed with an attach-ment showing that each employer hasagreed to the conditions of H–2A eligi-bility. A petition filed by an agentmust be filed with an attachment inwhich the employer has authorized theagent to act on its behalf, has assumedfull responsibility for all representa-tions made by the agent on its behalf,and has agreed to the conditions of H–2A eligibility.

(ii) Effect of the labor certificationprocess. The temporary agricultural


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labor certification process determineswhether employment is as an agricul-tural worker, whether it is open to U.S.workers, if qualified U.S. workers areavailable, the adverse impact of em-ployment of a qualified alien, andwhether employment conditions, in-cluding housing, meet applicable re-quirements. In petition proceedings apetitioner must establish that the em-ployment and beneficiary meet the re-quirements of paragraph (h)(5) of thissection. In a petition filed with a cer-tification denial, the petitioner mustalso overcome the Department of La-bor’s findings regarding the availabil-ity of qualified domestic labor.

(iii) Ability and intent to meet a joboffer—(A) Eligibility requirements. An H–2A petitioner must establish that eachbeneficiary will be employed in accord-ance with the terms and conditions ofthe certification, which includes thatthe principal duties to be performedare those on the certification, withother duties minor and incidental.

(B) Intent and prior compliance. Req-uisite intent cannot be established fortwo years after an employer or jointemployer, or a parent, subsidiary or af-filiate thereof, is found to have vio-lated section 274(a) of the Act or tohave employed an H–2A worker in a po-sition other than that described in therelating petition.

(C) Initial evidence. Representationsrequired for the purpose of labor cer-tification are initial evidence of intent.

(iv) Temporary and seasonal employ-ment—(A) Eligibility requirements. AnH–2A petitioner must establish thatthe employment proposed in the cer-tification is of a temporary or seasonalnature. Employment is of a seasonalnature where it is tied to a certaintime of year by an event or pattern,such as a short annual growing cycle ora specific aspect of a longer cycle, andrequires labor levels far above thosenecessary for ongoing operations. Em-ployment is of a temporary naturewhere the employer’s need to fill theposition with a temporary worker will,except in extraordinary circumstances,last no longer than one year.

(B) Effect of Department of Labor find-ings. In temporary agricultural laborcertification proceedings the Depart-ment of Labor separately tests whether

employment qualifies as temporary orseasonal. Its finding that employmentqualifies is normally sufficient for thepurpose of an H–2A petition, However,notwithstanding that finding, employ-ment will be found not to be temporaryor seasonal where an application forpermanent labor certification has beenfiled for the same alien, or for anotheralien to be employed in the same posi-tion, by the same employer or by itsparent, subsidiary or affiliate. This canonly be overcome by the petitioner’sdemonstration that there will be atleast a six month interruption of em-ployment in the United States after H–2A status ends. Also, eligibility willnot be found, notwithstanding theissuance of a temporary agriculturallabor certification, where there is sub-stantial evidence that the employmentis not temporary or seasonal.

(v) The beneficiary’s qualifications—(A)Eligibility requirements. An H–2A peti-tioner must establish that any namedbeneficiary met the stated minimumrequirements and was fully able to per-form the stated duties when the appli-cation for certification was filed. Itmust be established at time of applica-tion for an H–2A visa, or for admissionif a visa is not required, that anyunnamed beneficiary either met theserequirements when the certificationwas applied for or passed any certifiedaptitude test at any time prior to visaissuance, or prior to admission if a visais not required.

(B) Initial evidence of employment/jobtraining. A petition must be filed withevidence that at the required time thebeneficiary met the certification’sminimum employment and job trainingrequirements. Initial evidence must bein the form of the past employer’s de-tailed statement or actual employmentdocuments, such as company payroll ortax records. Alternately, a petitionermust show that such evidence cannotbe obtained, and submit affidavits frompeople who worked with the bene-ficiary that demonstrate the claimedemployment.

(C) Initial evidence of education andother training. A petition must be filedwith evidence that at the required timeeach beneficiary met the certification’sminimum post-secondary education


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and other formal training require-ments. Initial evidence must be in theform of documents, issued by the rel-evant institution or organization, thatshow periods of attendance, majors anddegrees or certificates accorded.

(vi) Petition agreements—(A) Consentand liabilities. In filing an H–2A peti-tion, a petitioner and each employerconsents to allow access to the sitewhere the labor is being performed forthe purpose of determining compliancewith H–2A requirements. The peti-tioner further agrees to notify theService in the manner specified withintwenty-four hours if an H–2A workerabsconds or if the authorized employ-ment ends more than five days beforethe relating certification document ex-pires, and to pay liquidated damages often dollars for each instance where itcannot demonstrate compliance withthis notification requirement. The pe-titioner also agrees to pay liquidateddamages of two hundred dollars foreach instance where is cannot dem-onstrate that its H–2A worker eitherdeparted the United States or obtainedauthorized status based on another pe-tition during the period of admission orwithin five days of early termination,whichever comes first.

(B) Process. Where evidence indicatesnoncompliance under paragraph(h)(5)(vi)(A) of this section, the peti-tioner shall be given written notice andgiven ten days to reply. If it does notdemonstrate compliance, it shall begiven written notice of the assessmentof liquidated damages.

(C) Failure to pay liquidated damages.If liquidated damages are not paidwithin ten days of assessment, an H–2Apetition may not be processed for thatpetitioner or any joint employer shownon the petition until such damages arepaid.

(vii) Validity. An approved H–2A peti-tion is valid through the expiration ofthe relating certification for the pur-pose of allowing a beneficiary to seekissuance of an H–2A nonimmigrantvisa, admission or an extension of stayfor the purpose of engaging in the spe-cific certified employment.

(viii) Admission—(A) Effect of violationof status. An alien may not be accordedH–2A status who the Service finds tohave violated the conditions of H–2A

status within the prior five years. H–2Astatus is violated by remaining beyondthe specific period of authorized stayor by engaging in unauthorized em-ployment.

(B) Period of admission. Notwithstand-ing paragraph (h)(13) of this section,and except as provided in paragraph(h)(5)(ix)(C) of this section, an alien ad-missible as an H–2A shall be admittedfor the period of the approved petitionplus a period of up to one week beforethe beginning of the approved periodfor the purpose of travel to the work-site, and a period following the expira-tion of the H–2A petition equal to thevalidity period of the petition, but notmore than ten days, for the purpose ofdeparture or extension based on a sub-sequent offer of employment. However,this extended admission period doesnot affect the beneficiary’s employ-ment authorization. Such authoriza-tion only applies to the specific em-ployment indicated in the relating pe-tition, for the specific period of timeindicated.

(C) Limits on an individual’s stay. Analien’s stay as an H–2A is limited bythe term of an approved petition. Analien may remain longer to engage inother qualifying temporary agricul-tural employment by obtaining an ex-tension of stay. However, an individualwho has held H–2A status for a total ofthree years may not again be grantedH–2A status, or other nonimmigrantstatus based on agricultural activities,until such time as he or she remainsoutside the United States for an unin-terrupted period of six months. An ab-sence can interrupt the accumulationof time spent as an H–2A. If the accu-mulated stay is eighteen months orless, an absence is interruptive if itlasts for at least three months. If morethan eighteen months stay has been ac-cumulated, an absence is interruptiveif it lasts for at least one-sixth the ac-cumulated stay. Eligibility under thissubparagraph will be determined in ad-mission, change of status or extensionproceedings. An alien found eligible fora shorter period of H–2A status thanthat indicated by the petition due tothe application of this subparagraphshall only be admitted for that abbre-viated period.


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(ix) Substitution of beneficiaries afteradmission. An H–2A petition may befiled to replace H–2A workers whoseemployment was terminated early. Thepetition must be filed with a copy ofthe certification document, a copy ofthe approval notice covering the work-ers for which replacements are sought,and other evidence required by para-graph (h)(5)(i)(D) of this section. Itmust also be filed with a statementgiving each terminated worker’s name,date and country of birth, terminationdate, and evidence the worker has de-parted the United States. A petitionfor a replacement may not be approvedwhere the requirements of paragraph(h)(5)(vi) of this section have not beenmet. A petition for replacements doesnot constitute the notice that an H–2Aworker has absconded or has ended au-thorized employment more than fivedays before the relating certificationexpires.

(x) Extensions without labor certifi-cation. A single H–2A petition may beextended without a certification if it isbased on approval of the alien’s appli-cation for extension of stay for a con-tinuation of the employment author-ized by the approval of a previous H–2Apetition filed with a certification (butnot a certification extension grantedunder 20 CFR 655.106(c)(3)), and the pro-posed continuation of employment willlast no longer than the previously au-thorized employment and also will notlast longer than two weeks.

(6) Petition for alien to perform tem-porary nonagricultural services or labor(H–2B)—(i) General. An H–2B non-agricultural temporary worker is analien who is coming temporarily to theUnited States to perform temporaryservices or labor, is not displacingUnited States workers capable of per-forming such services or labor, andwhose employment is not adversely af-fecting the wages and working condi-tions of United States workers.

(ii) Temporary services or labor—(A)Definition. Temporary services or laborunder the H–2B classification refers toany job in which the petitioner’s needfor the duties to be performed by theemployee(s) is temporary, whether ornot the underlying job can be describedas permanent or temporary.

(B) Nature of petitioner’s need. As ageneral rule, the period of the petition-er’s need must be a year or less, al-though there may be extraordinary cir-cumstances where the temporary serv-ices or labor might last longer thanone year. The petitioner’s need for theservices or labor shall be a one-timeoccurrence, a seasonal need, a peakloadneed, or an intermittent need:

(1) One-time occurence. The petitionermust establish that it has not em-ployed workers to perform the servicesor labor in the past and that it will notneed workers to perform the services orlabor in the future, or that it has anemployment situation that is other-wise permanent, but a temporary eventof short duration has created the needfor a temporary worker.

(2) Seasonal need. The petitioner mustestablish that the services or labor istraditionally tied to a season of theyear by an event or pattern and is of arecurring nature. The petitioner shallspecify the period(s) of time duringeach year in which it does not need theservices or labor. The employment isnot seasonal if the period during whichthe services or labor is not needed isunpredictable or subject to change or isconsidered a vacation period for the pe-titioner’s permanent employees.

(3) Peakload need. The petitoner mustestablish that it regularly employs per-manent workers to perform the serv-ices or labor at the place of employ-ment and that it needs to supplementits permanent staff at the place of em-ployment on a temporary basis due toa seasonal or short-term demand andthat the temporary additions to staffwill not become a part of the petition-er’s regular operation.

(4) Intermittent need. The petitionermust establish that it has not em-ployed permanent or full-time workersto perform the services or labor, butoccasionally or intermittently needstemporary workers to perform servicesor labor for short periods.

(iii) Procedures. (A) Prior to filing apetition with the director to classifyan alien as an H–2B worker, the peti-tioner shall apply for a temporarylabor certification with the Secretaryof Labor for all areas of the UnitedStates, except the Territory of Guam.


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In the Territory of Guam, the petition-ing employer shall apply for a tem-porary labor certification with theGovernor of Guam. The labor certifi-cation shall be advice to the directoron whether or not United States work-ers capable of performing the tem-porary services or labor are availableand whether or not the alien’s employ-ment will adversely affect the wagesand working conditions of similarlyemployed United States workers.

(B) An H–2B petitioner shall be aUnited States employer, a UnitedStates agent, or a foreign employer fil-ing through a United States agent. Forpurposes of paragraph (h) of this sec-tion, a foreign employer is any em-ployer who is not amendable to serviceof process in the United States. A for-eign employer may not directly peti-tion for an H–2B nonimmigrant butmust use the services of a UnitedStates agent to file a petition for an H–2B nonimmigrant. A United Statesagent petitioning on behalf of a foreignemployer must be authorized to file thepetition, and to accept service of proc-ess in the United States in proceedingsunder section 274A of the Act, on behalfof the employer. The petitioning em-ployer shall consider available UnitedStates workers for the temporary serv-ices or labor, and shall offer terms andconditions of employment which areconsistent with the nature of the occu-pation, activity, and industry in theUnited States.

(C) The petitioner may not file an H–2B petition unless the United Statespetitioner has applied for a labor cer-tification with the Secretary of Laboror the Governor of Guam within thetime limits prescribed or accepted byeach, and has obtained a labor certifi-cation determination as required byparagraph (h)(6)(iv) or (h)(6)(v) of thissection.

(D) The Secretary of Labor and theGovernor of Guam shall separately es-tablish procedures for administeringthe temporary labor certification pro-gram under his or her jurisdiction.

(E) After obtaining a determinationfrom the Secretary of Labor or theGovernor of Guam, as appropriate, thepetitioner shall file a petition on I–129,accompanied by the labor certificationdetermination and supporting docu-

ments, with the director having juris-diction in the area of intended employ-ment.

(iv) Labor certifications, except Guam—(A) Secretary of Labor’s determination.An H–2B petition for temporary em-ployment in the United States, exceptfor temporary employment on Guam,shall be accompanied by a labor certifi-cation determination that is either:

(1) A certification from the Secretaryof Labor stating that qualified workersin the United States are not availableand that the alien’s employment willnot adversely affect wages and workingconditions of similary employed UnitedStates workers; or

(2) A notice detailing the reasonswhy such certification cannot be made.Such notice shall address the availabil-ity of U.S. workers in the occupationand the prevailing wages and workingconditions of U.S. workers in the occu-pation.

(B) Validity of the labor certification.The Secretary of Labor may issue atemporary labor certification for a pe-riod of up to one year.

(C) U.S. Virgin Islands. Temporarylabor certifications filed under section101(a)(15)(H)(ii)(b) of the Act for em-ployment in the United States VirginIslands may be approved only for enter-tainers and athletes and only for peri-ods not to exceed 45 days.

(D) Attachment to petition. If the peti-tioner receives a notice from the Sec-retary of Labor that certification can-not be made, a petition containingcountervailing evidence may be filedwith the director. The evidence mustshow that qualified workers in theUnited States are not available, andthat the terms and conditions of em-ployment are consistent with the na-ture of the occupation, activity, andindustry in the United States. All suchevidence submitted will be consideredin adjudicating the petition.

(E) Countervailing evidence. The coun-tervailing evidence presented by thepetitioner shall be in writing and shalladdress availability of U.S. workers,the prevailing wage rate for the occu-pation of the United States, and eachof the reasons why the Secretary ofLabor could not grant a labor certifi-cation. The petitioner may also submit


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other appropriate information in sup-port of the petition. The director, athis or her discretion, may require addi-tional supporting evidence.

(v) Labor certification for Guam—(A)Governor of Guam’s determination. An H–2B petition for temporary employmenton Guam shall be accompanied by alabor certification determination thatis either:

(1) A certification from the Governorof Guam stating that qualified workersin the United States are not availableto perform the required services, andthat the alien’s employment will notadversely affect the wages and workingconditions of United States residentworkers who are similarly employed onGuam; or

(2) A notice detailing the reasonswhy such certification cannot be made.Such notice shall address the availabil-ity of U.S. workers in the occupationand/or the prevailing wages and work-ing conditions of U.S. workers in theoccupation.

(B) Validity of labor certification. TheGovernor of Guam may issue a tem-porary labor certification for a periodup to one year.

(C) Attachments to petition. If the em-ployer receives a notice from the Gov-ernor of Guam that certification can-not be made, a petition containingcountervailing evidence may be filedwith the director. The evidence mustshow that qualified workers in theUnited States are not available, andthat the terms and conditions of em-ployment are consistent with the na-ture of the occupation, activity, andindustry in the United States. All suchevidence submitted will be consideredin adjudicating the petition.

(D) Countervailing evidence. The coun-tervailing evidence presented by thepetitioner shall be in writing and shalladdress availability of United Statesworkers, the prevailing wage rate, andeach of the reasons why the Governorof Guam could not make the requiredcertification. The petitioner may alsoprovide any other appropriate informa-tion in support of the petition. The di-rector, at his or her discretion, may re-quire additional supporting evidence.

(E) Criteria for Guam labor certifi-cations. The Governor of Guam shall, inconsultation with the Service, estab-

lish systematic methods for determin-ing the prevailing wage rates andworking conditions for individual occu-pations on Guam and for making deter-minations as to availability of quali-fied United States residents.

(1) Prevailing wage and working condi-tions. The system to determine wagesand working conditions must providefor consideration of wage rates and em-ployment conditions for occupations inboth the private and public sectors, inGuam and/or in the United States (asdefined in section 101(a)(38) of the Act),and may not consider wages and work-ing conditions outside of the UnitedStates. If the system includesutilitzation of advisory opinions andconsultations, the opinions must beprovided by officially sanctionedgroups which reflect a balance of theinterests of the private and public sec-tors, government, unions and manage-ment.

(2) Availability of United States work-ers. The system for determining avail-ability of qualified United States work-ers must require the prospective em-ployer to:

(i) Advertise the availability of theposition for a minimum of three con-secutive days in the newspaper withthe largest daily circulation on Guam;

(ii) Place a job offer with an appro-priate agency of the Territorial Gov-ernment which operates as a job refer-ral service at least 30 days in advanceof the need for the services to com-mence, except that for applicationsfrom the armed forces of the UnitedStates and those in the entertainmentindustry, the 30-day period may be re-duced by the Governor to 10 days;

(iii) Conduct appropriate recruitmentin other areas of the United and its ter-ritories if sufficient qualified UnitedStates construction workers are notavailable on Guam to fill a job. TheGovernor of Guam may require a joborder to be placed more than 30 days inadvance of need to accommodate suchrecruitment;

(iv) Report to the appropriate agencythe names of all United States residentworkers who applied for the position,indicating those hired and the job-re-lated reasons for not hiring;


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(v) Offer all special considerations,such as housing and transportation ex-penses, to all United States residentworkers who applied for the position,indicating those hired and the job-re-lated reasons for not hiring;

(vi) Meet the prevailing wage ratesand working conditions determinedunder the wages and working condi-tions system by the Governor; and

(vii) Agree to meet all Federal andTerritorial requirements relating toemployment, such as nondiscrimina-tion, occupational safety, and mini-mum wage requirements.

(F) Approval and publication of em-ployment systems on Guam—(1) Systems.The Commissioner of Immigration andNaturalization must approve the sys-tem to determine prevailing wages andworking conditions and the system todetermine availability of United Statesresident workers and any future modi-fications of the systems prior to imple-mentation. If the Commissioner, inconsultation with the Secretary ofLabor, finds that the systems or modi-fied systems meet the requirements ofthis section, the Commissioner shallpublish them as a notice in the FED-ERAL REGISTER and the Governor shallpublish them as a public record inGuam.

(2) Approval of construction wage rates.The Commissioner must approve spe-cific wage data and rates used for con-struction occupations on Guam priorto implementation of new rates. TheGovernor shall submit new wage sur-vey data and proposed rates to theCommissioner for approval at leasteight weeks before authority to use ex-isting rates expires. Surveys shall beconducted at least every two years, un-less the Commissioner prescribes alesser period.

(G) Reporting. The Governor shallprovide the Commissioner statisticaldata on temporary labor certificationworkload and determinations. This in-formation shall be submitted quarterlyno later than 30 days after the quarterends.

(H) Invalidation of temporary labor cer-tification issued by the Governor ofGuam—(1) General. A temporary laborcertification issued by the Governor ofGuam may be invalidated by a directorif it is determined by the director or a

court of law that the certification re-quest involved fraud or willful mis-representation. A temporary labor cer-tification may also be invalidated ifthe director determines that the cer-tification involved gross error.

(2) Notice of intent to invalidate. If thedirector intends to invalidate a tem-porary labor certification, a notice ofintent shall be served upon the em-ployer, detailing the reasons for the in-tended invalidation. The employershall have 30 days in which to file awritten response in rebuttal to the no-tice of intent. The director shall con-sider all evidence submitted upon re-buttal in reaching a decision.

(3) Appeal of invalidation. An em-ployer may appeal the invalidation of atemporary labor certification in ac-cordance with part 103 of this chapter.

(vi) Evidence for H–2B petitions. An H–2B petition shall be accompanied by:

(A) Labor certification or notice. Atemporary labor certification or a no-tice that certification cannot be made,issued by the Secretary of Labor or theGovernor of Guam, as appropriate;

(B) Countervailing evidence. Evidenceto rebut the Secretary of Labor’s orthe Governor of Guam’s notice thatcertification cannot be made, if appro-priate;

(C) Alien’s qualifications. Documenta-tion that the alien qualifies for the joboffer as specified in the application forlabor certification, except in petitionswhere the labor certification applica-tion requires no education, training,experience, or special requirements ofthe beneficiary; and

(D) Statement of need. A statement de-scribing in detail the temporary situa-tion or conditions which make it nec-essary to bring the alien to the UnitedStates and whether the need is a one-time occurrence, seasonal, peakload, orintermittent. If the need is seasonal,peakload, or intermittent, the state-ment shall indicate whether the situa-tion or conditions are expected to berecurrent.

(E) Liability for transportation costs.The employer will be liable for the rea-sonable costs of return transportationof the alien abroad, if the alien is dis-missed from employment for any rea-son by the employer before the end of


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the period of authorized admission pur-suant to section 214(c)(5) of the Act. Ifthe beneficiary voluntarily terminateshis or her employment prior to the ex-piration of the validity of the petition,the alien has not been dismissed. If thebeneficiary believes that the employerhas not complied with this provision,the beneficiary shall advise the ServiceCenter which adjudicated the petitionin writing. The complaint will be re-tained in the file relating to the peti-tion. Within the context of this para-graph, the term ‘‘abroad’’ means thealien’s last place of foreign residence.This provision applies to any employerwhose offer of employment became thebasis for the alien obtaining or con-tinuing H–2B status.

(vii) Traded professional H–2B athletes.In the case of a professional H–2B ath-lete who is traded from one organiza-tion or another organization, employ-ment authorization for the player willautomatically continue for a period of30 days after the player’s acquisitionby the new organization, within whichtime the new organization is expectedto file a new Form I–129 for H–2B non-immigrant classification. If a newForm I–129 is not filed within 30 days,employment authorization will cease.If a new Form I–129 is filed within 30days, the professional athlete shall bedeemed to be in valid H–2B status, andemployment shall continue to be au-thorized, until the petition is adju-dicated. If the new petition is denied,employment authorization will cease.

(7) Petition for alien trainee or partici-pant in a special education exchange visi-tor program (H–3)—(i) Alien trainee. TheH–3 trainee is a nonimmigrant whoseeks to enter the United States at theinvitation of an organization or indi-vidual for the purpose of receivingtraining in any field of endeavor, suchas agriculture, commerce, communica-tions, finance, government, transpor-tation, or the professions, as well astraining in a purely industrial estab-lishment. This category shall not applyto physicians, who are statutorily in-eligible to use H–3 classification inorder to receive any type of graduatemedical education or training.

(A) Externs. A hospital approved bythe American Medical Association orthe American Osteopathic Association

for either an internship or residencyprogram may petition to classify as anH–3 trainee a medical student attend-ing a medical school abroad, if thealien will engage in employment as anextern during his/her medical schoolvacation.

(B) Nurses. A petitioner may seek H–3 classification for a nurse who is notH–1 if it can be established that thereis a genuine need for the nurse to re-ceive a brief period of training that isunavailable in the alien’s native coun-try and such training is designed tobenefit the nurse and the overseas em-ployer upon the nurse’s return to thecountry of origin, if:

(1) The beneficiary has obtained afull and unrestricted license to prac-tice professional nursing in the coun-try where the beneficiary obtained anursing education, or such educationwas obtained in the United States orCanada; and

(2) The petitioner provides a state-ment certifying that the beneficiary isfully qualified under the laws govern-ing the place where the training will bereceived to engage in such training,and that under those laws the peti-tioner is authorized to give the bene-ficiary the desired training.

(ii) Evidence required for petition in-volving alien trainee—(A) Conditions.The petitioner is required to dem-onstrate that:

(1) The proposed training is not avail-able in the alien’s own country;

(2) The beneficiary will not be placedin a position which is in the normal op-eration of the business and in whichcitizens and resident workers are regu-larly employed;

(3) The beneficiary will not engage inproductive employment unless suchemployment is incidental and nec-essary to the training; and

(4) The training will benefit the bene-ficiary in pursuing a career outside theUnited States.

(B) Description of training program.Each petition for a trainee must in-clude a statement which:

(1) Describes the type of training andsupervision to be given, and the struc-ture of the training program;

(2) Sets forth the proportion of timethat will be devoted to productive em-ployment;


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(3) Shows the number of hours thatwill be spent, respectively, in class-room instruction and in on-the-jobtraining;

(4) Describes the career abroad forwhich the training will prepare thealien;

(5) Indicates the reasons why suchtraining cannot be obtained in thealien’s country and why it is necessaryfor the alien to be trained in theUnited States; and

(6) Indicates the source of any remu-neration received by the trainee andany benefit which will accrue to the pe-titioner for providing the training.

(iii) Restrictions on training programfor alien trainee. A training programmay not be approved which:

(A) Deals in generalities with nofixed schedule, objectives, or means ofevaluation;

(B) Is incompatible with the natureof the petitioner’s business or enter-prise;

(C) Is on behalf of a beneficiary whoalready possesses substantial trainingand expertise in the proposed field oftraining;

(D) Is in a field in which it is un-likely that the knowledge or skill willbe used outside the United States;

(E) Will result in productive employ-ment beyond that which is incidentaland necessary to the training;

(F) Is designed to recruit and trainaliens for the ultimate staffing of do-mestic operations in the United States;

(G) Does not establish that the peti-tioner has the physical plant and suffi-ciently trained manpower to providethe training specified; or

(H) Is designed to extend the total al-lowable period of practical trainingpreviously authorized a nonimmigrantstudent.

(iv) Petition for participant in a specialeducation exchange visitor program—(A)General Requirements. (1) The H–3 par-ticipant in a special education trainingprogram must be coming to the UnitedStates to participate in a structuredprogram which provides for practicaltraining and experience in the edu-cation of children with physical, men-tal, or emotional disabilities.

(2) The petition must be filed by a fa-cility which has professionally trainedstaff and a structured program for pro-

viding education to children with dis-abilities, and for providing trainingand hands-on experience to partici-pants in the special education ex-change visitor program.

(3) The requirements in this sectionfor alien trainees shall not apply to pe-titions for participants in a specialeducation exchange visitor program.

(B) Evidence. An H–3 petition for aparticipant in a special education ex-change visitor program shall be accom-panied by:

(1) A description of the training pro-gram and the facility’s professionalstaff and details of the alien’s partici-pation in the training program (anycustodial care of children must be inci-dental to the training), and

(2) Evidence that the alien partici-pant is nearing completion of a bacca-laureate or higher degree in specialeducation, or already holds such a de-gree, or has extensive prior trainingand experience in teaching childrenwith physical, mental, or emotionaldisabilities.

(8) Numerical limits—(i) Limits on af-fected categories. During each fiscalyear, the total number of aliens whocan be provided nonimmigrant classi-fication is limited as follows:

(A) Aliens classified as H1–B non-immigrants, excluding those involvedin DOD research and developmentprojects or coproduction projects, maynot exceed 65,000.

(B) Aliens classified as H–1B non-immigrants to work for DOD researchand development projects or coproduc-tion projects may not exceed 100 at anytime.

(C) Aliens classified as H–2B non-immigrants may not exceed 66,000.

(D) Aliens classified as H–3 non-immigrant participants in a specialeducation exchange visitor programmay not exceed 50.

(ii) Procedures. (A) Each alien issueda visa or otherwise provided non-immigrant status under section101(a)(15)(H)(i)(b) of the Act shall becounted for purposes of the numericallimit. Requests for petition extensionor extension of an alien’s stay shall notbe counted for the purpose of the nu-merical limit. The spouse and childrenof principal aliens classified as H–4


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nonimmigrants shall not be countedagainst the numerical limit.

(B) Numbers will be assigned tempo-rarily to each alien (or job opening(s)for aliens in petitions with unnamedbeneficiaries) included in a new peti-tion in the order that petitions arefiled. If a petition is denied, the num-ber(s) originally assigned to the peti-tion shall be returned to the systemwhich maintains and assigns numbers.

(C) For purposes of assigning num-bers to aliens on petitions filed inGuam and the Virgin Islands, ServiceHeadquarters Adjudications shall as-sign numbers to these locations fromthe central system which controls andassigns numbers to petitions filed inother locations of the United States.

(D) When an approved petition is notused because the beneficiary(ies) doesnot apply for admission to the UnitedStates, the petitioner shall notify theService Center Director who approvedthe petition that the number(s) has notbeen used. The petition shall be re-voked pursuant to paragraph (h)(11)(ii)of this section and the unused num-ber(s) shall be returned to the systemwhich maintains and assigns numbers.

(E) If the total numbers available ina fiscal year are used, new petitionsand the accompanying fee shall be re-jected and returned with a notice thatnumbers are unavailable for the par-ticular nonimmigrant classificationuntil the beginning of the next fiscalyear.

(9) Approval and validity of petition—(i) Approval. The director shall considerall the evidence submitted and suchother evidence as he or she may inde-pendently require to assist his or heradjudication. The director shall notifythe petitioner of the approval of the pe-tition on Form I–797, Notice of Action.The approval shall be as follows:

(A) The approval notice shall includethe beneficiary’s(ies’) name(s) and clas-sification and the petition’s period ofvalidity. A petition for more than onebeneficiary and/or multiple servicesmay be approved in whole or in part.The approval notice shall cover onlythose beneficiaries approved for classi-fication under section 101(a)(15)(H) ofthe Act.

(B) The petition may not be filed orapproved earlier than six months be-

fore the date of actual need for thebeneficiary’s services or training.

(ii) Recording the validity of petitions.Procedures for recording the validityperiod of petitions are:

(A) If a new H petition is approvedbefore the date the petitioner indicatesthat the services or training will begin,the approved petition and approval no-tice shall show the actual dates re-quested by the petitioner as the valid-ity period, not to exceed the limitsspecified by paragraph (h)(9)(iii) of thissection or other Service policy.

(B) If a new H petition is approvedafter the date the petitioner indicatesthat the services or training will begin,the approved petition and approval no-tice shall show a validity period com-mencing with the date of approval andending with the date requested by thepetitioner, as long as that date doesnot exceed either the limits specifiedby paragraph (h)(9)(iii) of this sectionor other Service policy.

(C) If the period of services or train-ing requested by the petitioner exceedsthe limit specified in paragraph(h)(9)(iii) of this section, the petitionshall be approved only up to the limitspecified in that paragraph.

(iii) Validity. The initial approval pe-riod of an H petition shall conform tothe limits prescribed as follows:

(A)(1) H–1B petition in a specialty occu-pation. An approved petition classifiedunder section 101(a)(15)(H)(i)(b) of theAct for an alien in a specialty occupa-tion shall be valid for a period of up tothree years but may not exceed the va-lidity period of the labor condition ap-plication.

(2) H–1B petition involving a DOD re-search and development or coproductionproject. An approved petition classifiedunder section 101(a)(15)(H)(i)(b) of theAct for an alien involved in a DOD re-search and development project or acoproduction project shall be valid fora period of up to five years.

(3) H–1B petition involving an alien ofdistinguished merit and ability in the fieldof fashion modeling. An approved peti-tion classified under section101(a)(15)(H)(i)(b) of the Act for an alienof distinguished merit and ability inthe field of fashion modeling shall bevalid for a period of up to three years.


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(B) H–2B petition—(1) Labor certifi-cation attached. If a certification by theSecretary of Labor or the Governor ofGuam is attached to a petition to ac-cord an alien a classification under sec-tion 101(a)(15)(H)(ii)(B) of the Act, theapproval of the petition shall be validfor a period of up to one year.

(2) Notice that certification cannot bemade attached—(i) Countervailing evi-dence. If a petition is submitted con-taining a notice from the Secretary ofLabor or the Governor of Guam thatcertification cannot be made, and isnot accompanied by countervailing evi-dence, the petitioner shall be informedthat he or she may submit the counter-vailing evidence in accordance withparagraphs (h)(6)(iii)(E) and(h)(6)(iv)(D) of this section.

(ii) Approval. In any case where thedirector decides that approval of the H–2B petition is warranted despite theissuance of a notice by the Secretary ofLabor or the Governor of Guam thatcertification cannot be made, the ap-proval shall be certified by the Direc-tor to the Commissioner pursuant to 8CFR 103.4. In emergent situations, thecertification may be presented by tele-phone to the Director, AdministrativeAppeals Office, Headquarters. If ap-proved, the petition is valid for the pe-riod of established need not to exceedone year. There is no appeal from a de-cision which has been certified to theCommissioner.

(C)(1) H–3 petition for alien trainee. Anapproved petition for an alien traineeclassified under section101(a)(15)(H)(iii) of the Act shall bevalid for a period of up to two years.

(2) H–3 petition for alien participant ina special education training program. Anapproved petition for an alien classi-fied under section 101(a)(15)(H)(iii) ofthe Act as a participant in a specialeducation exchange visitor programshall be valid for a period of up to 18months.

(iv) Spouse and dependents. Thespouse and unmarried minor childrenof the beneficiary are entitled to Hnonimmigrant classification, subjectto the same period of admission andlimitations as the beneficiary, if theyare accompanying or following to jointhe beneficiary in the United States.Neither the spouse nor a child of the

beneficiary may accept employmentunless he or she is the beneficiary of anapproved petition filed in his or her be-half and has been granted a non-immigrant classification authorizinghis or her employment.

(10) Denial of petition—(i) Multiplebeneficiaries. A petition for multiplebeneficiaries may be denied in whole orin part.

(ii) Notice of intent to deny. When anadverse decision is proposed on thebasis of derogatory inform U.S. ationof which the petitioner is unaware, thedirector shall notify the petitioner ofthe intent to deny the petition and thebasis for the denial. The petitionermay inspect and rebut the evidence andwill be granted a period of 30 days fromthe date of the notice in which to doso. All relevant rebuttal material willbe considered in making a final deci-sion.

(iii) Notice of denial. The petitionershall be notified of the reasons for thedenial, and of his or her right to appealthe denial of the petition under 8 CFRpart 103. There is no appeal from a de-cision to deny an extension of stay tothe alien.

(11) Revocation of approval of peti-tion—(i) General. (A) The petitionershall immediately notify the Service ofany changes in the terms and condi-tions of employment of a beneficiarywhich may affect eligibility under sec-tion 101(a)(15)(H) of the Act and para-graph (h) of this section. An amendedpetition on Form I–129 should be filedwhen the petitioner continues to em-ploy the beneficiary. If the petitionerno longer employs the beneficiary, thepetitioner shall send a letter explain-ing the change(s) to the director whoapproved the petition.

(B) The director may revoke a peti-tion at any time, even after the expira-tion of the petition.

(ii) Automatic revocation. The ap-proval of any petition is automaticallyrevoked if the petitioner goes out ofbusiness or files a written withdrawalof the petition.

(iii) Revocation on notice—(A) Groundsfor revocation. The director shall sendto the petitioner a notice of intent torevoke the petition in relevant part ifhe or she finds that:


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(1) The beneficiary is no longer em-ployed by the petitioner in the capac-ity specified in the petition, or if thebeneficiary is no longer receivingtraining as specified in the petition; or

(2) The statement of facts containedin the petition was not true and cor-rect; or

(3) The petitioner violated terms andconditions of the approved petition; or

(4) The petitioner violated require-ments of section 101(a)(15)(H) of the Actor paragraph (h) of this section; or

(5) The approval of the petition vio-lated pargraph (h) of this section or in-volved gross error.

(B) Notice and decision. The notice ofintent to revoke shall contain a de-tailed statement of the grounds for therevocation and the time period allowedfor the petitioner’s rebuttal. The peti-tioner may submit evidence in rebuttalwithin 30 days of receipt of the notice.The director shall consider all relevantevidence presented in deciding whetherto revoke the petition in whole or inpart. If the petition is revoked in part,the remainder of the petition shall re-main approved and a revised approvalnotice shall be sent to the petitionerwith the revocation notice.

(12) Appeal of a denial or a revocationof a petition—(i) Denial. A petition de-nied in whole or in part may be ap-pealed under part 103 of this chapter.

(ii) Revocation. A petition that hasbeen revoked on notice in whole or inpart may be appealed under part 103 ofthis chapter. Automatic revocationsmay not be appealed.

(13) Admission—(i) General. (A) A ben-eficiary shall be admitted to theUnited States for the validity period ofthe petition, plus a period of up to 10days before the validity period beginsand 10 days after the validity periodends. The beneficiary may not work ex-cept during the validity period of thepetition.

(B) When an alien in an H classifica-tion has spent the maximum allowableperiod of stay in the United States, anew petition under sections 101(a)(15)(H) or (L) of the Act may not be ap-proved unless that alien has residedand been physically present outside theUnited States, except for brief trips forbusiness or pleasure, for the time limitimposed on the particular H classifica-

tion. Brief trips to the United Statesfor business or pleasure during the re-quired time abroad are notinterruptive, but do not count towardsfulfillment of the required time abroad.The petitioner shall provide informa-tion about the alien’s employment,place of residence, and the dates andpurposes of any trips to the UnitedStates during the period that the alienwas required to spend time abroad.

(ii) H–1A limitation on admission. Analien who was previously accorded H–1A nonimmigrant status, which expiredon or before October 11, 1996, may notbe admitted to the United States afterOctober 11, 1996, in order to apply foran extension of authorized stay as pro-vided in Public Law 104–302. Except asprovided in paragraph (15)(ii)(A) of thissubsection, and H–1A alien who hasspent 5 years in the United Statesunder section 101(a)(15)(H) of the Actmay not change status, or be readmit-ted to the United States in any H clas-sification unless the alien has residedand been physically present outside theUnited States, except for brief trips forpleasure or business, for the immediateprior year.

(iii) H–1B limitation on admission. (A)Alien in a specialty occupation or analien of distinguished merit and ability inthe field of fashion modeling. An H–1Balien in a specialty occupation or analien of distinguished merit and abilitywho has spent six years in the UnitedStates under section 101(a)(15)(H) and/or (L) of the Act may not seek exten-sion, change status, or be readmittedto the United States under section101(a)(15) (H) or (L) of the Act unlessthe alien has resided and been phys-ically present outside the UnitedStates, except for brief trips for busi-ness or pleasure, for the immediateprior year.

(B) Alien involved in a DOD researchand development or coproduction project.An H–1B alien involved in a DOD re-search and development or coproduc-tion project who has spent 10 years inthe United States under section101(a)(15) (H) and/or (L) of the Act maynot seek extension, change status, orbe readmitted to the United Statesunder section 101(a)(15) (H) or (L) of theAct to perform services involving aDOD research and development project


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or coproduction project. A new petitionor change of status under section101(a)(15) (H) or (L) of the Act may notbe approved for such an alien unlessthe alien has resided and been phys-ically present outside the UnitedStates, except for brief trips for busi-ness or pleasure, for the immediateprior year.

(iv) H–2B and H–3 limitation on admis-sion. An H–2B alien who has spent 3years in the United States under sec-tion 101(a)(15)(H) and/or (L) of the Act;an H–3 alien participant in a specialeducation program who has spent 18months in the United States under sec-tion 101(a)(15)(H) and/or (L) of the Act;and an H–3 alien trainee who has spent24 months in the United States undersection 101(a)(15)(H) and/or (L) of theAct may not seek extension, changestatus, or be readmitted to the UnitedStates under section 101(a)(15)(H) and/or (L) of the Act unless the alien hasresided and been physically presentoutside the United States for the im-mediate prior 6 months.

(v) Exceptions. The limitations inparagraph (h)(13)(ii) through (h)(13)(iv)of this section shall not apply to H–1A,H–1B, H–2B, and H–3 aliens who did notreside continually in the United Statesand whose employment in the UnitedStates was seasonal or intermittent orwas for an aggregate of six months orless per year. In addition, the limita-tions shall not apply to aliens who re-side abroad and regularly commute tothe United States to engage in part-time employment. To qualify for thisexception, the petitioner and the alienmust provide clear and convincingproof that the alien qualifies for suchan exception. Such proof shall consistof evidence such as arrival and depar-ture records, copies of tax returns, andrecords of employment abroad.

(14) Extension of visa petition validity.The petitioner shall file a request for apetition extension on Form I–129 to ex-tend the validity of the original peti-tion under section 101(a)(15)(H) of theAct. Supporting evidence is not re-quired unless requested by the director.A request for a petition extension maybe filed only if the validity of the origi-nal petition has not expired.

(15) Extension of stay—(i) General. Thepetitioner shall apply for extension of

an alien’s stay in the United States byfiling a petition extension on Form I–129 accompanied by the documents de-scribed for the particular classificationin paragraph (h)(15)(ii) of this section.The petitioner must also request a pe-tition extension. The dates of exten-sion shall be the same for the petitionand the beneficiary’s extension of stay.The beneficiary must be physicallypresent in the United States at thetime of the filing of the extension ofstay. Even though the requests to ex-tend the petition and the alien’s stayare combined on the petition, the di-rector shall make a separate deter-mination on each. If the alien is re-quired to leave the United States forbusiness or personal reasons while theextension requests are pending, the pe-titioner may request the director tocable notification of approval of the pe-tition extension to the consular officeabroad where the alien will apply for avisa. When the total period of stay inan H classification has been reached,no further extensions may be granted.

(ii) Extension periods—(A) H–1A exten-sion of stay. An alien who previouslyentered the United States pursuant toan H–1A visa may receive an extensionof H–1A temporary stay until Septem-ber 30, 1997, provided that the alien waswithin the United States in valid H–1Aclassification on or after September 1,1995, regardless of whether the aliencontinued to work as a registered nurseafter September 1, 1995; that the alien’speriod of H–1A temporary stay has ex-pired or would expire before September30, 1997; and, if the alien was not invalid H–1A nonimmigrant status on Oc-tober 11, 1996, that the alien was withinthe United States on October 11, 1996.An extension of stay may not be grant-ed to an H–1A nonimmigrant alien be-yond September 30, 1997. An H–1A aliengranted an extension of stay, and thespouse and child of such non-immigrant, shall be considered to havemaintained nonimmigrant statusthrough September 30, 1997, for all pur-poses under the Immigration and Na-tionality Act, as amended. Public Law104–302 does not apply to an H–1A alienwho otherwise failed to maintain his orher valid H–1A nonimmigrant status or


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has changed from H–1A to another non-immigrant status. A request for an ex-tension of stay for an H–1A non-immigrant must be filed on Form I–129,Petition for Nonimmigrant Worker, atthe appropriate Service Center withthe following:

(1) Evidence that the alien was em-ployed as a registered nurse on Sep-tember 1, 1995:

(2) Evidence that the beneficiary islicensed to practice as a registerednurse in the state of intended employ-ment;

(3) Evidence that the alien was with-in the United States on or after Sep-tember 1, 1995. For purposes of this pro-vision, an alien will be deemed to havebeen within the United States on Sep-tember 1, 1995, who, although not phys-ically present in the United States onthat date, was subsequently admittedto the United States in H–1A classifica-tion pursuant to an unexpired H–1Avisa; and

(4) If the alien was not in valid H–1Anonimmigrant status on October 11,1996, evidence that the alien was withinthe United States on October 11, 1996.For purposes of this provision, an alienwill be deemed to have been within theUnited States on October 11, 1996, who,although not physically present in theUnited States on that date, was subse-quently admitted to the United Statesin H–1A classification pursuant to anunexpired H–1A visa.

(B) H–1B extension of stay—(1) Alien ina specialty occupation or an alien of dis-tinguished merit and ability in the field offashion modeling. An extension of staymay be authorized for a period of up tothree years for a beneficiary of an H–1Bpetition in a specialty occupation or analien of distinguished merit and abil-ity. The alien’s total period of staymay not exceed six years. The requestfor extension must be accompanied byeither a new or a photocopy of theprior certification from the Depart-ment of Labor that the petitioner con-tinues to have on file a labor conditionapplication valid for the period of timerequested for the occupation.

(2) Alien in a DOD research and devel-opment or coproduction project. An ex-tension of stay may be authorized for aperiod up to five years for the bene-ficiary of an H–1B petition involving a

DOD research and development projector coproduction project. The total pe-riod of stay may not exceed 10 years.

(C) H–2A or H–2B extension of stay. Anextension of stay for the beneficiary ofan H–2A or H–2B petition may be au-thorized for the validity of the laborcertification or for a period of up toone year, except as provided for inparagraph (h)(5)(x) of this section. Thealien’s total period of stay as an H–2Aor H–2B worker may not exceed threeyears, except that in the Virgin Is-lands, the alien’s total period of staymay not exceed 45 days.

(D) H–3 extension of stay. An exten-sion of stay may be authorized for thelength of the training program for atotal period of stay as an H–3 traineenot to exceed two years, or for a totalperiod of stay as a participant in a spe-cial education training program not toexceed 18 months.

(16) Effect of approval of a permanentlabor certification or filing of a preferencepetition on H classification—(i) H–1A orH–1B classification. The approval of apermanent labor certification or thefiling of a preference petition for analien shall not be a basis for denyingan H–1A or H–1B petition or a requestto extend such a petition, or the alien’sadmission, change of status, or exten-sion of stay. The alien may legiti-mately come to the United States for atemporary period as an H–1A or H–1Bnonimmigrant and depart voluntarilyat the end of his or her authorized stayand, at the same time, lawfully seek tobecome a permanent resident of theUnited States.

(ii) H–2A, H–2B, and H–3 classification.The approval of a permanent labor cer-tification, or the filing of a preferencepetition for an alien currently em-ployed by or in a training position withthe same petitioner, shall be a reason,by itself, to deny the alien’s extensionof stay.

(17) Effect of a strike—(i) If the Sec-retary of Labor certifies to the Com-missioner that a strike or other labordispute involving a work stoppage ofworkers is in progress in the occupa-tion and at the place where the bene-ficiary is to be employed or trained,and that the employment of training ofthe beneficiary would adversely affectthe wages and working conditions of


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

U.S. citizens and lawful resident work-ers:

(A) A petition to classify an alien asa nonimmigrant as defined in section101(a)(15)(H) of the Act shall be denied.

(B) If a petition has already been ap-proved, but the alien has not yet en-tered the United States, or has enteredthe United States but has not com-menced the employment, the approvalof the petition is automatically sus-pended, and the application for admis-sion on the basis of the petition shallbe denied.

(ii) If there is a strike or other labordispute involving a work stoppage ofworkers in progress, but such strike orother labor dispute is not certifiedunder paragraph (h)(17)(i), the Commis-sioner shall not deny a petition or sus-pend an approved petition.

(iii) If the alien has already com-menced employment in the UnitedStates under an approved petition andis participating in a strike or otherlabor dispute involving a work stop-page of workers, whether or not suchstrike or other labor dispute has beencertified by the Department of Labor,the alien shall not be deemed to be fail-ing to maintain his or her status solelyon account of past, present, or futureparticipation in a strike or other labordispute involving a work stoppage ofworkers, but is subject to the followingterms and conditions:

(A) The alien shall remain subject toall applicable provisions of the Immi-gration and Nationality Act, and regu-lations promulgated in the same man-ner as all other H nonimmigrants;

(B) The status and authorized periodof stay of such an alien is not modifiedor extended in any way by virtue of hisor her participation in a strike or otherlabor dispute involving a work stop-page of workers; and

(C) Although participation by an Hnonimmigrant alien in a strike orother labor dispute involving a workstoppage of workers will not constitutea ground for deportation, any alienwho violates his or her status or whoremains in the United States after hisor her authorized period of stay has ex-pired will be subject to deportation.

(18) Use of approval notice, Form I–797.The Service shall notify the petitioneron Form I–797 whenever a visa petition,

an extension of a visa petition, or analien’s extension of stay is approvedunder the H classification. The bene-ficiary of an H petition who does notrequire a nonimmigrant visa maypresent a copy of the approval noticeat a port of entry to facilitate entryinto the United States. A beneficiarywho is required to present a visa for ad-mission and whose visa will have ex-pired before the date of his or her in-tended return may use a copy of FormI–797 to apply for a new or revalidatedvisa during the validity period of thepetition. The copy of Form I–797 shallbe retained by the beneficiary and pre-sented during the validity of the peti-tion when reentering the United Statesto resume the same employment withthe same petitioner.

(i) Representatives of informationmedia. The admission of an alien of theclass defined in section 101(a)(15)(I) ofthe Act constitutes an agreement bythe alien not to change the informa-tion medium or his or her employeruntil he or she obtains permission todo so from the district director havingjurisdiction over his or her residence.An alien classified as an informationmedia nonimmigrant (I) may be au-thorized admission for the duration ofemployment.

(j) Exchange aliens—(1) General. (i) Ex-change alien means a nonimmigrant ad-mitted under section 101(a)(15)(J) of theAct or who acquired such status, orwho acquired exchange-visitor statusunder the United States Informationand Education Exchange Act. Any ex-change alien coming to the UnitedStates as a participant in a programdesignated under section 101(a)(15)(J) ofthe Act and accompanying spouse andminor children shall not be admittedwithout submitting a completely exe-cuted Form IAP–66. The spouse andminor children following to join theparticipant shall not be admitted with-out a copy of current Form IAP–66 en-dorsed by the program sponsor indicat-ing the expiration of stay date asshown on Form I–94. Any alien seekingto change nonimmigrant status to ex-change visitor status shall file Form I–506 and attach a valid Form IAP–66.


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(ii) Admission. The initial admissionof an exchange alien, spouse, and chil-dren may not exceed the period speci-fied on Form IAP–66, plus a period of 30days for the purpose of travel. Regula-tions of the United States InformationAgency published at 22 CFR 514.23 givegeneral limitations on the length ofstay of the various classes of exchangevisitors. A spouse or child (J–2) maynot be admitted for longer than theprincipal exchange alien (J–1).

(iii) Readmission. An exchange alienmay be readmitted to the UnitedStates for the remainder of the timeauthorized on Form I–94, without pre-senting Form IAP–66, if the alien is re-turning from a visit solely to foreigncontiguous territory or adjacent is-lands after an absence of less than 30days and if the original Form I–94 ispresented. All other exchange aliensmust present a valid Form IAP–66. Anoriginal Form IAP–66 or copy three(the pink copy) of a previously issuedform presented by an exchange alienreturning from a temporary absenceshall be retained by the exchange alienfor re-entries during the balance of thealien’s stay.

(iv) Extensions of Stay. If an exchangealien requires an extension beyond theinitial admission period, the alien shallapply by submitting a new Form IAP–66 which indicates the date to whichthe alien’s program is extended. Theextension may not exceed the periodspecified on Form IAP–66, plus a periodof 30 days for the purpose of travel. Ex-tensions of stay for the alien’s spouseand children require, as an attachmentto Form IAP–66, Form I–94 for each de-pendent, and a list containing thenames of the applicants, dates andplaces of birth, passport numbers,issuing countries, and expiration dates.An accompanying spouse or child maynot be granted an extension of stay forlonger than the principal exchangealien.

(v) Employment. (A) The accompany-ing spouse and minor children of a J–1exchange visitor may accept employ-ment only with authorization by theImmigration and Naturalization Serv-ice. A request for employment author-ization must be made on Form I–765,Application for Employment Author-ization, with fee, as required by the

Service, to the district director havingjurisdiction over the J–1 exchange visi-tor’s temporary residence in the UnitedStates. Income from the spouse’s or de-pendent’s employment may be used tosupport the family’s customary rec-reational and cultural activities andrelated travel, among other things.Employment will not be authorized ifthis income is needed to support the J–1 principal alien.

(B) J–2 employment may be author-ized for the duration of the J–1 prin-cipal alien’s authorized stay as indi-cated on Form I–94 or a period of fouryears, whichever is shorter. The em-ployment authorization is valid only ifthe J–1 is maintaining status. Where aJ–2 spouse or dependent child has fileda timely application for extension ofstay, only upon approval of the requestfor extension of stay may he or sheapply for a renewal of the employmentauthorization on a Form I–765 with therequired fee.

(2) Special reporting requirement. Eachexchange alien participating in a pro-gram of graduate medical education ortraining shall file Form I–644 (Supple-mentary Statement for Graduate Medi-cal Trainees) annually with the Serviceattesting to the conditions as specifiedon the form. The exchange alien shallalso submit Form I–644 as an attach-ment to a completed Form IAP–66when applying for an extension of stay.

(3) Alien in cancelled programs. Whenthe approval of an exchange visitorprogram is withdrawn by the Directorof the United States Information Agen-cy, the district director shall send anotice of the withdrawal to each par-ticipant in the program and a copy ofeach such notice shall be sent to theprogram sponsor. If the exchange visi-tor is currently engaged in activitiesauthorized by the cancelled program,the participant is authorized to remainin the United States to engage in thoseactivities until expiration of the periodof stay previously authorized. The dis-trict director shall notify participantsin cancelled programs that permissionto remain in the United States as anexchange visitor, or extension of staymay be obtained if the participant isaccepted in another approved programand a Form IAP–66, executed by thenew program sponsor, is submitted. In


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this case, a release from the sponsor ofthe cancelled program will not be re-quired.

(4) Eligibility requirements for section101(a)(15)(J) classification for aliens desir-ing to participate in programs underwhich they will receive graduate medicaleducation or training—(i) Requirements.Any alien coming to the United Statesas an exchange visitor to participate ina program under which the alien willreceive graduate medical education ortraining, or any alien seeking tochange nonimmigrant status to that ofan exchange visitor on Form I–506 forthat purpose, must have passed parts ofI and II of the National Board of Medi-cal Examiners Examination (or anequivalent examination as determinedby the Secretary of Health and HumanServices), and must be competent inoral and written English, and shall sub-mit a completely executed and validForm IAP–66.

(ii) Exemptions. From January 10, 1978until December 31, 1983, any alien whohas come to or seeks to come to theUnited States as an exchange visitor toparticipate in an accredited program ofgraduate medical education or train-ing, or any alien who seeks to changenonimmigrant status for that purpose,may be admitted to participate in suchprogram without regard to the require-ments stated in subparagraphs (A) and(B)(ii)(I) of section 212(j)(1) of the Act ifa substantial disruption in the healthservices provided by such programwould result from not permitting thealien to participate in the program:Provided that the exemption will notincrease the total number of aliensthen participating in such programs toa level greater than that participatingon January 10, 1978.

(k) Fiancees and fiances of UnitedStates citizens—(1) Petition and support-ing documents. To be classified as a fi-ance or fiancee as defined in section101(a)(15)(K) of the Act, an alien mustbe the beneficiary of an approved visapetition filed on Form I–129F. The peti-tion with supporting documents shallbe filed by the petitioner with the di-rector having administrative jurisdic-tion over the place where the peti-tioner is residing in the United States.A copy of a document submitted insupport of a visa petition filed pursu-

ant to section 214(d) of the Act and thisparagraph may be accepted, though un-accompanied by the original, if thecopy bears a certification by an attor-ney, typed or rubber-stamped, in thelanguage set forth in § 204.2(j) of thischapter. However, the original docu-ment shall be submitted if requested bythe Service.

(2) Requirement that petitioner and ben-eficiary have met. The petitioner shallestablish to the satisfaction of the di-rector that the petitioner and bene-ficiary have met in person within thetwo years immediately preceding thefiling of the petition. As a matter ofdiscretion, the director may exemptthe petitioner from this requirementonly if it is established that compli-ance would result in extreme hardshipto the petitioner or that compliancewould violate strict and long-estab-lished customs of the beneficiary’s for-eign culture or social practice, aswhere marriages are traditionally ar-ranged by the parents of the contract-ing parties and the prospective brideand groom are prohibited from meetingsubsequent to the arrangement andprior to the wedding day. In addition toestablishing that the required meetingwould be a violation of custom or prac-tice, the petitioner must also establishthat any and all other aspects of thetraditional arrangements have been orwill be met in accordance with the cus-tom or practice. Failure to establishthat the petitioner and beneficiaryhave met within the required period orthat compliance with the requirementshould be waived shall result in the de-nial of the petition. Such denial shallbe without prejudice to the filing of anew petition once the petitioner andbeneficiary have met in person.

(3) Children of beneficiary. Withoutthe approval of a separate petition onhis or her behalf, a child of the bene-ficiary (as defined in section101(b)(1)(A), (B), (C), (D), or (E) of theAct) may be accorded the same non-immigrant classification as the bene-ficiary if accompanying or following tojoin him or her.

(4) Notification. The petitioner shallbe notified of the decision and, if the


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petition is denied, of the reasons there-for and of the right to appeal in accord-ance with the provisions of part 103 ofthis chapter.

(5) Validity. The approval of a peti-tion under this paragraph shall be validfor a period of four months. A petitionwhich has expired due to the passage oftime may be revalidated by a directoror a consular officer for a period of fourmonths from the date of revalidationupon a finding that the petitioner andbeneficiary are free to marry and in-tend to marry each other within 90days of the beneficiary’s entry into theUnited States. The approval of any pe-tition is automatically terminatedwhen the petitioner dies or files a writ-ten withdrawal of the petition beforethe beneficiary arrives in the UnitedStates.

(6) Adjustment of status from non-immigrant to immigrant—(i) Non-immigrant visa issued prior to November10, 1986. If the beneficiary contracts avalid marriage with the petitionerwithin 90 days of his or her admissionto the United States pursuant to avalid K–1 visa issued prior to November10, 1986, and the beneficiary and his orher minor children are otherwise ad-missible, the director shall record theirlawful admission for permanent resi-dence as of the date of their filing of anapplication for adjustment of status tolawful permanent resident (Form I–485). Such residence shall be grantedunder section 214(d) of the Act as in ef-fect prior to November 10, 1986 andshall not be subject to the conditionsof section 216 of the Act.

(ii) Nonimmigrant visa issued on orafter November 10, 1986. Upon contract-ing a valid marriage to the petitionerwithin 90 days of his or her admissionas a nonimmigrant pursuant to a validK visa issued on or after November 10,1986, the beneficiary and his or herminor children may apply for adjust-ment of status to lawful permanentresident under section 245 of the Act.Upon approval of the application thedirector shall record their lawful ad-mission for permanent residence in ac-cordance with that section and subjectto the conditions prescribed in section216 of the Act.

(l) Intracompany transferees—(1) Ad-mission of intracompany transferees—(i)

General. Under section 101(a)(15)(L) ofthe Act, an alien who within the pre-ceding three years has been employedabroad for one continuous year by aqualifying organization may be admit-ted temporarily to the United States tobe employed by a parent, branch, affili-ate, or subsidiary of that employer in amanagerial or executive capacity, or ina position requiring specialized knowl-edge. An alien transferred to theUnited States under this non-immigrant classification is referred toas an intracompany transferee and theorganization which seeks the classi-fication of an alien as an intracompanytransferee is referred to as the peti-tioner. The Service has responsibilityfor determining whether the alien is el-igible for admission and whether thepetitioner is a qualifying organization.These regulations set forth the stand-ards applicable to these classifications.They also set forth procedures for ad-mission of intracompany transfereesand appeal of adverse decisions. Cer-tain petitioners seeking the classifica-tion of aliens as intracompany trans-ferees may file blanket petitions withthe Service. Under the blanket petitionprocess, the Service is responsible fordetermining whether the petitionerand its parent, branches, affiliates, orsubsidiaries specified are qualifying or-ganizations. The Department of Stateor, in certain cases, the Service is re-sponsible for determining the classi-fication of the alien.

(ii) Definitions—(A) Intracompanytransferee means an alien who, withinthree years preceding the time of his orher application for admission into theUnited States, has been employedabroad continuously for one year by afirm or corporation or other legal en-tity or parent, branch, affiliate, or sub-sidiary thereof, and who seeks to enterthe United States temporarily in orderto render his or her services to abranch of the same employer or a par-ent, affiliate, or subsidiary thereof in acapacity that is managerial, executive,or involves specialized knowledge. Pe-riods spent in the United States in law-ful status for a branch of the same em-ployer or a parent, affiliate, or subsidi-ary thereof and brief trips to theUnited States for business or pleasureshall not be interruptive of the one


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year of continuous employment abroadbut such periods shall not be countedtoward fulfillment of that requirement.

(B) Managerial capacity means an as-signment within an organization inwhich the employee primarily:

(1) Manages the organization, or a de-partment, subdivision, function, orcomponent of the organization;

(2) Supervises and controls the workof other supervisory, professional, ormanagerial employees, or manages anessential function within the organiza-tion, or a department or subdivision ofthe organization;

(3) Has the authority to hire and fireor recommend those as well as otherpersonnel actions (such as promotionand leave authorization) if another em-ployee or other employees are directlysupervised; if no other employee is di-rectly supervised, functions at a seniorlevel within the organizational hier-archy or with respect to the functionmanaged; and

(4) Exercises discretion over the day-to-day operations of the activity orfunction for which the employee hasauthority. A first-line supervisor is notconsidered to be acting in a managerialcapacity merely by virtue of the super-visor’s supervisory duties unless theemployees supervised are professional.

(C) Executive capacity means an as-signment within an organization inwhich the employee primarily:

(1) Directs the management of the or-ganization or a major component orfunction of the organization;

(2) Establishes the goals and policiesof the organization, component, orfunction;

(3) Exercises wide latitude in discre-tionary decision-making; and

(4) Receives only general supervisionor direction from higher level execu-tives, the board of directors, or stock-holders of the organization.

(D) Specialized knowledge means spe-cial knowledge possessed by an individ-ual of the petitioning organization’sproduct, service, research, equipment,techniques, management, or other in-terests and its application in inter-national markets, or an advanced levelof knowledge or expertise in the orga-nization’s processes and procedures.

(E) Specialized knowledge professionalmeans an individual who has special-

ized knowledge as defined in paragraph(l)(1)(ii)(D) of this section and is amember of the professions as defined insection 101(a)(32) of the Immigrationand Nationality Act.

(F) New office means an organizationwhich has been doing business in theUnited States through a parent,branch, affiliate, or subsidiary for lessthan one year.

(G) Qualifying organization means aUnited States or foreign firm, corpora-tion, or other legal entity which:

(1) Meets exactly one of the qualify-ing relationships specified in the defi-nitions of a parent, branch, affiliate orsubsidiary specified in paragraph(l)(1)(ii) of this section;

(2) Is or will be doing business (en-gaging in international trade is not re-quired) as an employer in the UnitedStates and in at least one other coun-try directly or through a parent,branch, affiliate, or subsidiary for theduration of the alien’s stay in theUnited States as an intracompanytransferee; and

(3) Otherwise meets the requirementsof section 101(a)(15)(L) of the Act.

(H) Doing business means the regular,systematic, and continuous provisionof goods and/or services by a qualifyingorganization and does not include themere presence of an agent or office ofthe qualifying organization in theUnited States and abroad.

(I) Parent means a firm, corporation,or other legal entity which has subsidi-aries.

(J) Branch means an operating divi-sion or office of the same organizationhoused in a different location.

(K) Subsidiary means a firm, corpora-tion, or other legal entity of which aparent owns, directly or indirectly,more than half of the entity and con-trols the entity; or owns, directly orindirectly, half of the entity and con-trols the entity; or owns, directly orindirectly, 50 percent of a 50–50 jointventure and has equal control and vetopower over the entity; or owns, di-rectly or indirectly, less than half ofthe entity, but in fact controls the en-tity.

(L) Affiliate means (1) One of two sub-sidiaries both of which are owned andcontrolled by the same parent or indi-vidual, or


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(2) One of two legal entities ownedand controlled by the same group of in-dividuals, each individual owning andcontrolling approximately the sameshare or proportion of each entity, or

(3) In the case of a partnership that isorganized in the United States to pro-vide accounting services along withmanagerial and/or consulting servicesand that markets its accounting serv-ices under an internationally recog-nized name under an agreement with aworldwide coordinating organizationthat is owned and controlled by themember accounting firms, a partner-ship (or similar organization) that isorganized outside the United States toprovide accounting services shall beconsidered to be an affiliate of theUnited States partnership if it marketsits accounting services under the sameinternationally recognized name underthe agreement with the worldwide co-ordinating organization of which theUnited States partnership is also amember.

(M) Director means a Service Centerdirector with delegated authority at 8CFR 103.1.

(2) Filing of petitions—(i) Except asprovided in paragraph (l)(2)(ii) and(l)(17) of this section, a petitioner seek-ing to classify an alien as anintracompany transferee shall file a pe-tition on Form I–129, Petition for Non-immigrant Worker, only at the ServiceCenter which has jurisdiction over thearea where the alien will be employed,even in emergent situations. The peti-tioner shall advise the Service whetherit has filed a petition for the same ben-eficiary with another office, and cer-tify that it will not file a petition forthe same beneficiary with another of-fice, unless the circumstances and con-ditions in the initial petition havechanged. Failure to make a full disclo-sure of previous petitions filed may re-sult in a denial of the petition.

(ii) A United States petitioner whichmeets the requirements of paragraph(l)(4) of this section and seeks continu-ing approval of itself and its parent,branches, specified subsidiaries and af-filiates as qualifying organizationsand, later, classification under section101(a)(15)(L) of multiple numbers ofaliens employed by itself, its parent, orthose branches, subsidiaries, or affili-

ates may file a blanket petition onForm I–129 with the director having ju-risdiction over the area where the peti-tioner is located. The blanket petitionshall be adjudicated and maintained atthe appropriate Service Center. Ap-proved blanket petition files shall bemaintained indefinitely by that Serv-ice Center. The petitioner shall be thesingle representative for the qualifyingorganizations with which the Servicewill deal regarding the blanket peti-tion.

(3) Evidence for individual petitions. Anindividual petition filed on Form I–129shall be accompanied by:

(i) Evidence that the petitioner andthe organization which employed orwill employ the alien are qualifying or-ganizations as defined in paragraph(l)(1)(ii)(G) of this section.

(ii) Evidence that the alien will beemployed in an executive, managerial,or specialized knowledge capacity, in-cluding a detailed description of theservices to be performed.

(iii) Evidence that the alien has atleast one continuous year of full-timeemployment abroad with a qualifyingorganization within the three yearspreceding the filing of the petition.

(iv) Evidence that the alien’s prioryear of employment abroad was in aposition that was managerial, execu-tive, or involved specialized knowledgeand that the alien’s prior education,training, and employment qualifieshim/her to perform the intended serv-ices in the United States; however, thework in the United States need not bethe same work which the alien per-formed abroad.

(v) If the petition indicates that thebeneficiary is coming to the UnitedStates as a manager or executive toopen or to be employed in a new officein the United States, the petitionershall submit evidence that:

(A) Sufficient physical premises tohouse the new office have been secured;

(B) The beneficiary has been em-ployed for one continuous year in thethree year period preceding the filingof the petition in an executive or man-agerial capacity and that the proposedemployment involved executive ormanagerial authority over the new op-eration; and


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(C) The intended United States oper-ation, within one year of the approvalof the petition, will support an execu-tive or managerial position as definedin paragraphs (l)(1)(ii) (B) or (C) of thissection, supported by information re-garding:

(1) The proposed nature of the officedescribing the scope of the entity, itsorganizational structure, and its finan-cial goals;

(2) The size of the United States in-vestment and the financial ability ofthe foreign entity to remunerate thebeneficiary and to commence doingbusiness in the United States; and

(3) The organizational structure ofthe foreign entity.

(vi) If the petition indicates that thebeneficiary is coming to the UnitedStates in a specialized knowledge ca-pacity to open or to be employed in anew office, the petitioner shall submitevidence that:

(A) Sufficient physical premises tohouse the new office have been secured;

(B) The business entity in the UnitedStates is or will be a qualifying organi-zation as defined in paragraph(l)(1)(ii)(G) of this section; and

(C) The petitioner has the financialability to remunerate the beneficiaryand to commence doing business in theUnited States.

(vii) If the beneficiary is an owner ormajor stockholder of the company, thepetition must be accompanied by evi-dence that the beneficiary’s servicesare to be used for a temporary periodand evidence that the beneficiary willbe transferred to an assignment abroadupon the completion of the temporaryservices in the United States.

(viii) Such other evidence as the di-rector, in his or her discretion, maydeem necessary.

(4) Blanket petitions—(i) A petitionerwhich meets the following require-ments may file a blanket petition seek-ing continuing approval of itself andsome or all of its parent, branches, sub-sidiaries, and affiliates as qualifyingorganizations if:

(A) The petitioner and each of thoseentities are engaged in commercialtrade or services;

(B) The petitioner has an office in theUnited States that has been doing busi-ness for one year or more;

(C) The petitioner has three or moredomestic and foreign branches, subsidi-aries, or affiliates; and

(D) The petitioner and the otherqualifying organizations have obtainedapproval of petitions for at least ten‘‘L’’ managers, executives, or special-ized knowledge professionals duringthe previous 12 months; or have U.S.subsidiaries or affiliates with combinedannual sales of at least $25 million; orhave a United States work force of atleast 1,000 employees.

(ii) Managers, executives, and spe-cialized knowledge professionals em-ployed by firms, corporations, or otherentities which have been found to bequalifying organizations pursuant toan approved blanket petition may beclassified as intracompany transfereesand admitted to the United States asprovided in paragraphs (l) (5) and (11) ofthis section.

(iii) When applying for a blanket pe-tition, the petitioner shall include inthe blanket petition all of its branches,subsidiaries, and affiliates which planto seek to transfer aliens to the UnitedStates under the blanket petition. Anindividual petition may be filed by thepetitioner or organizations in lieu ofusing the blanket petition procedure.However, the petitioner and otherqualifying organizations may not seekL classification for the same alienunder both procedures, unless a con-sular officer first denies eligibility.Whenever a petitioner which has blan-ket L approval files an individual peti-tion to seek L classification for a man-ager, executive, or specialized knowl-edge professional, the petitioner shalladvise the Service that it has blanketL approval and certify that the bene-ficiary has not and will not apply to aconsular officer for L classificationunder the approved blanket petition.

(iv) Evidence. A blanket petition filedon Form I–129 shall be accompanied by:

(A) Evidence that the petitionermeets the requirements of paragraph(l)(4)(i) of this section.

(B) Evidence that all entities forwhich approval is sought are qualifyingorganizations as defined in subpara-graph (l)(1)(ii)(G) of this section.

(C) Such other evidence as the direc-tor, in his or her discretion, deems nec-essary in a particular case.


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(5) Certification and admission proce-dures for beneficiaries under blanket peti-tion.

(i) Jurisdiction. United States con-sular officers shall have authority todetermine eligibility of individualbeneficiaries outside the United Statesseeking L classification under blanketpetitions, except for visa-exempt non-immigrants. An application for a visa-exempt nonimmigrant seeking L clas-sification under a blanket petition orby an alien in the United States apply-ing for change of status to L classifica-tion under a blanket petition shall befiled with the Service office at whichthe blanket petition was filed.

(ii) Procedures. (A) When one qualify-ing organization listed in an approvedblanket petition wishes to transfer analien outside the United States to aqualifying organization in the UnitedStates and the alien requires a visa toenter the United States, that organiza-tion shall complete Form I–129S, Cer-tificate of Eligibility for IntracompanyTransferee under a Blanket Petition, inan original and three copies. The quali-fying organization shall retain onecopy for its records and send the origi-nal and two copies to the alien. A copyof the approved Form I–797 must be at-tached to the original and each copy ofForm I–129S.

(B) After receipt of Form I–797 andForm I–129S, a qualified employee whois being transferred to the UnitedStates may use these documents toapply for visa issuance with the con-sular officer within six months of thedate on Form I–129S.

(C) When the alien is a visa-exemptnonimmigrant seeking L classificationunder a blanket petition, or when thealien is in the United States and isseeking a change of status from an-other nonimmigrant classification to Lclassification under a blanket petition,the petitioner shall submit Form I–129S, Certificate of Eligibility, and acopy of the approval notice, Form I–797, to the Service Center with whichthe blanket petition was filed.

(D) The consular or Service officershall determine whether the position inwhich the alien will be employed in theUnited States is with an organizationnamed in the approved petition andwhether the specific job is for a man-

ager, executive, or specialized knowl-edge professional. The consular orService officer shall determine furtherwhether the alien’s immediate prioryear of continuous employment abroadwas with an organization named in thepetition and was in a position as man-ager, executive, or specialized knowl-edge professional.

(E) Consular officers may grant ‘‘L’’classification only in clearly approv-able applications. If the consular offi-cer determines that the alien is eligiblefor L classification, the consular offi-cer may issue a nonimmigrant visa,noting the visa classification ‘‘BlanketL–1’’ for the principal alien and ‘‘Blan-ket L–2’’ for any accompanying or fol-lowing to join spouse and children. Theconsular officer shall also endorse allcopies of the alien’s Form I–129S withthe blanket L–1 visa classification andreturn the original and one copy to thealien. When the alien is inspected forentry into the United States, both cop-ies of the Form I–129S shall be stampedto show a validity period not to exceedthree years and the second copy col-lected and sent to the appropriate Re-gional Service Center for control pur-poses. Service officers who determineeligibility of aliens for L–1 classifica-tion under blanket petitions shall en-dorse both copies of Form I–129S withthe blanket L–1 classification and thevalidity period not to exceed threeyears and retain the second copy forService records.

(F) If the consular officer determinesthat the alien is ineligible for L classi-fication under a blanket petition, theconsular officer’s decision shall befinal. The consular officer shall recordthe reasons for the denial on Form I–129S, retain one copy, return the origi-nal of I–129S to the Service office whichapproved the blanket petition, and pro-vide a copy to the alien. In such a case,an individual petition may be filed forthe alien with the director having ju-risdiction over the area of intendedemployment; the petition shall statethe reason the alien was denied L clas-sification and specify the consular of-fice which made the determination andthe date of the determination.

(G) An alien admitted under an ap-proved blanket petition may be reas-signed to any organization listed in the


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approved petition without referral tothe Service during his/her authorizedstay if the alien will be performing vir-tually the same job duties. If the alienwill be performing different job duties,the petitioner shall complete a newCertificate of Eligibility and send it forapproval to the director who approvedthe blanket petition.

(6) Copies of supporting documents. Thepetitioner may submit a legible photo-copy of a document in support of thevisa petition, in lieu of the originaldocument. However, the original docu-ment shall be submitted if requested bythe Service.

(7) Approval of petition—(i) General.The director shall notify the petitionerof the approval of an individual or ablanket petition within 30 days afterthe date a completed petition has beenfiled. If additional information is re-quired from the petitioner, the 30 dayprocessing period shall begin againupon receipt of the information. Onlythe Director of a Service Center mayapprove individual and blanket L peti-tions. The original Form I–797 receivedfrom the Service with respect to an ap-proved individual or blanket petitionmay be duplicated by the petitioner forthe beneficiary’s use as described inparagraph (l)(13) of this section.

(A) Individual petition—(1) Form I–797shall include the beneficiary’s nameand classification and the petition’s pe-riod of validity.

(2) An individual petition approvedunder this paragraph shall be valid forthe period of established need for thebeneficiary’s services, not to exceedthree years, except where the bene-ficiary is coming to the United Statesto open or to be employed in a new of-fice.

(3) If the beneficiary is coming to theUnited States to open or be employedin a new office, the petition may be ap-proved for a period not to exceed oneyear, after which the petitioner shalldemonstrate as required by paragraph(l)(14)(ii) of this section that it is doingbusiness as defined in paragraph (l)(1)(ii)(H) of this section to extend thevalidity of the petition.

(B) Blanket petition—(1) Form I–797shall identify the approved organiza-tions included in the petition and thepetition’s period of validity.

(2) A blanket petition approved underthis paragraph shall be valid initiallyfor a period of three years and may beextended indefinitely thereafter if thequalifying organizations have compliedwith these regulations.

(3) A blanket petition may be ap-proved in whole or in part and shallcover only qualifying organizations.

(C) Amendments. The petitioner shallfile an amended petition, with fee, atthe Service Center where the originalpetition was filed to reflect changes inapproved relationships, additionalqualifying organizations under a blan-ket petition, change in capacity of em-ployment (i.e., from a specializedknowledge position to a managerial po-sition), or any information whichwould affect the beneficiary’s eligi-bility under section 101(a)(15)(L) of theAct.

(ii) Spouse and dependents. The spouseand unmarried minor children of thebeneficiary are entitled to L non-immigrant classification, subject tothe same period of admission and lim-its as the beneficiary, if the spouse andunmarried minor children are accom-panying or following to join the bene-ficiary in the United States. Neitherthe spouse nor any child may acceptemployment unless he or she has beengranted employment authorization.

(8) Denial of petition—(i) Notice of in-tent to deny. When an adverse decisionis proposed on the basis of evidence notsubmitted by the petitioner, the direc-tor shall notify the petitioner of his orher intent to deny the petition and thebasis for the denial. The petitionermay inspect and rebut the evidence andwill be granted a period of 30 days fromthe date of the notice in which to doso. All relevant rebuttal material willbe considered in making a final deci-sion.

(ii) Individual petition. If an individ-ual is denied, the petitioner shall benotified within 30 days after the date acompleted petition has been filed of thedenial, the reasons for the denial, andthe right to appeal the denial.

(iii) Blanket petition. If a blanket pe-tition is denied in whole or in part, thepetitioner shall be notified within 30days after the date a completed peti-tion has been filed of the denial, thereasons for the denial, and the right to


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appeal the denial. If the petition is de-nied in part, the Service Center issuingthe denial shall forward to the peti-tioner, along with the denial, a Form I–797 listing those organizations whichwere found to quality. If the decisionto deny is reversed on appeal, a newForm I–797 shall be sent to the peti-tioner to reflect the changes made as aresult of the appeal.

(9) Revocation of approval of individualand blanket petitions—(i) General. Thedirector may revoke a petition at anytime, even after the expiration of thepetition.

(ii) Automatic revocation. The ap-proval of any individual or blanket pe-tition is automatically revoked if thepetitioner withdraws the petition orthe petitioner fails to request indefi-nite validity of a blanket petition.

(iii) Revocation on notice. (A) The di-rector shall send to the petitioner a no-tice of intent to revoke the petition inrelevant part if he/she finds that:

(1) One or more entities are no longerqualifying organizations;

(2) The alien is no longer eligibleunder section 101(a)(15)(L) of the Act;

(3) A qualifying organization(s) vio-lated requirements of section101(a)(15)(L) and these regulations;

(4) The statement of facts containedin the petition was not true and cor-rect; or

(5) Approval of the petition involvedgross error; or

(6) None of the qualifying organiza-tions in a blanket petition have usedthe blanket petition procedure forthree consecutive years.

(B) The notice of intent to revokeshall contain a detailed statement ofthe grounds for the revocation and thetime period allowed for the petitioner’srebuttal. Upon receipt of this notice,the petitioner may submit evidence inrebuttal within 30 days of the notice.The director shall consider all relevantevidence presented in deciding whetherto revoke the petition in whole or inpart. If a blanket petition is revoked inpart, the remainder of the petitionshall remain approved, and a revisedForm I–797 shall be sent to the peti-tioner with the revocation notice.

(iv) Status of beneficiaries. If an indi-vidual petition is revoked, the bene-ficiary shall be required to leave the

United States, unless the beneficiaryhas obtained other work authorizationfrom the Service. If a blanket petitionis revoked and the petitioner and bene-ficiaries already in the United Statesare otherwise eligible for L classifica-tion, the director shall extend the blan-ket petition for a period necessary tosupport the stay of those blanket Lbeneficiaries. The approval notice,Form I–171C, shall include only thenames of qualifying organizations andcovered beneficiaries. No new bene-ficiaries may be classified or admittedunder this limited extension.

(10) Appeal of denial or revocation ofindividual or blanket petition—(i) A peti-tion denied in whole or in part may beappealed under 8 CFR part 103. Sincethe determination on the Certificate ofEligibility, Form I–129S, is part of thepetition process, a denial or revocationof approval of an I–129S is appealable inthe same manner as the petition.

(ii) A petition that has been revokedon notice in whole or in part may beappealed under part 103 of this chapter.Automatic revocations may not be ap-pealed.

(11) Admission. A beneficiary mayapply for admission to the UnitedStates only while the individual orblanket petition is valid. The bene-ficiary of an individual petition shallnot be admitted for a date past the va-lidity period of the petition. The bene-ficiary of a blanket petition may be ad-mitted for three years even though theinitial validity period of the blanketpetition may expire before the end ofthe three-year period. If the blanketpetition will expire while the alien isin the United States, the burden is onthe petitioner to file for indefinite va-lidity of the blanket petition or to filean individual petition in the alien’s be-half to support the alien’s status in theUnited States. The admission periodfor any alien under section 101(a)(15)(L)shall not exceed three years unless anextension of stay is granted pursuantto paragraph (l)(15) of this section.

(12) L–1 limitation on period of stay—(i)Limits. An alien who has spent fiveyears in the United States in a special-ized knowledge capacity or seven yearsin the United States in a managerial orexecutive capacity under section101(a)(15) (L) and/or (H) of the Act may


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not be readmitted to the United Statesunder section 101(a)(15) (L) or (H) of theAct unless the alien has resided andbeen physically present outside theUnited States, except for brief visitsfor business or pleasure, for the imme-diate prior year. Such visits do not in-terrupt the one year abroad, but do notcount towards fulfillment of that re-quirement. In view of this restriction,a new individual petition may not beapproved for an alien who has spent themaximum time period in the UnitedStates under section 101(a)(15) (L) and/or (H) of the Act, unless the alien hasresided and been physically presentoutside the United States, except forbrief visits for business or pleasure, forthe immediate prior year. The peti-tioner shall provide information aboutthe alien’s employment, place of resi-dence, and the dates and purpose of anytrips to the United States for the pre-vious year. A consular or Service offi-cer may not grant L classificationunder a blanket petition to an alienwho has spent five years in the UnitedStates as a professional with special-ized knowledge or seven years in theUnited States as a manager or execu-tive, unless the alien has met the re-quirements contained in this para-graph.

(ii) Exceptions. The limitations ofparagraph (l)(12)(i) of this section shallnot apply to aliens who do not residecontinually in the United States andwhose employment in the UnitedStates is seasonal, intermittent, orconsists of an aggregate of six monthsor less per year. In addition, the limi-tations will not apply to aliens who re-side abroad and regularly commute tothe United States to engage in part-time employment. The petitioner andthe alien must provide clear and con-vincing proof that the alien qualifiesfor an exception. Clear and convincingproof shall consist of evidence such asarrival and departure records, copies oftax returns, and records of employmentabroad.

(13) Beneficiary’s use of Form I–797 andForm I–129S—(i) Beneficiary of an indi-vidual petition. The beneficiary of an in-dividual petition who does not requirea nonimmigrant visa may present acopy of Form I–797 at a port of entry tofacilitate entry into the United States.

The copy of Form I–797 shall be re-tained by the beneficiary and presentedduring the validity of the petition (pro-vided that the beneficiary is enteringor reentering the United States) forentry and reentry to resume the sameemployment with the same petitioner(within the validity period of the peti-tion) and to apply for an extension ofstay. A beneficiary who is required topresent a visa for admission and whosevisa will have expired before the dateof his or her intended return may usean original Form I–797 to apply for anew or revalidated visa during the va-lidity period of the petition and toapply for an extension of stay.

(ii) Beneficiary of a blanket petition.Each alien seeking L classification andadmission under a blanket petitionshall present a copy of Form I–797 anda Form I–129S from the petitionerwhich identifies the position and orga-nization from which the employee istransferring, the new organization andposition to which the employee is des-tined, a description of the employee’sactual duties for both the new andformer positions, and the positions,dates, and locations of previous L staysin the United States. A current copy ofForm I–797 and Form I–129S should beretained by the beneficiary and usedfor leaving and reentering the UnitedStates to resume employment with aqualifying organization during his/herauthorized period of stay, for applyingfor a new or revalidated visa, and forapplying for readmission at a port ofentry. The alien may be readmittedeven though reassigned to a differentorganization named on the Form I–797than the one shown on Form I–129S ifthe job duties are virtually the same.

(14) Extension of visa petition validity—(i) Individual petition. The petitionershall file a petition extension on FormI–129 to extend an individual petitionunder section 101(a)(15)(L) of the Act.Except in those petitions involving newoffices, supporting documentation isnot required, unless requested by thedirector. A petition extension may befiled only if the validity of the originalpetition has not expired.

(ii) New offices. A visa petition undersection 101(a)(15)(L) which involved the


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opening of a new office may be ex-tended by filing a new Form I–129, ac-companied by the following:

(A) Evidence that the United Statesand foreign entities are still qualifyingorganizations as defined in paragraph(l)(1)(ii)(G) of this section;

(B) Evidence that the United Statesentity has been doing business as de-fined in paragraph (l)(1)(ii)(H) of thissection for the previous year;

(C) A statement of the duties per-formed by the beneficiary for the pre-vious year and the duties the bene-ficiary will perform under the extendedpetition;

(D) A statement describing the staff-ing of the new operation, including thenumber of employees and types of posi-tions held accompanied by evidence ofwages paid to employees when the ben-eficiary will be employed in a manage-rial or executive capacity; and

(E) Evidence of the financial statusof the United States operation.

(iii) Blanket petitions—(A) Extensionprocedure. A blanket petition may onlybe extended indefinitely by filing a newForm I–129 with a copy of the previousapproval notice and a report of admis-sions during the preceding three years.The report of admissions shall includea list of the aliens admitted under theblanket petition during the precedingthree years, including positions heldduring that period, the employing en-tity, and the dates of initial admissionand final departure of each alien. Thepetitioner shall state whether it stillmeets the criteria for filing a blanketpetition and shall document anychanges in approved relationships andadditional qualifying organizations.

(B) Other conditions. If the petitionerin an approved blanket petition fails torequest indefinite validity or if indefi-nite validity is denied, the petitionerand its other qualifying organizationsshall seek L classification by filing in-dividual petitions until another threeyears have expired; after which the pe-titioner may seek approval of a newblanket petition.

(15) Extension of stay. (i) In individualpetitions, the petitioner must apply forthe petition extension and the alien’sextension of stay concurrently onForm I–129. When the alien is a ben-eficiary under a blanket petition, a

new certificate of eligibility, accom-panied by a copy of the previous ap-proved certificate of eligibility, shallbe filed by the petitioner to request anextension of the alien’s stay. The peti-tioner must also request a petition ex-tension. The dates of extension shall bethe same for the petition and the bene-ficiary’s extension of stay. The bene-ficiary must be physically present inthe United States at the time the ex-tension of stay is filed. Even thoughthe requests to extend the visa petitionand the alien’s stay are combined onthe petition, the director shall make aseparate determination on each. If thealien is required to leave the UnitedStates for business or personal reasonswhile the extension requests are pend-ing, the petitioner may request the di-rector to cable notification of approvalof the petition extension to the con-sular office abroad where the alien willapply for a visa.

(ii) An extension of stay may be au-thorized in increments of up to twoyears for beneficiaries of individualand blanket petitions. The total periodof stay may not exceed five years foraliens employed in a specialized knowl-edge capacity. The total period of stayfor an alien employed in a managerialor executive capacity may not exceedseven years. No further extensions maybe granted. When an alien was initiallyadmitted to the United States in a spe-cialized knowledge capacity and islater promoted to a managerial or ex-ecutive position, he or she must havebeen employed in the managerial or ex-ecutive position for at least six monthsto be eligible for the total period ofstay of seven years. The change tomanagerial or executive capacity musthave been approved by the Service inan amended, new, or extended petitionat the time that the change occurred.

(16) Effect of approval of a permanentlabor certification or filing of a preferencepetition on L–1 classification. The ap-proval of a permanent labor certifi-cation or the filing of a preference peti-tion for an alien shall not be a basis fordenying an L petition, a request to ex-tend an L petition, or the alien’s appli-cation for admission, change of status,or extension of stay. The alien may le-gitimately come to the United States


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as a nonimmigrant under the L classi-fication and depart voluntarily at theend of his or her authorized stay, andat the same time, lawfully seek to be-come a permanent resident of theUnited States.

(17) Filing of individual petitions andcertifications under blanket petitions forcitizens of Canada under the North Amer-ican Free Trade Agreement (NAFTA). (i)Individual petitions. Except as providedin paragraph (1)(2)(ii) of this section(filing of blanket petitions), a UnitedStates or foreign employer seeking toclassify a citizen of Canada as anintracompany transferee may file anindividual petition in duplicate onForm I–129 in conjunction with an ap-plication for admission of the citizen ofCanada. Such filing may be made withan immigration officer at a Class Aport of entry located on the UnitedStates-Canada land border or at aUnited States pre-clearance/pre-flightstation in Canada. The petitioning em-ployer need not appear, but Form I–129must bear the authorized signature ofthe petitioner.

(ii) Certification of eligibility forintracompany transferree under the blan-ket petition. An immigration officer ata location identified in paragraph(1)(17)(i) of this section may determineeligibility of individual citizens of Can-ada seeking L classification under ap-proved blanket petitions. At these lo-cations, such citizens of Canada shallpresent the original and two copies ofForm I–129S, Intracompany TransfereeCertificate of Eligibility, prepared bythe approved organization, as well asthree copies of Form I–797, Notice ofApproval of Nonimmigrant Visa Peti-tion.

(iii) Nothing in this section shall pre-clude or discourage the advance filingof petitions and certificates of eligi-bility in accordance with paragraph(l)(2) of this section.

(iv) Deficient or deniable petitions orcertificates of eligibility. If a petition orcertificate of eligibility submitted con-currently with an application for ad-mission is lacking necessary support-ing documentation or is otherwise defi-cient, the inspecting immigration offi-cer shall return it to the applicant foradmission in order to obtain the nec-essary documentation from the peti-

tioner or for the deficiency to be over-come. The fee to file the petition willbe remitted at such time as the docu-mentary or other deficiency is over-come. If the petition or certificate ofeligibility is clearly deniable, the im-migration officer will accept the peti-tion (with fee) and the petitioner shallbe notified of the denial, the reasonsfor denial, and the right of appeal. If aformal denial order cannot be issued bythe port of entry, the petition with arecommendation for denial shall be for-warded to the appropriate Service Cen-ter for final action. For the purposes ofthis provision, the appropriate ServiceCenter will be the one within the sameService region as the location wherethe application for admission is made.

(v) Spouse and dependent minor chil-dren accompanying or following to join.(A) The Canadian citizen spouse andCanadian citizen unmarried minor chil-dren of a Canadian citizen admittedunder this paragraph shall be entitledto the same nonimmigrant classifica-tion and same length of stay subject tothe same limits as the principal alien.They shall not be required to presentvisas, and they shall be admitted underthe classification symbol L–2.

(B) A non-Canadian citizen spouse ornon-Canadian citizen unmarried minorchild shall be entitled to the same non-immigrant classification and the samelength of stay subject to the same lim-its as the principal, but shall be re-quired to present a visa upon applica-tion for admission as an L–2 unless oth-erwise exempt under § 212.1 of thischapter.

(C) The spouse and dependent minorchildren shall not accept employmentin the United States unless otherwiseauthorized under the Act.

(18) Denial of intracompany transfereestatus to citizens of Canada or Mexico inthe case of certain labor disputes. (i) Ifthe Secretary of Labor certifies to orotherwise informs the Commissionerthat a strike or other labor dispute in-volving a work stoppage of workers isin progress where the beneficiary is tobe employed, and the temporary entryof the beneficiary may affect adverselythe settlement of such labor dispute orthe employment of any person who isinvolved in such dispute, a petition toclassify a citizen of Mexico or Canada


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as an L–1 intracompany transferee maybe denied. If a petition has alreadybeen approved, but the alien has notyet entered the United States, or hasentered the United States but not yetcommenced employment, the approvalof the petition may be suspended, andan application for admission on thebasis of the petition may be denied.

(ii) If there is a strike or other labordispute involving a work stoppage ofworkers in progress, but such strike orother labor dispute is not certifiedunder paragraph (l)(18)(i) of this sec-tion, or the Service has not otherwisebeen informed by the Secretary thatsuch a strike or labor dispute is inprogress, the Commissioner shall notdeny a petition or suspend an approvedpetition.

(iii) If the alien has already com-mended employment in the UnitedStates under an approved petition andis participating in a strike or otherlabor dispute involving a work stop-page of workers, whether or not suchstrike or other labor dispute has beencertified by the Department of Labor,the alien shall not be deemed to be fail-ing to maintain his or her status solelyon account of past, present, or futureparticipation in a strike or other labordispute involving a work stoppage ofworkers, but is subject to the followingterms and conditions.

(A) The alien shall remain subject toall applicable provisions of the Immi-gration and Nationality Act, and regu-lations promulgated in the same man-ner as all other L nonimmigrants;

(B) The status and authorized periodof stay of such an alien is not modifiedor extended in any way by virtue of hisor her participation in a strike or otherlabor dispute involving work stoppageof workers; and

(C) Although participation by an Lnonimmigrant alien in a strike orother labor dispute involving a workstoppage of workers will not constitutea ground for deportation, any alienwho violates his or her status or whoremains in the United States after hisor her authorized period of stay has ex-pired will be subject to deportation.

(m) Students in established vocationalor other recognized nonacademic institu-tions, other than in language trainingprograms—(1) Admission of student—(i)

Eligibility for admission. Except as pro-vided in paragraph (m)(4) of this sec-tion, an alien seeking admission to theUnited States under section101(a)(15)(M)(i) of the Act (as an M–1student) and the student’s accompany-ing M–2 spouse and minor children, ifapplicable, are not eligible for admis-sion unless—

(A) The student presents a Certifi-cate of Eligibility for Nonimmigrant(M–1) Student Status, Form I–20M–N,properly and completely filled out bythe student and by the designated offi-cial of the school to which the studentis destined and the documentary evi-dence of the student’s financial abilityrequired by that form; and

(B) It is established that the studentis destined to and intends to attend theschool specified in the student’s visaunless the student is exempt from therequirement for presentation of a visa.

(ii) Disposition of Form I–20M–N. Whena student is admitted to the UnitedStates, the inspecting officer shall for-ward Form I–20M–N to the Service’sprocessing center. The processing cen-ter shall forward Form I–20N to theschool which issued the form to notifythe school of the student’s admission.

(2) Form I–20 ID copy. The first timean M–1 student comes into contactwith the Service for any reason, thestudent must present to the Service aForm I–20M–N properly and completelyfilled out by the student and by thedesignated official of the school thestudent is attending or intends to at-tend. The student will be issued a FormI–20 ID copy with his or her admissionnumber. The student must have theForm I–20 ID copy with him or her atall times. If the student loses the FormI–20 ID copy, the student must requesta new Form I–20 ID copy on Form I–102from the Service office having jurisdic-tion over the school the student waslast authorized to attend.

(3) Spouse and minor children followingto join student. The M–2 spouse andminor children following to join an M–1 student are not eligible for admissionto the United States unless theypresent, as evidence that the student isor will, within sixty days, be enrolledin a full course of study or is engagedin approved practical training, either—


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(i) A properly endorsed page 4 ofForm I–20M–N if there has been no sub-stantive change in the information onthe student’s most recent Form I–20Msince the form was initially issued; or

(ii) A new Form I–20M–N if there hasbeen any substantive change in the in-formation on the student’s most recentForm I–20M since the form was ini-tially issued.

(4) Temporary absence—(i) General. AnM–1 student returning to the UnitedStates from a temporary absence to at-tend the school which the student waspreviously authorized to attend mustpresent either—

(A) A properly endorsed page 4 ofForm I–20M–N if there has been no sub-stantive change in the information onthe student’s most recent Form I–20Msince the form was initially issued; or

(B) A new Form I–20M–N if there hasbeen any substantive change in the in-formation on the student’s most recentForm I–20M since the form was ini-tially issued.

(ii) Student who transferred betweenschools. If an M–1 student has been au-thorized to transfer between schoolsand is returning to the United Statesfrom a temporary absence in order toattend the school to which transfer wasauthorized as indicated on the stu-dent’s Form I–20 ID copy, the name ofthe school to which the student is des-tined does not need to be specified inthe student’s visa.

(5) Period of stay. An alien admittedto the United States as an M–1 studentis to be admitted for the period of timenecessary to complete the course ofstudy indicated on Form I–20M plusthirty days within which to departfrom the United States or for one year,whichever is less. An alien granted achange of nonimmigrant classificationto that of an M–1 student is to be givenan extension of stay for the period oftime necessary to complete the courseof study indicated on Form I–20M plusthirty days within which to departfrom the United States or for one year,whichever is less.

(6) Conversion to M–1 status of studentsin established vocational or other recog-nized nonacademic institutions, otherthan in language training programs, whowere F–1 students prior to June 1, 1982. Astudent in an established vocational or

other recognized nonacademic institu-tion, other than in a language trainingprogram, who is in status as an F–1student under section 101(a)(15)(F)(i) ofthe Act in effect prior to June 1, 1982and the student’s F–2 spouse and chil-dren, if applicable, are—

(i) Automatically converted to M–1and M–2 status respectively; and

(ii) Limited to the authorized periodof stay shown on their Forms I–94 plusthirty days within which to departfrom the United States or to an au-thorized period of stay which expiresone year from August 1, 1983, whicheveris less.

(7) Period of stay of student already inM–1 status. A student in an establishedvocational or other recognized nonaca-demic institution, other than in a lan-guage training program, who is alreadyin M–1 status and the student’s M–2spouse and children, if applicable, arelimited to the authorized period of stayshown on their Forms I–94 plus thirtydays within which to depart from theUnited States or to an authorized pe-riod of stay which expires one yearfrom August 1, 1983, whichever is less.

(8) Issuance of new I–94. A non-immigrant whose status is affected byparagraph (m)(6) or (m)(7) of this sec-tion need not present Form I–94 to theService. Either paragraph constitutesofficial notification to a student whosestatus is affected by it of that status.The Service will issue a new Form I–94to an alien whose status is affected byeither paragraph when that aliencomes into contact with the Service.

(9) Full course of study. Successfulcompletion of the course of study mustlead to the attainment of a specificeducational or vocational objective. A‘‘full course of study’’ as required bysection 101(a)(15)(M)(i) of the Actmeans—

(i) Study at a community college orjunior college, certified by a school of-ficial to consist of at least twelve se-mester or quarter hours of instructionper academic term in those institu-tions using standard semester, tri-mester, or quarter-hour systems, whereall students enrolled for a minimum oftwelve semester or quarter hours arecharged full-time tuition or consideredfull-time for other administrative pur-poses, or its equivalent (as determined


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by the district director) except whenthe student needs a lesser course loadto complete the course of study duringthe current term;

(ii) Study at a postsecondary voca-tional or business school, other than ina language training program except asprovided in § 214.3(a)(2)(iv), which con-fers upon its graduates recognized asso-ciate or other degrees or has estab-lished that its credits have been andare accepted unconditionally by atleast three institutions of higher learn-ing which are either: (1) A school (orschool system) owned and operated as apublic educational institution by theUnited States or a State or politicalsubdivision thereof; or (2) a school ac-credited by a nationally recognized ac-crediting body; and which has been cer-tified by a designated school official toconsist of at least twelve hours of in-struction a week, or its equivalent asdetermined by the district director;

(iii) Study in a vocational or othernonacademic curriculum, other than ina language training program except asprovided in § 214.3(a)(2)(iv), certified bya designated school official to consistof at least eighteen clock hours of at-tendance a week if the dominant partof the course of study consists of class-room instruction, or at least twenty-two clock hours a week if the dominantpart of the course of study consists ofshop or laboratory work; or

(iv) Study in a vocational or othernonacademic high school curriculum,certified by a designated school officialto consist of class attendance for notless than the minimum number ofhours a week prescribed by the schoolfor normal progress towards gradua-tion.

(10) Extension of stay—(i) Eligibility.An M–1 student may be granted an ex-tension of stay if it is established thatthe student—

(A) Is a bona fide nonimmigrant cur-rently maintaining student status; and

(B) Is able to, and in good faith in-tends to, continue to maintain thatstatus for the period for which the ex-tension is granted.

(ii) Application. An M–1 student mustapply for an extension of stay on FormI–538. A student’s M–2 spouse and chil-dren desiring an extension of stay mustbe included in the application. A stu-

dent’s M–2 spouse or children are noteligible for an extension of stay unlessthe student is granted an extension ofstay. The student must submit the ap-plication to the Service office havingjurisdiction over the school the studentwas last authorized to attend at leastfifteen days but not more than sixtydays before the expiration of the stu-dent’s currently authorized stay. Theapplication must also be accompaniedby the student’s Form I–20 ID copy andthe Forms I–94 of the student’s spouseand children, if applicable.

(iii) Period of stay. If an applicationfor extension of stay is granted, thestudent and the student’s spouse andchildren, if applicable, are to be givenan extension of stay for the period oftime necessary to complete the courseof study plus thirty days within whichto depart from the United States or forone year, whichever is less. An M–1 stu-dent who has been compelled by illnessto interrupt or reduce a course of studymay be granted an extension of staywithout being required to change non-immigrant classification provided thatit is established that the student willpursue a full course of study upon re-covery from the illness.

(11) School transfer—(i) Eligibility. AnM–1 student may not transfer to an-other school after six months from thedate the student is first admitted as, orchanges nonimmigrant classificationto that of, an M–1 student unless thestudent is unable to remain at theschool to which the student was ini-tially admitted due to circumstancesbeyond the student’s control. An M–1student may be otherwise eligible totransfer to another school if the stu-dent—

(A) Is a bona fide nonimmigrant;(B) Has been pursuing a full course of

study at the school the student waslast authorized to attend;

(C) Intends to pursue a full course ofstudy at the school to which the stu-dent intends to transfer; and

(D) Is financially able to attend theschool to which the student intends totransfer.

(ii) Procedure. An M–1 student mustapply for permission to transfer be-tween schools on Form I–538 accom-panied by the student’s Form I–20 ID


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

copy and the Forms I–94 of the stu-dent’s spouse and children, if applica-ble. The Form I–538 must also be ac-companied by Form I–20M–N properlyand completely filled out by the stu-dent and by the designated official ofthe school which the student wishes toattend. The student must submit theapplication for school transfer to theService office having jurisdiction overthe school the student was last author-ized to attend. Sixty days after havingfiled an application for school transfer,an M–1 student may effect the transfersubject to approval or denial of the ap-plication. An M–1 student who trans-fers without complying with this regu-lation or whose application is deniedafter transfer pursuant to this regula-tion is considered to be out of status. Ifthe application is approved, the ap-proval of the transfer will be retro-active to the date of filing the applica-tion, and the student will be grantedan extension of stay for the period oftime necessary to complete the courseof study indicated on Form I–20M plusthirty days within which to departfrom the United States or for one year,whichever is less. The adjudicating of-ficer must endorse the name of theschool to which transfer is authorizedon the student’s Form I–20 ID copy.The officer must also endorse Form I–20N to indicate that a school transferhas been authorized and forward itwith Form I–20M to the Service’s proc-essing center for file updating. Theprocessing center shall forward FormI–20N to the school to which the trans-fer has been authorized to notify theschool of the action taken.

(iii) Student who has not been pursuinga full course of study. If an M–1 studentwho has not been pursuing a full courseof study at the school the student waslast authorized to attend desires to at-tend a different school, the studentmust apply for reinstatement to stu-dent status under paragraph (m)(16) ofthis section.

(12) Change in educational objective.An M–1 student may not change edu-cational objective.

(13) Employment. Except as providedin paragraph (m)(14) of this section, M–1 students may not accept employ-ment. A student already in M–1 statuson August 1, 1983 or a student con-

verted to M–1 status under paragraph(m)(6) of this section who was author-ized off-campus employment under theregulations previously in effect, how-ever, may continue to work until thedate of expiration of the previously au-thorized period of employment. The M–2 spouse and children of an M–1 studentmay not accept employment.

(14) Practical training—(i) When prac-tical training may be authorized. Tem-porary employment for practical train-ing may be authorized only after com-pletion of the student’s course ofstudy.

(ii) Application. An M–1 student mustapply for permission to accept employ-ment for practical training on Form I–765, with the fee required by 8 CFR103.7(b)(1), accompanied by his or her I–20 ID endorsed for practical training bythe DSO. The application must be sub-mitted prior to the expiration of thestudent’s authorized period of stay andnot more than sixty days before normore than thirty days after completionof the course of study. The designatedschool official must certify on Form I–538 that—

(A) The proposed employment is rec-ommended for the purpose of practicaltraining;

(B) The proposed employment is re-lated to the student’s course of study;and

(C) Upon the designated school offi-cial’s information and belief, employ-ment comparable to the proposed em-ployment is not available to the stu-dent in the country of the student’sforeign residence.

(iii) Duration of practical training.When the student is authorized to en-gage in employment for practicaltraining, he or she will be issued anemployment authorization document.The M–1 student may not begin em-ployment until he or she has beenissued an employment authorizationdocument by the Service. One month ofemployment authorization will begranted for each four months of full-time study that the M–1 student hascompleted. However, an M–1 studentmay not engage in more than sixmonths of practical training in the ag-gregate. The student will not be grant-ed employment authorization if he or


295


she cannot complete the requestedpractical training within six months.

(iv) Temporary absence of M–1 studentgranted practical training. An M–1 stu-dent who has been granted permissionto accept employment for practicaltraining and who temporarily departsfrom the United States, may be re-admitted for the remainder of the au-thorized period indicated on the stu-dent’s Form I–20 ID copy. The studentmust be returning to the United Statesto perform the authorized practicaltraining. A student may not be re-admitted to begin practical trainingwhich was not authorized prior to thestudent’s departure from the UnitedStates.

(v) Effect of strike or other labor dis-pute. Authorization for all employmentfor practical training is automaticallysuspended upon certification by theSecretary of Labor or the Secretary’sdesignee to the Commissioner of Immi-gration and Naturalization or the Com-missioner’s designee that a strike orother labor dispute involving a workstoppage of workers is in progress inthe occupation at the place of employ-ment. As used in this paragraph, ‘‘placeof employment’’ means wherever theemployer or joint employer does busi-ness.

(15) Decision on application for exten-sion, permission to transfer to anotherschool, or permission to accept employ-ment for practical training. The Serviceshall notify the applicant of the deci-sion and, if the application is denied, ofthe reason(s) for the denial. The appli-cant may not appeal the decision.

(16) Reinstatement to student status—(i)General. A district director may con-sider reinstating to M–1 student statusan alien who was admitted to theUnited States as, or whose status waschanged to that of, an M–1 student andwho has overstayed the authorized pe-riod of stay or who has otherwise vio-lated the conditions of his or her statusonly if—

(A) The student establishes to thesatisfaction of the district directorthat the violation of status resultedfrom circumstances beyond the stu-dent’s control or that failure to receivereinstatement to lawful M–1 statuswould result in extreme hardship tothe student;

(B) The student makes a written re-quest for reinstatement accompaniedby a properly completed Form I–20M–Nfrom the school the student is attend-ing or intends to attend and the stu-dent’s Form I–20 ID copy;

(C) The student is currently pursu-ing, or intending to pursue, a fullcourse of study at the school whichissued the Form I–20M–N;

(D) The student has not been em-ployed without authorization; and

(E) The student is not deportable onany ground other than section 241(a)(1)(B), (C), or (D) of the Act.

(ii) Decision. If the district directorreinstates the student, the district di-rector shall endorse Form I–20N andthe student’s Form I–20 ID copy to in-dicate that the student has been rein-stated, return the Form I–20 ID copy tothe student, and forward Form I–20Nwith Form I–20M to the Service’s proc-essing center for file updating. Theprocessing center shall forward FormI–20N to the school which the studentis attending or intends to attend to no-tify the school of the student’s rein-statement. If the district director doesnot reinstate the student, the studentmay not appeal that decision.

(17) School code suffix on Form I–20M–N. Each school system, other than asecondary school system approvedprior to August 1, 1983 for attendanceby M–1 students must assign perma-nent consecutive numbers to allschools within its system. The numberof the school within the system whichan M–1 student is attending or intendsto attend must be added as a three-digit suffix following a decimal pointafter the school file number on Form I–20M–N (e.g. .001). If an M–1 student isattending or intends to attend a sec-ondary school in a school system or aschool which is not part of a schoolsystem, a suffix consisting of a decimalpoint followed by three zeros must beadded after the school file number onForm I–20M–N. The Service will assignschool code suffixes to those schools itapproves beginning August 1, 1983. NoForm I–20M–N will be accepted afterAugust 1, 1983 without the appropriatethree-digit suffix.

(n) Certain parents and children of sec-tion 101(a)(27)(I) special immigrants—(1)


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Parent of special immigrant. Upon appli-cation, a parent of a child accordedspecial immigrant status under section101(a)(27)(I)(i) of the Act may be grant-ed status under section 101(a)(15)(N)(i)of the Act as long as the permanentresident child through whom eligibilityis derived remains a child as defined insection 101(b)(1) of the Act.

(2) Child of section 101(a)(27)(I) specialimmigrants and section 101(a)(15)(N)(i)nonimmigrants. Children of parentsgranted nonimmigrant status undersection 101(a)(15)(N)(i) of the Act, or ofparents who have been granted specialimmigrant status under section101(a)(27)(I) (ii), (iii) or (iv) of the Actmay be granted status under section101(a)(15)(N)(ii) of the Act for such timeas each remains a child as defined insection 101(b)(1) of the Act.

(3) Admission and extension of stay. Anonimmigrant granted (N) status shallbe admitted for not to exceed threeyears with extensions in increments upto but not to exceed three years. Sta-tus as an (N) nonimmigrant shall ter-minate on the date the child describedin paragraph (n)(1) or (n)(2) of this sec-tion no longer qualifies as a child asdefined in section 101(b)(1) of the Act.

(4) Employment. A nonimmigrant ad-mitted in or granted (N) status is au-thorized employment incident to (N)status without restrictions as to loca-tion or type of employment.

(o) Aliens of extraordinary ability orachievement—(1) Classifications—(i)General. Under section 101(a)(15)(O) ofthe Act, a qualified alien may be au-thorized to come to the United Statesto perform services relating to anevent or events if petitioned for by anemployer. Under this nonimmigrantcategory, the alien may be classifiedunder section 101(a)(15)(O)(i) of the Actas an alien who has extraordinary abil-ity in the sciences, arts, education,business, or athletics, or who has ademonstrated record of extraordinaryachievement in the motion picture ortelevision industry. Under section101(a)(15)(O)(ii) of the Act, an alienhaving a residence in a foreign countrywhich he or she has no intention ofabandoning may be classified as an ac-companying alien who is coming to as-sist in the artistic or athletic perform-ance of an alien admitted under section

101(a)(15)(O)(i) of the Act. The spouse orchild of an alien described in section101(a)(15)(O)(i) or (ii) of the Act who isaccompanying or following to join thealien is entitled to classification pursu-ant to section 101(a)(15)(O)(iii) of theAct. These classifications are calledthe O–1, O–2, and O–3 categories, re-spectively. The petitioner must file apetition with the Service for a deter-mination of the alien’s eligibility forO–1 or O–2 classification before thealien may apply for a visa or seek ad-mission to the United States. Thisparagraph sets forth the standards andprocedures applicable to these classi-fications.

(ii) Description of classifications. (A)An O–1 classification applies to:

(1) An individual alien who has ex-traordinary ability in the sciences,arts, education, business, or athleticswhich has been demonstrated by sus-tained national or international ac-claim and who is coming temporarilyto the United States to continue workin the area of extraordinary ability; or

(2) An alien who has a demonstratedrecord of extraordinary achievement inmotion picture and/or television pro-ductions and who is coming tempo-rarily to the United States to continuework in the area of extraordinaryachievement.

(B) An O–2 classification applies toan accompanying alien who is comingtemporarily to the United States solelyto assist in the artistic or athletic per-formance by an O–1. The O–2 alienmust:

(1) Be an integral part of the actualperformances or events and posses crit-ical skills and experience with the O–1alien that are not of a general natureand which are not possessed by others;or

(2) In the case of a motion picture ortelevision production, have skills andexperience with the O–1 alien which arenot of a general nature and which arecritical, either based on a pre-existingand longstanding working relationshipor, if in connection with a specific pro-duction only, because significant pro-duction (including pre- and post-pro-duction) will take place both inside and


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outside the United States and the con-tinuing participation of the alien is es-sential to the successful completion ofthe production.

(2) Filing of petitions—(i) General. Ex-cept as provided for in paragraph(o)(2)(iv)(A) of this section, a petitionerseeking to classify an alien as an O–1or O–2 nonimmigrant shall file a peti-tion on Form I–129, Petition for a Non-immigrant Worker, with the ServiceCenter which has jurisdiction in thearea where the alien will work. The pe-tition may not be filed more than 6months before the actual need for thealien’s services. An O–1 or O–2 petitionshall be adjudicated at the appropriateService Center, even in emergency sit-uations. Only one beneficiary may beincluded on an O–1 petition. O–2 aliensmust be filed for on a separate petitionfrom the O–1 alien. An O–1 or O–2 peti-tion may only be filed by a UnitedStates employer, a United Statesagent, or a foreign employer through aUnited States agent. For purposes ofparagraph (o) of this section, a foreignemployer is any employer who is notamenable to service of process in theUnited States. A foreign employer maynot directly petition for an O non-immigrant alien but instead must usethe services of a United States agent tofile a petition for an O nonimmigrantalien. A United States agent petition-ing on behalf of a foreign employermust be authorized to file the petition,and to accept services of process in theUnited States in proceedings under sec-tion 274A of the Act, on behalf of theforeign employer. An O alien may notpetition for himself or herself.

(ii) Evidence required to accompany apetition. Petitions for O aliens shall beaccompanied by the following:

(A) The evidence specified in the par-ticular section for the classification;

(B) Copies of any written contractsbetween the petitioner and the alienbeneficiary or, if there is no writtencontract, a summary of the terms ofthe oral agreement under which thealien will be employed;

(C) An explanation of the nature ofthe events or activities, the beginningand ending dates for the events or ac-tivities, and a copy of any itinerary forthe events or activities; and

(D) A written advisory opinion(s)from the appropriate consulting entityor entities.

(iii) Form of documentation. The evi-dence submitted with an O petitionshall conform to the following:

(A) Affidavits, contracts, awards, andsimilar documentation must reflectthe nature of the alien’s achievementand be executed by an officer or respon-sible person employed by the institu-tion, firm, establishment, or organiza-tion where the work was performed.

(B) Affidavits written by present orformer employers or recognized expertscertifying to the recognition and ex-traordinary ability, or in the case of amotion picture or television produc-tion, the extraordinary achievement ofthe alien, shall specifically describethe alien’s recognition and ability orachievement in factual terms and setforth the expertise of the affiant andthe manner in which the affiant ac-quired such information.

(C) A legible photocopy of a docu-ment in support of the petition may besubmitted in lieu of the original. How-ever, the original document shall besubmitted if requested by the Director.

(iv) Other filing situations—(A) Servicesin more than one location. A petitionwhich requires the alien to work inmore than one location must includean itinerary with the dates and loca-tions of work and must be filed withthe Service Center which has jurisdic-tion in the area where the petitioner islocated. The address which the peti-tioner specifies as its location on thepetition shall be where the petitioneris located for purposes of this para-graph.

(B) Services for more than one em-ployer. If the beneficiary will work con-currently for more than one employerwithin the same time period, each em-ployer must file a separate petitionwith the Service Center that has juris-diction over the area where the alienwill perform services, unless an estab-lished agent files the petition.

(C) Change of employer. If an O–1 or O–2 alien in the United States seeks tochange employers, the new employermust file a petition and a request toextend the alien’s stay with the Serv-ice Center having jurisdiction over thenew place of employment. An O–2 alien


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may change employers only in conjunc-tion with a change of employers by theprincipal O–1 alien. If the O–1 or O–2 pe-tition was filed by an agent, an amend-ed petition must be filed with evidencerelating to the new employer and a re-quest for an extension of stay.

(D) Amended petition. The petitionershall file an amended petition on FormI–129, with fee, with the Service Centerwhere the original petition was filed toreflect any material changes in theterms and conditions of employment orthe beneficiary’s eligibility as specifiedin the original approved petition. Inthe case of a petition filed for an artistor entertainer, a petitioner may addadditional performances or engage-ments during the validity period of thepetition without filing an amended pe-tition, provided the additional per-formances or engagements require analien of O–1 caliber.

(E) Agents as petitioners. A UnitedStates agent may file a petition incases involving workers who are tradi-tionally self-employed or workers whouse agents to arrange short-term em-ployment on their behalf with numer-ous employers, and in cases where aforeign employer authorizes the agentto act in its behalf. A United Statesagent may be: The actual employer ofthe beneficiary, the representative ofboth the employer and the beneficiary;or, a person or entity authorized by theemployer to act for, or in place of, theemployer as its agent. A petition filedby an agent is subject to the followingconditions:

(1) An agent performing the functionof an employer must provide the con-tractual agreement between the agentand the beneficiary which specifies thewage offered and the other terms andconditions of employment of the bene-ficiary.

(2) A person or company in businessas an agent may file the petition in-volving multiple employers as the rep-resentative of both the employers andthe beneficiary, if the supporting docu-mentation includes a completeitinerary of the event or events. Theitinerary must specify the dates ofeach service or engagement, the namesand addresses of the actual employers,and the names and addresses of the es-tablishments, venues, or locations

where the services will be performed. Acontract between the employers andthe beneficiary is required. The burdenis on the agent to explain the termsand conditions of the employment andto provide any required documenta-tion.

(3) A foreign employer who, througha United States agent, files a petitionfor an O nonimmigrant alien is respon-sible for complying with all of the em-ployer sanctions provisions of section274A of the Act and 8 CFR part 274a.

(F) Multiple beneficiaries. More thanone O–2 accompanying alien may be in-cluded on a petition if they are assist-ing the same O–1 alien for the sameevents or performances, during thesame period of time, and in the samelocation.

(G) Traded professional O–1 athletes. Inthe case of a professional O–1 athletewho is traded from one organization toanother organization, employment au-thorization for the player will auto-matically continue for a period of 30days after acquisition by the new orga-nization, within which time the neworganization is expected to file a newForm I–129. If a new Form I–129 is notfiled within 30 days, employment au-thorization will cease. If a new Form I–129 is filed within 30 days, the profes-sional athlete shall be deemed to be invalid O–1 status, and employment shallcontinue to be authorized, until the pe-tition is adjudicated. If the new peti-tion is denied, employment authoriza-tion will cease.

(3) Petition for alien of extraordinaryability or achievement (O–1)—(i) General.Extraordinary ability in the sciences,arts, education, business, or athletics,or extraordinary achievement in thecase of an alien in the motion pictureor television industry, must be estab-lished for an individual alien. An O–1petition must be accompanied by evi-dence that the work which the alien iscoming to the United States to con-tinue is in the area of extraordinaryability, and that the alien meets thecriteria in paragraph (o)(3)(iii) or (iv)of this section.

(ii) Definitions. As used in this para-graph, the term:

Arts includes any field of creative ac-tivity or endeavor such as, but not lim-ited to, fine arts, visual arts, culinary


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arts, and performing arts. Aliens en-gaged in the field of arts include notonly the principal creators and per-formers but other essential personssuch as, but not limited to, directors,set designers, lighting designers, sounddesigners, choreographers,choreologists, conductors, orchestra-tors, coaches, arrangers, musical super-visors, costume designers, makeup art-ists, flight masters, stage technicians,and animal trainers.

Event means an activity such as, butnot limited to, a scientific project, con-ference, convention, lecture series,tour, exhibit, business project, aca-demic year, or engagement. Such ac-tivity may include short vacations,promotional appearances, and stop-overs which are incidental and/or relat-ed to the event. A group of related ac-tivities may also be considered to be anevent. In the case of an O–1 athlete, theevent could be the alien’s contract.

Extraordinary ability in the field of artsmeans distinction. Distinction means ahigh level of achievement in the fieldof arts evidenced by a degree of skilland recognition substantially abovethat ordinarily encountered to the ex-tent that a person described as promi-nent is renowned, leading, or well-known in the field of arts.

Extraordinary ability in the field ofscience, education, business, or athleticsmeans a level of expertise indicatingthat the person is one of the small per-centage who have arisen to the verytop of the field of endeavor.

Extraordinary achievement with re-spect to motion picture and televisionproductions, as commonly defined inthe industry, means a very high levelof accomplishment in the motion pic-ture or television industry evidencedby a degree of skill and recognition sig-nificantly above that ordinarily en-countered to the extent that the personis recognized as outstanding, notable,or leading in the motion picture or tel-evision field.

Peer group means a group or organi-zation which is comprised of practi-tioners of the alien’s occupation. Ifthere is a collective bargaining rep-resentative of an employer’s employeesin the occupational classification forwhich the alien is being sought, such arepresentative may be considered the

appropriate peer group for purposes ofconsultation.

(iii) Evidentiary criteria for an O–1alien of extraordinary ability in the fieldsof science, education, business, or athlet-ics. An alien of extraordinary ability inthe fields of science, education, busi-ness, or athletics must demonstratesustained national or international ac-claim and recognition for achieve-ments in the field of expertise by pro-viding evidence of:

(A) Receipt of a major, internation-ally recognized award, such as theNobel Prize; or

(B) At least three of the followingforms of documentation:

(1) Documentation of the alien’s re-ceipt of nationally or internationallyrecognized prizes or awards for excel-lence in the field of endeavor;

(2) Documentation of the alien’smembership in associations in the fieldfor which classification is sought,which require outstanding achieve-ments of their members, as judged byrecognized national or internationalexperts in their disciplines or fields;

(3) Published material in professionalor major trade publications or majormedia about the alien, relating to thealien’s work in the field for which clas-sification is sought, which shall in-clude the title, date, and author ofsuch published material, and any nec-essary translation;

(4) Evidence of the alien’s participa-tion on a panel, or individually, as ajudge of the work of others in the sameor in an allied field of specialization tothat for which classification is sought;

(5) Evidence of the alien’s originalscientific, scholarly, or business-relat-ed contributions of major significancein the field;

(6) Evidence of the alien’s authorshipof scholarly articles in the field, in pro-fessional journals, or other majormedia;

(7) Evidence that the alien has beenemployed in a critical or essential ca-pacity for organizations and establish-ments that have a distinguished rep-utation;

(8) Evidence that the alien has eithercommanded a high salary or will com-mand a high salary or other remunera-tion for services, evidenced by con-tracts or other reliable evidence.


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(C) If the criteria in paragraph(o)(3)(iii) of this section do not readilyapply to the beneficiary’s occupation,the petitioner may submit comparableevidence in order to establish the bene-ficiary’s eligibility.

(iv) Evidentiary criteria for an O–1alien of extraordinary ability in the arts.To qualify as an alien of extraordinaryability in the field of arts, the alienmust be recognized as being prominentin his or her field of endeavor as dem-onstrated by the following:

(A) Evidence that the alien has beennominated for, or has been the recipi-ent of, significant national or inter-national awards or prizes in the par-ticular field such as an AcademyAward, an Emmy, a Grammy, or a Di-rector’s Guild Award; or


(1) Evidence that the alien has per-formed, and will perform, services as alead or starring participant in produc-tions or events which have a distin-guished reputation as evidenced bycritical reviews, advertisements, pub-licity releases, publications contracts,or endorsements;

(2) Evidence that the alien hasachieved national or international rec-ognition for achievements evidenced bycritical reviews or other published ma-terials by or about the individual inmajor newspapers, trade journals, mag-azines, or other publications;

(3) Evidence that the alien has per-formed, and will perform, in a lead,starring, or critical role for organiza-tions and establishments that have adistinguished reputation evidenced byarticles in newspapers, trade journals,publications, or testimonials;

(4) Evidence that the alien has arecord of major commercial or criti-cally acclaimed successes as evidencedby such indicators as title, rating,standing in the field, box office re-ceipts, motion pictures or televisionratings, and other occupationalachievements reported in trade jour-nals, major newspapers, or other publi-cations;

(5) Evidence that the alien has re-ceived significant recognition forachievements from organizations, crit-ics, government agencies, or other rec-ognized experts in the field in which

the alien is engaged. Such testimonialsmust be in a form which clearly indi-cates the author’s authority, expertise,and knowledge of the alien’s achieve-ments; or

(6) Evidence that the alien has eithercommanded a high salary or will com-mand a high salary or other substan-tial remuneration for services in rela-tion to others in the field, as evidencedby contracts or other reliable evidence;or

(C) If the criteria in paragraph(o)(3)(iv) of this section do not readilyapply to the beneficiary’s occupation,the petitioner may submit comparableevidence in order to establish the bene-ficiary’s eligibility.

(v) Evidentiary criteria for an alien ofextraordinary achievement in the motionpicture or television industry. To qualifyas an alien of extraordinary achieve-ment in the motion picture or tele-vision industry, the alien must be rec-ognized as having a demonstratedrecord of extraordinary achievement asevidenced by the following:

(A) Evidence that the alien has beennominated for, or has been the recipi-ent of, significant national or inter-national awards or prizes in the par-ticular field such as an AcademyAward, an Emmy, a Grammy, or a Di-rector’s Guild Award; or


(1) Evidence that the alien has per-formed, and will perform, services as alead or starring participant in produc-tions or events which have a distin-guished reputation as evidenced bycritical reviews, advertisements, pub-licity releases, publications contracts,or endorsements;

(2) Evidence that the alien hasachieved national or international rec-ognition for achievements evidenced bycritical reviews or other published ma-terials by or about the individual inmajor newspapers, trade journals, mag-azines, or other publications;

(3) Evidence that the alien has per-formed, and will perform, in a lead,starring, or critical role for organiza-tions and establishments that have adistinguished reputation evidenced byarticles in newspapers, trade journals,publications, or testimonials;


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(4) Evidence that the alien has arecord of major commercial or criti-cally acclaimed successes as evidencedby such indicators as title, rating,standing in the field, box office re-ceipts, motion picture or televisionratings, and other occupationalachievements reported in trade jour-nals, major newspapers, or other publi-cations;

(5) Evidence that the alien has re-ceived significant recognition forachievements from organizations, crit-ics, government agencies, or other rec-ognized experts in the field in whichthe alien is engaged. Such testimonialsmust be in a form which clearly indi-cates the author’s authority, expertise,and knowledge of the alien’s achieve-ments; or

(6) Evidence that the alien has eithercommanded a high salary or will com-mand a high salary or other substan-tial remuneration for services in rela-tion to other in the field, as evidencedby contracts or other reliable evidence.

(4) Petition for an O–2 accompanyingalien—(i) General. An O–2 accompany-ing alien provides essential support toan O–1 artist or athlete. Such aliensmay not accompany O–1 aliens in thefields of science, business, or edu-cation. Although the O–2 alien mustobtain his or her own classification,this classification does not entitle himor her to work separate and apart fromthe O–1 alien to whom he or she pro-vides support. An O–2 alien must be pe-titioned for in conjunction with theservices of the O–1 alien.

(ii) Evidentiary criteria for qualifyingas an O–2 accompanying alien—(A) Alienaccompanying an O–1 artist or athlete ofextraordinary ability. To qualify as anO–2 accompanying alien, the alienmust be coming to the United States toassist in the performance of the O–1alien, be an integral part of the actualperformance, and have critical skillsand experience with the O–1 alienwhich are not of a general nature andwhich are not possessed by a U.S.worker.

(B) Alien accompanying an O–1 alien ofextraordinary achievement. To qualify asan O–2 alien accompanying and O–1alien involved in a motion picture ortelevision production, the alien musthave skills and experience with the O–

1 alien which are not of a general na-ture and which are critical based on apre-existing longstanding working re-lationship or, with respect to the spe-cific production, because significantproduction (including pre- and post-production work) will take place bothinside and outside the United Statesand the continuing participation of thealien is essential to the successful com-pletion of the production.

(C) The evidence shall establish thecurrent essentiality, critical skills, andexperience of the O–2 alien with the O–1 alien and that the alien has substan-tial experience performing the criticalskills and essential support services forthe O–1 alien. In the case of a specificmotion picture or television produc-tion, the evidence shall establish thatsignificant production has taken placeoutside the United States, and willtake place inside the United States,and that the continuing participationof the alien is essential to the success-ful completion of the production.

(5) Consultation—(i) General. (A) Con-sultation with an appropriate U.S. peergroup (which could include a person orpersons with expertise in the field),labor and/or management organizationregarding the nature of the work to bedone and the alien’s qualifications ismandatory before a petition for an O–1or O–2 classification can be approved.

(B) Except as provided in paragraph(o)(5)(i)(E) of this section, evidence ofconsultation shall be in the form of awritten advisory opinion from a peergroup (which could include a person orpersons with expertise in the field),labor and/or management organizationwith expertise in the specific field in-volved.

(C) Except as provided in paragraph(o)(5)(i)(E) of this section, the peti-tioner shall obtain a written advisoryopinion from a peer group (which couldinclude a person or persons with exper-tise in the field), labor, and/or manage-ment organization with expertise inthe specific field involved. The advi-sory opinion shall be submitted alongwith the petition when the petition isfiled. If the advisory opinion is not fa-vorable to the petitioner, the advisory


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opinion must set forth a specific state-ment of facts which supports the con-clusion reached in the opinion. Advi-sory opinions must be submitted inwriting and must be signed by an au-thorized official of the group or organi-zation.

(D) Except as provided in paragraph(o)(5)(i)(E) and (G) of this section, writ-ten evidence of consultation shall beincluded in the record in every ap-proved O petition. Consultations areadvisory and are not binding on theService.

(E) In a case where the alien will beemployed in the field of arts, enter-tainment, or athletics, and the Servicehas determined that a petition meritsexpeditious handling, the Service shallcontact the appropriate labor and/ormanagement organization and requestan advisory opinion if one is not sub-mitted by the petitioner. The laborand/or management organization shallhave 24 hours to respond to the Serv-ice’s request. The Service shall adju-dicate the petition after receipt of theresponse from the consulting organiza-tion. The labor and/or management or-ganization shall then furnish the Serv-ice with a written advisory opinionwithin 5 days of the initiating request.If the labor and/or management organi-zation fails to respond within 24 hours,the Service shall render a decision onthe petition without the advisory opin-ion.

(F) In a routine processing casewhere the petition is accompanied by awritten opinion from a peer group, butthe peer group is not a labor organiza-tion, the Director will forward a copyof the petition and all supporting docu-mentation to the national office of theappropriate labor organization within 5days of receipt of the petition. If thereis a collective bargaining representa-tive of an employer’s employees in theoccupational classification for whichthe alien is being sought, that rep-resentative shall be the appropriatelabor organization for purposes of thissection. The labor organization willthen have 15 days from receipt of thepetition and supporting documents tosubmit to the Service a written advi-sory opinion, comment, or letter of noobjection. Once the 15-day period hasexpired, the Director shall adjudicate

the petition in no more than 14 days.The Director may shorten this time inhis or her discretion for emergency rea-sons, if no unreasonable burden wouldbe imposed on any participant in theprocess. If the labor organization doesnot respond within 15 days, the Direc-tor will render a decision on the recordwithout the advisory opinion.

(G) In those cases where it is estab-lished by the petitioner that an appro-priate peer group, including a labor or-ganization, does not exist, the Serviceshall render a decision on the evidenceof record.

(ii) Consultation requirements for an O–1 alien for extraordinary ability—(A) Con-tent. Consultation with a peer group inthe area of the alien’s ability (whichmay include a labor organization), or aperson or persons with expertise in thearea of the alien’s ability, is requiredin an O–1 petition for an alien of ex-traordinary ability. If the advisoryopinion is not favorable to the peti-tioner, the advisory opinion must setforth a specific statement of factswhich supports the conclusion reachedin the opinion. If the advisory opinionis favorable to the petitioner, it shoulddescribe the alien’s ability andachievements in the field of endeavor,describe the nature of the duties to beperformed, and state whether the posi-tion requires the services of an alien ofextraordinary ability. A consulting or-ganization may also submit a letter ofno objection in lieu of the above if ithas no objection to the approval of thepetition.

(B) Waiver of consultation of certainaliens of extraordinary ability in the fieldof arts. Consultation for an alien of ex-traordinary ability in the field of artsshall be waived by the Director inthose instances where the alien seeksreadmission to the United States toperform similar services within 2 yearsof the date of a previous consultation.The director shall, within 5 days ofgranting the waiver, forward a copy ofthe petition and supporting docu-mentation to the national office of anappropriate labor organization. Peti-tioners desiring to avail themselves ofthe waiver should submit a copy of theprior consultation with the petitionand advise the Director of the waiverrequest.


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(iii) Consultation requirements for anO–1 alien of extraordinary achievement.In the case of an alien of extraordinaryachievement who will be working on amotion picture or television produc-tion, consultation shall be made withthe appropriate union representing thealien’s occupational peers and a man-agement organization in the area ofthe alien’s ability. If an advisory opin-ion is not favorable to the petitioner,the advisory opinion must set forth aspecific statement of facts which sup-ports the conclusion reached in theopinion. If the advisory opinion is fa-vorable to the petitioner, the writtenadvisory opinion from the labor andmanagement organizations should de-scribe the alien’s achievements in themotion picture or television field andstate whether the position requires theservices of an alien of extraordinaryachievement. If a consulting organiza-tion has no objection to the approval ofthe petition, the organization may sub-mit a letter of no objection in lieu ofthe above.

(iv) Consultation requirements for anO–2 accompanying alien. Consultationwith a labor organization with exper-tise in the skill area involved is re-quired for an O–2 alien accompanyingan O–1 alien of extraordinary ability.In the case of an O–2 alien seekingentry for a motion picture or televisionproduction, consultation with a labororganization and a management orga-nization in the area of the alien’s abil-ity is required. If an advisory opinionis not favorable to the petitioner, theadvisory opinion must set forth a spe-cific statement of facts which supportsthe conclusion reached in the opinion.If the advisory opinion is favorable tothe petitioner, the opinion provided bythe labor and/or management organiza-tion should describe the alien’s essen-tiality to, and working relationshipwith, the O–1 artist or athlete andstate whether there are available U.S.workers who can perform the supportservices. If the alien will accompany anO–1 alien involved in a motion pictureor television production, the advisoryopinion should address the alien’sskills and experience wit the O–1 alienand whether the alien has a pre-exist-ing longstanding working relationshipwith the O–1 alien, or whether signifi-

cant production will take place in theUnited States and abroad and if thecontinuing participation of the alien isessential to the successful completionof the production. A consulting organi-zation may also submit a letter of noobjection in lieu of the above if it hasno objection to the approval of the pe-tition.

(v) Organizations agreeing to provideadvisory opinions. The Service will listin its Operations Instructions for Oclassification those peer groups, labororganizations, and/or management or-ganizations which have agreed to pro-vide advisory opinions to the Serviceand/or petitioners. The list will not bean exclusive or exhaustive list. TheService and petitioners may use othersources, such as publications, to iden-tify appropriate peer groups, labor or-ganizations, and management organi-zations. Additionally, the Service willlist in its Operations Instructionsthose occupations or fields of endeavorwhere the nonexistence of an appro-priate consulting entity has been veri-fied.

(6) Approval and validity of petition—(1) Approval. The Director shall con-sider all of the evidence submitted andsuch other evidence as may be inde-pendently required to assist in the ad-judication. The Director shall notifythe petitioner of the approval of the pe-tition on Form I–797, Notice of Action.The approval notice shall include thealien beneficiary name, the classifica-tion, and the petition’s period of valid-ity.

(ii) Recording the validity of petitions.Procedures for recording the validityperiod of petitions are as follows;

(A) If a new O petition is approvedbefore the date the petitioner indicatesthe services will begin, the approvedpetition and approval notice shall showthe actual dates requested by the peti-tioner, not to exceed the limit specifiedby paragraph (o)(6)(iii) of this sectionor other Service policy.

(B) If a new 0 petition is approvedafter the date the petitioner indicatesthe services will begin, the approvedpetition and approval notice shall gen-erally show a validity period commenc-ing with the date of approval and end-ing with the date requested by the peti-tioner, not to exceed the limit specified


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by paragraph (o)(6)(iii) of this sectionor other Service policy.

(C) If the period of services requestedby the petitioner exceeds the limitspecified in paragraph (o)(6)(iii) of thissection, the petition shall be approvedonly up to the limit specified in thatparagraph.

(iii) Validity—(A) O–1 petition. An ap-proved petition for an alien classifiedunder section 101(a)(15)(O)(i) of the Actshall be valid for a period of time de-termined by the Director to be nec-essary to accomplish the event or ac-tivity, not to exceed 3 years.

(B) O–2 petition. An approved petitionfor an alien classified under section101(a)(15)(O)(ii) of the Act shall be validfor a period of time determined to benecessary to assist the O–1 alien to ac-complish the event or activity, not toexceed 3 years.

(iv) Spouse and dependents. Thespouse and unmarried minor childrenof the O–1 or O–2 alien beneficiary areentitled to O–3 nonimmigrant classi-fication, subject to the same period ofadmission and limitations as the alienbeneficiary, if they are accompanyingor following to join the alien bene-ficiary in the United States. Neitherthe spouse nor a child of the alien ben-eficiary may accept employment un-less he or she has been granted employ-ment authorization.

(7) Denial of petition—(i) Notice of in-tent to deny. When an adverse decisionis proposed on the basis of derogatoryinformation of which the petitioner isunaware, the Director shall notify thepetitioner of the intent to deny the pe-tition and the basis for the denial. Thepetitioner may inspect and rebut theevidence and will be granted a period of30 days from the date of the notice inwhich to do so. All relevant rebuttalmaterial will be considered in makinga final decision.

(ii) Notice of denial. The petitionershall be notified of the decision, thereasons for the denial, and the right toappeal the denial under 8 CFR part 103.

(8) Revocation of approval of petition—(i) General. (A) The petitioner shall im-mediately notify the Service of anychanges in the terms and conditions ofemployment of a beneficiary whichmay affect eligibility under section101(a)(15)(O) of the Act and paragraph

(o) of this section. An amended petitionshould be filed when the petitioner con-tinues to employ the beneficiary. If thepetitioner no longer employs the bene-ficiary, the petitioner shall send a let-ter explaining the change(s) to the Di-rector who approved the petition.

(B) The Director may revoke a peti-tion at any time, even after the valid-ity of the petition has expired.

(ii) Automatic revocation. The ap-proval of an unexpired petition is auto-matically revoked if the petitioner, orthe named employer in a petition filedby an agent, goes out of business, filesa written withdrawal of the petition, ornotifies the Service that the bene-ficiary is no longer employed by the pe-titioner.

(iii) Revocation on notice—(A) Groundsfor revocation. The Director shall sendto the petitioner a notice of intent torevoke the petition in relevant part ifis determined that:

(1) The beneficiary is no longer em-ployed by the petitioner in the capac-ity specified in the petition;

(2) The statement of facts containedin the petition was not true and cor-rect;

(3) The petitioner violated the termsor conditions of the approved petition;

(4) The petitioner violated the re-quirements of section 101(a)(15)(O) ofthe Act or paragraph (o) of this sec-tion; or

(5) The approval of the petition vio-lated paragraph (o) of this section orinvolved gross error.

(B) Notice and decision. The notice ofintent to revoke shall contain a de-tailed statement of the grounds for therevocation and the time period allowedfor the petitioner’s rebuttal. The peti-tioner may submit evidence in rebuttalwithin 30 days of the date of the notice.The Director shall consider all relevantevidence presented in deciding whetherto revoke the petition.

(9) Appeal of a denial or a revocation ofa petition—(i) Denial. A denied petitionmay be appealed under 8 CFR part 103.

(ii) Revocation. A petition that hasbeen revoked on notice may be ap-pealed under 8 CFR part 103. Automaticrevocations may not be appealed.

(10) Admission. A beneficiary may beadmitted to the United States for thevalidity period of the petition, plus a


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period of up to 10 days before the valid-ity period begins and 10 days after thevalidity period ends. The beneficiarymay only engage in employment dur-ing the validity period of the petition.

(11) Extention of visa petition validity.The petitioner shall file a request toextend the validity of the original peti-tion under section 101(a)(15)(O) of theAct on Form I–129, Petition for a Non-immigrant Worker, in order to con-tinue or complete the same activitiesor events specified in the original peti-tion. Supporting documents are not re-quired unless requested by the Direc-tor. A petition extension may be filedonly if the validity of the original peti-tion has not expired.

(12) Extension of stay—(i) Extensionprocedure. The petitioner shall requestextension of the alien’s stay to con-tinue or complete the same event oractivity by filing Form I–129, accom-panied by a statement explaining thereasons for the extension. The peti-tioner must also request a petition ex-tension. The dates of extension shall bethe same for the petition and the bene-ficiary’s extension of stay. The alienbeneficiary must be physically presentin the United States at the time of fil-ing of the extension of stay. Eventhough the request to extend the peti-tion and the alien’s stay are combinedon the petition, the Director shallmake a separate determination oneach. If the alien leaves the UnitedStates for business or personal reasonswhile the extension requests are pend-ing, the petitioner may request the Di-rector to cable notification of approvalof the petition extension to the con-sular office abroad where the alien willapply for a visa.

(ii) Extension period. An extension ofstay may be authorized in incrementsof up to 1 year for an O–1 or O–2 bene-ficiary to continue or complete thesame event or activity for which he orshe was admitted plus an additional 10days to allow the beneficiary to get hisor her personal affairs in order.

(iii) Denial of an extension of stay. Thedenial of the request for the alien’s ex-tension of temporary stay may not beappealed.

(13) Effect of approval of a permanentlabor certification or filing of a preferencepetition on O classification. The approval

of a permanent labor certification orthe filing of a preference petition foran alien shall not be a basis for deny-ing an O–1 petition, a request to extendsuch a petition, or the alien’s applica-tion for admission, change of status, orextension of stay. The alien may legiti-mately come to the United States for atemporary period as an O–1 non-immigrant and depart voluntarily atthe end of his or her authorized stayand, at the same time, lawfully seek tobecome a permanent resident of theUnited States.

(14) Effect of a strike. (i) If the Sec-retary of Labor certifies to the Com-missioner that a strike or other labordispute involving a work stoppage ofworkers is in progress in the occupa-tion at the place where the beneficiaryis to be employed, and that the em-ployment of the beneficiary would ad-versely affect the wages and workingconditions of U.S. citizens and lawfulresident workers:

(A) A petition to classify an alien asa nonimmigrant as defined in section101(a)(15)(O) of the Act shall be denied;or

(B) If a petition has been approved,but the alien has not yet entered theUnited States, or has entered theUnited States but has not commencedemployment, the approval of the peti-tion is automatically suspended, andthe application for admission on thebasis of the petition shall be denied.

(ii) If there is a strike or other labordispute involving a work stoppage ofworkers in progress, but such strike orother labor dispute is not certifiedunder paragraph (o)(14)(i) of this sec-tion, the Commissioner shall not denya petition or suspend an approved peti-tion.

(iii) If the alien has already com-menced employment in the UnitedStates under an approved petition andis participating in a strike or labor dis-pute involving a work stoppage ofworkers, whether or not such strike orother labor dispute has been certifiedby the Secretary of Labor, the alienshall not be deemed to be failing tomaintain his or her status solely on ac-count of past, present, or future par-ticipation in a strike or other labordispute involving a work stoppage of


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workers but is subject to the followingterms and conditions:

(A) The alien shall remain subject toall applicable provisions of the Immi-gration and Nationality Act and regu-lations promulgated thereunder in thesame manner as are all other O non-immigrants;


(C) Although participation by an Ononimmigrant alien in a strike orother labor dispute involving a workstoppage of workers will not constitutea ground for deportation, and alien whoviolates his or her status or who re-mains in the United States after his orher authorized period of stay has ex-pired will be subject to deportation.

(15) Use of approval notice, Form I–797.The Service shall notify the petitionerof Form I–797 whenever a visa petitionor an extension of a visa petition is ap-proved under the O classification. Thebeneficiary of an O petition who doesnot require a nonimmigrant visa maypresent a copy of the approval noticeat a Port-of-Entry to facilitate entryinto the United States. A beneficiarywho is required to present a visa for ad-mission, and who visa will have expiredbefore the date of his or her intendedreturn, may use Form I–797 to apply fora new or revalidated visa during thevalidity period of the petition. A copyof Form I–797 shall be retained by thebeneficiary and presented during thevalidity of the petition when reenter-ing the United States to resume thesame employment with the same peti-tioner.

(16) Return transportation requirement.In the case of an alien who enters theUnited States under section 101(a)(15(O)of the Act and whose employment ter-minates for reasons other than vol-untary resignation, the employerwhose offer of employment formed thebasis of such nonimmigrant status andthe petitioner are jointly and severallyliable for the reasonable cost of returntransportation of the alien abroad. Forthe purposes of this paragraph, theterm ‘‘abroad’’ means the alien’s last

place of residence prior to his or herentry into the United States.

(p) Artists, athletes, and entertainers—(1) Classifications—(i) General. Undersection 101(a)(15)(P) of the Act, an alienhaving a residence in a foreign countrywhich he or she has not intention orabandoning may be authorized to cometo the United States temporarily toperform services for an employer or asponsor. Under the nonimmigrant cat-egory, the alien may be classifiedunder section 101(a)(15)(P)(i) of the Actas an alien who is coming to the UnitedStates to perform services as an inter-nationally recognized athlete, individ-ually or as part of a group or team, ormember of an internationally recog-nized entertainment group; under sec-tion 101(a)(15)(P)(ii) of the Act, who iscoming to perform as an artist or en-tertainer under a reciprocal exchangeprogram; under section 101(a)(15)(P)(iii)of the Act, as an alien who is comingsolely to perform, teach, or coachunder a program that is culturallyunique; or under section101(a)(15)(P)(iv) of the Act, as thespouse or child of an alien described insection 101(a)(15)(P) (i), (ii), or (iii) ofthe Act who is accompanying or follow-ing to join the alien. These classifica-tions are called P–1, P–2, P–3, and P–4respectively. The employer or sponsormust file a petition with the Servicefor review of the services to be per-formed and for determination of thealien’s eligibility for P–1, P–2, or P–3classification before the alien mayapply for a visa or seek admission tothe United States. This paragraph setsforth the standards and procedures ap-plicable to these classifications.

(ii) Description of classification—(A) AP–1 classification applies to an alienwho is coming temporarily to theUnited States:

(1) To perform at specific athleticcompetition as an athlete, individuallyor as part of a group or team, at aninternationally recognized level or per-formance, or

(2) To perform with, or as an integraland essential part of the performanceof, and entertainment group that hasbeen recognized internationally asbeing outstanding in the discipline fora sustained and substantial period oftime, and who has had a sustained and


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substantial relationship with the group(ordinarily for at least 1 year) and pro-vides functions integral to the perform-ance of the group.

(B) A P–2 classification applies to analien who is coming temporarily to theUnited States to perform as an artistor entertainer, individually or as partof a group, or to perform as an integralpart of the performance of such agroup, and who seeks to perform undera reciprocal exchange program which isbetween an organization or organiza-tions in the United States and an orga-nization or organizations in one ormore foreign states, and which pro-vides for the temporary exchange ofartists and entertainers, or groups ofartists and entertainers.

(C) A P–3 classification applies to analien artist or entertainer who is com-ing temporarily to the United States,either individually or as part of agroup, or as an integral part of the per-formance of the group, to perform,teach, or coach under a commercial ornoncommercial program that is cul-turally unique.

(2) Filing of petitions—(i) General. A P–1 petition for an athlete or entertain-ment group shall be filed by a UnitedStates employer, a United States spon-soring organization, a United Statesagent, or a foreign employer through aUnited States agent. For purposes ofparagraph (p) of this section, a foreignemployer is any employer who is notamenable to service of process in theUnited States. Foreign employers seek-ing to employ a P–1 alien may not di-rectly petition for the alien but mustuse a United States agent. A UnitedStates agent petitioning on behalf of aforeign employer must be authorized tofile the petition, and to accept serviceof process in the United States in pro-ceedings under section 274A of the Act,on behalf of the foreign employer. A P–2 petition for an artist or entertainerin a reciprocal exchange program shallbe filed by the United States labor or-ganization which negotiated the recip-rocal exchange agreement, the sponsor-ing organization, or a United Statesemployer. A P–3 petition for an artistor entertainer in a culturally uniqueprogram shall be filed by the sponsor-ing organization or a United Statesemployer. Essential support personnel

may not be included on the petitionfiled for the principal alien(s). Thesealiens require a separate petition. Ex-cept as provided for in paragraph(p)(2)(iv)(A) of this section, the peti-tioner shall file a P petition on Form I–129, Petition for Nonimmigrant Work-er, with the Service Center which hasjurisdiction in the area where the alienwill work. The petition may not befiled more than 6 months before the ac-tual need for the alien’s services. A P–1, P–2, or P–3 petition shall be adju-dicated at the appropriate Service Cen-ter, even in emergency situations.

(ii) Evidence required to accompany apetition for a P nonimmigrant. Petitionsfor P nonimmigrant aliens shall be ac-companied by the following:

(A) The evidence specified in the spe-cific section of this part for the classi-fication;

(B) Copies of any written contractsbetween the petitioner and the alienbeneficiary or, if there is no writtencontract, a summary of the terms ofthe oral agreement under which thealien(s) will be employed;

(C) An explanation of the nature ofthe events or activities, the beginningand ending dates for the events or ac-tivities, and a copy of any itinerary forthe events or activities; and

(D) A written consultation from alabor organization.

(iii) Form of documentation. The evi-dence submitted with an P petitionshould conform to the following:

(A) Affidavits, contracts, awards, andsimilar documentation must reflectthe nature of the alien’s achievementand be executed by an officer or respon-sible person employed by the institu-tion, establishment, or organizationwhere the work has performed.

(B) Affidavits written by present orformer employers or recognized expertscertifying to the recognition and ex-traordinary ability, or, in the case of amotion picture or television produc-tion, the extraordinary achievement ofthe alien, which shall specifically de-scribe the alien’s recognition and abil-ity or achievement in factual terms.The affidavit must also set forth theexpertise of the affiant and the mannerin which the affiant acquired such in-formation.


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(C) A legible copy of a document insupport of the petition may be submit-ted in lieu of the original. However, theoriginal document shall be submitted ifrequested by the Director.

(iv) Other filing situations—(A) Servicesin more than one location. A petitionwhich requires the alien to work inmore than one location (e.g., a tour)must include an itinerary with thedates and locations of the perform-ances and must be filed with the Serv-ice Center which has jurisdiction in thearea where the petitioner is located.The address which the petitioner speci-fies as its location on the petition shallbe where the petitioner is located forpurposes of this paragraph.

(B) Services for more than one em-ployer. If the beneficiary or bene-ficiaries will work for more than oneemployer within the same time period,each employer must file a separate pe-tition with the Service Center that hasjurisdiction over the area where thealien will perform the services, unlessan agent files the petition pursuant toparagraph (p)(2)(iv)(E) of this section.

(C) Change of employer—(1) General. Ifa P–1, P–2, or P–3 alien in the UnitedStates seeks to change employers orsponsors, the new employer or sponsormust file both a petition and a requestto extend the alien’s stay in the UnitedStates. The alien may not commenceemployment with the new employer orsponsor until the petition and requestfor extension have been approved.

(2) Traded professional P–1 athletes. Inthe case of a professional P–1 athletewho is traded from one organization toanother organization, employment au-thorization for the player will auto-matically continue for a period of 30days after acquisition by the new orga-nization, within which time the neworganization is expected to file a newForm I–129 for P–1 nonimmigrant clas-sification. If a new Form I–129 is notfiled within 30 days, employment au-thorization will cease. If a new Form I–129 is filed within 30 days, the profes-sional athlete shall be deemed to be invalid P–1 status, and employment shallcontinue to be authorized, until the pe-tition is adjudicated. If the new peti-tion is denied, employment authoriza-tion will cease.

(D) Amended petition. The petitionershall file an amended petition, withfee, with the Service Center where theoriginal petition was filed to reflectany material changes in the terms andconditions of employment or the bene-ficiary’s eligibility as specified in theoriginal approved petition. A peti-tioner may add additional, similar orcomparable performance, engagements,or competitions during the validity pe-riod of the petition without filing anamended petition.

(E) Agents as petitioners. A UnitedStates agent may file a petition incases involving workers who are tradi-tionally self-employed or workers whouse agents to arrange short-term em-ployment on their behalf with numer-ous employers, and in cases where aforeign employer authorizes the agentto act on its behalf. A United Statesagent may be: the actual employer ofthe beneficiary; the representative ofboth the employer and the beneficiary;or, a person or entity authorized by theemployer to act for, or in place of, theemployer as its agent. A petition filedby an United States agent is subject tothe following conditions:

(1) An agent performing the functionof an employer must specify the wageoffered and the other terms and condi-tions of employment by contractualagreement with the beneficiary orbeneficiaries. The agent/employer mustalso provide an itinerary of definiteemployment and information on anyother services planned for the period oftime requested.

(2) A person or company in businessas an agent may file the P petition in-volving multiple employers as the rep-resentative of both the employers andthe beneficiary or beneficiaries if thesupporting documentation includes acomplete itinerary of services or en-gagements. The itinerary shall specifythe dates of each service or engage-ment, the names and addresses of theactual employers, the names and ad-dresses of the establishment, venues, orlocations where the services will beperformed. In questionable cases, acontract between the employer(s) andthe beneficiary or beneficiaries may berequired. The burden is on the agent toexplain the terms and conditions of the


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employment and to provide any re-quired documentation.

(3) A foreign employer who, througha United States agent, files a petitionfor a P nonimmigrant alien is respon-sible for complying with all of the em-ployer sanctions provisions of section274A of the Act and 8 CFR part 274a.

(F) Multiple beneficiaries. More thanone beneficiary may be included in a Ppetition if they are members of a groupseeking classification based on the rep-utation of the group as an entity, or ifthey will provide essential support toP–1, P–2, or P–3 beneficiaries perform-ing in the same location and in thesame occupation.

(G) Named beneficiaries. Petitions forP classification must include thenames of beneficiaries and other re-quired information at the time of fil-ing.

(H) Substitution of beneficiaries. A pe-titioner may request substitution ofbeneficiaries in approved P–1, P–2, andP–3 petitions for groups. To requestsubstitution, the petitioner shall sub-mit a letter requesting such substi-tution, along with a copy of the peti-tioner’s approval notice, to the con-sular office at which the alien willapply for a visa or the Port-of-Entrywhere the alien will apply for admis-sion. Essential support personnel maynot be substituted at consular officesor at Ports-of-entry. In order to add ad-ditional new essential support person-nel, a new I–129 petition must be filedwith the appropriate Service Center.

(3) Definitions. As used in this para-graph, the term:

Arts includes fields of creative activ-ity or endeavor such as, but not lim-ited to, fine arts, visual arts, and per-forming arts.

Competition, event, or performancemeans an activity such as an athleticcompetition, athletic season, tour-nament, tour, exhibit, project, enter-tainment event, or engagement. Suchactivity could include short vacations,promotional appearances for the peti-tioning employer relating to the com-petition, event, or performance, andstopovers which are incidental and/orrelated to the activity. An athleticcompetition or entertainment eventcould include an entire season of per-formances A group of related activities

will also be considered an event. In thecase of a P–2 petition, the event may bethe duration of the reciprocal exchangeagreement. In the case of a P–1 athlete,the event may be the duration of thealien’s contract.

Contract means the written agree-ment between the petitioner and thebeneficiary(ies) that explains the termsand conditions of employment. Thecontract shall describe the services tobe performed, and specify the wages,hours of work, working conditions, andany fringe benefits.

Culturally unique means a style of ar-tistic expression, methodology, or me-dium which is unique to a particularcountry, nation, society, class, eth-nicity, religion, tribe, or other group ofpersons.

Essential support alien means a highlyskilled, essential person determined bythe Director to be an integral part ofthe performance of a P–1, P–2, or P–3alien because he or she performs sup-port services which cannot be readilyperformed by a United States workerand which are essential to the success-ful performance of services by the P–1,P–2, alien. Such alien must have appro-priate qualifications to perform theservices, critical knowledge of the spe-cific services to be performed, and ex-perience in providing such support tothe P–1, P–2, or P–3 alien.

Group means two or more persons es-tablished as one entity or unit to per-form or to provide a service.

Internationally recognized means hav-ing a high level of achievement in afield evidenced by a degree of skill andrecognition substantially above thatordinarily encountered, to the extentthat such achievement is renowned,leading, or well-known in more thanone country.

Member of a group means a personwho is actually performing the enter-tainment services.

Sponsor means an established organi-zation in the United States which willnot directly employ a P–1, P–2, or P–3alien but will assume responsibility forthe accuracy of the terms and condi-tions specified in the petition.

Team means two or more persons or-ganized to perform together as a com-petitive unit in a competitive event.


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(4) Petition for an internationally recog-nized athlete or member of an internation-ally recognized entertainment group (P–1)—(i) Types of classification—(A) P–1classification as an athlete in an individ-ual capacity. A P–1 classification maybe granted to an alien who is an inter-nationally recognized athlete based onhis or her own reputation and achieve-ments as an individual. The alien mustbe coming to the United States to per-form services which require an inter-nationally recognized athlete.

(B) P–1 classification as a member of anentertainment group or an athletic team.An entertainment group or athleticteam consists of two or more personswho function as a unit. The entertain-ment group or athletic team as a unitmust be internationally recognized asoutstanding in the discipline and mustbe coming to perform services whichrequire an internationally recognizedentertainment group or athletic team.A person who is a member of an inter-nationally recognized entertainmentgroup or athletic team may be grantedP–1 classification based on that rela-tionship, but may not perform servicesseparate and apart from the entertain-ment group or athletic team. An enter-tainment group must have been estab-lished for a minimum of 1 year, and 75percent of the members of the groupmust have been performing entertain-ment services for the group for a mini-mum of 1 year.

(ii) Criteria and documentary require-ments for P–1 athletes—(A) General. A P–1 athlete must have an internationallyrecognized reputation as an inter-national athlete or he or she must be amember of a foreign team that is inter-nationally recognized. The athlete orteam must be coming to the UnitedStates to participate in an athleticcompetition which has a distinguishedreputation and which requires partici-pation of an athlete or athletic teamthat has an international reputation.

(B) Evidentiary requirements for aninternationally recognized athlete or ath-letic team. A petition for an athleticteam must be accompanied by evidencethat the team as a unit has achievedinternational recognition in the sport.Each member of the team is accordedP–1 classification based on the inter-national reputation of the team. A pe-

tition for an athlete who will competeindividually or as a member of a U.S.team must be accompanied by evidencethat the athlete has achieved inter-national recognition in the sport basedon his or her reputation. A petition fora P–1 athlete or athletic team shall in-clude:

(1) A tendered contract with a majorUnited States sports league or team, ora tendered contract in an individualsport commensurate with internationalrecognition in that sport, if such con-tracts are normally executed in thesport, and

(2) Documentation of at least two ofthe following:

(i) Evidence of having participated toa significant extent in a prior seasonwith a major United States sportsleague;

(ii) Evidence of having participatedin international competition with a na-tional team;

(iii) Evidence of having participatedto a significant extent in a prior seasonfor a U.S. college or university inintercollegiate competition;

(iv) A written statement from an offi-cial of the governing body of the sportwhich details how the alien or team isinternationally recognized;

(v) A written statement from a mem-ber of the sports media or a recognizedexpert in the sport which details howthe alien or team is internationallyrecognized;

(vi) Evidence that the individual orteam is ranked if the sport has inter-national rankings; or

(vii) Evidence that the alien or teamhas received a significant honor oraward in the sport.

(iii) Criteria and documentary require-ments for members of an internationallyrecognized entertainment group—(A) Gen-eral. A P–1 classification shall be ac-corded to an entertainment group toperform as a unit based on the inter-national reputation of the group. Indi-vidual entertainers shall not be ac-corded P–1 classification to performseparate and apart from a group. Ex-cept as provided in paragraph(p)(4)(iii)(C)(2) of this section, it mustbe established that the group has beeninternationally recognized as outstand-ing in the discipline for a sustained andsubstantial period of time. Seventy-


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five percent of the members of thegroup must have had a sustained andsubstantial relationship with the groupfor at least 1 year and must providefunctions integral to the group’s per-formance.

(B) Evidentiary criteria for members ofinternationally recognized entertainmentgroups. A petition for P–1 classificationfor the members of an entertainmentgroup shall be accompanied by:

(1) Evidence that the group has beenestablished and performing regularlyfor a period of at least 1 year;

(2) A statement from the petitionerlisting each member of the group andthe exact dates for which each memberhas been employed on a regular basisby the group; and

(3) Evidence that the group has beeninternationally recognized in the dis-cipline for a sustained and substantialperiod of time. This may be dem-onstrated by the submission of evi-dence of the group’s nomination or re-ceipt of significant internationalawards or prices for outstandingachievement in its field or by three ofthe following different types of docu-mentation:

(i) Evidence that the group has per-formed, and will perform, as a starringor leading entertainment group in pro-ductions or events which have a distin-guished reputation as evidenced bycritical reviews, advertisements, pub-licity releases, publications, contracts,or endorsements;

(ii) Evidence that the group hasachieved international recognition andacclaim for outstanding achievementin its field as evidenced by reviews inmajor newspapers, trade journals, mag-azines, or other published material;

(iii) Evidence that the group has per-formed, and will perform, services as aleading or starring group for organiza-tions and establishments that have adistinguished reputation evidenced byarticles in newspapers, trade journals,publications, or testimonials;

(iv) Evidence that the group has arecord of major commercial or criti-cally acclaimed successes, as evidencedby such indicators as ratings; standingin the field; box office receipts; record,cassette, or video sales; and otherachievements in the field as reported

in trade journals, major newspapers, orother publications;

(v) Evidence that the group hasachieved significant recognition forachievements from organizations, crit-ics, government agencies, or other rec-ognized experts in the field. Suchtestimonials must be in a form thatclearly indicates the author’s author-ity, expertise, and knowledge of thealien’s achievements; or

(vi) Evidence that the group has ei-ther commanded a high salary or willcommand a high salary or other sub-stantial remuneration for servicescomparable to other similarly situatedin the field as evidenced by contractsor other reliable evidence.

(C) Special provisions for certain enter-tainment groups—(1) Alien circus person-nel. The 1-year group membership re-quirement and the international rec-ognition requirement are not applica-ble to alien circus personnel who per-form as part of a circus or circus group,or who constitute an integral and es-sential part of the performance of suchcircus or circus group, provided thatthe alien or aliens are coming to join acircus that has been recognized nation-ally as outstanding for a sustained andsubstantial period of time or as part ofsuch a circus.

(2) Certain nationally known entertain-ment groups. The Director may waivethe international recognition require-ment in the case of an entertainmentgroup which has been recognized na-tionally as being outstanding in its dis-cipline for a sustained and substantialperiod of time in consideration of spe-cial circumstances. An example of aspecial circumstances would be whenan entertainment group may find itdifficult to demonstrate recognition inmore than one country due to such fac-tors as limited access to news media orconsequences of geography.

(3) Waiver of 1-year relationship in exi-gent circumstances. The Director maywaive the 1-year relationship require-ment for an alien who, because of ill-ness or unanticipated and exigent cir-cumstances, replaces an essentialmember of a P–1 entertainment groupor an alien who augments the group byperforming a critical role. The Depart-ment of State is hereby delegated the


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8 CFR Ch. I (1–1–98 Edition)§ 214.2

authority to waive the 1-year relation-ship requirement in the case of con-sular substitutions involving P–1 enter-tainment groups.

(iv) P–1 classification as an essentialsupport alien—(A) General. An essentialsupport alien as defined in paragraph(p)(3) of this section may be granted P–1 classification based on a support rela-tionship with an individual P–1 athlete,P–1 athletic team, or a P–1 entertain-ment group.

(B) Evidentiary criteria for a P–1 essen-tial support petition. A petition for P–1essential support personnel must be ac-companied by:

(1) A consultation from a labor orga-nization with expertise in the area ofthe alien’s skill;

(2) A statement describing thealien(s) prior essentiality, criticalskills, and experience with the prin-cipal alien(s); and

(3) A copy of the written contract ora summary of the terms of the oralagreement between the alien(s) and theemployer.

(5) Petition for an artist or entertainerunder a reciprocal exchange program (P–2)—(i) General. (A) A P–2 classificationshall be accorded to artists or enter-tainers, individually or as a group, whowill be performing under a reciprocalexchange program which is between anorganization or organizations in theUnited States, which may include amanagement organization, and an or-ganization or organizations in one ormore foreign states and which providesfor the temporary exchange of artistsand entertainers, or groups of artistsand entertainers.

(B) The exchange of artists or enter-tainers shall be similar in terms of cal-iber of artists or entertainers, termsand conditions of employment, such aslength of employment, and numbers ofartists or entertainers involved in theexchange. However, this requirementdoes not preclude an individual forgroup exchange.

(C) An alien who is an essential sup-port person as defined in paragraph(p)(3) of this section may be accordedP–2 classification based on a supportrelationship to a P–2 artist or enter-tainer under a reciprocal exchange pro-gram.

(ii) Evidentiary requirements for peti-tion involving a reciprocal exchange pro-gram. A petition for P–2 classificationshall be accompanied by:

(A) A copy of the formal reciprocalexchange agreement between the U.S.organization or organizations whichsponsor the aliens and an organizationor organizations in a foreign countrywhich will receive the U.S. artist or en-tertainers;

(B) A statement from the sponsoringorganization describing the reciprocalexchange of U.S. artists or entertainersas it relates to the specific petition forwhich P–2 classification is beingsought;

(C) Evidence that an appropriatelabor organization in the United Stateswas involved in negotiating, or hasconcurred with, the reciprocal ex-change of U.S. and foreign artists orentertainers; and

(D) Evidence that the aliens forwhom P–2 classification is being soughtand the U.S. artists or entertainerssubject to the reciprocal exchangeagreement are artists or entertainerswith comparable skills, and that theterms and conditions of employmentare similar.

(iii) P–2 classification as an essentialsupport alien—(A) General. An essentialsupport alien as defined in paragraph(p)(3) of this section may be granted P–2 classification based on a support rela-tionship with a P–2 entertainer or P–2entertainment group.



(2) A statement describing thealien(s) prior essentiality, criticalskills, and experience with the prin-cipal alien(s); and


(6) Petition for an artist or entertainerunder a culturally unique program—(i)General. (A) A P–3 classification may beaccorded to artists or entertainers, in-dividually or as a group, coming to the


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United States for the purpose of devel-oping, interpreting, representing,coaching, or teaching a unique or tra-ditional ethnic, folk, cultural, musical,theatrical, or artistic performance orpresentation.

(B) The artist or entertainer must becoming to the United States to partici-pate in a cultural event or eventswhich will further the understandingor development of his or her art form.The program may be of a commercialor noncommercial nature.

(ii) Evidentiary criteria for a petitioninvolving a culturally unique program. Apetition for P–3 classification shall beaccompanied by:

(A) Affidavits, testimonials, or let-ters from recognized experts attestingto the authenticity of the alien’s or thegroup’s skills in performing, present-ing, coaching, or teaching the uniqueor traditional art form and giving thecredentials of the expert, including thebasis of his or her knowledge of thealien’s or group’s skill, or

(B) Documentation that the perform-ance of the alien or group is culturallyunique, as evidence by reviews in news-papers, journals, or other publishedmaterials; and

(C) Evidence that all of the perform-ances or presentations will be cul-turally unique events.

(iii) P–3 classification as an essentialsupport alien—(A) General. An essentialsupport alien as defined in paragraph(p)(3) of this section may be granted P–3 classification based on a support rela-tionship with a P–3 entertainer or P–3entertainment group.



(2) A statement describing thealien(s) prior essentiality, criticalskills and experience with the principalalien(s); and


(7) Consultation—(i) General. (A) Con-sultation with an appropriate labor or-ganization regarding the nature of the

work to be done and the alien’s quali-fications is mandatory before a peti-tion for P–1, P–2, or P–3 classificationcan be approved.

(B) Except as provided in paragraph(p)(7)(i)(E) of this section, evidence ofconsultation shall be a written advi-sory opinion from an appropriate labororganization.

(C) Except as provided in paragraph(p)(7)(i)(E) of this section, the peti-tioner shall obtain a written advisoryopinion from an appropriate labor or-ganization. The advisory opinion shallbe submitted along with the petitionwhen the petition is filed. If the advi-sory opinion is not favorable to the pe-titioner, the advisory opinion must setforth a specific statement of factswhich support the conclusion reachedin the opinion. Advisory opinions mustbe submitted in writing and signed byan authorized official of the organiza-tion.

(D) Except as provided in paragraph(p)(7)(i) (E) and (F) of this section,written evidence of consultation shallbe included in the record of every ap-proved petition. Consultations are ad-visory and are not binding on the Serv-ice.

(E) In a case where the Service hasdetermined that a petition merits ex-peditious handling, the Service shallcontact the labor organization and re-quest an advisory opinion if one is notsubmitted by the petitioner. The labororganization shall have 24 hours to re-spond to the Service’s request. TheService shall adjudicate the petitionafter receipt of the response from thelabor organization. The labor organiza-tion shall then furnish the Service witha written advisory opinion within 5working days of the request. If thelabor organization fails to respondwithin 24 hours, the Service shallrender a decision on the petition with-out the advisory opinion.

(F) In those cases where it is estab-lished by the petitioner that an appro-priate labor organization does notexist, the Service shall render a deci-sion on the evidence of record.

(ii) Consultation requirements for P–1athletes and entertainment groups. Con-sultation with a labor organizationthat has expertise in the area of thealien’s sport or entertainment field is


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required in the case of a P–1 petition. Ifthe advisory opinion is not favorable tothe petitioner, the advisory opinionmust set forth a specific statement offacts which support the conclusionreached in the opinion. If the advisoryopinion provided by the labor organiza-tion is favorable to the petitioner itshould evaluate and/or describe thealien’s or group’s ability and achieve-ments in the field of endeavor, com-ment on whether the alien or group isinternationally recognized for achieve-ments, and state whether the servicesthe alien or group is coming to performare appropriate for an internationallyrecognized athlete or entertainmentgroup. In lieu of the above, a labor or-ganization may submit a letter of noobjection if it has no objection to theapproval of the petition.

(iii) Consultation requirements for P–1circus personnel. The advisory opinionprovided by the labor organizationshould comment on whether the circuswhich will employ the alien has na-tional recognition as well as any otheraspect of the beneficiary’s or bene-ficiaries’ qualifications which the labororganization deems appropriate. If theadvisory opinion is not favorable to thepetitioner, it must set forth a specificstatement of facts which support theconclusion reached in the opinion. Inlieu of the above, a labor organizationmay submit a letter of no objection ifit has no objection to the approval ofthe petition.

(iv) Consultation requirements for P–2alien in a reciprocal exchange program.In P–2 petitions where an artist or en-tertainer is coming to the UnitedStates under a reciprocal exchange pro-gram, consultation with the appro-priate labor organization is required toverify the existence of a viable ex-change program. The advisory opinionfrom the labor organization shall com-ment on the bona fides of the recip-rocal exchange program and specifywhether the exchange meets the re-quirements of paragraph (p)(5) of thissection. If the advisory opinion is notfavorable to the petitioner, it mustalso set forth a specific statement offacts which support the conclusionreached in the opinion.

(v) Consultation requirements for P–3 ina culturally unique program. Consulta-

tion with an appropriate labor organi-zation is required for P–3 petitions in-volving aliens in culturally unique pro-grams. If the advisory opinion is favor-able to the petitioner, it should evalu-ate the cultural uniqueness of thealien’s skills, state whether the eventsare cultural in nature, and statewhether the event or activity is appro-priate for P–3 classification. If the ad-visory opinion is not favorable to thepetitioner, it must also set forth a spe-cific statement of facts which supportthe conclusion reached in the opinion.In lieu of the above, a labor organiza-tion may submit a letter of no objec-tion if it has no objection to the ap-proval of the petition.

(vi) Consultation requirements for es-sential support aliens. Written consulta-tion on petitions for P–1, P–2, or P–3 es-sential support aliens must be madewith a labor organization with exper-tise in the skill area involved. If theadvisory opinion provided by the labororganization is favorable to the peti-tioner, it must evaluate the alien’s es-sentiality to and working relationshipwith the artist or entertainer, andstate whether United States workersare available who can perform the sup-port services. If the advisory opinion isnot favorable to the petitioner, it mustalso set forth a specific statement offacts which support the conclusionreached in the opinion. A labor organi-zation may submit a letter of no objec-tion if it has no objection to the ap-proval of the petition.

(vii) Labor organizations agreeing toprovide consultations. The Service shalllist in its Operations Instructions for Pclassification those organizationswhich have agreed to provide advisoryopinions to the Service and/or petition-ers. The list will not be an exclusive orexhaustive list. The Service and peti-tioners may use other sources, such aspublications, to identify appropriatelabor organizations. The Service willalso list in its Operations Instructionsthose occupations or fields of endeavorwhere it has been determined by theService that no appropriate labor orga-nization exists.

(8) Approval and validity of petition—(i) Approval. The Director shall con-sider all the evidence submitted andsuch other evidence as he or she may


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independently require to assist in hisor her adjudication. The Director shallnotify the petitioner of the approval ofthe petition on Form I–797, Notice ofAction. The approval notice shall in-clude the alien beneficiary’s name andclassification and the petition’s periodof validity.

(ii) Recording the validity of petitions.Procedures for recording the validityperiod of petitions are:

(A) If a new P petition is approvedbefore the date the petitioner indicatesthe services will begin, the approvedpetition and approval notice shall showthe actual dates requested by the peti-tioner as the validity period, not to ex-ceed the limit specified in paragraph(p)(8)(iii) of this section or other Serv-ice policy.

(B) If a new P petition is approvedafter the date the petitioner indicatesthe services will begin, the approvedpetition and approval notice shall gen-erally show a validity period commenc-ing with the date of approval and end-ing with the date requested by the peti-tioner, not to exceed the limit specifiedin paragraph (p)(8)(iii) of this sectionor other Service policy.

(C) If the period of services requestedby the petitioner exceeds the limitspecified in paragraph (p)(8)(iii) of thissection, the petition shall be approvedonly up to the limit specified in thatparagraph.

(iii) Validity. The approval period of aP petition shall conform to the limitsprescribed as follows:

(A) P–1 petition for athletes. An ap-proved petition for an individual ath-lete classified under section101(a)(15)(P)(i) of the Act shall be validfor a period up to 5 years. An approvedpetition for an athletic team classifiedunder section 101(a)(15)(P)(i) of the Actshall be valid for a period of time de-termined by the Director to completethe competition or event for which thealien team is being admitted, not to ex-ceed 1 year.

(B) P–1 petition for an entertainmentgroup. An approved petition for an en-tertainment group classified under sec-tion 101(a)(15)(P)(i) of the Act shall bevalid for a period of time determinedby the Director to be necessary to com-plete the performance or event for

which the group is being admitted, notto exceed 1 year.

(C) P–2 and P–3 petitions for artists orentertainers. An approved petition foran artist or entertainer under section101(a)(15)(P)(ii) or (iii) of the Act shallbe valid for a period of time deter-mined by the Director to be necessaryto complete the event, activity, or per-formance for which the P–2 or P–3 alienis admitted, not to exceed 1 year.

(D) Spouse and dependents. The spouseand unmarried minor children of a P–1,P–2, or P–3 alien beneficiary are enti-tled to P–4 nonimmigrant classifica-tion, subject to the same period of ad-mission and limitations as the alienbeneficiary, if they are accompanyingor following to join the alien bene-ficiary in the United States. Neitherthe spouse nor a child of the alien ben-eficiary may accept employment un-less he or she has been granted employ-ment authorization.

(E) Essential support aliens. Petitionsfor essential support personnel to P–1,P–2, and P–3 aliens shall be valid for aperiod of time determined by the Di-rector to be necessary to complete theevent, activity, or performance forwhich the P–1, P–2, or P–3 alien is ad-mitted, not to exceed 1 year.

(9) Denial of petition—(i) Notice of in-tent to deny. When an adverse decisionis proposed on the basis of derogatoryinformation of which the petitioner isunaware, the Director shall notify thepetitioner of the intent to deny the pe-tition and the basis for the denial. Thepetitioner may inspect and rebut theevidence and will be granted a period of30 days from the date of the notice inwhich to do so. All relevant rebuttalmaterial will be considered in makinga final decision.

(ii) Notice of denial. The petitionershall be notified of the decision, thereasons for the denial, and the right toappeal the denial under 8 CFR part 103.There is no appeal from a decision todeny an extension of stay to the alienor a change of nonimmigrant status.

(10) Revocation of approval of peti-tion—(i) General. (A) The petitionershall immediately notify the Service ofany changes in the terms and condi-tions of employment of a beneficiary


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which may affect eligibility under sec-tion 101(a)(15)(P) of the Act and para-graph (p) of this section. An amendedpetition should be filed when the peti-tioner continues to employ the bene-ficiary. If the petitioner no longer em-ploys the beneficiary, the petitionershall send a letter explaining thechange(s) to the Director who approvedthe petition.

(B) The Director may revoke a peti-tion at any time, even after the valid-ity of the petition has expired.

(ii) Automatic revocation. The ap-proval of an unexpired petition is auto-matically revoked if the petitioner, orthe employer in a petition filed by anagent, goes out of business, files a writ-ten withdrawal of the petition, or noti-fies the Service that the beneficiary isno longer employed by the petitioner.

(iii) Revocation on notice—(A) Groundsfor revocation. The Director shall sendto the petitioner a notice of intent torevoke the petition in relevant part ifhe or she finds that:

(1) The beneficiary is no longer em-ployed by the petitioner in the capac-ity specified in the petition;

(2) The statement of facts containedin the petition were not true and cor-rect;

(3) The petitioner violated the termsor conditions of the approved petition;

(4) The petitioner violated require-ments of section 101(a)(15)(P) of the Actor paragraph (p) of this section; or

(5) The approval of the petition vio-lated paragraph (p) of this section orinvolved gross error.

(B) Notice and decision. The notice ofintent to revoke shall contain a de-tailed statement of the grounds for therevocation and the time period allowedfor the petitioner’s rebuttal. The peti-tioner may submit evidence in rebuttalwithin 30 days of the date of the notice.The Director shall consider all relevantevidence presented in deciding whetherto revoke the petition.

(11) Appeal of a denial or a revocationof a petition—(i) Denial. A denied peti-tion may be appealed under 8 CFR part103.

(ii) Revocation. A petition that hasbeen revoked on notice may be ap-pealed under 8 CFR part 103. Automaticrevocations may not be appealed.

(12) Admission. A beneficiary may beadmitted to the United States for thevalidity period of the petition, plus aperiod of up to 10 days before the valid-ity period begins and 10 days after thevalidity period ends. The beneficiarymay not work except during the valid-ity period of the petition.

(13) Extension of visa petition validity.The petitioner shall file a request toextend the validity of the original peti-tion under section 101(a)(15)(P) of theAct on Form I–129 in order to continueor complete the same activity or eventspecified in the original petition. Sup-porting documents are not required un-less requested by the Director. A peti-tion extension may be filed only if thevalidity of the original petition has notexpired.

(14) Extension of stay—(i) Extensionprocedure. The petitioner shall requestextension of the alien’s stay to con-tinue or complete the same event oractivity by filing Form I–129, accom-panied by a statement explaining thereasons for the extension. The peti-tioner must also request a petition ex-tension. The extension dates shall bethe same for the petition and the bene-ficiary’s stay. The beneficiary must bephysically present in the United Statesat the time the extension of stay isfiled. Even though the requests to ex-tend the petition and the alien’s stayare combined on the petition, the Di-rector shall make a separate deter-mination on each. If the alien leavesthe United States for business or per-sonal reasons while the extension re-quests are pending, the petitioner mayrequest the Director to cable notifica-tion of approval of the petition exten-sion to the consular office abroadwhere the alien will apply for a visa.

(ii) Extension periods—(A) P–1 individ-ual athlete. An extension of stay for aP–1 individual athlete and his or heressential support personnel may be au-thorized for a period up to 5 years for atotal period of stay not to exceed 10years.

(B) Other P–1, P–2, and P–3 aliens. Anextension of stay may be authorized inincrements of 1 year for P–1 athleticteams, entertainment groups, aliens inreciprocal exchange programs, aliensin culturally unique programs, andtheir essential support personnel to


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continue or complete the same event oractivity for which they were admitted.

(15) Effect of approval of a permanentlabor certification or filing of a preferencepetition on P classification. The approvalof a permanent labor certification orthe filing of a preference petition foran alien shall not be a basis for deny-ing a P petition, a request to extendsuch a petition, or the alien’s admis-sion, change of status, or extension ofstay. The alien may legitimately cometo the United States for a temporaryperiod as a P nonimmigrant and departvoluntarily at the end of his or her au-thorized stay and, at the same time,lawfully seek to become a permanentresident of the United States. This pro-vision does not include essential sup-port personnel.

(16) Effect of a strike—(i) If the Sec-retary of Labor certifies to the Com-missioner that a strike or other labordispute involving a work stoppage ofworkers is in progress in the occupa-tion at the place where the beneficiaryis to be employed, and that the em-ployment of the beneficiary would ad-versely affect the wages and workingconditions of U.S. citizens and lawfulresident workers:

(A) A petition to classify an alien asa nonimmigrant as defined in section101(a)(15)(P) of the Act shall be denied;or

(B) If a petition has been approved,but the alien has not yet entered theUnited States, or has entered theUnited States but has not commencedemployment, the approval of the peti-tion is automatically suspended, andthe application for admission of thebasis of the petition shall be denied.

(ii) If there is a strike or other labordispute involving a work stoppage ofworkers in progress, but such strike orother labor dispute is not certifiedunder paragraph (p)(16)(i) of this sec-tion, the Commissioner shall not denya petition or suspend an approved peti-tion.

(iii) If the alien has already com-menced employment in the UnitedStates under an approved petition andis participating in a strike or labor dis-pute involving a work stoppage ofworkers, whether or not such strike orother labor dispute has been certifiedby the Secretary of Labor, the alien

shall not be deemed to be failing tomaintain his or her status solely on ac-count of past, present, or future par-ticipation in a strike or other labordispute involving a work stoppage ofworkers but is subject to the followingterms and conditions:

(A) The alien shall remain subject toall applicable provisions of the Immi-gration and Nationality Act and regu-lations promulgated thereunder in thesame manner as all other P non-immigrant aliens;


(C) Although participation by a Pnonimmigrant alien in a strike orother labor dispute involving a workstoppages of workers will not con-stitute a ground for deportation, analien who violates his or her status orwho remains in the United States afterhis or her authorized period of stay hasexpired, will be subject to deportation.

(17) Use of approval of notice, Form I–797. The Service has notify the peti-tioner on Form I–797 whenever a visapetition or an extension of a visa peti-tion is approved under the P classifica-tion. The beneficiary of a P petitionwho does not require a nonimmigrantvisa may present a copy of the ap-proved notice at a Port-of-Entry to fa-cilitate entry into the United States. Abeneficiary who is required to present avisa for admission, and whose visa ex-pired before the date of his or her in-tended return, may use Form I–797 toapply for a new or revalidated visa dur-ing the validity period of the petition.The copy of Form I–797 shall be re-tained by the beneficiary and presentduring the validity of the petitionwhen reentering the United States toresume the same employment with thesame petitioner.

(18) Return transportation requirement.In the case of an alien who enters theUnited States under section101(a)(15)(P) of the Act and whose em-ployment terminates for reasons otherthan voluntary resignation, the em-ployer whose offer of employmentformed the basis of suh nonimmigrantstatus and the petitioner are jointly


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and severally liable for the reasonablecost of return transporation of thealien abroad. For the purposes of thisparagraph, the term ‘‘abroad’’ meansthe alien’s last place of residence priorto his or her entry into the UnitedStates.

(q) International cultural exchange vis-itor—(1) Definitions. As used in this sec-tion:

Country of nationality means thecountry of which the participant was anational at the time of the petitionseeking international cultural ex-change visitor status for him or her.

Doing business means the regular,systematic, and continuous provisionof goods and/or services (including lec-tures, seminars and other types of cul-tural programs) by a qualified em-ployer which has employees, and doesnot include the mere presence of anagent or office of the qualifying em-ployer.

Duration of program means the timein which a qualified employer is con-ducting an approved cultural exchangeprogram in the manner as establishedby the employer’s petition for programapproval, provided that the period oftime does not exceed 15 months.

International cultural exchange visitoror cultural visitor means an alien whohas a residence in a foreign countrywhich he or she has no intention ofabandoning, and who is coming tempo-rarily to the United States to take partin an international cultural exchangeprogram approved by the AttorneyGeneral.

Petitioner means the employer or itsdesignated agent who has been em-ployed by the qualified employer on apermanent basis in an executive ormanagerial capacity. The designatedagent must be a United States citizen,an alien lawfully admitted for perma-nent residence, or an alien providedtemporary residence status under sec-tions 210 or 245A of the Act.

Qualified employer means a UnitedStates or foreign firm, corporation,non-profit organization, or other legalentity (including its U.S. branches,subsidiaries, affiliates, and franchises)which administers an internationalcultural exchange program designatedby the Attorney General in accordance

with the provisions of section101(a)(15)(Q) of the Act.

(2) Admission of cultural visitor—(i)General. A nonimmigrant alien may beauthorized to enter the United Statesas a participant in an internationalcultural exchange program approved bythe Attorney General for the purposeof providing practical training, em-ployment, and the sharing of the his-tory, culture, and traditions of thecountry of the alien’s nationality. Theperiod of admission is the duration ofthe approved international cultural ex-change program or fifteen (15) months,whichever is shorter. A nonimmigrantalien admitted under this provision isclassifiable as a cultural visitor in Qstatus.

(ii) Limitation on admission. Any alienwho has been admitted into the UnitedStates as a cultural visitor under sec-tion 101(a)(15)(Q) of the Act shall not bereadmittted in Q status unless thealien has resided and been physicallypresent outside the United States forthe immediate prior year. Brief trips tothe United States for pleasure or busi-ness during the immediate prior yeardo not break the continuity of the one-year foreign residency.

(3) International cultural exchange pro-gram—(i) General. A United States em-ployer shall petition the Attorney Gen-eral on Form I–129, Petition for a Non-immigrant Worker, for approval of aninternational cultural exchange pro-gram which is designed to provide anopportunity for the American public tolearn about foreign cultures. TheUnited States employer must simulta-neously petition on the same Form I–129 for the authorization for one ormore individually identified non-immigrant aliens to be admitted in Qstatus. These aliens are to be admittedto engage in employment or training ofwhich the essential element is thesharing with the American public, or asegment of the public sharing a com-mon cultural interest, of the culture ofthe alien’s country of nationality. Thecultural visitor’s eligibility for admis-sion will be considered only if theinternational cultural exchange pro-gram is approved.

(ii) Program validity. Each petition foran international cultural exchange pro-gram will be approved for the duration


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of the program, which may not exceed15 months, plus 30 days to allow timefor the participants to make travel ar-rangements. Subsequent to the ap-proval of the initial petition, a new pe-tition must be filed each time thequalified employer wishes to bring inadditional cultural visitors. A qualifiedemployer may replace or substitute aparticipant named on a previously ap-proved petition for the remainder ofthe program in accordance with para-graph (q)(6) of this section. The re-placement or substituting alien may beadmitted in Q status until the expira-tion date of the approved petition.

(iii) Requirements for program ap-proval. An international cultural ex-change program must meet all of thefollowing requirements:

(A) Accessibility to the public. Theinternational cultural exchange pro-gram must take place in a school, mu-seum, business or other establishmentwhere the American public, or a seg-ment of the public sharing a commoncultural interest, is exposed to aspectsof a foreign culture as part of a struc-tured program. Activities that takeplace in a private home or an isolatedbusiness setting to which the Americanpublic, or a segment of the public shar-ing a common cultural interest, doesnot have direct access do not qualify.

(B) Cultural component. The inter-national cultural exchange programmust have a cultural component whichis an essential and integral part of thecultural visitor’s employment or train-ing. The cultural component must bedesigned, on the whole, to exhibit orexplain the attitude, customs, history,heritage, philosophy, or traditions ofthe cultural visitor’s country of na-tionality. A cultural component mayinclude structured instructional activi-ties such as seminars, courses, lectureseries, or language camps.

(C) Work component. The culturalvisitor’s employment or training in theUnited States may not be independentof the cultural component of the inter-national cultural exchange program.The work component must serve as thevehicle to achieve the objectives of thecultural component. The sharing of theculture of the cultural visitor’s coun-try of nationality must result from hisor her employment or training with

the qualified employer in the UnitedStates.

(iv) Requirements for cultural visitors.To be eligible for cultural visitor sta-tus, an alien must be a bona fide non-immigrant who:

(A) Is at least 18 years of age at thetime the petition is filed;

(B) Is qualified to perform the serviceor labor or receive the type of trainingstated in the petition;

(C) Has the ability to communicateeffectively about the cultural at-tributes of his or her country of na-tionality to the American public; and

(D) Has resided and been physicallypresent outside of the United States forthe immediate prior year, if he or shewas previously admitted as a culturalvisitor.

(4) Supporting documentation—(i) Doc-umentation by the employer. To establisheligibility as a qualified employer, thepetitioner must submit with the com-pleted Form I–129 appropriate evidencethat the employer:

(A) Maintains an established inter-national cultural exchange program inaccordance with the requirements setforth in paragraph (q)(3) of this section;

(B) Has designated a qualified em-ployee as a representative who will beresponsible for administering the inter-national cultural exchange programand who will serve as liaison with theImmigration and Naturalization Serv-ice;

(C) Is actively doing business in theUnited States;

(D) Will offer the alien(s) wages andworking conditions comparable tothose accorded local domestic workerssimilarly employed; and

(E) Has the financial ability to remu-nerate the participant(s).

(ii) Certification by petitioner. (A) Thepetitioner must give the date of birth,country of nationality, level of edu-cation, position title, and a brief jobdescription for each cultural visitor in-cluded in the petition. The petitionermust verify and certify that the pro-spective participants are qualified toperform the service or labor, or receivethe type of training, described in thepetition.

(B) The petitioner must report thecultural visitors’ wages and certifythat such cultural exchange visitors


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are offered wages and working condi-tions comparable to those accorded tolocal domestic workers similarly em-ployed.

(iii) Supporting documentation asprescribed in paragraphs (q)(4)(i) and(q)(4)(ii) of this section must accom-pany a petition filed on Form I–129 inall cases except where the employerfiles multiple petitions in the same cal-endar year. When petitioning to repeata previously approved cultural ex-change program, a copy of the initialprogram approval notice may be sub-mitted in lieu of the documentation re-quired under paragraph (q)(4)(i) of thissection. The Service will request addi-tional documentation only when clari-fication is needed.

(5) Filing of petitions—(i) General. AUnited States employer seeking tobring in cultural visitors must file apetition on Form I-129, Petition for aNonimmigrant Worker, with the appli-cable fee, along with appropriate docu-mentation. The petition and accom-panying documentation should be filedwith either the service center havingjurisdiction over the employer’s head-quarters or the service center havingjurisdiction over the area where thecultural visitors will perform servicesor labor or will receive training. A newpetition on Form I–129, with the appli-cable fee, must be filed with the appro-priate service center each time a quali-fied employer wants to bring in addi-tional cultural visitors. Each personnamed on an approved petition will beadmitted only for the duration of theapproved program. Replacement orsubstitution may be made for any per-son named on an approved petition asprovided in paragraph (q)(6) of this sec-tion, but only for the remainder of theapproved program.

(ii) Petition for multiple participants.The petitioner may include more thanone participant on the petition. The pe-titioner shall include the name, date ofbirth, nationality, and other identify-ing information required on the peti-tion for each participant. The peti-tioner must also indicate the UnitedStates consulate at which each partici-pant will apply for a Q visa. For par-ticipants who are visa-exempt under 8CFR 212.1(a), the petitioner must indi-cate the port of entry at which each

participant will apply for admission tothe United States.

(iii) Service, labor, or training in morethan one location. A petition which re-quires the cultural visitor to engage inemployment or training (with the sameemployer) in more than one locationmust include an itinerary with thedates and locations of the services,labor, or training.

(iv) Services, labor, or training for morethan one employer. If the cultural visi-tor will perform services or labor for,or receive training from, more thanone employer, each employer must filea separate petition with the servicecenter having jurisdiction over thearea where the alien will perform serv-ices or labor, or receive training. Thecultural visitor may work part-timefor multiple employers provided thateach employer has an approved peti-tion for the alien.

(v) Change of employers. If a culturalvisitor is in the United States undersection 101(a)(15)(Q) of the Act and de-cides to change employers, the new em-ployer must file a petition. However,the total period of time the culturalvisitor may stay in the United Statesremains limited to fifteen (15) months.

(6) Substitution or replacement of par-ticipants. The petitioner may substitutefor or replace a person named on a pre-viously approved petition for the re-mainder of the program without filinga new Form I–129. The substituting cul-tural visitor must meet the qualifica-tion requirements prescribed in para-graph (q)(3)(iv) of this section. To re-quest substitution or replacement, thepetitioner shall, by letter, notify theconsular office at which the alien willapply for a visa or, in the case of visa-exempt aliens, the Service office at theport of entry where the alien will applyfor admission. A copy of the petition’sapproval notice must be included withthe letter. The petitioner must statethe date of birth, country of national-ity, level of education, and positiontitle of each prospective cultural visi-tor and must certify that each is quali-fied to perform the service or labor orreceive the type of training describedin the approved petition. The peti-tioner must also indicate each cultural


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visitor’s wages and certify that the cul-tural visitor is offered wages and work-ing conditions comparable to those ac-corded to local domestic workers in ac-cordance with paragraph (q)(11)(ii) ofthis section.

(7) Approval of petition—(i) The direc-tor shall consider all the evidence sub-mitted and request other evidence ashe or she may deem necessary.

(ii) The director shall notify the peti-tioner and the appropriate UnitedStates consulate(s) of the approval of apetition. For participants who are visa-exempt under 8 CFR 212.1(a), the direc-tor shall give notice of the approval tothe director of the port of entry atwhich each such participant will applyfor admission to the United States. Thenotice of approval shall include thename of the cultural visitors, theirclassification, and the petition’s periodof validity.

(iii) An approved petition for an alienclassified under section 101(a)(15)(Q) ofthe Act is valid for the length of theapproved program or fifteen (15)months, whichever is shorter.

(iv) A petition shall not be approvedfor an alien who has an aggregate offifteen (15) months in the United Statesunder section 101(a)(15)(Q) of the Act,unless the alien has resided and beenphysically present outside the UnitedStates for the immediate prior year.

(8) Denial of the petition—(i) Notice ofdenial. The petitioner shall be notifiedof the denial of a petition, the reasonsfor the denial, and the right to appealthe denial under part 103 of this chap-ter.

(ii) Multiple participants. A petitionfor multiple cultural visitors may bedenied in whole or in part.

(9) Revocation of approval of petition—(i) General. The petitioner shall imme-diately notify the appropriate Servicecenter of any changes in the employ-ment of a participant which would af-fect eligibility under paragraph (q) ofthis section.

(ii) Automatic revocation. The ap-proval of any petition is automaticallyrevoked if the qualifying employergoes out of business, files a writtenwithdrawal of the petition, or termi-nates the approved international cul-tural exchange program prior to its ex-piration date.

(iii) Revocation on notice. The directorshall send the petitioner a notice of in-tent to revoke the petition in whole orin part if he or she finds that:

(A) The cultural visitor is no longeremployed by the petitioner in the ca-pacity specified in the petition, or ifthe cultural visitor is no longer receiv-ing training as specified in the peti-tion;

(B) The statement of facts containedin the petition was not true and cor-rect;

(C) The petitioner violated the termsand conditions of the approved peti-tion; or

(D) The Service approved the petitionin error.

(iv) Notice and decision. The notice ofintent to revoke shall contain a de-tailed statement of the grounds for therevocation and the period of time al-lowed for the petitioner’s rebuttal. Thepetitioner may submit evidence in re-buttal within 30 days of receipt of thenotice. The director shall consider allrelevant evidence presented in decidingwhether to revoke the petition inwhole or in part. If the petition is re-voked in part, the remainder of the pe-tition shall remain approved and a re-vised approval notice shall be sent tothe petitioner with the revocation no-tice.

(v) Appeal of a revocation of a petition.Revocation with notice of a petition inwhole or in part may be appealed tothe Associate Commissioner for Exami-nations under part 103 of this chapter.Automatic revocation may not be ap-pealed.

(10) Extension of stay. An alien’s totalperiod of stay in the United Statesunder section 101(a)(15)(Q) of the Actcannot exceed fifteen (15) months. Theauthorized stay of a cultural visitormay be extended within the 15-monthlimit if he or she is the beneficiary ofa new petition filed in accordance withparagraph (q)(3) of this section. Thenew petition, if filed by the same em-ployer, should include a copy of theprevious petition’s approval notice anda letter from the petitioner indicatingany terms and conditions of the pre-vious petition that have changed.

(11) Employment provisions—(i) Gen-eral. An alien classified under section


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101(a)(15)(Q) of the Act may be em-ployed only by the qualified employerthrough which the alien attained Qnonimmigrant status. An alien in thisclass is not required to apply for anemployment authorization document.Employment outside the specific pro-gram violates the terms of the alien’sQ nonimmigrant status within themeaning of section 241(a)(1)(C)(i) of theAct.

(ii) Wages and working conditions. Thewages and working conditions of a cul-tural visitor must be comparable tothose accorded to domestic workerssimilarly employed in the geographicalarea of the alien’s employment. Theemployer must certify on the petitionthat such conditions are met as in ac-cordance with paragraph (q)(4)(iii)(B)of this section.

(r) Religious workers—(1) General.Under section 101(a)(15)(R) of the Act,an alien who, for at least the two (2)years immediately preceding the timeof application for admission, has been amember of a religious denominationhaving a bona fide nonprofit religiousorganization in the United States, maybe admitted temporarily to the UnitedStates to carry on the activities of areligious worker for a period not to ex-ceed five (5) years. The alien must becoming to the United States for one ofthe following purposes: solely to carryon the vocation of a minister of the re-ligious denomination; to work for thereligious organization at the request ofthe organization in a professional ca-pacity; or to work for the organization,or a bona fide organization which is af-filiated with the religious denomina-tion, at the request of the organizationin a religious vocation or occupation.

(2) Definitions. As used in this sec-tion:

Bona fide nonprofit religious organiza-tion in the United States means an orga-nization exempt from taxation as de-scribed in section 501(c)(3) of the Inter-nal Revenue Code of 1986 as it relatesto religious organizations, or one thathas never sought such exemption butestablishes to the satisfaction of theService that it would be eligible there-for if it had applied for tax exempt sta-tus.

Bona fide organization which is affili-ated with the religious denomination

means an organization which is bothclosely associated with the religiousdenomination and exempt from tax-ation as described in section 501(c)(3) ofthe Internal Revenue Code of 1986 as itrelates to religious organizations.

Minister means an individual duly au-thorized by a recognized religious de-nomination to conduct religious wor-ship and to perform other duties usu-ally performed by authorized membersof the clergy of that religion. In allcases, there must be a reasonable con-nection between the activities per-formed and the religious calling of theminister. The term does not include alay preacher not authorized to performsuch duties.

Professional capacity means an activ-ity in a religious vocation or occupa-tion for which the minimum of aUnited States baccalaureate degree ora foreign equivalent degree is required.

Religious denomination means a reli-gious group or community of believershaving some form of ecclesiastical gov-ernment, a creed or statement of faith,some form of worship, a formal or in-formal code of doctrine and discipline,religious services and ceremonies, es-tablished places of religious worship,and religious congregations, or com-parable indicia of a bona fide religiousdenomination. For the purposes of thisdefinition, an interdenominational re-ligious organization which is exemptfrom taxation pursuant to section501(c)(3) of the Internal Revenue Codeof 1986 will be treated as a religious de-nomination.

Religious occupation means an activ-ity which relates to a traditional reli-gious function. Examples of persons inreligious occupations include, but arenot limited to, liturgical workers, reli-gious instructors, religious conselors,cantors, catechists, workers in reli-gious hospitals or religious health carefacilities, missionaries, religious trans-lators, or religious broadcasters. Thisgroup does not include janitors, main-tenance workers, clerks, fund raisers,or persons involved solely in the solici-tation of donations.

Religious vocation means a calling toreligious life evidenced by the dem-onstration of commitment practiced inthe religious denomination, such as thetaking of vows. Examples of persons


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with a religious vocation include, butare not limited to, nuns, monks, andreligious brothers and sisters.

(3) Initial evidence. An alien seekingclassification as a nonimmigrant reli-gious worker shall present to a UnitedStates consular officer, or, if visa ex-empt, to an immigration officer at aUnited States port of entry, docu-mentation which establishes to the sat-isfaction of the consular or immigra-tion officer that the alien will be pro-viding services to a bona fide nonprofitreligious organization in the UnitedStates or to an affiliated religious or-ganization as defined in paragraph(r)(2) of this section, and that the alienmeets the criteria to perform suchservices. If the alien is in the UnitedStates in another valid nonimmigrantclassification and desires to changenonimmigrant status to classificationas a nonimmigrant religious worker,this documentation should be pre-sented with an application for changeof status (Form I–129, Petition for aNonimmigrant Worker). The docu-mentation shall consist of:

(i) Evidence that the organizationqualifies as a non-profit organization,in the form of either:

(A) Documentation showing that it isexempt from taxation in accordancewith section 501(c)(3) of the InternalRevenue Code of 1986 as it relates to re-ligious organizations (in appropriatecases, evidence of the organization’sassets and methods of operation andthe organization’s papers of incorpora-tion under applicable State law may berequested); or

(B) Such documentation as is re-quired by the Internal Revenue Serviceto establish eligibility for exemptionunder section 501(c)(3) of the InternalRevenue Code of 1986 as it relates to re-ligious organizations; and

(ii) A letter from an authorized offi-cial of the specific organizational unitof the religious organization which willbe employing the alien or engaging thealien’s services in the United States. Ifthe alien is to be employed, this lettershould come from the organizationalunit that will maintain the alien’sForm I–9, Employment Eligibility Ver-ification, that is, the organizationalunit that is either paying the alien asalary or otherwise remunerating the

alien in exchange for services rendered.This letter must establish:

(A) That, if the alien’s religiousmembership was maintained, in wholeor in part, outside the United States,the foreign and United States religiousorganizations belong to the same reli-gious denomination;

(B) That, immediately prior to theapplication for the nonimmigrant visaor application for admission to theUnited States, the alien has the re-quired two (2) years of membership inthe religious denomination;

(C) As appropriate:(1) That, if the alien is a minister, he

or she is authorized to conduct reli-gious worship for that denominationand to perform other duties usuallyperformed by authorized members ofthe clergy of that denomination, in-cluding a detailed description of thoseduties;

(2) That, if the alien is a religiousprofessional, he or she has at least aUnited States baccalaureate degree orits foreign equivalent and that at leastsuch a degree is required for entry intothe religious profession; or

(3) That, if the alien is to work in an-other religious vocation or occupation,he or she is qualified in the religiousvocation or occupation. Evidence ofsuch qualifications may include, butneed not be limited to, evidence estab-lishing that the alien is a monk, nun,or religious brother or that the type ofwork to be done relates to a traditionalreligious function;

(D) The arrangements made, if any,for remuneration for services to be ren-dered by the alien, including theamount and source of any salary, a de-scription of any other types of remu-neration to be received (includinghousing, food, clothing, and any otherbenefits to which a monetary valuemay be affixed), and a statementwhether such remuneration shall be inexchange for services rendered;

(E) The name and location of the spe-cific organizational unit of the reli-gious organization for which the alienwill be providing services within theUnited States; and

(F) If the alien is to work in a non-ministerial and nonprofessional capac-ity for a bona fide organization which


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is affiliated with a religious denomina-tion, the existence of the affiliation;and

(iii) Any appropriate additional evi-dence which the examining officer mayrequest relating to the religious orga-nization, the alien, or the affiliated or-ganization. Such additional docu-mentation may include, but need notbe limited to, diplomas, degrees, finan-cial statements, or certificates of ordi-nation. No prior petition, labor certifi-cation, or prior approval shall be re-quired.

(4) Initial admission. The initial ad-mission of a religious worker, spouse,and unmarried children under twenty-one years of age shall not exceed three(3) years. A Form I–94, Arrival-Depar-ture Record, shall be provided to everyalien who qualifies for admission as anR nonimmigrant. The Form I–94 for thereligious worker shall be endorsed withthe name and location of the specificorganizational unit of the religious or-ganization for which the alien will beproviding services within the UnitedStates. The admission symbol for thereligious worker shall be R–1; the ad-mission symbol for the worker’s spouseand childen shall be R–2.

(5) Extension of stay. The organiza-tional unit of the religious organiza-tion employing the nonimmigrant reli-gious worker admitted under this sec-tion shall use Form I–129, Petition fora Nonimmigrant Worker, along withthe appropriate fee, to extend the stayof the worker. The petition shall befiled at the Service Center having ju-risdiction over the place of employ-ment. An extension may be authorizedfor a period of up to two (2) years. Theworker’s total period of stay may notexceed five (5) years. The petition mustbe accompanied by a letter from an au-thorized official of the organizationalunit confirming the worker’s continu-ing eligibility for classification as anR–1 nonimmigrant.

(6) Change of employers. A different oradditional organizational unit of thereligious denomination seeking to em-ploy or engage the services of a reli-gious worker admitted under this sec-tion shall file Form I–129 with the ap-propriate fee. The petition shall befiled with the Service Center having ju-risdiction over the place of employ-

ment. The petition must be accom-panied by evidence establishing thatthe alien will continue to qualify as areligious worker under this section.Any unauthorized change to a new reli-gious organizational unit will con-stitute a failure to maintain statuswithin the meaning of section241(a)(1)(C)(i) of the Act.

(7) Limitation on stay. An alien whohas spent five (5) years in the UnitedStates under section 101(a)(15)(R) of theAct may not be readmitted to theUnited States under the R visa classi-fication unless the alien has residedand been physically present outside theUnited States for the immediate prioryear, except for brief visits for businessor pleasure. Such visits do not end theperiod during which an alien is consid-ered to have resided and been phys-ically present outside the UnitedStates, but time spent during such vis-its does not count toward the require-ment of this paragraph.

(8) Spouse and children. The religiousworker’s spouse and unmarried chil-dren under twenty-one years of age areentitled to the same nonimmigrantclassification and length of stay as thereligious worker, if the religious work-er will be employed and residing pri-marily in the United States, and if thespouse and unmarried minor childrenare accompanying or following to jointhe religious worker in the UnitedStates. Neither the spouse nor anychild may accept employment while inthe United States in R–2 nonimmigrantstatus.

(s) NATO aliens—(1) General. Aliensclassified as NATO–1 through NATO–4are members of the armed forces of acountry signatory to Article III of theStatus of Forces Agreement (NATO).They are normally exempt from inspec-tion under 8 CFR 235.1(c). Aliens classi-fied as NATO–5 or –6 are civilian em-ployees of the armed forces of a NATOmember and may be authorized admis-sion for the duration of employmentand assignment with the NATO mem-ber in the United States. Aliens classi-fied as NATO–7 who are employed byNATO–1 through NATO–4 aliens may beadmitted for duration of status; if em-ployed by NATO–5 or –6 aliens, admis-sion may be authorized for not morethan two years.


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(2) Extensions of Stay. Any alien clas-sified as a NATO–7 as the employee ofa NATO–5 or –6 may be granted exten-sions of stay in increments of not morethan one year.

(3) Employment. The dependents of analien classified NATO–1 throughNATO–7 may request authorization foremployment if the state of their na-tionality has a reciprocal employmentagreement with the Department ofState. The names of the foreign stateswhich have reciprocal employmentagreements are available from the De-partment of State, Office of ConsularAffairs, and the District Offices of theService.

(t) Alien witnesses and informants—(1)Alien witness or informant in criminalmatter. An alien may be classified as anS–5 alien witness or informant underthe provisions of section 101(a)(15)(S)(i)of the Act if, in the exercise of discre-tion pursuant to an application onForm I–854 by an interested federal orstate law enforcement authority(‘‘LEA’’), it is determined by the Com-missioner that the alien:

(i) Possesses critical reliable infor-mation concerning a criminal organi-zation or enterprise;

(ii) Is willing to supply, or has sup-plied, such information to federal orstate LEA; and

(iii) Is essential to the success of anauthorized criminal investigation orthe successful prosecution of an indi-vidual involved in the criminal organi-zation or enterprise.

(2) Alien witness or informant incounterterrorism matter. An alien may beclassified as an S–6 aliencounterterrorism witness or informantunder the provisions of section101(a)(15)(S)(ii) of the Act if it is deter-mined by the Secretary of State andthe Commissioner acting jointly, in theexercise of their discretion, pursuantto an application on Form I–854 by aninterested federal LEA, that the alien:

(i) Possesses critical reliable infor-mation concerning a terrorist organi-zation, enterprise, or operation;

(ii) Is willing to supply or has sup-plied such information to a federalLEA;

(iii) Is in danger or has been placed indanger as a result of providing such in-formation; and

(iv) Is eligible to receive a rewardunder section 36(a) of the State Depart-ment Basic Authorities Act of 1956, 22U.S.C. 2708(a).

(3) Spouse, married and unmarried sonsand daughters, and parents of alien wit-ness or informant in criminal orcounterterrorism matter. An alien spouse,married or unmarried son or daughter,or parent of an alien witness or inform-ant may be granted derivative S classi-fication (S–7) when accompanying, orfollowing to join, the alien witness orinformant if, in the exercise of discre-tion by, with respect to paragraph(t)(1) of this section, the Commis-sioner, or, with respect to paragraph(t)(2) of this section, the Secretary ofState and the Commissioner actingjointly, consider it to be appropriate. Anonimmigrant in such derivative S–7classification shall be subject to thesame period of admission, limitations,and restrictions as the alien witness orinformant and must be identified bythe requesting LEA on the applicationForm I–854 in order to qualify for Snonimmigrant classification. Familymembers not identified on the Form I–854 application will not be eligible for Snonimmigrant classification.

(4) Request for S nonimmigrant classi-fication. An application on Form I–854,requesting S nonimmigrant classifica-tion for a witness or informant, mayonly be filed by a federal or state LEA(which shall include a federal or statecourt or a United States Attorney’s Of-fice) directly in need of the informa-tion to be provided by the alien witnessor informant. The completed applica-tion is filed with the Assistant Attor-ney General, Criminal Division, De-partment of Justice, who will forwardonly properly certified applicationsthat fall within the numerical limita-tion to the Commissioner, Immigrationand Naturalization Service, for ap-proval, pursuant to the following proc-ess.

(i) Filing request. For an alien to qual-ify for status as an S nonimmigrant, Snonimmigrant classification must berequested by an LEA. The LEA shallrecommend an alien for S non-immigrant classification by: Complet-ing Form I–854, with all necessary en-dorsements and attachments, in ac-cordance with the instructions on, or


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attached to, that form, and agreeing,as a condition of status, that no prom-ises may be, have been, or will be madeby the LEA that the alien will or mayremain in the United States in S orany other nonimmigrant classificationor parole, adjust status to that of law-ful permanent resident, or otherwiseattempt to remain beyond a 3-year pe-riod other than by the means author-ized by section 101(a)(15)(S) of the Act.The alien, including any derivativebeneficiary who is 18 years or older,shall sign a statement, that is part ofor affixed to Form I–854, acknowledg-ing awareness that he or she is re-stricted by the terms of S non-immigrant classification to the specificterms of section 101(a)(15)(S) of the Actas the exclusive means by which he orshe may remain permanently in theUnited States.

(A) District director referral. Any dis-trict director or Service officer who re-ceives a request by an alien, an eligibleLEA, or other entity seeking S non-immigrant classification shall advisethe requestor of the process and the re-quirements for applying for S non-immigrant classification. EligibleLEAs seeking S nonimmigrant classi-fication shall be referred to the Com-missioner.

(B) United States Attorney certification.The United States Attorney with juris-diction over a prosecution or investiga-tion that forms the basis for a requestfor S nonimmigrant classificationmust certify and endorse the applica-tion on Form I–854 and agree that nopromises may be, have been, or will bemade that the alien will or may remainin the United States in S or any othernonimmigrant classification or parole,adjust status to lawful permanent resi-dent, or attempt to remain beyond theauthorized period of admission.

(C) LEA certification. LEA certifi-cations on Form I–854 must be made atthe seat-of-government level, if federal,or the highest level of the state LEAinvolved in the matter. With respect tothe alien for whom S nonimmigrantclassification is sought, the LEA shallprovide evidence in the form of attach-ments establishing the nature of thealien’s cooperation with the govern-ment, the need for the alien’s presencein the United States, all conduct or

conditions which may constitute aground or grounds of excludability, andall factors and considerations warrant-ing a favorable exercise of discre-tionary waiver authority by the Attor-ney General on the alien’s behalf. Theattachments submitted with a requestfor S nonimmigrant classification maybe in the form of affidavits, state-ments, memoranda, or similar docu-mentation. The LEA shall review FormI–854 for accuracy and ensure the alienunderstands the certifications made onForm I–854.

(D) Filing procedure. Upon completionof Form I–854, the LEA shall forwardthe form and all required attachmentsto the Assistant Attorney General,Criminal Division, United States De-partment of Justice, at the addresslisted on the form.

(ii) Assistant Attorney General, Crimi-nal Division review—(A) Review of infor-mation. Upon receipt of a complete ap-plication for S nonimmigrant classi-fication on Form I–854, with all re-quired attachments, the Assistant At-torney General, Criminal Division,shall ensure that all information relat-ing to the basis of the application, theneed for the witness or informant, andgrounds of excludability under section212 of the Act has been provided to theService on Form I–854, and shall con-sider the negative and favorable factorswarranting an exercise of discretion onthe alien’s behalf. No application maybe acted on by the Assistant AttorneyGeneral unless the eligible LEA mak-ing the request has proceeded in ac-cordance with the instructions on, orattached to, Form I–854 and agreed toall provisions therein.

(B) Advisory panel. Where necessaryaccording to procedures established bythe Assistant Attorney General, Crimi-nal Division, an advisory panel, com-posed of representatives of the Service,Marshals Service, Federal Bureau ofInvestigation, Drug Enforcement Ad-ministration, Criminal Division, andthe Department of State, and thoserepresentatives of other LEAs, includ-ing state and federal courts designatedby the Attorney General, will reviewthe completed application and submita recommendation to the Assistant At-torney General, Criminal Division, re-garding requests for S nonimmigrant


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classification. The function of this ad-visory panel is to prioritize cases inlight of the numerical limitation inorder to determine which cases will beforwarded to the Commissioner.

(C) Assistant Attorney General certifi-cation. The certification of the Assist-ant Attorney General, Criminal Divi-sion, to the Commissioner recommend-ing approval of the application for Snonimmigrant classification shall con-tain the following:

(1) All information and attachmentsthat may constitute, or relate to, aground or grounds of excludabilityunder section 212(a) of the Act;

(2) Each section of law under whichthe alien appears to be inadmissible;

(3) The reasons that waiver(s) of in-admissibility are considered to be jus-tifiable and in the national interest;

(4) A detailed statement that thealien is eligible for S nonimmigrantclassification, explaining the nature ofthe alien’s cooperation with the gov-ernment and the government’s need forthe alien’s presence in the UnitedStates;

(5) The intended date of arrival;(6) The length of the proposed stay in

the United States;(7) The purpose of the proposed stay;

and(8) A statement that the application

falls within the statutorily specifiednumerical limitation.

(D) Submission of certified requests forS nonimmigrant classification to Service.(1) The Assistant Attorney General,Criminal Division, shall forward to theCommissioner only qualified applica-tions for S–5 nonimmigrant classifica-tion that have been certified in accord-ance with the provisions of this para-graph and that fall within the annualnumerical limitation.

(2) The Assistant Attorney GeneralCriminal Division, shall forward to theCommissioner applications for S–6 non-immigrant classification that havebeen certified in accordance with theprovisions of this paragraph, certifiedby the Secretary of State or eligibilityfor S–6 classification, and that fallwithin the annual numerical limita-tion.

(5) Decision on application. (i) The At-torney General’s authority to waivegrounds of excludability pursuant to

section 212 of the Act is delegated tothe Commissioner and shall be exer-cised with regard to S nonimmigrantclassification only upon the certifi-cation of the Assistant Attorney Gen-eral, Criminal Division. Such certifi-cation is nonreviewable as to the mat-ter’s significance, importance, and/orworthwhileness to law enforcement.The Commissioner shall make the finaldecision to approve or deny a requestfor S nonimmigrant classification cer-tified by the Assistant Attorney Gen-eral, Criminal Division.

(ii) Decision to approve application.Upon approval of the application onForm I–854, the Commissioner shall no-tify the Assistant Attorney General,Criminal Division, the Secretary ofState, and Service officers as appro-priate. Admission shall be authorizedfor a period not to exceed 3 years.

(iii) Decision to deny application. Inthe event the Commissioner decides todeny an application for S non-immigrant classification on Form I–854, the Assistant Attorney General,Criminal Division, and the relevantLEA shall be notified in writing to thateffect. The Assistant Attorney General,Criminal Division, shall concur in orobject to that decision. Unless the As-sistant Attorney General, Criminal Di-vision, objects within 7 days, he or sheshall be deemed to have concurred inthe decision. In the event of an objec-tion by the Assistant Attorney Gen-eral, Criminal Division, the matter willbe expeditiously referred to the DeputyAttorney General for a final resolution.In no circumstances shall the alien orthe relevant LEA have a right of ap-peal from any decision to deny.

(6) Submission of requests for S non-immigrant visa classification to Secretaryof State. No request for S non-immigrant visa classification may bepresented to the Secretary of State un-less it is approved and forwarded by theCommissioner.

(7) Conditions of status. An alien wit-ness or informant is responsible forcertifying and fulfilling the terms andconditions specified on Form I–854 as acondition of status. The LEA that as-sumes responsibility for the S non-immigrant must:

(i) Ensure that the alien:


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(A) Reports quarterly to the LEA onhis or her whereabouts and activities,and as otherwise specified on Form I–854 or pursuant to the terms of his orher S nonimmigrant classification;

(B) Notifies the LEA of any change ofhome or work address and phone num-bers or any travel plans;

(C) Abides by the law and all speci-fied terms, limitations, or restrictionson the visa, Form I–854, or any waiverspursuant to classification; and

(D) Cooperates with the responsibleLEA in accordance with the terms ofhis or her classification and any re-strictions on Form I–854;

(ii) Provide the Assistant AttorneyGeneral, Criminal Division, with thename of the control agent on an ongo-ing basis and provide a quarterly re-port indicating the whereabouts, ac-tivities, and any other control informa-tion required on Form I–854 or by theAssistant Attorney General;

(iii) Report immediately to the Serv-ice any failure on the alien’s part to:

(A) Report quarterly;(B) Cooperate with the LEA;(C) Comply with the terms and condi-

tions of the specific S nonimmigrantclassification; or

(D) Refrain from criminal activitythat may render the alien deportable,which information shall also be for-warded to the Assistant Attorney Gen-eral, Criminal Division; and

(iv) Report annually to the AssistantAttorney General, Criminal Division,on whether the alien’s S nonimmigrantclassification and cooperation resultedin either:

(A) A successful criminal prosecutionor investigation or the failure toproduce a successful resolution of thematter; or

(B) The prevention or frustration ofterrorist acts or the failure to preventsuch acts.

(v) Assist the alien in his or her ap-plication to the Service for employ-ment authorization.

(8) Annual report. The Assistant At-torney General, Criminal Division, inconsultation with the Commissioner,shall compile the statutorily mandatedannual report to the Committee on theJudiciary of the House of Representa-tives and the Committee on the Judici-ary of the Senate.

(9) Admission. The responsible LEAwill coordinate the admission of analien in S nonimmigrant classificationwith the Commissioner as to the date,time, place, and manner of the alien’sarrival.

(10) Employment. An alien classifiedunder section 101(a)(15)(S) of the Actmay apply for employment authoriza-tion by filing Form I–765, Applicationfor Employment Authorization, withfee, in accordance with the instruc-tions on, or attached to, that form pur-suant to § 274a.12(c)(21) of this chapter.

(11) Failure to maintain status. Analien classified under section101(a)(15)(S) of the Act shall abide byall the terms and conditions of his orher S nonimmigrant classification im-posed by the Attorney General. If theterms and conditions of S non-immigrant classification will not be orhave not been met, or have been vio-lated, the alien is convicted of anycriminal offense punishable by a termof imprisonment of 1 year or more, isotherwise rendered deportable, or it isotherwise appropriate or in the publicinterest to do so, the Commissionershall proceed to deport an alien pursu-ant to the terms of 8 CFR 242.26. In theevent the Commissioner decides to de-port an alien witness or informant in Snonimmigrant classification, the As-sistant Attorney General, Criminal Di-vision, and the relevant LEA shall benotified in writing to that effect. TheAssistant Attorney General, CriminalDivision, shall concur in or object tothat decision. Unless the Assistant At-torney General, Criminal Division, ob-jects within 7 days, he or she shall bedeemed to have concurred in the deci-sion. In the event of an objection bythe Assistant Attorney General, Crimi-nal Division, the matter will be expedi-tiously referred to the Deputy Attor-ney General for a final resolution. Inno circumstances shall the alien or therelevant LEA have a right of appealfrom any decision to deport.

(12) Change of classification. (i) Analien in S nonimmigrant classificationis prohibited from changing to anyother nonimmigrant classification.

(ii) An LEA may request that anyalien lawfully admitted to the UnitedStates and maintaining status in ac-cordance with the provisions of § 248.1


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of this chapter, except for those aliensenumerated in 8 CFR 248.2, have his orher nonimmigrant classificationchanged to that of an alien classifiedpursuant to section 101(a)(15)(S) of theAct as set forth in 8 CFR 248.3(h).

(Title VI of the Health Professions Edu-cational Assistance Act of 1976 (Pub. L. 94–484; 90 Stat. 2303); secs. 103 and 214, Immigra-tion and Nationality Act (8 U.S.C. 1103 and1184))

[38 FR 35425, Dec. 28, 1973]

EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting § 214.2, see the List of CFRSections Affected in the Finding Aids sec-tion in this volume.

§ 214.3 Petitions for approval ofschools.

(a) Filing petition—(1) General. Aschool or school system seeking ap-proval for attendance by nonimmigrantstudents under sections 101(a)(15)(F)(i)or 101 (a)(15)(M)(i) of the Act, or both,shall file a petition on Form I–17 withthe district director having jurisdic-tion over the place in which the schoolor school system is located. Separatepetitions are required for differentschools in the same school system lo-cated within the jurisdiction of dif-ferent district directors. A petition bya school system must specifically iden-tify by name and address those schoolsincluded in the petition. The petitionmust also state whether the school orschool system is seeking approval forattendance of nonimmigrant studentsunder section 101(a)(15)(F)(i) or101(a)(15)(M)(i) of the Act or both.

(2) Approval for F–1 or M–1 classifica-tion, or both—(i) F–1 classification. Thefollowing schools may be approved forattendance by nonimmigrant studentsunder section 101(a)(15)(F)(i) of the Act:

(A) A college or university, i.e., aninstitution of higher learning whichawards recognized bachelor’s, master’sdoctor’s or professional degrees.

(B) A community college or juniorcollege which provides instruction inthe liberal arts or in the professionsand which awards recognized associatedegrees.

(C) A seminary.(D) A conservatory.(E) An academic high school.(F) An elementary school.

(G) An institution which provideslanguage training, instruction in theliberal arts or fine arts, instruction inthe professions, or instruction or train-ing in more than one of these dis-ciplines.

(ii) M–1 classification. The followingschools are considered to be vocationalor nonacademic institutions and maybe approved for attendance by non-immigrant students under section101(a)(15)(M)(i) of the Act:

(A) A community college or juniorcollege which provides vocational ortechnical training and which awardsrecognized associate degrees.

(B) A vocational high school.(C) A school which provides voca-

tional or nonacademic training otherthan language training.

(iii) Both F–1 and M–1 classification. Aschool may be approved for attendanceby nonimmigrant students under bothsections 101(a)(15)(F)(i) and101(a)(15)(M)(i) of the Act if it has bothinstruction in the liberal arts, finearts, language, religion, or the profes-sions and vocational or technical train-ing. In that case, a student whose pri-mary intent is to pursue studies in lib-eral arts, fine arts, language, religion,or the professions at the school is clas-sified as a nonimmigrant under section101(a)(15)(F)(i) of the Act. A studentwhose primary intent is to pursue vo-cational or technical training at theschool is classified as a nonimmigrantunder section 101(a)(15)(M)(i) of theAct.

(iv) English language training for a vo-cational student. A student whose pri-mary intent is to pursue vocational ortechnical training who takes Englishlanguage training at the same schoolsolely for the purpose of being able tounderstand the vocational or technicalcourse of study is classified as a non-immigrant under section101(a)(15)(M)(i) of the Act.

(b) Supporting documents. Pursuant tosections 101(a)(15) (F) and (M) of theImmigration and Nationality Act, theService has consulted with the Depart-ment of Education and determined thatpetitioning institutions must submitcertain supporting documents as fol-lows. A petitioning school or schoolsystem owned and operated as a publiceducational institution or system by


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