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					Immigration and Naturalization Service, Justice                                         § 212.7

   (3) In Mexico or Canada. Forms I–185,             on Form I–601 at the consular office
I–186 or I–586 may be declared void by a             considering the visa application. Upon
consular officer in Mexico or Canada if              determining that the alien is admissi-
the card was issued in one of those                  ble except for the grounds for which a
countries.                                           waiver is sought, the consular officer
   (4) Grounds. Grounds for voidance of a            shall transmit the Form I–601 to the
Form I–185, I–186 or I–586 shall be that             Service for decision.
the holder has violated the immigra-                    (ii) Adjustment of status applicant. An
tion laws; that he/she is inadmissible               applicant for adjustment of status who
to the United States; or that he/she has             is excludable and seeks a waiver under
abandoned his/her residence in the                   section 212(h) or (i) of the Act shall file
country upon which the card was                      an application on Form I–601 with the
granted.                                             director or immigration judge consid-
   (e) Replacement. If a nonresident alien           ering the application for adjustment of
border crossing card has been lost, sto-             status.
len, mutilated, or destroyed, the person                (2) Termination of application for lack
to show the card was issued may apply                of prosecution. An applicant may with-
for a new card as provided for in this               draw the application at any time prior
section. A fee as prescribed in                      to the final decision, whereupon the
§ 103.7(b)(1) of this chapter must be sub-           case will be closed and the consulate
mitted at time of application for the                notified. If the applicant fails to pros-
replacement card. The holder of a                    ecute the application within a reason-
Form I–185, I–186, or I–586 which is in              able time either before or after inter-
poor condition because of improper                   view the applicant shall be notified
production may be issued a new form                  that if he or she fails to prosecute the
without submitting fee or application                application within 30 days the case will
upon surrendering the original card.                 be closed subject to being reopened at
   (f) Previous removal or deportation;              the applicant’s request. If no action
waiver of inadmissibility. Pursuant to               has been taken within the 30-day pe-
the authority contained in section 212               riod immediately thereafter, the case
(d)(3) of the Act, the temporary admis-              will be closed and the appropriate con-
sion of an alien who is inadmissible                 sul notified.
under paragraph (16) or (17) of section                 (3) Decision. If the application is ap-
212(a) of the Act is authorized if such              proved the director shall complete
alien is in possession of a Mexican Non-             Form I–607 for inclusion in the alien’s
resident Alien Border Crossing Card                  file and shall notify the alien of the de-
and he establishes that he is otherwise              cision. If the application is denied the
admissible as a nonimmigrant visitor                 applicant shall be notified of the deci-
or student except for his removal or de-             sion, of the reasons therefor, and of the
portation prior to November 1, 1956, be-             right to appeal in accordance with part
cause of entry without inspection or                 103 of this chapter.
lack of required documents.                             (4) Validity. A waiver granted under
                                                     section 212(h) or section 212(i) of the
[30 FR 10184, Aug. 17, 1965, as amended at 34
                                                     Act shall apply only to those grounds
FR 129, Jan. 4, 1969; 35 FR 3065, Feb. 17, 1970;
37 FR 7584, Apr. 18, 1972; 37 FR 8061, Apr. 25,      of excludability and to those crimes,
1972; 45 FR 11114, Feb. 20, 1980; 46 FR 25082,       events or incidents specified in the ap-
May 5, 1981; 48 FR 35349, Aug. 4, 1983; 60 FR        plication for waiver. Once granted, the
40068, Aug. 7, 1995; 62 FR 9074, Feb. 28, 1997; 62   waiver shall be valid indefinitely, even
FR 10349, Mar. 6, 1997]                              if the recipient of the waiver later
                                                     abandons or otherwise loses lawful per-
§ 212.7 Waiver of certain grounds of                 manent resident status, except that
    excludability.                                   any waiver which is granted to an alien
   (a) Section 212(h) or (i)—(1) Filing pro-         who obtains lawful permanent resi-
cedure—(i) Immigrant visa or fiance(e)               dence on a conditional basis under sec-
nonimmigrant visa applicant. An appli-               tion 216 of the Act shall automatically
cant for an immigrant visa or ‘‘K’’ non-             terminate concurrently with the termi-
immigrant visa who is excludable and                 nation of such residence pursuant to
seeks a waiver under section 212(h) or               the provisions of section 216. Separate
(i) of the Act shall file an application             notification of the termination of the

                                                 209
§ 212.7                                                     8 CFR Ch. I (1–1–98 Edition)

waiver is not required when an alien is         (because of mental retardation or be-
notified of the termination of residence        cause of a past history of mental ill-
under section 216 of the Act, and no ap-        ness) he or his sponsoring family mem-
peal shall lie from the decision to ter-        ber shall submit an executed Form I–
minate the waiver on this basis. How-           601 to the consular or Service office
ever, if the respondent is found not to         with a statement that arrangements
be deportable in a deportation proceed-         have been made for the submission to
ing based on the termination, the waiv-         that office of a medical report. The
er shall again become effective. Noth-          medical report shall contain a com-
ing in this subsection shall preclude           plete medical history of the alien, in-
the director from reconsidering a deci-         cluding details of any hospitalization
sion to approve a waiver if the decision        or institutional care or treatment for
is determined to have been made in
                                                any physical or mental condition; find-
error.
                                                ings as to the current physical condi-
  (b) Section 212(g) (tuberculosis and cer-
                                                tion of the alien, including reports of
tain mental conditions)—(1) General. Any
alien who is ineligible for a visa and is       chest X-ray examination and of sero-
excluded from admission into the                logic test for syphilis if the alien is 15
United States under section 212(a) (1),         years of age or over, and other perti-
(3), or (6) of the Act may file an Appli-       nent diagnostic tests; and findings as
cation for Waiver of Grounds of Exclud-         to the current mental condition of the
ability (Form I–601) under section              alien, with information as to prognosis
212(g) of the Act at an office designated       and life expectancy and with a report
in paragraph (2). The family member             of a psychiatric examination conducted
specified in section 212(g) of the Act          by a psychiatrist who shall, in case of
may file the waiver for the applicant if        mental retardation, also provide an
the applicant is incompetent to file the        evaluation of the alien’s intelligence.
waiver personally.                              For an alien with a past history of
  (2) Locations for filing Form I–601.          mental illness, the medical report shall
Form I–601 may be filed at any one of           also contain available information on
the following offices:                          which the U.S. Public Health Service
  (i) The American consulate where the          can base a finding as to whether the
application for a visa is being consid-         alien has been free of such mental ill-
ered if the alien is outside the United         ness for a period of time sufficient in
States;                                         the light of such history to dem-
  (ii) The Service office having juris-         onstrate recovery. Upon receipt of the
diction over the port of entry where            medical report, the consular or Service
the alien is applying for admission into        office shall refer it to the U.S. Public
the United States; or                           Health Service for review.
  (iii) The Service office having juris-          (ii) Submission of statement. Upon
diction over the alien if the alien is in       being notified that the medical report
the United States.
                                                has been reviewed by the U.S. Public
  (3) Section 212(a)(6) (tuberculosis). If
                                                Health Service and determined to be
the alien is excludable under section
                                                acceptable, the alien or the alien’s
212(a)(6) of the Act because of tuber-
culosis, he shall execute Statement A           sponsoring family member shall sub-
on the reverse of page 1 of Form I–601.         mit a statement to the consular or
In addition, he or his sponsor in the           Service office. The statement must be
United States is responsible for having         from a clinic, hospital, institution, spe-
Statement B executed by the physician           cialized facility, or specialist in the
or health facility which has agreed to          United States approved by the U.S.
supply treatment or observation; and,           Public Health Service. The alien or
if required, Statement C shall be exe-          alien’s sponsor may be referred to the
cuted by the appropriate local or State         mental retardation or mental health
health officer.                                 agency of the state of proposed resi-
  (4) Section 212(a) (1) or (3) (certain men-   dence for guidance in selecting a post-
tal conditions)—(i) Arrangements for sub-       arrival medical examining authority
mission of medical report. If the alien is      who will complete the evaluation and
excludable under section 212(a) (1) or (3)      provide an evaluation report to the

                                            210
Immigration and Naturalization Service, Justice                                 § 212.7

Centers for Disease Control. The state-       status after admission, is subject to
ment must specify the name and ad-            the foreign residence requirement of
dress of the specialized facility, or spe-    section 212(e) of the Act if his or her
cialist, and must affirm that:                participation in an exchange program
   (A) The specified facility or specialist   was financed in whole or in part, di-
agrees to evaluate the alien’s mental         rectly or indirectly, by a United States
status and prepare a complete report of       government agency or by the govern-
the findings of such evaluation.              ment of the country of his or her na-
   (B) The alien, the alien’s sponsoring      tionality or last foreign residence.
family member, or another responsible           (2) An alien is also subject to the for-
person has made complete financial ar-        eign residence requirement of section
rangements for payment of any charges         212(e) of the Act if at the time of ad-
that may be incurred after arrival for        mission to the United States as an ex-
studies, care, training and service;          change visitor or at the time of acqui-
   (C) The Director, Division of Quar-        sition of exchange visitor status after
antine, Center for Prevention Services,       admission to the United States, the
Centers for Disease Control, Atlanta,         alien was a national or lawful perma-
GA. 30333 shall be furnished:                 nent resident of a country which the
   (1) The report evaluating the alien’s      Director of the United States Informa-
mental status within 30 days after the        tion Agency had designated, through
alien’s arrival; and                          public notice in the FEDERAL REGISTER,
   (2) Prompt notification of the alien’s     as clearly requiring the services of per-
failure to report to the facility or spe-     sons engaged in the field of specialized
cialist within 30 days after being noti-      knowledge or skill in which the alien
fied by the U.S. Public Health Service        was to engage in his or her exchange
that the alien has arrived in the United      visitor program.
States.                                         (3) An alien is also subject to the for-
   (D) The alien shall be in an out-          eign residence requirement of section
patient, inpatient, study, or other spec-     212(e) of the Act if he or she was admit-
ified status as determined by the re-         ted to the United States as an ex-
sponsible local physcian or specialist        change visitor on or after January 10,
during the initial evaluation.                1977 to receive graduate medical edu-
   (5) Assurances: Bonds. In all cases        cation or training, or following admis-
under paragraph (b) of this section the       sion, acquired such status on or after
alien or his or her sponsoring family         that date for that purpose. However, an
member shall also submit an assurance         exchange visitor already participating
that the alien will comply with any           in an exchange program of graduate
special travel requirements as may be         medical education or training as of
specified by the U.S. Public Health           January 9, 1977 who was not then sub-
Service and that, upon the admission          ject to the foreign residence require-
of the alien into the United States, he       ment of section 212(e) and who proceeds
or she will proceed directly to the fa-       or has proceeded abroad temporarily
cility or specialist specified for the ini-   and is returning to the United States
tial evaluation, and will submit to such      to participate in the same program,
further examinations or treatment as          continues to be exempt from the for-
may be required, whether in an out-           eign residence requirement.
patient, inpatient, or other status. The        (4) A spouse or child admitted to the
alien, his or her sponsoring family           United States or accorded status under
member, or other responsible person           section 101(a)(15)(J) of the Act to ac-
shall provide such assurances or bond         company or follow to join an exchange
as may be required to assure that the         visitor who is subject to the foreign
necessary expenses of the alien will be       residence requirement of section 212(e)
met and that he or she will not become        of the Act is also subject to that re-
a public charge. For procedures relat-        quirement.
ing to cancellation or breaching of             (5) An alien who is subject to the for-
bonds, see part 103 of this chapter.          eign residence requirement and who be-
   (c) Section 212(e). (1) An alien who was   lieves that compliance therewith would
admitted to the United States as an ex-       impose exceptional hardship upon his/
change visitor, or who acquired that          her spouse or child who is a citizen of

                                          211
§ 212.7                                                 8 CFR Ch. I (1–1–98 Edition)

the United States or a lawful perma-        return to the country of his or her na-
nent resident alien, or that he or she      tionality or last residence because the
cannot return to the country of his or      applicant would be subject to persecu-
her nationality or last residence be-       tion on account of race, religion, or po-
cause he or she will be subject to perse-   litical opinion, must be supported by a
cution on account of race, religion, or     statement, dated and signed by the ap-
political opinion, may apply for a waiv-    plicant, setting forth in detail why the
er on Form I–612. The alien’s spouse        applicant believes he or she would be
and minor children, if also subject to      subject to persecution.
the foreign residence requirement, may        (9) Waivers under Pub. L. 103–416 based
be included in the application, provided    on a request by a State Department of
the spouse has not been a participant       Public Health (or equivalent). In accord-
in an exchange program.                     ance with section 220 of Pub. L. 103–416,
  (6) Each application based upon a         an alien admitted to the United States
claim to exceptional hardship must be       as a nonimmigrant under section
accompanied by the certificate of mar-      101(a)(15)(J) of the Act, or who acquired
riage between the applicant and his or      status under section 101(a)(15)(J) of the
her spouse and proof of legal termi-        Act after admission to the United
nation of all previous marriages of the
                                            States, to participate in an exchange
applicant and spouse; the birth certifi-
                                            program of graduate medical education
cate of any child who is a United
                                            or training (as of January 9, 1977), may
States citizen or lawful permanent
                                            apply for a waiver of the 2-year home
resident alien, if the application is
                                            country residence and physical pres-
based upon a claim of exceptional hard-
ship to a child, and evidence of the        ence requirement (the ‘‘2-year require-
United States citizenship of the appli-     ment’’) under section 212(e)(iii) of the
cant’s spouse or child, when the appli-     Act based on a request by a State De-
cation is based upon a claim of excep-      partment of Pubic Health, or its equiv-
tional hardship to a spouse or child        alent. To initiate the application for a
who is a citizen of the United States.      waiver under Pub. L. 103–416, the De-
  (7) Evidence of United States citizen-    partment of Public Health, or its
ship and of status as a lawful perma-       equivalent, or the State in which the
nent resident shall be in the form pro-     foreign medical graduate seeks to prac-
vided in part 204 of this chapter. An ap-   tice medicine, must request the Direc-
plication based upon exceptional hard-      tor of USIA to recommend a waiver to
ship shall be supported by a statement,     the Service. The waiver may be grant-
dated and signed by the applicant, giv-     ed only if the Director of USIA pro-
ing a detailed explanation of the basis     vides the Service with a favorable
for his or her belief that his or her       waiver recommendation. Only the
compliance with the foreign residence       Service, however, may grant or deny
requirement of section 212(e) of the        the waiver application. If granted, such
Act, as amended, would impose excep-        a waiver shall be subject to the terms
tional hardship upon his or her spouse      and conditions imposed under section
or child who is a citizen of the United     214(l) of the Act (as redesignated by
States or a lawful permanent resident       section 671(a)(3)(A) of Pub. L. 104–208).
thereof. The statement shall include        Although the alien is not required to
all pertinent information concerning        submit a separate waiver application
the incomes and savings of the appli-       to the Service, the burden rests on the
cant and spouse. If exceptional hard-       alien to establish eligibility for the
ship is claimed upon medical grounds,       waiver. If the Service approves a waiv-
the applicant shall submit a medical        er request made under Pub. L. 103–416,
certificate from a qualified physician      the foreign medical graduate (and ac-
setting forth in terms understandable       companying dependents) may apply for
to a layman the nature and effect of        change of nonimmigrant status, from
the illness and prognosis as to the pe-     J–1 to H–1B and, in the case of depend-
riod of time the spouse or child will re-   ents of such a foreign medical grad-
quire care or treatment.                    uate, from J–2 to H–4. Aliens receiving
  (8) An application based upon the ap-     waivers under section 220 of Pub. L.
plicant’s belief that he or she cannot      103–416 are subject, in all cases, to the

                                        212
Immigration and Naturalization Service, Justice                                    § 212.7

provisions of section 214(g)(1)(A) of the      alien shall be notified of the approval
Act.                                           on Form I–797 (or I–797A or I–797B, as
  (i) Eligiblity criteria. J–1 foreign medi-   appropriate). The approval notice shall
cal graduates (with accompanying J–2           clearly state the terms and conditions
dependents) are eligible to apply for a        imposed on the waiver, and the Serv-
waiver of the 2-year requirement under         ice’s records shall be noted accord-
Pub. L. 103–416 based on a request by a        ingly.
State Department of Public Health (or            (B) Denial. If the Director of USIA
its equivalent) if:                            issues a favorable waiver recommenda-
  (A) They were admitted to the United         tion under Pub. L. 103–416 and the Serv-
States under section 101(a)(15)(J) of the      ice denies the waiver, the alien shall be
Act, or acquired J nonimmigrant sta-           notified of the decision and of the right
tus before June 1, 2002, to pursue grad-       to appeal under 8 CFR part 103. How-
uate medical education or training in          ever, no appeal shall lie where the basis
the United States.                             for denial is that the number of waiv-
  (B) They have entered into a bona            ers granted to the State in which the
fide, full-time employment contract for        foreign medical graduate will be em-
3 years to practice medicine at a health       ployed would exceed 20 for that fiscal
care facility located in an area or areas      year.
designated by the Secretary of Health            (iii) Conditions. The foreign medical
and Human Services as having a short-          graduate must agree to commence em-
age of health care professionals (‘‘HHS-       ployment for the health care facility
designated shortage area’’);                   specified in the waiver application
  (C) They agree to commence employ-           within 90 days of receipt of the waiver
ment within 90 days of receipt of the          under Pub. L. 103–416. The foreign med-
waiver under this section and agree to         ical graduate may only fulfill the req-
practice medicine for 3 years at the fa-       uisite 3-year employment contract as
cility named in the waiver application         an H–1B nonimmigrant. A foreign med-
and only in HHS-designated shortage            ical graduate who receives a waiver
areas. The health care facility named          under Pub. L. 103–416 based on a re-
in the waiver application may be oper-         quest by a State Department of Public
ated by:                                       Health (or equivalent), and changes his
  (1) An agency of the Government of           or her nonimmigrant classification
the United States or of the State in           from J–1 to H–1B, may not apply for
which it is located; or                        permanent residence or for any other
  (2) A charitable, educational, or            change of nonimmigrant classification
other not-for-profit organization; or          unless he or she has fulfilled the 3-year
  (3) Private medical practitioners.           employment contract with the health
  (D) The Department of Public Health,         care facility and in the specified HHS-
or its equivalent, in the State where          designated shortage area named in the
the health care facility is located has        waiver application.
requested the Director, USIA, to rec-            (iv) Failure to fulfill the three-year em-
ommend the waiver, and the Director,           ployment contract due to extenuating cir-
USIA, submits a favorable waiver rec-          cumstances. A foreign medical graduate
ommendation to the Service; and                who fails to meet the terms and condi-
  (E) Approval of the waiver will not          tions imposed on the waiver under sec-
cause the number of waivers granted            tion 214(l) of the Act and this para-
pursuant to Pub. L. 103–416 and this           graph will once again become subject
section to foreign medical graduates           to the 2-year requirement under sec-
who will practice medicine in the same         tion 212(e) of the Act.
state to exceed 20 during the current            Under section 214(l)(1)(B) of the Act,
fiscal year.                                   however, the Service, in the exercise of
  (ii) Decision on waivers under Pub. L.       discretion, may excuse early termi-
103–416 and notification to the alien—(A)      nation of the foreign medical grad-
Approval. If the Director of USIA sub-         uate’s 3-year period of employment
mits a favorable waiver recommenda-            with the health care facility named in
tion on behalf of a foreign medical            the waiver application due to extenuat-
graduate pursuant to Pub. L. 103–416,          ing circumstances. Extenuating cir-
and the Service grants the waiver, the         cumstances may include, but are not

                                           213
§ 212.7                                                     8 CFR Ch. I (1–1–98 Edition)

limited to, closure of the health care         conditions of that nonimmigrant sta-
facility or hardship to the alien. In de-      tus. Such compliance shall also include
termining whether to excuse such early         notifying the Service of any material
termination of employment, the Serv-           change in the terms and conditions of
ice shall base its decision on the spe-        the H–1B employment, by filing either
cific facts of each case. In all cases, the    an amended or a new H–1B petition, as
burden of establishing eligibility for a       required,      under    §§ 214.2(h)(2)(i)(D),
favorable exercise of discretion rests         214.2(h)(2)(i)(E), and 214.2(h)(11) of this
with the foreign medical graduate. De-         chapter.
pending on the circumstances, closure             (A) Amended H–1B petitions. The
of the health care facility named in the       health care facility named in the waiv-
waiver application may, but need not,          er application and H–1B petition shall
be considered an extenuating cir-
                                               file an amended H–1B petition, as re-
cumstance excusing early termination
                                               quired under § 214.2(h)(2)(i)(E) of this
of    employment.      Under      no    cir-
                                               chapter, if there are any material
cumstances will a foreign medical
                                               changes in the terms and conditions of
graduate be eligible to apply for
change of status to another non-               the beneficiary’s employment or eligi-
immigrant category, for an immigrant           bility as specified in the waiver appli-
visa or for status as a lawful perma-          cation filed under Pub. L. 103–416 and
nent resident prior to completing the          in the subsequent H–1B petition. In
requisite 3-year period of employment          such a case, an amended H–1B petition
for a health care facility located in an       shall be accompanied by evidence that
HHS-designated shortage area.                  the alien will continue practicing med-
  (v) Required evidence. A foreign medi-       icine with the original employer in an
cal graduate who seeks to have early           HHS-designated shortage area.
termination of employment excused                 (B) New H–1B petitions. A health care
due to extenuating circumstances shall         facility seeking to employ a foreign
submit documentary evidence estab-             medical graduate who has been granted
lishing such a claim. In all cases, the        a waiver under Pub. L. 103–416 (prior to
foreign medical graduate shall submit          the time the alien has completed his or
an employment contract with another            her 3-year contract with the facility
health care facility located in an HHS-        named in the waiver application and
designated shortage area for the bal-          original H–1B petition), shall file a new
ance of the required 3-year period of          H–1B petition with the Service, as re-
employment. A foreign medical grad-            quired under §§ 214.2(h)(2)(i) (D) and (E)
uate     claiming     extenuating       cir-   of this chapter. Although a new waiver
cumstances based on hardship shall             application need not be filed, the new
also submit evidence establishing that         H–1B petition shall be accompanied by
such hardship was caused by unfore-            the documentary evidence generally
seen circumstances beyond his or her           required under § 214.2(h) of this chapter,
control. A foreign medical graduate
                                               and the following additional docu-
claiming extenuating circumstances
                                               ments:
based on closure of the health care fa-
cility named in the waiver application            (1) A copy of Form I–797 (and/or I–
shall also submit evidence that the fa-        797A and I–797B) relating to the waiver
cility has closed or is about to be            and nonimmigrant H status granted
closed.                                        under Pub. L. 103–416;
  (vi) Notification requirements. A J–1           (2) An explanation from the foreign
foreign medical graduate who has been          medical graduate, with supporting evi-
granted a waiver of the 2-year require-        dence, establishing that extenuating
ment pursuant to Pub. L. 103–416, is re-       circumstances necessitate a change in
quired to comply with the terms and            employment;
conditions specified in section 214(l) of         (3) An employment contract estab-
the Act and the implementing regula-           lishing that the foreign medical grad-
tions in this section. If the foreign          uate will practice medicine at the
medical graduate subsequently applies          health care facility named in the new
for and receives H–1B status, he or she        H–1B petition for the balance of the re-
must also comply with the terms and            quired 3-year period; and

                                           214
Immigration and Naturalization Service, Justice                               § 212.7

  (4) Evidence that the geographic area      terial change in the terms and condi-
or areas of intended employment indi-        tions of their H–1B employment, by
cated in the new H–1B petition are in        having their employer file an amended
HHS-designated shortage areas.               or a new H–1B petition in accordance
  (C) Review of amended and new H–1B         with this section and § 214.2(h) of this
petitions for foreign medical graduates      chapter; or establish continued eligi-
granted waivers under Pub. L. 103–416        bility for the waiver and H–1B status,
and who seek to have early termination of    shall (together with their dependents)
employment excused due to extenuating        again become subject to the 2-year re-
circumstances—(1) Amended H–1B peti-         quirement. Such foreign medical grad-
tions. The waiver granted under Pub. L.      uates and their accompanying H–4 de-
103–416 may be affirmed, and the             pendents also become subject to depor-
amended H–1B petition may be ap-             tation under section 241(a)(1)(C)(i) of
proved, if the petitioning health care       the Act.
facility establishes that the foreign          (10) The applicant and his or her
medical graduate otherwise remains el-       spouse may be interviewed by an immi-
igible for H–1B classification and that      gration officer in connection with the
he or she will continue practicing med-      application and consultation may be
icine in an HHS-designated shortage          had with the Director, United States
area.                                        Information Agency and the sponsor of
  (2) New H–1B petitions. The Service        any exchange program in which the ap-
shall review a new H–1B petition filed       plicant has been a participant.
on behalf of a foreign medical graduate        (11) The applicant shall be notified of
who has not yet fulfilled the required 3-    the decision, and if the application is
year period of employment with the           denied, of the reasons therefor and of
health care facility named in the waiv-      the right of appeal in accordance with
er application and in the original H–1B      the provisions of part 103 of this chap-
petition to determine whether extenu-        ter. However, no appeal shall lie from
ating circumstances exist which war-         the denial of an application for lack of
rant a change in employment, and             a favorable recommendation from the
whether the waiver granted under Pub.        Secretary of State. When an interested
L. 103–416 should be affirmed. In con-       United States Government agency re-
ducting such a review, the Service           quests a waiver of the two-year for-
shall determine whether the foreign          eign-residence requirement and the Di-
medical graduate will continue practic-      rector, United States Information
ing medicine in an HHS-designated            Agency had made a favorable rec-
shortage area, and whether the new H–        ommendation, the interested agency
1B petitioner and the foreign medical        shall be notified of the decision on its
graduate have satisfied the remaining        request and, if the request is denied, of
H–1B eligibility criteria described          the reasons thereof, and of the right of
under section 101(a)(15)(H) of the Act       appeal. If the foreign country of the
and § 214.2(h) of this chapter. If these     alien’s nationality or last residence has
criteria have been satisfied, the waiver     furnished statement in writing that it
granted to the foreign medical grad-         has no objection to his/her being grant-
uate under Pub. L. 103–416 may be af-        ed a waiver of the foreign residence re-
firmed, and the new H1–B petition may        quirement and the Director, United
be approved in the exercise of discre-       States Information Agency has made a
tion, thereby permitting the foreign         favorable recommendation, the Direc-
medical graduate to serve the balance        tor shall be notified of the decision
of the requisite 3-year employment pe-       and, if the foreign residence require-
riod at the health care facility named       ment is not waived, of the reasons
in the new H–1B petition.                    therefor and of the foregoing right of
  (D) Failure to notify the Service of any   appeal. However, this ‘‘no objection’’
material changes in employment. Foreign      provision is not applicable to the ex-
medical graduates who have been              change visitor admitted to the United
granted a waiver of the 2-year require-      States on or after January 10, 1977 to
ment and who have obtained H–1B sta-         receive graduate medical education or
tus under Pub. L. 103–416 but fail to:       training, or who acquired such status
Properly notify the Service of any ma-       on or after that date for such purpose;

                                         215
§ 212.8                                                           8 CFR Ch. I (1–1–98 Edition)

except that the alien who commenced a               do not require a labor certification: (1)
program before January 10, 1977 and                 A member of the Armed Forces of the
who was readmitted to the United                    United States; (2) a spouse or child ac-
States on or after that date to con-                companying or following to join his
tinue participation in the same pro-                spouse or parent who either has a labor
gram, is eligible for the ‘‘no objection’’          certification or is a nondependent alien
waiver.                                             who does not require such a certifi-
                                                    cation; (3) a female alien who intends
(Secs. 103, 203, 212 of the Immigration and         to marry a citizen or alien lawful per-
Nationality Act, as amended by secs. 4, 5, 18
                                                    manent resident of the United States,
of Pub. L. 97–116, 95 Stat. 1611, 1620, (8 U.S.C.
1103, 1153, 1182)                                   who establishes satisfactorily that she
                                                    does not intend to seek employment in
[29 FR 12584, Sept. 4, 1964; 29 FR 13242, Sept.     the United States and whose fiance has
24, 1964, as amended at 30 FR 14776, Nov. 30,
1965; 32 FR 2500, Feb. 7, 1967; 37 FR 22725, Oct.   guaranteed her support; (4) an alien
31, 1972; 46 FR 45327, Sept. 11, 1981; 47 FR        who establishes on Form I–526 that he
44235, Oct. 7, 1982; 48 FR 20684, May 9, 1983; 48   has invested, or is actively in the proc-
FR 23159, May 24, 1983; 48 FR 30610, July 5,        ess of investing, capital totaling at
1983; 49 FR 48530, Dec. 13, 1984; 53 FR 30017,      least $40,000 in an enterprise in the
Aug. 10, 1988; 60 FR 26681, May 18, 1995; 60 FR     United States of which he will be a
27598, May 24, 1995; 62 FR 18508, Apr. 16, 1997]
                                                    principal manager and that the enter-
§ 212.8 Certification requirement of                prise will employ a person or persons in
     section 212(a)(14).                            the United States of which he will be a
                                                    principal manager and that the enter-
   (a) General. The certification require-
                                                    prise will employ a person or persons in
ment of section 212(a)(14) of the Act ap-
                                                    the United States who are United
plies to aliens seeking admission to the
                                                    States citizens or aliens lawfully ad-
United States or adjustment of status
under section 245 of the Act for the                mitted for permnanent residence, ex-
purpose of performing skilled or un-                clusive of the alien, his spouse and
skilled labor, who are preference immi-             children. A copy of a document submit-
grants as described in section 203(a) (3)           ted in support of Form I–526 may be ac-
or (6) of the Act, or who are non-                  cepted though unaccompanied by the
preference immigrants as described in               original, if the copy bears a certifi-
section 203(a)(8). The certification re-            cation by an attorney, typed or rubber-
quirement shall not be applicable to a              stamped in the language set forth in
nonpreference applicant for admission               § 204.2(j) of this chapter. However, the
to the United States or to a non-                   original document shall be submitted,
preference applicant for adjustment of              if submittal is requested by the Serv-
status under section 245 who estab-                 ice.
lishes that he will not perform skilled             [31 FR 10021, July 23, 1966; 31 FR 10355, Aug.
or unskilled labor. A native of the                 22, 1966, as amended at 34 FR 5326, Mar. 18,
Western Hemisphere who established a                1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566,
priority date with a consular officer               Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR
prior to January 1, 1977 and who was                44990, Oct. 13, 1982; 48 FR 19157, Apr. 28, 1983]
found to be entitled to an exemption
from the labor certification require-               § 212.9 Applicability     of    section
ment of section 212(a)(14) of the Act                   212(a)(32) to certain derivative
under the law in effect prior to Janu-                  third and sixth preference and non-
                                                        preference immigrants.
ary 1, 1977 as the parent, spouse or
child of a United States citizen or law-              A derivative beneficiary who is the
ful permanent resident alien shall con-             spouse or child of a qualified third or
tinue to be exempt from that require-               sixth preference or nonpreference im-
ment for so long as the relationship                migrant and who is also a graduate of
upon which the exemption is based con-              a medical school as defined by section
tinues to exist.                                    101(a)(41) of the Act is not considered
   (b) Aliens not required to obtain labor          to be an alien who is coming to the
certifications. The following persons are           United States principally to perform
not considered to be within the pur-                services as a member of the medical
view of section 212(a)(14) of the Act and           profession. Therefore, a derivative

                                                216
§ 212.8                                                           8 CFR Ch. I (1–1–98 Edition)

except that the alien who commenced a               do not require a labor certification: (1)
program before January 10, 1977 and                 A member of the Armed Forces of the
who was readmitted to the United                    United States; (2) a spouse or child ac-
States on or after that date to con-                companying or following to join his
tinue participation in the same pro-                spouse or parent who either has a labor
gram, is eligible for the ‘‘no objection’’          certification or is a nondependent alien
waiver.                                             who does not require such a certifi-
                                                    cation; (3) a female alien who intends
(Secs. 103, 203, 212 of the Immigration and         to marry a citizen or alien lawful per-
Nationality Act, as amended by secs. 4, 5, 18
                                                    manent resident of the United States,
of Pub. L. 97–116, 95 Stat. 1611, 1620, (8 U.S.C.
1103, 1153, 1182)                                   who establishes satisfactorily that she
                                                    does not intend to seek employment in
[29 FR 12584, Sept. 4, 1964; 29 FR 13242, Sept.     the United States and whose fiance has
24, 1964, as amended at 30 FR 14776, Nov. 30,
1965; 32 FR 2500, Feb. 7, 1967; 37 FR 22725, Oct.   guaranteed her support; (4) an alien
31, 1972; 46 FR 45327, Sept. 11, 1981; 47 FR        who establishes on Form I–526 that he
44235, Oct. 7, 1982; 48 FR 20684, May 9, 1983; 48   has invested, or is actively in the proc-
FR 23159, May 24, 1983; 48 FR 30610, July 5,        ess of investing, capital totaling at
1983; 49 FR 48530, Dec. 13, 1984; 53 FR 30017,      least $40,000 in an enterprise in the
Aug. 10, 1988; 60 FR 26681, May 18, 1995; 60 FR     United States of which he will be a
27598, May 24, 1995; 62 FR 18508, Apr. 16, 1997]
                                                    principal manager and that the enter-
§ 212.8 Certification requirement of                prise will employ a person or persons in
     section 212(a)(14).                            the United States of which he will be a
                                                    principal manager and that the enter-
   (a) General. The certification require-
                                                    prise will employ a person or persons in
ment of section 212(a)(14) of the Act ap-
                                                    the United States who are United
plies to aliens seeking admission to the
                                                    States citizens or aliens lawfully ad-
United States or adjustment of status
under section 245 of the Act for the                mitted for permnanent residence, ex-
purpose of performing skilled or un-                clusive of the alien, his spouse and
skilled labor, who are preference immi-             children. A copy of a document submit-
grants as described in section 203(a) (3)           ted in support of Form I–526 may be ac-
or (6) of the Act, or who are non-                  cepted though unaccompanied by the
preference immigrants as described in               original, if the copy bears a certifi-
section 203(a)(8). The certification re-            cation by an attorney, typed or rubber-
quirement shall not be applicable to a              stamped in the language set forth in
nonpreference applicant for admission               § 204.2(j) of this chapter. However, the
to the United States or to a non-                   original document shall be submitted,
preference applicant for adjustment of              if submittal is requested by the Serv-
status under section 245 who estab-                 ice.
lishes that he will not perform skilled             [31 FR 10021, July 23, 1966; 31 FR 10355, Aug.
or unskilled labor. A native of the                 22, 1966, as amended at 34 FR 5326, Mar. 18,
Western Hemisphere who established a                1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566,
priority date with a consular officer               Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR
prior to January 1, 1977 and who was                44990, Oct. 13, 1982; 48 FR 19157, Apr. 28, 1983]
found to be entitled to an exemption
from the labor certification require-               § 212.9 Applicability     of    section
ment of section 212(a)(14) of the Act                   212(a)(32) to certain derivative
under the law in effect prior to Janu-                  third and sixth preference and non-
                                                        preference immigrants.
ary 1, 1977 as the parent, spouse or
child of a United States citizen or law-              A derivative beneficiary who is the
ful permanent resident alien shall con-             spouse or child of a qualified third or
tinue to be exempt from that require-               sixth preference or nonpreference im-
ment for so long as the relationship                migrant and who is also a graduate of
upon which the exemption is based con-              a medical school as defined by section
tinues to exist.                                    101(a)(41) of the Act is not considered
   (b) Aliens not required to obtain labor          to be an alien who is coming to the
certifications. The following persons are           United States principally to perform
not considered to be within the pur-                services as a member of the medical
view of section 212(a)(14) of the Act and           profession. Therefore, a derivative

                                                216
Immigration and Naturalization Service, Justice                                    § 214.2

§ 214.2 Special requirements for ad-           23 as the maximum age for employ-
      mission, extension, and mainte-          ment of such sons and daughters. The
      nance of status.                         Office of Protocol of the Department of
   The general requirements in § 214.1         State shall maintain a listing of for-
are modified for the following non-            eign states with which the United
immigrant classes:                             States has such bilateral employment
   (a) Foreign government officials—(1)        agreements;
General. The determination by a con-             (v) Unmarried sons or daughters who
sular officer prior to admission and the       are physically or mentally disabled to
recognition by the Secretary of State          the extent that they cannot adequately
subsequent to admission is evidence of         care for themselves or cannot estab-
the proper classification of a non-            lish, maintain or re-establish their own
immigrant under section 101(a)(15)(A)          households. The Department of State
of the Act. An alien who has a non-            or the Service may require certifi-
immigrant        status    under    section    cation(s) as it deems sufficient to docu-
101(a)(15)(A)(i) or (ii) of the Act is to be   ment such mental or physical disabil-
admitted for the duration of the period
                                               ity.
for which the alien continues to be rec-
ognized by the Secretary of State as             (3) Applicability of a formal bilateral
being entitled to that status. An alien        agreement or an informal de facto ar-
defined in section (101)(a)(15)(A)(iii) of     rangement for A–1 or A–2 dependents.
the Act is to be admitted for an initial       The applicability of a formal bilateral
period of not more than three years,           agreement shall be based on the foreign
and may be granted extensions of tem-          state which employs the principal alien
porary stay in increments of not more          and not on the nationality of the prin-
than two years. In addition, the appli-        cipal alien or dependent. The applica-
cation for extension of temporary stay         bility of an informal de facto arrange-
must be accompanied by a statement             ment shall be based on the foreign
signed by the employing official stat-         state which employs the principal
ing that he/she intends to continue to         alien, but under a de facto arrange-
employ the applicant and describing            ment the principal alien also must be a
the type of work the applicant will per-       national of the foreign state which em-
form.                                          ploys him/her in the United States.
   (2) Definition of A–1 or A–2 dependent.       (4) Income tax, Social Security liability;
For purposes of employment in the              non-applicability of certain immunities.
United States, the term dependent of an        Dependents who are granted employ-
A–1 or A–2 principal alien, as used in         ment authorization under this section
§ 214.2(a), means any of the following         are responsible for payment of all fed-
immediate members of the family ha-            eral, state and local income, employ-
bitually residing in the same household        ment and related taxes and Social Se-
as the principal alien who is an officer       curity contributions on any remunera-
or employee assigned to a diplomatic           tion received. In addition, immunity
or consular office in the United States:
                                               from civil or administrative jurisdic-
   (i) Spouse;
                                               tion in accordance with Article 37 of
   (ii) Unmarried children under the age
of 21;                                         the Vienna Convention on Diplomatic
   (iii) Unmarried sons or daughters           Relations or other international agree-
under the age of 23 who are in full-time       ments does not apply to these depend-
attendance as students at post-second-         ents with respect to matters arising
ary educational institutions;                  out of their employment.
   (iv) Unmarried sons or daughters              (5) Dependent employment pursuant to
under the age of 25 who are in full-time       formal bilateral employment agreements
attendance as students at post-second-         and informal de facto reciprocal arrange-
ary educational institutions if a formal       ments. (i) The Office of Protocol shall
bilateral employment agreement per-            maintain a listing of foreign states
mitting their employment in the                which have entered into formal bilat-
United States was signed prior to No-          eral employment agreements. Depend-
vember 21, 1988, and such bilateral em-        ents of an A–1 or A–2 principal alien as-
ployment agreement does not specify            signed to official duty in the United

                                           233
§ 214.2                                                 8 CFR Ch. I (1–1–98 Edition)

States may accept or continue in unre-      per week, and/or if it is temporary em-
stricted employment based on such for-      ployment of not more than 12 weeks
mal bilateral agreements upon favor-        during school holiday periods; and
able recommendation by the Depart-             (E) The proposed employment is not
ment of State and issuance of employ-       contrary to the interest of the United
ment authorization documentation by         States. Employment contrary to the
the Service in accordance with 8 CFR        interest of the United States includes,
part 274a. The application procedures       but is not limited to, the employment
are set forth in paragraph (a)(6) of this   of A–1 or A–2 dependents: who have
section.                                    criminal records; who have violated
  (ii) For purposes of this section, an     United States immigration laws or reg-
informal de facto reciprocal arrange-       ulations, or visa laws or regulations;
ment exists when the Department of          who have worked illegally in the
State determines that a foreign state       United States; and/or who cannot es-
allows appropriate employment on the        tablish that they have paid taxes and
local economy for dependents of cer-        social security on income from current
tain United States officials assigned to    or previous United States employment.
duty in that foreign state. The Office of      (6) Application procedures. The follow-
Protocol shall maintain a listing of        ing procedures are applicable to de-
countries with which such reciprocity       pendent       employment      applications
exists. Dependents of an A–1 or A–2         under bilateral agreements and de
principal alien assigned to official duty   facto arrangements:
in the United States may be authorized         (i) The dependent must submit a
to accept or continue in employment         completed Form I–566 to the Depart-
based upon informal de facto arrange-       ment of State through the office, mis-
ments upon favorable recommendation         sion, or organization which employs
by the Department of State and              his/her principal alien. A dependent ap-
issuance of employment authorization        plying under paragraph (a)(2)(iii) or (iv)
by the Service in accordance with 8         of this section must submit a certified
CFR part 274a. Additionally, the proce-     statement from the post-secondary
dures set forth in paragraph (a)(6) of      educational      institution   confirming
this section must be complied with,         that he/she is pursuing studies on a
and the following conditions must be        full-time basis. A dependent applying
met:                                        under paragraph (a)(2)(v) of this section
  (A) Both the principal alien and the      must submit medical certification re-
dependent desiring employment are           garding his/her condition. The certifi-
maintaining A–1 or A–2 status as ap-        cation should identify the dependent
propriate;                                  and the certifying physician and give
  (B) The principal’s assignment in the     the physician’s phone number; identify
United States is expected to last more      the condition, describe the symptoms
than six months;                            and provide a prognosis; and certify
  (C) Employment of a similar nature        that the dependent is unable to main-
for dependents of United States Gov-        tain a home of his or her own. Addi-
ernment officials assigned to official      tionally, a dependent applying under
duty in the foreign state employing the     the terms of a de facto arrangement
principal alien is not prohibited by        must attach a statement from the pro-
that foreign state’s government;            spective employer which includes the
  (D) The proposed employment is not        dependent’s name; a description of the
in an occupation listed in the Depart-      position offered and the duties to be
ment of Labor Schedule B (20 CFR part       performed; the salary offered; and ver-
656), or otherwise determined by the        ification that the dependent possesses
Department of Labor to be one for           the qualifications for the position.
which there is an oversupply of quali-         (ii) The Department of State reviews
fied U.S. workers in the area of pro-       and verifies the information provided,
posed employment. This Schedule B re-       makes its determination, and endorses
striction does not apply to a dependent     the Form I–566.
son or daughter who is a full-time stu-        (iii) If the Department of State’s en-
dent if the employment is part-time,        dorsement is favorable, the dependent
consisting of not more than 20 hours        may apply to the Service. A dependent

                                        234
Immigration and Naturalization Service, Justice                               § 214.2

whose principal alien is stationed at a      denomination coming temporarily and
post in Washington, DC, or New York          solely to do missionary work in behalf
City shall apply to the District Direc-      of a religious denomination may be
tor, Washington, DC, or New York             granted extensions of not more than
City, respectively. A dependent whose        one year each, provided that such work
principal alien is stationed elsewhere       does not involve the selling of articles
shall apply to the District Director,        or the solicitation or acceptance of do-
Washington, DC, unless the Service,          nations. Those B–1 and B–2 visitors ad-
through the Department of State, di-         mitted pursuant to the waiver provided
rects the dependent to apply to the dis-     at § 212.1(e) of this chapter may be ad-
trict director having jurisdiction over      mitted to and stay on Guam for period
his or her place of residence. Directors     not to exceed fifteen days and are not
of the regional service centers may          eligible for extensions of stay.
have concurrent adjudicative authority         (2) Minimum six month admissions. Any
for applications filed within their re-      B–2 visitor who is found otherwise ad-
spective regions. When applying to the       missible and is issued a Form I–94, will
Service, the dependent must present          be admitted for a minimum period of
his or her Form I–566 with a favorable       six months, regardless of whether less
endorsement from the Department of           time is requested, provided, that any
State and any additional documenta-          required passport is valid as specified
tion as may be required by the Attor-        in section 212(a)(26) of the Act. Excep-
ney General.                                 tions to the minimum six month ad-
  (7) Period of time for which employment    mission may be made only in individ-
may be authorized. If approved, an appli-    ual cases upon the specific approval of
cation to accept or continue employ-         the district director for good cause.
ment under this section shall be grant-        (3) Visa Waiver Pilot Program. Special
ed in increments of not more than            requirements for admission and main-
three years each.                            tenance of status for visitors admitted
  (8) No appeal. There shall be no ap-       to the United States under the Visa
peal from a denial of permission to ac-      Waiver Pilot Program are set forth in
cept or continue employment under            section 217 of the Act and part 217 of
this section.                                this chapter.
  (9) Dependents or family members of          (4) Admission of aliens pursuant to the
principal aliens classified A–3. A depend-   North American Fee Trade Agreement
ent or family member of a principal          (NAFTA). A citizen of Canada or Mex-
alien classified A–3 may not be em-          ico seeking temporary entry for pur-
ployed in the United States under this       poses set forth in paragraph (b)(4)(i) of
section.                                     this section, who otherwise meets ex-
  (10) Unauthorized employment. An           isting requirements under section
alien     classified      under    section   101(a)(15)(B) of the Act, including but
101(a)(15)(A) of the Act who is not a        not limited to requirements regarding
principal alien and who engages in em-       the source of remuneration, shall be
ployment outside the scope of, or in a       admitted upon presentation of proof of
manner contrary to this section, may         such citizenship in the case of Cana-
be considered in violation of section        dian applicants, and valid entry docu-
241(a)(1)(C)(i) of the Act. An alien who     ments such as a passport and visa or
is classified under section 101(a)(15)(A)    Mexican Border Crossing Card (Form I–
of the Act who is a principal alien and      186 or I–586) in the case of Mexican ap-
who engages in employment outside            plicants, a description of the purpose of
the scope of his/her official position       entry, and evidence demonstrating
may be considered in violation of sec-       that he or she is engaged in one of the
tion 241(a)(1)(C)(i) of the Act.             occupations or professions set forth in
  (b) Visitors—(1) General. any B–1 visi-    paragraph (b)(4)(i) of this section. Ex-
tor for business or B–2 visitor for pleas-   isting requirements, with respect to
ure may be admitted for not more than        Canada, are those requirements which
one year and may be granted exten-           were in effect at the time of entry into
sions of temporary stay in increments        force of the CFTA and, with respect to
of not more than six months each, ex-        Mexico, are those requirements which
cept that alien members of a religious       are in effect at the time of entry into

                                         235
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

force of the NAFTA. Additionally,              (2) Customs brokers performing bro-
nothing shall preclude the admission of      kerage duties associated with the ex-
a citizen of Mexico or Canada who            port of goods from the United States to
meets the requirements of paragraph          or through Canada.
(b)(4)(ii) of this section.                    (F) After-sales service. Installers, re-
  (i) Occupations and professions set        pair and maintenance personnel, and
forth in Appendix 1603.A.1 to Annex 1603     supervisors,    possessing    specialized
of the NAFTA—(A) Research and design.        knowledge essential to the seller’s con-
Technical scientific and statistical re-     tractual obligation, performing serv-
searchers conducting independent re-         ices or training workers to perform
search or research for an enterprise lo-     services, pursuant to a warranty or
cated in the territory of another Party.     other service contract incidental to the
  (B) Growth, manufacture and produc-        sale of commercial or industrial equip-
tion (1) Harvester owner supervising a       ment or machinery, including com-
harvesting crew admitted under appli-        puter software, purchased from an en-
cable law. (Applies only to harvesting       terprise located outside the United
of agricultural crops: Grain, fiber, fruit   States, during the life of the warranty
and vegetables.)                             or service agreement. (For the purposes
  (2) Purchasing and production man-         of this provision, the commercial or in-
agement personnel conducting com-            dustrial equipment or machinery, in-
mercial transactions for an enterprise       cluding computer software, must have
located in the territory of another          been manufactured outside the United
Party.                                       States.)
  (C) Marketing. (1) Market researchers        (G) General service. (1) Professionals
and analyst conducting independent re-       engaging in a business activity at a
search or analysis, or research or anal-     professional level in a profession set
ysis for an enterprise located in the        out in Appendix 1603.D.1 to Annex 1603
territory of another Party.                  of the NAFTA, but receiving no salary
  (2) Trade fair and promotional per-        or other remuneration from a United
sonnel attending a trade convention.         States source (other than an expense
  (D) Sales. (1) Sales representatives       allowance or other reimbursement for
and agents taking orders or negotiat-        expenses incidental to the temporary
ing contracts for goods or services for      stay) and otherwise satisfying the re-
an enterprise located in the territory       quirements of Section A to Annex 1063
of another Party but not delivering          of the NAFTA.
goods or providing services.                   (2) Management and supervisory per-
  (2) Buyers purchasing for an enter-        sonnel engaging in commercial trans-
prise located in the territory of an-        actions for an enterprise located in the
other Party.                                 territory of another Party.
  (E) Distribution. (1) Transportation         (3) Financial services personnel (in-
operators transporting goods or pas-         surers, bankers or investment brokers)
sengers to the United States from the        engaging in commercial transactions
territory of another Party or loading        for an enterprise located in the terri-
and transporting goods or passengers         tory of another Party.
from the United States to the territory        (4) Public relations and advertising
of another Party, with no unloading in       personnel consulting with business as-
the United States, to the territory of       sociates, or attending or participating
another Party. (These operators may          in conventions.
make deliveries in the United States if        (5) Tourism personnel (tour and trav-
all goods or passengers to be delivered      el agents, tour guides or tour opera-
were loaded in the territory of another      tors) attending or participating in con-
Party. Furthermore, they may load            ventions or conducting a tour that has
from locations in the United States if       begun in the territory of another
all goods or passengers to be loaded         Party. (The tour may begin in the
will be delivered in the territory of an-    United States; but must terminate in
other Party. Purely domestic service         foreign territory, and a significant por-
or solicitation, in competition with the     tion of the tour must be conducted in
United States operators, is not per-         foreign territory. In such a case, an op-
mitted.)                                     erator may enter the United States

                                         236
Immigration and Naturalization Service, Justice                               § 214.2

with an empty conveyance and a tour          within 8 hours after his arrival; how-
guide may enter on his or her own and        ever, if there is no scheduled transpor-
join the conveyance.)                        tation within that 8-hour period, con-
  (6) Tour bus operators entering the        tinuation of the journey thereafter on
United States:                               the first available transport will be
  (i) With a group of passengers on a        satisfactory. Transfers from the equip-
bus tour that has begun in, and will re-     ment on which an applicant arrives to
turn to, the territory of another Party.     other equipment of the same or a con-
  (ii) To meet a group of passengers on      necting line shall be limited to 2 in
a bus tour that will end, and the pre-       number, with the last transport depart-
dominant portion of which will take          ing foreign (but not necessarily non-
place, in the territory of another           stop foreign), and the total period of
Party.                                       waiting time for connecting transpor-
  (iii) With a group of passengers on a      tation shall not exceed 8 hours except
bus tour to be unloaded in the United        as provided above. Notwithstanding the
States and returning with no pas-            foregoing, an applicant, if seeking to
sengers or reloading with the group for      join a vessel in the United States as a
transportation to the territory of an-       crewman, shall be in possession of a
other Party.                                 valid ‘‘D’’ visa and a letter from the
  (7) Translators or interpreters per-       owner or agent of the vessel he seeks to
forming services as employees of an en-      join, shall proceed directly to the ves-
terprise located in the territory of an-     sel on the first available transpor-
other Party.                                 tation and upon joining the vessel shall
  (ii) Occupations and professions not       remain aboard at all times until it de-
listed in Appendix 1603.A.1 to Annex         parts from the United States. Except
1603 of the NAFTA. Nothing in this           for transit from one part of foreign
paragraph shall preclude a business          contiguous territory to another part of
person engaged in an occupation or           the same territory, application for di-
profession other than those listed in        rect transit without a visa must be
Appendix 1603.A.1 to Annex 1603 of the       made at one of the following ports of
NAFTA from temporary entry under             entry: Agana, Guam, Anchorage, AK,
section 101(a)(15)(B) of the Act, if such    Atlanta, GA, Baltimore, MD, Bangor,
person otherwise meets the existing re-      ME, Boston, MA, Brownsville, TX, Buf-
quirements for admission as prescribed       falo, NY, Charlotte, NC, Charlotte
by the Attorney General.                     Amalie, VI, Chicago, IL, Christiansted,
  (5) Construction workers not admissible.   VI, Dallas, TX, Daytona, FL, Denver,
Aliens seeking to enter the country to       CO, Detroit, MI, Fairbanks, AK, Hart-
perform building or construction work,       ford, CT, Honolulu, HI, Houston, TX,
whether on-site or in-plant, are not eli-    Los Angeles, CA, Memphis, TN, Miami,
gible for classification or admission as     FL, Newark, NJ, New Orleans, LA, New
B–1 nonimmigrants under section              York, NY, Niagara Falls, NY, Norfolk,
101(a)(15)(B) of the Act. However, alien     VA, Oakland, CA, Orlando, FL, Phila-
nonimmigrants otherwise qualified as         delphia, PA, Pittsburgh, PA, Ponce,
B–1 nonimmigrants may be issued visas        PR, Port Everglades FL, Portland, OR,
and may enter for the purpose of super-      San Antonio, TX, San Diego, CA, San-
vision or training of others engaged in      ford, FL, San Francisco, CA, San Juan,
building or construction work, but not       PR, Seattle, WA, St. Paul, MN, Tampa,
for the purpose of actually performing       FL, Washington, DC. The privilege of
any such building or construction work       transit without a visa may be author-
themselves.                                  ized only under the conditions that the
  (c) Transits—(1) Without visas. An ap-     transportation line, without the prior
plicant for admission under the transit      consent of the Service, will not refund
without visa privilege must establish        the ticket which was presented to the
that he is admissable under the immi-        Service as evidence of the alien’s con-
gration laws; that he has confirmed          firmed and onward reservations; that
and onward reservations to at least the      the alien will not apply for extension of
next country beyond the United States,       temporary stay or for adjustment of
and that he will continue his journey        status under section 245 of the Act, and
on the same line or a connecting line        that until his departure from the

                                         237
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

United States responsibility for his            (A) The alien intends to land for the
continuous actual custody will lie with       purpose of performing service on a ves-
the transportation line which brought         sel of the United States (as defined in
him to the United States unless at the        46 U.S.C. 2101(46)) or an aircraft of an
direction of the district director he is      air carrier (as defined in section 101(3)
in the custody of this Service or other       of the Federal Aviation Act of 1958);
custody approved by the Commis-               and
sioner.                                         (B) A labor dispute consisting of a
   (2) United Nations Headquarters Dis-       strike or lockout exists in the bargain-
trict. An alien of the class defined in       ing unit of the employer in which the
section 101(a)(15)(C) of the Act, whose       alien intends to perform such service;
visa is limited to transit to and from        and
the United Nations Headquarters Dis-            (C) The alien is not already an em-
trict, if otherwise admissible, shall be      ployee of the company (as described in
admitted on the additional conditions         paragraph (d)(2)(iv) of this section).
that he proceed directly to the imme-           (ii) Refusal to land. Any alien (except
diate vicinity of the United Nations          a qualified current employee as de-
Headquarters District, and remain             scribed in paragraph (d)(2)(iv) of this
there continuously, departing there-          section) who the examining immigra-
from only if required in connection           tion officer determines has arrived in
with his departure from the United            the United States for the purpose of
States, and that he have a document           performing service on board a vessel or
establishing his ability to enter some        an aircraft of the United States when a
country other than the United States          strike or lockout is under way in the
following his sojourn in the United Na-       bargaining unit of the employer, shall
tions Headquarters District. The imme-        be refused a conditional landing permit
diate vicinity of the United Nations          under section 252 of the Act.
Headquarters District is that area              (iii) Ineligibility for parole. An alien
lying within a twenty-five mile radius        described in paragraph (d)(2)(i) of this
of Columbus Circle, New York, NY.             section may not be paroled into the
   (3) Others. The period of admission of     United States under section 212(d)(5) of
an alien admitted under section               the Act for the purpose of performing
101(a)(15)(C) of the Act shall not exceed     crewmember duties unless the Attor-
29 days.                                      ney General determines that the parole
   (d) Crewmen. (1) The provisions of         of such alien is necessary to protect
parts 251, 252, 253, and 258 of this chap-    the national security of the United
ter shall govern the landing of crew-         States. This paragraph does not pro-
men as nonimmigrants of the class de-         hibit the granting of parole for other
fined in section 101(a)(15)(D) of the Act.    purposes, such as medical emergencies.
An alien in this status may be em-              (iv) Qualified current employees. (A)
ployed only in a crewman capacity on          Paragraphs (d)(2)(i), (d)(2)(ii), and
the vessel or aircraft of arrival, or on a    (d)(2)(iii) of this section do not apply to
vessel or aircraft of the same transpor-      an alien who is already an employee of
tation company, and may not be em-            the owner or operator of the vessel or
ployed in connection with domestic            air carrier and who at the time of in-
flights or movements of a vessel or air-      spection presents true copies of em-
craft. However, nonimmigrant crew-            ployer work records which satisfy the
men may perform crewmember duties             examining immigration officer that
through stopovers on an international         the alien:
flight for any United States carrier            (1) Has been an employee of such em-
where such flight uses a single aircraft      ployer for a period of not less than one
and has an origination or destination         year preceding the date that a strike or
point outside the United States.              lawful lockout commenced;
   (2) Denial of crewman status in the case     (2) Has served as a qualified crewman
of certain labor disputes (D non-             for such employer at least once in
immigrants). (i) An alien shall be denied     three different months during the 12-
D crewman status as described in sec-         month period preceding the date that
tion 101(a)(15)(D) of the Act if:             the strike or lockout commenced; and

                                          238
Immigration and Naturalization Service, Justice                                 § 214.2

  (3) Shall continue to provide the             (iii) Intends to depart the United
same crewman services that he or she          States upon the expiration or termi-
previously provided to the employer.          nation of treaty investor (E–2) status.
  (B) An alien crewman who qualifies            (3) Employee of treaty trader or treaty
as a current employee under this para-        investor. An alien employee of a treaty
graph remains subject to the restric-         trader, if otherwise admissible, may be
tions on his or her employment in the         classified as E–1, and an alien employee
United States contained in paragraph          of a treaty investor, if otherwise ad-
(d)(1) of this section.                       missible, may be classified as E–2 if the
  (v) Strike or lockout determination.        employee is in or is coming to the
These provisions will take effect if the      United States to engage in duties of an
Attorney General, through the Com-            executive or supervisory character, or,
missioner of the Immigration and Nat-         if employed in a lesser capacity, the
uralization Service or his or her des-        employee has special qualifications
ignee, after consultation with the Na-        that make the alien’s services essential
tional Mediation Board, determines            to the efficient operation of the enter-
that a strike, lockout, or labor dispute      prise. The employee must have the
involving a work stoppage is in               same nationality as the principal alien
progress in the bargaining unit of the        employer. In addition, the employee
                                              must intend to depart the United
employer for whom the alien intends to
                                              States upon the expiration or termi-
perform such service.
                                              nation of E–1 or E–2 status. The prin-
  (e) Treaty traders and investors—(1)
                                              cipal alien employer must be:
Treaty trader. An alien, if otherwise ad-
                                                (i) A person in the United States hav-
missible, may be classified as a non-
                                              ing the nationality of the treaty coun-
immigrant treaty trader (E–1) under
                                              try and maintaining nonimmigrant
the provisions of section 101(a)(15)(E)(i)
                                              treaty trader or treaty investor status
of the Act if the alien:
                                              or, if not in the United States, would
  (i) Will be in the United States solely     be classifiable as a treaty trader or
to carry on trade of a substantial na-        treaty investor; or
ture, which is international in scope,          (ii) An enterprise or organization at
either on the alien’s behalf or as an         least 50 percent owned by persons in
employee of a foreign person or organi-       the United States having the national-
zation engaged in trade principally be-       ity of the treaty country and maintain-
tween the United States and the treaty        ing nonimmigrant treaty trader or
country of which the alien is a na-           treaty investor status or who, if not in
tional, taking into consideration any         the United States, would be classifiable
conditions in the country of which the        as treaty traders or treaty investors.
alien is a national which may affect            (4) Spouse and children of treaty trader
the alien’s ability to carry on such sub-     or treaty investor. The spouse and child
stantial trade; and                           of a treaty trader or treaty investor ac-
  (ii) Intends to depart the United           companying or following to join the
States upon the expiration or termi-          principal alien, if otherwise admissible,
nation of treaty trader (E–1) status.         may receive the same classification as
  (2) Treaty investor. An alien, if other-    the principal alien. The nationality of
wise admissible, may be classified as a       a spouse or child of a treaty trader or
nonimmigrant treaty investor (E–2)            treaty investor is not material to the
under      the   provision     of   section   classification of the spouse or child
101(a)(15)(E)(ii) of the Act if the alien:    under     the   provisions   of   section
  (i) Has invested or is actively in the      101(a)(15)(E) of the Act.
process of investing a substantial              (5) Nonimmigrant intent. An alien clas-
amount of capital in a bona fide enter-       sified under section 101(a)(15)(E) of the
prise in the United States, as distinct       Act shall maintain an intention to de-
from a relatively small amount of cap-        part the United States upon the expira-
ital in a marginal enterprise solely for      tion or termination of E–1 or E–2 sta-
the purpose of earning a living;              tus. However, an application for initial
  (ii) Is seeking entry solely to develop     admission, change of status, or exten-
and direct the enterprise; and                sion of stay in E classification may not

                                          239
§ 214.2                                                 8 CFR Ch. I (1–1–98 Edition)

be denied solely on the basis of an ap-     tive, supervisory, or essential skills;
proved request for permanent labor          and
certification or a filed or approved im-      (C) The work is consistent with the
migrant visa preference petition.           terms and conditions of the activity
  (6) Treaty country. A treaty country      forming the basis of the classification.
is, for purposes of this section, a for-      (iii) Substantive changes. Prior Serv-
eign state with which a qualifying          ice approval must be obtained where
Treaty of Friendship, Commerce, or          there will be a substantive change in
Navigation or its equivalent exists         the terms or conditions of E status. In
with the United States. A treaty coun-      such cases, a treaty alien must file a
try includes a foreign state that is ac-    new application on Form I–129 and E
corded treaty visa privileges under sec-    supplement, in accordance with the in-
tion 101(a)(15)(E) of the Act by specific   structions on that form, requesting ex-
legislation.                                tension of stay in the United States. In
  (7) Treaty country nationality. The na-   support of an alien’s Form I–129 appli-
tionality of an individual treaty trader    cation, the treaty alien must submit
or treaty investor is determined by the     evidence of continued eligibility for E
authorities of the foreign state of         classification in the new capacity. Al-
which the alien is a national. In the       ternatively, the alien must obtain from
case of an enterprise or organization,      a consular officer a visa reflecting the
ownership must be traced as best as is      new terms and conditions and subse-
practicable to the individuals who are      quently apply for admission at a port-
ultimately its owners.                      of-entry. The Service will deem there
  (8) Terms and conditions of E treaty      to have been a substantive change ne-
status—(i) Limitations on employment.       cessitating the filing of a new Form I–
The Service determines the terms and        129 application in cases where there has
conditions of E treaty status at the        been a fundamental change in the em-
time of admission or approval of a re-      ploying entity’s basic characteristics,
quest to change nonimmigrant status         such as a merger, acquisition, or sale of
to E classification. A treaty trader,       the division where the alien is em-
treaty investor, or treaty employee         ployed.
may engage only in employment which           (iv) Non-substantive changes. Prior ap-
is consistent with the terms and condi-     proval is not required, and there is no
tions of his or her status and the activ-   need to file a new Form I–129, if there
ity forming the basis for the E treaty      is no substantive, or fundamental,
status.                                     change in the terms or conditions of
  (ii) Subsidiary employment. Treaty em-    the alien’s employment which would
ployees may perform work for the par-       affect the alien’s eligibility for E clas-
ent treaty organization or enterprise,      sification. Further, prior approval is
or any subsidiary of the parent organi-     not required if corporate changes occur
zation or enterprise. Performing work       which do not affect the previously ap-
for subsidiaries of a common parent en-     proved employment relationship, or
terprise or organization will not be        are otherwise non-substantive. To fa-
deemed to constitute a substantive          cilitate admission, the alien may:
change in the terms and conditions of         (A) Present a letter from the treaty-
the underlying E treaty employment if,      qualifying company through which the
at the time the E treaty status was de-     alien attained E classification explain-
termined, the applicant presented evi-      ing the nature of the change;
dence establishing:                           (B) Request a new Form I–797, Ap-
  (A) The enterprise or organization,       proval Notice, reflecting the non-sub-
and any subsidiaries thereof, where the     stantive change by filing with the ap-
work will be performed; the requisite       propriate Service Center Form I–129,
parent-subsidiary     relationship;  and    with fee, and a complete description of
that the subsidiary independently           the change, or;
qualifies as a treaty organization or         (C) Apply directly to State for a new
enterprise under this paragraph;            E visa reflecting the change. An alien
  (B) In the case of an employee of a       who does not elect one of the three op-
treaty trader or treaty investor, the       tions contained in paragraph (e)(8)(iv)
work to be performed requires execu-        (A) through (C) of this section, is not

                                        240
Immigration and Naturalization Service, Justice                               § 214.2

precluded from demonstrating to the         quired to comply with the terms of 8
satisfaction of the immigration officer     CFR part 274a.
at the port-of-entry in some other            (9) Trade—definitions. For purposes of
manner, his or her admissibility under      this paragraph: Items of trade include
section 101(a)(15)(E) of the Act.           but are not limited to goods, services,
   (v) Advice. To ascertain whether a       international banking, insurance, mon-
change is substantive, an alien may file    ies, transportation, communications,
with the Service Center Form I–129,         data processing, advertising, account-
with fee, and a complete description of     ing, design and engineering, manage-
the change, to request appropriate ad-      ment consulting, tourism, technology
vice. In cases involving multiple em-       and its transfer, and some news-gather-
ployees, an alien may request that a        ing activities. For purposes of this
Service Center determine if a merger        paragraph, goods are tangible commod-
or other corporate restructuring re-        ities or merchandise having extrinsic
quires the filing of separate applica-      value. Further, as used in this para-
tions by filing a single Form I–129, with   graph, services are legitimate eco-
fee, and attaching a list of the related    nomic activities which provide other
receipt numbers for the employees in-       than tangible goods.
volved and an explanation of the              Trade is the existing international
change or changes. Where employees          exchange of items of trade for consider-
are located within multiple jurisdic-       ation between the United States and
tions, such a request for advice must be    the treaty country. Existing trade in-
filed with the Service Center in Lin-       cludes successfully negotiated con-
coln, Nebraska.                             tracts binding upon the parties which
   (vi) Approval. If an application to      call for the immediate exchange of
change the terms and conditions of E        items of trade. Domestic trade or the
status or employment is approved, the       development of domestic markets
Service shall notify the applicant on       without international exchange does
Form I–797. An extension of stay in         not constitute trade for purposes of
nonimmigrant E classification may be        section 101(a)(15)(E) of the Act. This ex-
granted for the validity of the approved    change must be traceable and identifi-
application. The alien is not authorized    able. Title to the trade item must pass
to begin the new employment until the       from one treaty party to the other.
application is approved. Employment           (10) Substantial trade. Substantial
is authorized only for the period of        trade is an amount of trade sufficient
time the alien remains in the United        to ensure a continuous flow of inter-
States. If the alien subsequently de-       national trade items between the
parts from the United States, readmis-      United States and the treaty country.
sion in E classification may be author-     This continuous flow contemplates nu-
ized where the alien presents his or her    merous transactions over time. Treaty
unexpired E visa together with the          trader status may not be established or
Form I–797, Approval Notice, indicat-       maintained on the basis of a single
ing Service approval of a change of em-     transaction, regardless of how pro-
ployer or of a change in the sub-           tracted or monetarily valuable the
stantive terms or conditions of treaty      transaction. Although the monetary
status or employment in E classifica-       value of the trade item being ex-
tion, or, in accordance with 22 CFR         changed is a relevant consideration,
41.112(d), where the alien is applying      greater weight will be given to more
for readmission after an absence not        numerous exchanges of larger value.
exceeding 30 days solely in contiguous      There is no minimum requirement with
territory.                                  respect to the monetary value or vol-
   (vii) An unauthorized change of em-      ume of each individual transaction. In
ployment to a new employer will con-        the case of smaller businesses, an in-
stitute a failure to maintain status        come derived from the value of numer-
within     the    meaning     of  section   ous transactions which is sufficient to
237(a)(1)(C)(i) of the Act. In all cases    support the treaty trader and his or her
where the treaty employee will be pro-      family constitutes a favorable factor in
viding services to a subsidiary under       assessing the existence of substantial
this paragraph, the subsidiary is re-       trade.

                                        241
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

  (11) Principal trade. Principal trade      successfully develop and direct the en-
between the United States and the            terprise. Generally, the lower the cost
treaty country exists when over 50 per-      of the enterprise, the higher, propor-
cent of the volume of international          tionately, the investment must be to
trade of the treaty trader is conducted      be considered a substantial amount of
between the United States and the            capital.
treaty country of the treaty trader’s          (15) Marginal enterprise. For purposes
nationality.                                 of this section, an enterprise may not
  (12) Investment. An investment is the      be marginal. A marginal enterprise is
treaty investor’s placing of capital, in-    an enterprise that does not have the
cluding funds and other assets (which        present or future capacity to generate
have not been obtained, directly or in-      more than enough income to provide a
directly, through criminal activity), at
                                             minimal living for the treaty investor
risk in the commercial sense with the
                                             and his or her family. An enterprise
objective of generating a profit. The
                                             that does not have the capacity to gen-
treaty investor must be in possession
                                             erate such income, but that has a
of and have control over the capital in-
vested or being invested. The capital        present or future capacity to make a
must be subject to partial or total loss     significant economic contribution is
if investment fortunes reverse. Such         not a marginal enterprise. The pro-
investment capital must be the inves-        jected future income-generating capac-
tor’s unsecured personal business cap-       ity should generally be realizable with-
ital or capital secured by personal as-      in 5 years from the date the alien com-
sets. Capital in the process of being in-    mences the normal business activity of
vested or that has been invested must        the enterprise.
be irrevocably committed to the enter-         (16) Solely to develop and direct. An
prise. The alien has the burden of es-       alien seeking classification as a treaty
tablishing such irrevocable commit-          investor (or, in the case of an employee
ment. The alien may use any legal            of a treaty investor, the owner of the
mechanism available, such as the             treaty enterprise) must demonstrate
placement of invested funds in escrow        that he or she does or will develop and
pending admission in, or approval of, E      direct the investment enterprise. Such
classification, that would not only ir-      an applicant must establish that he or
revocably commit funds to the enter-         she controls the enterprise by dem-
prise, but might also extend personal        onstrating ownership of at least 50 per-
liability protection to the treaty inves-    cent of the enterprise, by possessing
tor in the event the application for E       operational control through a manage-
classification is denied.                    rial position or other corporate device,
  (13) Bona fide enterprise. The enter-      or by other means.
prise must be a real, active, and oper-        (17) Executive and supervisory char-
ating commercial or entrepreneurial
                                             acter. The applicant’s position must be
undertaking which produces services or
                                             principally and primarily, as opposed
goods for profit. The enterprise must
                                             to incidentally or collaterally, execu-
meet applicable legal requirements for
doing business in the particular juris-      tive or supervisory in nature. Execu-
diction in the United States.                tive and supervisory duties are those
  (14) Substantial amount of capital. A      which provide the employee ultimate
substantial amount of capital con-           control and responsibility for the en-
stitutes an amount which is:                 terprise’s overall operation or a major
  (i) Substantial in relationship to the     component thereof. In determining
total cost of either purchasing an es-       whether the applicant has established
tablished enterprise or creating the         possession of the requisite control and
type of enterprise under consideration;      responsibility, a Service officer shall
  (ii) Sufficient to ensure the treaty in-   consider, where applicable:
vestor’s financial commitment to the           (i) That an executive position is one
successful operation of the enterprise;      which provides the employee with
and                                          great authority to determine the pol-
  (iii) Of a magnitude to support the        icy of, and the direction for, the enter-
likelihood that the treaty investor will     prise;

                                         242
Immigration and Naturalization Service, Justice                               § 214.2

  (ii) That a position primarily of su-     particular facts presented. A skill that
pervisory character provides the em-        is essential at one point in time may
ployee supervisory responsibility for a     become commonplace at a later date.
significant proportion of an enter-         Skills that are needed to start up an
prise’s operations and does not gen-        enterprise may no longer be essential
erally involve the direct supervision of    after initial operations are complete
low-level employees, and;                   and running smoothly. Some skills are
  (iii) Whether the applicant possesses     essential only in the short-term for the
executive and supervisory skills and        training of locally hired employees.
experience; a salary and position title     Under certain circumstances, an appli-
commensurate with executive or super-       cant may be able to establish his or her
visory employment; recognition or in-       essentiality to the treaty enterprise for
dicia of the position as one of author-     a longer period of time, such as, in con-
ity and responsibility in the overall or-   nection with activities in the areas of
ganizational structure; responsibility      product improvement, quality control,
for making discretionary decisions,         or the provision of a service not yet
setting policies, directing and manag-      generally available in the United
ing business operations, supervising        States. Where the treaty enterprise’s
other professional and supervisory per-     need for the applicant’s special quali-
sonnel; and that, if the position re-       fications, and therefore, the applicant’s
quires some routine work usually per-       essentiality, is time-limited, Service
formed by a staff employee, such func-      officers may request that the applicant
tions may only be of an incidental na-      provide evidence of the period for
ture.                                       which skills will be needed and a rea-
  (18) Special qualifications. Special      sonable projected date for completion
qualifications are those skills and/or      of start-up or replacement of the essen-
aptitudes that an employee in a lesser      tial skilled workers.
capacity brings to a position or role         (19) Period of admission. Periods of ad-
that are essential to the successful or     mission are as follows:
efficient operation of the treaty enter-      (i) A treaty trader or treaty investor
prise. In determining whether the           may be admitted for an initial period
skills possessed by the alien are essen-    of not more than 2 years.
tial to the operation of the employing        (ii) The spouse and minor children
treaty enterprise, a Service officer        accompanying or following to join a
must consider, where applicable:            treaty trader or treaty investor shall
  (i) The degree of proven expertise of     be admitted for the period during
the alien in the area of operations in-     which the principal alien is in valid
volved; whether others possess the ap-      treaty trader or investor status. The
plicant’s specific skill or aptitude; the   temporary departure from the United
length of the applicant’s experience        States of the principal trader or inves-
and/or training with the treaty enter-      tor shall not affect the derivative sta-
prise; the period of training or other      tus of the dependent spouse and minor
experience necessary to perform effec-      unmarried children, provided the fa-
tively the projected duties; the rela-      milial relationship continues to exist
tionship of the skill or knowledge to       and the principal remains eligible for
the enterprise’s specific processes or      admission as an E nonimmigrant to
applications, and the salary the special    perform the activity.
qualifications can command; that              (iii) Unless otherwise provided for in
knowledge of a foreign language and         this chapter, an alien shall not be ad-
culture does not, by itself, meet the       mitted in E classification for a period
special    qualifications   requirement,    of time extending more than 6 months
and;                                        beyond the expiration date of the
  (ii) Whether the skills and qualifica-    alien’s passport.
tions are readily available in the            (20) Extensions of stay. Requests for
United States. In all cases, in deter-      extensions of stay may be granted in
mining whether the applicant possesses      increments of not more than 2 years. A
special qualifications which are essen-     treaty trader or treaty investor in
tial to the treaty enterprise, a Service    valid E status may apply for an exten-
officer must take into account all the      sion of stay by filing an application for

                                        243
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

extension of stay on Form I–129 and E           (22) Denial of treaty trader or treaty in-
Supplement, with required accompany-          vestor status to citizens of Canada or
ing documents, in accordance with             Mexico in the case of certain labor dis-
§ 214.1 and the instructions on that          putes. (i) A citizen of Canada or Mexico
form.                                         may be denied E treaty trader or trea-
   (i) For purposes of eligibility for an     ty investor status as described in sec-
extension of stay, the alien must prove       tion 101(a)(15)(E) of the Act and section
that he or she:                               B of Annex 1603 of the NAFTA if:
   (A) Has at all times maintained the          (A) The Secretary of Labor certifies
terms and conditions of his or her E          to, or otherwise informs, the Commis-
nonimmigrant classification;                  sioner that a strike or other labor dis-
   (B) Was physically present in the          pute involving a work stoppage of
United States at the time of filing the       workers is in progress at the place
application for extension of stay; and        where the alien is or intends to be em-
   (C) Has not abandoned his or her ex-       ployed; and
tension request.                                (B) Temporary entry of that alien
   (ii) With limited exceptions, it is pre-   may adversely affect either:
sumed that employees of treaty enter-           (1) The settlement of any labor dis-
prises with special qualifications who        pute that is in progress at the place or
are responsible for start-up operations       intended place of employment, or
should be able to complete their objec-         (2) The employment of any person
tives within 2 years. Absent special cir-     who is involved in such dispute.
cumstances, therefore, such employees           (ii) If the alien has already com-
will not be eligible to obtain an exten-      menced employment in the United
sion of stay.
                                              States and is participating in a strike
   (iii) Subject to paragraph (e)(5) of       or other labor dispute involving a work
this section and the presumption noted        stoppage of workers, whether or not
in paragraph (e)(22)(ii) of this section,     such strike or other labor dispute has
there is no specified number of exten-
                                              been certified by the Department of
sions of stay that a treaty trader or
                                              Labor, the alien shall not be deemed to
treaty investor may be granted.
                                              be failing to maintain his or her status
   (21) Change of nonimigrant status. (i)     solely on account of past, present, or
An alien in another valid non-
                                              future participation in a strike or
immigrant status may apply for
                                              other labor dispute involving a work
change of status to E classification by
                                              stoppage of workers, but is subject to
filing an application for change of sta-
                                              the following terms and conditions:
tus on Form I–129 and E Supplement,
with required accompanying docu-                (A) The alien shall remain subject to
ments establishing eligibility for a          all applicable provisions of the Act and
change of status and E classification,        regulations applicable to all other E
in accordance with 8 CFR part 248 and         nomimmigrants; and
the instructions on Form I–129 and E            (B) The status and authorized period
Supplement.                                   of stay of such an alien is not modified
   (ii) The spouse or minor children of       or extended in any way by virtue of his
an applicant seeking a change of status       or her participation in a strike or other
to that of treaty trader or treaty inves-     labor dispute involving a work stop-
tor alien shall file concurrent applica-      page of workers.
tions for change of status to derivative        (iii) Although participation by an E
treaty classification on the appropriate      nonimmigrant alien in a strike or
Service form. Applications for deriva-        other labor dispute involving a work
tive treaty status shall:                     stoppage of workers will not constitute
   (A) Be approved only if the principal      a ground for deportation, any alien
treaty alien is granted treaty alien sta-     who violates his or her status or who
tus and continues to maintain that sta-       remains in the United States after his
tus;                                          or her authorized period of stay has ex-
   (B) Be approved for the period of ad-      pired will be subject to deportation.
mission authorized in paragraph (e)(20)         (f) Students in colleges, universities,
of this section.                              seminaries, conservatories, academic high

                                          244
Immigration and Naturalization Service, Justice                                § 214.2

schools, elementary schools, other aca-      copy bearing the same information as
demic institutions, and in language train-   the lost copy, including any endorse-
ing programs—(1) Admission of student—       ment for employment and notations,
(i) Eligibility for admission. A non-        may be issued by the designated school
immigrant student and his or her ac-         official (DSO) as defined in 8 CFR
companying spouse and minor children         214.3(l)(1)(i).
may be admitted into the United                (3) Spouse and minor children following
States in F–1 and F–2 classifications        to join student. The spouse and minor
for duration of status under section         children following to join an F–1 stu-
101(a)(15)(F)(i) of the Act, if the stu-     dent are eligible for admission to the
dent:                                        United States if the F–1 student is, or
   (A) Presents a properly completed         will be within sixty days, enrolled in a
Form I–20 A–B/I–20 ID, Certificate of        full course of study or, if the student is
Eligibility for Nonimmigrant (F–1)           engaged in approved practical training
Student Status, which is issued by a         following completion of studies. The el-
school approved by the Service for at-       igible spouse and minor children of an
tendance by foreign students;                F–1 student may be admitted in F–2
   (B) Has documentary evidence of fi-       status if they present the F–1 student’s
nancial support in the amount indi-          current I–20 ID with proper endorse-
cated on the Form I–20 A–B/I–20 ID; and      ment by the DSO. A new Form I–20 A–
   (C) For students seeking initial ad-      B is required where there has been any
mission only, intends to attend the          substantive change in the information
school specified in the student’s visa       on the student’s current I–20 ID.
except where the student is exempt             (4) Temporary absence. An F–1 student
from the requirement for a visa, in          returning to the United States from a
which case the student must intend to        temporary absence of five months or
attend the school indicated on the           less may be readmitted for attendance
Form I–20 A–B/I–20 ID.                       at a Service-approved educational in-
   (ii) Disposition of Form I–20 A–B/I–20    stitution, if the student presents:
ID. Form I–20 A–B/I–20 ID contains two         (i) A current I–20 ID properly en-
copies, the I–20 School Copy and the I–      dorsed by the DSO for reentry if there
20 ID (Student) Copy. For purposes of        is no substantive change on the most
clarity, the entire Form I–20 A–B/I–20       recent I–20 ID; or
ID shall be referred to as Form I–20 A–        (ii) A new Form I–20 A–B if there has
B and the I–20 ID (Student) Copy shall       been any substantive change in the in-
be referred to as the I–20 ID. When an       formation on the student’s most recent
F–1 student applies for admission with       I–20 ID, such as in the case of a student
a complete Form I–20 A–B, the inspect-       who has changed the major area of
ing officer shall:                           study, who intends to transfer to an-
   (A) Transcribe the student’s admis-       other Service-approved institution, or
sion number from Form I–94 onto his or       who has advanced to a higher level of
her Form I–20 A–B (for students seek-        study.
ing initial admission only);                   (5) Duration of status—(i) General. Du-
   (B) Endorse all copies of the Form I–     ration of status is defined as the time
20 A–B;                                      during which an F–1 student is pursu-
   (C) Return the I–20 ID to the student;    ing a full course of study at an edu-
and                                          cational institution approved by the
   (D) Forward the I–20 School Copy to       Service for attendance by foreign stu-
the Service’s processing center for data     dents, or engaging in authorized prac-
entry. (The school copy of Form I–20 A–      tical training following completion of
B will be sent back to the school as a       studies, plus sixty days to prepare for
notice of the student’s admission after      departure from the United States. The
data entry.)                                 student is considered to be maintaining
   (2) I–20 ID. An F–1 student is expected   status if he or she is making normal
to safekeep the initial I–20 ID bearing      progress toward completing a course of
the admission number and any subse-          study.
quent copies which have been issued to         (ii) Change in educational levels. An F–
him or her. Should the student lose his      1 student who continues from one edu-
or her current I–20 ID, a replacement        cational level to another is considered

                                         245
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

to be maintaining status, provided that      non-vocational program at a school
the transition to the new educational        which confers upon its graduates recog-
level is accomplished according to           nized associate or other degrees or has
transfer procedures outlined in para-        established that its credits have been
graph (f)(8) of this section.                and are accepted unconditionally by at
  (iii) Annual vacation. An F–1 student      least three institutions of higher learn-
at an academic institution is consid-        ing which are either: (1) A school (or
ered to be in status during the annual       school system) owned and operated as a
(or summer) vacation if the student is       public educational institution by the
eligible and intends to register for the     United States or a State or political
next term. A student attending a             subdivision thereof; or (2) a school ac-
school on a quarter or trimester cal-        credited by a nationally recognized ac-
endar who takes only one vacation a          crediting body; and which has been cer-
year during any one of the quarters or       tified by a designated school official to
trimesters instead of during the sum-        consist of at least twelve clock hours
mer is considered to be in status during     of instruction a week, or its equivalent
that vacation, if the student has com-       as determined by the district director
pleted the equivalent of an academic         in the school approval process;
year prior to taking the vacation.             (D) Study in any other language, lib-
  (iv) Illness or medical conditions. A      eral arts, fine arts, or other nonvoca-
student who is compelled by illness or       tional training program, certified by a
other medical conditions to interrupt        designated school official to consist of
or reduce a full course of study is con-     at least eighteen clock hours of attend-
sidered to be in status during the ill-      ance a week if the dominant part of the
ness or other medical condition. The         course of study consists of classroom
student must resume a full course of         instruction, or to consist of at least
study upon recovery.                         twenty-two clock hours a week if the
  (6) Full course of study—(i) General.      dominant part of the course of study
Successful completion of the full            consists of laboratory work; or
course of study must lead to the at-           (E) Study in a primary school or aca-
tainment of a specific educational or        demic high school curriculum certified
professional objective. A ‘‘full course of   by a designated school official to con-
study’’    as     required    by   section   sist of class attendance for not less
101(a)(15)(F)(i) of the Act means:           than the minimum number of hours a
  (A)      Postgraduate       study     or   week prescribed by the school for nor-
postdoctoral study at a college or uni-      mal progress towards graduation.
versity, or undergraduate or post-             (ii) Institution of higher learning. For
graduate study at a conservatory or re-      purposes of this paragraph, a college or
ligious seminary, certified by a DSO as      university is an institution of higher
a full course of study;                      learning which awards recognized asso-
  (B) Undergraduate study at a college       ciate, bachelor’s, master’s, doctorate,
or university, certified by a school offi-   or professional degrees. Schools which
cial to consist of at least twelve semes-    devote themselves exclusively or pri-
ter or quarter hours of instruction per      marily to vocational, business, or lan-
academic term in those institutions          guage instruction are not included in
using standard semester, trimester, or       the category of colleges or universities.
quarter hour systems, where all under-       Vocational or business schools which
graduate students who are enrolled for       are classifiable as M–1 schools are pro-
a minimum of twelve semester or quar-        vided for by regulations under 8 CFR
ter hours are charged full-time tuition      214.2(m).
or are considered full-time for other          (iii) Reduced course load. The des-
administrative purposes, or its equiva-      ignated school official may advise an
lent (as determined by the district di-      F–1 student to engage in less than a
rector in the school approval process),      full course of study due to initial dif-
except when the student needs a lesser       ficulties with the English language or
course load to complete the course of        reading requirements, unfamiliarity
study during the current term;               with American teaching methods, or
  (C) Study in a postsecondary lan-          improper course level placement. An
guage, liberal arts, fine arts, or other     F–1 student authorized to reduce

                                         246
Immigration and Naturalization Service, Justice                               § 214.2

course load by the DSO in accordance         and who is ineligible for program ex-
with the provisions of this paragraph is     tension pursuant to paragraph (f)(7)(iii)
considered to be maintaining status.         of this section is considered to be out
On-campus employment pursuant to             of status. Under these circumstances,
the terms of a scholarship, fellowship,      the student must apply for reinstate-
or assistantship is deemed to be part of     ment under the Provisions of para-
the academic program of a student oth-       graph (f)(16) of this section.
erwise taking a full course of study.          (8) School transfer—(i) Eligibility. An
  (7) Extension of stay—(i) General. An      F–1 student who is maintaining status
F–1 student is admitted for duration of      may transfer to another Service-ap-
status. The student is not required to       proved school by following the notifi-
apply for extension of stay as long as       cation procedure prescribed in para-
the student is maintaining status and
                                             graph (f)(8)(ii) of this section. An F–1
making normal progress toward com-
                                             student who was not pursuing a full
pleting his or her educational objec-
                                             course of study at the school he or she
tive. An F–1 student who is unable to
                                             was last authorized to attend is ineli-
complete a full course of study in a
timely manner must apply, in a 30–day        gible for school-transfer and must
period before the completion date on         apply for reinstatement under the pro-
the Form I–20 A–B, to the DSO for a          visions of paragraph (f)(16) of this sec-
program extension pursuant to para-          tion.
graph (f)(7)(iii) of this section.             (ii) Transfer procedure. To transfer
  (ii) Completion date on Form I–20 A–B.     schools, an F–1 student must first no-
When determining the program com-            tify the school he or she is attending of
pletion date on Form I–20 A–B, the           the intent to transfer, then obtain a
DSO should make a reasonable esti-           Form I–20 A–B, issued in accordance
mate based on the time an average for-       with the provisions of 8 CFR 214.3(k),
eign student would need to complete a        from the school to which he or she in-
similar program in the same discipline.      tends to transfer. The transfer will be
A grace period of no more than one           effected only if the F–1 student com-
year may be added onto the DSO’s esti-       pletes the Student Certification por-
mate.                                        tion of the Form I–20 A–B and returns
  (iii) Program extension for students in    the form to a designated school official
lawful status. An F–1 student who is un-     on campus within 15 days of beginning
able to meet the program completion          attendance at the new school.
date on the Form I–20 A–B may be               (iii) Notification. Upon receipt of the
granted a program extension by the           student’s Form I–20 A–B, the DSO
school, if the DSO certifies on a Form       must:
I–538 that the student has continually         (A) Note ‘‘transfer completed on
maintained status and that the delays        (date)’’ on the student’s I–20 ID in the
are caused by compelling academic or         space provided for the DSO’s remarks,
medical reasons, such as changes of          thereby acknowledging the student’s
major or research topics, unexpected         attendance;
research problems, or documented ill-
                                               (B) Return the I–20 ID to the student;
nesses. Delays caused by academic pro-
bation or suspension are not acceptable        (C) Submit the I–20 School copy to
reasons for program extension. The           the Service’s Data Processing Center
DSO must notify the Service within 30        within 30 days of receipt from the stu-
days of any approved program exten-          dent; and
sions by forwarding to the Service data        (D) Forward a photocopy of the Form
processing center a certification on         I–20 A-B School Copy to the school
Form I–538 and the top page of a new         from which the student transferred.
Form I–20 A–B showing a new program            (9) Employment—(i) On-campus employ-
completion date.                             ment. On-campus employment must ei-
  (iv) Failure to complete the educational   ther be performed on the school’s
program in a timely manner. An F–1 stu-      premises, (including on-location com-
dent who is unable to complete the           mercial firms which provide services
educational program within the time          for students on campus, such as the
period written on the Form I–20 A–B          school bookstore or cafeteria), or at an

                                         247
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

off-campus location which is educa-              (B) Wage-and-labor attestation require-
tionally affiliated with the school. Em-      ment. Except as provided under para-
ployment with on-site commercial              graphs (f)(9)(ii)(C) and (f)(9)(iii) of this
firms, such as a construction company         section, a student may be authorized to
building a school building, which do          accept off-campus employment only if
not provide direct student services is        the prospective employer has filed a
not deemed on-campus employment for           labor-and-wage attestation pursuant to
the purposes of this paragraph. In the        20 CFR part 655, subparts J and K (re-
case of off-campus locations, the edu-        quiring the employer to attest to the
cational affiliation must be associated       fact that it has actively recruited do-
with the school’s established curricu-        mestic labor for at least 60 days for the
lum or related to contractually funded        position and will accord the student
research projects at the post-graduate        worker the same wages and working
level. In any event, the employment           conditions as domestic workers simi-
must be an integral part of the stu-          larly employed.)
dent’s educational program. Employ-              (C) Severe economic hardship. If other
ment authorized under this paragraph          employment opportunities are not
must not exceed twenty hours a week           available or are otherwise insufficient,
while school is in session. An F–1 stu-       an eligible F–1 student may request off-
dent may, however, work on campus             campus employment work authoriza-
full-time when school is not in session       tion based upon severe economic hard-
or during the annual vacation. A stu-         ship     caused     by    unforeseen    cir-
dent who has been issued a Form I–20          cumstances beyond the student’s con-
A-B to begin a new program in accord-         trol. These circumstances may include
ance with the provision of 8 CFR              loss of financial aid or on-campus em-
214.3(k) and who intends to enroll for        ployment without fault on the part of
the next regular academic year, term,         the student, substantial fluctuations in
or session at the institution which           the value of currency or exchange rate,
issued the Form I–20 A-B may continue         inordinate increases in tuition and/or
on-campus employment incident to              living costs, unexpected changes in the
status. Otherwise, an F-1 student may         financial condition of the student’s
not engage in on-campus employment            source of support, medical bills, or
after completing a course of study, ex-       other substantial and unexpected ex-
cept employment for practical training        penses.
as authorized under paragraph (f)(10) of         (D) Procedure for off-campus employ-
this section. An F-I student may en-          ment authorization. The student must
gage in any on-campus employment au-          submit the application to the DSO on
thorized under this paragraph which           Form I–538, Certification by Designated
will not displace United States resi-         School Official. The DSO may rec-
dents.                                        ommend the student work off-campus
  (ii) Off-campus work authorization—         for one year intervals by certifying on
(A) General. An F–1 student may be au-        the Form I–538 that:
thorized to work off-campus on a part-           (1) The student has been in F–1 status
time basis in accordance with para-           for one full academic year;
graph (f)(9)(ii) (B) or (C) of this section      (2) The student is in good standing as
after having been in F–1 status for one       a student and is carrying a full course
full academic year provided that the          of study as defined in paragraph (f)(6)
student is in good academic standing          of this section;
as determined by the DSO. Part-time              (3) The student has demonstrated
off-campus employment authorized              that acceptance of employment will
under this section is limited to no           not interfere with the student’s carry-
more than twenty hours a week when            ing a full course of study; and
school is in session. A student who is           (4) Either: (i) The prospective em-
granted off-campus employment au-             ployer has submitted a labor-and-wage
thorization may work full-time during         attestation pursuant to paragraph
holidays or school vacation. The em-          (f)(9)(ii)(B) of this section, or
ployment authorization is automati-              (ii) The student has demonstrated
cally terminated whenever the student         that the employment is necessary to
fails to maintain status.                     avoid severe economic hardship due to

                                          248
Immigration and Naturalization Service, Justice                                § 214.2

unforeseen circumstances beyond the           gram opportunities, this requirement
student’s control pursuant to para-           is satisfied if the DSO certifies on
graph (f)(9)(ii)(C) of this section, and      Form I–538 that employment under the
has demonstrated that employment              Pilot program is insufficient to meet
under paragraph (f)(9)(i) and (f)(9)(ii)(B)   the student’s needs. The student must
of this section is unavailable or other-      apply for the employment authoriza-
wise insufficient to meet the needs           tion on Form I–765 with the Service of-
that have arisen as a result of the un-       fice having jurisdiction over his or her
foreseen circumstances.                       place of residence.
  (E) Wage-and-Labor attestation appli-         (2) The Service shall adjudicate the
cation to the DSO. An eligible F–1 stu-       application for work authorization
dent may make a request for off-cam-          based upon severe economic hardship
pus employment authorization to the           on the basis of Form I–20 ID, Form I–
DSO on Form I–538 after the employer          538, and Form I–765, and any additional
has filed the labor-and-wage attesta-         supporting materials. If employment is
tion. By certifying on Form I–538 that        authorized, the adjudicating officer
the student is eligible for off-campus        shall issue an EAD. The Service direc-
employment, and endorsing the stu-            tor shall notify the student of the deci-
dent’s I–20 ID, the DSO may authorize
                                              sion, and, if the application is denied,
off-campus employment in one year in-
                                              of the reason or reasons for the denial.
tervals for the duration of a valid at-
                                              No appeal shall lie from a decision to
testation as determined by the Sec-
                                              deny a request for employment author-
retary of Labor. The endorsement on
                                              ization under this section. The employ-
the student’s I–20 ID should read ‘‘part-
                                              ment authorization may be granted in
time employment with (name of em-
                                              one year intervals up to the expected
ployer) at (location) authorized from
(date) to (date).’’ Off-campus employ-        date of completion of the student’s cur-
ment authorized by the DSO under this         rent course of study. A student has per-
provision is incident to the student’s        mission to engage in off-campus em-
status      pursuant     to      8    CFR     ployment only if the student receives
274a.12(b)(6)(ii) and employer-specific       the EAD endorsed to that effect. Off-
and, therefore, exempt from the EAD           campus      employment     authorization
requirement. The DSO must notify the          may be renewed by the Service only if
Service of each off-campus employ-            the student is maintaining status and
ment authorization by forwarding to           good academic standing. The employ-
the Service data processing center the        ment authorization is automatically
completed Form I–538. The DSO shall           terminated whenever the student fails
return to the student the endorsed I–20       to maintain status.
ID.                                             (iii) Internship with an international
  (F) Severe economic hardship applica-       organization. A bona fide F-1 student
tion—(1) The applicant should submit          who has been offered employment by a
to the Service Form I–20 ID, Form I–          recognized international organization
538, and Form I–765 along with the fee        within the meaning of the Inter-
required by 8 CFR 103.7(b)(1), and any        national Organization Immunities Act
other supporting materials such as affi-      (59 Stat. 669) must apply for employ-
davits which further detail the unfore-       ment authorization, in person, to the
seen circumstances that require the           Service office having jurisdiction over
student to seek employment authoriza-         his or her place of residence. A student
tion and the unavailability or insuffi-       seeking     employment     authorization
ciency of employment under para-              under this provision is required to
graphs (f)(9)(i) and (f)(9)(ii)(B) of this    present a written certification from
section. The requirement with respect         the international organization that the
to paragraph (f)(9)(ii)(B) of this section    proposed employment is within the
is satisfied if the DSO certifies on          scope of the organization’s sponsorship,
Form I–538 that the student and the           an I–20 ID endorsed for reentry by the
DSO are not aware of available employ-        DSO within the last 30 days, and a
ment in the area through the Pilot Off-       completed Form I–765, Application for
Campus Employment Program. In                 Employment Authorization, with the
areas where there are such Pilot pro-         fee required in 8 CFR 103.7(b)(1).

                                          249
§ 214.2                                                    8 CFR Ch. I (1–1–98 Edition)

   (10) Practical training. Practical train-   ployment for practical training may be
ing is available to F–1 students who           authorized:
have been lawfully enrolled on a full-            (1) During the student’s annual vaca-
time basis in a Service-approved col-          tion and at other times when school is
lege, university, conservatory, or semi-       not in session if the student is cur-
nary for at least nine consecutive             rently enrolled and eligible, and in-
months. Students in English language           tends, to register for the next term or
training programs are ineligible for           session;
practical training. An eligible F–1 stu-          (2) While school is in session, pro-
dent may request employment author-            vided that practical training does not
ization for practical training in a posi-      exceed twenty hours a week while
tion which is directly related to his or       school is in session;
her major area of study. There are two            (3) After completion of all course re-
types of practical training available:         quirements for the degree (excluding
   (i) Curricular practical training pro-      thesis or equivalent), if the student is
grams. An F–1 student may be author-           in a bachelor’s master’s, or doctoral de-
ized, by the DSO, to participate in a          gree program; or
curricular practical training program             (4) After completion of the course of
which is an integral part of an estab-         study. A student must complete all
lished curriculum. Curricular practical        practical training within a 14 month
training is defined to be alternate            period following the completion of
work/study, internship, cooperative            study.
education, or any other type of re-               (B) Termination of practical training.
quired internship or practicum which           Authorization to engage in practical
is offered by sponsoring employers             training employment is automatically
through cooperative agreements with            terminated when the student transfers
the school. Students who have received         to another school.
one year or more of full-time curricu-            (C) Request for authorization for prac-
lar practical training are ineligible for      tical training. A request for authoriza-
post-completion practical training. Ex-        tion to accept practical training must
ceptions to the nine-month in status           be made to the designated school offi-
requirement are provided for students          cial (DSO) of the school the student is
enrolled in graduate studies which re-         authorized to attend on Form I–538, ac-
quire immediate participation in cur-          companied by his or her current Form
                                               I–20 ID.
ricular practical training. A request for
                                                  (D) Action of the DSO. In making a
authorization for curricular practical
                                               recommendation for practical training,
training must be made to the DSO on
                                               a designated school official must:
Form I–538. Upon approving the request
                                                  (1) Certify on Form I–538 that the
for authorization, the DSO shall:
                                               proposed employment is directly relat-
   (A) Certify the Form I–538 and send         ed to the student’s major area of study
the form to the Service’s data process-        and commensurate with the student’s
ing center;                                    educational level;
   (B) Endorse the student’s I–20 ID with         (2) Endorse and date the student’s
‘‘full-time (or part-time) curricular          Form I–20 ID to show that practical
practical training authorized for (em-         training in the student’s major field of
ployer) at (location) from (date) to           study is recommended ‘‘full-time (or
(date)’’; and                                  part-time) from (date) to (date)’’; and
   (C) Sign and date the I–20 ID before           (3) Return to the student the Form I–
returning it to the student. A student         20 ID and send to the Service data proc-
may begin curricular practical training        essing center the school certification
only after receiving his or her I–20 ID        on Form I–538.
with the DSO endorsement.                         (11) Employment authorization. The
   (ii) Optional practical training—(A)        total periods of authorization for op-
General. An F–1 student may apply to           tional practical training under para-
the Service for authorization for tem-         graph (f)(10) of this section shall not
porary employment for practical train-         exceed a maximum of twelve months.
ing directly related to the student’s          Part-time practical training, 20 hours
major area of study. Temporary em-             per week or less, shall be deducted

                                           250
Immigration and Naturalization Service, Justice                                    § 214.2

from the available practical training at       the occupation at the place of employ-
one-half the full-time rate. As required       ment. As used in this paragraph, ‘‘place
by the regulations at 8 CFR part 274a,         of employment’’ means the facility or
an F–1 student seeking practical train-        facilities where a labor dispute exists.
ing (excluding curricular practical            The employer is prohibited from trans-
training) under paragraph (f)(10) of this      ferring F–1 students working at other
section may not accept employment              facilities to the facility where the
until he or she has been issued an Em-         work stoppage is occurring.
ployment       Authorization     Document        (15) Spouse and children of F–1 student.
(EAD) by the Service. An F–1 student           The F–1 spouse and children of an F–1
must apply to the INS for the EAD by           student may not accept employment.
filing the Form 1–765. The application           (16) Reinstatement to student status—(i)
for employment authorization must in-          General. The Service may consider rein-
clude the following documents:                 stating an F–1 student who makes a re-
   (i) A completed Form I–765, with the        quest for reinstatement on Form I–539,
fee required by § 103.7(b)(1); and             Application to Extend Time of Tem-
   (ii) A DSO’s recommendation for             porary Stay, accompanied by a prop-
practical training on I–20 ID.                 erly completed Form I–20 A–B from the
   (12) Decision on application for employ-    school the student is attending or in-
ment authorization. The Service shall          tends to attend, if the student:
adjudicate the Form I–765 and issue an           (A) Establishes to the satisfaction of
EAD on the basis of the DSO’s rec-             the Service that the violation of status
ommendation unless the student is              resulted from circumstances beyond
found otherwise ineligible. The Service        the student’s control or that failure to
shall notify the applicant of the deci-        receive reinstatement to lawful F–1
sion and, if the application is denied, of     status would result in extreme hard-
the reason or reasons for the denial.          ship to the student;
The applicant may not appeal the deci-           (B) Is currently pursuing, or intend-
sion.                                          ing to pursue, a full course of study at
   (13) Temporary absence from the United      the school which issued the Form I–20
States of F–1 student granted employment       A–B;
authorization. (i) A student returning           (C) Has not engaged in unauthorized
from a temporary trip abroad with an           employment; and
unexpired off-campus employment au-              (D) Is not deportable on any ground
thorization on his or her I–20 ID may          other than section 241(a)(1)(B) or (C)(i)
resume employment only if the student          of the Act.
is readmitted to attend the same                 (ii) Decision. If the Service reinstates
school which granted the employment            the student, the Service shall endorse
authorization.                                 the Form I–20 A–B to indicate that the
   (ii) An F–1 student who has an unex-        student has been reinstated, return the
pired EAD issued for post-completion           I–20 ID to the student, and forward the
practical training and who is otherwise        school copy of the form to the Service’s
admissible may return to the United            processing center for data entry. If the
States to resume employment after a            Service does not reinstate the student,
period of temporary absence. The EAD           the student may not appeal that deci-
must be used in combination with an I–         sion.
20 ID endorsed for reentry by the DSO            (g) Representatives to international or-
within the last six months.                    ganizations—(1) General. The deter-
   (14) Effect of strike or other labor dis-   mination by a consular officer prior to
pute. Any employment authorization,            admission and the recognition by the
whether or not part of an academic             Secretary of State subsequent to ad-
program, is automatically suspended            mission is evidence of the proper clas-
upon certification by the Secretary of         sification of a nonimmigrant under
Labor or the Secretary’s designee to           section 101(a)(15)(G) of the Act. An
the Commissioner of the Immigration            alien who has a nonimmigrant status
and Naturalization Service or the Com-         under section 101(a)(15)(G) (i), (ii), (iii)
missioner’s designee, that a strike or         or (iv) of the Act is to be admitted for
other labor dispute involving a work           the duration of the period for which
stoppage of workers is in progress in          the alien continues to be recognized by

                                           251
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

the Secretary of State as being entitled      own households. The Department of
to that status. An alien defined in sec-      State or the Service may require cer-
tion (101)(a)(15)(G)(v) of the Act is to be   tification(s) as it deems sufficient to
admitted for an initial period of not         document such mental or physical dis-
more than three years, and may be             ability.
granted extensions of temporary stay            (3) Applicability of a formal bilateral
in increments of not more than two            agreement or an informal de facto ar-
years. In addition, the application for       rangement for G–1 and G–3 dependents.
extension of temporary stay must be           The applicability of a formal bilateral
accompanied by a statement signed by          agreement shall be based on the foreign
the employing official stating that he        state which employs the principal alien
or she intends to continue to employ          and not on the nationality of the prin-
the applicant and describing the type         cipal alien or dependent. The applica-
of work the applicant will perform.           bility of an informal de facto arrange-
  (2) Definition of G–1, G–3, or G–4 de-      ment shall be based on the foreign
pendent. For purposes of employment           state which employs the principal
in the United States, the term depend-        alien, but under a de facto arrange-
ent of a G–1, G–3, or G–4 principal alien,    ment the principal alien also must be a
as used in § 214.2(g), means any of the       national of the foreign state which em-
following immediate members of the            ploys him or her in the United States.
family habitually residing in the same
                                                (4) Income tax, Social Security liability;
household as the principal alien who is
                                              non-applicability of certain immunities.
an officer or employee assigned to a
                                              Dependents who are granted employ-
mission, to an international organiza-
                                              ment authorization under this section
tion, or is employed by an inter-
                                              are responsible for payment of all fed-
national organization in the United
States:                                       eral, state and local income, employ-
  (i) Spouse;                                 ment and related taxes and Social Se-
  (ii) Unmarried children under the age       curity contributions on any remunera-
of 21;                                        tion received. In addition, immunity
  (iii) Unmarried sons or daughters           from civil or administrative jurisdic-
under the age of 23 who are in full-time      tion in accordance with Article 37 of
attendance as students at post-second-        the Vienna Convention on Diplomatic
ary educational institutions;                 Relations or other international agree-
  (iv) Unmarried sons or daughters            ments does not apply to these depend-
under the age of 25 who are in full-time      ents with respect to matters arising
attendance as students at post-second-        out of their employment.
ary educational institutions if a formal        (5) G–1 and G–3 dependent employment
bilateral employment agreement per-           pursuant to formal bilateral employment
mitting their employment in the               agreements and informal de facto recip-
United States was signed prior to No-         rocal arrangements, and G–4 dependent
vember 21, 1988, and such bilateral em-       employment. (i) The Office of Protocol
ployment agreement does not specify           shall maintain a listing of foreign
23 as the maximum age for employ-             states which have entered into formal
ment of such sons and daughters. The          bilateral employment agreements. De-
Office of Protocol of the Department of       pendents of a G–1 or G–3 principal alien
State shall maintain a listing of for-        assigned to official duty in the United
eign states which the United States           States may accept or continue in unre-
has such bilateral employment agree-          stricted employment based on such for-
ments. The provisions of this para-           mal bilateral agreements, if the appli-
graph apply only to G–1 and G–3 de-           cable agreement includes persons in G–
pendents under certain bilateral agree-       1 or G–3 visa status, upon favorable
ments and are not applicable to G–4 de-       recommendation by the Department of
pendents; and                                 State and issuance of employment au-
  (v) Unmarried sons or daughters who         thorization documentation by the
are physically or mentally disabled to        Service in accordance with 8 CFR part
the extent that they cannot adequately        274a. The application procedures are
care for themselves or cannot estab-          set forth in paragrpah (g)(6) of this sec-
lish, maintain, or re-establish their         tion.

                                          252
Immigration and Naturalization Service, Justice                              § 214.2

  (ii) For purposes of this section, an     States. Employment contrary to the
informal de facto reciprocal arrange-       interest of the United States includes,
ment exists when the Department of          but is not limited to, the employment
State determines that a foreign state       of G–1, G–3, or G–4 dependents: who
allows appropriate employment on the        have criminal records; who have vio-
local economy for dependents of cer-        lated United States immigration laws
tain United States officials assigned to    or regulations, or visa laws or regula-
duty in that foreign state. The Office of   tions; who have worked illegally in the
Protocol shall maintain a listing of        United States; and/or who cannot es-
countries with which such reciprocity       tablish that they have paid taxes and
exists. Dependents of a G–1 or G–3 prin-    social security on income from current
cipal alien assigned to official duty in    or previous United States employment.
the United States may be authorized to      Additionally, the Department of State
accept or continue in employment
                                            may determine a G–4 dependent’s em-
based upon informal de facto arrange-
                                            ployment is contrary to the interest of
ments, and dependents of a G–4 prin-
                                            the United States when the principal
cipal alien assigned to official duty in
                                            alien’s country of nationality has one
the United States may be authorized to
accept or continue in employment            or more components of an inter-
upon favorable recommendation by the        national organization or international
Department of State and issuance of         organizations within its borders and
employment authorization by the Serv-       does not allow the employment of de-
ice in accordance with 8 CFR part 274a.     pendents of United States citizens em-
Additionally, the procedures set forth      ployed by such component(s) or organi-
in paragraph (g)(6) of this section must    zation(s).
be complied with, and the following           (6) Application procedures. The follow-
conditions must be met:                     ing procedures are applicable to G–1
  (A) Both the principal alien and the      and G–3 dependent employment appli-
dependent desiring employment are           cations under bilateral agreements and
maintaining G–1, G–3, or G–4 status as      de facto arrangements, as well as to G–
appropriate;                                4 dependent employment applications:
  (B) The principal’s assignment in the       (i) The dependent must submit a
United States is expected to last more      completed Form I–566 to the Depart-
than six months;                            ment of State through the office, mis-
  (C) Employment of a similar nature        sion, or organization which employs
for dependents of United States Gov-        his or her principal alien. If the prin-
ernment officials assigned to official      cipal is assigned to or employed by the
duty in the foreign state employing the     United Nations, the Form I–566 must be
principal alien is not prohibited by        submitted to the U.S. Mission to the
that foreign government. The provi-         United Nations. All other applications
sions of this paragraph apply only to       must be submitted to the Office of Pro-
G–1 and G–3 dependents;
                                            tocol of the Department of State. A de-
  (D) The proposed employment is not
                                            pendent applying under paragraph
in an occupation listed in the Depart-
                                            (g)(2) (iii) or (iv) of this section must
ment of Labor Schedule B (20 CFR part
656), or otherwise determined by the        submit a certified statement from the
Department of Labor to be one for           post-secondary educational institution
which there is an oversupply of quali-      confirming that he or she is pursuing
fied U.S. workers in the area of pro-       studies on a full-time basis. A depend-
posed employment. This Schedule B re-       ent applying under paragraph (g)(2)(v)
striction does not apply to a dependent     of this section must submit medical
son or daughter who is a full-time stu-     certification regarding his or her con-
dent if the employment is part-time,        dition. The certification should iden-
consisting of not more than 20 hours        tify the dependent and the certifying
per week, and/or if it is temporary em-     physician and give the physician’s
ployment of not more than 12 weeks          phone number; identify the condition,
during school holiday periods; and          describe the symptoms and provide a
  (E) The proposed employment is not        prognosis; certify that the dependent is
contrary to the interest of the United      unable to establish, re-establish, and

                                        253
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

maintain a home or his or her own. Ad-       principal alien and who engages in em-
ditionally, a G–1 or G–3 dependent ap-       ployment outside the scope of, or in a
plying under the terms of a de facto ar-     manner contrary to this section, may
rangement or a G–4 dependent must at-        be considered in violation of section
tach a statement from the prospective        241(a)(1)(C)(i) of the Act. An alien who
employer which includes the depend-          is classified under section 101(a)(15)(G)
ent’s name; a description of the posi-       of the Act who is a principal alien and
tion offered and the duties to be per-       who engages in employment outside
formed; the salary offered; and ver-         the scope of his/her official position
ification that the dependent possesses       may be considered in violation of sec-
the qualifications for the position.         tion 241(a)(1)(C)(i) of the Act.
   (ii) The Department of State reviews
                                                (11) Special provision. As of February
and verifies the information provided,
makes its determination, and endorses        16, 1990 no new employment authoriza-
the Form I–566.                              tion will be granted and no pre-existing
   (iii) If the Department of State’s en-    employment authorization will be ex-
dorsement is favorable, the dependent        tended for a G–1 dependent absent an
may apply to the Service. A dependent        appropriate bilateral agreement or de
whose principal alien is stationed at a      facto arrangement. However, a G–1 de-
post in Washington, DC, or New York          pendent who has been granted employ-
City shall apply to the District Direc-      ment authorization by the Department
tor, Washington, DC, or New York             of State prior to the effective date of
City, respectively. A dependent whose        this section and who meets the defini-
principal alien is stationed elsewhere       tion of dependent under § 214.2(g)(2) (i),
shall apply to the District Director,        (ii), (iii) or (v) of this part but is not
Washington, DC, unless the Service,          covered by the terms of a bilateral
through the Department of State, di-         agreement or de facto arrangement
rects the dependent to apply to the dis-     may be allowed to continue in employ-
trict director having jurisdiction over      ment until whichever of the following
his or her place of residence. Directors     occurs first:
of the regional service centers may             (i) The employment authorization by
have concurrent adjudicative authority       the Department of State expires; or
for applications filed within their re-
                                                (ii) He or she no longer qualifies as a
spective regions. When applying to the
Service, the dependent must present          dependent as that term is defined in
his or her Form I–566 with a favorable       this section; or
endorsement from the Department of              (iii) March 19, 1990.
State and any additional documenta-             (h) Temporary employees—(1) Admis-
tion as may be required by the Attor-        sion of temporary employees—(i) General.
ney General.                                 Under section 101(a)(15)(H) of the Act,
   (7) Period of time for which employment   an alien may be authorized to come to
may be authorized. If approved, an appli-    the United States temporarily to per-
cation to accept or continue employ-         form services or labor for, or to receive
ment under this section shall be grant-      training from, an employer, if peti-
ed in increments of not more than            tioned for by that employer. Under this
three years each.                            nonimmigrant category, the alien may
   (8) No appeal. There shall be no ap-      be classified as follows: under section
peal from a denial of permission to ac-      101(a)(15)(H)(i)(a) of the Act as a reg-
cept or continue employment under            istered       nurse;     under     section
this section.                                101(a)(15)(H)(i)(b) of the Act as an alien
   (9) Dependents or family members of       who is coming to perform services in a
principal aliens classified G–2 or G–5. A    specialty occupation, services relating
dependent or family member of a prin-        to a Department of Defense (DOD) co-
cipal alien classified G–2 or G–5 may
                                             operative research and development
not be employed in the United States
                                             project or coproduction project, or
under this section.
   (10) Unauthorized employment. An          services as a fashion model who is of
alien       classified    under    section   distinguished merit and ability; under
101(a)(15)(G) of the Act who is not a        section 101(a)(15)(H)(ii)(a) of the Act as

                                         254
Immigration and Naturalization Service, Justice                                  § 214.2

an alien who is coming to perform agri-       or a coproduction project provided for
cultural labor or services of a tem-          under a Government-to-Government
porary or seasonal nature; under sec-         agreement administered by the Sec-
tion 101(a)(15)(H)(ii)(b) of the Act as an    retary of Defense;
alien coming to perform other tem-              (3) To perform services as a fashion
porary services or labor; or under sec-       model of distinguished merit and abil-
tion 101(a)(15)(H)(iii) of the Act as an      ity and for whom the Secretary of
alien who is coming as a trainee or as        Labor has determined and certified to
a participant in a special education ex-      the Attorney General that the prospec-
change visitor program. These classi-         tive employer has filed a labor condi-
fications are called H–1A, H–1B, H–2A,        tion application under section 212(n)(1)
H–2B, and H–3, respectively. The em-          of the Act.
ployer must file a petition with the            (C) An H–2A classification applies to
Service for review of the services or         an alien who is coming temporarily to
training and for determination of the         the United States to perform agricul-
alien’s eligibility for classification as a   tural work of a temporary or seasonal
temporary employee or trainee, before         nature.
the alien may apply for a visa or seek          (D) An H–2B classification applies to
admission to the United States. This          an alien who is coming temporarily to
paragraph sets forth the standards and        the United States to perform non-
procedures applicable to these classi-        agricultural work of a temporary or
fications.                                    seasonal nature, if unemployed persons
  (ii) Description of classifications. (A)    capable of performing such service or
An H–1A classification applies to an          labor cannot be found in this country.
alien who is coming temporarily to the        This classification does not apply to
United States to perform services as a        graduates of medical schools coming to
registered nurse, meets the require-          the United States to perform services
ments of section 212(m)(1) of the Act,        as members of the medical profession.
and will perform services at a facility       The temporary or permanent nature of
for which the Secretary of Labor has          the services or labor to be performed
determined and certified to the Attor-        must be determined by the service.
ney General that an unexpired attesta-        This classification requires a tem-
tion is on file and in effect under sec-      porary labor certification issued by the
tion 212(m)(2) of the Act. This classi-       Secretary of Labor or the Governor of
fication expired on September 1, 1995,        Guam, or a notice from one of these in-
but certain aliens previously accorded        dividuals that such a certification can-
H–1A classification are eligible to ob-       not be made, prior to the filing of a pe-
tain and extension of stay until Sep-         tition with the Service.
tember 30, 1997, pursuant to Public Law         (E) An H–3 classification applies to
104–302.                                      an alien who is coming temporarily to
  (B) An H–1B classification applies to       the United States:
an alien who is coming temporarily to           (1) As a trainee, other than to receive
the United States:                            graduate medical education or train-
  (1) To perform services in a specialty      ing, or training provided primarily at
occupation (except agricultural work-         or by an academic or vocational insti-
ers, and aliens described in section          tution, or
101(a)(15) (O) and (P) of the Act) de-          (2) As a participant in a special edu-
scribed in section 214(i)(1) of the Act,      cation exchange visitor program which
that meets the requirements of section        provides for practical training and ex-
214(i)(2) of the Act, and for whom the        perience in the education of children
Secretary of Labor has determined and         with physical, mental, or emotional
certified to the Attorney General that        disabilities.
the prospective employer has filed a            (2) Petitions—(i) Filing of petitions—(A)
labor condition application under sec-        General. A United States employer
tion 212(n)(1) of the Act;                    seeking to classify an alien as an H–1B,
  (2) To perform services of an excep-        H–2A, H–2B, or H–3 temporary em-
tional nature requiring exceptional           ployee shall file a petition on Form I–
merit and ability relating to a coopera-      129, Petition for Nonimmigrant Work-
tive research and development project         er, only with the Service Center which

                                          255
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

has jurisdiction in the area where the          (E) Amended or new petition. The peti-
alien will perform services, or receive      tioner shall file an amended or new pe-
training, even in emergent situations,       tition, with fee, with the Service Cen-
except as provided in this section. Peti-    ter where the original petition was
tions in Guam and the Virgin Islands,        filed to reflect any material changes in
and petitions involving special filing       the terms and conditions of employ-
situations as determined by Service          ment or training or the beneficiary’s
Headquarters, shall be filed with the        eligibility as specified in the original
local Service office or a designated         approved petition. An amended or new
Service office. The petitioner may sub-      H–1A, H–1B, H–2A, or H–2B petition
mit a legible photocopy of a document        must be accompanied by a current or
in support of the visa petition in lieu of   new Department of Labor determina-
the original document. However, the          tion. In the case of an H–1B petition,
original document shall be submitted if      this requirement includes a new labor
requested by the Service.                    condition application.
  (B) Service or training in more than one      (F) Agents as petitioners. A United
location. A petition which requires          States agent may file a petition in
services to be performed or training to      cases involving workers who are tradi-
be received in more than one location        tionally self-employed or workers who
must include an itinerary with the           use agents to arrange short-term em-
dates and locations of the services or       ployment on their behalf with numer-
training and must be filed with the          ous employers, and in cases where a
                                             foreign employer authorizes the agent
Service office which has jurisdiction
                                             to act on its behalf. A United States
over I–129H petitions in the area where
                                             agent may be: the actual employer of
the petitioner is located. The address
                                             the beneficiary, the representative of
which the petitioner specifies as its lo-
                                             both the employer and the beneficiary,
cation on the I–129H petition shall be
                                             or, a person or entity authorized by the
where the petitioner is located for pur-
                                             employer to act for, or in place of, the
poses of this paragraph.
                                             employer as it agent. A petition filed
  (C) Services or training for more than     by a United States agent is subject to
one employer. If the beneficiary will        the following conditions;
perform nonagricultural services for,           (1) An agent performing the function
or receive training from, more than          of an employer must guarantee the
one employer, each employer must file        wages and other terms and conditions
a separate petition with the Service         of employment by contractual agree-
Center that has jurisdiction over the        ment with the beneficiary or bene-
area where the alien will perform serv-      ficiaries of the petition. The agent/em-
ices or receive training, unless an es-      ployer must also provide an itinerary
tablished agent files the petition.          of definite employment and informa-
  (D) Change of employers. If the alien is   tion on any other services planned for
in the United States and seeks to            the period of time requested.
change employers, the prospective new           (2) A person or company in business
employer must file a petition on Form        as an agent may file the H petition in-
I–129 requesting classification and ex-      volving multiple employers as the rep-
tension of the alien’s stay in the           resentative of both the employers and
United States. If the new petition is        the beneficiary or beneficiaries if the
approved, the extension of stay may be       supporting documentation includes a
granted for the validity of the approved     complete itinerary of services or en-
petition. The validity of the petition       gagements. The itinerary shall specify
and the alien’s extension of stay shall      the dates of each service or engage-
conform to the limits on the alien’s         ment, the names and addresses of the
temporary stay that are prescribed in        actual employers, and the names and
paragraph (h)(13) of this section. The       addresses of the establishment, venues,
alien is not authorized to begin the em-     or locations where the services will be
ployment with the new petitioner until       performed. In questionable cases, a
the petition is approved. An H–1A non-       contract between the employers and
immigrant alien may not change em-           the beneficiary or beneficiaries may be
ployers.                                     required. The burden is on the agent to

                                         256
Immigration and Naturalization Service, Justice                                  § 214.2

explain the terms and conditions of the       of status apply to H–2A petitions and
employment and to provide any re-             are specified in paragraph (h)(5) of this
quired documentation.                         section. The other provisions of
  (3) A foreign employer who, through         § 214.2(h) apply to H–2A only to the ex-
a United States agent, files a petition       tent that they do not conflict with the
for an H nonimmigrant alien is respon-        special agricultural provisions in para-
sible for complying with all of the em-       graph (h)(5) of this section.
ployer sanctions provisions of section           (3) Petition for registered nurse (H–
274A of the Act and 8 CFR part 274a.          1A)—(i) General. (A) For purposes of H–
  (ii) Multiple beneficiaries. More than      1A classification, the term ‘‘registered
one beneficiary may be included in an         nurse’’ includes a foreign nurse who is
H–2A, H–2B, or H–3 petition if the bene-      or will be licensed or authorized by the
ficiaries will be performing the same         State Board of Nursing to engage in
service, or receiving the same training,      professional nurse practice in the state
for the same period of time, and in the       of intended employment.
same location.                                   (B) A United States employer which
  (iii)   Named      beneficiaries.    Non-   provides health care services is re-
agricultural petitions must include the       ferred to as a ‘‘facility,’’ and may file
names of beneficiaries and other re-          an H–1A petition for an alien nurse to
quired information at the time of fil-        perform the services of a registered
ing. Under the H–2B classification, ex-       nurse. A ‘‘facility’’ must also meet the
ceptions may be granted in emergent           Department of Labor’s requirements as
situations involving multiple bene-           defined in 29 CFR part 504.’’.
ficiaries at the discretion of the direc-        (C) The position must involve nurs-
tor, and in special filing situations as      ing practice and require licensure or
determined by the Service’s Head-             other authorization to practice as a
quarters. If all of the beneficiaries cov-    registered nurse from the State Board
ered by an H–2A or H–2B labor certifi-        of Nursing in the state of intended em-
cation have not been identified at the        ployment.
time a petition is filed, multiple peti-         (D) A petition, application for change
tions naming subsequent beneficiaries         of status, or application for extension
may be filed at different times with a        of stay for an H–1A nurse may be adju-
copy of the same labor certification.         dicated only at the appropriate INS
Each petition must reference all pre-         service center.
viously filed petitions for that labor           (ii) Definition of registered nurse. For
certification.                                purposes of H–1A classification, ‘‘reg-
  (iv) Substitution of beneficiaries. Bene-   istered nurse’’ shall mean a person who
ficiaries may be substituted in and H–        is or will be authorized by a State
2B petitions that are approved for a          Board of Nursing to engage in reg-
group, or H–2B petitions that are ap-         istered nurse practice in a state or U.S.
proved for unnamed beneficiaries, or          territory or possession, and who is or
approved H–2B petitions where the job         will be practicing at a facility which
offered to the alien(s) does not require      provides health care services.
any education, training, and/or experi-          (iii) Beneficiary requirements. An H–1A
ence. To request a substitution, the pe-      petition for a nurse shall be accom-
titioner shall, by letter and a copy of       panied by evidence that the nurse:
the petition’s approval notice, notify           (A) Has obtained a full and unre-
the consular office at which the alien        stricted license to practice nursing in
will apply for a visa or the port of          the country where the alien obtained
entry where the alien will apply for ad-      nursing education, or has received
mission. Where evidence of the quali-         nursing education in the United States
fications of beneficiaries is required in     or Canada;
petitions for unnamed beneficiaries,             (B) Has passed the examination given
the petitioner shall also submit such         by the Commission on Graduates of
evidence to the consular office or port       Foreign Nursing Schools (CGFNS), or
of entry prior to issuance of a visa or       has obtained a full and unrestricted
admission.                                    (permanent) license to practice as a
  (v) H–2A Petitions. Special criteria for    registered nurse in the state of in-
admission, extension, and maintenance         tended employment, or has obtained a

                                          257
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

full and unrestricted (permanent) li-        shall be approved initially for a period
cense in any state or territory of the       not to exceed one year.
United States and received temporary            (B) After admission to the United
authorization to practice as a reg-          States, an H–1A nurse who does not
istered nurse in the state of intended       hold a permanent state license must
employment; and                              take and pass the examination for
   (C) Is fully qualified and eligible       state licensure as a registered nurse
under the laws (including such tem-          within six months from the date of his
porary or interim licensing require-         or her initial admission to the United
ments which authorize the nurse to be        States. After this six-month period of
employed) governing the place of in-         time, the nurse must be granted per-
tended employment to practice as a           manent state licensure in order to
registered nurse immediately upon ad-        maintain his or her eligibility for H–1A
mission to the United States, and is         classification in the state of employ-
authorized under such laws to be em-         ment or any other state or territory of
ployed by the employer. For purposes         the United States.
of this paragraph, the temporary or in-         (C) A nurse shall automatically lose
terim licensing may be obtained imme-        his or her eligibility for H–1A classi-
diately after the alien enters the           fication if he or she is no longer per-
United States.                               forming the duties of a registered pro-
   (iv) Petitioner requirements. The peti-   fessional nurse. Such a nurse is not au-
tioning facility shall submit the fol-       thorized to remain in employment un-
lowing with an H–1A petition:                less he or she otherwise receives au-
                                             thorization from the Service.
   (A) A current copy of the Department
                                                (D) A nurse may be granted H–1A
of Labor’s (DOL) notice of acceptance
                                             classification based on passage of the
of the filing of its attestation on Form
                                             CGFNS examination only until he or
ETA 9029,
                                             she has been admitted to the United
   (B) A statement that it will comply       States, and has had an opportunity to
with the terms of its current attesta-       take the state licensure examination
tion, and any attestations accepted by       for registered nurses.
DOL for the duration of the alien’s au-         (vi) Other requirements. (A) If the Sec-
thorized period of stay,                     retary of Labor notifies the Service
   (C) A statement describing any limi-      that a facility which employs nurses
tations which the laws of the state or       has failed to meet a condition in its at-
jurisdiction of intended employment          testation, or that there was a misrepre-
place on the nurse’s services,               sentation of a material fact in the at-
   (D) A statement that notice of the        testation, the Service shall not approve
filing of the petition has been provided     petitions for or extend the stay of
by the employer to the bargaining rep-       nurses to be employed by the facility
resentative of the registered nurses at      for a period of one year from the date
the facility or, where there is no such      of receipt of such notice.
bargaining representative, notice of            (B) If the facility’s attestation ex-
the filing has been provided to reg-         pires, or is suspended or invalidated by
istered nurses employed at the facility      DOL, the Service will not suspend or
through posting in conspicuous loca-         revoke the facility’s approved petitions
tions. A copy of the notice provided         for nurses, if the facility has agreed to
shall be submitted with the petitions,       comply with the terms of the attesta-
and                                          tion under which the nurses were ad-
   (v) Licensure requirements. (A) A nurse   mitted or subsequent attestations ac-
who is granted H–1A classification           cepted by DOL for the duration of the
based on passage of the CGFNS exam-          nurses’ authorized stay.
ination must, upon admission to the             (4) Petition for alien to perform services
United States, be able to obtain tem-        in a specialty occupation, services relating
porary licensure or other temporary          to a DOD cooperative research and devel-
authorization to practice as a reg-          opment project or coproduction project, or
istered nurse from the State Board of        services of distinguished merit and ability
Nursing in the state of intended em-         in the ield of fashion modeling (H–1B)—
ployment. A petition for such a nurse        (i)(A) Types of H–1B classification. An H–

                                         258
Immigration and Naturalization Service, Justice                                § 214.2

1B classification may be granted to an      all previously approved petitions for
alien who:                                  that labor condition application.
  (1) Will perform services in a spe-         (4) When petitions have been ap-
cialty occupation which requires theo-      proved for the total number of workers
retical and practical application of a      specified in the labor condition appli-
body of highly specialized knowledge        cation, substitution of aliens against
and attainment of a baccalaureate or        previously approved openings shall not
higher degree or its equivalent as a        be made. A new labor condition appli-
minimum requirement for entry into          cation shall be required.
the occupation in the United States,          (5) If the Secretary of Labor notifies
and who is qualified to perform serv-       the Service that the petitioning em-
ices in the specialty occupation be-        ployer has failed to meet a condition of
cause he or she has attained a bacca-       paragraph (B) of section 212(n)(1) of the
laureate or higher degree or its equiva-    Act, has substantially failed to meet a
lent in the specialty occupation;           condition of paragraphs (C) or (D) of
  (2) Based on reciprocity, will perform    section 212(n)(1) of the Act, has will-
services of an exceptional nature re-       fully failed to meet a condition of para-
quiring exceptional merit and ability       graph (A) of section 212(n)(1) of the Act,
relating to a DOD cooperative research      or has misrepresented any material
and development project or a coproduc-      fact in the application, the Service
tion project provided for under a Gov-      shall not approve petitions filed with
ernment-to-Government agreement ad-         respect to that employer under section
ministered by the Secretary of Defense;     204 or 214(c) of the Act for a period of at
  (3) Will perform services in the field    least one year from the date of receipt
of fashion modeling and who is of dis-      of such notice.
tinguished merit and ability.                 (6) If the employer’s labor condition
  (B) General requirements for petitions    application is suspended or invalidated
involving a specialty occupation. (1) Be-   by the Department of Labor, the Serv-
fore filing a petition for H–1B classi-     ice will not suspend or revoke the em-
fication in a specialty occupation, the     ployer’s approved petitions for aliens
petitioner shall obtain a certification     already employed in specialty occupa-
from the Department of Labor that it        tions if the employer has certified to
has filed a labor condition application     the Department of Labor that it will
in the occupational specialty in which      comply with the terms of the labor
the alien(s) will be employed.              condition application for the duration
  (2) Certification by the Department       of the authorized stay of aliens it em-
of Labor of a labor condition applica-      ploys.
tion in an occupational classification        (C) General requirements for petitions
does not constitute a determination by      involving an alien of distinguished merit
that agency that the occupation in          and ability in the field of fashion model-
question is a specialty occupation. The     ing. H–1B classification may be granted
director shall determine if the applica-    to an alien who is of distinguished
tion involves a specialty occupation as     merit and ability in the field of fashion
defined in section 214(i)(1) of the Act.    modeling. An alien of distinguished
The director shall also determine           merit and ability in the field of fashion
whether the particular alien for whom       modeling is one who is prominent in
H–1B classification is sought qualifies     the field of fashion modeling. The alien
to perform services in the specialty oc-    must also be coming to the United
cupation as prescribed in section           States to perform services which re-
214(i)(2) of the Act.                       quire a fashion model of prominence.
  (3) If all of the beneficiaries covered     (ii) Definitions.
by an H–1B labor condition application        Prominence means a high level of
have not been identified at the time a      achievement in the field of fashion
petition is filed, petitions for newly      modeling evidenced by a degree of skill
identified beneficiaries may be filed at    and recognition substantially above
any time during the validity of the         that ordinarily encountered to the ex-
labor condition application using pho-      tent that a person described as promi-
tocopies of the same application. Each      nent is renowned, leading, or well-
petition must refer by file number to       known in the field of fashion modeling.

                                        259
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

  Regonized authority means a person or       in the alternative, an employer may
an organization with expertise in a par-      show that its particular position is so
ticular field, special skills or knowl-       complex or unique that it can be per-
edge in that field, and the expertise to      formed only by an individual with a de-
render the type of opinion requested.         gree;
Such an opinion must state:                     (3) The employer normally requires a
  (1) The writer’s qualifications as an       degree or its equivalent for the posi-
expert;                                       tion; or
  (2) The writer’s experience giving            (4) The nature of the specific duties
such opinions, citing specific instances      are so specialized and complex that
where past opinions have been accepted        knowledge required to perform the du-
as authoritative and by whom;                 ties is usually associated with the at-
  (3) How the conclusions were reached;       tainment of a baccalaureate or higher
and                                           degree.
  (4) The basis for the conclusions sup-        (B) Petitioner requirements. The peti-
ported by copies or citations of any re-      tioner shall submit the following with
search material used.                         an H–1B petition involving a specialty
  Specialty occupation means an occupa-       occupation:
tion which requires theoretical and             (1) A certification from the Secretary
practical application of a body of high-      of Labor that the petitioner has filed a
ly specialized knowledge in fields of         labor condition application with the
human endeavor including, but not             Secretary,
limited to, architecture, engineering,
                                                (2) A statement that it will comply
mathematics, physical sciences, social
                                              with the terms of the labor condition
sciences, medicine and health, edu-
                                              application for the duration of the
cation, business specialties, account-
                                              alien’s authorized period of stay,
ing, law, theology, and the arts, and
                                                (3) Evidence that the alien qualifies
which requires the attainment of a
                                              to perform services in the specialty oc-
bachelor’s degree or higher in a specific
                                              cupation as described in paragraph
specialty, or its equivalent, as a mini-
                                              (h)(4)(iii)(A) of this section, and
mum for entry into the occupation in
the United States.                              (C) Beneficiary qualifications. To qual-
  United States employer means a per-         ify to perform services in a specialty
son, firm, corporation, contractor, or        occupation, the alien must meet one of
other association, or organization in         the following criteria:
the United States which:                        (1) Hold a United States bacca-
  (1) Engages a person to work within         laureate or higher degree required by
the United States;                            the specialty occupation from an ac-
  (2) Has an employer-employee rela-          credited college or university;
tionship with respect to employees              (2) Hold a foreign degree determined
under this part, as indicated by the          to be equivalent to a United States
fact that it may hire, pay, fire, super-      baccalaureate or higher degree re-
vise, or otherwise control the work of        quired by the specialty occupation
any such employee; and                        from an accredited college or univer-
  (3) Has an Internal Revenue Service         sity;
Tax identification number.                      (3) Hold an unrestricted State li-
  (iii) Criteria for H–1B petitions involv-   cense, registration or certification
ing a specialty occupation—(A) Standards      which authorizes him or her to fully
for specialty occupation position. To         practice the specialty occupation and
qualify as a specialty occupation, the        be immediately engaged in that spe-
position must meet one of the follow-         cialty in the state of intended employ-
ing criteria:                                 ment; or
  (1) A baccalaureate or higher degree          (4) Have education, specialized train-
or its equivalent is normally the mini-       ing, and/or progressively responsible
mum requirement for entry into the            experience that is equivalent to com-
particular position;                          pletion of a United States bacca-
  (2) The degree requirement is com-          laureate or higher degree in the spe-
mon to the industry in parallel posi-         cialty occupation, and have recogni-
tions among similar organizations or,         tion of expertise in the specialty

                                          260
Immigration and Naturalization Service, Justice                                § 214.2

through progressively responsible posi-      lowed by at least five years of experi-
tions directly related to the specialty.     ence in the specialty. If required by a
  (D) Equivalence to completion of a col-    specialty, the alien must hold a Doc-
lege degree. For purposes of paragraph       torate degree or its foreign equivalent.
(h)(4)(iii)(C)(4) of this section, equiva-   It must be clearly demonstrated that
lence to completion of a United States       the alien’s training and/or work experi-
baccalaureate or higher degree shall         ence included the theoretical and prac-
mean achievement of a level of knowl-        tical application of specialized knowl-
edge, competence, and practice in the        edge required by the specialty occupa-
specialty occupation that has been de-       tion; that the alien’s experience was
termined to be equal to that of an indi-     gained while working with peers, su-
vidual who has a baccalaureate or            pervisors, or subordinates who have a
higher degree in the specialty and shall     degree or its equivalent in the spe-
be determined by one or more of the          cialty occupation; and that the alien
following:                                   has recognition of expertise in the spe-
  (1) An evaluation from an official         cialty evidenced by at least one type of
who has authority to grant college-          documentation such as:
level credit for training and/or experi-       (i) Recognition of expertise in the
ence in the specialty at an accredited       specialty occupation by at least two
college or university which has a pro-       recognized authorities in the same spe-
gram for granting such credit based on       cialty occupation;
an individual’s training and/or work           (ii) Membership in a recognized for-
experience;                                  eign or United States association or so-
  (2) The results of recognized college-     ciety in the specialty occupation;
level equivalency examinations or spe-
                                               (iii) Published material by or about
cial credit programs, such as the Col-
                                             the alien in professional publications,
lege Level Examination Program
                                             trade journals, books, or major news-
(CLEP), or Program on Noncollegiate
                                             papers;
Sponsored Instruction (PONSI);
  (3) An evaluation of education by a          (iv) Licensure or registration to prac-
reliable credentials evaluation service      tice the specialty occupation in a for-
which specializes in evaluating foreign      eign country; or
educational credentials;                       (v) Achievements which a recognized
  (4) Evidence of certification or reg-      authority has determined to be signifi-
istration from a nationally-recognized       cant contributions to the field of the
professional association or society for      specialty occupation.
the specialty that is known to grant           (E) Liability for transportation costs.
certification or registration to persons     The employer will be liable for the rea-
in the occupational specialty who have       sonable costs of return transportation
achieved a certain level of competence       of the alien abroad if the alien is dis-
in the specialty;                            missed from employment by the em-
  (5) A determination by the Service         ployer before the end of the period of
that the equivalent of the degree re-        authorized admission pursuant to sec-
quired by the specialty occupation has       tion 214(c)(5) of the Act. If the bene-
been acquired through a combination          ficiary voluntarily terminates his or
of education, specialized training, and/     her employment prior to the expiration
or work experience in areas related to       of the validity of the petition, the alien
the specialty and that the alien has         has not been dismissed. If the bene-
achieved recognition of expertise in the     ficiary believes that the employer has
specialty occupation as a result of such     not complied with this provision, the
training and experience. For purposes        beneficiary shall advise the Service
of determining equivalency to a bacca-       Center which adjudicated the petition
laureate degree in the specialty, three      in writing. The complaint will be re-
years of specialized training and/or         tained in the file relating to the peti-
work experience must be demonstrated         tion. Within the context of this para-
for each year of college-level training      graph, the term ‘‘abroad’’ refers to the
the alien lacks. For equivalence to an       alien’s last place of foreign residence.
advanced (or Masters) degree, the alien      This provision applies to any employer
must have a baccalaureate degree fol-        whose offer of employment became the

                                         261
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

basis for an alien obtaining or continu-     license, the director shall examine the
ing H–1B status.                             nature of the duties, the level at which
  (iv) General documentary requirements      the duties are performed, the degree of
for H–1B classification in a specialty oc-   supervision received, and any limita-
cupation. An H–1B petition involving a       tions placed on the alien. If an analysis
specialty occupation shall be accom-         of the facts demonstrates that the
panied by:                                   alien under supervision is authorized to
  (A) Documentation, certifications,         fully perform the duties of the occupa-
affidavits, declarations, degrees, diplo-    tion, H classification may be granted.
mas, writings, reviews, or any other re-       (C) Duties without licensure. In certain
quired evidence sufficient to establish      occupations which generally require li-
that the beneficiary is qualified to per-    censure, a state may allow an individ-
form services in a specialty occupation      ual to fully practice the occupation
as described in paragraph (h)(4)(i) of       under the supervision of licensed senior
this section and that the services the       or supervisory personnel in that occu-
beneficiary is to perform are in a spe-      pation. In such cases, the director shall
cialty occupation. The evidence shall        examine the nature of the duties and
conform to the following:                    the level at which they are performed.
  (1) School records, diplomas, degrees,     If the facts demonstrate that the alien
affidavits, declarations, contracts, and     under supervision could fully perform
similar documentation submitted must         the duties of the occupation, H classi-
reflect periods of attendance, courses       fication may be granted.
of study, and similar pertinent data, be       (D) H–1A nurses. For purposes of li-
executed by the person in charge of the      censure, H–1A nurses must provide the
records of the educational or other in-      evidence       required    in   paragraph
stitution, firm, or establishment where      (h)(3)(iii) of this section.
education or training was acquired.            (E) Limitation on approval of petition.
  (2) Affidavits or declarations made        Where licensure is required in any oc-
under penalty of perjury submitted by        cupation, including registered nursing,
present or former employers or recog-        the H petition may only be approved
nized authorities certifying as to the       for a period of one year or for the pe-
recognition and expertise of the bene-       riod that the temporary license is
ficiary shall specifically describe the      valid, whichever is longer, unless the
beneficiary’s recognition and ability in     alien already has a permanent license
factual terms and must set forth the         to practice the occupation. An alien
expertise of the affiant and the manner      who is accorded H classification in an
in which the affiant acquired such in-       occupation which requires licensure
formation.                                   may not be granted an extension of
  (B) Copies of any written contracts        stay or accorded a new H classification
between the petitioner and beneficiary,      after the one year unless he or she has
or a summary of the terms of the oral        obtained a permanent license in the
agreement under which the beneficiary        state of intended employment or con-
will be employed, if there is no written     tinues to hold a temporary license
contract.                                    valid in the same state for the period of
  (v) Licensure for H classification—(A)     the requested extension.
General. If an occupation requires a           (vi) Criteria and documentary require-
state or local license for an individual     ments for H–1B petitions involving DOD
to fully perform the duties of the occu-     cooperative research and development
pation, an alien (except an H–1A nurse)      projects or coproduction projects—(A)
seeking H classification in that occu-       General. (1) For purposes of H–1B classi-
pation must have that license prior to       fication, services of an exceptional na-
approval of the petition to be found         ture relating to DOD cooperative re-
qualified to enter the United States         search and development projects or co-
and immediately engage in employ-            production projects shall be those serv-
ment in the occupation.                      ices which require a baccalaureate or
  (B) Temporary licensure. If a tem-         higher degree, or its equivalent, to per-
porary license is available and the          form the duties. The existence of this
alien is allowed to perform the duties       special program does not preclude the
of the occupation without a permanent        DOD from utilizing the regular H–1B

                                         262
Immigration and Naturalization Service, Justice                                  § 214.2

provisions provided the required guide-        ity. Affidavits submitted by present or
lines are met.                                 former employers or recognized experts
   (2) The requirements relating to a          certifying to the recognition and dis-
labor condition application from the           tinguished ability of the beneficiary
Department of Labor shall not apply to         shall specifically describe the bene-
petitions involving DOD cooperative            ficiary’s recognition and ability in fac-
research and development projects or           tual terms and must set forth the ex-
coproduction projects.                         pertise of the affiant and the manner in
   (B) Petitioner requirements. (1) The pe-    which the affiant acquired such infor-
tition must be accompanied by a ver-           mation.
ification letter from the DOD project            (2) Copies of any written contracts
manager for the particular project             between the petitioner and beneficiary,
stating that the alien will be working         or a summary of the terms of the oral
on a cooperative research and develop-         agreement under which the beneficiary
ment project or a coproduction project         will be employed, if there is no written
under a reciprocal Government-to-Gov-          contract.
ernment agreement administered by                (B) Petitioner’s requirements. To estab-
DOD. Details about the specific project        lish that a position requires promi-
are not required.                              nence, the petitioner must establish
   (2) The petitioner shall provide a gen-     that the position meets one of the fol-
eral description of the alien’s duties on      lowing criteria:
the particular project and indicate the          (1) The services to be performed in-
actual dates of the alien’s employment         volve events or productions which have
on the project.                                a distinguished reputation;
   (3) The petitioner shall submit a
                                                 (2) The services are to be performed
statement indicating the names of
                                               for an organization or establishment
aliens currently employed on the
                                               that has a distinguished reputation for,
project in the United States and their
                                               or record of, employing prominent per-
dates of employment. The petitioner
                                               sons.
shall also indicate the names of aliens
whose employment on the project                  (C) Beneficiary’s requirements. A peti-
ended within the past year.                    tioner may establish that a beneficiary
   (C) Beneficiary requirement. The peti-      is a fashion model of distinguished
tion shall be accompanied by evidence          merit and ability by the submission of
that the beneficiary has a bacca-              two of the following forms of docu-
laureate or higher degree or its equiva-       mentation showing that the alien:
lent in the occupational field in which          (1) Has achieved national or inter-
he or she will be performing services in       national recognition and acclaim for
accordance with paragraph (h)(4)(iii)(C)       outstanding achievement in his or her
and/or (h)(4)(iii)(D) of this section.         field as evidenced by reviews in major
   (vii) Criteria and documentary require-     newspapers, trade journals, magazines,
ments for H–1B petitions for aliens of dis-    or other published material;
tinguished merit and ability in the field of     (2) Has performed and will perform
fashion modeling—(A) General. Promi-           services as a fashion model for employ-
nence in the field of fashion modeling         ers with a distinguished reputation;
may be established in the case of an in-         (3) Has received recognition for sig-
dividual fashion model. The work               nificant achievements from organiza-
which a prominent alien is coming to           tions, critics, fashion houses, modeling
perform in the United States must re-          agencies, or other recognized experts in
quire the services of a prominent alien.       the field; or
A petition for an H–1B alien of distin-          (4) Commands a high salary or other
guished merit and ability in the field of      substantial remuneration for services
fashion modeling shall be accompanied          evidenced by contracts or other reli-
by:                                            able evidence.
   (1) Documentation, certifications, af-        (viii) Criteria and documentary require-
fidavits, writings, reviews, or any other      ments for H–1B petitions for physicians—
required evidence sufficient to estab-         (A) Beneficiary’s requirements. An H–1B
lish that the beneficiary is a fashion         petition for a physician shall be accom-
model of distinguished merit and abil-         panied by evidence that the physician:

                                           263
§ 214.2                                                    8 CFR Ch. I (1–1–98 Edition)

  (1) Has a license or other authoriza-        written denial of appeal shall be con-
tion required by the state of intended         sidered a certification for this purpose
employment to practice medicine, or is         if filed with evidence which establishes
exempt by law therefrom, if the physi-         that qualified domestic labor is un-
cian will perform direct patient care          available. An H–2A petition may be
and the state requires the license or          filed by either the employer listed on
authorization, and                             the certification, the employer’s agent,
  (2) Has a full and unrestricted license      or the association of United States ag-
to practice medicine in a foreign state        ricultural producers named as a joint
or has graduated from a medical school         employer on the certification.
in the United States or in a foreign              (B) Multiple beneficiaries. The total
state.                                         number of beneficiaries of a petition or
  (B) Petitioner’s requirements. The peti-     series of petitions based on the same
tioner must establish that the alien           certification may not exceed the num-
physician:                                     ber of workers indicated on that docu-
  (1) Is coming to the United States           ment. A single petition can include
primarily to teach or conduct research,        more than one beneficiary if the total
or both, at or for a public or nonprofit       number does not exceed the number of
private educational or research institu-       positions indicated on the relating cer-
tion or agency, and that no patient            tification, and all beneficiaries will ob-
care will be performed, except that            tain a visa at the same consulate or are
which is incidental to the physician’s         not required to have a visa and will
teaching or research; or                       apply for admission at the same port of
  (2) The alien has passed the Federa-         entry.
tion Licensing Examination (or an                 (C) Unnamed beneficiaries. The sole
equivalent examination as determined           beneficiary of an H–2A petition must be
by the Secretary of Health and Human           named in the petition. In a petition for
Services) or is a graduate of a United         multiple beneficiaries, each must be
States medical school; and                     named unless he or she is not named in
  (i) Has competency in oral and writ-         the certification and is outside the
ten English which shall be dem-                United States. Unnamed beneficiaries
onstrated by the passage of the English        must be shown on the petition by total
language proficiency test given by the         number.
Educational Commission for Foreign                (D) Evidence. An H–2A petitioner
Medical Graduates; or                          must show that the proposed employ-
  (ii) Is a graduate of a school of medi-      ment qualifies as a basis for H–2A sta-
cine accredited by a body or bodies ap-        tus, and that any named beneficiary
proved for that purpose by the Sec-            qualifies for that employment. A peti-
retary of Education.                           tion will be automatically denied if
  (C) Exception for physicians of national     filed without the certification evidence
or international renown. A physician           required in paragraph (h)(5)(i)(A) of
who is a graduate of a medical school          this section and, for each named bene-
in a foreign state and who is of na-           ficiary, the initial evidence required in
tional or international renown in the          paragraph (h)(5)(v) of this section.
field of medicine is exempt from the re-          (E) Special filing requirements. Where a
quirements of paragraph (h)(4)(viii)(B)        certification shows joint employers, a
of this section.                               petition must be filed with an attach-
  (5) Petition for alien to perform agricul-   ment showing that each employer has
tural labor or services of a temporary or      agreed to the conditions of H–2A eligi-
seasonal nature (H–2A)—(i) Filing a peti-      bility. A petition filed by an agent
tion—(A) General. An H–2A petition             must be filed with an attachment in
must be filed on Form I–129. The peti-         which the employer has authorized the
tion must be filed with a single valid         agent to act on its behalf, has assumed
temporary agricultural labor certifi-          full responsibility for all representa-
cation. However, if a certification is         tions made by the agent on its behalf,
denied, domestic labor subsequently            and has agreed to the conditions of H–
fails to appear at the worksite, and the       2A eligibility.
Department of Labor denies an appeal              (ii) Effect of the labor certification
under section 216(e)(2) of the Act, the        process. The temporary agricultural

                                           264
Immigration and Naturalization Service, Justice                                 § 214.2

labor certification process determines       employment qualifies as temporary or
whether employment is as an agricul-         seasonal. Its finding that employment
tural worker, whether it is open to U.S.     qualifies is normally sufficient for the
workers, if qualified U.S. workers are       purpose of an H–2A petition, However,
available, the adverse impact of em-         notwithstanding that finding, employ-
ployment of a qualified alien, and           ment will be found not to be temporary
whether employment conditions, in-           or seasonal where an application for
cluding housing, meet applicable re-         permanent labor certification has been
quirements. In petition proceedings a        filed for the same alien, or for another
petitioner must establish that the em-       alien to be employed in the same posi-
ployment and beneficiary meet the re-        tion, by the same employer or by its
quirements of paragraph (h)(5) of this       parent, subsidiary or affiliate. This can
section. In a petition filed with a cer-     only be overcome by the petitioner’s
tification denial, the petitioner must       demonstration that there will be at
also overcome the Department of La-          least a six month interruption of em-
bor’s findings regarding the availabil-      ployment in the United States after H–
ity of qualified domestic labor.             2A status ends. Also, eligibility will
   (iii) Ability and intent to meet a job    not be found, notwithstanding the
offer—(A) Eligibility requirements. An H–    issuance of a temporary agricultural
2A petitioner must establish that each       labor certification, where there is sub-
beneficiary will be employed in accord-      stantial evidence that the employment
ance with the terms and conditions of        is not temporary or seasonal.
the certification, which includes that
                                                (v) The beneficiary’s qualifications—(A)
the principal duties to be performed
                                             Eligibility requirements. An H–2A peti-
are those on the certification, with
                                             tioner must establish that any named
other duties minor and incidental.
                                             beneficiary met the stated minimum
   (B) Intent and prior compliance. Req-
                                             requirements and was fully able to per-
uisite intent cannot be established for
                                             form the stated duties when the appli-
two years after an employer or joint
                                             cation for certification was filed. It
employer, or a parent, subsidiary or af-
                                             must be established at time of applica-
filiate thereof, is found to have vio-
                                             tion for an H–2A visa, or for admission
lated section 274(a) of the Act or to
have employed an H–2A worker in a po-        if a visa is not required, that any
sition other than that described in the      unnamed beneficiary either met these
relating petition.                           requirements when the certification
   (C) Initial evidence. Representations     was applied for or passed any certified
required for the purpose of labor cer-       aptitude test at any time prior to visa
tification are initial evidence of intent.   issuance, or prior to admission if a visa
   (iv) Temporary and seasonal employ-       is not required.
ment—(A) Eligibility requirements. An           (B) Initial evidence of employment/job
H–2A petitioner must establish that          training. A petition must be filed with
the employment proposed in the cer-          evidence that at the required time the
tification is of a temporary or seasonal     beneficiary met the certification’s
nature. Employment is of a seasonal          minimum employment and job training
nature where it is tied to a certain         requirements. Initial evidence must be
time of year by an event or pattern,         in the form of the past employer’s de-
such as a short annual growing cycle or      tailed statement or actual employment
a specific aspect of a longer cycle, and     documents, such as company payroll or
requires labor levels far above those        tax records. Alternately, a petitioner
necessary for ongoing operations. Em-        must show that such evidence cannot
ployment is of a temporary nature            be obtained, and submit affidavits from
where the employer’s need to fill the        people who worked with the bene-
position with a temporary worker will,       ficiary that demonstrate the claimed
except in extraordinary circumstances,       employment.
last no longer than one year.                   (C) Initial evidence of education and
   (B) Effect of Department of Labor find-   other training. A petition must be filed
ings. In temporary agricultural labor        with evidence that at the required time
certification proceedings the Depart-        each beneficiary met the certification’s
ment of Labor separately tests whether       minimum post-secondary education

                                         265
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

and other formal training require-           status within the prior five years. H–2A
ments. Initial evidence must be in the       status is violated by remaining beyond
form of documents, issued by the rel-        the specific period of authorized stay
evant institution or organization, that      or by engaging in unauthorized em-
show periods of attendance, majors and       ployment.
degrees or certificates accorded.              (B) Period of admission. Notwithstand-
  (vi) Petition agreements—(A) Consent       ing paragraph (h)(13) of this section,
and liabilities. In filing an H–2A peti-     and except as provided in paragraph
tion, a petitioner and each employer         (h)(5)(ix)(C) of this section, an alien ad-
consents to allow access to the site         missible as an H–2A shall be admitted
where the labor is being performed for       for the period of the approved petition
the purpose of determining compliance        plus a period of up to one week before
with H–2A requirements. The peti-            the beginning of the approved period
tioner further agrees to notify the          for the purpose of travel to the work-
Service in the manner specified within       site, and a period following the expira-
twenty-four hours if an H–2A worker          tion of the H–2A petition equal to the
absconds or if the authorized employ-        validity period of the petition, but not
ment ends more than five days before         more than ten days, for the purpose of
the relating certification document ex-
                                             departure or extension based on a sub-
pires, and to pay liquidated damages of
                                             sequent offer of employment. However,
ten dollars for each instance where it
                                             this extended admission period does
cannot demonstrate compliance with
                                             not affect the beneficiary’s employ-
this notification requirement. The pe-
                                             ment authorization. Such authoriza-
titioner also agrees to pay liquidated
                                             tion only applies to the specific em-
damages of two hundred dollars for
                                             ployment indicated in the relating pe-
each instance where is cannot dem-
onstrate that its H–2A worker either         tition, for the specific period of time
departed the United States or obtained       indicated.
authorized status based on another pe-         (C) Limits on an individual’s stay. An
tition during the period of admission or     alien’s stay as an H–2A is limited by
within five days of early termination,       the term of an approved petition. An
whichever comes first.                       alien may remain longer to engage in
  (B) Process. Where evidence indicates      other qualifying temporary agricul-
noncompliance        under     paragraph     tural employment by obtaining an ex-
(h)(5)(vi)(A) of this section, the peti-     tension of stay. However, an individual
tioner shall be given written notice and     who has held H–2A status for a total of
given ten days to reply. If it does not      three years may not again be granted
demonstrate compliance, it shall be          H–2A status, or other nonimmigrant
given written notice of the assessment       status based on agricultural activities,
of liquidated damages.                       until such time as he or she remains
  (C) Failure to pay liquidated damages.     outside the United States for an unin-
If liquidated damages are not paid           terrupted period of six months. An ab-
within ten days of assessment, an H–2A       sence can interrupt the accumulation
petition may not be processed for that       of time spent as an H–2A. If the accu-
petitioner or any joint employer shown       mulated stay is eighteen months or
on the petition until such damages are       less, an absence is interruptive if it
paid.                                        lasts for at least three months. If more
  (vii) Validity. An approved H–2A peti-     than eighteen months stay has been ac-
tion is valid through the expiration of      cumulated, an absence is interruptive
the relating certification for the pur-      if it lasts for at least one-sixth the ac-
pose of allowing a beneficiary to seek       cumulated stay. Eligibility under this
issuance of an H–2A nonimmigrant             subparagraph will be determined in ad-
visa, admission or an extension of stay      mission, change of status or extension
for the purpose of engaging in the spe-      proceedings. An alien found eligible for
cific certified employment.                  a shorter period of H–2A status than
  (viii) Admission—(A) Effect of violation   that indicated by the petition due to
of status. An alien may not be accorded      the application of this subparagraph
H–2A status who the Service finds to         shall only be admitted for that abbre-
have violated the conditions of H–2A         viated period.

                                         266
Immigration and Naturalization Service, Justice                                § 214.2

   (ix) Substitution of beneficiaries after     (B) Nature of petitioner’s need. As a
admission. An H–2A petition may be            general rule, the period of the petition-
filed to replace H–2A workers whose           er’s need must be a year or less, al-
employment was terminated early. The          though there may be extraordinary cir-
petition must be filed with a copy of         cumstances where the temporary serv-
the certification document, a copy of         ices or labor might last longer than
the approval notice covering the work-        one year. The petitioner’s need for the
ers for which replacements are sought,        services or labor shall be a one-time
and other evidence required by para-          occurrence, a seasonal need, a peakload
graph (h)(5)(i)(D) of this section. It        need, or an intermittent need:
must also be filed with a statement             (1) One-time occurence. The petitioner
giving each terminated worker’s name,         must establish that it has not em-
date and country of birth, termination        ployed workers to perform the services
date, and evidence the worker has de-         or labor in the past and that it will not
parted the United States. A petition          need workers to perform the services or
for a replacement may not be approved         labor in the future, or that it has an
where the requirements of paragraph           employment situation that is other-
(h)(5)(vi) of this section have not been      wise permanent, but a temporary event
met. A petition for replacements does         of short duration has created the need
not constitute the notice that an H–2A        for a temporary worker.
worker has absconded or has ended au-           (2) Seasonal need. The petitioner must
thorized employment more than five            establish that the services or labor is
days before the relating certification        traditionally tied to a season of the
expires.                                      year by an event or pattern and is of a
   (x) Extensions without labor certifi-      recurring nature. The petitioner shall
cation. A single H–2A petition may be         specify the period(s) of time during
extended without a certification if it is     each year in which it does not need the
based on approval of the alien’s appli-       services or labor. The employment is
cation for extension of stay for a con-       not seasonal if the period during which
tinuation of the employment author-           the services or labor is not needed is
ized by the approval of a previous H–2A       unpredictable or subject to change or is
petition filed with a certification (but      considered a vacation period for the pe-
not a certification extension granted         titioner’s permanent employees.
under 20 CFR 655.106(c)(3)), and the pro-       (3) Peakload need. The petitoner must
posed continuation of employment will         establish that it regularly employs per-
last no longer than the previously au-        manent workers to perform the serv-
thorized employment and also will not         ices or labor at the place of employ-
last longer than two weeks.                   ment and that it needs to supplement
   (6) Petition for alien to perform tem-     its permanent staff at the place of em-
porary nonagricultural services or labor      ployment on a temporary basis due to
(H–2B)—(i) General. An H–2B non-              a seasonal or short-term demand and
agricultural temporary worker is an           that the temporary additions to staff
alien who is coming temporarily to the        will not become a part of the petition-
United States to perform temporary            er’s regular operation.
services or labor, is not displacing            (4) Intermittent need. The petitioner
United States workers capable of per-         must establish that it has not em-
forming such services or labor, and           ployed permanent or full-time workers
whose employment is not adversely af-         to perform the services or labor, but
fecting the wages and working condi-          occasionally or intermittently needs
tions of United States workers.               temporary workers to perform services
   (ii) Temporary services or labor—(A)       or labor for short periods.
Definition. Temporary services or labor         (iii) Procedures. (A) Prior to filing a
under the H–2B classification refers to       petition with the director to classify
any job in which the petitioner’s need        an alien as an H–2B worker, the peti-
for the duties to be performed by the         tioner shall apply for a temporary
employee(s) is temporary, whether or          labor certification with the Secretary
not the underlying job can be described       of Labor for all areas of the United
as permanent or temporary.                    States, except the Territory of Guam.

                                          267
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

In the Territory of Guam, the petition-      ments, with the director having juris-
ing employer shall apply for a tem-          diction in the area of intended employ-
porary labor certification with the          ment.
Governor of Guam. The labor certifi-           (iv) Labor certifications, except Guam—
cation shall be advice to the director       (A) Secretary of Labor’s determination.
on whether or not United States work-        An H–2B petition for temporary em-
ers capable of performing the tem-           ployment in the United States, except
porary services or labor are available       for temporary employment on Guam,
and whether or not the alien’s employ-       shall be accompanied by a labor certifi-
ment will adversely affect the wages         cation determination that is either:
and working conditions of similarly            (1) A certification from the Secretary
employed United States workers.              of Labor stating that qualified workers
  (B) An H–2B petitioner shall be a          in the United States are not available
United States employer, a United             and that the alien’s employment will
States agent, or a foreign employer fil-     not adversely affect wages and working
ing through a United States agent. For       conditions of similary employed United
purposes of paragraph (h) of this sec-       States workers; or
tion, a foreign employer is any em-            (2) A notice detailing the reasons
ployer who is not amendable to service       why such certification cannot be made.
of process in the United States. A for-      Such notice shall address the availabil-
eign employer may not directly peti-
                                             ity of U.S. workers in the occupation
tion for an H–2B nonimmigrant but
                                             and the prevailing wages and working
must use the services of a United
                                             conditions of U.S. workers in the occu-
States agent to file a petition for an H–
                                             pation.
2B nonimmigrant. A United States
agent petitioning on behalf of a foreign       (B) Validity of the labor certification.
employer must be authorized to file the      The Secretary of Labor may issue a
petition, and to accept service of proc-     temporary labor certification for a pe-
ess in the United States in proceedings      riod of up to one year.
under section 274A of the Act, on behalf       (C) U.S. Virgin Islands. Temporary
of the employer. The petitioning em-         labor certifications filed under section
ployer shall consider available United       101(a)(15)(H)(ii)(b) of the Act for em-
States workers for the temporary serv-       ployment in the United States Virgin
ices or labor, and shall offer terms and     Islands may be approved only for enter-
conditions of employment which are           tainers and athletes and only for peri-
consistent with the nature of the occu-      ods not to exceed 45 days.
pation, activity, and industry in the          (D) Attachment to petition. If the peti-
United States.                               tioner receives a notice from the Sec-
  (C) The petitioner may not file an H–      retary of Labor that certification can-
2B petition unless the United States         not be made, a petition containing
petitioner has applied for a labor cer-      countervailing evidence may be filed
tification with the Secretary of Labor       with the director. The evidence must
or the Governor of Guam within the           show that qualified workers in the
time limits prescribed or accepted by        United States are not available, and
each, and has obtained a labor certifi-      that the terms and conditions of em-
cation determination as required by          ployment are consistent with the na-
paragraph (h)(6)(iv) or (h)(6)(v) of this    ture of the occupation, activity, and
section.                                     industry in the United States. All such
  (D) The Secretary of Labor and the         evidence submitted will be considered
Governor of Guam shall separately es-        in adjudicating the petition.
tablish procedures for administering           (E) Countervailing evidence. The coun-
the temporary labor certification pro-       tervailing evidence presented by the
gram under his or her jurisdiction.          petitioner shall be in writing and shall
  (E) After obtaining a determination        address availability of U.S. workers,
from the Secretary of Labor or the           the prevailing wage rate for the occu-
Governor of Guam, as appropriate, the        pation of the United States, and each
petitioner shall file a petition on I–129,   of the reasons why the Secretary of
accompanied by the labor certification       Labor could not grant a labor certifi-
determination and supporting docu-           cation. The petitioner may also submit

                                         268
Immigration and Naturalization Service, Justice                                § 214.2

other appropriate information in sup-        lish systematic methods for determin-
port of the petition. The director, at       ing the prevailing wage rates and
his or her discretion, may require addi-     working conditions for individual occu-
tional supporting evidence.                  pations on Guam and for making deter-
  (v) Labor certification for Guam—(A)       minations as to availability of quali-
Governor of Guam’s determination. An H–      fied United States residents.
2B petition for temporary employment           (1) Prevailing wage and working condi-
on Guam shall be accompanied by a            tions. The system to determine wages
labor certification determination that       and working conditions must provide
is either:                                   for consideration of wage rates and em-
  (1) A certification from the Governor      ployment conditions for occupations in
of Guam stating that qualified workers       both the private and public sectors, in
in the United States are not available
                                             Guam and/or in the United States (as
to perform the required services, and
                                             defined in section 101(a)(38) of the Act),
that the alien’s employment will not
                                             and may not consider wages and work-
adversely affect the wages and working
                                             ing conditions outside of the United
conditions of United States resident
workers who are similarly employed on        States.    If    the    system    includes
Guam; or                                     utilitzation of advisory opinions and
  (2) A notice detailing the reasons         consultations, the opinions must be
why such certification cannot be made.       provided     by    officially  sanctioned
Such notice shall address the availabil-     groups which reflect a balance of the
ity of U.S. workers in the occupation        interests of the private and public sec-
and/or the prevailing wages and work-        tors, government, unions and manage-
ing conditions of U.S. workers in the        ment.
occupation.                                    (2) Availability of United States work-
  (B) Validity of labor certification. The   ers. The system for determining avail-
Governor of Guam may issue a tem-            ability of qualified United States work-
porary labor certification for a period      ers must require the prospective em-
up to one year.                              ployer to:
  (C) Attachments to petition. If the em-      (i) Advertise the availability of the
ployer receives a notice from the Gov-       position for a minimum of three con-
ernor of Guam that certification can-        secutive days in the newspaper with
not be made, a petition containing           the largest daily circulation on Guam;
countervailing evidence may be filed           (ii) Place a job offer with an appro-
with the director. The evidence must         priate agency of the Territorial Gov-
show that qualified workers in the           ernment which operates as a job refer-
United States are not available, and         ral service at least 30 days in advance
that the terms and conditions of em-
                                             of the need for the services to com-
ployment are consistent with the na-
                                             mence, except that for applications
ture of the occupation, activity, and
                                             from the armed forces of the United
industry in the United States. All such
                                             States and those in the entertainment
evidence submitted will be considered
                                             industry, the 30-day period may be re-
in adjudicating the petition.
  (D) Countervailing evidence. The coun-     duced by the Governor to 10 days;
tervailing evidence presented by the           (iii) Conduct appropriate recruitment
petitioner shall be in writing and shall     in other areas of the United and its ter-
address availability of United States        ritories if sufficient qualified United
workers, the prevailing wage rate, and       States construction workers are not
each of the reasons why the Governor         available on Guam to fill a job. The
of Guam could not make the required          Governor of Guam may require a job
certification. The petitioner may also       order to be placed more than 30 days in
provide any other appropriate informa-       advance of need to accommodate such
tion in support of the petition. The di-     recruitment;
rector, at his or her discretion, may re-      (iv) Report to the appropriate agency
quire additional supporting evidence.        the names of all United States resident
  (E) Criteria for Guam labor certifi-       workers who applied for the position,
cations. The Governor of Guam shall, in      indicating those hired and the job-re-
consultation with the Service, estab-        lated reasons for not hiring;

                                         269
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

   (v) Offer all special considerations,      court of law that the certification re-
such as housing and transportation ex-        quest involved fraud or willful mis-
penses, to all United States resident         representation. A temporary labor cer-
workers who applied for the position,         tification may also be invalidated if
indicating those hired and the job-re-        the director determines that the cer-
lated reasons for not hiring;                 tification involved gross error.
   (vi) Meet the prevailing wage rates          (2) Notice of intent to invalidate. If the
and working conditions determined             director intends to invalidate a tem-
under the wages and working condi-            porary labor certification, a notice of
tions system by the Governor; and             intent shall be served upon the em-
   (vii) Agree to meet all Federal and        ployer, detailing the reasons for the in-
Territorial requirements relating to          tended invalidation. The employer
employment, such as nondiscrimina-            shall have 30 days in which to file a
tion, occupational safety, and mini-          written response in rebuttal to the no-
mum wage requirements.                        tice of intent. The director shall con-
   (F) Approval and publication of em-        sider all evidence submitted upon re-
ployment systems on Guam—(1) Systems.         buttal in reaching a decision.
The Commissioner of Immigration and             (3) Appeal of invalidation. An em-
Naturalization must approve the sys-          ployer may appeal the invalidation of a
tem to determine prevailing wages and         temporary labor certification in ac-
working conditions and the system to          cordance with part 103 of this chapter.
determine availability of United States
                                                (vi) Evidence for H–2B petitions. An H–
resident workers and any future modi-
                                              2B petition shall be accompanied by:
fications of the systems prior to imple-
mentation. If the Commissioner, in              (A) Labor certification or notice. A
consultation with the Secretary of            temporary labor certification or a no-
Labor, finds that the systems or modi-        tice that certification cannot be made,
fied systems meet the requirements of         issued by the Secretary of Labor or the
this section, the Commissioner shall          Governor of Guam, as appropriate;
publish them as a notice in the FED-            (B) Countervailing evidence. Evidence
ERAL REGISTER and the Governor shall          to rebut the Secretary of Labor’s or
publish them as a public record in            the Governor of Guam’s notice that
Guam.                                         certification cannot be made, if appro-
   (2) Approval of construction wage rates.   priate;
The Commissioner must approve spe-              (C) Alien’s qualifications. Documenta-
cific wage data and rates used for con-       tion that the alien qualifies for the job
struction occupations on Guam prior           offer as specified in the application for
to implementation of new rates. The           labor certification, except in petitions
Governor shall submit new wage sur-           where the labor certification applica-
vey data and proposed rates to the            tion requires no education, training,
Commissioner for approval at least            experience, or special requirements of
eight weeks before authority to use ex-       the beneficiary; and
isting rates expires. Surveys shall be          (D) Statement of need. A statement de-
conducted at least every two years, un-       scribing in detail the temporary situa-
less the Commissioner prescribes a            tion or conditions which make it nec-
lesser period.                                essary to bring the alien to the United
   (G) Reporting. The Governor shall          States and whether the need is a one-
provide the Commissioner statistical          time occurrence, seasonal, peakload, or
data on temporary labor certification         intermittent. If the need is seasonal,
workload and determinations. This in-         peakload, or intermittent, the state-
formation shall be submitted quarterly        ment shall indicate whether the situa-
no later than 30 days after the quarter       tion or conditions are expected to be
ends.                                         recurrent.
   (H) Invalidation of temporary labor cer-     (E) Liability for transportation costs.
tification issued by the Governor of          The employer will be liable for the rea-
Guam—(1) General. A temporary labor           sonable costs of return transportation
certification issued by the Governor of       of the alien abroad, if the alien is dis-
Guam may be invalidated by a director         missed from employment for any rea-
if it is determined by the director or a      son by the employer before the end of

                                          270
Immigration and Naturalization Service, Justice                                 § 214.2

the period of authorized admission pur-        for either an internship or residency
suant to section 214(c)(5) of the Act. If      program may petition to classify as an
the beneficiary voluntarily terminates         H–3 trainee a medical student attend-
his or her employment prior to the ex-         ing a medical school abroad, if the
piration of the validity of the petition,      alien will engage in employment as an
the alien has not been dismissed. If the       extern during his/her medical school
beneficiary believes that the employer         vacation.
has not complied with this provision,            (B) Nurses. A petitioner may seek H–
the beneficiary shall advise the Service       3 classification for a nurse who is not
Center which adjudicated the petition          H–1 if it can be established that there
in writing. The complaint will be re-          is a genuine need for the nurse to re-
tained in the file relating to the peti-       ceive a brief period of training that is
tion. Within the context of this para-         unavailable in the alien’s native coun-
graph, the term ‘‘abroad’’ means the           try and such training is designed to
alien’s last place of foreign residence.       benefit the nurse and the overseas em-
This provision applies to any employer         ployer upon the nurse’s return to the
whose offer of employment became the           country of origin, if:
basis for the alien obtaining or con-            (1) The beneficiary has obtained a
tinuing H–2B status.                           full and unrestricted license to prac-
  (vii) Traded professional H–2B athletes.     tice professional nursing in the coun-
In the case of a professional H–2B ath-        try where the beneficiary obtained a
lete who is traded from one organiza-          nursing education, or such education
tion or another organization, employ-          was obtained in the United States or
ment authorization for the player will         Canada; and
automatically continue for a period of           (2) The petitioner provides a state-
30 days after the player’s acquisition         ment certifying that the beneficiary is
by the new organization, within which          fully qualified under the laws govern-
time the new organization is expected          ing the place where the training will be
to file a new Form I–129 for H–2B non-         received to engage in such training,
immigrant classification. If a new             and that under those laws the peti-
Form I–129 is not filed within 30 days,        tioner is authorized to give the bene-
employment authorization will cease.           ficiary the desired training.
If a new Form I–129 is filed within 30           (ii) Evidence required for petition in-
days, the professional athlete shall be        volving alien trainee—(A) Conditions.
deemed to be in valid H–2B status, and         The petitioner is required to dem-
employment shall continue to be au-            onstrate that:
thorized, until the petition is adju-            (1) The proposed training is not avail-
dicated. If the new petition is denied,        able in the alien’s own country;
employment authorization will cease.             (2) The beneficiary will not be placed
  (7) Petition for alien trainee or partici-   in a position which is in the normal op-
pant in a special education exchange visi-     eration of the business and in which
tor program (H–3)—(i) Alien trainee. The       citizens and resident workers are regu-
H–3 trainee is a nonimmigrant who              larly employed;
seeks to enter the United States at the          (3) The beneficiary will not engage in
invitation of an organization or indi-         productive employment unless such
vidual for the purpose of receiving            employment is incidental and nec-
training in any field of endeavor, such        essary to the training; and
as agriculture, commerce, communica-             (4) The training will benefit the bene-
tions, finance, government, transpor-          ficiary in pursuing a career outside the
tation, or the professions, as well as         United States.
training in a purely industrial estab-           (B) Description of training program.
lishment. This category shall not apply        Each petition for a trainee must in-
to physicians, who are statutorily in-         clude a statement which:
eligible to use H–3 classification in            (1) Describes the type of training and
order to receive any type of graduate          supervision to be given, and the struc-
medical education or training.                 ture of the training program;
  (A) Externs. A hospital approved by            (2) Sets forth the proportion of time
the American Medical Association or            that will be devoted to productive em-
the American Osteopathic Association           ployment;

                                           271
§ 214.2                                                    8 CFR Ch. I (1–1–98 Edition)

  (3) Shows the number of hours that           viding education to children with dis-
will be spent, respectively, in class-         abilities, and for providing training
room instruction and in on-the-job             and hands-on experience to partici-
training;                                      pants in the special education ex-
  (4) Describes the career abroad for          change visitor program.
which the training will prepare the              (3) The requirements in this section
alien;                                         for alien trainees shall not apply to pe-
  (5) Indicates the reasons why such           titions for participants in a special
training cannot be obtained in the             education exchange visitor program.
alien’s country and why it is necessary          (B) Evidence. An H–3 petition for a
for the alien to be trained in the             participant in a special education ex-
United States; and                             change visitor program shall be accom-
  (6) Indicates the source of any remu-        panied by:
neration received by the trainee and             (1) A description of the training pro-
any benefit which will accrue to the pe-       gram and the facility’s professional
titioner for providing the training.           staff and details of the alien’s partici-
  (iii) Restrictions on training program       pation in the training program (any
for alien trainee. A training program          custodial care of children must be inci-
may not be approved which:                     dental to the training), and
  (A) Deals in generalities with no
                                                 (2) Evidence that the alien partici-
fixed schedule, objectives, or means of
                                               pant is nearing completion of a bacca-
evaluation;
                                               laureate or higher degree in special
  (B) Is incompatible with the nature
                                               education, or already holds such a de-
of the petitioner’s business or enter-
                                               gree, or has extensive prior training
prise;
                                               and experience in teaching children
  (C) Is on behalf of a beneficiary who
                                               with physical, mental, or emotional
already possesses substantial training
                                               disabilities.
and expertise in the proposed field of
                                                 (8) Numerical limits—(i) Limits on af-
training;
                                               fected categories. During each fiscal
  (D) Is in a field in which it is un-
                                               year, the total number of aliens who
likely that the knowledge or skill will
                                               can be provided nonimmigrant classi-
be used outside the United States;
                                               fication is limited as follows:
  (E) Will result in productive employ-
ment beyond that which is incidental             (A) Aliens classified as H1–B non-
and necessary to the training;                 immigrants, excluding those involved
  (F) Is designed to recruit and train         in DOD research and development
aliens for the ultimate staffing of do-        projects or coproduction projects, may
mestic operations in the United States;        not exceed 65,000.
  (G) Does not establish that the peti-          (B) Aliens classified as H–1B non-
tioner has the physical plant and suffi-       immigrants to work for DOD research
ciently trained manpower to provide            and development projects or coproduc-
the training specified; or                     tion projects may not exceed 100 at any
  (H) Is designed to extend the total al-      time.
lowable period of practical training             (C) Aliens classified as H–2B non-
previously authorized a nonimmigrant           immigrants may not exceed 66,000.
student.                                         (D) Aliens classified as H–3 non-
  (iv) Petition for participant in a special   immigrant participants in a special
education exchange visitor program—(A)         education exchange visitor program
General Requirements. (1) The H–3 par-         may not exceed 50.
ticipant in a special education training         (ii) Procedures. (A) Each alien issued
program must be coming to the United           a visa or otherwise provided non-
States to participate in a structured          immigrant       status   under    section
program which provides for practical           101(a)(15)(H)(i)(b) of the Act shall be
training and experience in the edu-            counted for purposes of the numerical
cation of children with physical, men-         limit. Requests for petition extension
tal, or emotional disabilities.                or extension of an alien’s stay shall not
  (2) The petition must be filed by a fa-      be counted for the purpose of the nu-
cility which has professionally trained        merical limit. The spouse and children
staff and a structured program for pro-        of principal aliens classified as H–4

                                           272
Immigration and Naturalization Service, Justice                                 § 214.2

nonimmigrants shall not be counted          fore the date of actual need for the
against the numerical limit.                beneficiary’s services or training.
   (B) Numbers will be assigned tempo-        (ii) Recording the validity of petitions.
rarily to each alien (or job opening(s)     Procedures for recording the validity
for aliens in petitions with unnamed        period of petitions are:
beneficiaries) included in a new peti-        (A) If a new H petition is approved
tion in the order that petitions are        before the date the petitioner indicates
filed. If a petition is denied, the num-    that the services or training will begin,
ber(s) originally assigned to the peti-     the approved petition and approval no-
tion shall be returned to the system        tice shall show the actual dates re-
which maintains and assigns numbers.        quested by the petitioner as the valid-
   (C) For purposes of assigning num-       ity period, not to exceed the limits
bers to aliens on petitions filed in        specified by paragraph (h)(9)(iii) of this
Guam and the Virgin Islands, Service        section or other Service policy.
Headquarters Adjudications shall as-          (B) If a new H petition is approved
sign numbers to these locations from        after the date the petitioner indicates
the central system which controls and       that the services or training will begin,
assigns numbers to petitions filed in       the approved petition and approval no-
other locations of the United States.       tice shall show a validity period com-
   (D) When an approved petition is not     mencing with the date of approval and
used because the beneficiary(ies) does
                                            ending with the date requested by the
not apply for admission to the United
                                            petitioner, as long as that date does
States, the petitioner shall notify the
                                            not exceed either the limits specified
Service Center Director who approved
                                            by paragraph (h)(9)(iii) of this section
the petition that the number(s) has not
                                            or other Service policy.
been used. The petition shall be re-
voked pursuant to paragraph (h)(11)(ii)       (C) If the period of services or train-
of this section and the unused num-         ing requested by the petitioner exceeds
ber(s) shall be returned to the system      the limit specified in paragraph
which maintains and assigns numbers.        (h)(9)(iii) of this section, the petition
   (E) If the total numbers available in    shall be approved only up to the limit
a fiscal year are used, new petitions       specified in that paragraph.
and the accompanying fee shall be re-         (iii) Validity. The initial approval pe-
jected and returned with a notice that      riod of an H petition shall conform to
numbers are unavailable for the par-        the limits prescribed as follows:
ticular nonimmigrant classification           (A)(1) H–1B petition in a specialty occu-
until the beginning of the next fiscal      pation. An approved petition classified
year.                                       under section 101(a)(15)(H)(i)(b) of the
   (9) Approval and validity of petition—   Act for an alien in a specialty occupa-
(i) Approval. The director shall consider   tion shall be valid for a period of up to
all the evidence submitted and such         three years but may not exceed the va-
other evidence as he or she may inde-       lidity period of the labor condition ap-
pendently require to assist his or her      plication.
adjudication. The director shall notify       (2) H–1B petition involving a DOD re-
the petitioner of the approval of the pe-   search and development or coproduction
tition on Form I–797, Notice of Action.     project. An approved petition classified
The approval shall be as follows:           under section 101(a)(15)(H)(i)(b) of the
   (A) The approval notice shall include    Act for an alien involved in a DOD re-
the beneficiary’s(ies’) name(s) and clas-   search and development project or a
sification and the petition’s period of     coproduction project shall be valid for
validity. A petition for more than one      a period of up to five years.
beneficiary and/or multiple services          (3) H–1B petition involving an alien of
may be approved in whole or in part.        distinguished merit and ability in the field
The approval notice shall cover only        of fashion modeling. An approved peti-
those beneficiaries approved for classi-    tion       classified    under      section
fication under section 101(a)(15)(H) of     101(a)(15)(H)(i)(b) of the Act for an alien
the Act.                                    of distinguished merit and ability in
   (B) The petition may not be filed or     the field of fashion modeling shall be
approved earlier than six months be-        valid for a period of up to three years.

                                        273
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

  (B) H–2B petition—(1) Labor certifi-        beneficiary may accept employment
cation attached. If a certification by the    unless he or she is the beneficiary of an
Secretary of Labor or the Governor of         approved petition filed in his or her be-
Guam is attached to a petition to ac-         half and has been granted a non-
cord an alien a classification under sec-     immigrant classification authorizing
tion 101(a)(15)(H)(ii)(B) of the Act, the     his or her employment.
approval of the petition shall be valid         (10) Denial of petition—(i) Multiple
for a period of up to one year.               beneficiaries. A petition for multiple
  (2) Notice that certification cannot be     beneficiaries may be denied in whole or
made attached—(i) Countervailing evi-         in part.
dence. If a petition is submitted con-          (ii) Notice of intent to deny. When an
taining a notice from the Secretary of        adverse decision is proposed on the
Labor or the Governor of Guam that            basis of derogatory inform U.S. ation
certification cannot be made, and is          of which the petitioner is unaware, the
not accompanied by countervailing evi-        director shall notify the petitioner of
dence, the petitioner shall be informed       the intent to deny the petition and the
that he or she may submit the counter-        basis for the denial. The petitioner
vailing evidence in accordance with           may inspect and rebut the evidence and
paragraphs          (h)(6)(iii)(E)      and   will be granted a period of 30 days from
(h)(6)(iv)(D) of this section.                the date of the notice in which to do
  (ii) Approval. In any case where the        so. All relevant rebuttal material will
director decides that approval of the H–      be considered in making a final deci-
2B petition is warranted despite the          sion.
issuance of a notice by the Secretary of
                                                (iii) Notice of denial. The petitioner
Labor or the Governor of Guam that
                                              shall be notified of the reasons for the
certification cannot be made, the ap-
                                              denial, and of his or her right to appeal
proval shall be certified by the Direc-
                                              the denial of the petition under 8 CFR
tor to the Commissioner pursuant to 8
                                              part 103. There is no appeal from a de-
CFR 103.4. In emergent situations, the
                                              cision to deny an extension of stay to
certification may be presented by tele-
                                              the alien.
phone to the Director, Administrative
Appeals Office, Headquarters. If ap-            (11) Revocation of approval of peti-
proved, the petition is valid for the pe-     tion—(i) General. (A) The petitioner
riod of established need not to exceed        shall immediately notify the Service of
one year. There is no appeal from a de-       any changes in the terms and condi-
cision which has been certified to the        tions of employment of a beneficiary
Commissioner.                                 which may affect eligibility under sec-
  (C)(1) H–3 petition for alien trainee. An   tion 101(a)(15)(H) of the Act and para-
approved petition for an alien trainee        graph (h) of this section. An amended
classified           under          section   petition on Form I–129 should be filed
101(a)(15)(H)(iii) of the Act shall be        when the petitioner continues to em-
valid for a period of up to two years.        ploy the beneficiary. If the petitioner
  (2) H–3 petition for alien participant in   no longer employs the beneficiary, the
a special education training program. An      petitioner shall send a letter explain-
approved petition for an alien classi-        ing the change(s) to the director who
fied under section 101(a)(15)(H)(iii) of      approved the petition.
the Act as a participant in a special           (B) The director may revoke a peti-
education exchange visitor program            tion at any time, even after the expira-
shall be valid for a period of up to 18       tion of the petition.
months.                                         (ii) Automatic revocation. The ap-
  (iv) Spouse and dependents. The             proval of any petition is automatically
spouse and unmarried minor children           revoked if the petitioner goes out of
of the beneficiary are entitled to H          business or files a written withdrawal
nonimmigrant classification, subject          of the petition.
to the same period of admission and             (iii) Revocation on notice—(A) Grounds
limitations as the beneficiary, if they       for revocation. The director shall send
are accompanying or following to join         to the petitioner a notice of intent to
the beneficiary in the United States.         revoke the petition in relevant part if
Neither the spouse nor a child of the         he or she finds that:

                                          274
Immigration and Naturalization Service, Justice                                § 214.2

  (1) The beneficiary is no longer em-      tion. Brief trips to the United States
ployed by the petitioner in the capac-      for business or pleasure during the re-
ity specified in the petition, or if the    quired      time    abroad     are     not
beneficiary is no longer receiving          interruptive, but do not count towards
training as specified in the petition; or   fulfillment of the required time abroad.
  (2) The statement of facts contained      The petitioner shall provide informa-
in the petition was not true and cor-       tion about the alien’s employment,
rect; or                                    place of residence, and the dates and
  (3) The petitioner violated terms and     purposes of any trips to the United
conditions of the approved petition; or     States during the period that the alien
  (4) The petitioner violated require-      was required to spend time abroad.
ments of section 101(a)(15)(H) of the Act     (ii) H–1A limitation on admission. An
or paragraph (h) of this section; or        alien who was previously accorded H–
  (5) The approval of the petition vio-     1A nonimmigrant status, which expired
lated pargraph (h) of this section or in-   on or before October 11, 1996, may not
volved gross error.                         be admitted to the United States after
  (B) Notice and decision. The notice of    October 11, 1996, in order to apply for
intent to revoke shall contain a de-        an extension of authorized stay as pro-
tailed statement of the grounds for the     vided in Public Law 104–302. Except as
revocation and the time period allowed      provided in paragraph (15)(ii)(A) of this
for the petitioner’s rebuttal. The peti-    subsection, and H–1A alien who has
tioner may submit evidence in rebuttal      spent 5 years in the United States
within 30 days of receipt of the notice.    under section 101(a)(15)(H) of the Act
The director shall consider all relevant    may not change status, or be readmit-
evidence presented in deciding whether      ted to the United States in any H clas-
to revoke the petition in whole or in       sification unless the alien has resided
part. If the petition is revoked in part,   and been physically present outside the
the remainder of the petition shall re-     United States, except for brief trips for
main approved and a revised approval        pleasure or business, for the immediate
notice shall be sent to the petitioner      prior year.
with the revocation notice.                   (iii) H–1B limitation on admission. (A)
  (12) Appeal of a denial or a revocation   Alien in a specialty occupation or an
of a petition—(i) Denial. A petition de-    alien of distinguished merit and ability in
nied in whole or in part may be ap-         the field of fashion modeling. An H–1B
pealed under part 103 of this chapter.      alien in a specialty occupation or an
  (ii) Revocation. A petition that has      alien of distinguished merit and ability
been revoked on notice in whole or in       who has spent six years in the United
part may be appealed under part 103 of      States under section 101(a)(15)(H) and/
this chapter. Automatic revocations         or (L) of the Act may not seek exten-
may not be appealed.                        sion, change status, or be readmitted
  (13) Admission—(i) General. (A) A ben-    to the United States under section
eficiary shall be admitted to the           101(a)(15) (H) or (L) of the Act unless
United States for the validity period of    the alien has resided and been phys-
the petition, plus a period of up to 10     ically present outside the United
days before the validity period begins      States, except for brief trips for busi-
and 10 days after the validity period       ness or pleasure, for the immediate
ends. The beneficiary may not work ex-      prior year.
cept during the validity period of the        (B) Alien involved in a DOD research
petition.                                   and development or coproduction project.
  (B) When an alien in an H classifica-     An H–1B alien involved in a DOD re-
tion has spent the maximum allowable        search and development or coproduc-
period of stay in the United States, a      tion project who has spent 10 years in
new petition under sections 101(a)(15)      the United States under section
(H) or (L) of the Act may not be ap-        101(a)(15) (H) and/or (L) of the Act may
proved unless that alien has resided        not seek extension, change status, or
and been physically present outside the     be readmitted to the United States
United States, except for brief trips for   under section 101(a)(15) (H) or (L) of the
business or pleasure, for the time limit    Act to perform services involving a
imposed on the particular H classifica-     DOD research and development project

                                        275
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

or coproduction project. A new petition       an alien’s stay in the United States by
or change of status under section             filing a petition extension on Form I–
101(a)(15) (H) or (L) of the Act may not      129 accompanied by the documents de-
be approved for such an alien unless          scribed for the particular classification
the alien has resided and been phys-          in paragraph (h)(15)(ii) of this section.
ically present outside the United             The petitioner must also request a pe-
States, except for brief trips for busi-      tition extension. The dates of exten-
ness or pleasure, for the immediate           sion shall be the same for the petition
prior year.                                   and the beneficiary’s extension of stay.
  (iv) H–2B and H–3 limitation on admis-      The beneficiary must be physically
sion. An H–2B alien who has spent 3           present in the United States at the
years in the United States under sec-         time of the filing of the extension of
tion 101(a)(15)(H) and/or (L) of the Act;
                                              stay. Even though the requests to ex-
an H–3 alien participant in a special
                                              tend the petition and the alien’s stay
education program who has spent 18
                                              are combined on the petition, the di-
months in the United States under sec-
tion 101(a)(15)(H) and/or (L) of the Act;     rector shall make a separate deter-
and an H–3 alien trainee who has spent        mination on each. If the alien is re-
24 months in the United States under          quired to leave the United States for
section 101(a)(15)(H) and/or (L) of the       business or personal reasons while the
Act may not seek extension, change            extension requests are pending, the pe-
status, or be readmitted to the United        titioner may request the director to
States under section 101(a)(15)(H) and/       cable notification of approval of the pe-
or (L) of the Act unless the alien has        tition extension to the consular office
resided and been physically present           abroad where the alien will apply for a
outside the United States for the im-         visa. When the total period of stay in
mediate prior 6 months.                       an H classification has been reached,
  (v) Exceptions. The limitations in          no further extensions may be granted.
paragraph (h)(13)(ii) through (h)(13)(iv)        (ii) Extension periods—(A) H–1A exten-
of this section shall not apply to H–1A,      sion of stay. An alien who previously
H–1B, H–2B, and H–3 aliens who did not        entered the United States pursuant to
reside continually in the United States       an H–1A visa may receive an extension
and whose employment in the United            of H–1A temporary stay until Septem-
States was seasonal or intermittent or        ber 30, 1997, provided that the alien was
was for an aggregate of six months or         within the United States in valid H–1A
less per year. In addition, the limita-       classification on or after September 1,
tions shall not apply to aliens who re-       1995, regardless of whether the alien
side abroad and regularly commute to          continued to work as a registered nurse
the United States to engage in part-          after September 1, 1995; that the alien’s
time employment. To qualify for this          period of H–1A temporary stay has ex-
exception, the petitioner and the alien       pired or would expire before September
must provide clear and convincing
                                              30, 1997; and, if the alien was not in
proof that the alien qualifies for such
                                              valid H–1A nonimmigrant status on Oc-
an exception. Such proof shall consist
                                              tober 11, 1996, that the alien was within
of evidence such as arrival and depar-
ture records, copies of tax returns, and      the United States on October 11, 1996.
records of employment abroad.                 An extension of stay may not be grant-
  (14) Extension of visa petition validity.   ed to an H–1A nonimmigrant alien be-
The petitioner shall file a request for a     yond September 30, 1997. An H–1A alien
petition extension on Form I–129 to ex-       granted an extension of stay, and the
tend the validity of the original peti-       spouse and child of such non-
tion under section 101(a)(15)(H) of the       immigrant, shall be considered to have
Act. Supporting evidence is not re-           maintained       nonimmigrant      status
quired unless requested by the director.      through September 30, 1997, for all pur-
A request for a petition extension may        poses under the Immigration and Na-
be filed only if the validity of the origi-   tionality Act, as amended. Public Law
nal petition has not expired.                 104–302 does not apply to an H–1A alien
  (15) Extension of stay—(i) General. The     who otherwise failed to maintain his or
petitioner shall apply for extension of       her valid H–1A nonimmigrant status or

                                          276
Immigration and Naturalization Service, Justice                                     § 214.2

has changed from H–1A to another non-          DOD research and development project
immigrant status. A request for an ex-         or coproduction project. The total pe-
tension of stay for an H–1A non-               riod of stay may not exceed 10 years.
immigrant must be filed on Form I–129,            (C) H–2A or H–2B extension of stay. An
Petition for Nonimmigrant Worker, at           extension of stay for the beneficiary of
the appropriate Service Center with            an H–2A or H–2B petition may be au-
the following:                                 thorized for the validity of the labor
  (1) Evidence that the alien was em-          certification or for a period of up to
ployed as a registered nurse on Sep-           one year, except as provided for in
tember 1, 1995:                                paragraph (h)(5)(x) of this section. The
  (2) Evidence that the beneficiary is         alien’s total period of stay as an H–2A
licensed to practice as a registered           or H–2B worker may not exceed three
nurse in the state of intended employ-         years, except that in the Virgin Is-
ment;                                          lands, the alien’s total period of stay
  (3) Evidence that the alien was with-        may not exceed 45 days.
in the United States on or after Sep-             (D) H–3 extension of stay. An exten-
tember 1, 1995. For purposes of this pro-      sion of stay may be authorized for the
vision, an alien will be deemed to have        length of the training program for a
been within the United States on Sep-          total period of stay as an H–3 trainee
tember 1, 1995, who, although not phys-        not to exceed two years, or for a total
ically present in the United States on         period of stay as a participant in a spe-
that date, was subsequently admitted           cial education training program not to
to the United States in H–1A classifica-       exceed 18 months.
tion pursuant to an unexpired H–1A                (16) Effect of approval of a permanent
visa; and                                      labor certification or filing of a preference
  (4) If the alien was not in valid H–1A       petition on H classification—(i) H–1A or
nonimmigrant status on October 11,             H–1B classification. The approval of a
1996, evidence that the alien was within       permanent labor certification or the
the United States on October 11, 1996.         filing of a preference petition for an
For purposes of this provision, an alien       alien shall not be a basis for denying
will be deemed to have been within the         an H–1A or H–1B petition or a request
United States on October 11, 1996, who,        to extend such a petition, or the alien’s
although not physically present in the         admission, change of status, or exten-
United States on that date, was subse-         sion of stay. The alien may legiti-
quently admitted to the United States          mately come to the United States for a
in H–1A classification pursuant to an          temporary period as an H–1A or H–1B
unexpired H–1A visa.                           nonimmigrant and depart voluntarily
  (B) H–1B extension of stay—(1) Alien in      at the end of his or her authorized stay
a specialty occupation or an alien of dis-     and, at the same time, lawfully seek to
tinguished merit and ability in the field of   become a permanent resident of the
fashion modeling. An extension of stay         United States.
may be authorized for a period of up to           (ii) H–2A, H–2B, and H–3 classification.
three years for a beneficiary of an H–1B       The approval of a permanent labor cer-
petition in a specialty occupation or an       tification, or the filing of a preference
alien of distinguished merit and abil-         petition for an alien currently em-
ity. The alien’s total period of stay          ployed by or in a training position with
may not exceed six years. The request          the same petitioner, shall be a reason,
for extension must be accompanied by           by itself, to deny the alien’s extension
either a new or a photocopy of the             of stay.
prior certification from the Depart-              (17) Effect of a strike—(i) If the Sec-
ment of Labor that the petitioner con-         retary of Labor certifies to the Com-
tinues to have on file a labor condition       missioner that a strike or other labor
application valid for the period of time       dispute involving a work stoppage of
requested for the occupation.                  workers is in progress in the occupa-
  (2) Alien in a DOD research and devel-       tion and at the place where the bene-
opment or coproduction project. An ex-         ficiary is to be employed or trained,
tension of stay may be authorized for a        and that the employment of training of
period up to five years for the bene-          the beneficiary would adversely affect
ficiary of an H–1B petition involving a        the wages and working conditions of

                                           277
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

U.S. citizens and lawful resident work-      an extension of a visa petition, or an
ers:                                         alien’s extension of stay is approved
  (A) A petition to classify an alien as     under the H classification. The bene-
a nonimmigrant as defined in section         ficiary of an H petition who does not
101(a)(15)(H) of the Act shall be denied.    require a nonimmigrant visa may
  (B) If a petition has already been ap-     present a copy of the approval notice
proved, but the alien has not yet en-        at a port of entry to facilitate entry
tered the United States, or has entered      into the United States. A beneficiary
the United States but has not com-           who is required to present a visa for ad-
menced the employment, the approval          mission and whose visa will have ex-
of the petition is automatically sus-        pired before the date of his or her in-
pended, and the application for admis-
                                             tended return may use a copy of Form
sion on the basis of the petition shall
                                             I–797 to apply for a new or revalidated
be denied.
  (ii) If there is a strike or other labor   visa during the validity period of the
dispute involving a work stoppage of         petition. The copy of Form I–797 shall
workers in progress, but such strike or      be retained by the beneficiary and pre-
other labor dispute is not certified         sented during the validity of the peti-
under paragraph (h)(17)(i), the Commis-      tion when reentering the United States
sioner shall not deny a petition or sus-     to resume the same employment with
pend an approved petition.                   the same petitioner.
  (iii) If the alien has already com-          (i) Representatives of information
menced employment in the United              media. The admission of an alien of the
States under an approved petition and        class defined in section 101(a)(15)(I) of
is participating in a strike or other        the Act constitutes an agreement by
labor dispute involving a work stop-         the alien not to change the informa-
page of workers, whether or not such         tion medium or his or her employer
strike or other labor dispute has been       until he or she obtains permission to
certified by the Department of Labor,        do so from the district director having
the alien shall not be deemed to be fail-    jurisdiction over his or her residence.
ing to maintain his or her status solely     An alien classified as an information
on account of past, present, or future       media nonimmigrant (I) may be au-
participation in a strike or other labor     thorized admission for the duration of
dispute involving a work stoppage of
                                             employment.
workers, but is subject to the following
                                               (j) Exchange aliens—(1) General. (i) Ex-
terms and conditions:
  (A) The alien shall remain subject to      change alien means a nonimmigrant ad-
all applicable provisions of the Immi-       mitted under section 101(a)(15)(J) of the
gration and Nationality Act, and regu-       Act or who acquired such status, or
lations promulgated in the same man-         who acquired exchange-visitor status
ner as all other H nonimmigrants;            under the United States Information
  (B) The status and authorized period       and Education Exchange Act. Any ex-
of stay of such an alien is not modified     change alien coming to the United
or extended in any way by virtue of his      States as a participant in a program
or her participation in a strike or other    designated under section 101(a)(15)(J) of
labor dispute involving a work stop-         the Act and accompanying spouse and
page of workers; and                         minor children shall not be admitted
  (C) Although participation by an H         without submitting a completely exe-
nonimmigrant alien in a strike or            cuted Form IAP–66. The spouse and
other labor dispute involving a work         minor children following to join the
stoppage of workers will not constitute      participant shall not be admitted with-
a ground for deportation, any alien          out a copy of current Form IAP–66 en-
who violates his or her status or who        dorsed by the program sponsor indicat-
remains in the United States after his       ing the expiration of stay date as
or her authorized period of stay has ex-     shown on Form I–94. Any alien seeking
pired will be subject to deportation.        to change nonimmigrant status to ex-
  (18) Use of approval notice, Form I–797.
                                             change visitor status shall file Form I–
The Service shall notify the petitioner
                                             506 and attach a valid Form IAP–66.
on Form I–797 whenever a visa petition,

                                         278
Immigration and Naturalization Service, Justice                              § 214.2

  (ii) Admission. The initial admission     Service, to the district director having
of an exchange alien, spouse, and chil-     jurisdiction over the J–1 exchange visi-
dren may not exceed the period speci-       tor’s temporary residence in the United
fied on Form IAP–66, plus a period of 30    States. Income from the spouse’s or de-
days for the purpose of travel. Regula-     pendent’s employment may be used to
tions of the United States Information      support the family’s customary rec-
Agency published at 22 CFR 514.23 give      reational and cultural activities and
general limitations on the length of        related travel, among other things.
stay of the various classes of exchange     Employment will not be authorized if
visitors. A spouse or child (J–2) may       this income is needed to support the J–
not be admitted for longer than the         1 principal alien.
principal exchange alien (J–1).               (B) J–2 employment may be author-
  (iii) Readmission. An exchange alien      ized for the duration of the J–1 prin-
may be readmitted to the United             cipal alien’s authorized stay as indi-
States for the remainder of the time        cated on Form I–94 or a period of four
authorized on Form I–94, without pre-       years, whichever is shorter. The em-
senting Form IAP–66, if the alien is re-    ployment authorization is valid only if
turning from a visit solely to foreign      the J–1 is maintaining status. Where a
contiguous territory or adjacent is-        J–2 spouse or dependent child has filed
lands after an absence of less than 30      a timely application for extension of
days and if the original Form I–94 is       stay, only upon approval of the request
presented. All other exchange aliens        for extension of stay may he or she
must present a valid Form IAP–66. An        apply for a renewal of the employment
original Form IAP–66 or copy three          authorization on a Form I–765 with the
(the pink copy) of a previously issued      required fee.
form presented by an exchange alien           (2) Special reporting requirement. Each
returning from a temporary absence          exchange alien participating in a pro-
shall be retained by the exchange alien     gram of graduate medical education or
for re-entries during the balance of the    training shall file Form I–644 (Supple-
alien’s stay.                               mentary Statement for Graduate Medi-
  (iv) Extensions of Stay. If an exchange   cal Trainees) annually with the Service
alien requires an extension beyond the      attesting to the conditions as specified
initial admission period, the alien shall   on the form. The exchange alien shall
apply by submitting a new Form IAP–         also submit Form I–644 as an attach-
66 which indicates the date to which        ment to a completed Form IAP–66
the alien’s program is extended. The        when applying for an extension of stay.
extension may not exceed the period           (3) Alien in cancelled programs. When
specified on Form IAP–66, plus a period     the approval of an exchange visitor
of 30 days for the purpose of travel. Ex-   program is withdrawn by the Director
tensions of stay for the alien’s spouse     of the United States Information Agen-
and children require, as an attachment      cy, the district director shall send a
to Form IAP–66, Form I–94 for each de-      notice of the withdrawal to each par-
pendent, and a list containing the          ticipant in the program and a copy of
names of the applicants, dates and          each such notice shall be sent to the
places of birth, passport numbers,          program sponsor. If the exchange visi-
issuing countries, and expiration dates.    tor is currently engaged in activities
An accompanying spouse or child may         authorized by the cancelled program,
not be granted an extension of stay for     the participant is authorized to remain
longer than the principal exchange          in the United States to engage in those
alien.                                      activities until expiration of the period
  (v) Employment. (A) The accompany-        of stay previously authorized. The dis-
ing spouse and minor children of a J–1      trict director shall notify participants
exchange visitor may accept employ-         in cancelled programs that permission
ment only with authorization by the         to remain in the United States as an
Immigration and Naturalization Serv-        exchange visitor, or extension of stay
ice. A request for employment author-       may be obtained if the participant is
ization must be made on Form I–765,         accepted in another approved program
Application for Employment Author-          and a Form IAP–66, executed by the
ization, with fee, as required by the       new program sponsor, is submitted. In

                                        279
§ 214.2                                                      8 CFR Ch. I (1–1–98 Edition)

this case, a release from the sponsor of         ant to section 214(d) of the Act and this
the cancelled program will not be re-            paragraph may be accepted, though un-
quired.                                          accompanied by the original, if the
  (4) Eligibility requirements for section       copy bears a certification by an attor-
101(a)(15)(J) classification for aliens desir-   ney, typed or rubber-stamped, in the
ing to participate in programs under             language set forth in § 204.2(j) of this
which they will receive graduate medical         chapter. However, the original docu-
education or training—(i) Requirements.          ment shall be submitted if requested by
Any alien coming to the United States            the Service.
as an exchange visitor to participate in            (2) Requirement that petitioner and ben-
a program under which the alien will
                                                 eficiary have met. The petitioner shall
receive graduate medical education or
                                                 establish to the satisfaction of the di-
training, or any alien seeking to
change nonimmigrant status to that of            rector that the petitioner and bene-
an exchange visitor on Form I–506 for            ficiary have met in person within the
that purpose, must have passed parts of          two years immediately preceding the
I and II of the National Board of Medi-          filing of the petition. As a matter of
cal Examiners Examination (or an                 discretion, the director may exempt
equivalent examination as determined             the petitioner from this requirement
by the Secretary of Health and Human             only if it is established that compli-
Services), and must be competent in              ance would result in extreme hardship
oral and written English, and shall sub-         to the petitioner or that compliance
mit a completely executed and valid              would violate strict and long-estab-
Form IAP–66.                                     lished customs of the beneficiary’s for-
  (ii) Exemptions. From January 10, 1978         eign culture or social practice, as
until December 31, 1983, any alien who           where marriages are traditionally ar-
has come to or seeks to come to the              ranged by the parents of the contract-
United States as an exchange visitor to          ing parties and the prospective bride
participate in an accredited program of          and groom are prohibited from meeting
graduate medical education or train-             subsequent to the arrangement and
ing, or any alien who seeks to change            prior to the wedding day. In addition to
nonimmigrant status for that purpose,            establishing that the required meeting
may be admitted to participate in such           would be a violation of custom or prac-
program without regard to the require-
                                                 tice, the petitioner must also establish
ments stated in subparagraphs (A) and
                                                 that any and all other aspects of the
(B)(ii)(I) of section 212(j)(1) of the Act if
                                                 traditional arrangements have been or
a substantial disruption in the health
services provided by such program                will be met in accordance with the cus-
would result from not permitting the             tom or practice. Failure to establish
alien to participate in the program:             that the petitioner and beneficiary
Provided that the exemption will not             have met within the required period or
increase the total number of aliens              that compliance with the requirement
then participating in such programs to           should be waived shall result in the de-
a level greater than that participating          nial of the petition. Such denial shall
on January 10, 1978.                             be without prejudice to the filing of a
  (k) Fiancees and fiances of United             new petition once the petitioner and
States citizens—(1) Petition and support-        beneficiary have met in person.
ing documents. To be classified as a fi-            (3) Children of beneficiary. Without
ance or fiancee as defined in section            the approval of a separate petition on
101(a)(15)(K) of the Act, an alien must          his or her behalf, a child of the bene-
be the beneficiary of an approved visa           ficiary     (as    defined    in    section
petition filed on Form I–129F. The peti-         101(b)(1)(A), (B), (C), (D), or (E) of the
tion with supporting documents shall             Act) may be accorded the same non-
be filed by the petitioner with the di-          immigrant classification as the bene-
rector having administrative jurisdic-           ficiary if accompanying or following to
tion over the place where the peti-              join him or her.
tioner is residing in the United States.
                                                    (4) Notification. The petitioner shall
A copy of a document submitted in
support of a visa petition filed pursu-          be notified of the decision and, if the

                                             280
Immigration and Naturalization Service, Justice                                § 214.2

petition is denied, of the reasons there-    General. Under section 101(a)(15)(L) of
for and of the right to appeal in accord-    the Act, an alien who within the pre-
ance with the provisions of part 103 of      ceding three years has been employed
this chapter.                                abroad for one continuous year by a
  (5) Validity. The approval of a peti-      qualifying organization may be admit-
tion under this paragraph shall be valid     ted temporarily to the United States to
for a period of four months. A petition      be employed by a parent, branch, affili-
which has expired due to the passage of      ate, or subsidiary of that employer in a
time may be revalidated by a director        managerial or executive capacity, or in
or a consular officer for a period of four   a position requiring specialized knowl-
months from the date of revalidation         edge. An alien transferred to the
upon a finding that the petitioner and       United     States    under    this    non-
beneficiary are free to marry and in-        immigrant classification is referred to
tend to marry each other within 90           as an intracompany transferee and the
days of the beneficiary’s entry into the     organization which seeks the classi-
United States. The approval of any pe-       fication of an alien as an intracompany
tition is automatically terminated           transferee is referred to as the peti-
when the petitioner dies or files a writ-    tioner. The Service has responsibility
ten withdrawal of the petition before        for determining whether the alien is el-
the beneficiary arrives in the United        igible for admission and whether the
States.                                      petitioner is a qualifying organization.
  (6) Adjustment of status from non-         These regulations set forth the stand-
immigrant     to    immigrant—(i)    Non-    ards applicable to these classifications.
immigrant visa issued prior to November      They also set forth procedures for ad-
10, 1986. If the beneficiary contracts a     mission of intracompany transferees
valid marriage with the petitioner           and appeal of adverse decisions. Cer-
within 90 days of his or her admission       tain petitioners seeking the classifica-
to the United States pursuant to a           tion of aliens as intracompany trans-
valid K–1 visa issued prior to November      ferees may file blanket petitions with
10, 1986, and the beneficiary and his or     the Service. Under the blanket petition
her minor children are otherwise ad-         process, the Service is responsible for
missible, the director shall record their    determining whether the petitioner
lawful admission for permanent resi-         and its parent, branches, affiliates, or
dence as of the date of their filing of an   subsidiaries specified are qualifying or-
application for adjustment of status to      ganizations. The Department of State
lawful permanent resident (Form I–           or, in certain cases, the Service is re-
485). Such residence shall be granted        sponsible for determining the classi-
under section 214(d) of the Act as in ef-    fication of the alien.
fect prior to November 10, 1986 and            (ii)   Definitions—(A)    Intracompany
shall not be subject to the conditions       transferee means an alien who, within
of section 216 of the Act.                   three years preceding the time of his or
  (ii) Nonimmigrant visa issued on or        her application for admission into the
after November 10, 1986. Upon contract-      United States, has been employed
ing a valid marriage to the petitioner       abroad continuously for one year by a
within 90 days of his or her admission       firm or corporation or other legal en-
as a nonimmigrant pursuant to a valid        tity or parent, branch, affiliate, or sub-
K visa issued on or after November 10,       sidiary thereof, and who seeks to enter
1986, the beneficiary and his or her         the United States temporarily in order
minor children may apply for adjust-         to render his or her services to a
ment of status to lawful permanent           branch of the same employer or a par-
resident under section 245 of the Act.       ent, affiliate, or subsidiary thereof in a
Upon approval of the application the         capacity that is managerial, executive,
director shall record their lawful ad-       or involves specialized knowledge. Pe-
mission for permanent residence in ac-       riods spent in the United States in law-
cordance with that section and subject       ful status for a branch of the same em-
to the conditions prescribed in section      ployer or a parent, affiliate, or subsidi-
216 of the Act.                              ary thereof and brief trips to the
  (l) Intracompany transferees—(1) Ad-       United States for business or pleasure
mission of intracompany transferees—(i)      shall not be interruptive of the one

                                         281
§ 214.2                                                 8 CFR Ch. I (1–1–98 Edition)

year of continuous employment abroad        ized knowledge as defined in paragraph
but such periods shall not be counted       (l)(1)(ii)(D) of this section and is a
toward fulfillment of that requirement.     member of the professions as defined in
  (B) Managerial capacity means an as-      section 101(a)(32) of the Immigration
signment within an organization in          and Nationality Act.
which the employee primarily:                  (F) New office means an organization
  (1) Manages the organization, or a de-    which has been doing business in the
partment, subdivision, function, or         United States through a parent,
component of the organization;              branch, affiliate, or subsidiary for less
  (2) Supervises and controls the work      than one year.
of other supervisory, professional, or         (G) Qualifying organization means a
managerial employees, or manages an         United States or foreign firm, corpora-
essential function within the organiza-     tion, or other legal entity which:
tion, or a department or subdivision of        (1) Meets exactly one of the qualify-
the organization;                           ing relationships specified in the defi-
  (3) Has the authority to hire and fire    nitions of a parent, branch, affiliate or
or recommend those as well as other         subsidiary      specified   in  paragraph
personnel actions (such as promotion        (l)(1)(ii) of this section;
and leave authorization) if another em-        (2) Is or will be doing business (en-
ployee or other employees are directly      gaging in international trade is not re-
supervised; if no other employee is di-     quired) as an employer in the United
rectly supervised, functions at a senior    States and in at least one other coun-
level within the organizational hier-       try directly or through a parent,
archy or with respect to the function       branch, affiliate, or subsidiary for the
managed; and                                duration of the alien’s stay in the
  (4) Exercises discretion over the day-    United States as an intracompany
to-day operations of the activity or        transferee; and
function for which the employee has            (3) Otherwise meets the requirements
authority. A first-line supervisor is not   of section 101(a)(15)(L) of the Act.
considered to be acting in a managerial        (H) Doing business means the regular,
capacity merely by virtue of the super-     systematic, and continuous provision
visor’s supervisory duties unless the       of goods and/or services by a qualifying
employees supervised are professional.      organization and does not include the
  (C) Executive capacity means an as-       mere presence of an agent or office of
signment within an organization in          the qualifying organization in the
which the employee primarily:               United States and abroad.
  (1) Directs the management of the or-        (I) Parent means a firm, corporation,
ganization or a major component or          or other legal entity which has subsidi-
function of the organization;               aries.
  (2) Establishes the goals and policies       (J) Branch means an operating divi-
of the organization, component, or          sion or office of the same organization
function;                                   housed in a different location.
  (3) Exercises wide latitude in discre-       (K) Subsidiary means a firm, corpora-
tionary decision-making; and                tion, or other legal entity of which a
  (4) Receives only general supervision     parent owns, directly or indirectly,
or direction from higher level execu-       more than half of the entity and con-
tives, the board of directors, or stock-    trols the entity; or owns, directly or
holders of the organization.                indirectly, half of the entity and con-
  (D) Specialized knowledge means spe-      trols the entity; or owns, directly or
cial knowledge possessed by an individ-     indirectly, 50 percent of a 50–50 joint
ual of the petitioning organization’s       venture and has equal control and veto
product, service, research, equipment,      power over the entity; or owns, di-
techniques, management, or other in-        rectly or indirectly, less than half of
terests and its application in inter-       the entity, but in fact controls the en-
national markets, or an advanced level      tity.
of knowledge or expertise in the orga-         (L) Affiliate means (1) One of two sub-
nization’s processes and procedures.        sidiaries both of which are owned and
  (E) Specialized knowledge professional    controlled by the same parent or indi-
means an individual who has special-        vidual, or

                                        282
Immigration and Naturalization Service, Justice                                   § 214.2

   (2) One of two legal entities owned        ates may file a blanket petition on
and controlled by the same group of in-       Form I–129 with the director having ju-
dividuals, each individual owning and         risdiction over the area where the peti-
controlling approximately the same            tioner is located. The blanket petition
share or proportion of each entity, or        shall be adjudicated and maintained at
   (3) In the case of a partnership that is   the appropriate Service Center. Ap-
organized in the United States to pro-        proved blanket petition files shall be
vide accounting services along with           maintained indefinitely by that Serv-
managerial and/or consulting services         ice Center. The petitioner shall be the
and that markets its accounting serv-         single representative for the qualifying
ices under an internationally recog-          organizations with which the Service
nized name under an agreement with a          will deal regarding the blanket peti-
worldwide coordinating organization           tion.
that is owned and controlled by the              (3) Evidence for individual petitions. An
member accounting firms, a partner-           individual petition filed on Form I–129
ship (or similar organization) that is        shall be accompanied by:
organized outside the United States to           (i) Evidence that the petitioner and
provide accounting services shall be          the organization which employed or
considered to be an affiliate of the          will employ the alien are qualifying or-
United States partnership if it markets       ganizations as defined in paragraph
its accounting services under the same        (l)(1)(ii)(G) of this section.
internationally recognized name under
                                                 (ii) Evidence that the alien will be
the agreement with the worldwide co-
                                              employed in an executive, managerial,
ordinating organization of which the
                                              or specialized knowledge capacity, in-
United States partnership is also a
                                              cluding a detailed description of the
member.
                                              services to be performed.
   (M) Director means a Service Center
director with delegated authority at 8           (iii) Evidence that the alien has at
CFR 103.1.                                    least one continuous year of full-time
   (2) Filing of petitions—(i) Except as      employment abroad with a qualifying
provided in paragraph (l)(2)(ii) and          organization within the three years
(l)(17) of this section, a petitioner seek-   preceding the filing of the petition.
ing to classify an alien as an                   (iv) Evidence that the alien’s prior
intracompany transferee shall file a pe-      year of employment abroad was in a
tition on Form I–129, Petition for Non-       position that was managerial, execu-
immigrant Worker, only at the Service         tive, or involved specialized knowledge
Center which has jurisdiction over the        and that the alien’s prior education,
area where the alien will be employed,        training, and employment qualifies
even in emergent situations. The peti-        him/her to perform the intended serv-
tioner shall advise the Service whether       ices in the United States; however, the
it has filed a petition for the same ben-     work in the United States need not be
eficiary with another office, and cer-        the same work which the alien per-
tify that it will not file a petition for     formed abroad.
the same beneficiary with another of-            (v) If the petition indicates that the
fice, unless the circumstances and con-       beneficiary is coming to the United
ditions in the initial petition have          States as a manager or executive to
changed. Failure to make a full disclo-       open or to be employed in a new office
sure of previous petitions filed may re-      in the United States, the petitioner
sult in a denial of the petition.             shall submit evidence that:
   (ii) A United States petitioner which         (A) Sufficient physical premises to
meets the requirements of paragraph           house the new office have been secured;
(l)(4) of this section and seeks continu-        (B) The beneficiary has been em-
ing approval of itself and its parent,        ployed for one continuous year in the
branches, specified subsidiaries and af-      three year period preceding the filing
filiates as qualifying organizations          of the petition in an executive or man-
and, later, classification under section      agerial capacity and that the proposed
101(a)(15)(L) of multiple numbers of          employment involved executive or
aliens employed by itself, its parent, or     managerial authority over the new op-
those branches, subsidiaries, or affili-      eration; and

                                          283
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

   (C) The intended United States oper-          (C) The petitioner has three or more
ation, within one year of the approval        domestic and foreign branches, subsidi-
of the petition, will support an execu-       aries, or affiliates; and
tive or managerial position as defined           (D) The petitioner and the other
in paragraphs (l)(1)(ii) (B) or (C) of this   qualifying organizations have obtained
section, supported by information re-         approval of petitions for at least ten
garding:                                      ‘‘L’’ managers, executives, or special-
   (1) The proposed nature of the office      ized knowledge professionals during
describing the scope of the entity, its       the previous 12 months; or have U.S.
organizational structure, and its finan-      subsidiaries or affiliates with combined
cial goals;                                   annual sales of at least $25 million; or
   (2) The size of the United States in-      have a United States work force of at
vestment and the financial ability of         least 1,000 employees.
the foreign entity to remunerate the             (ii) Managers, executives, and spe-
beneficiary and to commence doing             cialized knowledge professionals em-
business in the United States; and            ployed by firms, corporations, or other
   (3) The organizational structure of        entities which have been found to be
the foreign entity.                           qualifying organizations pursuant to
   (vi) If the petition indicates that the    an approved blanket petition may be
beneficiary is coming to the United           classified as intracompany transferees
States in a specialized knowledge ca-         and admitted to the United States as
pacity to open or to be employed in a         provided in paragraphs (l) (5) and (11) of
new office, the petitioner shall submit       this section.
evidence that:                                   (iii) When applying for a blanket pe-
   (A) Sufficient physical premises to        tition, the petitioner shall include in
house the new office have been secured;       the blanket petition all of its branches,
   (B) The business entity in the United      subsidiaries, and affiliates which plan
States is or will be a qualifying organi-     to seek to transfer aliens to the United
zation      as   defined    in   paragraph    States under the blanket petition. An
(l)(1)(ii)(G) of this section; and            individual petition may be filed by the
   (C) The petitioner has the financial       petitioner or organizations in lieu of
ability to remunerate the beneficiary         using the blanket petition procedure.
and to commence doing business in the         However, the petitioner and other
United States.                                qualifying organizations may not seek
   (vii) If the beneficiary is an owner or    L classification for the same alien
major stockholder of the company, the         under both procedures, unless a con-
petition must be accompanied by evi-          sular officer first denies eligibility.
dence that the beneficiary’s services         Whenever a petitioner which has blan-
are to be used for a temporary period         ket L approval files an individual peti-
and evidence that the beneficiary will        tion to seek L classification for a man-
be transferred to an assignment abroad        ager, executive, or specialized knowl-
upon the completion of the temporary          edge professional, the petitioner shall
services in the United States.                advise the Service that it has blanket
   (viii) Such other evidence as the di-      L approval and certify that the bene-
rector, in his or her discretion, may         ficiary has not and will not apply to a
deem necessary.                               consular officer for L classification
   (4) Blanket petitions—(i) A petitioner     under the approved blanket petition.
which meets the following require-               (iv) Evidence. A blanket petition filed
ments may file a blanket petition seek-       on Form I–129 shall be accompanied by:
ing continuing approval of itself and            (A) Evidence that the petitioner
some or all of its parent, branches, sub-     meets the requirements of paragraph
sidiaries, and affiliates as qualifying       (l)(4)(i) of this section.
organizations if:                                (B) Evidence that all entities for
   (A) The petitioner and each of those       which approval is sought are qualifying
entities are engaged in commercial            organizations as defined in subpara-
trade or services;                            graph (l)(1)(ii)(G) of this section.
   (B) The petitioner has an office in the       (C) Such other evidence as the direc-
United States that has been doing busi-       tor, in his or her discretion, deems nec-
ness for one year or more;                    essary in a particular case.

                                          284
Immigration and Naturalization Service, Justice                                 § 214.2

   (5) Certification and admission proce-     ager, executive, or specialized knowl-
dures for beneficiaries under blanket peti-   edge professional. The consular or
tion.                                         Service officer shall determine further
   (i) Jurisdiction. United States con-       whether the alien’s immediate prior
sular officers shall have authority to        year of continuous employment abroad
determine eligibility of individual           was with an organization named in the
beneficiaries outside the United States       petition and was in a position as man-
seeking L classification under blanket        ager, executive, or specialized knowl-
petitions, except for visa-exempt non-        edge professional.
immigrants. An application for a visa-          (E) Consular officers may grant ‘‘L’’
exempt nonimmigrant seeking L clas-           classification only in clearly approv-
sification under a blanket petition or        able applications. If the consular offi-
by an alien in the United States apply-       cer determines that the alien is eligible
ing for change of status to L classifica-     for L classification, the consular offi-
tion under a blanket petition shall be        cer may issue a nonimmigrant visa,
filed with the Service office at which        noting the visa classification ‘‘Blanket
the blanket petition was filed.               L–1’’ for the principal alien and ‘‘Blan-
   (ii) Procedures. (A) When one qualify-     ket L–2’’ for any accompanying or fol-
ing organization listed in an approved        lowing to join spouse and children. The
blanket petition wishes to transfer an        consular officer shall also endorse all
alien outside the United States to a          copies of the alien’s Form I–129S with
qualifying organization in the United         the blanket L–1 visa classification and
States and the alien requires a visa to       return the original and one copy to the
enter the United States, that organiza-       alien. When the alien is inspected for
tion shall complete Form I–129S, Cer-         entry into the United States, both cop-
tificate of Eligibility for Intracompany      ies of the Form I–129S shall be stamped
Transferee under a Blanket Petition, in       to show a validity period not to exceed
an original and three copies. The quali-      three years and the second copy col-
fying organization shall retain one           lected and sent to the appropriate Re-
copy for its records and send the origi-      gional Service Center for control pur-
nal and two copies to the alien. A copy       poses. Service officers who determine
of the approved Form I–797 must be at-        eligibility of aliens for L–1 classifica-
tached to the original and each copy of       tion under blanket petitions shall en-
Form I–129S.                                  dorse both copies of Form I–129S with
   (B) After receipt of Form I–797 and        the blanket L–1 classification and the
Form I–129S, a qualified employee who         validity period not to exceed three
is being transferred to the United            years and retain the second copy for
States may use these documents to             Service records.
apply for visa issuance with the con-           (F) If the consular officer determines
sular officer within six months of the        that the alien is ineligible for L classi-
date on Form I–129S.                          fication under a blanket petition, the
   (C) When the alien is a visa-exempt        consular officer’s decision shall be
nonimmigrant seeking L classification         final. The consular officer shall record
under a blanket petition, or when the         the reasons for the denial on Form I–
alien is in the United States and is          129S, retain one copy, return the origi-
seeking a change of status from an-           nal of I–129S to the Service office which
other nonimmigrant classification to L        approved the blanket petition, and pro-
classification under a blanket petition,      vide a copy to the alien. In such a case,
the petitioner shall submit Form I–           an individual petition may be filed for
129S, Certificate of Eligibility, and a       the alien with the director having ju-
copy of the approval notice, Form I–          risdiction over the area of intended
797, to the Service Center with which         employment; the petition shall state
the blanket petition was filed.               the reason the alien was denied L clas-
   (D) The consular or Service officer        sification and specify the consular of-
shall determine whether the position in       fice which made the determination and
which the alien will be employed in the       the date of the determination.
United States is with an organization           (G) An alien admitted under an ap-
named in the approved petition and            proved blanket petition may be reas-
whether the specific job is for a man-        signed to any organization listed in the

                                          285
§ 214.2                                                    8 CFR Ch. I (1–1–98 Edition)

approved petition without referral to             (2) A blanket petition approved under
the Service during his/her authorized          this paragraph shall be valid initially
stay if the alien will be performing vir-      for a period of three years and may be
tually the same job duties. If the alien       extended indefinitely thereafter if the
will be performing different job duties,       qualifying organizations have complied
the petitioner shall complete a new            with these regulations.
Certificate of Eligibility and send it for        (3) A blanket petition may be ap-
approval to the director who approved          proved in whole or in part and shall
the blanket petition.                          cover only qualifying organizations.
   (6) Copies of supporting documents. The        (C) Amendments. The petitioner shall
petitioner may submit a legible photo-         file an amended petition, with fee, at
copy of a document in support of the           the Service Center where the original
visa petition, in lieu of the original         petition was filed to reflect changes in
document. However, the original docu-          approved       relationships,    additional
ment shall be submitted if requested by        qualifying organizations under a blan-
the Service.                                   ket petition, change in capacity of em-
   (7) Approval of petition—(i) General.       ployment (i.e., from a specialized
The director shall notify the petitioner       knowledge position to a managerial po-
of the approval of an individual or a          sition), or any information which
blanket petition within 30 days after          would affect the beneficiary’s eligi-
the date a completed petition has been         bility under section 101(a)(15)(L) of the
filed. If additional information is re-        Act.
quired from the petitioner, the 30 day            (ii) Spouse and dependents. The spouse
processing period shall begin again            and unmarried minor children of the
upon receipt of the information. Only          beneficiary are entitled to L non-
the Director of a Service Center may           immigrant classification, subject to
approve individual and blanket L peti-         the same period of admission and lim-
tions. The original Form I–797 received        its as the beneficiary, if the spouse and
from the Service with respect to an ap-        unmarried minor children are accom-
proved individual or blanket petition          panying or following to join the bene-
may be duplicated by the petitioner for        ficiary in the United States. Neither
the beneficiary’s use as described in          the spouse nor any child may accept
paragraph (l)(13) of this section.             employment unless he or she has been
   (A) Individual petition—(1) Form I–797      granted employment authorization.
shall include the beneficiary’s name              (8) Denial of petition—(i) Notice of in-
and classification and the petition’s pe-      tent to deny. When an adverse decision
riod of validity.                              is proposed on the basis of evidence not
   (2) An individual petition approved         submitted by the petitioner, the direc-
under this paragraph shall be valid for        tor shall notify the petitioner of his or
the period of established need for the         her intent to deny the petition and the
beneficiary’s services, not to exceed          basis for the denial. The petitioner
three years, except where the bene-            may inspect and rebut the evidence and
ficiary is coming to the United States         will be granted a period of 30 days from
to open or to be employed in a new of-         the date of the notice in which to do
fice.                                          so. All relevant rebuttal material will
   (3) If the beneficiary is coming to the     be considered in making a final deci-
United States to open or be employed           sion.
in a new office, the petition may be ap-          (ii) Individual petition. If an individ-
proved for a period not to exceed one          ual is denied, the petitioner shall be
year, after which the petitioner shall         notified within 30 days after the date a
demonstrate as required by paragraph           completed petition has been filed of the
(l)(14)(ii) of this section that it is doing   denial, the reasons for the denial, and
business as defined in paragraph (l)           the right to appeal the denial.
(1)(ii)(H) of this section to extend the          (iii) Blanket petition. If a blanket pe-
validity of the petition.                      tition is denied in whole or in part, the
   (B) Blanket petition—(1) Form I–797         petitioner shall be notified within 30
shall identify the approved organiza-          days after the date a completed peti-
tions included in the petition and the         tion has been filed of the denial, the
petition’s period of validity.                 reasons for the denial, and the right to

                                           286
Immigration and Naturalization Service, Justice                                  § 214.2

appeal the denial. If the petition is de-     United States, unless the beneficiary
nied in part, the Service Center issuing      has obtained other work authorization
the denial shall forward to the peti-         from the Service. If a blanket petition
tioner, along with the denial, a Form I–      is revoked and the petitioner and bene-
797 listing those organizations which         ficiaries already in the United States
were found to quality. If the decision        are otherwise eligible for L classifica-
to deny is reversed on appeal, a new          tion, the director shall extend the blan-
Form I–797 shall be sent to the peti-         ket petition for a period necessary to
tioner to reflect the changes made as a       support the stay of those blanket L
result of the appeal.                         beneficiaries. The approval notice,
  (9) Revocation of approval of individual    Form I–171C, shall include only the
and blanket petitions—(i) General. The        names of qualifying organizations and
director may revoke a petition at any         covered beneficiaries. No new bene-
time, even after the expiration of the        ficiaries may be classified or admitted
petition.                                     under this limited extension.
  (ii) Automatic revocation. The ap-            (10) Appeal of denial or revocation of
proval of any individual or blanket pe-       individual or blanket petition—(i) A peti-
tition is automatically revoked if the        tion denied in whole or in part may be
petitioner withdraws the petition or          appealed under 8 CFR part 103. Since
the petitioner fails to request indefi-       the determination on the Certificate of
nite validity of a blanket petition.          Eligibility, Form I–129S, is part of the
  (iii) Revocation on notice. (A) The di-     petition process, a denial or revocation
rector shall send to the petitioner a no-     of approval of an I–129S is appealable in
tice of intent to revoke the petition in      the same manner as the petition.
relevant part if he/she finds that:             (ii) A petition that has been revoked
  (1) One or more entities are no longer      on notice in whole or in part may be
qualifying organizations;                     appealed under part 103 of this chapter.
  (2) The alien is no longer eligible         Automatic revocations may not be ap-
under section 101(a)(15)(L) of the Act;       pealed.
  (3) A qualifying organization(s) vio-         (11) Admission. A beneficiary may
lated     requirements       of     section   apply for admission to the United
101(a)(15)(L) and these regulations;          States only while the individual or
  (4) The statement of facts contained        blanket petition is valid. The bene-
in the petition was not true and cor-         ficiary of an individual petition shall
rect; or                                      not be admitted for a date past the va-
  (5) Approval of the petition involved       lidity period of the petition. The bene-
gross error; or                               ficiary of a blanket petition may be ad-
  (6) None of the qualifying organiza-        mitted for three years even though the
tions in a blanket petition have used         initial validity period of the blanket
the blanket petition procedure for            petition may expire before the end of
three consecutive years.                      the three-year period. If the blanket
  (B) The notice of intent to revoke          petition will expire while the alien is
shall contain a detailed statement of         in the United States, the burden is on
the grounds for the revocation and the        the petitioner to file for indefinite va-
time period allowed for the petitioner’s      lidity of the blanket petition or to file
rebuttal. Upon receipt of this notice,        an individual petition in the alien’s be-
the petitioner may submit evidence in         half to support the alien’s status in the
rebuttal within 30 days of the notice.        United States. The admission period
The director shall consider all relevant      for any alien under section 101(a)(15)(L)
evidence presented in deciding whether        shall not exceed three years unless an
to revoke the petition in whole or in         extension of stay is granted pursuant
part. If a blanket petition is revoked in     to paragraph (l)(15) of this section.
part, the remainder of the petition             (12) L–1 limitation on period of stay—(i)
shall remain approved, and a revised          Limits. An alien who has spent five
Form I–797 shall be sent to the peti-         years in the United States in a special-
tioner with the revocation notice.            ized knowledge capacity or seven years
  (iv) Status of beneficiaries. If an indi-   in the United States in a managerial or
vidual petition is revoked, the bene-         executive     capacity    under     section
ficiary shall be required to leave the        101(a)(15) (L) and/or (H) of the Act may

                                          287
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

not be readmitted to the United States       The copy of Form I–797 shall be re-
under section 101(a)(15) (L) or (H) of the   tained by the beneficiary and presented
Act unless the alien has resided and         during the validity of the petition (pro-
been physically present outside the          vided that the beneficiary is entering
United States, except for brief visits       or reentering the United States) for
for business or pleasure, for the imme-      entry and reentry to resume the same
diate prior year. Such visits do not in-     employment with the same petitioner
terrupt the one year abroad, but do not      (within the validity period of the peti-
count towards fulfillment of that re-        tion) and to apply for an extension of
quirement. In view of this restriction,      stay. A beneficiary who is required to
a new individual petition may not be         present a visa for admission and whose
approved for an alien who has spent the      visa will have expired before the date
maximum time period in the United            of his or her intended return may use
States under section 101(a)(15) (L) and/     an original Form I–797 to apply for a
or (H) of the Act, unless the alien has
                                             new or revalidated visa during the va-
resided and been physically present
                                             lidity period of the petition and to
outside the United States, except for
                                             apply for an extension of stay.
brief visits for business or pleasure, for
the immediate prior year. The peti-             (ii) Beneficiary of a blanket petition.
tioner shall provide information about       Each alien seeking L classification and
the alien’s employment, place of resi-       admission under a blanket petition
dence, and the dates and purpose of any      shall present a copy of Form I–797 and
trips to the United States for the pre-      a Form I–129S from the petitioner
vious year. A consular or Service offi-      which identifies the position and orga-
cer may not grant L classification           nization from which the employee is
under a blanket petition to an alien         transferring, the new organization and
who has spent five years in the United       position to which the employee is des-
States as a professional with special-       tined, a description of the employee’s
ized knowledge or seven years in the         actual duties for both the new and
United States as a manager or execu-         former positions, and the positions,
tive, unless the alien has met the re-       dates, and locations of previous L stays
quirements contained in this para-           in the United States. A current copy of
graph.                                       Form I–797 and Form I–129S should be
  (ii) Exceptions. The limitations of        retained by the beneficiary and used
paragraph (l)(12)(i) of this section shall   for leaving and reentering the United
not apply to aliens who do not reside        States to resume employment with a
continually in the United States and         qualifying organization during his/her
whose employment in the United               authorized period of stay, for applying
States is seasonal, intermittent, or         for a new or revalidated visa, and for
consists of an aggregate of six months       applying for readmission at a port of
or less per year. In addition, the limi-     entry. The alien may be readmitted
tations will not apply to aliens who re-     even though reassigned to a different
side abroad and regularly commute to         organization named on the Form I–797
the United States to engage in part-
                                             than the one shown on Form I–129S if
time employment. The petitioner and
                                             the job duties are virtually the same.
the alien must provide clear and con-
vincing proof that the alien qualifies          (14) Extension of visa petition validity—
for an exception. Clear and convincing       (i) Individual petition. The petitioner
proof shall consist of evidence such as      shall file a petition extension on Form
arrival and departure records, copies of     I–129 to extend an individual petition
tax returns, and records of employment       under section 101(a)(15)(L) of the Act.
abroad.                                      Except in those petitions involving new
  (13) Beneficiary’s use of Form I–797 and   offices, supporting documentation is
Form I–129S—(i) Beneficiary of an indi-      not required, unless requested by the
vidual petition. The beneficiary of an in-   director. A petition extension may be
dividual petition who does not require       filed only if the validity of the original
a nonimmigrant visa may present a            petition has not expired.
copy of Form I–797 at a port of entry to        (ii) New offices. A visa petition under
facilitate entry into the United States.     section 101(a)(15)(L) which involved the

                                         288
Immigration and Naturalization Service, Justice                                     § 214.2

opening of a new office may be ex-             new certificate of eligibility, accom-
tended by filing a new Form I–129, ac-         panied by a copy of the previous ap-
companied by the following:                    proved certificate of eligibility, shall
   (A) Evidence that the United States         be filed by the petitioner to request an
and foreign entities are still qualifying      extension of the alien’s stay. The peti-
organizations as defined in paragraph          tioner must also request a petition ex-
(l)(1)(ii)(G) of this section;                 tension. The dates of extension shall be
   (B) Evidence that the United States         the same for the petition and the bene-
entity has been doing business as de-          ficiary’s extension of stay. The bene-
fined in paragraph (l)(1)(ii)(H) of this       ficiary must be physically present in
section for the previous year;                 the United States at the time the ex-
   (C) A statement of the duties per-          tension of stay is filed. Even though
formed by the beneficiary for the pre-         the requests to extend the visa petition
vious year and the duties the bene-            and the alien’s stay are combined on
ficiary will perform under the extended        the petition, the director shall make a
petition;                                      separate determination on each. If the
   (D) A statement describing the staff-       alien is required to leave the United
ing of the new operation, including the        States for business or personal reasons
number of employees and types of posi-         while the extension requests are pend-
tions held accompanied by evidence of          ing, the petitioner may request the di-
wages paid to employees when the ben-          rector to cable notification of approval
eficiary will be employed in a manage-         of the petition extension to the con-
rial or executive capacity; and
                                               sular office abroad where the alien will
   (E) Evidence of the financial status
                                               apply for a visa.
of the United States operation.
                                                 (ii) An extension of stay may be au-
   (iii) Blanket petitions—(A) Extension
procedure. A blanket petition may only         thorized in increments of up to two
be extended indefinitely by filing a new       years for beneficiaries of individual
Form I–129 with a copy of the previous         and blanket petitions. The total period
approval notice and a report of admis-         of stay may not exceed five years for
sions during the preceding three years.        aliens employed in a specialized knowl-
The report of admissions shall include         edge capacity. The total period of stay
a list of the aliens admitted under the        for an alien employed in a managerial
blanket petition during the preceding          or executive capacity may not exceed
three years, including positions held          seven years. No further extensions may
during that period, the employing en-          be granted. When an alien was initially
tity, and the dates of initial admission       admitted to the United States in a spe-
and final departure of each alien. The         cialized knowledge capacity and is
petitioner shall state whether it still        later promoted to a managerial or ex-
meets the criteria for filing a blanket        ecutive position, he or she must have
petition and shall document any                been employed in the managerial or ex-
changes in approved relationships and          ecutive position for at least six months
additional qualifying organizations.           to be eligible for the total period of
   (B) Other conditions. If the petitioner     stay of seven years. The change to
in an approved blanket petition fails to       managerial or executive capacity must
request indefinite validity or if indefi-      have been approved by the Service in
nite validity is denied, the petitioner        an amended, new, or extended petition
and its other qualifying organizations         at the time that the change occurred.
shall seek L classification by filing in-        (16) Effect of approval of a permanent
dividual petitions until another three         labor certification or filing of a preference
years have expired; after which the pe-        petition on L–1 classification. The ap-
titioner may seek approval of a new            proval of a permanent labor certifi-
blanket petition.                              cation or the filing of a preference peti-
   (15) Extension of stay. (i) In individual   tion for an alien shall not be a basis for
petitions, the petitioner must apply for       denying an L petition, a request to ex-
the petition extension and the alien’s         tend an L petition, or the alien’s appli-
extension of stay concurrently on              cation for admission, change of status,
Form        I–129. When the alien is a ben-    or extension of stay. The alien may le-
eficiary under a blanket petition, a           gitimately come to the United States

                                           289
§ 214.2                                                     8 CFR Ch. I (1–1–98 Edition)

as a nonimmigrant under the L classi-           tioner or for the deficiency to be over-
fication and depart voluntarily at the          come. The fee to file the petition will
end of his or her authorized stay, and          be remitted at such time as the docu-
at the same time, lawfully seek to be-          mentary or other deficiency is over-
come a permanent resident of the                come. If the petition or certificate of
United States.                                  eligibility is clearly deniable, the im-
   (17) Filing of individual petitions and      migration officer will accept the peti-
certifications under blanket petitions for      tion (with fee) and the petitioner shall
citizens of Canada under the North Amer-        be notified of the denial, the reasons
ican Free Trade Agreement (NAFTA). (i)          for denial, and the right of appeal. If a
Individual petitions. Except as provided        formal denial order cannot be issued by
in paragraph (1)(2)(ii) of this section         the port of entry, the petition with a
(filing of blanket petitions), a United         recommendation for denial shall be for-
States or foreign employer seeking to           warded to the appropriate Service Cen-
classify a citizen of Canada as an              ter for final action. For the purposes of
intracompany transferee may file an             this provision, the appropriate Service
individual petition in duplicate on             Center will be the one within the same
Form I–129 in conjunction with an ap-           Service region as the location where
plication for admission of the citizen of       the application for admission is made.
Canada. Such filing may be made with              (v) Spouse and dependent minor chil-
an immigration officer at a Class A             dren accompanying or following to join.
port of entry located on the United             (A) The Canadian citizen spouse and
States-Canada land border or at a               Canadian citizen unmarried minor chil-
United States pre-clearance/pre-flight          dren of a Canadian citizen admitted
station in Canada. The petitioning em-          under this paragraph shall be entitled
ployer need not appear, but Form I–129          to the same nonimmigrant classifica-
must bear the authorized signature of           tion and same length of stay subject to
the petitioner.                                 the same limits as the principal alien.
   (ii) Certification of eligibility for        They shall not be required to present
intracompany transferree under the blan-        visas, and they shall be admitted under
ket petition. An immigration officer at         the classification symbol L–2.
a location identified in paragraph                (B) A non-Canadian citizen spouse or
(1)(17)(i) of this section may determine        non-Canadian citizen unmarried minor
eligibility of individual citizens of Can-      child shall be entitled to the same non-
ada seeking L classification under ap-          immigrant classification and the same
proved blanket petitions. At these lo-          length of stay subject to the same lim-
cations, such citizens of Canada shall          its as the principal, but shall be re-
present the original and two copies of          quired to present a visa upon applica-
Form I–129S, Intracompany Transferee            tion for admission as an L–2 unless oth-
Certificate of Eligibility, prepared by         erwise exempt under § 212.1 of this
the approved organization, as well as           chapter.
three copies of Form I–797, Notice of             (C) The spouse and dependent minor
Approval of Nonimmigrant Visa Peti-             children shall not accept employment
tion.                                           in the United States unless otherwise
   (iii) Nothing in this section shall pre-     authorized under the Act.
clude or discourage the advance filing            (18) Denial of intracompany transferee
of petitions and certificates of eligi-         status to citizens of Canada or Mexico in
bility in accordance with paragraph             the case of certain labor disputes. (i) If
(l)(2) of this section.                         the Secretary of Labor certifies to or
   (iv) Deficient or deniable petitions or      otherwise informs the Commissioner
certificates of eligibility. If a petition or   that a strike or other labor dispute in-
certificate of eligibility submitted con-       volving a work stoppage of workers is
currently with an application for ad-           in progress where the beneficiary is to
mission is lacking necessary support-           be employed, and the temporary entry
ing documentation or is otherwise defi-         of the beneficiary may affect adversely
cient, the inspecting immigration offi-         the settlement of such labor dispute or
cer shall return it to the applicant for        the employment of any person who is
admission in order to obtain the nec-           involved in such dispute, a petition to
essary documentation from the peti-             classify a citizen of Mexico or Canada

                                            290
Immigration and Naturalization Service, Justice                                § 214.2

as an L–1 intracompany transferee may        Eligibility for admission. Except as pro-
be denied. If a petition has already         vided in paragraph (m)(4) of this sec-
been approved, but the alien has not         tion, an alien seeking admission to the
yet entered the United States, or has        United        States      under    section
entered the United States but not yet        101(a)(15)(M)(i) of the Act (as an M–1
commenced employment, the approval           student) and the student’s accompany-
of the petition may be suspended, and        ing M–2 spouse and minor children, if
an application for admission on the          applicable, are not eligible for admis-
basis of the petition may be denied.         sion unless—
  (ii) If there is a strike or other labor      (A) The student presents a Certifi-
dispute involving a work stoppage of         cate of Eligibility for Nonimmigrant
workers in progress, but such strike or      (M–1) Student Status, Form I–20M–N,
other labor dispute is not certified         properly and completely filled out by
under paragraph (l)(18)(i) of this sec-      the student and by the designated offi-
tion, or the Service has not otherwise       cial of the school to which the student
been informed by the Secretary that          is destined and the documentary evi-
such a strike or labor dispute is in         dence of the student’s financial ability
progress, the Commissioner shall not         required by that form; and
deny a petition or suspend an approved          (B) It is established that the student
petition.                                    is destined to and intends to attend the
  (iii) If the alien has already com-        school specified in the student’s visa
mended employment in the United              unless the student is exempt from the
States under an approved petition and        requirement for presentation of a visa.
is participating in a strike or other
                                                (ii) Disposition of Form I–20M–N. When
labor dispute involving a work stop-
                                             a student is admitted to the United
page of workers, whether or not such
                                             States, the inspecting officer shall for-
strike or other labor dispute has been
                                             ward Form I–20M–N to the Service’s
certified by the Department of Labor,
                                             processing center. The processing cen-
the alien shall not be deemed to be fail-
                                             ter shall forward Form I–20N to the
ing to maintain his or her status solely
                                             school which issued the form to notify
on account of past, present, or future
participation in a strike or other labor     the school of the student’s admission.
dispute involving a work stoppage of            (2) Form I–20 ID copy. The first time
workers, but is subject to the following     an M–1 student comes into contact
terms and conditions.                        with the Service for any reason, the
  (A) The alien shall remain subject to      student must present to the Service a
all applicable provisions of the Immi-       Form I–20M–N properly and completely
gration and Nationality Act, and regu-       filled out by the student and by the
lations promulgated in the same man-         designated official of the school the
ner as all other L nonimmigrants;            student is attending or intends to at-
  (B) The status and authorized period       tend. The student will be issued a Form
of stay of such an alien is not modified     I–20 ID copy with his or her admission
or extended in any way by virtue of his      number. The student must have the
or her participation in a strike or other    Form I–20 ID copy with him or her at
labor dispute involving work stoppage        all times. If the student loses the Form
of workers; and                              I–20 ID copy, the student must request
  (C) Although participation by an L         a new Form I–20 ID copy on Form I–102
nonimmigrant alien in a strike or            from the Service office having jurisdic-
other labor dispute involving a work         tion over the school the student was
stoppage of workers will not constitute      last authorized to attend.
a ground for deportation, any alien             (3) Spouse and minor children following
who violates his or her status or who        to join student. The M–2 spouse and
remains in the United States after his       minor children following to join an M–
or her authorized period of stay has ex-     1 student are not eligible for admission
pired will be subject to deportation.        to the United States unless they
  (m) Students in established vocational     present, as evidence that the student is
or other recognized nonacademic institu-     or will, within sixty days, be enrolled
tions, other than in language training       in a full course of study or is engaged
programs—(1) Admission of student—(i)        in approved practical training, either—

                                         291
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

  (i) A properly endorsed page 4 of          other recognized nonacademic institu-
Form I–20M–N if there has been no sub-       tion, other than in a language training
stantive change in the information on        program, who is in status as an F–1
the student’s most recent Form I–20M         student under section 101(a)(15)(F)(i) of
since the form was initially issued; or      the Act in effect prior to June 1, 1982
  (ii) A new Form I–20M–N if there has       and the student’s F–2 spouse and chil-
been any substantive change in the in-       dren, if applicable, are—
formation on the student’s most recent          (i) Automatically converted to M–1
Form I–20M since the form was ini-           and M–2 status respectively; and
tially issued.                                  (ii) Limited to the authorized period
  (4) Temporary absence—(i) General. An      of stay shown on their Forms I–94 plus
M–1 student returning to the United          thirty days within which to depart
States from a temporary absence to at-       from the United States or to an au-
tend the school which the student was        thorized period of stay which expires
previously authorized to attend must         one year from August 1, 1983, whichever
present either—                              is less.
  (A) A properly endorsed page 4 of             (7) Period of stay of student already in
Form I–20M–N if there has been no sub-       M–1 status. A student in an established
stantive change in the information on        vocational or other recognized nonaca-
the student’s most recent Form I–20M         demic institution, other than in a lan-
since the form was initially issued; or      guage training program, who is already
  (B) A new Form I–20M–N if there has        in M–1 status and the student’s M–2
been any substantive change in the in-       spouse and children, if applicable, are
formation on the student’s most recent       limited to the authorized period of stay
Form I–20M since the form was ini-           shown on their Forms I–94 plus thirty
tially issued.                               days within which to depart from the
  (ii) Student who transferred between       United States or to an authorized pe-
schools. If an M–1 student has been au-      riod of stay which expires one year
thorized to transfer between schools         from August 1, 1983, whichever is less.
and is returning to the United States           (8) Issuance of new I–94. A non-
from a temporary absence in order to         immigrant whose status is affected by
attend the school to which transfer was      paragraph (m)(6) or (m)(7) of this sec-
authorized as indicated on the stu-          tion need not present Form I–94 to the
dent’s Form I–20 ID copy, the name of        Service. Either paragraph constitutes
the school to which the student is des-      official notification to a student whose
tined does not need to be specified in       status is affected by it of that status.
the student’s visa.                          The Service will issue a new Form I–94
  (5) Period of stay. An alien admitted      to an alien whose status is affected by
to the United States as an M–1 student       either paragraph when that alien
is to be admitted for the period of time     comes into contact with the Service.
necessary to complete the course of             (9) Full course of study. Successful
study indicated on Form I–20M plus           completion of the course of study must
thirty days within which to depart           lead to the attainment of a specific
from the United States or for one year,      educational or vocational objective. A
whichever is less. An alien granted a        ‘‘full course of study’’ as required by
change of nonimmigrant classification        section 101(a)(15)(M)(i) of the Act
to that of an M–1 student is to be given     means—
an extension of stay for the period of          (i) Study at a community college or
time necessary to complete the course        junior college, certified by a school of-
of study indicated on Form I–20M plus        ficial to consist of at least twelve se-
thirty days within which to depart           mester or quarter hours of instruction
from the United States or for one year,      per academic term in those institu-
whichever is less.                           tions using standard semester, tri-
  (6) Conversion to M–1 status of students   mester, or quarter-hour systems, where
in established vocational or other recog-    all students enrolled for a minimum of
nized nonacademic institutions, other        twelve semester or quarter hours are
than in language training programs, who      charged full-time tuition or considered
were F–1 students prior to June 1, 1982. A   full-time for other administrative pur-
student in an established vocational or      poses, or its equivalent (as determined

                                         292
Immigration and Naturalization Service, Justice                                  § 214.2

by the district director) except when         dent’s M–2 spouse or children are not
the student needs a lesser course load        eligible for an extension of stay unless
to complete the course of study during        the student is granted an extension of
the current term;                             stay. The student must submit the ap-
  (ii) Study at a postsecondary voca-         plication to the Service office having
tional or business school, other than in      jurisdiction over the school the student
a language training program except as         was last authorized to attend at least
provided in § 214.3(a)(2)(iv), which con-     fifteen days but not more than sixty
fers upon its graduates recognized asso-      days before the expiration of the stu-
ciate or other degrees or has estab-          dent’s currently authorized stay. The
lished that its credits have been and         application must also be accompanied
are accepted unconditionally by at            by the student’s Form I–20 ID copy and
least three institutions of higher learn-     the Forms I–94 of the student’s spouse
ing which are either: (1) A school (or        and children, if applicable.
school system) owned and operated as a           (iii) Period of stay. If an application
public educational institution by the         for extension of stay is granted, the
United States or a State or political         student and the student’s spouse and
subdivision thereof; or (2) a school ac-      children, if applicable, are to be given
credited by a nationally recognized ac-       an extension of stay for the period of
crediting body; and which has been cer-       time necessary to complete the course
tified by a designated school official to     of study plus thirty days within which
consist of at least twelve hours of in-       to depart from the United States or for
struction a week, or its equivalent as        one year, whichever is less. An M–1 stu-
determined by the district director;          dent who has been compelled by illness
  (iii) Study in a vocational or other        to interrupt or reduce a course of study
nonacademic curriculum, other than in         may be granted an extension of stay
a language training program except as         without being required to change non-
provided in § 214.3(a)(2)(iv), certified by   immigrant classification provided that
a designated school official to consist       it is established that the student will
of at least eighteen clock hours of at-       pursue a full course of study upon re-
tendance a week if the dominant part          covery from the illness.
of the course of study consists of class-
                                                 (11) School transfer—(i) Eligibility. An
room instruction, or at least twenty-
                                              M–1 student may not transfer to an-
two clock hours a week if the dominant
                                              other school after six months from the
part of the course of study consists of
                                              date the student is first admitted as, or
shop or laboratory work; or
                                              changes nonimmigrant classification
  (iv) Study in a vocational or other
                                              to that of, an M–1 student unless the
nonacademic high school curriculum,
                                              student is unable to remain at the
certified by a designated school official
                                              school to which the student was ini-
to consist of class attendance for not
                                              tially admitted due to circumstances
less than the minimum number of
                                              beyond the student’s control. An M–1
hours a week prescribed by the school
                                              student may be otherwise eligible to
for normal progress towards gradua-
                                              transfer to another school if the stu-
tion.
                                              dent—
  (10) Extension of stay—(i) Eligibility.
An M–1 student may be granted an ex-             (A) Is a bona fide nonimmigrant;
tension of stay if it is established that        (B) Has been pursuing a full course of
the student—                                  study at the school the student was
  (A) Is a bona fide nonimmigrant cur-        last authorized to attend;
rently maintaining student status; and           (C) Intends to pursue a full course of
  (B) Is able to, and in good faith in-       study at the school to which the stu-
tends to, continue to maintain that           dent intends to transfer; and
status for the period for which the ex-          (D) Is financially able to attend the
tension is granted.                           school to which the student intends to
  (ii) Application. An M–1 student must       transfer.
apply for an extension of stay on Form           (ii) Procedure. An M–1 student must
I–538. A student’s M–2 spouse and chil-       apply for permission to transfer be-
dren desiring an extension of stay must       tween schools on Form I–538 accom-
be included in the application. A stu-        panied by the student’s Form I–20 ID

                                          293
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

copy and the Forms I–94 of the stu-          verted to M–1 status under paragraph
dent’s spouse and children, if applica-      (m)(6) of this section who was author-
ble. The Form I–538 must also be ac-         ized off-campus employment under the
companied by Form I–20M–N properly           regulations previously in effect, how-
and completely filled out by the stu-        ever, may continue to work until the
dent and by the designated official of       date of expiration of the previously au-
the school which the student wishes to       thorized period of employment. The M–
attend. The student must submit the          2 spouse and children of an M–1 student
application for school transfer to the       may not accept employment.
Service office having jurisdiction over         (14) Practical training—(i) When prac-
the school the student was last author-      tical training may be authorized. Tem-
ized to attend. Sixty days after having      porary employment for practical train-
filed an application for school transfer,    ing may be authorized only after com-
an M–1 student may effect the transfer       pletion of the student’s course of
subject to approval or denial of the ap-     study.
plication. An M–1 student who trans-            (ii) Application. An M–1 student must
fers without complying with this regu-       apply for permission to accept employ-
lation or whose application is denied        ment for practical training on Form I–
after transfer pursuant to this regula-      765, with the fee required by 8 CFR
tion is considered to be out of status. If   103.7(b)(1), accompanied by his or her I–
the application is approved, the ap-         20 ID endorsed for practical training by
proval of the transfer will be retro-        the DSO. The application must be sub-
active to the date of filing the applica-    mitted prior to the expiration of the
tion, and the student will be granted        student’s authorized period of stay and
an extension of stay for the period of       not more than sixty days before nor
time necessary to complete the course        more than thirty days after completion
of study indicated on Form I–20M plus        of the course of study. The designated
thirty days within which to depart
                                             school official must certify on Form I–
from the United States or for one year,
                                             538 that—
whichever is less. The adjudicating of-
                                                (A) The proposed employment is rec-
ficer must endorse the name of the
school to which transfer is authorized       ommended for the purpose of practical
on the student’s Form I–20 ID copy.          training;
The officer must also endorse Form I–           (B) The proposed employment is re-
20N to indicate that a school transfer       lated to the student’s course of study;
has been authorized and forward it           and
with Form I–20M to the Service’s proc-          (C) Upon the designated school offi-
essing center for file updating. The         cial’s information and belief, employ-
processing center shall forward Form         ment comparable to the proposed em-
I–20N to the school to which the trans-      ployment is not available to the stu-
fer has been authorized to notify the        dent in the country of the student’s
school of the action taken.                  foreign residence.
   (iii) Student who has not been pursuing      (iii) Duration of practical training.
a full course of study. If an M–1 student    When the student is authorized to en-
who has not been pursuing a full course      gage in employment for practical
of study at the school the student was       training, he or she will be issued an
last authorized to attend desires to at-     employment authorization document.
tend a different school, the student         The M–1 student may not begin em-
must apply for reinstatement to stu-         ployment until he or she has been
dent status under paragraph (m)(16) of       issued an employment authorization
this section.                                document by the Service. One month of
   (12) Change in educational objective.     employment authorization will be
An M–1 student may not change edu-           granted for each four months of full-
cational objective.                          time study that the M–1 student has
   (13) Employment. Except as provided       completed. However, an M–1 student
in paragraph (m)(14) of this section, M–     may not engage in more than six
1 students may not accept employ-            months of practical training in the ag-
ment. A student already in M–1 status        gregate. The student will not be grant-
on August 1, 1983 or a student con-          ed employment authorization if he or

                                         294
Immigration and Naturalization Service, Justice                                § 214.2

she cannot complete the requested              (B) The student makes a written re-
practical training within six months.        quest for reinstatement accompanied
  (iv) Temporary absence of M–1 student      by a properly completed Form I–20M–N
granted practical training. An M–1 stu-      from the school the student is attend-
dent who has been granted permission         ing or intends to attend and the stu-
to accept employment for practical           dent’s Form I–20 ID copy;
training and who temporarily departs           (C) The student is currently pursu-
from the United States, may be re-           ing, or intending to pursue, a full
admitted for the remainder of the au-        course of study at the school which
thorized period indicated on the stu-        issued the Form I–20M–N;
dent’s Form I–20 ID copy. The student          (D) The student has not been em-
must be returning to the United States       ployed without authorization; and
to perform the authorized practical            (E) The student is not deportable on
training. A student may not be re-           any ground other than section 241(a)(1)
admitted to begin practical training         (B), (C), or (D) of the Act.
which was not authorized prior to the
                                               (ii) Decision. If the district director
student’s departure from the United
                                             reinstates the student, the district di-
States.
                                             rector shall endorse Form I–20N and
  (v) Effect of strike or other labor dis-
                                             the student’s Form I–20 ID copy to in-
pute. Authorization for all employment
                                             dicate that the student has been rein-
for practical training is automatically
                                             stated, return the Form I–20 ID copy to
suspended upon certification by the
                                             the student, and forward Form I–20N
Secretary of Labor or the Secretary’s
                                             with Form I–20M to the Service’s proc-
designee to the Commissioner of Immi-
gration and Naturalization or the Com-       essing center for file updating. The
missioner’s designee that a strike or        processing center shall forward Form
other labor dispute involving a work         I–20N to the school which the student
stoppage of workers is in progress in        is attending or intends to attend to no-
the occupation at the place of employ-       tify the school of the student’s rein-
ment. As used in this paragraph, ‘‘place     statement. If the district director does
of employment’’ means wherever the           not reinstate the student, the student
employer or joint employer does busi-        may not appeal that decision.
ness.                                          (17) School code suffix on Form I–20M–
  (15) Decision on application for exten-    N. Each school system, other than a
sion, permission to transfer to another      secondary school system approved
school, or permission to accept employ-      prior to August 1, 1983 for attendance
ment for practical training. The Service     by M–1 students must assign perma-
shall notify the applicant of the deci-      nent consecutive numbers to all
sion and, if the application is denied, of   schools within its system. The number
the reason(s) for the denial. The appli-     of the school within the system which
cant may not appeal the decision.            an M–1 student is attending or intends
  (16) Reinstatement to student status—(i)   to attend must be added as a three-
General. A district director may con-        digit suffix following a decimal point
sider reinstating to M–1 student status      after the school file number on Form I–
an alien who was admitted to the             20M–N (e.g. .001). If an M–1 student is
United States as, or whose status was        attending or intends to attend a sec-
changed to that of, an M–1 student and       ondary school in a school system or a
who has overstayed the authorized pe-        school which is not part of a school
riod of stay or who has otherwise vio-       system, a suffix consisting of a decimal
lated the conditions of his or her status    point followed by three zeros must be
only if—                                     added after the school file number on
  (A) The student establishes to the         Form I–20M–N. The Service will assign
satisfaction of the district director        school code suffixes to those schools it
that the violation of status resulted        approves beginning August 1, 1983. No
from circumstances beyond the stu-           Form I–20M–N will be accepted after
dent’s control or that failure to receive    August 1, 1983 without the appropriate
reinstatement to lawful M–1 status           three-digit suffix.
would result in extreme hardship to            (n) Certain parents and children of sec-
the student;                                 tion 101(a)(27)(I) special immigrants—(1)

                                         295
§ 214.2                                                     8 CFR Ch. I (1–1–98 Edition)

Parent of special immigrant. Upon appli-        101(a)(15)(O)(i) of the Act. The spouse or
cation, a parent of a child accorded            child of an alien described in section
special immigrant status under section          101(a)(15)(O)(i) or (ii) of the Act who is
101(a)(27)(I)(i) of the Act may be grant-       accompanying or following to join the
ed status under section 101(a)(15)(N)(i)        alien is entitled to classification pursu-
of the Act as long as the permanent             ant to section 101(a)(15)(O)(iii) of the
resident child through whom eligibility         Act. These classifications are called
is derived remains a child as defined in        the O–1, O–2, and O–3 categories, re-
section 101(b)(1) of the Act.                   spectively. The petitioner must file a
  (2) Child of section 101(a)(27)(I) special    petition with the Service for a deter-
immigrants and section 101(a)(15)(N)(i)         mination of the alien’s eligibility for
nonimmigrants. Children of parents
                                                O–1 or O–2 classification before the
granted nonimmigrant status under
                                                alien may apply for a visa or seek ad-
section 101(a)(15)(N)(i) of the Act, or of
parents who have been granted special           mission to the United States. This
immigrant        status     under     section   paragraph sets forth the standards and
101(a)(27)(I) (ii), (iii) or (iv) of the Act    procedures applicable to these classi-
may be granted status under section             fications.
101(a)(15)(N)(ii) of the Act for such time        (ii) Description of classifications. (A)
as each remains a child as defined in           An O–1 classification applies to:
section 101(b)(1) of the Act.                     (1) An individual alien who has ex-
  (3) Admission and extension of stay. A        traordinary ability in the sciences,
nonimmigrant granted (N) status shall           arts, education, business, or athletics
be admitted for not to exceed three             which has been demonstrated by sus-
years with extensions in increments up          tained national or international ac-
to but not to exceed three years. Sta-          claim and who is coming temporarily
tus as an (N) nonimmigrant shall ter-           to the United States to continue work
minate on the date the child described          in the area of extraordinary ability; or
in paragraph (n)(1) or (n)(2) of this sec-        (2) An alien who has a demonstrated
tion no longer qualifies as a child as          record of extraordinary achievement in
defined in section 101(b)(1) of the Act.        motion picture and/or television pro-
  (4) Employment. A nonimmigrant ad-
                                                ductions and who is coming tempo-
mitted in or granted (N) status is au-
                                                rarily to the United States to continue
thorized employment incident to (N)
                                                work in the area of extraordinary
status without restrictions as to loca-
tion or type of employment.                     achievement.
  (o) Aliens of extraordinary ability or          (B) An O–2 classification applies to
achievement—(1)          Classifications—(i)    an accompanying alien who is coming
General. Under section 101(a)(15)(O) of         temporarily to the United States solely
the Act, a qualified alien may be au-           to assist in the artistic or athletic per-
thorized to come to the United States           formance by an O–1. The O–2 alien
to perform services relating to an              must:
event or events if petitioned for by an           (1) Be an integral part of the actual
employer. Under this nonimmigrant               performances or events and posses crit-
category, the alien may be classified           ical skills and experience with the O–1
under section 101(a)(15)(O)(i) of the Act       alien that are not of a general nature
as an alien who has extraordinary abil-         and which are not possessed by others;
ity in the sciences, arts, education,           or
business, or athletics, or who has a              (2) In the case of a motion picture or
demonstrated record of extraordinary            television production, have skills and
achievement in the motion picture or            experience with the O–1 alien which are
television industry. Under section              not of a general nature and which are
101(a)(15)(O)(ii) of the Act, an alien
                                                critical, either based on a pre-existing
having a residence in a foreign country
                                                and longstanding working relationship
which he or she has no intention of
abandoning may be classified as an ac-          or, if in connection with a specific pro-
companying alien who is coming to as-           duction only, because significant pro-
sist in the artistic or athletic perform-       duction (including pre- and post-pro-
ance of an alien admitted under section         duction) will take place both inside and

                                            296
Immigration and Naturalization Service, Justice                                  § 214.2

outside the United States and the con-          (D) A written advisory opinion(s)
tinuing participation of the alien is es-     from the appropriate consulting entity
sential to the successful completion of       or entities.
the production.                                 (iii) Form of documentation. The evi-
   (2) Filing of petitions—(i) General. Ex-   dence submitted with an O petition
cept as provided for in paragraph             shall conform to the following:
(o)(2)(iv)(A) of this section, a petitioner     (A) Affidavits, contracts, awards, and
seeking to classify an alien as an O–1        similar documentation must reflect
or O–2 nonimmigrant shall file a peti-        the nature of the alien’s achievement
tion on Form I–129, Petition for a Non-       and be executed by an officer or respon-
immigrant Worker, with the Service            sible person employed by the institu-
Center which has jurisdiction in the          tion, firm, establishment, or organiza-
area where the alien will work. The pe-       tion where the work was performed.
tition may not be filed more than 6             (B) Affidavits written by present or
months before the actual need for the         former employers or recognized experts
alien’s services. An O–1 or O–2 petition      certifying to the recognition and ex-
shall be adjudicated at the appropriate       traordinary ability, or in the case of a
Service Center, even in emergency sit-        motion picture or television produc-
uations. Only one beneficiary may be          tion, the extraordinary achievement of
included on an O–1 petition. O–2 aliens       the alien, shall specifically describe
must be filed for on a separate petition      the alien’s recognition and ability or
from the O–1 alien. An O–1 or O–2 peti-       achievement in factual terms and set
tion may only be filed by a United            forth the expertise of the affiant and
States employer, a United States              the manner in which the affiant ac-
agent, or a foreign employer through a        quired such information.
United States agent. For purposes of            (C) A legible photocopy of a docu-
paragraph (o) of this section, a foreign      ment in support of the petition may be
employer is any employer who is not           submitted in lieu of the original. How-
amenable to service of process in the         ever, the original document shall be
United States. A foreign employer may         submitted if requested by the Director.
not directly petition for an O non-             (iv) Other filing situations—(A) Services
immigrant alien but instead must use          in more than one location. A petition
the services of a United States agent to      which requires the alien to work in
file a petition for an O nonimmigrant         more than one location must include
                                              an itinerary with the dates and loca-
alien. A United States agent petition-
                                              tions of work and must be filed with
ing on behalf of a foreign employer
                                              the Service Center which has jurisdic-
must be authorized to file the petition,
                                              tion in the area where the petitioner is
and to accept services of process in the
                                              located. The address which the peti-
United States in proceedings under sec-
                                              tioner specifies as its location on the
tion 274A of the Act, on behalf of the
                                              petition shall be where the petitioner
foreign employer. An O alien may not
                                              is located for purposes of this para-
petition for himself or herself.
                                              graph.
   (ii) Evidence required to accompany a        (B) Services for more than one em-
petition. Petitions for O aliens shall be     ployer. If the beneficiary will work con-
accompanied by the following:                 currently for more than one employer
   (A) The evidence specified in the par-     within the same time period, each em-
ticular section for the classification;       ployer must file a separate petition
   (B) Copies of any written contracts        with the Service Center that has juris-
between the petitioner and the alien          diction over the area where the alien
beneficiary or, if there is no written        will perform services, unless an estab-
contract, a summary of the terms of           lished agent files the petition.
the oral agreement under which the              (C) Change of employer. If an O–1 or O–
alien will be employed;                       2 alien in the United States seeks to
   (C) An explanation of the nature of        change employers, the new employer
the events or activities, the beginning       must file a petition and a request to
and ending dates for the events or ac-        extend the alien’s stay with the Serv-
tivities, and a copy of any itinerary for     ice Center having jurisdiction over the
the events or activities; and                 new place of employment. An O–2 alien

                                          297
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

may change employers only in conjunc-        where the services will be performed. A
tion with a change of employers by the       contract between the employers and
principal O–1 alien. If the O–1 or O–2 pe-   the beneficiary is required. The burden
tition was filed by an agent, an amend-      is on the agent to explain the terms
ed petition must be filed with evidence      and conditions of the employment and
relating to the new employer and a re-       to provide any required documenta-
quest for an extension of stay.              tion.
  (D) Amended petition. The petitioner          (3) A foreign employer who, through
shall file an amended petition on Form       a United States agent, files a petition
I–129, with fee, with the Service Center     for an O nonimmigrant alien is respon-
where the original petition was filed to     sible for complying with all of the em-
reflect any material changes in the          ployer sanctions provisions of section
terms and conditions of employment or        274A of the Act and 8 CFR part 274a.
the beneficiary’s eligibility as specified      (F) Multiple beneficiaries. More than
in the original approved petition. In        one O–2 accompanying alien may be in-
the case of a petition filed for an artist   cluded on a petition if they are assist-
or entertainer, a petitioner may add         ing the same O–1 alien for the same
additional performances or engage-           events or performances, during the
ments during the validity period of the      same period of time, and in the same
petition without filing an amended pe-       location.
tition, provided the additional per-            (G) Traded professional O–1 athletes. In
formances or engagements require an          the case of a professional O–1 athlete
alien of O–1 caliber.                        who is traded from one organization to
  (E) Agents as petitioners. A United        another organization, employment au-
States agent may file a petition in          thorization for the player will auto-
cases involving workers who are tradi-       matically continue for a period of 30
tionally self-employed or workers who        days after acquisition by the new orga-
use agents to arrange short-term em-         nization, within which time the new
ployment on their behalf with numer-         organization is expected to file a new
ous employers, and in cases where a          Form I–129. If a new Form I–129 is not
foreign employer authorizes the agent        filed within 30 days, employment au-
to act in its behalf. A United States        thorization will cease. If a new Form I–
agent may be: The actual employer of         129 is filed within 30 days, the profes-
the beneficiary, the representative of       sional athlete shall be deemed to be in
both the employer and the beneficiary;       valid O–1 status, and employment shall
or, a person or entity authorized by the     continue to be authorized, until the pe-
employer to act for, or in place of, the     tition is adjudicated. If the new peti-
employer as its agent. A petition filed      tion is denied, employment authoriza-
by an agent is subject to the following      tion will cease.
conditions:                                     (3) Petition for alien of extraordinary
  (1) An agent performing the function       ability or achievement (O–1)—(i) General.
of an employer must provide the con-         Extraordinary ability in the sciences,
tractual agreement between the agent         arts, education, business, or athletics,
and the beneficiary which specifies the      or extraordinary achievement in the
wage offered and the other terms and         case of an alien in the motion picture
conditions of employment of the bene-        or television industry, must be estab-
ficiary.                                     lished for an individual alien. An O–1
  (2) A person or company in business        petition must be accompanied by evi-
as an agent may file the petition in-        dence that the work which the alien is
volving multiple employers as the rep-       coming to the United States to con-
resentative of both the employers and        tinue is in the area of extraordinary
the beneficiary, if the supporting docu-     ability, and that the alien meets the
mentation      includes     a    complete    criteria in paragraph (o)(3)(iii) or (iv)
itinerary of the event or events. The        of this section.
itinerary must specify the dates of             (ii) Definitions. As used in this para-
each service or engagement, the names        graph, the term:
and addresses of the actual employers,          Arts includes any field of creative ac-
and the names and addresses of the es-       tivity or endeavor such as, but not lim-
tablishments, venues, or locations           ited to, fine arts, visual arts, culinary

                                         298
Immigration and Naturalization Service, Justice                                    § 214.2

arts, and performing arts. Aliens en-          appropriate peer group for purposes of
gaged in the field of arts include not         consultation.
only the principal creators and per-             (iii) Evidentiary criteria for an O–1
formers but other essential persons            alien of extraordinary ability in the fields
such as, but not limited to, directors,        of science, education, business, or athlet-
set designers, lighting designers, sound       ics. An alien of extraordinary ability in
designers,               choreographers,       the fields of science, education, busi-
choreologists, conductors, orchestra-          ness, or athletics must demonstrate
tors, coaches, arrangers, musical super-       sustained national or international ac-
visors, costume designers, makeup art-         claim and recognition for achieve-
ists, flight masters, stage technicians,       ments in the field of expertise by pro-
and animal trainers.                           viding evidence of:
  Event means an activity such as, but           (A) Receipt of a major, internation-
not limited to, a scientific project, con-     ally recognized award, such as the
ference, convention, lecture series,           Nobel Prize; or
tour, exhibit, business project, aca-            (B) At least three of the following
demic year, or engagement. Such ac-            forms of documentation:
tivity may include short vacations,              (1) Documentation of the alien’s re-
promotional appearances, and stop-             ceipt of nationally or internationally
overs which are incidental and/or relat-       recognized prizes or awards for excel-
ed to the event. A group of related ac-        lence in the field of endeavor;
tivities may also be considered to be an         (2) Documentation of the alien’s
event. In the case of an O–1 athlete, the      membership in associations in the field
event could be the alien’s contract.           for which classification is sought,
  Extraordinary ability in the field of arts   which require outstanding achieve-
means distinction. Distinction means a         ments of their members, as judged by
high level of achievement in the field         recognized national or international
of arts evidenced by a degree of skill         experts in their disciplines or fields;
and recognition substantially above              (3) Published material in professional
that ordinarily encountered to the ex-         or major trade publications or major
tent that a person described as promi-         media about the alien, relating to the
nent is renowned, leading, or well-            alien’s work in the field for which clas-
known in the field of arts.                    sification is sought, which shall in-
  Extraordinary ability in the field of        clude the title, date, and author of
science, education, business, or athletics     such published material, and any nec-
means a level of expertise indicating          essary translation;
that the person is one of the small per-         (4) Evidence of the alien’s participa-
centage who have arisen to the very            tion on a panel, or individually, as a
top of the field of endeavor.                  judge of the work of others in the same
  Extraordinary achievement with re-           or in an allied field of specialization to
spect to motion picture and television         that for which classification is sought;
productions, as commonly defined in              (5) Evidence of the alien’s original
the industry, means a very high level          scientific, scholarly, or business-relat-
of accomplishment in the motion pic-           ed contributions of major significance
ture or television industry evidenced          in the field;
by a degree of skill and recognition sig-        (6) Evidence of the alien’s authorship
nificantly above that ordinarily en-           of scholarly articles in the field, in pro-
countered to the extent that the person        fessional journals, or other major
is recognized as outstanding, notable,         media;
or leading in the motion picture or tel-         (7) Evidence that the alien has been
evision field.                                 employed in a critical or essential ca-
  Peer group means a group or organi-          pacity for organizations and establish-
zation which is comprised of practi-           ments that have a distinguished rep-
tioners of the alien’s occupation. If          utation;
there is a collective bargaining rep-            (8) Evidence that the alien has either
resentative of an employer’s employees         commanded a high salary or will com-
in the occupational classification for         mand a high salary or other remunera-
which the alien is being sought, such a        tion for services, evidenced by con-
representative may be considered the           tracts or other reliable evidence.

                                           299
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

  (C) If the criteria in paragraph            the alien is engaged. Such testimonials
(o)(3)(iii) of this section do not readily    must be in a form which clearly indi-
apply to the beneficiary’s occupation,        cates the author’s authority, expertise,
the petitioner may submit comparable          and knowledge of the alien’s achieve-
evidence in order to establish the bene-      ments; or
ficiary’s eligibility.                          (6) Evidence that the alien has either
  (iv) Evidentiary criteria for an O–1        commanded a high salary or will com-
alien of extraordinary ability in the arts.   mand a high salary or other substan-
To qualify as an alien of extraordinary       tial remuneration for services in rela-
ability in the field of arts, the alien       tion to others in the field, as evidenced
must be recognized as being prominent         by contracts or other reliable evidence;
in his or her field of endeavor as dem-       or
onstrated by the following:                     (C) If the criteria in paragraph
  (A) Evidence that the alien has been        (o)(3)(iv) of this section do not readily
nominated for, or has been the recipi-        apply to the beneficiary’s occupation,
ent of, significant national or inter-        the petitioner may submit comparable
national awards or prizes in the par-         evidence in order to establish the bene-
ticular field such as an Academy              ficiary’s eligibility.
Award, an Emmy, a Grammy, or a Di-              (v) Evidentiary criteria for an alien of
rector’s Guild Award; or                      extraordinary achievement in the motion
  (B) At least three of the following
                                              picture or television industry. To qualify
forms of documentation:
                                              as an alien of extraordinary achieve-
  (1) Evidence that the alien has per-
                                              ment in the motion picture or tele-
formed, and will perform, services as a
                                              vision industry, the alien must be rec-
lead or starring participant in produc-
                                              ognized as having a demonstrated
tions or events which have a distin-
                                              record of extraordinary achievement as
guished reputation as evidenced by
                                              evidenced by the following:
critical reviews, advertisements, pub-
licity releases, publications contracts,        (A) Evidence that the alien has been
or endorsements;                              nominated for, or has been the recipi-
  (2) Evidence that the alien has             ent of, significant national or inter-
achieved national or international rec-       national awards or prizes in the par-
ognition for achievements evidenced by        ticular field such as an Academy
critical reviews or other published ma-       Award, an Emmy, a Grammy, or a Di-
terials by or about the individual in         rector’s Guild Award; or
major newspapers, trade journals, mag-          (B) At least three of the following
azines, or other publications;                forms of documentation:
  (3) Evidence that the alien has per-          (1) Evidence that the alien has per-
formed, and will perform, in a lead,          formed, and will perform, services as a
starring, or critical role for organiza-      lead or starring participant in produc-
tions and establishments that have a          tions or events which have a distin-
distinguished reputation evidenced by         guished reputation as evidenced by
articles in newspapers, trade journals,       critical reviews, advertisements, pub-
publications, or testimonials;                licity releases, publications contracts,
  (4) Evidence that the alien has a           or endorsements;
record of major commercial or criti-            (2) Evidence that the alien has
cally acclaimed successes as evidenced        achieved national or international rec-
by such indicators as title, rating,          ognition for achievements evidenced by
standing in the field, box office re-         critical reviews or other published ma-
ceipts, motion pictures or television         terials by or about the individual in
ratings,     and     other   occupational     major newspapers, trade journals, mag-
achievements reported in trade jour-          azines, or other publications;
nals, major newspapers, or other publi-         (3) Evidence that the alien has per-
cations;                                      formed, and will perform, in a lead,
  (5) Evidence that the alien has re-         starring, or critical role for organiza-
ceived significant recognition for            tions and establishments that have a
achievements from organizations, crit-        distinguished reputation evidenced by
ics, government agencies, or other rec-       articles in newspapers, trade journals,
ognized experts in the field in which         publications, or testimonials;

                                          300
Immigration and Naturalization Service, Justice                                § 214.2

  (4) Evidence that the alien has a          1 alien which are not of a general na-
record of major commercial or criti-         ture and which are critical based on a
cally acclaimed successes as evidenced       pre-existing longstanding working re-
by such indicators as title, rating,         lationship or, with respect to the spe-
standing in the field, box office re-        cific production, because significant
ceipts, motion picture or television         production (including pre- and post-
ratings,    and    other     occupational    production work) will take place both
achievements reported in trade jour-         inside and outside the United States
nals, major newspapers, or other publi-      and the continuing participation of the
cations;                                     alien is essential to the successful com-
  (5) Evidence that the alien has re-        pletion of the production.
ceived significant recognition for
                                                (C) The evidence shall establish the
achievements from organizations, crit-
ics, government agencies, or other rec-      current essentiality, critical skills, and
ognized experts in the field in which        experience of the O–2 alien with the O–
the alien is engaged. Such testimonials      1 alien and that the alien has substan-
must be in a form which clearly indi-        tial experience performing the critical
cates the author’s authority, expertise,     skills and essential support services for
and knowledge of the alien’s achieve-        the O–1 alien. In the case of a specific
ments; or                                    motion picture or television produc-
  (6) Evidence that the alien has either     tion, the evidence shall establish that
commanded a high salary or will com-         significant production has taken place
mand a high salary or other substan-         outside the United States, and will
tial remuneration for services in rela-      take place inside the United States,
tion to other in the field, as evidenced     and that the continuing participation
by contracts or other reliable evidence.     of the alien is essential to the success-
  (4) Petition for an O–2 accompanying       ful completion of the production.
alien—(i) General. An O–2 accompany-            (5) Consultation—(i) General. (A) Con-
ing alien provides essential support to      sultation with an appropriate U.S. peer
an O–1 artist or athlete. Such aliens        group (which could include a person or
may not accompany O–1 aliens in the          persons with expertise in the field),
fields of science, business, or edu-         labor and/or management organization
cation. Although the O–2 alien must
                                             regarding the nature of the work to be
obtain his or her own classification,
                                             done and the alien’s qualifications is
this classification does not entitle him
                                             mandatory before a petition for an O–1
or her to work separate and apart from
the O–1 alien to whom he or she pro-         or O–2 classification can be approved.
vides support. An O–2 alien must be pe-         (B) Except as provided in paragraph
titioned for in conjunction with the         (o)(5)(i)(E) of this section, evidence of
services of the O–1 alien.                   consultation shall be in the form of a
  (ii) Evidentiary criteria for qualifying   written advisory opinion from a peer
as an O–2 accompanying alien—(A) Alien       group (which could include a person or
accompanying an O–1 artist or athlete of     persons with expertise in the field),
extraordinary ability. To qualify as an      labor and/or management organization
O–2 accompanying alien, the alien            with expertise in the specific field in-
must be coming to the United States to       volved.
assist in the performance of the O–1            (C) Except as provided in paragraph
alien, be an integral part of the actual     (o)(5)(i)(E) of this section, the peti-
performance, and have critical skills        tioner shall obtain a written advisory
and experience with the O–1 alien            opinion from a peer group (which could
which are not of a general nature and        include a person or persons with exper-
which are not possessed by a U.S.            tise in the field), labor, and/or manage-
worker.                                      ment organization with expertise in
  (B) Alien accompanying an O–1 alien of     the specific field involved. The advi-
extraordinary achievement. To qualify as
                                             sory opinion shall be submitted along
an O–2 alien accompanying and O–1
                                             with the petition when the petition is
alien involved in a motion picture or
television production, the alien must        filed. If the advisory opinion is not fa-
have skills and experience with the O–       vorable to the petitioner, the advisory

                                         301
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

opinion must set forth a specific state-      the petition in no more than 14 days.
ment of facts which supports the con-         The Director may shorten this time in
clusion reached in the opinion. Advi-         his or her discretion for emergency rea-
sory opinions must be submitted in            sons, if no unreasonable burden would
writing and must be signed by an au-          be imposed on any participant in the
thorized official of the group or organi-     process. If the labor organization does
zation.                                       not respond within 15 days, the Direc-
  (D) Except as provided in paragraph         tor will render a decision on the record
(o)(5)(i)(E) and (G) of this section, writ-   without the advisory opinion.
ten evidence of consultation shall be           (G) In those cases where it is estab-
included in the record in every ap-           lished by the petitioner that an appro-
proved O petition. Consultations are          priate peer group, including a labor or-
advisory and are not binding on the           ganization, does not exist, the Service
Service.                                      shall render a decision on the evidence
  (E) In a case where the alien will be       of record.
employed in the field of arts, enter-           (ii) Consultation requirements for an O–
tainment, or athletics, and the Service       1 alien for extraordinary ability—(A) Con-
has determined that a petition merits         tent. Consultation with a peer group in
expeditious handling, the Service shall       the area of the alien’s ability (which
contact the appropriate labor and/or          may include a labor organization), or a
management organization and request           person or persons with expertise in the
an advisory opinion if one is not sub-        area of the alien’s ability, is required
mitted by the petitioner. The labor           in an O–1 petition for an alien of ex-
and/or management organization shall          traordinary ability. If the advisory
have 24 hours to respond to the Serv-         opinion is not favorable to the peti-
ice’s request. The Service shall adju-        tioner, the advisory opinion must set
dicate the petition after receipt of the      forth a specific statement of facts
response from the consulting organiza-        which supports the conclusion reached
tion. The labor and/or management or-         in the opinion. If the advisory opinion
ganization shall then furnish the Serv-       is favorable to the petitioner, it should
ice with a written advisory opinion           describe     the   alien’s   ability    and
within 5 days of the initiating request.      achievements in the field of endeavor,
If the labor and/or management organi-        describe the nature of the duties to be
zation fails to respond within 24 hours,      performed, and state whether the posi-
the Service shall render a decision on        tion requires the services of an alien of
the petition without the advisory opin-       extraordinary ability. A consulting or-
ion.                                          ganization may also submit a letter of
  (F) In a routine processing case            no objection in lieu of the above if it
where the petition is accompanied by a        has no objection to the approval of the
written opinion from a peer group, but        petition.
the peer group is not a labor organiza-         (B) Waiver of consultation of certain
tion, the Director will forward a copy        aliens of extraordinary ability in the field
of the petition and all supporting docu-      of arts. Consultation for an alien of ex-
mentation to the national office of the       traordinary ability in the field of arts
appropriate labor organization within 5       shall be waived by the Director in
days of receipt of the petition. If there     those instances where the alien seeks
is a collective bargaining representa-        readmission to the United States to
tive of an employer’s employees in the        perform similar services within 2 years
occupational classification for which         of the date of a previous consultation.
the alien is being sought, that rep-          The director shall, within 5 days of
resentative shall be the appropriate          granting the waiver, forward a copy of
labor organization for purposes of this       the petition and supporting docu-
section. The labor organization will          mentation to the national office of an
then have 15 days from receipt of the         appropriate labor organization. Peti-
petition and supporting documents to          tioners desiring to avail themselves of
submit to the Service a written advi-         the waiver should submit a copy of the
sory opinion, comment, or letter of no        prior consultation with the petition
objection. Once the 15-day period has         and advise the Director of the waiver
expired, the Director shall adjudicate        request.

                                          302
Immigration and Naturalization Service, Justice                                § 214.2

  (iii) Consultation requirements for an    cant production will take place in the
O–1 alien of extraordinary achievement.     United States and abroad and if the
In the case of an alien of extraordinary    continuing participation of the alien is
achievement who will be working on a        essential to the successful completion
motion picture or television produc-        of the production. A consulting organi-
tion, consultation shall be made with       zation may also submit a letter of no
the appropriate union representing the      objection in lieu of the above if it has
alien’s occupational peers and a man-       no objection to the approval of the pe-
agement organization in the area of         tition.
the alien’s ability. If an advisory opin-     (v) Organizations agreeing to provide
ion is not favorable to the petitioner,     advisory opinions. The Service will list
the advisory opinion must set forth a       in its Operations Instructions for O
specific statement of facts which sup-      classification those peer groups, labor
ports the conclusion reached in the         organizations, and/or management or-
opinion. If the advisory opinion is fa-     ganizations which have agreed to pro-
vorable to the petitioner, the written      vide advisory opinions to the Service
advisory opinion from the labor and         and/or petitioners. The list will not be
management organizations should de-         an exclusive or exhaustive list. The
scribe the alien’s achievements in the      Service and petitioners may use other
motion picture or television field and      sources, such as publications, to iden-
state whether the position requires the     tify appropriate peer groups, labor or-
services of an alien of extraordinary       ganizations, and management organi-
achievement. If a consulting organiza-      zations. Additionally, the Service will
tion has no objection to the approval of    list in its Operations Instructions
the petition, the organization may sub-     those occupations or fields of endeavor
mit a letter of no objection in lieu of     where the nonexistence of an appro-
the above.                                  priate consulting entity has been veri-
  (iv) Consultation requirements for an     fied.
O–2 accompanying alien. Consultation          (6) Approval and validity of petition—
with a labor organization with exper-       (1) Approval. The Director shall con-
tise in the skill area involved is re-      sider all of the evidence submitted and
quired for an O–2 alien accompanying        such other evidence as may be inde-
an O–1 alien of extraordinary ability.      pendently required to assist in the ad-
In the case of an O–2 alien seeking         judication. The Director shall notify
entry for a motion picture or television    the petitioner of the approval of the pe-
production, consultation with a labor       tition on Form I–797, Notice of Action.
organization and a management orga-         The approval notice shall include the
nization in the area of the alien’s abil-   alien beneficiary name, the classifica-
ity is required. If an advisory opinion     tion, and the petition’s period of valid-
is not favorable to the petitioner, the     ity.
advisory opinion must set forth a spe-        (ii) Recording the validity of petitions.
cific statement of facts which supports     Procedures for recording the validity
the conclusion reached in the opinion.      period of petitions are as follows;
If the advisory opinion is favorable to       (A) If a new O petition is approved
the petitioner, the opinion provided by     before the date the petitioner indicates
the labor and/or management organiza-       the services will begin, the approved
tion should describe the alien’s essen-     petition and approval notice shall show
tiality to, and working relationship        the actual dates requested by the peti-
with, the O–1 artist or athlete and         tioner, not to exceed the limit specified
state whether there are available U.S.      by paragraph (o)(6)(iii) of this section
workers who can perform the support         or other Service policy.
services. If the alien will accompany an      (B) If a new 0 petition is approved
O–1 alien involved in a motion picture      after the date the petitioner indicates
or television production, the advisory      the services will begin, the approved
opinion should address the alien’s          petition and approval notice shall gen-
skills and experience wit the O–1 alien     erally show a validity period commenc-
and whether the alien has a pre-exist-      ing with the date of approval and end-
ing longstanding working relationship       ing with the date requested by the peti-
with the O–1 alien, or whether signifi-     tioner, not to exceed the limit specified

                                        303
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

by paragraph (o)(6)(iii) of this section      (o) of this section. An amended petition
or other Service policy.                      should be filed when the petitioner con-
   (C) If the period of services requested    tinues to employ the beneficiary. If the
by the petitioner exceeds the limit           petitioner no longer employs the bene-
specified in paragraph (o)(6)(iii) of this    ficiary, the petitioner shall send a let-
section, the petition shall be approved       ter explaining the change(s) to the Di-
only up to the limit specified in that        rector who approved the petition.
paragraph.                                      (B) The Director may revoke a peti-
   (iii) Validity—(A) O–1 petition. An ap-    tion at any time, even after the valid-
proved petition for an alien classified       ity of the petition has expired.
under section 101(a)(15)(O)(i) of the Act       (ii) Automatic revocation. The ap-
shall be valid for a period of time de-       proval of an unexpired petition is auto-
termined by the Director to be nec-           matically revoked if the petitioner, or
essary to accomplish the event or ac-         the named employer in a petition filed
tivity, not to exceed 3 years.                by an agent, goes out of business, files
   (B) O–2 petition. An approved petition     a written withdrawal of the petition, or
for an alien classified under section         notifies the Service that the bene-
101(a)(15)(O)(ii) of the Act shall be valid   ficiary is no longer employed by the pe-
for a period of time determined to be         titioner.
necessary to assist the O–1 alien to ac-        (iii) Revocation on notice—(A) Grounds
complish the event or activity, not to        for revocation. The Director shall send
exceed 3 years.                               to the petitioner a notice of intent to
   (iv) Spouse and dependents. The            revoke the petition in relevant part if
spouse and unmarried minor children           is determined that:
of the O–1 or O–2 alien beneficiary are         (1) The beneficiary is no longer em-
entitled to O–3 nonimmigrant classi-          ployed by the petitioner in the capac-
fication, subject to the same period of       ity specified in the petition;
admission and limitations as the alien          (2) The statement of facts contained
beneficiary, if they are accompanying         in the petition was not true and cor-
or following to join the alien bene-          rect;
ficiary in the United States. Neither           (3) The petitioner violated the terms
the spouse nor a child of the alien ben-      or conditions of the approved petition;
eficiary may accept employment un-              (4) The petitioner violated the re-
less he or she has been granted employ-       quirements of section 101(a)(15)(O) of
ment authorization.                           the Act or paragraph (o) of this sec-
   (7) Denial of petition—(i) Notice of in-   tion; or
tent to deny. When an adverse decision          (5) The approval of the petition vio-
is proposed on the basis of derogatory        lated paragraph (o) of this section or
information of which the petitioner is        involved gross error.
unaware, the Director shall notify the          (B) Notice and decision. The notice of
petitioner of the intent to deny the pe-      intent to revoke shall contain a de-
tition and the basis for the denial. The      tailed statement of the grounds for the
petitioner may inspect and rebut the          revocation and the time period allowed
evidence and will be granted a period of      for the petitioner’s rebuttal. The peti-
30 days from the date of the notice in        tioner may submit evidence in rebuttal
which to do so. All relevant rebuttal         within 30 days of the date of the notice.
material will be considered in making         The Director shall consider all relevant
a final decision.                             evidence presented in deciding whether
   (ii) Notice of denial. The petitioner      to revoke the petition.
shall be notified of the decision, the          (9) Appeal of a denial or a revocation of
reasons for the denial, and the right to      a petition—(i) Denial. A denied petition
appeal the denial under 8 CFR part 103.       may be appealed under 8 CFR part 103.
   (8) Revocation of approval of petition—      (ii) Revocation. A petition that has
(i) General. (A) The petitioner shall im-     been revoked on notice may be ap-
mediately notify the Service of any           pealed under 8 CFR part 103. Automatic
changes in the terms and conditions of        revocations may not be appealed.
employment of a beneficiary which               (10) Admission. A beneficiary may be
may affect eligibility under section          admitted to the United States for the
101(a)(15)(O) of the Act and paragraph        validity period of the petition, plus a

                                          304
Immigration and Naturalization Service, Justice                                   § 214.2

period of up to 10 days before the valid-       of a permanent labor certification or
ity period begins and 10 days after the         the filing of a preference petition for
validity period ends. The beneficiary           an alien shall not be a basis for deny-
may only engage in employment dur-              ing an O–1 petition, a request to extend
ing the validity period of the petition.        such a petition, or the alien’s applica-
  (11) Extention of visa petition validity.     tion for admission, change of status, or
The petitioner shall file a request to          extension of stay. The alien may legiti-
extend the validity of the original peti-       mately come to the United States for a
tion under section 101(a)(15)(O) of the         temporary period as an O–1 non-
Act on Form I–129, Petition for a Non-          immigrant and depart voluntarily at
immigrant Worker, in order to con-              the end of his or her authorized stay
tinue or complete the same activities           and, at the same time, lawfully seek to
or events specified in the original peti-       become a permanent resident of the
tion. Supporting documents are not re-          United States.
quired unless requested by the Direc-             (14) Effect of a strike. (i) If the Sec-
tor. A petition extension may be filed          retary of Labor certifies to the Com-
only if the validity of the original peti-      missioner that a strike or other labor
tion has not expired.                           dispute involving a work stoppage of
  (12) Extension of stay—(i) Extension          workers is in progress in the occupa-
procedure. The petitioner shall request         tion at the place where the beneficiary
extension of the alien’s stay to con-           is to be employed, and that the em-
tinue or complete the same event or             ployment of the beneficiary would ad-
activity by filing Form I–129, accom-           versely affect the wages and working
panied by a statement explaining the            conditions of U.S. citizens and lawful
reasons for the extension. The peti-            resident workers:
tioner must also request a petition ex-           (A) A petition to classify an alien as
tension. The dates of extension shall be        a nonimmigrant as defined in section
the same for the petition and the bene-
                                                101(a)(15)(O) of the Act shall be denied;
ficiary’s extension of stay. The alien
                                                or
beneficiary must be physically present
                                                  (B) If a petition has been approved,
in the United States at the time of fil-
ing of the extension of stay. Even              but the alien has not yet entered the
though the request to extend the peti-          United States, or has entered the
tion and the alien’s stay are combined          United States but has not commenced
on the petition, the Director shall             employment, the approval of the peti-
make a separate determination on                tion is automatically suspended, and
each. If the alien leaves the United            the application for admission on the
States for business or personal reasons         basis of the petition shall be denied.
while the extension requests are pend-            (ii) If there is a strike or other labor
ing, the petitioner may request the Di-         dispute involving a work stoppage of
rector to cable notification of approval        workers in progress, but such strike or
of the petition extension to the con-           other labor dispute is not certified
sular office abroad where the alien will        under paragraph (o)(14)(i) of this sec-
apply for a visa.                               tion, the Commissioner shall not deny
  (ii) Extension period. An extension of        a petition or suspend an approved peti-
stay may be authorized in increments            tion.
of up to 1 year for an O–1 or O–2 bene-           (iii) If the alien has already com-
ficiary to continue or complete the             menced employment in the United
same event or activity for which he or          States under an approved petition and
she was admitted plus an additional 10          is participating in a strike or labor dis-
days to allow the beneficiary to get his        pute involving a work stoppage of
or her personal affairs in order.               workers, whether or not such strike or
  (iii) Denial of an extension of stay. The     other labor dispute has been certified
denial of the request for the alien’s ex-       by the Secretary of Labor, the alien
tension of temporary stay may not be            shall not be deemed to be failing to
appealed.                                       maintain his or her status solely on ac-
  (13) Effect of approval of a permanent        count of past, present, or future par-
labor certification or filing of a preference   ticipation in a strike or other labor
petition on O classification. The approval      dispute involving a work stoppage of

                                            305
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

workers but is subject to the following      place of residence prior to his or her
terms and conditions:                        entry into the United States.
  (A) The alien shall remain subject to        (p) Artists, athletes, and entertainers—
all applicable provisions of the Immi-       (1) Classifications—(i) General. Under
gration and Nationality Act and regu-        section 101(a)(15)(P) of the Act, an alien
lations promulgated thereunder in the        having a residence in a foreign country
same manner as are all other O non-          which he or she has not intention or
immigrants;                                  abandoning may be authorized to come
  (B) The status and authorized period       to the United States temporarily to
of stay of such an alien is not modified     perform services for an employer or a
or extended in any way by virtue of his      sponsor. Under the nonimmigrant cat-
or her participation in a strike or other    egory, the alien may be classified
labor dispute involving a work stop-         under section 101(a)(15)(P)(i) of the Act
page of workers; and                         as an alien who is coming to the United
  (C) Although participation by an O         States to perform services as an inter-
nonimmigrant alien in a strike or            nationally recognized athlete, individ-
other labor dispute involving a work         ually or as part of a group or team, or
stoppage of workers will not constitute      member of an internationally recog-
a ground for deportation, and alien who      nized entertainment group; under sec-
violates his or her status or who re-        tion 101(a)(15)(P)(ii) of the Act, who is
                                             coming to perform as an artist or en-
mains in the United States after his or
                                             tertainer under a reciprocal exchange
her authorized period of stay has ex-
                                             program; under section 101(a)(15)(P)(iii)
pired will be subject to deportation.
                                             of the Act, as an alien who is coming
  (15) Use of approval notice, Form I–797.   solely to perform, teach, or coach
The Service shall notify the petitioner      under a program that is culturally
of Form I–797 whenever a visa petition       unique;        or       under       section
or an extension of a visa petition is ap-    101(a)(15)(P)(iv) of the Act, as the
proved under the O classification. The       spouse or child of an alien described in
beneficiary of an O petition who does        section 101(a)(15)(P) (i), (ii), or (iii) of
not require a nonimmigrant visa may          the Act who is accompanying or follow-
present a copy of the approval notice        ing to join the alien. These classifica-
at a Port-of-Entry to facilitate entry       tions are called P–1, P–2, P–3, and P–4
into the United States. A beneficiary        respectively. The employer or sponsor
who is required to present a visa for ad-    must file a petition with the Service
mission, and who visa will have expired      for review of the services to be per-
before the date of his or her intended       formed and for determination of the
return, may use Form I–797 to apply for      alien’s eligibility for P–1, P–2, or P–3
a new or revalidated visa during the         classification before the alien may
validity period of the petition. A copy      apply for a visa or seek admission to
of Form I–797 shall be retained by the       the United States. This paragraph sets
beneficiary and presented during the         forth the standards and procedures ap-
validity of the petition when reenter-       plicable to these classifications.
ing the United States to resume the            (ii) Description of classification—(A) A
same employment with the same peti-          P–1 classification applies to an alien
tioner.                                      who is coming temporarily to the
  (16) Return transportation requirement.    United States:
In the case of an alien who enters the         (1) To perform at specific athletic
United States under section 101(a)(15(O)     competition as an athlete, individually
of the Act and whose employment ter-         or as part of a group or team, at an
minates for reasons other than vol-          internationally recognized level or per-
untary resignation, the employer             formance, or
whose offer of employment formed the           (2) To perform with, or as an integral
basis of such nonimmigrant status and        and essential part of the performance
the petitioner are jointly and severally     of, and entertainment group that has
liable for the reasonable cost of return     been recognized internationally as
transportation of the alien abroad. For      being outstanding in the discipline for
the purposes of this paragraph, the          a sustained and substantial period of
term ‘‘abroad’’ means the alien’s last       time, and who has had a sustained and

                                         306
Immigration and Naturalization Service, Justice                                  § 214.2

substantial relationship with the group        may not be included on the petition
(ordinarily for at least 1 year) and pro-      filed for the principal alien(s). These
vides functions integral to the perform-       aliens require a separate petition. Ex-
ance of the group.                             cept as provided for in paragraph
   (B) A P–2 classification applies to an      (p)(2)(iv)(A) of this section, the peti-
alien who is coming temporarily to the         tioner shall file a P petition on Form I–
United States to perform as an artist          129, Petition for Nonimmigrant Work-
or entertainer, individually or as part        er, with the Service Center which has
of a group, or to perform as an integral       jurisdiction in the area where the alien
part of the performance of such a              will work. The petition may not be
group, and who seeks to perform under          filed more than 6 months before the ac-
a reciprocal exchange program which is         tual need for the alien’s services. A P–
between an organization or organiza-           1, P–2, or P–3 petition shall be adju-
tions in the United States and an orga-        dicated at the appropriate Service Cen-
nization or organizations in one or            ter, even in emergency situations.
more foreign states, and which pro-               (ii) Evidence required to accompany a
vides for the temporary exchange of            petition for a P nonimmigrant. Petitions
artists and entertainers, or groups of         for P nonimmigrant aliens shall be ac-
artists and entertainers.                      companied by the following:
   (C) A P–3 classification applies to an         (A) The evidence specified in the spe-
alien artist or entertainer who is com-        cific section of this part for the classi-
ing temporarily to the United States,          fication;
either individually or as part of a
                                                  (B) Copies of any written contracts
group, or as an integral part of the per-
                                               between the petitioner and the alien
formance of the group, to perform,
                                               beneficiary or, if there is no written
teach, or coach under a commercial or
                                               contract, a summary of the terms of
noncommercial program that is cul-
                                               the oral agreement under which the
turally unique.
                                               alien(s) will be employed;
   (2) Filing of petitions—(i) General. A P–
1 petition for an athlete or entertain-           (C) An explanation of the nature of
ment group shall be filed by a United          the events or activities, the beginning
States employer, a United States spon-         and ending dates for the events or ac-
soring organization, a United States           tivities, and a copy of any itinerary for
agent, or a foreign employer through a         the events or activities; and
United States agent. For purposes of              (D) A written consultation from a
paragraph (p) of this section, a foreign       labor organization.
employer is any employer who is not               (iii) Form of documentation. The evi-
amenable to service of process in the          dence submitted with an P petition
United States. Foreign employers seek-         should conform to the following:
ing to employ a P–1 alien may not di-             (A) Affidavits, contracts, awards, and
rectly petition for the alien but must         similar documentation must reflect
use a United States agent. A United            the nature of the alien’s achievement
States agent petitioning on behalf of a        and be executed by an officer or respon-
foreign employer must be authorized to         sible person employed by the institu-
file the petition, and to accept service       tion, establishment, or organization
of process in the United States in pro-        where the work has performed.
ceedings under section 274A of the Act,           (B) Affidavits written by present or
on behalf of the foreign employer. A P–        former employers or recognized experts
2 petition for an artist or entertainer        certifying to the recognition and ex-
in a reciprocal exchange program shall         traordinary ability, or, in the case of a
be filed by the United States labor or-        motion picture or television produc-
ganization which negotiated the recip-         tion, the extraordinary achievement of
rocal exchange agreement, the sponsor-         the alien, which shall specifically de-
ing organization, or a United States           scribe the alien’s recognition and abil-
employer. A P–3 petition for an artist         ity or achievement in factual terms.
or entertainer in a culturally unique          The affidavit must also set forth the
program shall be filed by the sponsor-         expertise of the affiant and the manner
ing organization or a United States            in which the affiant acquired such in-
employer. Essential support personnel          formation.

                                           307
§ 214.2                                                    8 CFR Ch. I (1–1–98 Edition)

   (C) A legible copy of a document in           (D) Amended petition. The petitioner
support of the petition may be submit-         shall file an amended petition, with
ted in lieu of the original. However, the      fee, with the Service Center where the
original document shall be submitted if        original petition was filed to reflect
requested by the Director.                     any material changes in the terms and
   (iv) Other filing situations—(A) Services   conditions of employment or the bene-
in more than one location. A petition          ficiary’s eligibility as specified in the
which requires the alien to work in            original approved petition. A peti-
more than one location (e.g., a tour)          tioner may add additional, similar or
must include an itinerary with the             comparable performance, engagements,
dates and locations of the perform-            or competitions during the validity pe-
ances and must be filed with the Serv-         riod of the petition without filing an
ice Center which has jurisdiction in the       amended petition.
area where the petitioner is located.            (E) Agents as petitioners. A United
The address which the petitioner speci-        States agent may file a petition in
fies as its location on the petition shall     cases involving workers who are tradi-
be where the petitioner is located for         tionally self-employed or workers who
purposes of this paragraph.                    use agents to arrange short-term em-
   (B) Services for more than one em-          ployment on their behalf with numer-
ployer. If the beneficiary or bene-            ous employers, and in cases where a
ficiaries will work for more than one          foreign employer authorizes the agent
employer within the same time period,          to act on its behalf. A United States
each employer must file a separate pe-         agent may be: the actual employer of
tition with the Service Center that has        the beneficiary; the representative of
jurisdiction over the area where the           both the employer and the beneficiary;
alien will perform the services, unless        or, a person or entity authorized by the
an agent files the petition pursuant to        employer to act for, or in place of, the
paragraph (p)(2)(iv)(E) of this section.       employer as its agent. A petition filed
   (C) Change of employer—(1) General. If      by an United States agent is subject to
a P–1, P–2, or P–3 alien in the United         the following conditions:
States seeks to change employers or              (1) An agent performing the function
sponsors, the new employer or sponsor          of an employer must specify the wage
must file both a petition and a request        offered and the other terms and condi-
to extend the alien’s stay in the United       tions of employment by contractual
States. The alien may not commence             agreement with the beneficiary or
employment with the new employer or            beneficiaries. The agent/employer must
sponsor until the petition and request         also provide an itinerary of definite
for extension have been approved.              employment and information on any
   (2) Traded professional P–1 athletes. In    other services planned for the period of
the case of a professional P–1 athlete         time requested.
who is traded from one organization to           (2) A person or company in business
another organization, employment au-           as an agent may file the P petition in-
thorization for the player will auto-          volving multiple employers as the rep-
matically continue for a period of 30          resentative of both the employers and
days after acquisition by the new orga-        the beneficiary or beneficiaries if the
nization, within which time the new            supporting documentation includes a
organization is expected to file a new         complete itinerary of services or en-
Form I–129 for P–1 nonimmigrant clas-          gagements. The itinerary shall specify
sification. If a new Form I–129 is not         the dates of each service or engage-
filed within 30 days, employment au-           ment, the names and addresses of the
thorization will cease. If a new Form I–       actual employers, the names and ad-
129 is filed within 30 days, the profes-       dresses of the establishment, venues, or
sional athlete shall be deemed to be in        locations where the services will be
valid P–1 status, and employment shall         performed. In questionable cases, a
continue to be authorized, until the pe-       contract between the employer(s) and
tition is adjudicated. If the new peti-        the beneficiary or beneficiaries may be
tion is denied, employment authoriza-          required. The burden is on the agent to
tion will cease.                               explain the terms and conditions of the

                                           308
Immigration and Naturalization Service, Justice                                § 214.2

employment and to provide any re-            will also be considered an event. In the
quired documentation.                        case of a P–2 petition, the event may be
  (3) A foreign employer who, through        the duration of the reciprocal exchange
a United States agent, files a petition      agreement. In the case of a P–1 athlete,
for a P nonimmigrant alien is respon-        the event may be the duration of the
sible for complying with all of the em-      alien’s contract.
ployer sanctions provisions of section         Contract means the written agree-
274A of the Act and 8 CFR part 274a.         ment between the petitioner and the
  (F) Multiple beneficiaries. More than      beneficiary(ies) that explains the terms
one beneficiary may be included in a P       and conditions of employment. The
petition if they are members of a group      contract shall describe the services to
seeking classification based on the rep-     be performed, and specify the wages,
utation of the group as an entity, or if     hours of work, working conditions, and
they will provide essential support to       any fringe benefits.
P–1, P–2, or P–3 beneficiaries perform-        Culturally unique means a style of ar-
ing in the same location and in the          tistic expression, methodology, or me-
same occupation.                             dium which is unique to a particular
  (G) Named beneficiaries. Petitions for     country, nation, society, class, eth-
P classification must include the            nicity, religion, tribe, or other group of
names of beneficiaries and other re-         persons.
quired information at the time of fil-
                                               Essential support alien means a highly
ing.
                                             skilled, essential person determined by
  (H) Substitution of beneficiaries. A pe-
                                             the Director to be an integral part of
titioner may request substitution of
                                             the performance of a P–1, P–2, or P–3
beneficiaries in approved P–1, P–2, and
                                             alien because he or she performs sup-
P–3 petitions for groups. To request
                                             port services which cannot be readily
substitution, the petitioner shall sub-
                                             performed by a United States worker
mit a letter requesting such substi-
                                             and which are essential to the success-
tution, along with a copy of the peti-
                                             ful performance of services by the P–1,
tioner’s approval notice, to the con-
                                             P–2, alien. Such alien must have appro-
sular office at which the alien will
                                             priate qualifications to perform the
apply for a visa or the Port-of-Entry
                                             services, critical knowledge of the spe-
where the alien will apply for admis-
                                             cific services to be performed, and ex-
sion. Essential support personnel may
                                             perience in providing such support to
not be substituted at consular offices
                                             the P–1, P–2, or P–3 alien.
or at Ports-of-entry. In order to add ad-
ditional new essential support person-         Group means two or more persons es-
nel, a new I–129 petition must be filed      tablished as one entity or unit to per-
with the appropriate Service Center.         form or to provide a service.
  (3) Definitions. As used in this para-       Internationally recognized means hav-
graph, the term:                             ing a high level of achievement in a
  Arts includes fields of creative activ-    field evidenced by a degree of skill and
ity or endeavor such as, but not lim-        recognition substantially above that
ited to, fine arts, visual arts, and per-    ordinarily encountered, to the extent
forming arts.                                that such achievement is renowned,
  Competition, event, or performance         leading, or well-known in more than
means an activity such as an athletic        one country.
competition, athletic season, tour-            Member of a group means a person
nament, tour, exhibit, project, enter-       who is actually performing the enter-
tainment event, or engagement. Such          tainment services.
activity could include short vacations,        Sponsor means an established organi-
promotional appearances for the peti-        zation in the United States which will
tioning employer relating to the com-        not directly employ a P–1, P–2, or P–3
petition, event, or performance, and         alien but will assume responsibility for
stopovers which are incidental and/or        the accuracy of the terms and condi-
related to the activity. An athletic         tions specified in the petition.
competition or entertainment event             Team means two or more persons or-
could include an entire season of per-       ganized to perform together as a com-
formances A group of related activities      petitive unit in a competitive event.

                                         309
§ 214.2                                                    8 CFR Ch. I (1–1–98 Edition)

  (4) Petition for an internationally recog-   tition for an athlete who will compete
nized athlete or member of an internation-     individually or as a member of a U.S.
ally recognized entertainment group (P–        team must be accompanied by evidence
1)—(i) Types of classification—(A) P–1         that the athlete has achieved inter-
classification as an athlete in an individ-    national recognition in the sport based
ual capacity. A P–1 classification may         on his or her reputation. A petition for
be granted to an alien who is an inter-        a P–1 athlete or athletic team shall in-
nationally recognized athlete based on         clude:
his or her own reputation and achieve-           (1) A tendered contract with a major
ments as an individual. The alien must         United States sports league or team, or
be coming to the United States to per-         a tendered contract in an individual
form services which require an inter-          sport commensurate with international
nationally recognized athlete.                 recognition in that sport, if such con-
  (B) P–1 classification as a member of an     tracts are normally executed in the
entertainment group or an athletic team.       sport, and
An entertainment group or athletic               (2) Documentation of at least two of
team consists of two or more persons           the following:
who function as a unit. The entertain-           (i) Evidence of having participated to
ment group or athletic team as a unit          a significant extent in a prior season
must be internationally recognized as          with a major United States sports
outstanding in the discipline and must         league;
be coming to perform services which              (ii) Evidence of having participated
require an internationally recognized          in international competition with a na-
entertainment group or athletic team.          tional team;
A person who is a member of an inter-            (iii) Evidence of having participated
nationally recognized entertainment            to a significant extent in a prior season
group or athletic team may be granted          for a U.S. college or university in
P–1 classification based on that rela-         intercollegiate competition;
tionship, but may not perform services           (iv) A written statement from an offi-
separate and apart from the entertain-         cial of the governing body of the sport
ment group or athletic team. An enter-         which details how the alien or team is
tainment group must have been estab-           internationally recognized;
lished for a minimum of 1 year, and 75           (v) A written statement from a mem-
percent of the members of the group            ber of the sports media or a recognized
must have been performing entertain-           expert in the sport which details how
ment services for the group for a mini-        the alien or team is internationally
mum of 1 year.                                 recognized;
  (ii) Criteria and documentary require-         (vi) Evidence that the individual or
ments for P–1 athletes—(A) General. A P–       team is ranked if the sport has inter-
1 athlete must have an internationally         national rankings; or
recognized reputation as an inter-               (vii) Evidence that the alien or team
national athlete or he or she must be a        has received a significant honor or
member of a foreign team that is inter-        award in the sport.
nationally recognized. The athlete or            (iii) Criteria and documentary require-
team must be coming to the United              ments for members of an internationally
States to participate in an athletic           recognized entertainment group—(A) Gen-
competition which has a distinguished          eral. A P–1 classification shall be ac-
reputation and which requires partici-         corded to an entertainment group to
pation of an athlete or athletic team          perform as a unit based on the inter-
that has an international reputation.          national reputation of the group. Indi-
  (B) Evidentiary requirements for an          vidual entertainers shall not be ac-
internationally recognized athlete or ath-     corded P–1 classification to perform
letic team. A petition for an athletic         separate and apart from a group. Ex-
team must be accompanied by evidence           cept     as    provided    in   paragraph
that the team as a unit has achieved           (p)(4)(iii)(C)(2) of this section, it must
international recognition in the sport.        be established that the group has been
Each member of the team is accorded            internationally recognized as outstand-
P–1 classification based on the inter-         ing in the discipline for a sustained and
national reputation of the team. A pe-         substantial period of time. Seventy-

                                           310
Immigration and Naturalization Service, Justice                                 § 214.2

five percent of the members of the           in trade journals, major newspapers, or
group must have had a sustained and          other publications;
substantial relationship with the group        (v) Evidence that the group has
for at least 1 year and must provide         achieved significant recognition for
functions integral to the group’s per-       achievements from organizations, crit-
formance.                                    ics, government agencies, or other rec-
  (B) Evidentiary criteria for members of    ognized experts in the field. Such
internationally recognized entertainment     testimonials must be in a form that
groups. A petition for P–1 classification    clearly indicates the author’s author-
for the members of an entertainment          ity, expertise, and knowledge of the
group shall be accompanied by:               alien’s achievements; or
  (1) Evidence that the group has been         (vi) Evidence that the group has ei-
established and performing regularly         ther commanded a high salary or will
for a period of at least 1 year;             command a high salary or other sub-
  (2) A statement from the petitioner        stantial remuneration for services
listing each member of the group and         comparable to other similarly situated
the exact dates for which each member        in the field as evidenced by contracts
has been employed on a regular basis         or other reliable evidence.
by the group; and                              (C) Special provisions for certain enter-
  (3) Evidence that the group has been       tainment groups—(1) Alien circus person-
internationally recognized in the dis-       nel. The 1-year group membership re-
cipline for a sustained and substantial      quirement and the international rec-
period of time. This may be dem-             ognition requirement are not applica-
onstrated by the submission of evi-          ble to alien circus personnel who per-
dence of the group’s nomination or re-       form as part of a circus or circus group,
ceipt    of   significant    international   or who constitute an integral and es-
awards or prices for outstanding             sential part of the performance of such
achievement in its field or by three of      circus or circus group, provided that
the following different types of docu-       the alien or aliens are coming to join a
mentation:                                   circus that has been recognized nation-
  (i) Evidence that the group has per-       ally as outstanding for a sustained and
formed, and will perform, as a starring      substantial period of time or as part of
or leading entertainment group in pro-       such a circus.
ductions or events which have a distin-        (2) Certain nationally known entertain-
guished reputation as evidenced by           ment groups. The Director may waive
critical reviews, advertisements, pub-       the international recognition require-
licity releases, publications, contracts,    ment in the case of an entertainment
or endorsements;                             group which has been recognized na-
  (ii) Evidence that the group has           tionally as being outstanding in its dis-
achieved international recognition and       cipline for a sustained and substantial
acclaim for outstanding achievement          period of time in consideration of spe-
in its field as evidenced by reviews in      cial circumstances. An example of a
major newspapers, trade journals, mag-       special circumstances would be when
azines, or other published material;         an entertainment group may find it
  (iii) Evidence that the group has per-     difficult to demonstrate recognition in
formed, and will perform, services as a      more than one country due to such fac-
leading or starring group for organiza-      tors as limited access to news media or
tions and establishments that have a         consequences of geography.
distinguished reputation evidenced by          (3) Waiver of 1-year relationship in exi-
articles in newspapers, trade journals,      gent circumstances. The Director may
publications, or testimonials;               waive the 1-year relationship require-
  (iv) Evidence that the group has a         ment for an alien who, because of ill-
record of major commercial or criti-         ness or unanticipated and exigent cir-
cally acclaimed successes, as evidenced      cumstances, replaces an essential
by such indicators as ratings; standing      member of a P–1 entertainment group
in the field; box office receipts; record,   or an alien who augments the group by
cassette, or video sales; and other          performing a critical role. The Depart-
achievements in the field as reported        ment of State is hereby delegated the

                                         311
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

authority to waive the 1-year relation-         (ii) Evidentiary requirements for peti-
ship requirement in the case of con-          tion involving a reciprocal exchange pro-
sular substitutions involving P–1 enter-      gram. A petition for P–2 classification
tainment groups.                              shall be accompanied by:
  (iv) P–1 classification as an essential       (A) A copy of the formal reciprocal
support alien—(A) General. An essential       exchange agreement between the U.S.
support alien as defined in paragraph         organization or organizations which
(p)(3) of this section may be granted P–      sponsor the aliens and an organization
1 classification based on a support rela-     or organizations in a foreign country
tionship with an individual P–1 athlete,      which will receive the U.S. artist or en-
P–1 athletic team, or a P–1 entertain-        tertainers;
ment group.                                     (B) A statement from the sponsoring
  (B) Evidentiary criteria for a P–1 essen-   organization describing the reciprocal
tial support petition. A petition for P–1     exchange of U.S. artists or entertainers
essential support personnel must be ac-       as it relates to the specific petition for
companied by:                                 which P–2 classification is being
  (1) A consultation from a labor orga-       sought;
nization with expertise in the area of          (C) Evidence that an appropriate
the alien’s skill;                            labor organization in the United States
  (2) A statement describing the              was involved in negotiating, or has
alien(s) prior essentiality, critical         concurred with, the reciprocal ex-
skills, and experience with the prin-         change of U.S. and foreign artists or
cipal alien(s); and                           entertainers; and
  (3) A copy of the written contract or         (D) Evidence that the aliens for
a summary of the terms of the oral            whom P–2 classification is being sought
agreement between the alien(s) and the        and the U.S. artists or entertainers
employer.                                     subject to the reciprocal exchange
  (5) Petition for an artist or entertainer   agreement are artists or entertainers
under a reciprocal exchange program (P–       with comparable skills, and that the
2)—(i) General. (A) A P–2 classification      terms and conditions of employment
shall be accorded to artists or enter-        are similar.
tainers, individually or as a group, who        (iii) P–2 classification as an essential
will be performing under a reciprocal         support alien—(A) General. An essential
exchange program which is between an          support alien as defined in paragraph
organization or organizations in the          (p)(3) of this section may be granted P–
United States, which may include a            2 classification based on a support rela-
management organization, and an or-           tionship with a P–2 entertainer or P–2
ganization or organizations in one or         entertainment group.
more foreign states and which provides          (B) Evidentiary criteria for a P–2 essen-
for the temporary exchange of artists         tial support petition. A petition for P–2
and entertainers, or groups of artists        essential support personnel must be ac-
and entertainers.                             companied by:
  (B) The exchange of artists or enter-         (1) A consultation from a labor orga-
tainers shall be similar in terms of cal-     nization with expertise in the area of
iber of artists or entertainers, terms        the alien’s skill;
and conditions of employment, such as           (2) A statement describing the
length of employment, and numbers of          alien(s) prior essentiality, critical
artists or entertainers involved in the       skills, and experience with the prin-
exchange. However, this requirement           cipal alien(s); and
does not preclude an individual for             (3) A copy of the written contract or
group exchange.                               a summary of the terms of the oral
  (C) An alien who is an essential sup-       agreement between the alien(s) and the
port person as defined in paragraph           employer.
(p)(3) of this section may be accorded          (6) Petition for an artist or entertainer
P–2 classification based on a support         under a culturally unique program—(i)
relationship to a P–2 artist or enter-        General. (A) A P–3 classification may be
tainer under a reciprocal exchange pro-       accorded to artists or entertainers, in-
gram.                                         dividually or as a group, coming to the

                                          312
Immigration and Naturalization Service, Justice                                § 214.2

United States for the purpose of devel-       work to be done and the alien’s quali-
oping,     interpreting,     representing,    fications is mandatory before a peti-
coaching, or teaching a unique or tra-        tion for P–1, P–2, or P–3 classification
ditional ethnic, folk, cultural, musical,     can be approved.
theatrical, or artistic performance or          (B) Except as provided in paragraph
presentation.                                 (p)(7)(i)(E) of this section, evidence of
  (B) The artist or entertainer must be       consultation shall be a written advi-
coming to the United States to partici-       sory opinion from an appropriate labor
pate in a cultural event or events            organization.
which will further the understanding            (C) Except as provided in paragraph
or development of his or her art form.        (p)(7)(i)(E) of this section, the peti-
The program may be of a commercial            tioner shall obtain a written advisory
or noncommercial nature.                      opinion from an appropriate labor or-
  (ii) Evidentiary criteria for a petition    ganization. The advisory opinion shall
involving a culturally unique program. A      be submitted along with the petition
petition for P–3 classification shall be      when the petition is filed. If the advi-
accompanied by:                               sory opinion is not favorable to the pe-
  (A) Affidavits, testimonials, or let-       titioner, the advisory opinion must set
ters from recognized experts attesting        forth a specific statement of facts
to the authenticity of the alien’s or the     which support the conclusion reached
group’s skills in performing, present-        in the opinion. Advisory opinions must
ing, coaching, or teaching the unique         be submitted in writing and signed by
or traditional art form and giving the        an authorized official of the organiza-
credentials of the expert, including the      tion.
basis of his or her knowledge of the            (D) Except as provided in paragraph
alien’s or group’s skill, or                  (p)(7)(i) (E) and (F) of this section,
  (B) Documentation that the perform-         written evidence of consultation shall
ance of the alien or group is culturally      be included in the record of every ap-
unique, as evidence by reviews in news-       proved petition. Consultations are ad-
papers, journals, or other published          visory and are not binding on the Serv-
materials; and                                ice.
  (C) Evidence that all of the perform-         (E) In a case where the Service has
ances or presentations will be cul-           determined that a petition merits ex-
turally unique events.                        peditious handling, the Service shall
  (iii) P–3 classification as an essential    contact the labor organization and re-
support alien—(A) General. An essential       quest an advisory opinion if one is not
support alien as defined in paragraph         submitted by the petitioner. The labor
(p)(3) of this section may be granted P–      organization shall have 24 hours to re-
3 classification based on a support rela-     spond to the Service’s request. The
tionship with a P–3 entertainer or P–3        Service shall adjudicate the petition
entertainment group.                          after receipt of the response from the
  (B) Evidentiary criteria for a P–3 essen-   labor organization. The labor organiza-
tial support petition. A petition for P–3     tion shall then furnish the Service with
essential support personnel must be ac-       a written advisory opinion within 5
companied by:                                 working days of the request. If the
  (1) A consultation from a labor orga-       labor organization fails to respond
nization with expertise in the area of        within 24 hours, the Service shall
the alien’s skill;                            render a decision on the petition with-
  (2) A statement describing the              out the advisory opinion.
alien(s) prior essentiality, critical           (F) In those cases where it is estab-
skills and experience with the principal      lished by the petitioner that an appro-
alien(s); and                                 priate labor organization does not
  (3) A copy of the written contract or       exist, the Service shall render a deci-
a summary of the terms of the oral            sion on the evidence of record.
agreement between the alien(s) and the          (ii) Consultation requirements for P–1
employer.                                     athletes and entertainment groups. Con-
  (7) Consultation—(i) General. (A) Con-      sultation with a labor organization
sultation with an appropriate labor or-       that has expertise in the area of the
ganization regarding the nature of the        alien’s sport or entertainment field is

                                          313
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

required in the case of a P–1 petition. If   tion with an appropriate labor organi-
the advisory opinion is not favorable to     zation is required for P–3 petitions in-
the petitioner, the advisory opinion         volving aliens in culturally unique pro-
must set forth a specific statement of       grams. If the advisory opinion is favor-
facts which support the conclusion           able to the petitioner, it should evalu-
reached in the opinion. If the advisory      ate the cultural uniqueness of the
opinion provided by the labor organiza-      alien’s skills, state whether the events
tion is favorable to the petitioner it       are cultural in nature, and state
should evaluate and/or describe the          whether the event or activity is appro-
alien’s or group’s ability and achieve-      priate for P–3 classification. If the ad-
ments in the field of endeavor, com-         visory opinion is not favorable to the
ment on whether the alien or group is        petitioner, it must also set forth a spe-
internationally recognized for achieve-      cific statement of facts which support
ments, and state whether the services        the conclusion reached in the opinion.
the alien or group is coming to perform      In lieu of the above, a labor organiza-
are appropriate for an internationally       tion may submit a letter of no objec-
recognized athlete or entertainment          tion if it has no objection to the ap-
group. In lieu of the above, a labor or-     proval of the petition.
ganization may submit a letter of no            (vi) Consultation requirements for es-
objection if it has no objection to the      sential support aliens. Written consulta-
approval of the petition.                    tion on petitions for P–1, P–2, or P–3 es-
  (iii) Consultation requirements for P–1    sential support aliens must be made
circus personnel. The advisory opinion       with a labor organization with exper-
provided by the labor organization           tise in the skill area involved. If the
should comment on whether the circus         advisory opinion provided by the labor
which will employ the alien has na-          organization is favorable to the peti-
tional recognition as well as any other      tioner, it must evaluate the alien’s es-
aspect of the beneficiary’s or bene-         sentiality to and working relationship
ficiaries’ qualifications which the labor    with the artist or entertainer, and
organization deems appropriate. If the       state whether United States workers
advisory opinion is not favorable to the     are available who can perform the sup-
petitioner, it must set forth a specific     port services. If the advisory opinion is
statement of facts which support the         not favorable to the petitioner, it must
conclusion reached in the opinion. In        also set forth a specific statement of
lieu of the above, a labor organization      facts which support the conclusion
may submit a letter of no objection if       reached in the opinion. A labor organi-
it has no objection to the approval of       zation may submit a letter of no objec-
the petition.                                tion if it has no objection to the ap-
  (iv) Consultation requirements for P–2     proval of the petition.
alien in a reciprocal exchange program.         (vii) Labor organizations agreeing to
In P–2 petitions where an artist or en-      provide consultations. The Service shall
tertainer is coming to the United            list in its Operations Instructions for P
States under a reciprocal exchange pro-      classification     those    organizations
gram, consultation with the appro-           which have agreed to provide advisory
priate labor organization is required to     opinions to the Service and/or petition-
verify the existence of a viable ex-         ers. The list will not be an exclusive or
change program. The advisory opinion         exhaustive list. The Service and peti-
from the labor organization shall com-       tioners may use other sources, such as
ment on the bona fides of the recip-         publications, to identify appropriate
rocal exchange program and specify           labor organizations. The Service will
whether the exchange meets the re-           also list in its Operations Instructions
quirements of paragraph (p)(5) of this       those occupations or fields of endeavor
section. If the advisory opinion is not      where it has been determined by the
favorable to the petitioner, it must         Service that no appropriate labor orga-
also set forth a specific statement of       nization exists.
facts which support the conclusion              (8) Approval and validity of petition—
reached in the opinion.                      (i) Approval. The Director shall con-
  (v) Consultation requirements for P–3 in   sider all the evidence submitted and
a culturally unique program. Consulta-       such other evidence as he or she may

                                         314
Immigration and Naturalization Service, Justice                                  § 214.2

independently require to assist in his        which the group is being admitted, not
or her adjudication. The Director shall       to exceed 1 year.
notify the petitioner of the approval of        (C) P–2 and P–3 petitions for artists or
the petition on Form I–797, Notice of         entertainers. An approved petition for
Action. The approval notice shall in-         an artist or entertainer under section
clude the alien beneficiary’s name and        101(a)(15)(P)(ii) or (iii) of the Act shall
classification and the petition’s period      be valid for a period of time deter-
of validity.                                  mined by the Director to be necessary
  (ii) Recording the validity of petitions.   to complete the event, activity, or per-
Procedures for recording the validity         formance for which the P–2 or P–3 alien
period of petitions are:                      is admitted, not to exceed 1 year.
  (A) If a new P petition is approved           (D) Spouse and dependents. The spouse
before the date the petitioner indicates      and unmarried minor children of a P–1,
the services will begin, the approved         P–2, or P–3 alien beneficiary are enti-
petition and approval notice shall show       tled to P–4 nonimmigrant classifica-
the actual dates requested by the peti-       tion, subject to the same period of ad-
tioner as the validity period, not to ex-     mission and limitations as the alien
ceed the limit specified in paragraph         beneficiary, if they are accompanying
(p)(8)(iii) of this section or other Serv-    or following to join the alien bene-
ice policy.                                   ficiary in the United States. Neither
  (B) If a new P petition is approved         the spouse nor a child of the alien ben-
after the date the petitioner indicates       eficiary may accept employment un-
the services will begin, the approved         less he or she has been granted employ-
petition and approval notice shall gen-       ment authorization.
erally show a validity period commenc-
                                                (E) Essential support aliens. Petitions
ing with the date of approval and end-
                                              for essential support personnel to P–1,
ing with the date requested by the peti-
                                              P–2, and P–3 aliens shall be valid for a
tioner, not to exceed the limit specified
                                              period of time determined by the Di-
in paragraph (p)(8)(iii) of this section
                                              rector to be necessary to complete the
or other Service policy.
                                              event, activity, or performance for
  (C) If the period of services requested
                                              which the P–1, P–2, or P–3 alien is ad-
by the petitioner exceeds the limit
                                              mitted, not to exceed 1 year.
specified in paragraph (p)(8)(iii) of this
section, the petition shall be approved         (9) Denial of petition—(i) Notice of in-
only up to the limit specified in that        tent to deny. When an adverse decision
paragraph.                                    is proposed on the basis of derogatory
  (iii) Validity. The approval period of a    information of which the petitioner is
P petition shall conform to the limits        unaware, the Director shall notify the
prescribed as follows:                        petitioner of the intent to deny the pe-
  (A) P–1 petition for athletes. An ap-       tition and the basis for the denial. The
proved petition for an individual ath-        petitioner may inspect and rebut the
lete      classified     under     section    evidence and will be granted a period of
101(a)(15)(P)(i) of the Act shall be valid    30 days from the date of the notice in
for a period up to 5 years. An approved       which to do so. All relevant rebuttal
petition for an athletic team classified      material will be considered in making
under section 101(a)(15)(P)(i) of the Act     a final decision.
shall be valid for a period of time de-         (ii) Notice of denial. The petitioner
termined by the Director to complete          shall be notified of the decision, the
the competition or event for which the        reasons for the denial, and the right to
alien team is being admitted, not to ex-      appeal the denial under 8 CFR part 103.
ceed 1 year.                                  There is no appeal from a decision to
  (B) P–1 petition for an entertainment       deny an extension of stay to the alien
group. An approved petition for an en-        or a change of nonimmigrant status.
tertainment group classified under sec-         (10) Revocation of approval of peti-
tion 101(a)(15)(P)(i) of the Act shall be     tion—(i) General. (A) The petitioner
valid for a period of time determined         shall immediately notify the Service of
by the Director to be necessary to com-       any changes in the terms and condi-
plete the performance or event for            tions of employment of a beneficiary

                                          315
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

which may affect eligibility under sec-         (12) Admission. A beneficiary may be
tion 101(a)(15)(P) of the Act and para-      admitted to the United States for the
graph (p) of this section. An amended        validity period of the petition, plus a
petition should be filed when the peti-      period of up to 10 days before the valid-
tioner continues to employ the bene-         ity period begins and 10 days after the
ficiary. If the petitioner no longer em-     validity period ends. The beneficiary
ploys the beneficiary, the petitioner        may not work except during the valid-
shall send a letter explaining the           ity period of the petition.
change(s) to the Director who approved          (13) Extension of visa petition validity.
the petition.                                The petitioner shall file a request to
  (B) The Director may revoke a peti-        extend the validity of the original peti-
tion at any time, even after the valid-      tion under section 101(a)(15)(P) of the
ity of the petition has expired.             Act on Form I–129 in order to continue
  (ii) Automatic revocation. The ap-         or complete the same activity or event
proval of an unexpired petition is auto-     specified in the original petition. Sup-
matically revoked if the petitioner, or      porting documents are not required un-
the employer in a petition filed by an       less requested by the Director. A peti-
agent, goes out of business, files a writ-   tion extension may be filed only if the
ten withdrawal of the petition, or noti-     validity of the original petition has not
fies the Service that the beneficiary is     expired.
no longer employed by the petitioner.           (14) Extension of stay—(i) Extension
  (iii) Revocation on notice—(A) Grounds     procedure. The petitioner shall request
for revocation. The Director shall send      extension of the alien’s stay to con-
to the petitioner a notice of intent to      tinue or complete the same event or
revoke the petition in relevant part if      activity by filing Form I–129, accom-
he or she finds that:                        panied by a statement explaining the
  (1) The beneficiary is no longer em-       reasons for the extension. The peti-
ployed by the petitioner in the capac-       tioner must also request a petition ex-
ity specified in the petition;               tension. The extension dates shall be
                                             the same for the petition and the bene-
  (2) The statement of facts contained
                                             ficiary’s stay. The beneficiary must be
in the petition were not true and cor-
                                             physically present in the United States
rect;
                                             at the time the extension of stay is
  (3) The petitioner violated the terms
                                             filed. Even though the requests to ex-
or conditions of the approved petition;
                                             tend the petition and the alien’s stay
  (4) The petitioner violated require-       are combined on the petition, the Di-
ments of section 101(a)(15)(P) of the Act    rector shall make a separate deter-
or paragraph (p) of this section; or         mination on each. If the alien leaves
  (5) The approval of the petition vio-      the United States for business or per-
lated paragraph (p) of this section or       sonal reasons while the extension re-
involved gross error.                        quests are pending, the petitioner may
  (B) Notice and decision. The notice of     request the Director to cable notifica-
intent to revoke shall contain a de-         tion of approval of the petition exten-
tailed statement of the grounds for the      sion to the consular office abroad
revocation and the time period allowed       where the alien will apply for a visa.
for the petitioner’s rebuttal. The peti-        (ii) Extension periods—(A) P–1 individ-
tioner may submit evidence in rebuttal       ual athlete. An extension of stay for a
within 30 days of the date of the notice.    P–1 individual athlete and his or her
The Director shall consider all relevant     essential support personnel may be au-
evidence presented in deciding whether       thorized for a period up to 5 years for a
to revoke the petition.                      total period of stay not to exceed 10
  (11) Appeal of a denial or a revocation    years.
of a petition—(i) Denial. A denied peti-        (B) Other P–1, P–2, and P–3 aliens. An
tion may be appealed under 8 CFR part        extension of stay may be authorized in
103.                                         increments of 1 year for P–1 athletic
  (ii) Revocation. A petition that has       teams, entertainment groups, aliens in
been revoked on notice may be ap-            reciprocal exchange programs, aliens
pealed under 8 CFR part 103. Automatic       in culturally unique programs, and
revocations may not be appealed.             their essential support personnel to

                                         316
Immigration and Naturalization Service, Justice                                  § 214.2

continue or complete the same event or          shall not be deemed to be failing to
activity for which they were admitted.          maintain his or her status solely on ac-
  (15) Effect of approval of a permanent        count of past, present, or future par-
labor certification or filing of a preference   ticipation in a strike or other labor
petition on P classification. The approval      dispute involving a work stoppage of
of a permanent labor certification or           workers but is subject to the following
the filing of a preference petition for         terms and conditions:
an alien shall not be a basis for deny-           (A) The alien shall remain subject to
ing a P petition, a request to extend           all applicable provisions of the Immi-
such a petition, or the alien’s admis-          gration and Nationality Act and regu-
sion, change of status, or extension of         lations promulgated thereunder in the
stay. The alien may legitimately come           same manner as all other P non-
to the United States for a temporary            immigrant aliens;
period as a P nonimmigrant and depart             (B) The status and authorized period
voluntarily at the end of his or her au-        of stay of such an alien is not modified
thorized stay and, at the same time,            or extended in any way by virtue of his
lawfully seek to become a permanent             or her participation in a strike or other
resident of the United States. This pro-        labor dispute involving a work stop-
vision does not include essential sup-          page of workers; and
port personnel.                                   (C) Although participation by a P
  (16) Effect of a strike—(i) If the Sec-       nonimmigrant alien in a strike or
retary of Labor certifies to the Com-           other labor dispute involving a work
missioner that a strike or other labor          stoppages of workers will not con-
dispute involving a work stoppage of            stitute a ground for deportation, an
workers is in progress in the occupa-           alien who violates his or her status or
tion at the place where the beneficiary         who remains in the United States after
is to be employed, and that the em-             his or her authorized period of stay has
ployment of the beneficiary would ad-           expired, will be subject to deportation.
versely affect the wages and working              (17) Use of approval of notice, Form I–
conditions of U.S. citizens and lawful          797. The Service has notify the peti-
resident workers:                               tioner on Form I–797 whenever a visa
  (A) A petition to classify an alien as        petition or an extension of a visa peti-
a nonimmigrant as defined in section            tion is approved under the P classifica-
101(a)(15)(P) of the Act shall be denied;       tion. The beneficiary of a P petition
or                                              who does not require a nonimmigrant
  (B) If a petition has been approved,          visa may present a copy of the ap-
but the alien has not yet entered the           proved notice at a Port-of-Entry to fa-
United States, or has entered the               cilitate entry into the United States. A
United States but has not commenced             beneficiary who is required to present a
employment, the approval of the peti-           visa for admission, and whose visa ex-
tion is automatically suspended, and            pired before the date of his or her in-
the application for admission of the            tended return, may use Form I–797 to
basis of the petition shall be denied.          apply for a new or revalidated visa dur-
  (ii) If there is a strike or other labor      ing the validity period of the petition.
dispute involving a work stoppage of            The copy of Form I–797 shall be re-
workers in progress, but such strike or         tained by the beneficiary and present
other labor dispute is not certified            during the validity of the petition
under paragraph (p)(16)(i) of this sec-         when reentering the United States to
tion, the Commissioner shall not deny           resume the same employment with the
a petition or suspend an approved peti-         same petitioner.
tion.                                             (18) Return transportation requirement.
  (iii) If the alien has already com-           In the case of an alien who enters the
menced employment in the United                 United      States     under      section
States under an approved petition and           101(a)(15)(P) of the Act and whose em-
is participating in a strike or labor dis-      ployment terminates for reasons other
pute involving a work stoppage of               than voluntary resignation, the em-
workers, whether or not such strike or          ployer whose offer of employment
other labor dispute has been certified          formed the basis of suh nonimmigrant
by the Secretary of Labor, the alien            status and the petitioner are jointly

                                            317
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

and severally liable for the reasonable      with     the    provisions    of   section
cost of return transporation of the          101(a)(15)(Q) of the Act.
alien abroad. For the purposes of this         (2) Admission of cultural visitor—(i)
paragraph, the term ‘‘abroad’’ means         General. A nonimmigrant alien may be
the alien’s last place of residence prior    authorized to enter the United States
to his or her entry into the United          as a participant in an international
States.                                      cultural exchange program approved by
  (q) International cultural exchange vis-   the Attorney General for the purpose
itor—(1) Definitions. As used in this sec-   of providing practical training, em-
tion:                                        ployment, and the sharing of the his-
  Country of nationality means the           tory, culture, and traditions of the
country of which the participant was a       country of the alien’s nationality. The
national at the time of the petition         period of admission is the duration of
seeking international cultural ex-           the approved international cultural ex-
change visitor status for him or her.        change program or fifteen (15) months,
  Doing business means the regular,          whichever is shorter. A nonimmigrant
systematic, and continuous provision         alien admitted under this provision is
of goods and/or services (including lec-     classifiable as a cultural visitor in Q
tures, seminars and other types of cul-      status.
tural programs) by a qualified em-             (ii) Limitation on admission. Any alien
                                             who has been admitted into the United
ployer which has employees, and does
                                             States as a cultural visitor under sec-
not include the mere presence of an
                                             tion 101(a)(15)(Q) of the Act shall not be
agent or office of the qualifying em-
                                             readmittted in Q status unless the
ployer.
                                             alien has resided and been physically
  Duration of program means the time         present outside the United States for
in which a qualified employer is con-        the immediate prior year. Brief trips to
ducting an approved cultural exchange        the United States for pleasure or busi-
program in the manner as established         ness during the immediate prior year
by the employer’s petition for program       do not break the continuity of the one-
approval, provided that the period of        year foreign residency.
time does not exceed 15 months.                (3) International cultural exchange pro-
  International cultural exchange visitor    gram—(i) General. A United States em-
or cultural visitor means an alien who       ployer shall petition the Attorney Gen-
has a residence in a foreign country         eral on Form I–129, Petition for a Non-
which he or she has no intention of          immigrant Worker, for approval of an
abandoning, and who is coming tempo-         international cultural exchange pro-
rarily to the United States to take part     gram which is designed to provide an
in an international cultural exchange        opportunity for the American public to
program approved by the Attorney             learn about foreign cultures. The
General.                                     United States employer must simulta-
  Petitioner means the employer or its       neously petition on the same Form I–
designated agent who has been em-            129 for the authorization for one or
ployed by the qualified employer on a        more individually identified non-
permanent basis in an executive or           immigrant aliens to be admitted in Q
managerial capacity. The designated          status. These aliens are to be admitted
agent must be a United States citizen,       to engage in employment or training of
an alien lawfully admitted for perma-        which the essential element is the
nent residence, or an alien provided         sharing with the American public, or a
temporary residence status under sec-        segment of the public sharing a com-
tions 210 or 245A of the Act.                mon cultural interest, of the culture of
  Qualified employer means a United          the alien’s country of nationality. The
States or foreign firm, corporation,         cultural visitor’s eligibility for admis-
non-profit organization, or other legal      sion will be considered only if the
entity (including its U.S. branches,         international cultural exchange pro-
subsidiaries, affiliates, and franchises)    gram is approved.
which administers an international             (ii) Program validity. Each petition for
cultural exchange program designated         an international cultural exchange pro-
by the Attorney General in accordance        gram will be approved for the duration

                                         318
Immigration and Naturalization Service, Justice                                § 214.2

of the program, which may not exceed        the qualified employer in the United
15 months, plus 30 days to allow time       States.
for the participants to make travel ar-       (iv) Requirements for cultural visitors.
rangements. Subsequent to the ap-           To be eligible for cultural visitor sta-
proval of the initial petition, a new pe-   tus, an alien must be a bona fide non-
tition must be filed each time the          immigrant who:
qualified employer wishes to bring in         (A) Is at least 18 years of age at the
additional cultural visitors. A qualified   time the petition is filed;
employer may replace or substitute a          (B) Is qualified to perform the service
participant named on a previously ap-       or labor or receive the type of training
proved petition for the remainder of        stated in the petition;
the program in accordance with para-          (C) Has the ability to communicate
graph (q)(6) of this section. The re-       effectively about the cultural at-
placement or substituting alien may be      tributes of his or her country of na-
admitted in Q status until the expira-      tionality to the American public; and
tion date of the approved petition.           (D) Has resided and been physically
  (iii) Requirements for program ap-        present outside of the United States for
proval. An international cultural ex-       the immediate prior year, if he or she
change program must meet all of the         was previously admitted as a cultural
following requirements:                     visitor.
  (A) Accessibility to the public. The        (4) Supporting documentation—(i) Doc-
international cultural exchange pro-        umentation by the employer. To establish
gram must take place in a school, mu-       eligibility as a qualified employer, the
seum, business or other establishment       petitioner must submit with the com-
where the American public, or a seg-        pleted Form I–129 appropriate evidence
ment of the public sharing a common         that the employer:
cultural interest, is exposed to aspects      (A) Maintains an established inter-
of a foreign culture as part of a struc-    national cultural exchange program in
tured program. Activities that take         accordance with the requirements set
place in a private home or an isolated      forth in paragraph (q)(3) of this section;
business setting to which the American        (B) Has designated a qualified em-
public, or a segment of the public shar-    ployee as a representative who will be
ing a common cultural interest, does        responsible for administering the inter-
not have direct access do not qualify.      national cultural exchange program
  (B) Cultural component. The inter-        and who will serve as liaison with the
national cultural exchange program          Immigration and Naturalization Serv-
must have a cultural component which        ice;
is an essential and integral part of the      (C) Is actively doing business in the
cultural visitor’s employment or train-     United States;
ing. The cultural component must be           (D) Will offer the alien(s) wages and
designed, on the whole, to exhibit or       working conditions comparable to
explain the attitude, customs, history,     those accorded local domestic workers
heritage, philosophy, or traditions of      similarly employed; and
the cultural visitor’s country of na-         (E) Has the financial ability to remu-
tionality. A cultural component may         nerate the participant(s).
include structured instructional activi-      (ii) Certification by petitioner. (A) The
ties such as seminars, courses, lecture     petitioner must give the date of birth,
series, or language camps.                  country of nationality, level of edu-
  (C) Work component. The cultural          cation, position title, and a brief job
visitor’s employment or training in the     description for each cultural visitor in-
United States may not be independent        cluded in the petition. The petitioner
of the cultural component of the inter-     must verify and certify that the pro-
national cultural exchange program.         spective participants are qualified to
The work component must serve as the        perform the service or labor, or receive
vehicle to achieve the objectives of the    the type of training, described in the
cultural component. The sharing of the      petition.
culture of the cultural visitor’s coun-       (B) The petitioner must report the
try of nationality must result from his     cultural visitors’ wages and certify
or her employment or training with          that such cultural exchange visitors

                                        319
§ 214.2                                                    8 CFR Ch. I (1–1–98 Edition)

are offered wages and working condi-          participant will apply for admission to
tions comparable to those accorded to         the United States.
local domestic workers similarly em-             (iii) Service, labor, or training in more
ployed.                                       than one location. A petition which re-
   (iii) Supporting documentation as          quires the cultural visitor to engage in
prescribed in paragraphs (q)(4)(i) and        employment or training (with the same
(q)(4)(ii) of this section must accom-        employer) in more than one location
pany a petition filed on Form I–129 in        must include an itinerary with the
all cases except where the employer           dates and locations of the services,
files multiple petitions in the same cal-     labor, or training.
endar year. When petitioning to repeat           (iv) Services, labor, or training for more
a previously approved cultural ex-
                                              than one employer. If the cultural visi-
change program, a copy of the initial
                                              tor will perform services or labor for,
program approval notice may be sub-
                                              or receive training from, more than
mitted in lieu of the documentation re-
quired under paragraph (q)(4)(i) of this      one employer, each employer must file
section. The Service will request addi-       a separate petition with the service
tional documentation only when clari-         center having jurisdiction over the
fication is needed.                           area where the alien will perform serv-
   (5) Filing of petitions—(i) General. A     ices or labor, or receive training. The
United States employer seeking to             cultural visitor may work part-time
bring in cultural visitors must file a        for multiple employers provided that
petition on Form I-129, Petition for a        each employer has an approved peti-
Nonimmigrant Worker, with the appli-          tion for the alien.
cable fee, along with appropriate docu-          (v) Change of employers. If a cultural
mentation. The petition and accom-            visitor is in the United States under
panying documentation should be filed         section 101(a)(15)(Q) of the Act and de-
with either the service center having         cides to change employers, the new em-
jurisdiction over the employer’s head-        ployer must file a petition. However,
quarters or the service center having         the total period of time the cultural
jurisdiction over the area where the          visitor may stay in the United States
cultural visitors will perform services       remains limited to fifteen (15) months.
or labor or will receive training. A new         (6) Substitution or replacement of par-
petition on Form I–129, with the appli-       ticipants. The petitioner may substitute
cable fee, must be filed with the appro-      for or replace a person named on a pre-
priate service center each time a quali-      viously approved petition for the re-
fied employer wants to bring in addi-         mainder of the program without filing
tional cultural visitors. Each person         a new Form I–129. The substituting cul-
named on an approved petition will be
                                              tural visitor must meet the qualifica-
admitted only for the duration of the
                                              tion requirements prescribed in para-
approved program. Replacement or
                                              graph (q)(3)(iv) of this section. To re-
substitution may be made for any per-
son named on an approved petition as          quest substitution or replacement, the
provided in paragraph (q)(6) of this sec-     petitioner shall, by letter, notify the
tion, but only for the remainder of the       consular office at which the alien will
approved program.                             apply for a visa or, in the case of visa-
   (ii) Petition for multiple participants.   exempt aliens, the Service office at the
The petitioner may include more than          port of entry where the alien will apply
one participant on the petition. The pe-      for admission. A copy of the petition’s
titioner shall include the name, date of      approval notice must be included with
birth, nationality, and other identify-       the letter. The petitioner must state
ing information required on the peti-         the date of birth, country of national-
tion for each participant. The peti-          ity, level of education, and position
tioner must also indicate the United          title of each prospective cultural visi-
States consulate at which each partici-       tor and must certify that each is quali-
pant will apply for a Q visa. For par-        fied to perform the service or labor or
ticipants who are visa-exempt under 8         receive the type of training described
CFR 212.1(a), the petitioner must indi-       in the approved petition. The peti-
cate the port of entry at which each          tioner must also indicate each cultural

                                          320
Immigration and Naturalization Service, Justice                                  § 214.2

visitor’s wages and certify that the cul-       (iii) Revocation on notice. The director
tural visitor is offered wages and work-      shall send the petitioner a notice of in-
ing conditions comparable to those ac-        tent to revoke the petition in whole or
corded to local domestic workers in ac-       in part if he or she finds that:
cordance with paragraph (q)(11)(ii) of          (A) The cultural visitor is no longer
this section.                                 employed by the petitioner in the ca-
   (7) Approval of petition—(i) The direc-    pacity specified in the petition, or if
tor shall consider all the evidence sub-      the cultural visitor is no longer receiv-
mitted and request other evidence as          ing training as specified in the peti-
he or she may deem necessary.                 tion;
   (ii) The director shall notify the peti-     (B) The statement of facts contained
tioner and the appropriate United             in the petition was not true and cor-
States consulate(s) of the approval of a      rect;
petition. For participants who are visa-        (C) The petitioner violated the terms
exempt under 8 CFR 212.1(a), the direc-       and conditions of the approved peti-
tor shall give notice of the approval to      tion; or
the director of the port of entry at
                                                (D) The Service approved the petition
which each such participant will apply
                                              in error.
for admission to the United States. The
notice of approval shall include the            (iv) Notice and decision. The notice of
name of the cultural visitors, their          intent to revoke shall contain a de-
classification, and the petition’s period     tailed statement of the grounds for the
of validity.                                  revocation and the period of time al-
   (iii) An approved petition for an alien    lowed for the petitioner’s rebuttal. The
classified under section 101(a)(15)(Q) of     petitioner may submit evidence in re-
the Act is valid for the length of the        buttal within 30 days of receipt of the
approved program or fifteen (15)              notice. The director shall consider all
months, whichever is shorter.                 relevant evidence presented in deciding
   (iv) A petition shall not be approved      whether to revoke the petition in
for an alien who has an aggregate of          whole or in part. If the petition is re-
fifteen (15) months in the United States      voked in part, the remainder of the pe-
under section 101(a)(15)(Q) of the Act,       tition shall remain approved and a re-
unless the alien has resided and been         vised approval notice shall be sent to
physically present outside the United         the petitioner with the revocation no-
States for the immediate prior year.          tice.
   (8) Denial of the petition—(i) Notice of     (v) Appeal of a revocation of a petition.
denial. The petitioner shall be notified      Revocation with notice of a petition in
of the denial of a petition, the reasons      whole or in part may be appealed to
for the denial, and the right to appeal       the Associate Commissioner for Exami-
the denial under part 103 of this chap-       nations under part 103 of this chapter.
ter.                                          Automatic revocation may not be ap-
   (ii) Multiple participants. A petition     pealed.
for multiple cultural visitors may be           (10) Extension of stay. An alien’s total
denied in whole or in part.                   period of stay in the United States
   (9) Revocation of approval of petition—    under section 101(a)(15)(Q) of the Act
(i) General. The petitioner shall imme-       cannot exceed fifteen (15) months. The
diately notify the appropriate Service        authorized stay of a cultural visitor
center of any changes in the employ-          may be extended within the 15-month
ment of a participant which would af-         limit if he or she is the beneficiary of
fect eligibility under paragraph (q) of       a new petition filed in accordance with
this section.                                 paragraph (q)(3) of this section. The
   (ii) Automatic revocation. The ap-         new petition, if filed by the same em-
proval of any petition is automatically       ployer, should include a copy of the
revoked if the qualifying employer            previous petition’s approval notice and
goes out of business, files a written         a letter from the petitioner indicating
withdrawal of the petition, or termi-         any terms and conditions of the pre-
nates the approved international cul-         vious petition that have changed.
tural exchange program prior to its ex-         (11) Employment provisions—(i) Gen-
piration date.                                eral. An alien classified under section

                                          321
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

101(a)(15)(Q) of the Act may be em-          means an organization which is both
ployed only by the qualified employer        closely associated with the religious
through which the alien attained Q           denomination and exempt from tax-
nonimmigrant status. An alien in this        ation as described in section 501(c)(3) of
class is not required to apply for an        the Internal Revenue Code of 1986 as it
employment authorization document.           relates to religious organizations.
Employment outside the specific pro-           Minister means an individual duly au-
gram violates the terms of the alien’s       thorized by a recognized religious de-
Q nonimmigrant status within the             nomination to conduct religious wor-
meaning of section 241(a)(1)(C)(i) of the    ship and to perform other duties usu-
Act.                                         ally performed by authorized members
   (ii) Wages and working conditions. The    of the clergy of that religion. In all
wages and working conditions of a cul-       cases, there must be a reasonable con-
tural visitor must be comparable to          nection between the activities per-
those accorded to domestic workers           formed and the religious calling of the
similarly employed in the geographical       minister. The term does not include a
area of the alien’s employment. The          lay preacher not authorized to perform
employer must certify on the petition        such duties.
that such conditions are met as in ac-         Professional capacity means an activ-
cordance with paragraph (q)(4)(iii)(B)       ity in a religious vocation or occupa-
of this section.                             tion for which the minimum of a
   (r) Religious workers—(1) General.        United States baccalaureate degree or
Under section 101(a)(15)(R) of the Act,      a foreign equivalent degree is required.
an alien who, for at least the two (2)         Religious denomination means a reli-
years immediately preceding the time         gious group or community of believers
of application for admission, has been a     having some form of ecclesiastical gov-
member of a religious denomination           ernment, a creed or statement of faith,
having a bona fide nonprofit religious       some form of worship, a formal or in-
organization in the United States, may       formal code of doctrine and discipline,
be admitted temporarily to the United        religious services and ceremonies, es-
States to carry on the activities of a       tablished places of religious worship,
religious worker for a period not to ex-     and religious congregations, or com-
ceed five (5) years. The alien must be       parable indicia of a bona fide religious
coming to the United States for one of       denomination. For the purposes of this
the following purposes: solely to carry      definition, an interdenominational re-
on the vocation of a minister of the re-     ligious organization which is exempt
ligious denomination; to work for the        from taxation pursuant to section
religious organization at the request of     501(c)(3) of the Internal Revenue Code
the organization in a professional ca-       of 1986 will be treated as a religious de-
pacity; or to work for the organization,     nomination.
or a bona fide organization which is af-       Religious occupation means an activ-
filiated with the religious denomina-        ity which relates to a traditional reli-
tion, at the request of the organization     gious function. Examples of persons in
in a religious vocation or occupation.       religious occupations include, but are
   (2) Definitions. As used in this sec-     not limited to, liturgical workers, reli-
tion:                                        gious instructors, religious conselors,
   Bona fide nonprofit religious organiza-   cantors, catechists, workers in reli-
tion in the United States means an orga-     gious hospitals or religious health care
nization exempt from taxation as de-         facilities, missionaries, religious trans-
scribed in section 501(c)(3) of the Inter-   lators, or religious broadcasters. This
nal Revenue Code of 1986 as it relates       group does not include janitors, main-
to religious organizations, or one that      tenance workers, clerks, fund raisers,
has never sought such exemption but          or persons involved solely in the solici-
establishes to the satisfaction of the       tation of donations.
Service that it would be eligible there-       Religious vocation means a calling to
for if it had applied for tax exempt sta-    religious life evidenced by the dem-
tus.                                         onstration of commitment practiced in
   Bona fide organization which is affili-   the religious denomination, such as the
ated with the religious denomination         taking of vows. Examples of persons

                                         322
Immigration and Naturalization Service, Justice                                § 214.2

with a religious vocation include, but       alien in exchange for services rendered.
are not limited to, nuns, monks, and         This letter must establish:
religious brothers and sisters.                (A) That, if the alien’s religious
   (3) Initial evidence. An alien seeking    membership was maintained, in whole
classification as a nonimmigrant reli-       or in part, outside the United States,
gious worker shall present to a United       the foreign and United States religious
States consular officer, or, if visa ex-     organizations belong to the same reli-
empt, to an immigration officer at a         gious denomination;
United States port of entry, docu-             (B) That, immediately prior to the
mentation which establishes to the sat-      application for the nonimmigrant visa
isfaction of the consular or immigra-        or application for admission to the
tion officer that the alien will be pro-     United States, the alien has the re-
viding services to a bona fide nonprofit     quired two (2) years of membership in
religious organization in the United         the religious denomination;
States or to an affiliated religious or-       (C) As appropriate:
ganization as defined in paragraph
                                               (1) That, if the alien is a minister, he
(r)(2) of this section, and that the alien
                                             or she is authorized to conduct reli-
meets the criteria to perform such
                                             gious worship for that denomination
services. If the alien is in the United
                                             and to perform other duties usually
States in another valid nonimmigrant
                                             performed by authorized members of
classification and desires to change
                                             the clergy of that denomination, in-
nonimmigrant status to classification
                                             cluding a detailed description of those
as a nonimmigrant religious worker,
                                             duties;
this documentation should be pre-
sented with an application for change          (2) That, if the alien is a religious
of status (Form I–129, Petition for a        professional, he or she has at least a
Nonimmigrant Worker). The docu-              United States baccalaureate degree or
mentation shall consist of:                  its foreign equivalent and that at least
   (i) Evidence that the organization        such a degree is required for entry into
qualifies as a non-profit organization,      the religious profession; or
in the form of either:                         (3) That, if the alien is to work in an-
   (A) Documentation showing that it is      other religious vocation or occupation,
exempt from taxation in accordance           he or she is qualified in the religious
with section 501(c)(3) of the Internal       vocation or occupation. Evidence of
Revenue Code of 1986 as it relates to re-    such qualifications may include, but
ligious organizations (in appropriate        need not be limited to, evidence estab-
cases, evidence of the organization’s        lishing that the alien is a monk, nun,
assets and methods of operation and          or religious brother or that the type of
the organization’s papers of incorpora-      work to be done relates to a traditional
tion under applicable State law may be       religious function;
requested); or                                 (D) The arrangements made, if any,
   (B) Such documentation as is re-          for remuneration for services to be ren-
quired by the Internal Revenue Service       dered by the alien, including the
to establish eligibility for exemption       amount and source of any salary, a de-
under section 501(c)(3) of the Internal      scription of any other types of remu-
Revenue Code of 1986 as it relates to re-    neration to be received (including
ligious organizations; and                   housing, food, clothing, and any other
   (ii) A letter from an authorized offi-    benefits to which a monetary value
cial of the specific organizational unit     may be affixed), and a statement
of the religious organization which will     whether such remuneration shall be in
be employing the alien or engaging the       exchange for services rendered;
alien’s services in the United States. If      (E) The name and location of the spe-
the alien is to be employed, this letter     cific organizational unit of the reli-
should come from the organizational          gious organization for which the alien
unit that will maintain the alien’s          will be providing services within the
Form I–9, Employment Eligibility Ver-        United States; and
ification, that is, the organizational         (F) If the alien is to work in a non-
unit that is either paying the alien a       ministerial and nonprofessional capac-
salary or otherwise remunerating the         ity for a bona fide organization which

                                         323
§ 214.2                                                  8 CFR Ch. I (1–1–98 Edition)

is affiliated with a religious denomina-     ment. The petition must be accom-
tion, the existence of the affiliation;      panied by evidence establishing that
and                                          the alien will continue to qualify as a
   (iii) Any appropriate additional evi-     religious worker under this section.
dence which the examining officer may        Any unauthorized change to a new reli-
request relating to the religious orga-      gious organizational unit will con-
nization, the alien, or the affiliated or-   stitute a failure to maintain status
ganization. Such additional docu-            within     the     meaning    of   section
mentation may include, but need not          241(a)(1)(C)(i) of the Act.
be limited to, diplomas, degrees, finan-       (7) Limitation on stay. An alien who
cial statements, or certificates of ordi-    has spent five (5) years in the United
nation. No prior petition, labor certifi-    States under section 101(a)(15)(R) of the
cation, or prior approval shall be re-       Act may not be readmitted to the
quired.                                      United States under the R visa classi-
   (4) Initial admission. The initial ad-    fication unless the alien has resided
mission of a religious worker, spouse,       and been physically present outside the
and unmarried children under twenty-         United States for the immediate prior
one years of age shall not exceed three      year, except for brief visits for business
(3) years. A Form I–94, Arrival-Depar-       or pleasure. Such visits do not end the
ture Record, shall be provided to every      period during which an alien is consid-
alien who qualifies for admission as an      ered to have resided and been phys-
R nonimmigrant. The Form I–94 for the        ically present outside the United
religious worker shall be endorsed with      States, but time spent during such vis-
the name and location of the specific        its does not count toward the require-
organizational unit of the religious or-     ment of this paragraph.
ganization for which the alien will be         (8) Spouse and children. The religious
providing services within the United         worker’s spouse and unmarried chil-
States. The admission symbol for the         dren under twenty-one years of age are
religious worker shall be R–1; the ad-       entitled to the same nonimmigrant
mission symbol for the worker’s spouse       classification and length of stay as the
and childen shall be R–2.                    religious worker, if the religious work-
   (5) Extension of stay. The organiza-      er will be employed and residing pri-
tional unit of the religious organiza-       marily in the United States, and if the
tion employing the nonimmigrant reli-        spouse and unmarried minor children
gious worker admitted under this sec-        are accompanying or following to join
tion shall use Form I–129, Petition for      the religious worker in the United
a Nonimmigrant Worker, along with            States. Neither the spouse nor any
the appropriate fee, to extend the stay      child may accept employment while in
of the worker. The petition shall be         the United States in R–2 nonimmigrant
filed at the Service Center having ju-       status.
risdiction over the place of employ-           (s) NATO aliens—(1) General. Aliens
ment. An extension may be authorized         classified as NATO–1 through NATO–4
for a period of up to two (2) years. The     are members of the armed forces of a
worker’s total period of stay may not        country signatory to Article III of the
exceed five (5) years. The petition must     Status of Forces Agreement (NATO).
be accompanied by a letter from an au-       They are normally exempt from inspec-
thorized official of the organizational      tion under 8 CFR 235.1(c). Aliens classi-
unit confirming the worker’s continu-        fied as NATO–5 or –6 are civilian em-
ing eligibility for classification as an     ployees of the armed forces of a NATO
R–1 nonimmigrant.                            member and may be authorized admis-
   (6) Change of employers. A different or   sion for the duration of employment
additional organizational unit of the        and assignment with the NATO mem-
religious denomination seeking to em-        ber in the United States. Aliens classi-
ploy or engage the services of a reli-       fied as NATO–7 who are employed by
gious worker admitted under this sec-        NATO–1 through NATO–4 aliens may be
tion shall file Form I–129 with the ap-      admitted for duration of status; if em-
propriate fee. The petition shall be         ployed by NATO–5 or –6 aliens, admis-
filed with the Service Center having ju-     sion may be authorized for not more
risdiction over the place of employ-         than two years.

                                         324
Immigration and Naturalization Service, Justice                                    § 214.2

   (2) Extensions of Stay. Any alien clas-        (iv) Is eligible to receive a reward
sified as a NATO–7 as the employee of          under section 36(a) of the State Depart-
a NATO–5 or –6 may be granted exten-           ment Basic Authorities Act of 1956, 22
sions of stay in increments of not more        U.S.C. 2708(a).
than one year.                                    (3) Spouse, married and unmarried sons
   (3) Employment. The dependents of an        and daughters, and parents of alien wit-
alien      classified   NATO–1      through    ness or informant in criminal or
NATO–7 may request authorization for           counterterrorism matter. An alien spouse,
employment if the state of their na-           married or unmarried son or daughter,
tionality has a reciprocal employment          or parent of an alien witness or inform-
agreement with the Department of               ant may be granted derivative S classi-
State. The names of the foreign states         fication (S–7) when accompanying, or
which have reciprocal employment               following to join, the alien witness or
agreements are available from the De-          informant if, in the exercise of discre-
partment of State, Office of Consular          tion by, with respect to paragraph
Affairs, and the District Offices of the       (t)(1) of this section, the Commis-
Service.                                       sioner, or, with respect to paragraph
   (t) Alien witnesses and informants—(1)      (t)(2) of this section, the Secretary of
Alien witness or informant in criminal         State and the Commissioner acting
matter. An alien may be classified as an       jointly, consider it to be appropriate. A
S–5 alien witness or informant under           nonimmigrant in such derivative S–7
the provisions of section 101(a)(15)(S)(i)     classification shall be subject to the
of the Act if, in the exercise of discre-      same period of admission, limitations,
tion pursuant to an application on             and restrictions as the alien witness or
Form I–854 by an interested federal or         informant and must be identified by
state      law    enforcement     authority    the requesting LEA on the application
(‘‘LEA’’), it is determined by the Com-        Form I–854 in order to qualify for S
missioner that the alien:                      nonimmigrant classification. Family
   (i) Possesses critical reliable infor-      members not identified on the Form I–
mation concerning a criminal organi-           854 application will not be eligible for S
zation or enterprise;                          nonimmigrant classification.
   (ii) Is willing to supply, or has sup-         (4) Request for S nonimmigrant classi-
plied, such information to federal or          fication. An application on Form I–854,
state LEA; and                                 requesting S nonimmigrant classifica-
   (iii) Is essential to the success of an     tion for a witness or informant, may
authorized criminal investigation or           only be filed by a federal or state LEA
the successful prosecution of an indi-         (which shall include a federal or state
vidual involved in the criminal organi-        court or a United States Attorney’s Of-
zation or enterprise.                          fice) directly in need of the informa-
   (2) Alien witness or informant in           tion to be provided by the alien witness
counterterrorism matter. An alien may be       or informant. The completed applica-
classified       as    an     S–6      alien   tion is filed with the Assistant Attor-
counterterrorism witness or informant          ney General, Criminal Division, De-
under       the   provisions   of    section   partment of Justice, who will forward
101(a)(15)(S)(ii) of the Act if it is deter-   only properly certified applications
mined by the Secretary of State and            that fall within the numerical limita-
the Commissioner acting jointly, in the        tion to the Commissioner, Immigration
exercise of their discretion, pursuant         and Naturalization Service, for ap-
to an application on Form I–854 by an          proval, pursuant to the following proc-
interested federal LEA, that the alien:        ess.
   (i) Possesses critical reliable infor-         (i) Filing request. For an alien to qual-
mation concerning a terrorist organi-          ify for status as an S nonimmigrant, S
zation, enterprise, or operation;              nonimmigrant classification must be
   (ii) Is willing to supply or has sup-       requested by an LEA. The LEA shall
plied such information to a federal            recommend an alien for S non-
LEA;                                           immigrant classification by: Complet-
   (iii) Is in danger or has been placed in    ing Form I–854, with all necessary en-
danger as a result of providing such in-       dorsements and attachments, in ac-
formation; and                                 cordance with the instructions on, or

                                           325
§ 214.2                                                   8 CFR Ch. I (1–1–98 Edition)

attached to, that form, and agreeing,         conditions which may constitute a
as a condition of status, that no prom-       ground or grounds of excludability, and
ises may be, have been, or will be made       all factors and considerations warrant-
by the LEA that the alien will or may         ing a favorable exercise of discre-
remain in the United States in S or           tionary waiver authority by the Attor-
any other nonimmigrant classification         ney General on the alien’s behalf. The
or parole, adjust status to that of law-      attachments submitted with a request
ful permanent resident, or otherwise          for S nonimmigrant classification may
attempt to remain beyond a 3-year pe-         be in the form of affidavits, state-
riod other than by the means author-          ments, memoranda, or similar docu-
ized by section 101(a)(15)(S) of the Act.     mentation. The LEA shall review Form
The alien, including any derivative           I–854 for accuracy and ensure the alien
beneficiary who is 18 years or older,         understands the certifications made on
shall sign a statement, that is part of       Form I–854.
or affixed to Form I–854, acknowledg-           (D) Filing procedure. Upon completion
ing awareness that he or she is re-           of Form I–854, the LEA shall forward
stricted by the terms of S non-               the form and all required attachments
immigrant classification to the specific      to the Assistant Attorney General,
terms of section 101(a)(15)(S) of the Act     Criminal Division, United States De-
as the exclusive means by which he or         partment of Justice, at the address
she may remain permanently in the             listed on the form.
United States.                                  (ii) Assistant Attorney General, Crimi-
  (A) District director referral. Any dis-    nal Division review—(A) Review of infor-
trict director or Service officer who re-     mation. Upon receipt of a complete ap-
ceives a request by an alien, an eligible     plication for S nonimmigrant classi-
LEA, or other entity seeking S non-           fication on Form I–854, with all re-
immigrant classification shall advise         quired attachments, the Assistant At-
the requestor of the process and the re-      torney General, Criminal Division,
quirements for applying for S non-            shall ensure that all information relat-
immigrant      classification.     Eligible   ing to the basis of the application, the
LEAs seeking S nonimmigrant classi-           need for the witness or informant, and
fication shall be referred to the Com-        grounds of excludability under section
missioner.                                    212 of the Act has been provided to the
  (B) United States Attorney certification.   Service on Form I–854, and shall con-
The United States Attorney with juris-        sider the negative and favorable factors
diction over a prosecution or investiga-      warranting an exercise of discretion on
tion that forms the basis for a request       the alien’s behalf. No application may
for S nonimmigrant classification             be acted on by the Assistant Attorney
must certify and endorse the applica-         General unless the eligible LEA mak-
tion on Form I–854 and agree that no          ing the request has proceeded in ac-
promises may be, have been, or will be        cordance with the instructions on, or
made that the alien will or may remain        attached to, Form I–854 and agreed to
in the United States in S or any other        all provisions therein.
nonimmigrant classification or parole,          (B) Advisory panel. Where necessary
adjust status to lawful permanent resi-       according to procedures established by
dent, or attempt to remain beyond the         the Assistant Attorney General, Crimi-
authorized period of admission.               nal Division, an advisory panel, com-
  (C) LEA certification. LEA certifi-         posed of representatives of the Service,
cations on Form I–854 must be made at         Marshals Service, Federal Bureau of
the seat-of-government level, if federal,     Investigation, Drug Enforcement Ad-
or the highest level of the state LEA         ministration, Criminal Division, and
involved in the matter. With respect to       the Department of State, and those
the alien for whom S nonimmigrant             representatives of other LEAs, includ-
classification is sought, the LEA shall       ing state and federal courts designated
provide evidence in the form of attach-       by the Attorney General, will review
ments establishing the nature of the          the completed application and submit
alien’s cooperation with the govern-          a recommendation to the Assistant At-
ment, the need for the alien’s presence       torney General, Criminal Division, re-
in the United States, all conduct or          garding requests for S nonimmigrant

                                          326
Immigration and Naturalization Service, Justice                                § 214.2

classification. The function of this ad-     section 212 of the Act is delegated to
visory panel is to prioritize cases in       the Commissioner and shall be exer-
light of the numerical limitation in         cised with regard to S nonimmigrant
order to determine which cases will be       classification only upon the certifi-
forwarded to the Commissioner.               cation of the Assistant Attorney Gen-
  (C) Assistant Attorney General certifi-    eral, Criminal Division. Such certifi-
cation. The certification of the Assist-     cation is nonreviewable as to the mat-
ant Attorney General, Criminal Divi-         ter’s significance, importance, and/or
sion, to the Commissioner recommend-         worthwhileness to law enforcement.
ing approval of the application for S        The Commissioner shall make the final
nonimmigrant classification shall con-       decision to approve or deny a request
tain the following:                          for S nonimmigrant classification cer-
  (1) All information and attachments        tified by the Assistant Attorney Gen-
that may constitute, or relate to, a         eral, Criminal Division.
ground or grounds of excludability             (ii) Decision to approve application.
under section 212(a) of the Act;             Upon approval of the application on
  (2) Each section of law under which        Form I–854, the Commissioner shall no-
the alien appears to be inadmissible;        tify the Assistant Attorney General,
  (3) The reasons that waiver(s) of in-      Criminal Division, the Secretary of
admissibility are considered to be jus-      State, and Service officers as appro-
tifiable and in the national interest;       priate. Admission shall be authorized
  (4) A detailed statement that the          for a period not to exceed 3 years.
alien is eligible for S nonimmigrant           (iii) Decision to deny application. In
classification, explaining the nature of     the event the Commissioner decides to
the alien’s cooperation with the gov-        deny an application for S non-
ernment and the government’s need for        immigrant classification on Form I–
the alien’s presence in the United           854, the Assistant Attorney General,
States;
                                             Criminal Division, and the relevant
  (5) The intended date of arrival;
                                             LEA shall be notified in writing to that
  (6) The length of the proposed stay in
                                             effect. The Assistant Attorney General,
the United States;
                                             Criminal Division, shall concur in or
  (7) The purpose of the proposed stay;
                                             object to that decision. Unless the As-
and
                                             sistant Attorney General, Criminal Di-
  (8) A statement that the application
                                             vision, objects within 7 days, he or she
falls within the statutorily specified
                                             shall be deemed to have concurred in
numerical limitation.
                                             the decision. In the event of an objec-
  (D) Submission of certified requests for
S nonimmigrant classification to Service.    tion by the Assistant Attorney Gen-
(1) The Assistant Attorney General,          eral, Criminal Division, the matter will
Criminal Division, shall forward to the      be expeditiously referred to the Deputy
Commissioner only qualified applica-         Attorney General for a final resolution.
tions for S–5 nonimmigrant classifica-       In no circumstances shall the alien or
tion that have been certified in accord-     the relevant LEA have a right of ap-
ance with the provisions of this para-       peal from any decision to deny.
graph and that fall within the annual          (6) Submission of requests for S non-
numerical limitation.                        immigrant visa classification to Secretary
  (2) The Assistant Attorney General         of State. No request for S non-
Criminal Division, shall forward to the      immigrant visa classification may be
Commissioner applications for S–6 non-       presented to the Secretary of State un-
immigrant classification that have           less it is approved and forwarded by the
been certified in accordance with the        Commissioner.
provisions of this paragraph, certified        (7) Conditions of status. An alien wit-
by the Secretary of State or eligibility     ness or informant is responsible for
for S–6 classification, and that fall        certifying and fulfilling the terms and
within the annual numerical limita-          conditions specified on Form I–854 as a
tion.                                        condition of status. The LEA that as-
  (5) Decision on application. (i) The At-   sumes responsibility for the S non-
torney General’s authority to waive          immigrant must:
grounds of excludability pursuant to           (i) Ensure that the alien:

                                         327
§ 214.2                                                8 CFR Ch. I (1–1–98 Edition)

  (A) Reports quarterly to the LEA on        (9) Admission. The responsible LEA
his or her whereabouts and activities,     will coordinate the admission of an
and as otherwise specified on Form I–      alien in S nonimmigrant classification
854 or pursuant to the terms of his or     with the Commissioner as to the date,
her S nonimmigrant classification;         time, place, and manner of the alien’s
  (B) Notifies the LEA of any change of    arrival.
home or work address and phone num-          (10) Employment. An alien classified
bers or any travel plans;                  under section 101(a)(15)(S) of the Act
  (C) Abides by the law and all speci-     may apply for employment authoriza-
fied terms, limitations, or restrictions   tion by filing Form I–765, Application
on the visa, Form I–854, or any waivers    for Employment Authorization, with
pursuant to classification; and            fee, in accordance with the instruc-
  (D) Cooperates with the responsible      tions on, or attached to, that form pur-
LEA in accordance with the terms of        suant to § 274a.12(c)(21) of this chapter.
his or her classification and any re-        (11) Failure to maintain status. An
strictions on Form I–854;                  alien     classified    under      section
  (ii) Provide the Assistant Attorney      101(a)(15)(S) of the Act shall abide by
General, Criminal Division, with the       all the terms and conditions of his or
name of the control agent on an ongo-      her S nonimmigrant classification im-
ing basis and provide a quarterly re-      posed by the Attorney General. If the
port indicating the whereabouts, ac-       terms and conditions of S non-
tivities, and any other control informa-   immigrant classification will not be or
tion required on Form I–854 or by the      have not been met, or have been vio-
Assistant Attorney General;                lated, the alien is convicted of any
  (iii) Report immediately to the Serv-    criminal offense punishable by a term
ice any failure on the alien’s part to:    of imprisonment of 1 year or more, is
  (A) Report quarterly;                    otherwise rendered deportable, or it is
  (B) Cooperate with the LEA;              otherwise appropriate or in the public
  (C) Comply with the terms and condi-     interest to do so, the Commissioner
tions of the specific S nonimmigrant       shall proceed to deport an alien pursu-
classification; or                         ant to the terms of 8 CFR 242.26. In the
  (D) Refrain from criminal activity       event the Commissioner decides to de-
that may render the alien deportable,      port an alien witness or informant in S
which information shall also be for-       nonimmigrant classification, the As-
warded to the Assistant Attorney Gen-      sistant Attorney General, Criminal Di-
eral, Criminal Division; and               vision, and the relevant LEA shall be
  (iv) Report annually to the Assistant    notified in writing to that effect. The
Attorney General, Criminal Division,       Assistant Attorney General, Criminal
on whether the alien’s S nonimmigrant      Division, shall concur in or object to
classification and cooperation resulted    that decision. Unless the Assistant At-
in either:                                 torney General, Criminal Division, ob-
  (A) A successful criminal prosecution    jects within 7 days, he or she shall be
or investigation or the failure to         deemed to have concurred in the deci-
produce a successful resolution of the     sion. In the event of an objection by
matter; or                                 the Assistant Attorney General, Crimi-
  (B) The prevention or frustration of     nal Division, the matter will be expedi-
terrorist acts or the failure to prevent   tiously referred to the Deputy Attor-
such acts.                                 ney General for a final resolution. In
  (v) Assist the alien in his or her ap-   no circumstances shall the alien or the
plication to the Service for employ-       relevant LEA have a right of appeal
ment authorization.                        from any decision to deport.
  (8) Annual report. The Assistant At-       (12) Change of classification. (i) An
torney General, Criminal Division, in      alien in S nonimmigrant classification
consultation with the Commissioner,        is prohibited from changing to any
shall compile the statutorily mandated     other nonimmigrant classification.
annual report to the Committee on the        (ii) An LEA may request that any
Judiciary of the House of Representa-      alien lawfully admitted to the United
tives and the Committee on the Judici-     States and maintaining status in ac-
ary of the Senate.                         cordance with the provisions of § 248.1

                                       328
Immigration and Naturalization Service, Justice                                      § 214.3

of this chapter, except for those aliens             (G) An institution which provides
enumerated in 8 CFR 248.2, have his or             language training, instruction in the
her     nonimmigrant       classification          liberal arts or fine arts, instruction in
changed to that of an alien classified             the professions, or instruction or train-
pursuant to section 101(a)(15)(S) of the           ing in more than one of these dis-
Act as set forth in 8 CFR 248.3(h).                ciplines.
                                                     (ii) M–1 classification. The following
(Title VI of the Health Professions Edu-           schools are considered to be vocational
cational Assistance Act of 1976 (Pub. L. 94–       or nonacademic institutions and may
484; 90 Stat. 2303); secs. 103 and 214, Immigra-   be approved for attendance by non-
tion and Nationality Act (8 U.S.C. 1103 and
                                                   immigrant students under section
1184))
                                                   101(a)(15)(M)(i) of the Act:
[38 FR 35425, Dec. 28, 1973]                         (A) A community college or junior
  EDITORIAL NOTE: For FEDERAL REGISTER ci-         college which provides vocational or
tations affecting § 214.2, see the List of CFR     technical training and which awards
Sections Affected in the Finding Aids sec-         recognized associate degrees.
tion in this volume.                                 (B) A vocational high school.
                                                     (C) A school which provides voca-
§ 214.3 Petitions        for   approval      of    tional or nonacademic training other
    schools.
                                                   than language training.
  (a) Filing petition—(1) General. A                 (iii) Both F–1 and M–1 classification. A
school or school system seeking ap-                school may be approved for attendance
proval for attendance by nonimmigrant              by nonimmigrant students under both
students under sections 101(a)(15)(F)(i)           sections         101(a)(15)(F)(i)      and
or 101 (a)(15)(M)(i) of the Act, or both,          101(a)(15)(M)(i) of the Act if it has both
shall file a petition on Form I–17 with            instruction in the liberal arts, fine
the district director having jurisdic-             arts, language, religion, or the profes-
tion over the place in which the school            sions and vocational or technical train-
or school system is located. Separate              ing. In that case, a student whose pri-
petitions are required for different               mary intent is to pursue studies in lib-
schools in the same school system lo-              eral arts, fine arts, language, religion,
cated within the jurisdiction of dif-              or the professions at the school is clas-
ferent district directors. A petition by           sified as a nonimmigrant under section
a school system must specifically iden-            101(a)(15)(F)(i) of the Act. A student
tify by name and address those schools             whose primary intent is to pursue vo-
included in the petition. The petition             cational or technical training at the
must also state whether the school or              school is classified as a nonimmigrant
school system is seeking approval for              under section 101(a)(15)(M)(i) of the
attendance of nonimmigrant students                Act.
under     section     101(a)(15)(F)(i)  or           (iv) English language training for a vo-
101(a)(15)(M)(i) of the Act or both.               cational student. A student whose pri-
  (2) Approval for F–1 or M–1 classifica-          mary intent is to pursue vocational or
tion, or both—(i) F–1 classification. The          technical training who takes English
following schools may be approved for              language training at the same school
attendance by nonimmigrant students                solely for the purpose of being able to
under section 101(a)(15)(F)(i) of the Act:         understand the vocational or technical
  (A) A college or university, i.e., an            course of study is classified as a non-
institution of higher learning which               immigrant            under         section
awards recognized bachelor’s, master’s             101(a)(15)(M)(i) of the Act.
doctor’s or professional degrees.                    (b) Supporting documents. Pursuant to
  (B) A community college or junior                sections 101(a)(15) (F) and (M) of the
college which provides instruction in              Immigration and Nationality Act, the
the liberal arts or in the professions             Service has consulted with the Depart-
and which awards recognized associate              ment of Education and determined that
degrees.                                           petitioning institutions must submit
  (C) A seminary.                                  certain supporting documents as fol-
  (D) A conservatory.                              lows. A petitioning school or school
  (E) An academic high school.                     system owned and operated as a public
  (F) An elementary school.                        educational institution or system by

                                               329

				
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