Cfr 214.2

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

Records, employment verification letters and/or pay-stubs or other employment records, and state health care
worker licenses.
(j) Extension of stay or change of status
for health care worker. In the case of
any alien admitted temporarily as a
nonimmigrant under section 212(d)(3) of
the Act and 8 CFR 212.15(n) for the primary purpose of the providing labor in
a health care occupation described in 8
CFR 212.15(c), the petitioning employer
may file a Form I–129 to extend the approval period for the alien’s classification for the nonimmigrant status. If
the alien is in the United States and is
eligible for an extension of stay or
change of status, the Form I–129 also
serves as an application to extend the
period of the alien’s authorized stay or
to change the alien’s status. Although
the Form I–129 petition may be approved, as it relates to the employer’s
request to classify the alien, the application for an extension of stay or
change of status shall be denied if:
(1) The petitioner or applicant fails
to submit the certification required by
8 CFR 212.15(a) with the petition or application to extend the alien’s stay or
change the alien’s status; or
(2) The petition or application to extend the alien’s stay or change the
alien’s status does include the certification required by 8 CFR 212.15(a), but
the alien obtained the certification
more than 1 year after the date of the
alien’s
admission
under
section
212(d)(3) of the Act and 8 CFR 212.15(n).
While DHS may admit, extend the period of authorized stay, or change the
status of a nonimmigrant health care
worker for a period of 1 year if the
alien does not have certification on or
before July 26, 2004 (or on or before
July 26, 2005, in the case of a citizen of
Canada or Mexico, who, before September 23, 2003, was employed as a TN
or TC nonimmigrant health care worker and held a valid license from a U.S.
jurisdiction), the alien will not be eligible for a subsequent admission,
change of status, or extension of stay
as a health care worker if the alien has
not obtained the requisite certification
1 year after the initial date of admission, change of status, or extension of
stay as a health care worker.

(k) Denial of petitions under section
214(c) of the Act based on a finding by the
Department of Labor. Upon debarment
by the Department of Labor pursuant
to 20 CFR 655.31, USCIS may deny any
petition filed by that petitioner for
nonimmigrant status under section
101(a)(15)(H) (except for status under
sections 101(a)(15)(H)(i)(b1)), (L), (O),
and (P)(i) of the Act) for a period of at
least 1 year but not more than 5 years.
The length of the period shall be based
on the severity of the violation or violations. The decision to deny petitions,
the time period for the bar to petitions,
and the reasons for the time period will
be explained in a written notice to the
petitioner.
[26 FR 12067, Dec. 16, 1961]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 214.1, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

§ 214.2 Special requirements for admission, extension, and maintenance of status.
The general requirements in § 214.1
are modified for the following nonimmigrant classes:
(a) Foreign government officials—(1)
General. The determination by a consular officer prior to admission and the
recognition by the Secretary of State
subsequent to admission is evidence of
the proper classification of a nonimmigrant under section 101(a)(15)(A)
of the Act. An alien who has a nonimmigrant
status
under
section
101(a)(15)(A)(i) or (ii) of the Act is to be
admitted for the duration of the period
for which the alien continues to be recognized by the Secretary of State as
being entitled to that status. An alien
defined in section (101)(a)(15)(A)(iii) of
the Act is to be admitted for an initial
period of not more than three years,
and may be granted extensions of temporary stay in increments of not more
than two years. In addition, the application for extension of temporary stay
must be accompanied by a statement
signed by the employing official stating that he/she intends to continue to
employ the applicant and describing
the type of work the applicant will perform.

269

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00279

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(2) Definition of A–1 or A–2 dependent.
For purposes of employment in the
United States, the term dependent of an
A–1 or A–2 principal alien, as used in
§ 214.2(a), means any of the following
immediate members of the family habitually residing in the same household
as the principal alien who is an officer
or employee assigned to a diplomatic
or consular office in the United States:
(i) Spouse;
(ii) Unmarried children under the age
of 21;
(iii) Unmarried sons or daughters
under the age of 23 who are in full-time
attendance as students at post-secondary educational institutions;
(iv) Unmarried sons or daughters
under the age of 25 who are in full-time
attendance as students at post-secondary educational institutions if a
formal bilateral employment agreement permitting their employment in
the United States was signed prior to
November 21, 1988, and such bilateral
employment agreement does not specify 23 as the maximum age for employment of such sons and daughters. The
Office of Protocol of the Department of
State shall maintain a listing of foreign states with which the United
States has such bilateral employment
agreements;
(v) Unmarried sons or daughters who
are physically or mentally disabled to
the extent that they cannot adequately
care for themselves or cannot establish, maintain or re-establish their own
households. The Department of State
or the Service may require certification(s) as it deems sufficient to document such mental or physical disability; or
(vi) An immediate family member of
an A–1 or A–2 principal alien described
in 22 CFR 41.21(a)(3)(i) to (iv) with A–1
or A–2 nonimmigrant status, who falls
within a category of aliens recognized
by the Department of State as qualifying dependents.
(3) Applicability of a formal bilateral
agreement or an informal de facto arrangement for A–1 or A–2 dependents.
The applicability of a formal bilateral
agreement shall be based on the foreign
state which employs the principal alien
and not on the nationality of the principal alien or dependent. The applicability of an informal de facto arrange-

ment shall be based on the foreign
state which employs the principal
alien, but under a de facto arrangement the principal alien also must be a
national of the foreign state which employs him/her in the United States.
(4) Income tax, Social Security liability;
non-applicability of certain immunities.
Dependents who are granted employment authorization under this section
are responsible for payment of all federal, state and local income, employment and related taxes and Social Security contributions on any remuneration received. In addition, immunity
from civil or administrative jurisdiction in accordance with Article 37 of
the Vienna Convention on Diplomatic
Relations or other international agreements does not apply to these dependents with respect to matters arising
out of their employment.
(5) Dependent employment pursuant to
formal bilateral employment agreements
and informal de facto reciprocal arrangements. (i) The Office of Protocol shall
maintain a listing of foreign states
which have entered into formal bilateral employment agreements. Dependents of an A–1 or A–2 principal alien assigned to official duty in the United
States may accept or continue in unrestricted employment based on such formal bilateral agreements upon favorable recommendation by the Department of State and issuance of employment authorization documentation by
the Service in accordance with 8 CFR
part 274a. The application procedures
are set forth in paragraph (a)(6) of this
section.
(ii) For purposes of this section, an
informal de facto reciprocal arrangement exists when the Department of
State determines that a foreign state
allows appropriate employment on the
local economy for dependents of certain United States officials assigned to
duty in that foreign state. The Office of
Protocol shall maintain a listing of
countries with which such reciprocity
exists. Dependents of an A–1 or A–2
principal alien assigned to official duty
in the United States may be authorized
to accept or continue in employment
based upon informal de facto arrangements upon favorable recommendation
by the Department of State and
issuance of employment authorization

270

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00280

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

by the Service in accordance with 8
CFR part 274a. Additionally, the procedures set forth in paragraph (a)(6) of
this section must be complied with,
and the following conditions must be
met:
(A) Both the principal alien and the
dependent desiring employment are
maintaining A–1 or A–2 status as appropriate;
(B) The principal’s assignment in the
United States is expected to last more
than six months;
(C) Employment of a similar nature
for dependents of United States Government officials assigned to official
duty in the foreign state employing the
principal alien is not prohibited by
that foreign state’s government;
(D) The proposed employment is not
in an occupation listed in the Department of Labor Schedule B (20 CFR part
656), or otherwise determined by the
Department of Labor to be one for
which there is an oversupply of qualified U.S. workers in the area of proposed employment. This Schedule B restriction does not apply to a dependent
son or daughter who is a full-time student if the employment is part-time,
consisting of not more than 20 hours
per week, and/or if it is temporary employment of not more than 12 weeks
during school holiday periods; and
(E) The proposed employment is not
contrary to the interest of the United
States. Employment contrary to the
interest of the United States includes,
but is not limited to, the employment
of A–1 or A–2 dependents: who have
criminal records; who have violated
United States immigration laws or regulations, or visa laws or regulations;
who have worked illegally in the
United States; and/or who cannot establish that they have paid taxes and
social security on income from current
or previous United States employment.
(6) Application procedures. The following procedures are applicable to dependent
employment
applications
under bilateral agreements and de
facto arrangements:
(i) The dependent must submit a
completed Form I–566 to the Department of State through the office, mission, or organization which employs
his/her principal alien. A dependent applying under paragraph (a)(2)(iii) or (iv)

of this section must submit a certified
statement from the post-secondary
educational
institution
confirming
that he/she is pursuing studies on a
full-time basis. A dependent applying
under paragraph (a)(2)(v) of this section
must submit medical certification regarding his/her condition. The certification should identify the dependent
and the certifying physician and give
the physician’s phone number; identify
the condition, describe the symptoms
and provide a prognosis; and certify
that the dependent is unable to maintain a home of his or her own. Additionally, a dependent applying under
the terms of a de facto arrangement
must attach a statement from the prospective employer which includes the
dependent’s name; a description of the
position offered and the duties to be
performed; the salary offered; and
verification that the dependent possesses the qualifications for the position.
(ii) The Department of State reviews
and verifies the information provided,
makes its determination, and endorses
the Form I–566.
(iii) If the Department of State’s endorsement is favorable, the dependent
may apply to USCIS for employment
authorization. When applying to USCIS
for employment authorization, the dependent must present his or her Form
I–566 with a favorable endorsement
from the Department of State and any
additional documentation as may be
required by the Secretary.
(7) Period of time for which employment
may be authorized. If approved, an application to accept or continue employment under this section shall be granted in increments of not more than
three years each.
(8) No appeal. There shall be no appeal from a denial of permission to accept or continue employment under
this section.
(9) Dependents or family members of
principal aliens classified A–3. A dependent or family member of a principal
alien classified A–3 may not be employed in the United States under this
section.
(10) Unauthorized employment. An
alien
classified
under
section
101(a)(15)(A) of the Act who is not a

271

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00281

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

principal alien and who engages in employment outside the scope of, or in a
manner contrary to this section, may
be considered in violation of section
241(a)(1)(C)(i) of the Act. An alien who
is classified under section 101(a)(15)(A)
of the Act who is a principal alien and
who engages in employment outside
the scope of his/her official position
may be considered in violation of section 241(a)(1)(C)(i) of the Act.
(b) Visitors—(1) General. Any B–1 visitor for business or B–2 visitor for
pleasure may be admitted for not more
than one year and may be granted extensions of temporary stay in increments of not more than six months
each, except that alien members of a
religious denomination coming temporarily and solely to do missionary work
in behalf of a religious denomination
may be granted extensions of not more
than one year each, provided that such
work does not involve the selling of articles or the solicitation or acceptance
of donations. Those B–1 and B–2 visitors admitted pursuant to the waiver
provided at § 212.1(e) of this chapter
may be admitted to and stay on Guam
for period not to exceed fifteen days
and are not eligible for extensions of
stay.
(2) Minimum six month admissions. Any
B–2 visitor who is found otherwise admissible and is issued a Form I–94, will
be admitted for a minimum period of
six months, regardless of whether less
time is requested, provided, that any
required passport is valid as specified
in section 212(a)(26) of the Act. Exceptions to the minimum six month admission may be made only in individual cases upon the specific approval
of the district director for good cause.
(3) Visa Waiver Pilot Program. Special
requirements for admission and maintenance of status for visitors admitted
to the United States under the Visa
Waiver Pilot Program are set forth in
section 217 of the Act and part 217 of
this chapter.
(4) Admission of aliens pursuant to the
North American Free Trade Agreement
(NAFTA). A citizen of Canada or Mexico seeking temporary entry for purposes set forth in paragraph (b)(4)(i) of
this section, who otherwise meets existing requirements under section
101(a)(15)(B) of the Act, including but

not limited to requirements regarding
the source of remuneration, shall be
admitted upon presentation of proof of
such citizenship in the case of Canadian applicants, and valid, unexpired
entry documents such as a passport
and visa, or a passport and BCC in the
case of Mexican applicants, a description of the purpose for which the alien
is seeking admission, and evidence
demonstrating that he or she is engaged in one of the occupations or professions set forth in paragraph (b)(4)(i)
of this section. Existing requirements,
with respect to Canada, are those requirements which were in effect at the
time of entry into force of the Canada/
U.S. Free Trade Agreement and, with
respect to Mexico, are those requirements which were in effect at the time
of entry into force of the NAFTA. Additionally, nothing shall preclude the
admission of a citizen of Mexico or
Canada who meets the requirements of
paragraph (b)(4)(ii) of this section.
(i) Occupations and professions set
forth in Appendix 1603.A.1 to Annex 1603
of the NAFTA—(A) Research and design.
Technical scientific and statistical researchers conducting independent research or research for an enterprise located in the territory of another Party.
(B) Growth, manufacture and production (1) Harvester owner supervising a
harvesting crew admitted under applicable law. (Applies only to harvesting
of agricultural crops: Grain, fiber, fruit
and vegetables.)
(2) Purchasing and production management personnel conducting commercial transactions for an enterprise
located in the territory of another
Party.
(C) Marketing. (1) Market researchers
and analyst conducting independent research or analysis, or research or analysis for an enterprise located in the
territory of another Party.
(2) Trade fair and promotional personnel attending a trade convention.
(D) Sales. (1) Sales representatives
and agents taking orders or negotiating contracts for goods or services
for an enterprise located in the territory of another Party but not delivering goods or providing services.
(2) Buyers purchasing for an enterprise located in the territory of another Party.

272

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00282

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(E) Distribution. (1) Transportation
operators transporting goods or passengers to the United States from the
territory of another Party or loading
and transporting goods or passengers
from the United States to the territory
of another Party, with no unloading in
the United States, to the territory of
another Party. (These operators may
make deliveries in the United States if
all goods or passengers to be delivered
were loaded in the territory of another
Party. Furthermore, they may load
from locations in the United States if
all goods or passengers to be loaded
will be delivered in the territory of another Party. Purely domestic service
or solicitation, in competition with the
United States operators, is not permitted.)
(2) Customs brokers performing brokerage duties associated with the export of goods from the United States to
or through Canada.
(F) After-sales service. Installers, repair and maintenance personnel, and
supervisors,
possessing
specialized
knowledge essential to the seller’s contractual obligation, performing services or training workers to perform
services, pursuant to a warranty or
other service contract incidental to the
sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside the United
States, during the life of the warranty
or service agreement. (For the purposes
of this provision, the commercial or industrial equipment or machinery, including computer software, must have
been manufactured outside the United
States.)
(G) General service. (1) Professionals
engaging in a business activity at a
professional level in a profession set
out in Appendix 1603.D.1 to Annex 1603
of the NAFTA, but receiving no salary
or other remuneration from a United
States source (other than an expense
allowance or other reimbursement for
expenses incidental to the temporary
stay) and otherwise satisfying the requirements of Section A to Annex 1063
of the NAFTA.
(2) Management and supervisory personnel engaging in commercial transactions for an enterprise located in the
territory of another Party.

(3) Financial services personnel (insurers, bankers or investment brokers)
engaging in commercial transactions
for an enterprise located in the territory of another Party.
(4) Public relations and advertising
personnel consulting with business associates, or attending or participating
in conventions.
(5) Tourism personnel (tour and travel agents, tour guides or tour operators) attending or participating in conventions or conducting a tour that has
begun in the territory of another
Party. (The tour may begin in the
United States; but must terminate in
foreign territory, and a significant portion of the tour must be conducted in
foreign territory. In such a case, an operator may enter the United States
with an empty conveyance and a tour
guide may enter on his or her own and
join the conveyance.)
(6) Tour bus operators entering the
United States:
(i) With a group of passengers on a
bus tour that has begun in, and will return to, the territory of another Party.
(ii) To meet a group of passengers on
a bus tour that will end, and the predominant portion of which will take
place, in the territory of another
Party.
(iii) With a group of passengers on a
bus tour to be unloaded in the United
States and returning with no passengers or reloading with the group for
transportation to the territory of another Party.
(7) Translators or interpreters performing services as employees of an enterprise located in the territory of another Party.
(ii) Occupations and professions not
listed in Appendix 1603.A.1 to Annex
1603 of the NAFTA. Nothing in this
paragraph shall preclude a business
person engaged in an occupation or
profession other than those listed in
Appendix 1603.A.1 to Annex 1603 of the
NAFTA from temporary entry under
section 101(a)(15)(B) of the Act, if such
person otherwise meets the existing requirements for admission as prescribed
by the Attorney General.
(5) Construction workers not admissible.
Aliens seeking to enter the country to
perform building or construction work,

273

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00283

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

whether on-site or in-plant, are not eligible for classification or admission as
B–1 nonimmigrants under section
101(a)(15)(B) of the Act. However, alien
nonimmigrants otherwise qualified as
B–1 nonimmigrants may be issued visas
and may enter for the purpose of supervision or training of others engaged in
building or construction work, but not
for the purpose of actually performing
any such building or construction work
themselves.
(6) [Reserved]
(7) Enrollment in a course of study prohibited. An alien who is admitted as, or
changes status to, a B–1 or B–2 nonimmigrant on or after April 12, 2002, or
who files a request to extend the period
of authorized stay in B–1 or B–2 nonimmigrant status on or after such date,
violates the conditions of his or her B–
1 or B–2 status if the alien enrolls in a
course of study. Such an alien who desires to enroll in a course of study
must either obtain an F–1 or M–1 nonimmigrant visa from a consular officer
abroad and seek readmission to the
United States, or apply for and obtain
a change of status under section 248 of
the Act and 8 CFR part 248. The alien
may not enroll in the course of study
until the Service has admitted the
alien as an F–1 or M–1 nonimmigrant
or has approved the alien’s application
under part 248 of this chapter and
changed the alien’s status to that of an
F–1 or M–1 nonimmigrant.
(c) Transits. (1) [Reserved]
(2) United Nations Headquarters District. An alien of the class defined in
section 101(a)(15)(C) of the Act, whose
visa is limited to transit to and from
the United Nations Headquarters District, if otherwise admissible, shall be
admitted on the additional conditions
that he proceed directly to the immediate vicinity of the United Nations
Headquarters District, and remain
there continuously, departing therefrom only if required in connection
with his departure from the United
States, and that he have a document
establishing his ability to enter some
country other than the United States
following his sojourn in the United Nations Headquarters District. The immediate vicinity of the United Nations
Headquarters District is that area

lying within a twenty-five mile radius
of Columbus Circle, New York, NY.
(3) Others. The period of admission of
an alien admitted under section
101(a)(15)(C) of the Act shall not exceed
29 days.
(d) Crewmen. (1) The provisions of
parts 251, 252, 253, and 258 of this chapter shall govern the landing of crewmen as nonimmigrants of the class defined in section 101(a)(15)(D) of the Act.
An alien in this status may be employed only in a crewman capacity on
the vessel or aircraft of arrival, or on a
vessel or aircraft of the same transportation company, and may not be employed in connection with domestic
flights or movements of a vessel or aircraft. However, nonimmigrant crewmen may perform crewmember duties
through stopovers on an international
flight for any United States carrier
where such flight uses a single aircraft
and has an origination or destination
point outside the United States.
(2) Denial of crewman status in the case
of certain labor disputes (D nonimmigrants). (i) An alien shall be denied
D crewman status as described in section 101(a)(15)(D) of the Act if:
(A) The alien intends to land for the
purpose of performing service on a vessel of the United States (as defined in
46 U.S.C. 2101(46)) or an aircraft of an
air carrier (as defined in section 101(3)
of the Federal Aviation Act of 1958);
and
(B) A labor dispute consisting of a
strike or lockout exists in the bargaining unit of the employer in which
the alien intends to perform such service; and
(C) The alien is not already an employee of the company (as described in
paragraph (d)(2)(iv) of this section).
(ii) Refusal to land. Any alien (except
a qualified current employee as described in paragraph (d)(2)(iv) of this
section) who the examining immigration officer determines has arrived in
the United States for the purpose of
performing service on board a vessel or
an aircraft of the United States when a
strike or lockout is under way in the
bargaining unit of the employer, shall
be refused a conditional landing permit
under section 252 of the Act.
(iii) Ineligibility for parole. An alien
described in paragraph (d)(2)(i) of this

274

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00284

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

section may not be paroled into the
United States under section 212(d)(5) of
the Act for the purpose of performing
crewmember duties unless the Attorney General determines that the parole
of such alien is necessary to protect
the national security of the United
States. This paragraph does not prohibit the granting of parole for other
purposes, such as medical emergencies.
(iv) Qualified current employees. (A)
Paragraphs (d)(2)(i), (d)(2)(ii), and
(d)(2)(iii) of this section do not apply to
an alien who is already an employee of
the owner or operator of the vessel or
air carrier and who at the time of inspection presents true copies of employer work records which satisfy the
examining immigration officer that
the alien:
(1) Has been an employee of such employer for a period of not less than one
year preceding the date that a strike or
lawful lockout commenced;
(2) Has served as a qualified crewman
for such employer at least once in
three different months during the 12month period preceding the date that
the strike or lockout commenced; and
(3) Shall continue to provide the
same crewman services that he or she
previously provided to the employer.
(B) An alien crewman who qualifies
as a current employee under this paragraph remains subject to the restrictions on his or her employment in the
United States contained in paragraph
(d)(1) of this section.
(v) Strike or lockout determination.
These provisions will take effect if the
Attorney General, through the Commissioner of the Immigration and Naturalization Service or his or her designee, after consultation with the National Mediation Board, determines
that a strike, lockout, or labor dispute
involving a work stoppage is in
progress in the bargaining unit of the
employer for whom the alien intends to
perform such service.
(e) Treaty traders and investors—(1)
Treaty trader. An alien, if otherwise admissible, may be classified as a nonimmigrant treaty trader (E–1) under
the provisions of section 101(a)(15)(E)(i)
of the Act if the alien:
(i) Will be in the United States solely
to carry on trade of a substantial nature, which is international in scope,

either on the alien’s behalf or as an
employee of a foreign person or organization engaged in trade principally between the United States and the treaty
country of which the alien is a national, taking into consideration any
conditions in the country of which the
alien is a national which may affect
the alien’s ability to carry on such substantial trade; and
(ii) Intends to depart the United
States upon the expiration or termination of treaty trader (E–1) status.
(2) Treaty investor. An alien, if otherwise admissible, may be classified as a
nonimmigrant treaty investor (E–2)
under
the
provision
of
section
101(a)(15)(E)(ii) of the Act if the alien:
(i) Has invested or is actively in the
process of investing a substantial
amount of capital in a bona fide enterprise in the United States, as distinct
from a relatively small amount of capital in a marginal enterprise solely for
the purpose of earning a living;
(ii) Is seeking entry solely to develop
and direct the enterprise; and
(iii) Intends to depart the United
States upon the expiration or termination of treaty investor (E–2) status.
(3) Employee of treaty trader or treaty
investor. An alien employee of a treaty
trader, if otherwise admissible, may be
classified as E–1, and an alien employee
of a treaty investor, if otherwise admissible, may be classified as E–2 if the
employee is in or is coming to the
United States to engage in duties of an
executive or supervisory character, or,
if employed in a lesser capacity, the
employee has special qualifications
that make the alien’s services essential
to the efficient operation of the enterprise. The employee must have the
same nationality as the principal alien
employer. In addition, the employee
must intend to depart the United
States upon the expiration or termination of E–1 or E–2 status. The principal alien employer must be:
(i) A person in the United States having the nationality of the treaty country and maintaining nonimmigrant
treaty trader or treaty investor status
or, if not in the United States, would
be classifiable as a treaty trader or
treaty investor; or
(ii) An enterprise or organization at
least 50 percent owned by persons in

275

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00285

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

the United States having the nationality of the treaty country and maintaining nonimmigrant treaty trader or
treaty investor status or who, if not in
the United States, would be classifiable
as treaty traders or treaty investors.
(4) Spouse and children of treaty trader
or treaty investor. The spouse and child
of a treaty trader or treaty investor accompanying or following to join the
principal alien, if otherwise admissible,
may receive the same classification as
the principal alien. The nationality of
a spouse or child of a treaty trader or
treaty investor is not material to the
classification of the spouse or child
under
the
provisions
of
section
101(a)(15)(E) of the Act.
(5) Nonimmigrant intent. An alien classified under section 101(a)(15)(E) of the
Act shall maintain an intention to depart the United States upon the expiration or termination of E–1 or E–2 status. However, an application for initial
admission, change of status, or extension of stay in E classification may not
be denied solely on the basis of an approved request for permanent labor
certification or a filed or approved immigrant visa preference petition.
(6) Treaty country. A treaty country
is, for purposes of this section, a foreign state with which a qualifying
Treaty of Friendship, Commerce, or
Navigation or its equivalent exists
with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under section 101(a)(15)(E) of the Act by specific
legislation.
(7) Treaty country nationality. The nationality of an individual treaty trader
or treaty investor is determined by the
authorities of the foreign state of
which the alien is a national. In the
case of an enterprise or organization,
ownership must be traced as best as is
practicable to the individuals who are
ultimately its owners.
(8) Terms and conditions of E treaty
status—(i) Limitations on employment.
The Service determines the terms and
conditions of E treaty status at the
time of admission or approval of a request to change nonimmigrant status
to E classification. A treaty trader,
treaty investor, or treaty employee
may engage only in employment which
is consistent with the terms and condi-

tions of his or her status and the activity forming the basis for the E treaty
status.
(ii) Subsidiary employment. Treaty employees may perform work for the parent treaty organization or enterprise,
or any subsidiary of the parent organization or enterprise. Performing work
for subsidiaries of a common parent enterprise or organization will not be
deemed to constitute a substantive
change in the terms and conditions of
the underlying E treaty employment if,
at the time the E treaty status was determined, the applicant presented evidence establishing:
(A) The enterprise or organization,
and any subsidiaries thereof, where the
work will be performed; the requisite
parent-subsidiary
relationship;
and
that the subsidiary independently
qualifies as a treaty organization or
enterprise under this paragraph;
(B) In the case of an employee of a
treaty trader or treaty investor, the
work to be performed requires executive, supervisory, or essential skills;
and
(C) The work is consistent with the
terms and conditions of the activity
forming the basis of the classification.
(iii) Substantive changes. Prior Service approval must be obtained where
there will be a substantive change in
the terms or conditions of E status. In
such cases, a treaty alien must file a
new application on Form I–129 and E
supplement, in accordance with the instructions on that form, requesting extension of stay in the United States. In
support of an alien’s Form I–129 application, the treaty alien must submit
evidence of continued eligibility for E
classification in the new capacity. Alternatively, the alien must obtain from
a consular officer a visa reflecting the
new terms and conditions and subsequently apply for admission at a portof-entry. The Service will deem there
to have been a substantive change necessitating the filing of a new Form I–
129 application in cases where there has
been a fundamental change in the employing entity’s basic characteristics,
such as a merger, acquisition, or sale of
the division where the alien is employed.
(iv) Non-substantive changes. Prior approval is not required, and there is no

276

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00286

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

need to file a new Form I–129, if there
is no substantive, or fundamental,
change in the terms or conditions of
the alien’s employment which would
affect the alien’s eligibility for E classification. Further, prior approval is
not required if corporate changes occur
which do not affect the previously approved employment relationship, or
are otherwise non-substantive. To facilitate admission, the alien may:
(A) Present a letter from the treatyqualifying company through which the
alien attained E classification explaining the nature of the change;
(B) Request a new Form I–797, Approval Notice, reflecting the non-substantive change by filing Form I–129,
with fee, and a complete description of
the change, or;
(C) Apply directly to Department of
State for a new E visa reflecting the
change. An alien who does not elect
one of the three options contained in
paragraph (e)(8)(iv) (A) through (C) of
this section, is not precluded from
demonstrating to the satisfaction of
the immigration officer at the port-ofentry in some other manner, his or her
admissibility
under
section
101(a)(15)(E) of the Act.
(v) Advice. To ascertain whether a
change is substantive, an alien may file
Form I–129, with fee, and a complete
description of the change, to request
appropriate advice. In cases involving
multiple employees, an alien may request that USCIS determine if a merger or other corporate restructuring requires the filing of separate applications by filing a single Form I–129, with
fee, and attaching a list of the related
receipt numbers for the employees involved and an explanation of the
change or changes.
(vi) Approval. If an application to
change the terms and conditions of E
status or employment is approved, the
Service shall notify the applicant on
Form I–797. An extension of stay in
nonimmigrant E classification may be
granted for the validity of the approved
application. The alien is not authorized
to begin the new employment until the
application is approved. Employment
is authorized only for the period of
time the alien remains in the United
States. If the alien subsequently departs from the United States, readmis-

sion in E classification may be authorized where the alien presents his or her
unexpired E visa together with the
Form I–797, Approval Notice, indicating Service approval of a change of
employer or of a change in the substantive terms or conditions of treaty
status or employment in E classification, or, in accordance with 22 CFR
41.112(d), where the alien is applying
for readmission after an absence not
exceeding 30 days solely in contiguous
territory.
(vii) An unauthorized change of employment to a new employer will constitute a failure to maintain status
within
the
meaning
of
section
237(a)(1)(C)(i) of the Act. In all cases
where the treaty employee will be providing services to a subsidiary under
this paragraph, the subsidiary is required to comply with the terms of 8
CFR part 274a.
(9) Trade—definitions. For purposes of
this paragraph: Items of trade include
but are not limited to goods, services,
international banking, insurance, monies, transportation, communications,
data processing, advertising, accounting, design and engineering, management consulting, tourism, technology
and its transfer, and some news-gathering activities. For purposes of this
paragraph, goods are tangible commodities or merchandise having extrinsic
value. Further, as used in this paragraph, services are legitimate economic activities which provide other
than tangible goods.
Trade is the existing international
exchange of items of trade for consideration between the United States and
the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties which
call for the immediate exchange of
items of trade. Domestic trade or the
development of domestic markets
without international exchange does
not constitute trade for purposes of
section 101(a)(15)(E) of the Act. This exchange must be traceable and identifiable. Title to the trade item must pass
from one treaty party to the other.
(10) Substantial trade. Substantial
trade is an amount of trade sufficient
to ensure a continuous flow of international trade items between the
United States and the treaty country.

277

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00287

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

This continuous flow contemplates numerous transactions over time. Treaty
trader status may not be established or
maintained on the basis of a single
transaction, regardless of how protracted or monetarily valuable the
transaction. Although the monetary
value of the trade item being exchanged is a relevant consideration,
greater weight will be given to more
numerous exchanges of larger value.
There is no minimum requirement with
respect to the monetary value or volume of each individual transaction. In
the case of smaller businesses, an income derived from the value of numerous transactions which is sufficient to
support the treaty trader and his or her
family constitutes a favorable factor in
assessing the existence of substantial
trade.
(11) Principal trade. Principal trade
between the United States and the
treaty country exists when over 50 percent of the volume of international
trade of the treaty trader is conducted
between the United States and the
treaty country of the treaty trader’s
nationality.
(12) Investment. An investment is the
treaty investor’s placing of capital, including funds and other assets (which
have not been obtained, directly or indirectly, through criminal activity), at
risk in the commercial sense with the
objective of generating a profit. The
treaty investor must be in possession
of and have control over the capital invested or being invested. The capital
must be subject to partial or total loss
if investment fortunes reverse. Such
investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must
be irrevocably committed to the enterprise. The alien has the burden of establishing such irrevocable commitment. The alien may use any legal
mechanism available, such as the
placement of invested funds in escrow
pending admission in, or approval of, E
classification, that would not only irrevocably commit funds to the enterprise, but might also extend personal
liability protection to the treaty investor in the event the application for E
classification is denied.

(13) Bona fide enterprise. The enterprise must be a real, active, and operating commercial or entrepreneurial
undertaking which produces services or
goods for profit. The enterprise must
meet applicable legal requirements for
doing business in the particular jurisdiction in the United States.
(14) Substantial amount of capital. A
substantial amount of capital constitutes an amount which is:
(i) Substantial in relationship to the
total cost of either purchasing an established enterprise or creating the
type of enterprise under consideration;
(ii) Sufficient to ensure the treaty investor’s financial commitment to the
successful operation of the enterprise;
and
(iii) Of a magnitude to support the
likelihood that the treaty investor will
successfully develop and direct the enterprise. Generally, the lower the cost
of the enterprise, the higher, proportionately, the investment must be to
be considered a substantial amount of
capital.
(15) Marginal enterprise. For purposes
of this section, an enterprise may not
be marginal. A marginal enterprise is
an enterprise that does not have the
present or future capacity to generate
more than enough income to provide a
minimal living for the treaty investor
and his or her family. An enterprise
that does not have the capacity to generate such income, but that has a
present or future capacity to make a
significant economic contribution is
not a marginal enterprise. The projected future income-generating capacity should generally be realizable within 5 years from the date the alien commences the normal business activity of
the enterprise.
(16) Solely to develop and direct. An
alien seeking classification as a treaty
investor (or, in the case of an employee
of a treaty investor, the owner of the
treaty enterprise) must demonstrate
that he or she does or will develop and
direct the investment enterprise. Such
an applicant must establish that he or
she controls the enterprise by demonstrating ownership of at least 50 percent of the enterprise, by possessing
operational control through a managerial position or other corporate device,
or by other means.

278

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00288

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(17) Executive and supervisory character. The applicant’s position must be
principally and primarily, as opposed
to incidentally or collaterally, executive or supervisory in nature. Executive and supervisory duties are those
which provide the employee ultimate
control and responsibility for the enterprise’s overall operation or a major
component thereof. In determining
whether the applicant has established
possession of the requisite control and
responsibility, a Service officer shall
consider, where applicable:
(i) That an executive position is one
which provides the employee with
great authority to determine the policy of, and the direction for, the enterprise;
(ii) That a position primarily of supervisory character provides the employee supervisory responsibility for a
significant proportion of an enterprise’s operations and does not generally involve the direct supervision of
low-level employees, and;
(iii) Whether the applicant possesses
executive and supervisory skills and
experience; a salary and position title
commensurate with executive or supervisory employment; recognition or indicia of the position as one of authority and responsibility in the overall organizational structure; responsibility
for making discretionary decisions,
setting policies, directing and managing business operations, supervising
other professional and supervisory personnel; and that, if the position requires some routine work usually performed by a staff employee, such functions may only be of an incidental nature.
(18) Special qualifications. Special
qualifications are those skills and/or
aptitudes that an employee in a lesser
capacity brings to a position or role
that are essential to the successful or
efficient operation of the treaty enterprise. In determining whether the
skills possessed by the alien are essential to the operation of the employing
treaty enterprise, a Service officer
must consider, where applicable:
(i) The degree of proven expertise of
the alien in the area of operations involved; whether others possess the applicant’s specific skill or aptitude; the
length of the applicant’s experience

and/or training with the treaty enterprise; the period of training or other
experience necessary to perform effectively the projected duties; the relationship of the skill or knowledge to
the enterprise’s specific processes or
applications, and the salary the special
qualifications can command; that
knowledge of a foreign language and
culture does not, by itself, meet the
special
qualifications
requirement,
and;
(ii) Whether the skills and qualifications are readily available in the
United States. In all cases, in determining whether the applicant possesses
special qualifications which are essential to the treaty enterprise, a Service
officer must take into account all the
particular facts presented. A skill that
is essential at one point in time may
become commonplace at a later date.
Skills that are needed to start up an
enterprise may no longer be essential
after initial operations are complete
and running smoothly. Some skills are
essential only in the short-term for the
training of locally hired employees.
Under certain circumstances, an applicant may be able to establish his or her
essentiality to the treaty enterprise for
a longer period of time, such as, in connection with activities in the areas of
product improvement, quality control,
or the provision of a service not yet
generally available in the United
States. Where the treaty enterprise’s
need for the applicant’s special qualifications, and therefore, the applicant’s
essentiality, is time-limited, Service
officers may request that the applicant
provide evidence of the period for
which skills will be needed and a reasonable projected date for completion
of start-up or replacement of the essential skilled workers.
(19) Period of admission. Periods of admission are as follows:
(i) A treaty trader or treaty investor
may be admitted for an initial period
of not more than 2 years.
(ii) The spouse and minor children
accompanying or following to join a
treaty trader or treaty investor shall
be admitted for the period during
which the principal alien is in valid
treaty trader or investor status. The
temporary departure from the United

279

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00289

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

States of the principal trader or investor shall not affect the derivative status of the dependent spouse and minor
unmarried children, provided the familial relationship continues to exist
and the principal remains eligible for
admission as an E nonimmigrant to
perform the activity.
(iii) Unless otherwise provided for in
this chapter, an alien shall not be admitted in E classification for a period
of time extending more than 6 months
beyond the expiration date of the
alien’s passport.
(20) Extensions of stay. Requests for
extensions of stay may be granted in
increments of not more than 2 years. A
treaty trader or treaty investor in
valid E status may apply for an extension of stay by filing an application for
extension of stay on Form I–129 and E
Supplement, with required accompanying documents, in accordance with
§ 214.1 and the instructions on that
form.
(i) For purposes of eligibility for an
extension of stay, the alien must prove
that he or she:
(A) Has at all times maintained the
terms and conditions of his or her E
nonimmigrant classification;
(B) Was physically present in the
United States at the time of filing the
application for extension of stay; and
(C) Has not abandoned his or her extension request.
(ii) With limited exceptions, it is presumed that employees of treaty enterprises with special qualifications who
are responsible for start-up operations
should be able to complete their objectives within 2 years. Absent special circumstances, therefore, such employees
will not be eligible to obtain an extension of stay.
(iii) Subject to paragraph (e)(5) of
this section and the presumption noted
in paragraph (e)(22)(ii) of this section,
there is no specified number of extensions of stay that a treaty trader or
treaty investor may be granted.
(21) Change of nonimigrant status. (i)
An alien in another valid nonimmigrant status may apply for
change of status to E classification by
filing an application for change of status on Form I–129 and E Supplement,
with required accompanying documents establishing eligibility for a

change of status and E classification,
in accordance with 8 CFR part 248 and
the instructions on Form I–129 and E
Supplement.
(ii) The spouse or minor children of
an applicant seeking a change of status
to that of treaty trader or treaty investor alien shall file concurrent applications for change of status to derivative
treaty classification on the appropriate
Service form. Applications for derivative treaty status shall:
(A) Be approved only if the principal
treaty alien is granted treaty alien status and continues to maintain that status;
(B) Be approved for the period of admission authorized in paragraph (e)(20)
of this section.
(22) Denial of treaty trader or treaty investor status to citizens of Canada or
Mexico in the case of certain labor disputes. (i) A citizen of Canada or Mexico
may be denied E treaty trader or treaty investor status as described in section 101(a)(15)(E) of the Act and section
B of Annex 1603 of the NAFTA if:
(A) The Secretary of Labor certifies
to or otherwise informs the Commissioner that a strike or other labor dispute involving a work stoppage of
workers in the alien’s occupational
classification is in progress at the
place where the alien is or intends to
be employed; and
(B) Temporary entry of that alien
may affect adversely either:
(1) The settlement of any labor dispute that is in progress at the place or
intended place of employment, or
(2) The employment of any person
who is involved in such dispute.
(ii) If the alien has already commenced employment in the United
States and is participating in a strike
or other labor dispute involving a work
stoppage of workers, whether or not
such strike or other labor dispute has
been certified by the Secretary of
Labor, or whether the Service has been
otherwise informed that such a strike
or labor dispute is in progress, the
alien shall not be deemed to be failing
to maintain his or her status solely on
account of past, present, or future participation in a strike or other labor
dispute involving a work stoppage of
workers, but is subject to the following
terms and conditions:

280

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00290

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(A) The alien shall remain subject to
all applicable provisions of the Immigration and Nationality Act, and regulations promulgated in the same manner as all other E nonimmigrants; and
(B) The status and authorized period
of stay of such an alien is not modified
or extended in any way by virtue of his
or her participation in a strike or other
labor dispute involving a work stoppage of workers.
(iii) Although participation by an E
nonimmigrant alien in a strike or
other labor dispute involving a work
stoppage of workers will not constitute
a ground for deportation, any alien
who violates his or her status or who
remains in the United States after his
or her authorized period of stay has expired will be subject to deportation.
(iv) If there is a strike or other labor
dispute involving a work stoppage of
workers in progress, but such strike or
other labor dispute is not certified
under paragraph (e)(22)(i) of this section, or the Service has not otherwise
been informed by the Secretary that
such a strike or labor dispute is in
progress, the Commissioner shall not
deny entry to an applicant for E status.
(f) Students in colleges, universities,
seminaries, conservatories, academic high
schools, elementary schools, other academic institutions, and in language training programs—(1) Admission of student—
(i) Eligibility for admission. A nonimmigrant student may be admitted
into the United States in nonimmigrant
status
under
section
101(a)(15)(F) of the Act, if:
(A) The student presents a SEVIS
Form I–20 issued in his or her own
name by a school approved by the Service for attendance by F–1 foreign students. (In the alternative, for a student
seeking admission prior to August 1,
2003, the student may present a currently-valid Form I–20A–B/I–20ID, if
that form was issued by the school
prior to January 30, 2003);
(B) The student has documentary evidence of financial support in the
amount indicated on the SEVIS Form
I–20 (or the Form I–20A–B/I–20ID);
(C) For students seeking initial admission only, the student intends to
attend the school specified in the student’s visa (or, where the student is exempt from the requirement for a visa,

the school indicated on the SEVIS
Form I–20 (or the Form I–20A–B/I–
20ID)); and
(D) In the case of a student who intends to study at a public secondary
school, the student has demonstrated
that he or she has reimbursed the local
educational agency that administers
the school for the full, unsubsidized per
capita cost of providing education at
the school for the period of the student’s attendance.
(ii) Disposition of Form I–20 A–B/I–20
ID. Form I–20 A–B/I–20 ID contains two
copies, the I–20 School Copy and the I–
20 ID (Student) Copy. For purposes of
clarity, the entire Form I–20 A–B/I–20
ID shall be referred to as Form I–20 A–
B and the I–20 ID (Student) Copy shall
be referred to as the I–20 ID. When an
F–1 student applies for admission with
a complete Form I–20 A–B, the inspecting officer shall:
(A) Transcribe the student’s admission number from Form I–94 onto his or
her Form I–20 A–B (for students seeking initial admission only);
(B) Endorse all copies of the Form I–
20 A–B;
(C) Return the I–20 ID to the student;
and
(D) Forward the I–20 School Copy to
the Service’s processing center for data
entry. (The school copy of Form I–20 A–
B will be sent back to the school as a
notice of the student’s admission after
data entry.)
(iii) Use of SEVIS. On January 30,
2003, the use of the Student and Exchange Visitor Information System
(SEVIS) will become mandatory for the
issuance of any new Form I–20. A student or dependent who presents a nonSEVIS Form I–20 issued on or after
January 30, 2003, will not be accepted
for admission to the United States.
Non-SEVIS Forms I–20 issued prior to
January 30, 2003, will continue to be acceptable until August 1, 2003. However,
schools must issue a SEVIS Form I–20
to any current student requiring a reportable action (e.g., extension of status, practical training, and requests for
employment authorization) or a new
Form I–20, or for any aliens who must
obtain a new nonimmigrant student
visa. As of August 1, 2003, the records of
all current or continuing students
must be entered in SEVIS.

281

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00291

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(2) I–20 ID. An F–1 student is expected
to safekeep the initial I–20 ID bearing
the admission number and any subsequent copies which have been issued to
him or her. Should the student lose his
or her current I–20 ID, a replacement
copy bearing the same information as
the lost copy, including any endorsement for employment and notations,
may be issued by the designated school
official (DSO) as defined in 8 CFR
214.3(l)(1)(i).
(3) Admission of the spouse and minor
children of an F–1 student. The spouse
and minor children accompanying an
F–1 student are eligible for admission
in F–2 status if the student is admitted
in F–1 status. The spouse and minor
children following-to-join an F–1 student are eligible for admission to the
United States in F–2 status if they are
able to demonstrate that the F–1 student has been admitted and is, or will
be within 30 days, enrolled in a full
course of study, or engaged in approved
practical training following completion
of studies. In either case, at the time
they seek admission, the eligible
spouse and minor children of an F–1
student with a SEVIS Form I–20 must
individually present an original SEVIS
Form I–20 issued in the name of each
F–2 dependent issued by a school authorized by the Service for attendance
by F–1 foreign students. Prior to August 1, 2003, if exigent circumstances
are demonstrated, the Service will
allow the dependent of an F–1 student
in possession of a SEVIS Form I–20 to
enter the United States using a copy of
the F–1 student’s SEVIS Form I–20. (In
the alternative, for dependents seeking
admission to the United States prior to
August 1, 2003, a copy of the F–1 student’s current Form I–20ID issued prior
to January 30, 2003, with proper endorsement by the DSO will satisfy this
requirement.) A new SEVIS Form I–20
(or Form I–20A–B) is required for a dependent where there has been any substantive change in the F–1 student’s
current information.
(4) Temporary absence. An F–1 student
returning to the United States from a
temporary absence of five months or
less may be readmitted for attendance
at a Service-approved educational institution, if the student presents:

(i) A current SEVIS Form I–20 (or,
for readmission prior to August 1, 2003,
a current Form I–20ID which was issued
prior to January 30, 2003), properly endorsed by the DSO for reentry if there
has been no substantive change to the
most recent Form I–20 information; or
(ii) A new SEVIS Form I–20 (or, for
readmission prior to August 1, 2003, a
new Form I–20ID which was issued
prior to January 30, 2003), if there has
been a substantive change in the information on the student’s most recent
Form I–20 information, such as in the
case of a student who has changed the
major area of study, who intends to
transfer to another Service approved
institution or who has advanced to a
higher level of study.
(5) Duration of status—(i) General. Except for border commuter students covered by the provisions of paragraph
(f)(18) of this section, an F–1 student is
admitted for duration of status. Duration of status is defined as the time
during which an F–1 student is pursuing a full course of study at an educational institution approved by the
Service for attendance by foreign students, or engaging in authorized practical training following completion of
studies, except that an F–1 student who
is admitted to attend a public high
school is restricted to an aggregate of
12 months of study at any public high
school(s). An F–1 student may be admitted for a period up to 30 days before
the indicated report date or program
start date listed on Form I–20. The student is considered to be maintaining
status if he or she is making normal
progress toward completing a course of
study.
(ii) Change in educational levels. An F–
1 student who continues from one educational level to another is considered
to be maintaining status, provided that
the transition to the new educational
level is accomplished according to
transfer procedures outlined in paragraph (f)(8) of this section.
(iii) Annual vacation. An F–1 student
at an academic institution is considered to be in status during the annual
(or summer) vacation if the student is
eligible and intends to register for the
next term. A student attending a
school on a quarter or trimester calendar who takes only one vacation a

282

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00292

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

year during any one of the quarters or
trimesters instead of during the summer is considered to be in status during
that vacation, if the student has completed the equivalent of an academic
year prior to taking the vacation.
(iv) Preparation for departure. An F–1
student who has completed a course of
study and any authorized practical
training following completion of studies will be allowed an additional 60-day
period to prepare for departure from
the United States or to transfer in accordance with paragraph (f)(8) of this
section. An F–1 student authorized by
the DSO to withdraw from classes will
be allowed a 15-day period for departure from the United States. However,
an F–1 student who fails to maintain a
full course of study without the approval of the DSO or otherwise fails to
maintain status is not eligible for an
additional period for departure.
(v) Emergent circumstances as determined by the Commissioner. Where the
Commissioner has suspended the applicability of any or all of the requirements for on-campus or off-campus employment authorization for specified
students
pursuant
to
paragraphs
(f)(9)(i) or (f)(9)(ii) of this section by notice in the FEDERAL REGISTER, an affected student who needs to reduce his
or her full course of study as a result of
accepting employment authorized by
such notice in the FEDERAL REGISTER
will be considered to be in status during the authorized employment, subject to any other conditions specified
in the notice, provided that, for the duration of the authorized employment,
the student is registered for the number of semester or quarter hours of instruction per academic term specified
in the notice, which in no event shall
be less than 6 semester or quarter
hours of instruction per academic term
if the student is at the undergraduate
level or less than 3 semester or quarter
hours of instruction per academic term
if the student is at the graduate level,
and is continuing to make progress toward completing the course of study.
(vi) Extension of duration of status and
grant of employment authorization.
(A) The duration of status, and any
employment
authorization
granted
under 8 CFR 274a.12(c)(3)(i)(B) and (C),
of an F–1 student who is the bene-

ficiary of an H–1B petition and request
for change of status shall be automatically extended until October 1 of the
fiscal year for which such H–1B visa is
being requested where such petition:
(1) Has been timely filed; and
(2) States that the employment start
date for the F–1 student is October 1 of
the following fiscal year.
(B) The automatic extension of an F–
1 student’s duration of status and employment authorization under paragraph (f)(5)(vi)(A) of this section shall
immediately terminate upon the rejection, denial, or revocation of the H–1B
petition filed on such F–1 student’s behalf.
(C) In order to obtain the automatic
extension of stay and employment authorization
under
paragraph
(f)(5)(vi)(A) of this section, the F–1 student, according to 8 CFR part 248, must
not have violated the terms or conditions of his or her nonimmigrant status.
(D) An automatic extension of an F–
1 student’s duration of status under
paragraph (f)(5)(vi)(A) of this section
also applies to the duration of status of
any F–2 dependent aliens.
(6) Full course of study—(i) General.
Successful completion of the full
course of study must lead to the attainment of a specific educational or
professional objective. A course of
study at an institution not approved
for attendance by foreign students as
provided in § 214.3(a)(3) does not satisfy
this requirement. A ‘‘full course of
study’’
as
required
by
section
101(a)(15)(F)(i) of the Act means:
(A)
Postgraduate
study
or
postdoctoral study at a college or university, or undergraduate or postgraduate study at a conservatory or religious seminary, certified by a DSO as
a full course of study;
(B) Undergraduate study at a college
or university, certified by a school official to consist of at least twelve semester or quarter hours of instruction per
academic term in those institutions
using standard semester, trimester, or
quarter hour systems, where all undergraduate students who are enrolled for
a minimum of twelve semester or quarter hours are charged full-time tuition
or are considered full-time for other

283

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00293

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

administrative purposes, or its equivalent (as determined by the district director in the school approval process),
except when the student needs a lesser
course load to complete the course of
study during the current term;
(C) Study in a postsecondary language, liberal arts, fine arts, or other
non-vocational program at a school
which confers upon its graduates recognized associate or other degrees or has
established that its credits have been
and are accepted unconditionally by at
least three institutions of higher learning which are either: (1) A school (or
school system) owned and operated as a
public educational institution by the
United States or a State or political
subdivision thereof; or (2) a school accredited by a nationally recognized accrediting body; and which has been certified by a designated school official to
consist of at least twelve clock hours
of instruction a week, or its equivalent
as determined by the district director
in the school approval process;
(D) Study in any other language, liberal arts, fine arts, or other nonvocational training program, certified by a
designated school official to consist of
at least eighteen clock hours of attendance a week if the dominant part of the
course of study consists of classroom
instruction, or to consist of at least
twenty-two clock hours a week if the
dominant part of the course of study
consists of laboratory work; or
(E) Study in a curriculum at an approved private elementary or middle
school or public or private academic
high school which is certified by a designated school official to consist of
class attendance for not less than the
minimum number of hours a week prescribed by the school for normal
progress toward graduation.
(F)
Notwithstanding
paragraphs
(f)(6)(i)(A) and (f)(6)(i)(B) of this section, an alien who has been granted
employment authorization pursuant to
the terms of a document issued by the
Commissioner
under
paragraphs
(f)(9)(i) or (f)(9)(ii) of this section and
published in the FEDERAL REGISTER
shall be deemed to be engaged in a ‘‘full
course of study’’ if he or she remains
registered for no less than the number
of semester or quarter hours of instruction per academic term specified by the

Commissioner in the notice for the validity period of such employment authorization.
(G) For F–1 students enrolled in
classes for credit or classroom hours,
no more than the equivalent of one
class or three credits per session, term,
semester, trimester, or quarter may be
counted toward the full course of study
requirement if the class is taken online or through distance education and
does not require the student’s physical
attendance for classes, examination or
other purposes integral to completion
of the class. An on-line or distance education course is a course that is offered
principally through the use of television, audio, or computer transmission including open broadcast,
closed circuit, cable, microwave, or
satellite, audio conferencing, or computer conferencing. If the F–1 student’s
course of study is in a language study
program, no on-line or distance education classes may be considered to
count toward a student’s full course of
study requirement.
(H) On-campus employment pursuant
to the terms of a scholarship, fellowship, or assistantship is deemed to be
part of the academic program of a student otherwise taking a full course of
study.
(ii) Institution of higher learning. For
purposes of this paragraph, a college or
university is an institution of higher
learning which awards recognized associate, bachelor’s, master’s, doctorate,
or professional degrees. Schools which
devote themselves exclusively or primarily to vocational, business, or language instruction are not included in
the category of colleges or universities.
Vocational or business schools which
are classifiable as M–1 schools are provided for by regulations under 8 CFR
214.2(m).
(iii) Reduced course load. The designated school official may allow an F–
1 student to engage in less than a full
course of study as provided in this
paragraph (f)(6)(iii). Except as otherwise noted, a reduced course load must
consist of at least six semester or quarter hours, or half the clock hours required for a full course of study. A student who drops below a full course of
study without the prior approval of the
DSO will be considered out of status.

284

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00294

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

On-campus employment pursuant to
the terms of a scholarship, fellowship,
or assistantship is deemed to be part of
the academic program of a student otherwise taking a full course of study.
(A) Academic difficulties. The DSO
may authorize a reduced course load on
account of a student’s initial difficulty
with the English language or reading
requirements, unfamiliarity with U.S.
teaching methods, or improper course
level placement. The student must resume a full course of study at the next
available term, session, or semester,
excluding a summer session, in order to
maintain student status. A student
previously authorized to drop below a
full course of study due to academic
difficulties is not eligible for a second
authorization by the DSO due to academic difficulties while pursuing a
course of study at that program level.
A student authorized to drop below a
full course of study for academic difficulties while pursuing a course of
study at a particular program level
may still be authorized for a reduced
course load due to an illness medical
condition as provided for in paragraph
(B) of this section.
(B) Medical conditions. The DSO may
authorize a reduced course load (or, if
necessary, no course load) due to a student’s temporary illness or medical
condition for a period of time not to
exceed an aggregate of 12 months while
the student is pursuing a course of
study at a particular program level. In
order to authorize a reduced course
load based upon a medical condition,
the student must provide medical documentation from a licensed medical doctor, doctor of osteopathy, or licensed
clinical psychologist, to the DSO to
substantiate the illness or medical condition. The student must provide current medical documentation and the
DSO must reauthorize the drop below
full course of study each new term, session, or semester. A student previously
authorized to drop below a full course
of study due to illness or medical condition for an aggregate of 12 months
may not be authorized by a DSO to reduce his or her course load on subsequent occasions while pursuing a
course of study at the same program
level. A student may be authorized to
reduce course load for a reason of ill-

ness or medical condition on more than
one occasion while pursuing a course of
study, so long as the aggregate period
of that authorization does not exceed
12 months.
(C) Completion of course of study. The
DSO may authorize a reduced course
load in the student’s final term, semester, or session if fewer courses are
needed to complete the course of study.
If the student is not required to take
any additional courses to satisfy the
requirements for completion, but continues to be enrolled for administrative
purposes, the student is considered to
have completed the course of study and
must take action to maintain status.
Such action may include application
for change of status or departure from
the U.S.
(D) Reporting requirements for nonSEVIS schools. A DSO must report to
the Service any student who is authorized to reduce his or her course load.
Within 21 days of the authorization,
the DSO must send a photocopy of the
student’s current Form I–20ID along
with Form I–538 to Service’s data processing center indicating the date and
reason that the student was authorized
to drop below full time status. Similarly, the DSO will report to the Service no more than 21 days after the student has resumed a full course of study
by submitting a current copy of the
students’ Form I–20ID to the Service’s
data processing center indicating the
date a full course of study was resumed
and the new program end date with
Form I–538, if applicable.
(E) SEVIS reporting requirements. In
order for a student to be authorized to
drop below a full course of study, the
DSO must update SEVIS prior to the
student reducing his or her course load.
The DSO must update SEVIS with the
date, reason for authorization, and the
start date of the next term or session.
The DSO must also notify SEVIS within 21 days of the student’s commencement of a full course of study. If an extension of the program end date is required due to the drop below a full
course of study, the DSO must update
SEVIS by completing a new SEVIS
Form I–20 with the new program end
date in accordance with paragraph
(f)(7) of this section.

285

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00295

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(iv) Concurrent enrollment. An F–1 student may be enrolled in two different
Service-approved schools at one time
as long as the combined enrollment
amounts to a full time course of study.
In cases where a student is concurrently enrolled, the school from which
the student will earn his or her degree
or certification should issue the Form
I–20, and conduct subsequent certifications and updates to the Form I–20.
The DSO from this school is also responsible for all of the reporting requirements to the Service. In instances
where a student is enrolled in programs
with different full course of study requirements (e.g., clock hours vs. credit
hours), the DSO is permitted to determine what constitutes a full time
course of study.
(7) Extension of stay—(i) General. An
F–1 student who is admitted for duration of status is not required to apply
for extension of stay as long as the student is maintaining status and making
normal progress toward completion of
his or her educational objective. An F–
1 student who is currently maintaining
status and making normal progress toward completing his or her educational
objective, but who is unable to complete his or her course of study by the
program end date on the Form I–20,
must apply prior to the program end
date for a program extension pursuant
to paragraph (f)(7)(iii) of this section.
(ii) Report date and program completion
date on Form I–20. When determining
the report date on the Form I–20, the
DSO may choose a reasonable date to
accommodate a student’s need to be in
attendance for required activities at
the school prior to the actual start of
classes. Such required activities may
include, but are not limited to, research projects and orientation sessions. However, for purposes of employment, the DSO may not indicate a report date more than 30 days prior to
the start of classes. When determining
the program completion date on Form
I–20, the DSO should make a reasonable
estimate based upon the time an average student would need to complete a
similar program in the same discipline.
(iii) Program extension for students in
lawful status. An F–1 student who is unable to meet the program completion
date on the Form I–20 may be granted

an extension by the DSO if the DSO
certifies that the student has continually maintained status and that the
delays are caused by compelling academic or medical reasons, such as
changes of major or research topics,
unexpected research problems, or documented illnesses. Delays caused by academic probation or suspension are not
acceptable reasons for program extensions. A DSO may not grant an extension if the student did not apply for an
extension until after the program end
date noted on the Form I–20. An F–1
student who is unable to complete the
educational program within the time
listed on Form I–20 and who is ineligible for program extension pursuant
to this paragraph (f)(7) is considered
out of status. If eligible, the student
may apply for reinstatement under the
provisions of paragraph (f)(16) of this
section.
(iv) Notification. Upon granting a program extension, a DSO at a non-SEVIS
school must immediately submit notification to the Service’s data processing center using Form I–538 and the
top page of Form I–20A–B showing the
new program completion date. For a
school enrolled in SEVIS, a DSO may
grant a program extension only by updating SEVIS and issuing a new Form
I–20 reflecting the current program end
date. A DSO may grant an extension
any time prior to the program end date
listed on the student’s original Form I–
20.
(8) School transfer.(i) A student who is
maintaining status may transfer to another Service approved school by following the notification procedure prescribed in paragraph (f)(8)(ii) of this
section. However, an F–1 student is not
permitted to remain in the United
States when transferring between
schools or programs unless the student
will begin classes at the transfer school
or program within 5 months of transferring out of the current school or
within 5 months of the program completion date on his or her current Form
I–20, whichever is earlier. In the case of
an F–1 student authorized to engage in
post-completion
optional
practical
training (OPT), the student must be
able resume classes within 5 months of
transferring out of the school that recommended OPT or the date the OPT

286

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00296

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

authorization ends, whichever is earlier. An F–1 student who was not pursuing a full course of study at the
school he or she was last authorized to
attend is ineligible for school transfer
and must apply for reinstatement
under the provisions of paragraph
(f)(16) of this section, or, in the alternative, may depart the country and return as an initial entry in a new F–1
nonimmigrant status.
(ii) Transfer procedure. To transfer
schools, an F–1 student must first notify the school he or she is attending of
the intent to transfer, then obtain a
Form I–20 A–B, issued in accordance
with the provisions of 8 CFR 214.3(k),
from the school to which he or she intends to transfer. The transfer will be
effected only if the F–1 student completes the Student Certification portion of the Form I–20 A–B and returns
the form to a designated school official
on campus within 15 days of beginning
attendance at the new school.
(A) Non-SEVIS School to Non-SEVIS
school. To transfer from one non-SEVIS
school to a different non-SEVIS school,
the student must first notify the
school he or she is attending of the intent to transfer, then obtain a Form I–
20 issued in accordance with the provisions of 8 CFR 214.3(k) from the school
to which he or she intends to transfer.
Prior to issuance of any Form I–20, the
DSO at the transfer school is responsible for determining that the student
has been maintaining status at his or
her current school and is eligible for
transfer to the new school. The transfer will be effected only if the student
completes the Student Certification
portion of the Form I–20 and returns
the form to a DSO of the transfer
school within 15 days of the program
start date listed on Form I–20. Upon receipt of the student’s Form I–20 the
DSO must note ‘‘transfer completed on
(date)’’ in the space provided for the
DSO’s remarks, thereby acknowledging
the student’s attendance at the transfer school; return the Form I–20 to the
student; submit the School copy of the
Form I–20 to Service’s Data Processing
Center within 30 days of receipt from
the student; and forward a photocopy
of the school copy to the school from
which the student transferred.

(B) Non-SEVIS school to SEVIS school.
To transfer from a non-SEVIS school
to a SEVIS school, the student must
first notify the school he or she is attending of the intent to transfer, then
obtain a SEVIS Form I–20 issued in accordance with the provisions of 8 CFR
214.3(k) from the school to which he or
she intends to transfer. Prior to
issuance of any Form I–20, the DSO at
the transfer school is responsible for
determining that the student has been
maintaining status at his or her current school and is eligible for transfer
to the new school. Once the transfer
school has issued the SEVIS Form I–20
to the student indicating a transfer,
the transfer school becomes responsible for updating and maintaining the
student’s record in SEVIS. The student
is then required to notify the DSO at
the transfer school within 15 days of
the program start date listed on SEVIS
Form I–20. Upon notification that the
student is enrolled in classes, the DSO
of the transfer school must update
SEVIS to reflect the student’s registration and current address, thereby acknowledging that the student has completed the transfer process. In the remarks section of the student’s SEVIS
Form I–20, the DSO must note that the
transfer has been completed, including
the date, and return the form to the
student. The transfer is effected when
the transfer school updates SEVIS indicating that the student has registered in classes within the 30 days required by § 214.3(g)(3)(iii).
(C) SEVIS school to SEVIS school. To
transfer from a SEVIS school to a
SEVIS school the student must first
notify his or her current school of the
intent to transfer and must indicate
the school to which he or she intends
to transfer. Upon notification by the
student, the current school will update
the student’s record in SEVIS as a
‘‘transfer out’’ and indicate the school
to which the student intends to transfer, and a release date. The release date
will be the current semester or session
completion date, or the date of expected transfer if earlier than the established academic cycle. The current
school will retain control over the student’s record in SEVIS until the student completes the current term or
reaches the release date. At the request

287

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00297

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

of the student, the DSO of the current
school may cancel the transfer request
at any time prior to the release date.
As of the release date specified by the
current DSO, the transfer school will
be granted full access to the student’s
SEVIS record and then becomes responsible for that student. The current
school conveys authority and responsibility over that student to the transfer
school, and will no longer have full
SEVIS access to that student’s record.
As such, a transfer request may not be
cancelled by the current DSO after the
release date has been reached. After
the release date, the transfer DSO
must complete the transfer of the student’s record in SEVIS and may issue a
SEVIS Form I–20. The student is then
required to contact the DSO at the
transfer school within 15 days of the
program start date listed on the SEVIS
Form I–20. Upon notification that the
student is enrolled in classes, the DSO
of the transfer school must update
SEVIS to reflect the student’s registration and current address, thereby acknowledging that the student has completed the transfer process. In the remarks section of the student’s SEVIS
Form I–20, the DSO must note that the
transfer has been completed, including
the date, and return the form to the
student. The transfer is effected when
the transfer school notifies SEVIS that
the student has enrolled in classes in
accordance with the 30 days required
by § 214.3(g)(3)(iii).
(D) SEVIS school to non-SEVIS school.
To transfer from a SEVIS school to a
non-SEVIS school, the student must
first notify his or her current school of
the intent to transfer and must indicate the school to which he or she intends to transfer. Upon notification by
the student, the current school will update the student’s status in SEVIS as
‘‘a transfer out’’, enter a ‘‘release’’ or expected transfer date, and update the
transfer school as ‘‘non-SEVIS.’’ The
student must then notify the school to
which the he or she intends to transfer
of his or her intent to enroll. After the
student has completed his or her current term or session, or has reached
the expected transfer date, the DSO at
the current school will no longer have
full access to the student’s SEVIS
record. At this point, if the student has

notified the transfer school of his or
her intent to transfer, and the transfer
school has determined that the student
has been maintaining status at his or
her current school, the transfer school
may issue the student a Form I–20. The
transfer will be effected only if the student completes the Student Certification portion of the Form I–20 and returns the form to a designated school
official of the transfer school within 15
days of the program start date listed
on Form I–20. Upon receipt of the student’s Form I–20 the DSO must do as
follows: note ‘‘transfer completed on
(date)’’ in the space provided for the
DSO’s remarks, thereby acknowledging
the student’s attendance; return the
Form I–20 to the student; submit the
school copy of the Form I–20 to the
Service’s data processing center within
30 days of receipt from the student; and
forward a photocopy of the school copy
to the school from which the student
transferred.
(iii) Notification. Upon receipt of the
student’s Form I–20 A–B, the DSO
must:
(A) Note ‘‘transfer completed on
(date)’’ on the student’s I–20 ID in the
space provided for the DSO’s remarks,
thereby acknowledging the student’s
attendance;
(B) Return the I–20 ID to the student;
(C) Submit the I–20 School copy to
the Service’s Data Processing Center
within 30 days of receipt from the student; and
(D) Forward a photocopy of the Form
I–20 A-B School Copy to the school
from which the student transferred.
(9) Employment—(i) On-campus employment. On-campus employment must either be performed on the school’s
premises, (including on-location commercial firms which provide services
for students on campus, such as the
school bookstore or cafeteria), or at an
off-campus location which is educationally affiliated with the school. Employment with on-site commercial
firms, such as a construction company
building a school building, which do
not provide direct student services is
not deemed on-campus employment for
the purposes of this paragraph. In the
case of off-campus locations, the educational affiliation must be associated

288

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00298

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

with the school’s established curriculum or related to contractually
funded research projects at the postgraduate level. In any event, the employment must be an integral part of
the student’s educational program.
Employment authorized under this
paragraph must not exceed 20 hours a
week while school is in session, unless
the Commissioner suspends the applicability of this limitation due to emergent circumstances, as determined by
the Commissioner, by means of notice
in the FEDERAL REGISTER, the student
demonstrates to the DSO that the employment is necessary to avoid severe
economic hardship resulting from the
emergent circumstances, and the DSO
notates the Form I–20 in accordance
with the FEDERAL REGISTER document.
An F–1 student may, however, work on
campus full-time when school is not in
session or during the annual vacation.
A student who has been issued a Form
I–20 A-B to begin a new program in accordance with the provision of 8 CFR
214.3(k) and who intends to enroll for
the next regular academic year, term,
or session at the institution which
issued the Form I–20 A-B may continue
on-campus employment incident to
status. Otherwise, an F-1 student may
not engage in on-campus employment
after completing a course of study, except employment for practical training
as authorized under paragraph (f)(10) of
this section. An F-I student may engage in any on-campus employment authorized under this paragraph which
will not displace United States residents. In the case of a transfer in
SEVIS, the student may only engage in
on-campus employment at the school
having jurisdiction over the student’s
SEVIS record. Upon initial entry to
begin a new course of study, an F–1 student may not begin on-campus employment more than 30 days prior to the actual start of classes.
(ii) Off-campus work authorization—
(A) General. An F–1 student may be authorized to work off-campus on a parttime basis in accordance with paragraph (f)(9)(ii) (B) or (C) of this section
after having been in F–1 status for one
full academic year provided that the
student is in good academic standing
as determined by the DSO. Part-time
off-campus employment authorized

under this section is limited to no
more than twenty hours a week when
school is in session. A student who is
granted off-campus employment authorization may work full-time during
holidays or school vacation. The employment authorization is automatically terminated whenever the student
fails to maintain status. In emergent
circumstances as determined by the
Commissioner, the Commissioner may
suspend the applicability of any or all
of the requirements of paragraph
(f)(9)(ii) of this section by notice in the
FEDERAL REGISTER.
(B) [Reserved]
(C) Severe economic hardship. If other
employment opportunities are not
available or are otherwise insufficient,
an eligible F–1 student may request offcampus employment work authorization based upon severe economic hardship
caused
by
unforeseen
circumstances beyond the student’s control. These circumstances may include
loss of financial aid or on-campus employment without fault on the part of
the student, substantial fluctuations in
the value of currency or exchange rate,
inordinate increases in tuition and/or
living costs, unexpected changes in the
financial condition of the student’s
source of support, medical bills, or
other substantial and unexpected expenses.
(D) Procedure for off-campus employment authorization due to severe economic
hardship. The student must request a
recommendation from the DSO for offcampus employment. The DSO at a
non-SEVIS school must make such a
certification on Form I–538, Certification by Designated School Official.
The DSO of a SEVIS school must complete such certification in SEVIS. The
DSO may recommend the student for
work off-campus for one year intervals
by certifying that:
(1) The student has been in F–1 status
for one full academic year;
(2) The student is in good standing as
a student and is carrying a full course
of study as defined in paragraph (f)(6)
of this section;
(3) The student has demonstrated
that acceptance of employment will
not interfere with the student’s carrying a full course of study; and

289

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00299

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(4) The student has demonstrated
that the employment is necessary to
avoid severe economic hardship due to
unforeseen circumstances beyond the
student’s control pursuant to paragraph (f)(9)(ii)(C) of this section and
has demonstrated that employment
under paragraph (f)(9)(i) of this section
is unavailable or otherwise insufficient
to meet the needs that have arisen as a
result of the unforeseen circumstances.
(E) [Reserved]
(F) Severe economic hardship application. (1) The applicant should submit
the economic hardship application for
employment authorization on Form I–
765, with the fee required by 8 CFR
103.7(b)(1), to the service center having
jurisdiction over his or her place of residence. Applicants at a non-SEVIS
school should submit Form I–20, Form
I–538, and any other supporting materials such as affidavits which further
detail the unforeseen circumstances
that require the student to seek employment authorization and the unavailability or insufficiency of employment under paragraph (f)(9)(i) of this
section. Students enrolled in a SEVIS
school should submit the SEVIS Form
I–20 with the employment page demonstrating the DSO’s comments and
certification.
(2) The Service shall adjudicate the
application for work authorization
based upon severe economic hardship
on the basis of Form I–20 ID, Form I–
538, and Form I–765, and any additional
supporting materials. If employment is
authorized, the adjudicating officer
shall issue an EAD. The Service director shall notify the student of the decision, and, if the application is denied,
of the reason or reasons for the denial.
No appeal shall lie from a decision to
deny a request for employment authorization under this section. The employment authorization may be granted in
one year intervals up to the expected
date of completion of the student’s current course of study. A student has permission to engage in off-campus employment only if the student receives
the EAD endorsed to that effect. Offcampus
employment
authorization
may be renewed by the Service only if
the student is maintaining status and
good academic standing. The employment authorization is automatically

terminated whenever the student fails
to maintain status.
(iii) Internship with an international
organization. A bona fide F–1 student
who has been offered employment by a
recognized international organization
within the meaning of the International Organization Immunities Act
(59 Stat. 669) must apply for employment authorization to the service center having jurisdiction over his or her
place of residence. A student seeking
employment authorization under this
provision is required to present a written certification from the international organization that the proposed employment is within the scope
of the organization’s sponsorship,
Form I–20 ID or SEVIS Form I–20 with
employment page completed by DSO
certifying eligibility for employment,
and a completed Form I–765, with required fee as contained in § 103.7(b)(1) of
this chapter.
(10) Practical training. Practical training may be authorized to an F–1 student who has been lawfully enrolled on
a full time basis, in a Service-approved
college, university, conservatory, or
seminary for one full academic year.
This provision also includes students
who, during their course of study, were
enrolled in a study abroad program, if
the student had spent at least one full
academic term enrolled in a full course
of study in the United States prior to
studying abroad. A student may be authorized 12 months of practical training, and becomes eligible for another 12
months of practical training when he
or she changes to a higher educational
level. Students in English language
training programs are ineligible for
practical training. An eligible student
may request employment authorization for practical training in a position
that is directly related to his or her
major area of study. There are two
types of practical training available:
(i) Curricular practical training. An F–
1 student may be authorized by the
DSO to participate in a curricular
practical training program that is an
integral part of an established curriculum. Curricular practical training
is defined to be alternative work/study,
internship, cooperative education, or
any other type of required internship

290

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00300

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

or practicum that is offered by sponsoring employers through cooperative
agreements with the school. Students
who have received one year or more of
full time curricular practical training
are ineligible for post-completion academic training. Exceptions to the one
academic year requirement are provided for students enrolled in graduate
studies that require immediate participation in curricular practical training.
A request for authorization for curricular practical training must be
made to the DSO. A student may begin
curricular practical training only after
receiving his or her Form I–20 with the
DSO endorsement.
(A) Non-SEVIS process. A student
must request authorization for curricular practical training using Form
I–538. Upon approving the request for
authorization, the DSO shall: certify
Form I–538 and send the form to the
Service’s data processing center; endorse the student’s Form I–20 ID with
‘‘full-time (or part-time) curricular
practical training authorized for (employer) at (location) from (date) to
(date)’’; and sign and date the Form I–
20ID before returning it to the student.
(B) SEVIS process. To grant authorization for a student to engage in curricular practical training, a DSO at a
SEVIS school will update the student’s
record in SEVIS as being authorized
for curricular practical training that is
directly related to the student’s major
area of study. The DSO will indicate
whether the training is full-time or
part-time, the employer and location,
and the employment start and end
date. The DSO will then print a copy of
the employment page of the SEVIS
Form I–20 indicating that curricular
practical training has been approved.
The DSO must sign, date, and return
the SEVIS Form I–20 to the student
prior to the student’s commencement
of employment.
(ii) Optional practical training.
(A) General. Consistent with the application and approval process in paragraph (f)(11) of this section, a student
may apply to USCIS for authorization
for temporary employment for optional
practical training directly related to
the student’s major area of study. The
student may not begin optional practical training until the date indicated

on his or her employment authorization document, Form I–766. A student
may be granted authorization to engage in temporary employment for optional practical training:
(1) During the student’s annual vacation and at other times when school is
not in session, if the student is currently enrolled, and is eligible for registration and intends to register for the
next term or session;
(2) While school is in session, provided that practical training does not
exceed 20 hours a week while school is
in session; or
(3) After completion of the course of
study, or, for a student in a bachelor’s,
master’s, or doctoral degree program,
after completion of all course requirements for the degree (excluding thesis
or equivalent). Continued enrollment,
for the school’s administrative purposes, after all requirements for the degree have been met does not preclude
eligibility for optional practical training. A student must complete all practical training within a 14-month period
following the completion of study, except that a 17-month extension pursuant to paragraph (f)(10)(ii)(C) of this
section does not need to be completed
within such 14-month period.
(B) Termination of practical training.
Authorization to engage in optional
practical training employment is automatically terminated when the student
transfers to another school or begins
study at another educational level.
(C) 17-month extension of post-completion OPT for students with a science,
technology, engineering, or mathematics
(STEM) degree. Consistent with paragraph (f)(11)(i)(C) of this section, a
qualified student may apply for an extension of OPT while in a valid period
of post-completion OPT. The extension
will be for an additional 17 months, for
a maximum of 29 months of OPT, if all
of the following requirements are met.
(1) The student has not previously received a 17-month OPT extension after
earning a STEM degree.
(2) The degree that was the basis for
the student’s current period of OPT is
a bachelor’s, master’s, or doctoral degree in one of the degree programs on
the current STEM Designated Degree
Program List, published on the SEVP
Web site at http://www.ice.gov/sevis.

291

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00301

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(3) The student’s employer is registered in the E-Verify program, as evidenced by either a valid E-Verify company identification number or, if the
employer is using a designated agent to
perform the E-Verify queries, a valid EVerify client company identification
number, and the employer is a participant in good standing in the E-Verify
program, as determined by USCIS.
(4) The employer agrees to report the
termination or departure of an OPT
employee to the DSO at the student’s
school or through any other means or
process identified by DHS if the termination or departure is prior to end of
the authorized period of OPT. Such reporting must be made within 48 hours
of the event. An employer shall consider a worker to have departed when
the employer knows the student has
left the employment or if the student
has not reported for work for a period
of 5 consecutive business days without
the consent of the employer, whichever
occurs earlier.
(D) Duration of status while on postcompletion OPT. For a student with approved post-completion OPT, the duration of status is defined as the period
beginning when the student’s application for OPT was properly filed and
pending approval, including the authorized period of post-completion
OPT, and ending 60 days after the OPT
employment authorization expires (allowing the student to prepare for departure, change educational levels at
the same school, or transfer in accordance with paragraph (f)(8) of this section).
(E) Periods of unemployment during
post-completion OPT. During post-completion OPT, F–1 status is dependent
upon employment. Students may not
accrue an aggregate of more than 90
days of unemployment during any
post-completion OPT carried out under
the initial post-completion OPT authorization. Students granted a 17month OPT extension may not accrue
an aggregate of more than 120 days of
unemployment during the total OPT
period comprising any post-completion
OPT carried out under the initial postcompletion OPT authorization and the
subsequent 17-month extension period.
(11) OPT application and approval
process.

(i) Student responsibilities. A student
must initiate the OPT application
process by requesting a recommendation for OPT from his or her DSO.
Upon making the recommendation, the
DSO will provide the student a signed
Form I–20 indicating that recommendation.
(A) Application for employment authorization. The student must properly file
a Form I–765, Application for Employment Authorization, with USCIS, accompanied by the required fee for the
Form I–765, and the supporting documents, as described in the form’s instructions.
(B) Filing deadlines for pre-completion
OPT and post-completion OPT.
(1) Students may file a Form I–765 for
pre-completion OPT up to 90 days before being enrolled for one full academic year, provided that the period of
employment will not start prior to the
completion of the full academic year.
(2) For post-completion OPT, the student must properly file his or her Form
I–765 up to 90 days prior to his or her
program end-date and no later than 60
days after his or her program end-date.
The student must also file the Form I–
765 with USCIS within 30 days of the
date the DSO enters the recommendation for OPT into his or her SEVIS
record.
(C) Applications for 17-month OPT extension. A student meeting the eligibility
requirement
in
paragraph
(f)(10)(ii)(C) of this section may file for
a 17-month extension of employment
authorization by filing Form I–765, Application for Employment Authorization, with the appropriate fee, prior to
the expiration date of the student’s
current OPT employment authorization. If a student timely and properly
files an application for a 17-month OPT
extension, but the Form I–766, Employment Authorization Document, currently in the student’s possession, expires prior to the decision on the student’s application for 17-month OPT
extension, the student’s Form I–766 is
extended automatically pursuant to
the terms and conditions specified in 8
CFR 274a.12(b)(6)(iv).
(D) Start of employment. A student
may not begin employment prior to the
approved starting date on his or her
employment authorization except as

292

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00302

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

noted in paragraph (f)(11)(i)(C) of this
section. A student may not request a
start date that is more than 60 days
after the student’s program end date.
Employment authorization will begin
on the date requested or the date the
employment authorization is adjudicated, whichever is later.
(ii) DSO responsibilities. A student
needs a recommendation from his or
her DSO in order to apply for OPT.
When a DSO recommends a student for
OPT, the school assumes the added responsibility for maintaining the SEVIS
record of that student for the entire period of authorized OPT, consistent with
paragraph (f)(12) of this section.
(A) Prior to making a recommendation, the DSO must ensure that the
student is eligible for the given type
and period of OPT and that the student
is aware of his or her responsibilities
for maintaining status while on OPT.
Prior to recommending a 17-month
OPT extension, the DSO must certify
that the student’s degree, as shown in
SEVIS, is a bachelor’s, master’s, or
doctorate degree with a degree code
that is on the current STEM Designated Degree Program List.
(B) The DSO must update the student’s SEVIS record with the DSO’s
recommendation for OPT before the
student can apply to USCIS for employment authorization. The DSO will
indicate in SEVIS whether the employment is to be full-time or part-time,
and note in SEVIS the start and end
date of employment.
(C) The DSO must provide the student with a signed, dated Form I–20 indicating that OPT has been recommended.
(iii) Decision on application for OPT
employment authorization. USCIS will
adjudicate the Form I–765 and, if approved, issue an EAD on the basis of
the DSO’s recommendation and other
eligibility considerations.
(A) The employment authorization
period for post-completion OPT begins
on the date requested or the date the
employment authorization application
is approved, whichever is later, and
ends at the conclusion of the remaining
time period of post-completion OPT
eligibility. The employment authorization period for the 17-month OPT extension begins on the day after the ex-

piration of the initial post-completion
OPT employment authorization and
ends 17 months thereafter, regardless
of the date the actual extension is approved.
(B) USCIS will notify the applicant of
the decision and, if the application is
denied, of the reason or reasons for the
denial.
(C) The applicant may not appeal the
decision.
(12) Reporting while on optional practical training.
(i) General. An F–1 student who is authorized by USCIS to engage in optional practical training (OPT) employment is required to report any
change of name or address, or interruption of such employment to the DSO
for the duration of the optional practical training. A DSO who recommends
a student for OPT is responsible for updating the student’s record to reflect
these reported changes for the duration
of the time that training is authorized.
(ii) Additional reporting obligations for
students with an approved 17-month OPT.
Students with an approved 17-month
OPT extension have additional reporting obligations. Compliance with these
reporting requirements is required to
maintain F–1 status. The reporting obligations are:
(A) Within 10 days of the change, the
student must report to the student’s
DSO a change of legal name, residential or mailing address, employer
name, employer address, and/or loss of
employment.
(B) The student must make a validation report to the DSO every six
months starting from the date the extension begins and ending when the
student’s F–1 status ends, the student
changes educational levels at the same
school, or the student transfers to another school or program, or the 17month OPT extension ends, whichever
is first. The validation is a confirmation that the student’s information in
SEVIS for the items in listed in paragraph (f)(12)(ii)(A) of this section is
current and accurate. This report is
due to the student’s DSO within 10
business days of each reporting date.
(13) Temporary absence from the United
States of F–1 student granted employment
authorization. (i) A student returning
from a temporary trip abroad with an

293

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00303

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

unexpired off-campus employment authorization on his or her I–20 ID may
resume employment only if the student
is readmitted to attend the same
school which granted the employment
authorization.
(ii) An F–1 student who has an unexpired EAD issued for post-completion
practical training and who is otherwise
admissible may return to the United
States to resume employment after a
period of temporary absence. The EAD
must be used in combination with an I–
20 ID endorsed for reentry by the DSO
within the last six months.
(14) Effect of strike or other labor dispute. Any employment authorization,
whether or not part of an academic
program, is automatically suspended
upon certification by the Secretary of
Labor or the Secretary’s designee to
the Commissioner of the Immigration
and Naturalization Service or the Commissioner’s designee, that a strike or
other labor dispute involving a work
stoppage of workers is in progress in
the occupation at the place of employment. As used in this paragraph, ‘‘place
of employment’’ means the facility or
facilities where a labor dispute exists.
The employer is prohibited from transferring F–1 students working at other
facilities to the facility where the
work stoppage is occurring.
(15) Spouse and children of F–1 student.
The F–2 spouse and minor children of
an F–1 student shall each be issued an
individual SEVIS Form I–20 in accordance with the provisions of § 214.3(k).
(i) Employment. The F–2 spouse and
children of an F–1 student may not accept employment.
(ii) Study. (A) The F–2 spouse of an F–
1 student may not engage in full time
study, and the F–2 child may only engage in full time study if the study is
in an elementary or secondary school
(kindergarten through twelfth grade).
The F–2 spouse and child may engage
in study that is avocational or recreational in nature.
(B) An F–2 spouse or F–2 child desiring to engage in full time study, other
than that allowed for a child in paragraph (f)(15)(ii)(A) of this section, must
apply for and obtain a change of nonimmigrant classification to F–1, J–1, or
M–1 status. An F–2 spouse or child who
was enrolled on a full time basis prior

to January 1, 2003, will be allowed to
continue study but must file for a
change of nonimmigrant classification
to F–1, J–1, or M–1 status on or before
March 11, 2003.
(C) An F–2 spouse or F–2 child violates his or her nonimmigrant status
by engaging in full time study except
as provided in paragraph (f)(15)(ii)(A)
or (B) of this section.
(16) Reinstatement to student status—(i)
General. The district director may consider reinstating a student who makes
a request for reinstatement on Form I–
539, Application to Extend/Change Nonimmigrant Status, accompanied by a
properly completed SEVIS Form I–20
indicating the DSO’s recommendation
for reinstatement (or a properly completed Form I–20A-B issued prior to
January 30, 2003, from the school the
student is attending or intends to attend prior to August 1, 2003). The district director may consider granting
the request if the student:
(A) Has not been out of status for
more than 5 months at the time of filing the request for reinstatement (or
demonstrates that the failure to file
within the 5 month period was the result of exceptional circumstances and
that the student filed the request for
reinstatement as promptly as possible
under
these
exceptional
circumstances);
(B) Does not have a record of repeated or willful violations of Service
regulations;
(C) Is currently pursuing, or intending to pursue, a full course of study in
the immediate future at the school
which issued the Form I–20;
(D) Has not engaged in unauthorized
employment;
(E) Is not deportable on any ground
other than section 237(a)(1)(B) or (C)(i)
of the Act; and
(F) Establishes to the satisfaction of
the Service, by a detailed showing, either that:
(1) The violation of status resulted
from circumstances beyond the student’s control. Such circumstances
might include serious injury or illness,
closure of the institution, a natural
disaster, or inadvertence, oversight, or
neglect on the part of the DSO, but do
not include instances where a pattern

294

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00304

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

of repeated violations or where a willful failure on the part of the student
resulted in the need for reinstatement;
or
(2) The violation relates to a reduction in the student’s course load that
would have been within a DSO’s power
to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.
(ii) Decision. If the Service reinstates
the student, the Service shall endorse
the student’s copy of Form I–20 to indicate the student has been reinstated
and return the form to the student. If
the Form I–20 is from a non-SEVIS
school, the school copy will be forwarded to the school. If the Form I–20
is from a SEVIS school, the adjudicating officer will update SEVIS to reflect the Service’s decision. In either
case, if the Service does not reinstate
the student, the student may not appeal that decision.
(17) Current name and address. A student must inform the DSO and the
Service of any legal changes to his or
her name or of any change of address,
within 10 days of the change, in a manner prescribed by the school. A student
enrolled at a SEVIS school can satisfy
the requirement in 8 CFR 265.1 of notifying the Service by providing a notice
of a change of address within 10 days to
the DSO, who in turn shall enter the
information in SEVIS within 21 days of
notification by the student. A student
enrolled at a non-SEVIS school must
submit a notice of change of address to
the Service, as provided in 8 CFR 265.1,
within 10 days of the change. Except in
the case of a student who cannot receive mail where he or she resides, the
address provided by the student must
be the actual physical location where
the student resides rather than a mailing address. In cases where a student
provides a mailing address, the school
must maintain a record of, and must
provide upon request from the Service,
the actual physical location where the
student resides.
(18) Special rules for certain border commuter students—(i) Applicability. For
purposes of the special rules in this
paragraph (f)(18), the term ‘‘border
commuter student’’ means a national of
Canada or Mexico who is admitted to
the United States as an F–1 non-

immigrant student to enroll in a full
course of study, albeit on a part-time
basis, in an approved school located
within 75 miles of a United States land
border. A border commuter student
must maintain actual residence and
place of abode in the student’s country
of nationality, and seek admission to
the United States at a land border
port-of-entry. These special rules do
not apply to a national of Canada or
Mexico who is:
(A) Residing in the United States
while attending an approved school as
an F–1 student, or
(B) Enrolled in a full course of study
as defined in paragraph (f)(6) of this
section.
(ii) Full course of study. The border
commuter student must be enrolled in
a full course of study at the school that
leads to the attainment of a specific
educational or professional objective,
albeit on a part-time basis. A designated school official at the school
may authorize an eligible border commuter student to enroll in a course
load below that otherwise required for
a full course of study under paragraph
(f)(6) of this section, provided that the
reduced course load is consistent with
the border commuter student’s approved course of study.
(iii) Period of admission. An F–1 nonimmigrant student who is admitted as
a border commuter student under this
paragraph (f)(18) will be admitted until
a date certain. The DSO is required to
specify a completion date on the Form
I–20 that reflects the actual semester
or term dates for the commuter student’s current term of study. A new
Form I–20 will be required for each new
semester or term that the border commuter student attends at the school.
The provisions of paragraphs (f)(5) and
(f)(7) of this section, relating to duration of status and extension of stay,
are not applicable to a border commuter student.
(iv) Employment. A border commuter
student may not be authorized to accept any employment in connection
with his or her F–1 student status, except for curricular practical training as
provided in paragraph (f)(10)(i) of this
section or post-completion optional
practical training as provided in paragraph (f)(10)(ii)(A)(3) of this section.

295

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00305

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(19) Remittance of the fee. An alien
who applies for F–1 or F–3 nonimmigrant status in order to enroll in
a program of study at a Department of
Homeland Security (DHS)-approved
educational institution is required to
pay the Student and Exchange Visitor
Information System (SEVIS) fee to
DHS, pursuant to 8 CFR 214.13, except
as otherwise provided in that section.
(g) Representatives to international organizations—(1) General. The determination by a consular officer prior to admission and the recognition by the
Secretary of State subsequent to admission is evidence of the proper classification of a nonimmigrant under
section 101(a)(15)(G) of the Act. An
alien who has a nonimmigrant status
under section 101(a)(15)(G) (i), (ii), (iii)
or (iv) of the Act is to be admitted for
the duration of the period for which
the alien continues to be recognized by
the Secretary of State as being entitled
to that status. An alien defined in section (101)(a)(15)(G)(v) of the Act is to be
admitted for an initial period of not
more than three years, and may be
granted extensions of temporary stay
in increments of not more than two
years. In addition, the application for
extension of temporary stay must be
accompanied by a statement signed by
the employing official stating that he
or she intends to continue to employ
the applicant and describing the type
of work the applicant will perform.
(2) Definition of G–1, G–3, or G–4 dependent. For purposes of employment
in the United States, the term dependent of a G–1, G–3, or G–4 principal alien,
as used in § 214.2(g), means any of the
following immediate members of the
family habitually residing in the same
household as the principal alien who is
an officer or employee assigned to a
mission, to an international organization, or is employed by an international organization in the United
States:
(i) Spouse;
(ii) Unmarried children under the age
of 21;
(iii) Unmarried sons or daughters
under the age of 23 who are in full-time
attendance as students at post-secondary educational institutions;
(iv) Unmarried sons or daughters
under the age of 25 who are in full-time

attendance as students at post-secondary educational institutions if a
formal bilateral employment agreement permitting their employment in
the United States was signed prior to
November 21, 1988, and such bilateral
employment agreement does not specify 23 as the maximum age for employment of such sons and daughters. The
Office of Protocol of the Department of
State shall maintain a listing of foreign states which the United States
has such bilateral employment agreements. The provisions of this paragraph apply only to G–1 and G–3 dependents under certain bilateral agreements and are not applicable to G–4 dependents;
(v) Unmarried sons or daughters who
are physically or mentally disabled to
the extent that they cannot adequately
care for themselves or cannot establish, maintain, or re-establish their
own households. The Department of
State or the Service may require certification(s) as it deems sufficient to
document such mental or physical disability; or
(vi) An immediate family member of
a G–1, G–3, or G–4 principal alien described in 22 CFR 41.21(a)(3)(i) to (iv)
with G–1, G–3, or G–4 nonimmigrant
status who falls within a category of
aliens designated by the Department of
State as qualifying dependents.
(3) Applicability of a formal bilateral
agreement or an informal de facto arrangement for G–1 and G–3 dependents.
The applicability of a formal bilateral
agreement shall be based on the foreign
state which employs the principal alien
and not on the nationality of the principal alien or dependent. The applicability of an informal de facto arrangement shall be based on the foreign
state which employs the principal
alien, but under a de facto arrangement the principal alien also must be a
national of the foreign state which employs him or her in the United States.
(4) Income tax, Social Security liability;
non-applicability of certain immunities.
Dependents who are granted employment authorization under this section
are responsible for payment of all federal, state and local income, employment and related taxes and Social Security contributions on any remuneration received. In addition, immunity

296

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00306

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

from civil or administrative jurisdiction in accordance with Article 37 of
the Vienna Convention on Diplomatic
Relations or other international agreements does not apply to these dependents with respect to matters arising
out of their employment.
(5) G–1 and G–3 dependent employment
pursuant to formal bilateral employment
agreements and informal de facto reciprocal arrangements, and G–4 dependent
employment. (i) The Office of Protocol
shall maintain a listing of foreign
states which have entered into formal
bilateral employment agreements. Dependents of a G–1 or G–3 principal alien
assigned to official duty in the United
States may accept or continue in unrestricted employment based on such formal bilateral agreements, if the applicable agreement includes persons in G–
1 or G–3 visa status, upon favorable
recommendation by the Department of
State and issuance of employment authorization documentation by the
Service in accordance with 8 CFR part
274a. The application procedures are
set forth in paragrpah (g)(6) of this section.
(ii) For purposes of this section, an
informal de facto reciprocal arrangement exists when the Department of
State determines that a foreign state
allows appropriate employment on the
local economy for dependents of certain United States officials assigned to
duty in that foreign state. The Office of
Protocol shall maintain a listing of
countries with which such reciprocity
exists. Dependents of a G–1 or G–3 principal alien assigned to official duty in
the United States may be authorized to
accept or continue in employment
based upon informal de facto arrangements, and dependents of a G–4 principal alien assigned to official duty in
the United States may be authorized to
accept or continue in employment
upon favorable recommendation by the
Department of State and issuance of
employment authorization by the Service in accordance with 8 CFR part 274a.
Additionally, the procedures set forth
in paragraph (g)(6) of this section must
be complied with, and the following
conditions must be met:
(A) Both the principal alien and the
dependent desiring employment are

maintaining G–1, G–3, or G–4 status as
appropriate;
(B) The principal’s assignment in the
United States is expected to last more
than six months;
(C) Employment of a similar nature
for dependents of United States Government officials assigned to official
duty in the foreign state employing the
principal alien is not prohibited by
that foreign government. The provisions of this paragraph apply only to
G–1 and G–3 dependents;
(D) The proposed employment is not
in an occupation listed in the Department of Labor Schedule B (20 CFR part
656), or otherwise determined by the
Department of Labor to be one for
which there is an oversupply of qualified U.S. workers in the area of proposed employment. This Schedule B restriction does not apply to a dependent
son or daughter who is a full-time student if the employment is part-time,
consisting of not more than 20 hours
per week, and/or if it is temporary employment of not more than 12 weeks
during school holiday periods; and
(E) The proposed employment is not
contrary to the interest of the United
States. Employment contrary to the
interest of the United States includes,
but is not limited to, the employment
of G–1, G–3, or G–4 dependents: who
have criminal records; who have violated United States immigration laws
or regulations, or visa laws or regulations; who have worked illegally in the
United States; and/or who cannot establish that they have paid taxes and
social security on income from current
or previous United States employment.
Additionally, the Department of State
may determine a G–4 dependent’s employment is contrary to the interest of
the United States when the principal
alien’s country of nationality has one
or more components of an international organization or international
organizations within its borders and
does not allow the employment of dependents of United States citizens employed by such component(s) or organization(s).
(6) Application procedures. The following procedures are applicable to G–
1 and G–3 dependent employment applications under bilateral agreements and

297

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00307

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

de facto arrangements, as well as to G–
4 dependent employment applications:
(i) The dependent must submit a
completed Form I–566 to the Department of State through the office, mission, or organization which employs
his or her principal alien. If the principal is assigned to or employed by the
United Nations, the Form I–566 must be
submitted to the U.S. Mission to the
United Nations. All other applications
must be submitted to the Office of Protocol of the Department of State. A dependent applying under paragraph
(g)(2) (iii) or (iv) of this section must
submit a certified statement from the
post-secondary educational institution
confirming that he or she is pursuing
studies on a full-time basis. A dependent applying under paragraph (g)(2)(v)
of this section must submit medical
certification regarding his or her condition. The certification should identify the dependent and the certifying
physician and give the physician’s
phone number; identify the condition,
describe the symptoms and provide a
prognosis; certify that the dependent is
unable to establish, re-establish, and
maintain a home or his or her own. Additionally, a G–1 or G–3 dependent applying under the terms of a de facto arrangement or a G–4 dependent must attach a statement from the prospective
employer which includes the dependent’s name; a description of the position offered and the duties to be performed;
the
salary
offered;
and
verification that the dependent possesses the qualifications for the position.
(ii) The Department of State reviews
and verifies the information provided,
makes its determination, and endorses
the Form I–566.
(iii) If the Department of State’s endorsement is favorable, the dependent
may apply to USCIS for employment
authorization. When applying to USCIS
for employment authorization, the dependent must present his or her Form
I–566 with a favorable endorsement
from the Department of State and any
additional documentation as may be
required by the Secretary.
(7) Period of time for which employment
may be authorized. If approved, an application to accept or continue employment under this section shall be grant-

ed in increments of not more than
three years each.
(8) No appeal. There shall be no appeal from a denial of permission to accept or continue employment under
this section.
(9) Dependents or family members of
principal aliens classified G–2 or G–5. A
dependent or family member of a principal alien classified G–2 or G–5 may
not be employed in the United States
under this section.
(10) Unauthorized employment. An
alien
classified
under
section
101(a)(15)(G) of the Act who is not a
principal alien and who engages in employment outside the scope of, or in a
manner contrary to this section, may
be considered in violation of section
241(a)(1)(C)(i) of the Act. An alien who
is classified under section 101(a)(15)(G)
of the Act who is a principal alien and
who engages in employment outside
the scope of his/her official position
may be considered in violation of section 241(a)(1)(C)(i) of the Act.
(11) Special provision. As of February
16, 1990 no new employment authorization will be granted and no pre-existing
employment authorization will be extended for a G–1 dependent absent an
appropriate bilateral agreement or de
facto arrangement. However, a G–1 dependent who has been granted employment authorization by the Department
of State prior to the effective date of
this section and who meets the definition of dependent under § 214.2(g)(2) (i),
(ii), (iii) or (v) of this part but is not
covered by the terms of a bilateral
agreement or de facto arrangement
may be allowed to continue in employment until whichever of the following
occurs first:
(i) The employment authorization by
the Department of State expires; or
(ii) He or she no longer qualifies as a
dependent as that term is defined in
this section; or
(iii) March 19, 1990.
(h) Temporary employees—(1) Admission of temporary employees—(i) General.
Under section 101(a)(15)(H) of the Act,
an alien may be authorized to come to
the United States temporarily to perform services or labor for, or to receive
training from, an employer, if petitioned for by that employer. Under this
nonimmigrant category, the alien may

298

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00308

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

be classified as follows: under section
101(a)(15)(H)(i)(c) of the Act as a registered
nurse;
under
section
101(a)(15)(H)(i)(b) of the Act as an alien
who is coming to perform services in a
specialty occupation, services relating
to a Department of Defense (DOD) cooperative research and development
project or coproduction project, or
services as a fashion model who is of
distinguished merit and ability; under
section 101(a)(15)(H)(ii)(a) of the Act as
an alien who is coming to perform agricultural labor or services of a temporary or seasonal nature; under section 101(a)(15)(H)(ii)(b) of the Act as an
alien coming to perform other temporary services or labor; or under section 101(a)(15)(H)(iii) of the Act as an
alien who is coming as a trainee or as
a participant in a special education exchange visitor program. These classifications are called H–1C, H–1B, H–2A,
H–2B, and H–3, respectively. The employer must file a petition with the
Service for review of the services or
training and for determination of the
alien’s eligibility for classification as a
temporary employee or trainee, before
the alien may apply for a visa or seek
admission to the United States. This
paragraph sets forth the standards and
procedures applicable to these classifications.
(ii) Description of classifications. (A)
An H–1C classification applies to an
alien who is coming temporarily to the
United States to perform services as a
registered nurse, meets the requirements of section 212(m)(1) of the Act,
and will perform services at a facility
(as defined at section 212(m)(6) of the
Act) for which the Secretary of Labor
has determined and certified to the Attorney General that an unexpired attestation is on file and in effect under
section 212(m)(2) of the Act. This classification will expire 4 years from June
11, 2001.
(B) An H–1B classification applies to
an alien who is coming temporarily to
the United States:
(1) To perform services in a specialty
occupation (except agricultural workers, and aliens described in section
101(a)(15) (O) and (P) of the Act) described in section 214(i)(1) of the Act,
that meets the requirements of section
214(i)(2) of the Act, and for whom the

Secretary of Labor has determined and
certified to the Attorney General that
the prospective employer has filed a
labor condition application under section 212(n)(1) of the Act;
(2) To perform services of an exceptional nature requiring exceptional
merit and ability relating to a cooperative research and development project
or a coproduction project provided for
under a Government-to-Government
agreement administered by the Secretary of Defense;
(3) To perform services as a fashion
model of distinguished merit and ability and for whom the Secretary of
Labor has determined and certified to
the Attorney General that the prospective employer has filed a labor condition application under section 212(n)(1)
of the Act.
(C) An H–2A classification applies to
an alien who is coming temporarily to
the United States to perform agricultural work of a temporary or seasonal
nature.
(D) An H–2B classification applies to
an alien who is coming temporarily to
the United States to perform nonagricultural work of a temporary or
seasonal nature, if there are not sufficient workers who are able, willing,
qualified, and available at the time of
application for a visa and admission to
the United States and at the place
where the alien is to perform such services or labor. This classification does
not apply to graduates of medical
schools coming to the United States to
perform services as members of the
medical profession. The temporary or
permanent nature of the services or
labor described on the approved temporary labor certification are subject
to review by USCIS. This classification
requires a temporary labor certification issued by the Secretary of Labor
or the Governor of Guam prior to the
filing of a petition with USCIS.
(E) An H–3 classification applies to
an alien who is coming temporarily to
the United States:
(1) As a trainee, other than to receive
graduate medical education or training, or training provided primarily at
or by an academic or vocational institution, or
(2) As a participant in a special education exchange visitor program which

299

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00309

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

provides for practical training and experience in the education of children
with physical, mental, or emotional
disabilities.
(2) Petitions—(i) Filing of petitions—
(A) General. A United States employer seeking to classify an alien as
an H–1B, H–2A, H–2B, or H–3 temporary
employee must file a petition on Form
I–129, Petition for Nonimmigrant
Worker, as provided in the form instructions.
(B) Service or training in more than one
location. A petition that requires services to be performed or training to be
received in more than one location
must include an itinerary with the
dates and locations of the services or
training and must be filed with USCIS
as provided in the form instructions.
The address that the petitioner specifies as its location on the Form I–129
shall be where the petitioner is located
for purposes of this paragraph.
(C) Services or training for more than
one employer. If the beneficiary will
perform nonagricultural services for,
or receive training from, more than
one employer, each employer must file
a separate petition with USCIS as provided in the form instructions.
(D) Change of employers. If the alien is
in the United States and seeks to
change employers, the prospective new
employer must file a petition on Form
I–129 requesting classification and an
extension of the alien’s stay in the
United States. If the new petition is
approved, the extension of stay may be
granted for the validity of the approved
petition. The validity of the petition
and the alien’s extension of stay must
conform to the limits on the alien’s
temporary stay that are prescribed in
paragraph (h)(13) of this section. Except as provided by 8 CFR 274a.12(b)(21)
or section 214(n) of the Act, 8 U.S.C.
1184(n), the alien is not authorized to
begin the employment with the new petitioner until the petition is approved.
An H–1C nonimmigrant alien may not
change employers.
(E) Amended or new petition. The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was
filed to reflect any material changes in
the terms and conditions of employment or training or the alien’s eligi-

bility as specified in the original approved petition. An amended or new H–
1C, H–1B, H–2A, or H–2B petition must
be accompanied by a current or new
Department of Labor determination. In
the case of an H–1B petition, this requirement includes a new labor condition application.
(F) Agents as petitioners. A United
States agent may file a petition in
cases involving workers who are traditionally self-employed or workers who
use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a
foreign employer authorizes the agent
to act on its behalf. A United States
agent may be: the actual employer of
the beneficiary, the representative of
both the employer and the beneficiary,
or, a person or entity authorized by the
employer to act for, or in place of, the
employer as it agent. A petition filed
by a United States agent is subject to
the following conditions;
(1) An agent performing the function
of an employer must guarantee the
wages and other terms and conditions
of employment by contractual agreement with the beneficiary or beneficiaries of the petition. The agent/employer must also provide an itinerary
of definite employment and information on any other services planned for
the period of time requested.
(2) A person or company in business
as an agent may file the H petition involving multiple employers as the representative of both the employers and
the beneficiary or beneficiaries if the
supporting documentation includes a
complete itinerary of services or engagements. The itinerary shall specify
the dates of each service or engagement, the names and addresses of the
actual employers, and the names and
addresses of the establishment, venues,
or locations where the services will be
performed. In questionable cases, a
contract between the employers and
the beneficiary or beneficiaries may be
required. The burden is on the agent to
explain the terms and conditions of the
employment and to provide any required documentation.
(3) A foreign employer who, through
a United States agent, files a petition

300

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00310

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

for an H nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section
274A of the Act and 8 CFR part 274a.
(G) Multiple H–1B petitions. An employer may not file, in the same fiscal
year, more than one H–1B petition on
behalf of the same alien if the alien is
subject to the numerical limitations of
section 214(g)(1)(A) of the Act or is exempt from those limitations under section 214(g)(5)(C) of the Act. If an H–1B
petition is denied, on a basis other
than fraud or misrepresentation, the
employer may file a subsequent H–1B
petition on behalf of the same alien in
the same fiscal year, provided that the
numerical limitation has not been
reached or if the filing qualifies as exempt from the numerical limitation.
Otherwise, filing more than one H–1B
petition by an employer on behalf of
the same alien in the same fiscal year
will result in the denial or revocation
of all such petitions. If USCIS believes
that related entities (such as a parent
company, subsidiary, or affiliate) may
not have a legitimate business need to
file more than one H–1B petition on behalf of the same alien subject to the
numerical
limitations
of
section
214(g)(1)(A) of the Act or otherwise eligible for an exemption under section
214(g)(5)(C) of the Act, USCIS may
issue a request for additional evidence
or notice of intent to deny, or notice of
intent to revoke each petition. If any
of the related entities fail to demonstrate a legitimate business need to
file an H–1B petition on behalf of the
same alien, all petitions filed on that
alien’s behalf by the related entities
will be denied or revoked.
(ii) Multiple beneficiaries. More than
one beneficiary may be included in an
H–1C, H–2A, H–2B, or H–3 petition if the
beneficiaries will be performing the
same service, or receiving the same
training, for the same period of time,
and in the same location H–2A and H–
2B petitions for workers from countries
not designated in accordance with
paragraph (h)(6)(i)(E) of this section
should be filed separately.
(iii) Naming beneficiaries. H–1B, H–1C,
and H–3 petitions must include the
name of each beneficiary. Except as
provided in this paragraph (h), all H–2A
and H–2B petitions must include the

name of each beneficiary who is currently in the United States, but need
not name any beneficiary who is not
currently in the United States.
Unnamed beneficiaries must be shown
on the petition by total number. USCIS
may require the petitioner to name H–
2B beneficiaries where the name is
needed to establish eligibility for H–2B
nonimmigrant status. If all of the
beneficiaries covered by an H–2A or H–
2B temporary labor certification have
not been identified at the time a petition is filed, multiple petitions for subsequent beneficiaries may be filed at
different times but must include a copy
of the same temporary labor certification. Each petition must reference
all previously filed petitions associated
with that temporary labor certification. All H–2A and H–2B petitions on
behalf of workers who are not from a
country that has been designated as a
participating country in accordance
with
paragraphs
(h)(5)(i)(F)(1)
or
(h)(6)(i)(E)(1) of this section must name
all the workers in the petition who fall
within these categories. All H–2A and
H–2B petitions must state the nationality of all beneficiaries, whether or
not named, even if there are beneficiaries from more than one country.
(iv) [Reserved]
(3) Petition for registered nurse (H–
1C)—(i) General. (A) For purposes of H–
1C classification, the term ‘‘registered
nurse’’ means a person who is or will be
authorized by a State Board of Nursing
to engage in registered nurse practice
in a state or U.S. territory or possession, and who is or will be practicing at
a facility which provides health care
services.
(B) A United States employer which
provides health care services is referred to as a facility. A facility may file
an H–1C petition for an alien nurse to
perform the services of a registered
nurse, if the facility meets the eligibility standards of 20 CFR 655.1111 and
the other requirements of the Department of Labor’s regulations in 20 CFR
part 655, subpart L.
(C) The position must involve nursing practice and require licensure or
other authorization to practice as a
registered nurse from the State Board
of Nursing in the state of intended employment.

301

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00311

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(ii) [Reserved]
(iii) Beneficiary requirements. An H–1C
petition for a nurse shall be accompanied by evidence that the nurse:
(A) Has obtained a full and unrestricted license to practice nursing in
the country where the alien obtained
nursing education, or has received
nursing education in the United States;
(B) Has passed the examination given
by the Commission on Graduates of
Foreign Nursing Schools (CGFNS), or
has obtained a full and unrestricted
(permanent) license to practice as a
registered nurse in the state of intended employment, or has obtained a
full and unrestricted (permanent) license in any state or territory of the
United States and received temporary
authorization to practice as a registered nurse in the state of intended
employment; and
(C) Is fully qualified and eligible
under the laws (including such temporary or interim licensing requirements which authorize the nurse to be
employed) governing the place of intended employment to practice as a
registered nurse immediately upon admission to the United States, and is
authorized under such laws to be employed by the employer. For purposes
of this paragraph, the temporary or interim licensing may be obtained immediately after the alien enters the
United States.
(iv) Petitioner requirements. The petitioning facility shall submit the following with an H–1C petition:
(A) A current copy of the DOL’s notice of acceptance of the filing of its
attestation on Form ETA 9081;
(B) A statement describing any limitations which the laws of the state or
jurisdiction of intended employment
place on the alien’s services; and
(C) Evidence that the alien(s) named
on the petition meets the definition of
a registered nurse as defined at 8 CFR
214.2(h)(3)(i)(A), and satisfies the requirements
contained
in
section
212(m)(1) of the Act.
(v) Licensure requirements. (A) A nurse
who is granted H–1C classification
based on passage of the CGFNS examination must, upon admission to the
United States, be able to obtain temporary licensure or other temporary
authorization to practice as a reg-

istered nurse from the State Board of
Nursing in the state of intended employment.
(B) An alien who was admitted as an
H–1C nonimmigrant on the basis of a
temporary license or authorization to
practice as a registered nurse must
comply with the licensing requirements for registered nurses in the state
of intended employment. An alien admitted as an H–1C nonimmigrant is required to obtain a full and unrestricted
license if required by the state of intended employment. The Service must
be notified pursuant to § 214.2(h)(11)
when an H–1C nurse is no longer licensed as a registered nurse in the
state of intended employment.
(C) A nurse shall automatically lose
his or her eligibility for H–1C classification if he or she is no longer performing the duties of a registered professional nurse. Such a nurse is not authorized to remain in employment unless he or she otherwise receives authorization from the Service.
(vi) Other requirements. (A) If the Secretary of Labor notifies the Service
that a facility which employs H–1C
nonimmigrant nurses has failed to
meet a condition in its attestation, or
that there was a misrepresentation of a
material fact in the attestation, the
Service shall not approve petitions for
H–1C nonimmigrant nurses to be employed by the facility for a period of at
least 1 year from the date of receipt of
such notice. The Secretary of Labor
shall make a recommendation with respect to the length of debarment. If the
Secretary of Labor recommends a
longer period of debarment, the Service
will give considerable weight to that
recommendation.
(B) If the facility’s attestation expires, or is suspended or invalidated by
DOL, the Service will not suspend or
revoke the facility’s approved petitions
for nurses, if the facility has agreed to
comply with the terms of the attestation under which the nurses were admitted or subsequent attestations accepted by DOL for the duration of the
nurses’ authorized stay.
(4) Petition for alien to perform services
in a specialty occupation, services relating
to a DOD cooperative research and development project or coproduction project, or
services of distinguished merit and ability

302

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00312

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

in the ield of fashion modeling (H–1B)—
(i)(A) Types of H–1B classification. An H–
1B classification may be granted to an
alien who:
(1) Will perform services in a specialty occupation which requires theoretical and practical application of a
body of highly specialized knowledge
and attainment of a baccalaureate or
higher degree or its equivalent as a
minimum requirement for entry into
the occupation in the United States,
and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation;
(2) Based on reciprocity, will perform
services of an exceptional nature requiring exceptional merit and ability
relating to a DOD cooperative research
and development project or a coproduction project provided for under a Government-to-Government agreement administered by the Secretary of Defense;
(3) Will perform services in the field
of fashion modeling and who is of distinguished merit and ability.
(B) General requirements for petitions
involving a specialty occupation. (1) Before filing a petition for H–1B classification in a specialty occupation, the
petitioner shall obtain a certification
from the Department of Labor that it
has filed a labor condition application
in the occupational specialty in which
the alien(s) will be employed.
(2) Certification by the Department
of Labor of a labor condition application in an occupational classification
does not constitute a determination by
that agency that the occupation in
question is a specialty occupation. The
director shall determine if the application involves a specialty occupation as
defined in section 214(i)(1) of the Act.
The director shall also determine
whether the particular alien for whom
H–1B classification is sought qualifies
to perform services in the specialty occupation as prescribed in section
214(i)(2) of the Act.
(3) If all of the beneficiaries covered
by an H–1B labor condition application
have not been identified at the time a
petition is filed, petitions for newly
identified beneficiaries may be filed at
any time during the validity of the
labor condition application using pho-

tocopies of the same application. Each
petition must refer by file number to
all previously approved petitions for
that labor condition application.
(4) When petitions have been approved for the total number of workers
specified in the labor condition application, substitution of aliens against
previously approved openings shall not
be made. A new labor condition application shall be required.
(5) If the Secretary of Labor notifies
the Service that the petitioning employer has failed to meet a condition of
paragraph (B) of section 212(n)(1) of the
Act, has substantially failed to meet a
condition of paragraphs (C) or (D) of
section 212(n)(1) of the Act, has willfully failed to meet a condition of paragraph (A) of section 212(n)(1) of the Act,
or has misrepresented any material
fact in the application, the Service
shall not approve petitions filed with
respect to that employer under section
204 or 214(c) of the Act for a period of at
least one year from the date of receipt
of such notice.
(6) If the employer’s labor condition
application is suspended or invalidated
by the Department of Labor, the Service will not suspend or revoke the employer’s approved petitions for aliens
already employed in specialty occupations if the employer has certified to
the Department of Labor that it will
comply with the terms of the labor
condition application for the duration
of the authorized stay of aliens it employs.
(C) General requirements for petitions
involving an alien of distinguished merit
and ability in the field of fashion modeling. H–1B classification may be granted to an alien who is of distinguished
merit and ability in the field of fashion
modeling. An alien of distinguished
merit and ability in the field of fashion
modeling is one who is prominent in
the field of fashion modeling. The alien
must also be coming to the United
States to perform services which require a fashion model of prominence.
(ii) Definitions.
Prominence means a high level of
achievement in the field of fashion
modeling evidenced by a degree of skill
and recognition substantially above

303

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00313

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or wellknown in the field of fashion modeling.
Regonized authority means a person or
an organization with expertise in a particular field, special skills or knowledge in that field, and the expertise to
render the type of opinion requested.
Such an opinion must state:
(1) The writer’s qualifications as an
expert;
(2) The writer’s experience giving
such opinions, citing specific instances
where past opinions have been accepted
as authoritative and by whom;
(3) How the conclusions were reached;
and
(4) The basis for the conclusions supported by copies or citations of any research material used.
Specialty occupation means an occupation which requires theoretical and
practical application of a body of highly specialized knowledge in fields of
human endeavor including, but not
limited to, architecture, engineering,
mathematics, physical sciences, social
sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and
which requires the attainment of a
bachelor’s degree or higher in a specific
specialty, or its equivalent, as a minimum for entry into the occupation in
the United States.
United States employer means a person, firm, corporation, contractor, or
other association, or organization in
the United States which:
(1) Engages a person to work within
the United States;
(2) Has an employer-employee relationship with respect to employees
under this part, as indicated by the
fact that it may hire, pay, fire, supervise, or otherwise control the work of
any such employee; and
(3) Has an Internal Revenue Service
Tax identification number.
(iii) Criteria for H–1B petitions involving a specialty occupation—(A) Standards
for specialty occupation position. To
qualify as a specialty occupation, the
position must meet one of the following criteria:
(1) A baccalaureate or higher degree
or its equivalent is normally the min-

imum requirement for entry into the
particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or,
in the alternative, an employer may
show that its particular position is so
complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a
degree or its equivalent for the position; or
(4) The nature of the specific duties
are so specialized and complex that
knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher
degree.
(B) Petitioner requirements. The petitioner shall submit the following with
an H–1B petition involving a specialty
occupation:
(1) A certification from the Secretary
of Labor that the petitioner has filed a
labor condition application with the
Secretary,
(2) A statement that it will comply
with the terms of the labor condition
application for the duration of the
alien’s authorized period of stay,
(3) Evidence that the alien qualifies
to perform services in the specialty occupation as described in paragraph
(h)(4)(iii)(A) of this section, and
(C) Beneficiary qualifications. To qualify to perform services in a specialty
occupation, the alien must meet one of
the following criteria:
(1) Hold a United States baccalaureate or higher degree required by
the specialty occupation from an accredited college or university;
(2) Hold a foreign degree determined
to be equivalent to a United States
baccalaureate or higher degree required by the specialty occupation
from an accredited college or university;
(3) Hold an unrestricted State license, registration or certification
which authorizes him or her to fully
practice the specialty occupation and
be immediately engaged in that specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible

304

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00314

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty
through progressively responsible positions directly related to the specialty.
(D) Equivalence to completion of a college degree. For purposes of paragraph
(h)(4)(iii)(C)(4) of this section, equivalence to completion of a United States
baccalaureate or higher degree shall
mean achievement of a level of knowledge, competence, and practice in the
specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or
higher degree in the specialty and shall
be determined by one or more of the
following:
(1) An evaluation from an official
who has authority to grant collegelevel credit for training and/or experience in the specialty at an accredited
college or university which has a program for granting such credit based on
an individual’s training and/or work
experience;
(2) The results of recognized collegelevel equivalency examinations or special credit programs, such as the College Level Examination Program
(CLEP), or Program on Noncollegiate
Sponsored Instruction (PONSI);
(3) An evaluation of education by a
reliable credentials evaluation service
which specializes in evaluating foreign
educational credentials;
(4) Evidence of certification or registration from a nationally-recognized
professional association or society for
the specialty that is known to grant
certification or registration to persons
in the occupational specialty who have
achieved a certain level of competence
in the specialty;
(5) A determination by the Service
that the equivalent of the degree required by the specialty occupation has
been acquired through a combination
of education, specialized training, and/
or work experience in areas related to
the specialty and that the alien has
achieved recognition of expertise in the
specialty occupation as a result of such
training and experience. For purposes
of determining equivalency to a baccalaureate degree in the specialty, three
years of specialized training and/or

work experience must be demonstrated
for each year of college-level training
the alien lacks. For equivalence to an
advanced (or Masters) degree, the alien
must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a
specialty, the alien must hold a Doctorate degree or its foreign equivalent.
It must be clearly demonstrated that
the alien’s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien’s experience was
gained while working with peers, supervisors, or subordinates who have a
degree or its equivalent in the specialty occupation; and that the alien
has recognition of expertise in the specialty evidenced by at least one type of
documentation such as:
(i) Recognition of expertise in the
specialty occupation by at least two
recognized authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;
(iii) Published material by or about
the alien in professional publications,
trade journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or
(v) Achievements which a recognized
authority has determined to be significant contributions to the field of the
specialty occupation.
(E) Liability for transportation costs.
The employer will be liable for the reasonable costs of return transportation
of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of
authorized admission pursuant to section 214(c)(5) of the Act. If the beneficiary voluntarily terminates his or
her employment prior to the expiration
of the validity of the petition, the alien
has not been dismissed. If the beneficiary believes that the employer has
not complied with this provision, the
beneficiary shall advise the Service
Center which adjudicated the petition

305

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00315

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term ‘‘abroad’’ refers to the
alien’s last place of foreign residence.
This provision applies to any employer
whose offer of employment became the
basis for an alien obtaining or continuing H–1B status.
(iv) General documentary requirements
for H–1B classification in a specialty occupation. An H–1B petition involving a
specialty occupation shall be accompanied by:
(A) Documentation, certifications,
affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish
that the beneficiary is qualified to perform services in a specialty occupation
as described in paragraph (h)(4)(i) of
this section and that the services the
beneficiary is to perform are in a specialty occupation. The evidence shall
conform to the following:
(1) School records, diplomas, degrees,
affidavits, declarations, contracts, and
similar documentation submitted must
reflect periods of attendance, courses
of study, and similar pertinent data, be
executed by the person in charge of the
records of the educational or other institution, firm, or establishment where
education or training was acquired.
(2) Affidavits or declarations made
under penalty of perjury submitted by
present or former employers or recognized authorities certifying as to the
recognition and expertise of the beneficiary shall specifically describe the
beneficiary’s recognition and ability in
factual terms and must set forth the
expertise of the affiant and the manner
in which the affiant acquired such information.
(B) Copies of any written contracts
between the petitioner and beneficiary,
or a summary of the terms of the oral
agreement under which the beneficiary
will be employed, if there is no written
contract.
(v) Licensure for H classification—(A)
General. If an occupation requires a
state or local license for an individual
to fully perform the duties of the occupation, an alien (except an H–1C nurse)
seeking H classification in that occupation must have that license prior to
approval of the petition to be found

qualified to enter the United States
and immediately engage in employment in the occupation.
(B) Temporary licensure. If a temporary license is available and the
alien is allowed to perform the duties
of the occupation without a permanent
license, the director shall examine the
nature of the duties, the level at which
the duties are performed, the degree of
supervision received, and any limitations placed on the alien. If an analysis
of the facts demonstrates that the
alien under supervision is authorized to
fully perform the duties of the occupation, H classification may be granted.
(C) Duties without licensure. In certain
occupations which generally require licensure, a state may allow an individual to fully practice the occupation
under the supervision of licensed senior
or supervisory personnel in that occupation. In such cases, the director shall
examine the nature of the duties and
the level at which they are performed.
If the facts demonstrate that the alien
under supervision could fully perform
the duties of the occupation, H classification may be granted.
(D) H–1C nurses. For purposes of licensure, H–1C nurses must provide the
evidence
required
in
paragraph
(h)(3)(iii) of this section.
(E) Limitation on approval of petition.
Where licensure is required in any occupation, including registered nursing,
the H petition may only be approved
for a period of one year or for the period that the temporary license is
valid, whichever is longer, unless the
alien already has a permanent license
to practice the occupation. An alien
who is accorded H classification in an
occupation which requires licensure
may not be granted an extension of
stay or accorded a new H classification
after the one year unless he or she has
obtained a permanent license in the
state of intended employment or continues to hold a temporary license
valid in the same state for the period of
the requested extension.
(vi) Criteria and documentary requirements for H–1B petitions involving DOD
cooperative research and development
projects or coproduction projects—(A)

306

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00316

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

General. (1) For purposes of H–1B classification, services of an exceptional nature relating to DOD cooperative research and development projects or coproduction projects shall be those services which require a baccalaureate or
higher degree, or its equivalent, to perform the duties. The existence of this
special program does not preclude the
DOD from utilizing the regular H–1B
provisions provided the required guidelines are met.
(2) The requirements relating to a
labor condition application from the
Department of Labor shall not apply to
petitions involving DOD cooperative
research and development projects or
coproduction projects.
(B) Petitioner requirements. (1) The petition must be accompanied by a
verification letter from the DOD
project manager for the particular
project stating that the alien will be
working on a cooperative research and
development project or a coproduction
project under a reciprocal Governmentto-Government agreement administered by DOD. Details about the specific project are not required.
(2) The petitioner shall provide a general description of the alien’s duties on
the particular project and indicate the
actual dates of the alien’s employment
on the project.
(3) The petitioner shall submit a
statement indicating the names of
aliens currently employed on the
project in the United States and their
dates of employment. The petitioner
shall also indicate the names of aliens
whose employment on the project
ended within the past year.
(C) Beneficiary requirement. The petition shall be accompanied by evidence
that the beneficiary has a baccalaureate or higher degree or its equivalent in the occupational field in which
he or she will be performing services in
accordance with paragraph (h)(4)(iii)(C)
and/or (h)(4)(iii)(D) of this section.
(vii) Criteria and documentary requirements for H–1B petitions for aliens of distinguished merit and ability in the field of
fashion modeling—(A) General. Prominence in the field of fashion modeling
may be established in the case of an individual fashion model. The work
which a prominent alien is coming to
perform in the United States must re-

quire the services of a prominent alien.
A petition for an H–1B alien of distinguished merit and ability in the field of
fashion modeling shall be accompanied
by:
(1) Documentation, certifications, affidavits, writings, reviews, or any other
required evidence sufficient to establish that the beneficiary is a fashion
model of distinguished merit and ability. Affidavits submitted by present or
former employers or recognized experts
certifying to the recognition and distinguished ability of the beneficiary
shall specifically describe the beneficiary’s recognition and ability in factual terms and must set forth the expertise of the affiant and the manner in
which the affiant acquired such information.
(2) Copies of any written contracts
between the petitioner and beneficiary,
or a summary of the terms of the oral
agreement under which the beneficiary
will be employed, if there is no written
contract.
(B) Petitioner’s requirements. To establish that a position requires prominence, the petitioner must establish
that the position meets one of the following criteria:
(1) The services to be performed involve events or productions which have
a distinguished reputation;
(2) The services are to be performed
for an organization or establishment
that has a distinguished reputation for,
or record of, employing prominent persons.
(C) Beneficiary’s requirements. A petitioner may establish that a beneficiary
is a fashion model of distinguished
merit and ability by the submission of
two of the following forms of documentation showing that the alien:
(1) Has achieved national or international recognition and acclaim for
outstanding achievement in his or her
field as evidenced by reviews in major
newspapers, trade journals, magazines,
or other published material;
(2) Has performed and will perform
services as a fashion model for employers with a distinguished reputation;
(3) Has received recognition for significant achievements from organizations, critics, fashion houses, modeling
agencies, or other recognized experts in
the field; or

307

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00317

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(4) Commands a high salary or other
substantial remuneration for services
evidenced by contracts or other reliable evidence.
(viii) Criteria and documentary requirements for H–1B petitions for physicians—
(A) Beneficiary’s requirements. An H–1B
petition for a physician shall be accompanied by evidence that the physician:
(1) Has a license or other authorization required by the state of intended
employment to practice medicine, or is
exempt by law therefrom, if the physician will perform direct patient care
and the state requires the license or
authorization, and
(2) Has a full and unrestricted license
to practice medicine in a foreign state
or has graduated from a medical school
in the United States or in a foreign
state.
(B) Petitioner’s requirements. The petitioner must establish that the alien
physician:
(1) Is coming to the United States
primarily to teach or conduct research,
or both, at or for a public or nonprofit
private educational or research institution or agency, and that no patient
care will be performed, except that
which is incidental to the physician’s
teaching or research; or
(2) The alien has passed the Federation Licensing Examination (or an
equivalent examination as determined
by the Secretary of Health and Human
Services) or is a graduate of a United
States medical school; and
(i) Has competency in oral and written English which shall be demonstrated by the passage of the English
language proficiency test given by the
Educational Commission for Foreign
Medical Graduates; or
(ii) Is a graduate of a school of medicine accredited by a body or bodies approved for that purpose by the Secretary of Education.
(C) Exception for physicians of national
or international renown. A physician
who is a graduate of a medical school
in a foreign state and who is of national or international renown in the
field of medicine is exempt from the requirements of paragraph (h)(4)(viii)(B)
of this section.
(5) Petition for alien to perform agricultural labor or services of a temporary or

seasonal nature (H–2A)—(i) Filing a petition—
(A) General. An H–2A petition must
be filed on Form I–129 with a single
valid temporary agricultural labor certification. The petition may be filed by
either the employer listed on the temporary labor certification, the employer’s agent, or the association of United
States agricultural producers named as
a joint employer on the temporary
labor certification.
(B) Multiple beneficiaries. The total
number of beneficiaries of a petition or
series of petitions based on the same
temporary labor certification may not
exceed the number of workers indicated on that document. A single petition can include more than one beneficiary if the total number does not exceed the number of positions indicated
on the relating temporary labor certification.
(C) [Reserved]
(D) Evidence. An H–2A petitioner
must show that the proposed employment qualifies as a basis for H–2A status, and that any named beneficiary
qualifies for that employment. A petition will be automatically denied if
filed without the certification evidence
required in paragraph (h)(5)(i)(A) of
this section and, for each named beneficiary, the initial evidence required in
paragraph (h)(5)(v) of this section.
(E) Special filing requirements. Where a
certification shows joint employers, a
petition must be filed with an attachment showing that each employer has
agreed to the conditions of H–2A eligibility. A petition filed by an agent
must be filed with an attachment in
which the employer has authorized the
agent to act on its behalf, has assumed
full responsibility for all representations made by the agent on its behalf,
and has agreed to the conditions of H–
2A eligibility.
(F) Eligible Countries. (1)(i) H–2A petitions may only be approved for nationals of countries that the Secretary of
Homeland Security has designated as
participating countries, with the concurrence of the Secretary of State, in a
notice published in the FEDERAL REGISTER, taking into account factors, including but not limited to:
(A) The country’s cooperation with
respect to issuance of travel documents

308

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00318

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

for citizens, subjects, nationals and
residents of that country who are subject to a final order of removal;
(B) The number of final and
unexecuted orders of removal against
citizens, subjects, nationals and residents of that country;
(C) The number of orders of removal
executed against citizens, subjects, nationals and residents of that country;
and
(D) Such other factors as may serve
the U.S. interest.
(ii) A national from a country not on
the
list
described
in
paragraph
(h)(5)(i)(F)(1)(i) of this section may be a
beneficiary of an approved H–2A petition upon the request of a petitioner or
potential H–2A petitioner, if the Secretary of Homeland Security, in his
sole and unreviewable discretion, determines that it is in the U.S. interest
for that alien to be a beneficiary of
such petition. Determination of such a
U.S. interest will take into account
factors, including but not limited to:
(A) Evidence from the petitioner
demonstrating that a worker with the
required skills is not available either
from among U.S. workers or from
among foreign workers from a country
currently on the list described in paragraph (h)(5)(i)(F)(1)(i) of this section;
(B) Evidence that the beneficiary has
been admitted to the United States
previously in H–2A status;
(C) The potential for abuse, fraud, or
other harm to the integrity of the H–2A
visa program through the potential admission of a beneficiary from a country
not currently on the list; and
(D) Such other factors as may serve
the U.S. interest.
(2) Once published, any designation of
participating countries pursuant to
paragraph (h)(5)(i)(F)(1)(i) of this section shall be effective for one year
after the date of publication in the
FEDERAL REGISTER and shall be without effect at the end of that one-year
period.
(ii) Effect of the labor certification
process. The temporary agricultural
labor certification process determines
whether employment is as an agricultural worker, whether it is open to U.S.
workers, if qualified U.S. workers are
available, the adverse impact of employment of a qualified alien, and

whether employment conditions, including housing, meet applicable requirements. In petition proceedings a
petitioner must establish that the employment and beneficiary meet the requirements of paragraph (h)(5) of this
section.
(iii) Ability and intent to meet a job
offer—(A) Eligibility requirements. An H–
2A petitioner must establish that each
beneficiary will be employed in accordance with the terms and conditions of
the certification, which includes that
the principal duties to be performed
are those on the certification, with
other duties minor and incidental.
(B) Intent and prior compliance. Requisite intent cannot be established for
two years after an employer or joint
employer, or a parent, subsidiary or affiliate thereof, is found to have violated section 274(a) of the Act or to
have employed an H–2A worker in a position other than that described in the
relating petition.
(C) Initial evidence. Representations
required for the purpose of labor certification are initial evidence of intent.
(iv) Temporary and seasonal employment—(A) Eligibility requirements. An H–
2A petitioner must establish that the
employment proposed in the certification is of a temporary or seasonal
nature. Employment is of a seasonal
nature where it is tied to a certain
time of year by an event or pattern,
such as a short annual growing cycle or
a specific aspect of a longer cycle, and
requires labor levels far above those
necessary for ongoing operations. Employment is of a temporary nature
where the employer’s need to fill the
position with a temporary worker will,
except in extraordinary circumstances,
last no longer than one year.
(B) Effect of Department of Labor findings. In temporary agricultural labor
certification proceedings the Department of Labor separately tests whether
employment qualifies as temporary or
seasonal. Its finding that employment
qualifies is normally sufficient for the
purpose of an H–2A petition, However,
notwithstanding that finding, employment will be found not to be temporary
or seasonal where an application for
permanent labor certification has been
filed for the same alien, or for another

309

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00319

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

alien to be employed in the same position, by the same employer or by its
parent, subsidiary or affiliate. This can
only be overcome by the petitioner’s
demonstration that there will be at
least a six month interruption of employment in the United States after H–
2A status ends. Also, eligibility will
not be found, notwithstanding the
issuance of a temporary agricultural
labor certification, where there is substantial evidence that the employment
is not temporary or seasonal.
(v) The beneficiary’s qualifications—(A)
Eligibility requirements. An H–2A petitioner must establish that any named
beneficiary met the stated minimum
requirements and was fully able to perform the stated duties when the application for certification was filed. It
must be established at time of application for an H–2A visa, or for admission
if a visa is not required, that any
unnamed beneficiary either met these
requirements when the certification
was applied for or passed any certified
aptitude test at any time prior to visa
issuance, or prior to admission if a visa
is not required.
(B) Evidence of employment/job training. For petitions with named beneficiaries, a petition must be filed with
evidence that the beneficiary met the
certification’s minimum employment
and job training requirements, if any
are prescribed, as of the date of the filing of the labor certification application. For petitions with unnamed beneficiaries, such evidence must be submitted at the time of a visa application
or, if a visa is not required, at the time
the applicant seeks admission to the
United States. Evidence must be in the
form of the past employer or employers’ detailed statement(s) or actual employment documents, such as company
payroll or tax records. Alternately, a
petitioner must show that such evidence cannot be obtained, and submit
affidavits from persons who worked
with the beneficiary that demonstrate
the claimed employment or job training.
(C) Evidence of education and other
training. For petitions with named
beneficiaries, a petition must be filed
with evidence that the beneficiary met
all of the certification’s post-secondary
education and other formal training re-

quirements, if any are prescribed in the
labor certification application as of
date of the filing of the labor certification application. For petitions with
unnamed beneficiaries, such evidence
must be submitted at the time of a visa
application or, if a visa is not required,
at the time the applicant seeks admission to the United States. Evidence
must be in the form of documents,
issued by the relevant institution(s) or
organization(s), that show periods of
attendance, majors and degrees or certificates accorded.
(vi) Petitioner consent and notification
requirements—(A) Consent. In filing an
H–2A petition, a petitioner and each
employer consents to allow access to
the site by DHS officers where the
labor is being performed for the purpose of determining compliance with
H–2A requirements.
(B) Agreements. The petitioner agrees
to the following requirements:
(1) To notify DHS, within 2 workdays,
and beginning on a date and in a manner specified in a notice published in
the FEDERAL REGISTER if:
(i) An H–2A worker fails to report to
work within 5 workdays of the employment start date on the H–2A petition or
within 5 workdays of the start date established by his or her employer,
whichever is later;
(ii) The agricultural labor or services
for which H–2A workers were hired is
completed more than 30 days earlier
than the employment end date stated
on the H–2A petition; or
(iii) The H–2A worker absconds from
the worksite or is terminated prior to
the completion of agricultural labor or
services for which he or she was hired.
(2) To retain evidence of such notification and make it available for inspection by DHS officers for a 1-year
period beginning on the date of the notification. To retain evidence of a different employment start date if it is
changed from that on the petition by
the employer and make it available for
inspection by DHS officers for the 1year period beginning on the newly-established employment start date.
(3) To pay $10 in liquidated damages
for each instance where the employer

310

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00320

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

cannot demonstrate that it has complied with the notification requirements, unless, in the case of an untimely notification, the employer demonstrates with such notification that
good cause existed for the untimely notification, and DHS, in its discretion,
waives the liquidated damages amount.
(C) Process. If DHS has determined
that the petitioner has violated the notification requirements in paragraph
(h)(5)(vi)(B)(1) of this section and has
not received the required notification,
the petitioner will be given written notice and 30 days to reply before being
given written notice of the assessment
of liquidated damages.
(D) Failure to pay liquidated damages.
If liquidated damages are not paid
within 10 days of assessment, an H–2A
petition may not be processed for that
petitioner or any joint employer shown
on the petition until such damages are
paid.
(E) Abscondment. An H–2A worker has
absconded if he or she has not reported
for work for a period of 5 consecutive
workdays without the consent of the
employer.
(vii) Validity. An approved H–2A petition is valid through the expiration of
the relating certification for the purpose of allowing a beneficiary to seek
issuance of an H–2A nonimmigrant
visa, admission or an extension of stay
for the purpose of engaging in the specific certified employment.
(viii) Admission—
(A) Effect of violations of status. An
alien may not be accorded H–2A status
who, at any time during the past 5
years, USCIS finds to have violated,
other than through no fault of his or
her own (e.g., due to an employer’s illegal or inappropriate conduct), any of
the terms or conditions of admission
into the United States as an H–2A nonimmigrant, including remaining beyond the specific period of authorized
stay or engaging in unauthorized employment.
(B) Period of admission. An alien admissible as an H–2A nonimmigrant
shall be admitted for the period of the
approved petition. Such alien will be
admitted for an additional period of up
to one week before the beginning of the
approved period for the purpose of travel to the worksite, and a 30-day period

following the expiration of the H–2A
petition for the purpose of departure or
to seek an extension based on a subsequent offer of employment. Unless authorized under 8 CFR 274a.12 or section
214(n) of the Act, the beneficiary may
not work except during the validity period of the petition.
(C) Limits on an individual’s stay. Except
as
provided
in
paragraph
(h)(5)(viii)(B) of this section, an alien’s
stay as an H–2A nonimmigrant is limited by the term of an approved petition. An alien may remain longer to
engage in other qualifying temporary
agricultural employment by obtaining
an extension of stay. However, an individual who has held H–2A status for a
total of 3 years may not again be
granted H–2A status until such time as
he or she remains outside the United
States for an uninterrupted period of 3
months. An absence from the United
States can interrupt the accrual of
time spent as an H–2A nonimmigrant
against the 3-year limit. If the accumulated stay is 18 months or less, an absence is interruptive if it lasts for at
least 45 days. If the accumulated stay
is greater than 18 months, an absence
is interruptive if it lasts for at least 2
months. Eligibility under paragraph
(h)(5)(viii)(C) of this section will be determined in admission, change of status or extension proceedings. An alien
found eligible for a shorter period of H–
2A status than that indicated by the
petition due to the application of this
paragraph (h)(5)(viii)(C) of this section
shall only be admitted for that abbreviated period.
(ix) Substitution of beneficiaries after
admission. An H–2A petition may be
filed to replace H–2A workers whose
employment was terminated earlier
than the end date stated on the H–2A
petition and before the completion of
work; who fail to report to work within
five days of the employment start date
on the H–2A petition or within five
days of the start date established by
his or her employer, whichever is later;
or who abscond from the worksite. The
petition must be filed with a copy of
the certification document, a copy of
the approval notice covering the workers for which replacements are sought,
and other evidence required by paragraph (h)(5)(i)(D) of this section. It

311

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00321

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

must also be filed with a statement
giving each terminated or absconded
worker’s name, date and country of
birth, termination date, and the reason
for termination, and the date that
USCIS was notified that the alien was
terminated or absconded, if applicable.
A petition for a replacement will not
be approved where the requirements of
paragraph (h)(5)(vi) of this section have
not been met. A petition for replacements does not constitute the notification
required
by
paragraph
(h)(5)(vi)(B)(1) of this section.
(x)
Extensions
in
emergent
circumstances. In emergent circumstances,
as determined by USCIS, a single H–2A
petition may be extended for a period
not to exceed 2 weeks without an additional approved labor certification if
filed on behalf of one or more beneficiaries who will continue to be employed by the same employer that previously obtained an approved petition
on the beneficiary’s behalf, so long as
the employee continues to perform the
same duties and will be employed for
no longer than 2 weeks after the expiration of previously-approved H–2A petition. The previously approved H–2A
petition must have been based on an
approved temporary labor certification, which shall be considered to be
extended upon the approval of the extension of H–2A status.
(xi) Treatment of petitions and alien
beneficiaries upon a determination that
fees were collected from alien beneficiaries. (A) Denial or revocation of petition. As a condition to approval of an
H–2A petition, no job placement fee or
other compensation (either direct or
indirect) may be collected at any time,
including before or after the filing or
approval of the petition, from a beneficiary of an H–2A petition by a petitioner, agent, facilitator, recruiter, or
similar employment service as a condition of H–2A employment (other than
the lesser of the fair market value or
actual costs of transportation and any
government-mandated passport, visa,
or inspection fees, to the extent that
the payment of such costs and fees by
the beneficiary is not prohibited by
statute or Department of Labor regulations, unless the employer agent,
facilitator, recruiter, or employment

service has agreed with the alien to
pay such costs and fees).
(1) If USCIS determines that the petitioner has collected, or entered into an
agreement to collect, such prohibited
fee or compensation, the H–2A petition
will be denied or revoked on notice unless the petitioner demonstrates that,
prior to the filing of the petition, the
petitioner has reimbursed the alien in
full for such fees or compensation, or,
where such fee or compensation has
not yet been paid by the alien worker,
that the agreement has been terminated.
(2) If USCIS determines that the petitioner knew or should have known at
the time of filing the petition that the
beneficiary has paid or agreed to pay
any facilitator, recruiter, or similar
employment service such fees or compensation as a condition of obtaining
the H–2A employment, the H–2A petition will be denied or revoked on notice
unless the petitioner demonstrates
that, prior to the filing of the petition,
the petitioner or the facilitator, recruiter, or similar employment service
has reimbursed the alien in full for
such fees or compensation or, where
such fee or compensation has not yet
been paid by the alien worker, that the
agreement has been terminated.
(3) If USCIS determines that the beneficiary paid the petitioner such fees or
compensation as a condition of obtaining the H–2A employment after the filing of the H–2A petition, the petition
will be denied or revoked on notice.
(4) If USCIS determines that the beneficiary paid or agreed to pay the
agent, facilitator, recruiter, or similar
employment service such fees or compensation as a condition of obtaining
the H–2A employment after the filing
of the H–2A petition and with the
knowledge of the petitioner, the petition will be denied or revoked unless
the petitioner demonstrates that the
petitioner or facilitator, recruiter, or
similar employment service has reimbursed the beneficiary in full or where
such fee or compensation has not yet
been paid by the alien worker, that the
agreement has been terminated, or notifies DHS within 2 workdays of obtaining knowledge in a manner specified in
a notice published in the FEDERAL REGISTER.

312

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00322

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(B) Effect of petition revocation. Upon
revocation of an employer’s H–2A petition based upon paragraph (h)(5)(xi)(A)
of this section, the alien beneficiary’s
stay will be authorized and the alien
will not accrue any period of unlawful
presence under section 212(a)(9) of the
Act (8 U.S.C. 1182(a)(9)) for a 30-day period following the date of the revocation for the purpose of departure or extension of stay based upon a subsequent offer of employment.
(C) Reimbursement as condition to approval of future H–2A petitions. (1) Filing
subsequent H–2A petitions within 1 year
of denial or revocation of previous H–2A
petition. A petitioner filing an H–2A petition within 1 year after the decision
denying or revoking on notice an H–2A
petition filed by the same petitioner on
the basis of paragraph (h)(5)(xi)(A) of
this section must demonstrate to the
satisfaction of USCIS, as a condition of
approval of such petition, that the petitioner or agent, facilitator, recruiter,
or similar employment service has reimbursed the beneficiary in full or that
the petitioner has failed to locate the
beneficiary. If the petitioner demonstrates to the satisfaction of USCIS
that the beneficiary was reimbursed in
full, such condition of approval shall be
satisfied with respect to any subsequently filed H–2A petitions, except as
provided in paragraph (h)(5)(xi)(C)(2). If
the petitioner demonstrates to the satisfaction of USCIS that it has made
reasonable efforts to locate the beneficiary with respect to each H–2A petition filed within 1 year after the decision denying or revoking the previous
H–2A petition on the basis of paragraph
(h)(5)(xi)(A) of this section but has
failed to do so, such condition of approval shall be deemed satisfied with
respect to any H–2A petition filed 1
year or more after the denial or revocation. Such reasonable efforts shall include contacting any of the beneficiary’s known addresses.
(2) Effect of subsequent denied or revoked petitions. An H–2A petition filed
by the same petitioner subsequent to a
denial under paragraph (h)(5)(xi)(A) of
this section shall be subject to the condition of approval described in paragraph (h)(5)(xi)(C)(1) of this section, regardless of prior satisfaction of such

condition of approval with respect to a
previously denied or revoked petition.
(xii) Treatment of alien beneficiaries
upon revocation of labor certification.
The approval of an employer’s H–2A petition is immediately and automatically revoked if the Department of
Labor revokes the labor certification
upon which the petition is based. Upon
revocation of an H–2A petition based
upon revocation of labor certification,
the alien beneficiary’s stay will be authorized and the alien will not accrue
any period of unlawful presence under
section 212(a)(9) of the Act for a 30-day
period following the date of the revocation for the purpose of departure or extension of stay based upon a subsequent offer of employment.
(6) Petition for alien to perform temporary nonagricultural services or labor
(H–2B)—
(i) Petition. (A) H–2B nonagricultural
temporary worker. An H–2B nonagricultural temporary worker is an
alien who is coming temporarily to the
United States to perform temporary
services or labor without displacing
qualified United States workers available to perform such services or labor
and whose employment is not adversely affecting the wages and working conditions of United States workers.
(B) Denial or revocation of petition
upon a determination that fees were collected from alien beneficiaries. As a condition of approval of an H–2B petition,
no job placement fee or other compensation (either direct or indirect)
may be collected at any time, including before or after the filing or approval of the petition, from a beneficiary of an H–2B petition by a petitioner, agent, facilitator, recruiter, or
similar employment service as a condition of an offer or condition of H–2B
employment (other than the lower of
the actual cost or fair market value of
transportation to such employment
and any government-mandated passport, visa, or inspection fees, to the extent that the passing of such costs to
the beneficiary is not prohibited by
statute, unless the employer, agent,
facilitator, recruiter, or similar employment service has agreed with the
beneficiary that it will pay such costs
and fees).

313

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00323

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(1) If USCIS determines that the petitioner has collected or entered into an
agreement to collect such fee or compensation, the H–2B petition will be denied or revoked on notice, unless the
petitioner demonstrates that, prior to
the filing of the petition, either the petitioner reimbursed the beneficiary in
full for such fees or compensation or
the agreement to collect such fee or
compensation was terminated before
the fee or compensation was paid by
the beneficiary.
(2) If USCIS determines that the petitioner knew or should have known at
the time of filing the petition that the
beneficiary has paid or agreed to pay
any agent, facilitator, recruiter, or
similar employment service as a condition of an offer of the H–2B employment, the H–2B petition will be denied
or revoked on notice unless the petitioner demonstrates that, prior to filing the petition, either the petitioner
or the agent, facilitator, recruiter, or
similar employment service reimbursed the beneficiary in full for such
fees or compensation or the agreement
to collect such fee or compensation was
terminated before the fee or compensation was paid by the beneficiary.
(3) If USCIS determines that the beneficiary paid the petitioner such fees or
compensation as a condition of an offer
of H–2B employment after the filing of
the H–2B petition, the petition will be
denied or revoked on notice.
(4) If USCIS determines that the beneficiary paid or agreed to pay the
agent, facilitator, recruiter, or similar
employment service such fees or compensation after the filing of the H–2B
petition and that the petitioner knew
or had reason to know of the payment
or agreement to pay, the petition will
be denied or revoked unless the petitioner demonstrates that the petitioner or agent, facilitator, recruiter,
or similar employment service reimbursed the beneficiary in full, that the
parties terminated any agreement to
pay before the beneficiary paid the fees
or compensation, or that the petitioner
has notified DHS within 2 work days of
obtaining knowledge, in a manner specified in a notice published in the FEDERAL REGISTER.
(C) Effect of petition revocation. Upon
revocation of an employer’s H–2B peti-

tion based upon paragraph (h)(6)(i)(B)
of this section, the alien beneficiary’s
stay will be authorized and the beneficiary will not accrue any period of
unlawful
presence
under
section
212(a)(9) of the Act (8 U.S.C. 1182(a)(9))
for a 30-day period following the date of
the revocation for the purpose of departure or extension of stay based upon a
subsequent offer of employment. The
employer shall be liable for the alien
beneficiary’s reasonable costs of return
transportation to his or her last place
of foreign residence abroad, unless such
alien obtains an extension of stay
based on an approved H–2B petition
filed by a different employer.
(D) Reimbursement as condition to approval of future H–2B petitions. (1) Filing
subsequent H–2B petitions within 1 year
of denial or revocation of previous H–2B
petition. A petitioner filing an H–2B petition within 1 year after a decision denying or revoking on notice an H–2B
petition filed by the same petitioner on
the basis of paragraph (h)(6)(i)(B) of
this section must demonstrate to the
satisfaction of USCIS, as a condition of
the approval of the later petition, that
the petitioner or agent, facilitator, recruiter, or similar employment service
reimbursed in full each beneficiary of
the denied or revoked petition from
whom a prohibited fee was collected or
that the petitioner has failed to locate
each such beneficiary despite the petitioner’s reasonable efforts to locate
them. If the petitioner demonstrates to
the satisfaction of USCIS that each
such beneficiary was reimbursed in
full, such condition of approval shall be
satisfied with respect to any subsequently filed H–2B petitions, except as
provided in paragraph (h)(6)(i)(D)(2) of
this section. If the petitioner demonstrates to the satisfaction of USCIS
that it has made reasonable efforts to
locate but has failed to locate each
such beneficiary within 1 year after the
decision denying or revoking the previous H–2B petition on the basis of
paragraph (h)(6)(i)(B) of this section,
such condition of approval shall be
deemed satisfied with respect to any H–
2B petition filed 1 year or more after
the denial or revocation. Such reasonable efforts shall include contacting all
of each such beneficiary’s known addresses.

314

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00324

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(2) Effect of subsequent denied or revoked petitions. An H–2B petition filed
by the same petitioner subsequent to a
denial under paragraph (h)(6)(i)(B) of
this section shall be subject to the condition of approval described in paragraph (h)(6)(i)(D)(1) of this section, regardless of prior satisfaction of such
condition of approval with respect to a
previously denied or revoked petition.
(E) Eligible countries. (1) H–2B petitions may be approved for nationals of
countries that the Secretary of Homeland Security has designated as participating countries, with the concurrence of the Secretary of State, in a
notice published in the FEDERAL REGISTER, taking into account factors, including but not limited to:
(i) The country’s cooperation with respect to issuance of travel documents
for citizens, subjects, nationals and
residents of that country who are subject to a final order of removal;
(ii) The number of final and
unexecuted orders of removal against
citizens, subjects, nationals, and residents of that country;
(iii) The number of orders of removal
executed against citizens, subjects, nationals and residents of that country;
and
(iv) Such other factors as may serve
the U.S. interest.
(2) A national from a country not on
the
list
described
in
paragraph
(h)(6)(i)(E)(1) of this section may be a
beneficiary of an approved H–2B petition upon the request of a petitioner or
potential H–2B petitioner, if the Secretary of Homeland Security, in his
sole and unreviewable discretion, determines that it is in the U.S. interest
for that alien to be a beneficiary of
such petition. Determination of such a
U.S. interest will take into account
factors, including but not limited to:
(i) Evidence from the petitioner demonstrating that a worker with the required skills is not available from
among foreign workers from a country
currently on the list described in paragraph (h)(6)(i)(E)(1) of this section;
(ii) Evidence that the beneficiary has
been admitted to the United States
previously in H–2B status;
(iii) The potential for abuse, fraud, or
other harm to the integrity of the H–2B
visa program through the potential ad-

mission of a beneficiary from a country
not currently on the list; and
(iv) Such other factors as may serve
the U.S. interest.
(3) Once published, any designation of
participating countries pursuant to
paragraph (h)(6)(i)(E)(1) of this section
shall be effective for one year after the
date of publication in the FEDERAL
REGISTER and shall be without effect at
the end of that one-year period.
(F) Petitioner agreements and notification requirements. (1) Agreements. The
petitioner agrees to notify DHS, within
2 work days, and beginning on a date
and in a manner specified in a notice
published in the FEDERAL REGISTER if:
An H–2B worker fails to report for
work within 5 work days after the employment start date stated on the petition; the nonagricultural labor or services for which H–2B workers were hired
were completed more than 30 days
early; or an H–2B worker absconds
from the worksite or is terminated
prior to the completion of the nonagricultural labor or services for which
he or she was hired. The petitioner also
agrees to retain evidence of such notification and make it available for inspection by DHS officers for a one-year
period beginning on the date of the notification.
(2) Abscondment. An H–2B worker has
absconded if he or she has not reported
for work for a period of 5 consecutive
work days without the consent of the
employer.
(ii) Temporary services or labor—(A)
Definition. Temporary services or labor
under the H–2B classification refers to
any job in which the petitioner’s need
for the duties to be performed by the
employee(s) is temporary, whether or
not the underlying job can be described
as permanent or temporary.
(B) Nature of petitioner’s need. Employment is of a temporary nature
when the employer needs a worker for
a limited period of time. The employer
must establish that the need for the
employee will end in the near, definable future. Generally, that period of
time will be limited to one year or less,
but in the case of a one-time event
could last up to 3 years. The petitioner’s need for the services or labor

315

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00325

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

shall be a one-time occurrence, a seasonal need, a peak load need, or an
intermittent need.
(1) One-time occurence. The petitioner
must establish that it has not employed workers to perform the services
or labor in the past and that it will not
need workers to perform the services or
labor in the future, or that it has an
employment situation that is otherwise permanent, but a temporary event
of short duration has created the need
for a temporary worker.
(2) Seasonal need. The petitioner must
establish that the services or labor is
traditionally tied to a season of the
year by an event or pattern and is of a
recurring nature. The petitioner shall
specify the period(s) of time during
each year in which it does not need the
services or labor. The employment is
not seasonal if the period during which
the services or labor is not needed is
unpredictable or subject to change or is
considered a vacation period for the petitioner’s permanent employees.
(3) Peakload need. The petitoner must
establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement
its permanent staff at the place of employment on a temporary basis due to
a seasonal or short-term demand and
that the temporary additions to staff
will not become a part of the petitioner’s regular operation.
(4) Intermittent need. The petitioner
must establish that it has not employed permanent or full-time workers
to perform the services or labor, but
occasionally or intermittently needs
temporary workers to perform services
or labor for short periods.
(iii) Procedures. (A) Prior to filing a
petition with the director to classify
an alien as an H–2B worker, the petitioner shall apply for a temporary
labor certification with the Secretary
of Labor for all areas of the United
States, except the Territory of Guam.
In the Territory of Guam, the petitioning employer shall apply for a temporary labor certification with the
Governor of Guam. The labor certification shall be advice to the director
on whether or not United States workers capable of performing the temporary services or labor are available

and whether or not the alien’s employment will adversely affect the wages
and working conditions of similarly
employed United States workers.
(B) An H–2B petitioner shall be a
United States employer, a United
States agent, or a foreign employer filing through a United States agent. For
purposes of paragraph (h) of this section, a foreign employer is any employer who is not amenable to service
of process in the United States. A foreign employer may not directly petition for an H–2B nonimmigrant but
must use the services of a United
States agent to file a petition for an H–
2B nonimmigrant. A United States
agent petitioning on behalf of a foreign
employer must be authorized to file the
petition, and to accept service of process in the United States in proceedings
under section 274A of the Act, on behalf
of the employer. The petitioning employer shall consider available United
States workers for the temporary services or labor, and shall offer terms and
conditions of employment which are
consistent with the nature of the occupation, activity, and industry in the
United States.
(C) The petitioner may not file an H–
2B petition unless the United States
petitioner has applied for a labor certification with the Secretary of Labor
or the Governor of Guam within the
time limits prescribed or accepted by
each, and has obtained a favorable
labor certification determination as required by paragraph (h)(6)(iv) or
(h)(6)(v) of this section.
(D) The Secretary of Labor and the
Governor of Guam shall separately establish procedures for administering
the temporary labor certification program under his or her jurisdiction.
(E) After obtaining a favorable determination from the Secretary of Labor
or the Governor of Guam, as appropriate, the petitioner shall file a petition on I–129, accompanied by the labor
certification determination and supporting documents, with the director
having jurisdiction in the area of intended employment.
(iv) Labor certifications, except Guam—
(A) Secretary of Labor’s determination.
An H–2B petition for temporary employment in the United States, except
for temporary employment on Guam,

316

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00326

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

shall be accompanied by an approved
temporary labor certification from the
Secretary of Labor stating that qualified workers in the United States are
not available and that the alien’s employment will not adversely affect
wages and working conditions of similarly employed United States workers.
(B) Validity of the labor certification.
The Secretary of Labor may issue a
temporary labor certification for a period of up to one year.
(C) U.S. Virgin Islands. Temporary
labor certifications filed under section
101(a)(15)(H)(ii)(b) of the Act for employment in the United States Virgin
Islands may be approved only for entertainers and athletes and only for periods not to exceed 45 days.
(D) Employment start date. Beginning
with petitions filed for workers for fiscal year 2010, an H–2B petition must
state an employment start date that is
the same as the date of need stated on
the approved temporary labor certification. A petitioner filing an amended
H–2B petition due to the unavailability
of originally requested workers may
state an employment start date later
than the date of need stated on the previously approved temporary labor certification accompanying the amended
H–2B petition.
(v) Labor certification for Guam—
(A) Governor of Guam’s determination.
An H–2B petition for temporary employment on Guam shall be accompanied by an approved temporary labor
certification issued by the Governor of
Guam stating that qualified workers in
the United States are not available to
perform the required services, and that
the alien’s employment will not adversely affect the wages and working
conditions of United States resident
workers who are similarly employed on
Guam.
(B) Validity of labor certification. The
Governor of Guam may issue a temporary labor certification for a period
up to one year.
(C)–(D) [Reserved]
(E) Criteria for Guam labor certifications. The Governor of Guam shall, in
consultation with the Service, establish systematic methods for determining the prevailing wage rates and
working conditions for individual occupations on Guam and for making deter-

minations as to availability of qualified United States residents.
(1) Prevailing wage and working conditions. The system to determine wages
and working conditions must provide
for consideration of wage rates and employment conditions for occupations in
both the private and public sectors, in
Guam and/or in the United States (as
defined in section 101(a)(38) of the Act),
and may not consider wages and working conditions outside of the United
States.
If
the
system
includes
utilitzation of advisory opinions and
consultations, the opinions must be
provided
by
officially
sanctioned
groups which reflect a balance of the
interests of the private and public sectors, government, unions and management.
(2) Availability of United States workers. The system for determining availability of qualified United States workers must require the prospective employer to:
(i) Advertise the availability of the
position for a minimum of three consecutive days in the newspaper with
the largest daily circulation on Guam;
(ii) Place a job offer with an appropriate agency of the Territorial Government which operates as a job referral service at least 30 days in advance
of the need for the services to commence, except that for applications
from the armed forces of the United
States and those in the entertainment
industry, the 30-day period may be reduced by the Governor to 10 days;
(iii) Conduct appropriate recruitment
in other areas of the United States and
its territories if sufficient qualified
United States construction workers are
not available on Guam to fill a job. The
Governor of Guam may require a job
order to be placed more than 30 days in
advance of need to accommodate such
recruitment;
(iv) Report to the appropriate agency
the names of all United States resident
workers who applied for the position,
indicating those hired and the job-related reasons for not hiring;
(v) Offer all special considerations,
such as housing and transportation expenses, to all United States resident
workers who applied for the position,
indicating those hired and the job-related reasons for not hiring;

317

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00327

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(vi) Meet the prevailing wage rates
and working conditions determined
under the wages and working conditions system by the Governor; and
(vii) Agree to meet all Federal and
Territorial requirements relating to
employment, such as nondiscrimination, occupational safety, and minimum wage requirements.
(F) Approval and publication of employment systems on Guam—(1) Systems.
The Commissioner of Immigration and
Naturalization must approve the system to determine prevailing wages and
working conditions and the system to
determine availability of United States
resident workers and any future modifications of the systems prior to implementation. If the Commissioner, in
consultation with the Secretary of
Labor, finds that the systems or modified systems meet the requirements of
this section, the Commissioner shall
publish them as a notice in the FEDERAL REGISTER and the Governor shall
publish them as a public record in
Guam.
(2) Approval of construction wage rates.
The Commissioner must approve specific wage data and rates used for construction occupations on Guam prior
to implementation of new rates. The
Governor shall submit new wage survey data and proposed rates to the
Commissioner for approval at least
eight weeks before authority to use existing rates expires. Surveys shall be
conducted at least every two years, unless the Commissioner prescribes a
lesser period.
(G) Reporting. The Governor shall
provide the Commissioner statistical
data on temporary labor certification
workload and determinations. This information shall be submitted quarterly
no later than 30 days after the quarter
ends.
(H) Invalidation of temporary labor certification issued by the Governor of
Guam—(1) General. A temporary labor
certification issued by the Governor of
Guam may be invalidated by a director
if it is determined by the director or a
court of law that the certification request involved fraud or willful misrepresentation. A temporary labor certification may also be invalidated if
the director determines that the certification involved gross error.

(2) Notice of intent to invalidate. If the
director intends to invalidate a temporary labor certification, a notice of
intent shall be served upon the employer, detailing the reasons for the intended invalidation. The employer
shall have 30 days in which to file a
written response in rebuttal to the notice of intent. The director shall consider all evidence submitted upon rebuttal in reaching a decision.
(3) Appeal of invalidation. An employer may appeal the invalidation of a
temporary labor certification in accordance with part 103 of this chapter.
(vi) Evidence for H–2B petitions. An H–
2B petition shall be accompanied by:
(A) Labor certification. An approved
temporary labor certification issued by
the Secretary of Labor or the Governor
of Guam, as appropriate;
(B) [Reserved]
(C) Alien’s qualifications. In petitions
where the temporary labor certification application requires certain
education, training, experience, or special requirements of the beneficiary
who is present in the United States,
documentation that the alien qualifies
for the job offer as specified in the application for such temporary labor certification. This requirement also applies to the named beneficiary who is
abroad on the basis of special provisions stated in paragraph (h)(2)(iii) of
this section;
(D) Statement of need. A statement describing in detail the temporary situation or conditions which make it necessary to bring the alien to the United
States and whether the need is a onetime occurrence, seasonal, peakload, or
intermittent. If the need is seasonal,
peakload, or intermittent, the statement shall indicate whether the situation or conditions are expected to be
recurrent; or
(E) Liability for transportation costs.
The employer will be liable for the reasonable costs of return transportation
of the alien abroad, if the alien is dismissed from employment for any reason by the employer before the end of
the period of authorized admission pursuant to section 214(c)(5) of the Act. If
the beneficiary voluntarily terminates
his or her employment prior to the expiration of the validity of the petition,
the alien has not been dismissed. If the

318

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00328

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

beneficiary believes that the employer
has not complied with this provision,
the beneficiary shall advise the Service
Center which adjudicated the petition
in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term ‘‘abroad’’ means the
alien’s last place of foreign residence.
This provision applies to any employer
whose offer of employment became the
basis for the alien obtaining or continuing H–2B status.
(vii) Traded professional H–2B athletes.
In the case of a professional H–2B athlete who is traded from one organization to another organization, employment authorization for the player will
automatically continue for a period of
30 days after the player’s acquisition
by the new organization, within which
time the new organization is expected
to file a new Form I–129 for H–2B nonimmigrant classification. If a new
Form I–129 is not filed within 30 days,
employment authorization will cease.
If a new Form I–129 is filed within 30
days, the professional athlete shall be
deemed to be in valid H–2B status, and
employment shall continue to be authorized, until the petition is adjudicated. If the new petition is denied,
employment authorization will cease.
(viii) Substitution of beneficiaries.
Beneficiaries of H–2B petitions that are
approved for named or unnamed beneficiaries who have not been admitted
may be substituted only if the employer can demonstrate that the total
number of beneficiaries will not exceed
the number of beneficiaries certified in
the original temporary labor certification. Beneficiaries who were admitted to the United States may not be
substituted without a new petition accompanied by a newly approved temporary labor certification.
(A) To substitute beneficiaries who
were previously approved for consular
processing but have not been admitted
with aliens who are outside of the
United States, the petitioner shall, by
letter and a copy of the petition approval notice, notify the consular office at which the alien will apply for a
visa or the port of entry where the
alien will apply for admission. The petitioner shall also submit evidence of
the qualifications of beneficiaries to

the consular office or port of entry
prior to issuance of a visa or admission, if applicable.
(B) To substitute beneficiaries who
were previously approved for consular
processing but have not been admitted
with aliens who are currently in the
United States, the petitioner shall file
an amended petition with fees at the
USCIS Service Center where the original petition was filed, with a copy of
the original petition approval notice, a
statement explaining why the substitution is necessary, evidence of the
qualifications of beneficiaries, if applicable, evidence of the beneficiaries’
current status in the United States,
and evidence that the number of beneficiaries will not exceed the number allocated on the approved temporary
labor certification, such as employment records or other documentary
evidence to establish that the number
of visas sought in the amended petition
were not already issued. The amended
petition must retain a period of employment within the same half of the
same fiscal year as the original petition. Otherwise, a new temporary labor
certification issued by DOL or the Governor of Guam and subsequent H–2B petition are required.
(ix) Enforcement. The Secretary of
Labor may investigate employers to
enforce compliance with the conditions
of a petition and Department of Laborapproved temporary labor certification
to admit or otherwise provide status to
an H–2B worker.
(7) Petition for alien trainee or participant in a special education exchange visitor program (H–3)—(i) Alien trainee. The
H–3 trainee is a nonimmigrant who
seeks to enter the United States at the
invitation of an organization or individual for the purpose of receiving
training in any field of endeavor, such
as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as
training in a purely industrial establishment. This category shall not apply
to physicians, who are statutorily ineligible to use H–3 classification in
order to receive any type of graduate
medical education or training.
(A) Externs. A hospital approved by
the American Medical Association or
the American Osteopathic Association

319

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00329

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

for either an internship or residency
program may petition to classify as an
H–3 trainee a medical student attending a medical school abroad, if the
alien will engage in employment as an
extern during his/her medical school
vacation.
(B) Nurses. A petitioner may seek H–
3 classification for a nurse who is not
H–1 if it can be established that there
is a genuine need for the nurse to receive a brief period of training that is
unavailable in the alien’s native country and such training is designed to
benefit the nurse and the overseas employer upon the nurse’s return to the
country of origin, if:
(1) The beneficiary has obtained a
full and unrestricted license to practice professional nursing in the country where the beneficiary obtained a
nursing education, or such education
was obtained in the United States or
Canada; and
(2) The petitioner provides a statement certifying that the beneficiary is
fully qualified under the laws governing the place where the training
will be received to engage in such
training, and that under those laws the
petitioner is authorized to give the
beneficiary the desired training.
(ii) Evidence required for petition involving alien trainee—(A) Conditions.
The petitioner is required to demonstrate that:
(1) The proposed training is not available in the alien’s own country;
(2) The beneficiary will not be placed
in a position which is in the normal operation of the business and in which
citizens and resident workers are regularly employed;
(3) The beneficiary will not engage in
productive employment unless such
employment is incidental and necessary to the training; and
(4) The training will benefit the beneficiary in pursuing a career outside the
United States.
(B) Description of training program.
Each petition for a trainee must include a statement which:
(1) Describes the type of training and
supervision to be given, and the structure of the training program;
(2) Sets forth the proportion of time
that will be devoted to productive employment;

(3) Shows the number of hours that
will be spent, respectively, in classroom instruction and in on-the-job
training;
(4) Describes the career abroad for
which the training will prepare the
alien;
(5) Indicates the reasons why such
training cannot be obtained in the
alien’s country and why it is necessary
for the alien to be trained in the
United States; and
(6) Indicates the source of any remuneration received by the trainee and
any benefit which will accrue to the petitioner for providing the training.
(iii) Restrictions on training program
for alien trainee. A training program
may not be approved which:
(A) Deals in generalities with no
fixed schedule, objectives, or means of
evaluation;
(B) Is incompatible with the nature
of the petitioner’s business or enterprise;
(C) Is on behalf of a beneficiary who
already possesses substantial training
and expertise in the proposed field of
training;
(D) Is in a field in which it is unlikely that the knowledge or skill will
be used outside the United States;
(E) Will result in productive employment beyond that which is incidental
and necessary to the training;
(F) Is designed to recruit and train
aliens for the ultimate staffing of domestic operations in the United States;
(G) Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide
the training specified; or
(H) Is designed to extend the total allowable period of practical training
previously authorized a nonimmigrant
student.
(iv) Petition for participant in a special
education exchange visitor program—(A)
General Requirements. (1) The H–3 participant in a special education training
program must be coming to the United
States to participate in a structured
program which provides for practical
training and experience in the education of children with physical, mental, or emotional disabilities.
(2) The petition must be filed by a facility which has professionally trained

320

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00330

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

staff and a structured program for providing education to children with disabilities, and for providing training
and hands-on experience to participants in the special education exchange visitor program.
(3) The requirements in this section
for alien trainees shall not apply to petitions for participants in a special
education exchange visitor program.
(B) Evidence. An H–3 petition for a
participant in a special education exchange visitor program shall be accompanied by:
(1) A description of the training program and the facility’s professional
staff and details of the alien’s participation in the training program (any
custodial care of children must be incidental to the training), and
(2) Evidence that the alien participant is nearing completion of a baccalaureate or higher degree in special
education, or already holds such a degree, or has extensive prior training
and experience in teaching children
with physical, mental, or emotional
disabilities.
(8) Numerical limits—(i) Limits on affected categories. During each fiscal
year, the total number of aliens who
can be provided nonimmigrant classification is limited as follows:
(A) Aliens classified as H–1B nonimmigrants, excluding those involved
in Department of Defense research and
development projects or coproduction
projects, may not exceed the limits
identified in section 214(g)(1)(A) of the
Act.
(B) Aliens classified as H–1B nonimmigrants to work for DOD research
and development projects or coproduction projects may not exceed 100 at any
time.
(C) Aliens classified as H–2B nonimmigrants may not exceed 66,000.
(D) Aliens classified as H–3 nonimmigrant participants in a special
education exchange visitor program
may not exceed 50.
(E) Aliens classified as H–1C nonimmigrants may not exceed 500 in a fiscal year.
(ii) Procedures. (A) Each alien issued
a visa or otherwise provided nonimmigrant
status
under
sections
101(a)(15)(H)(i)(b), 101(a)(15)(H)(i)(c), or
101(a)(15)(H)(ii) of the Act shall be

counted for purposes of any applicable
numerical limit, unless otherwise exempt from such numerical limit. Requests for petition extension or extension of an alien’s stay shall not be
counted for the purpose of the numerical limit. The spouse and children of
principal H aliens are classified as H–4
nonimmigrants and shall not be counted against numerical limits applicable
to principals.
(B) When calculating the numerical
limitations or the number of exemptions under section 214(g)(5)(C) of the
Act for a given fiscal year, USCIS will
make numbers available to petitions in
the order in which the petitions are
filed. USCIS will make projections of
the number of petitions necessary to
achieve the numerical limit of approvals, taking into account historical data
related to approvals, denials, revocations, and other relevant factors.
USCIS will monitor the number of petitions (including the number of beneficiaries requested when necessary) received and will notify the public of the
date that USCIS has received the necessary number of petitions (the ‘‘final
receipt date’’). The day the news is published will not control the final receipt
date. When necessary to ensure the fair
and orderly allocation of numbers in a
particular classification subject to a
numerical limitation or the exemption
under section 214(g)(5)(C) of the Act,
USCIS may randomly select from
among the petitions received on the
final receipt date the remaining number of petitions deemed necessary to
generate the numerical limit of approvals. This random selection will be
made via computer-generated selection
as validated by the Office of Immigration Statistics. Petitions subject to a
numerical limitation not randomly selected or that were received after the
final receipt date will be rejected. Petitions filed on behalf of aliens otherwise
eligible for the exemption under section 214(g)(5)(C) of the Act not randomly selected or that were received
after the final receipt date will be rejected if the numerical limitation
under 214(g)(1) of the Act has been
reached for that fiscal year. Petitions
indicating that they are exempt from
the numerical limitation but that are

321

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00331

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

determined by USCIS after the final receipt date to be subject to the numerical limit will be denied and filing fees
will not be returned or refunded. If the
final receipt date is any of the first five
business days on which petitions subject to the applicable numerical limit
may be received (i.e., if the numerical
limit is reached on any one of the first
five business days that filings can be
made), USCIS will randomly apply all
of the numbers among the petitions received on any of those five business
days, conducting the random selection
among the petitions subject to the exemption under section 214(g)(5)(C) of
the Act first.
(C) When an approved petition is not
used because the beneficiary(ies) does
not apply for admission to the United
States, the petitioner shall notify the
Service Center Director who approved
the petition that the number(s) has not
been used. The petition shall be revoked pursuant to paragraph (h)(11)(ii)
of this section and USCIS will take
into account the unused number during
the appropriate fiscal year.
(D) If the total numbers available in
a fiscal year are used, new petitions
and the accompanying fee shall be rejected and returned with a notice that
numbers are unavailable for the particular nonimmigrant classification
until the beginning of the next fiscal
year. Petitions received after the total
numbers available in a fiscal year are
used stating that the alien beneficiaries are exempt from the numerical limitation will be denied and filing
fees will not be returned or refunded if
USCIS later determines that such
beneficiaries are subject to the numerical limitation.
(E) The 500 H–1C nonimmigrant visas
issued each fiscal year shall be allocated in the following manner:
(1) For each fiscal year, the number
of visas issued to the states of California, Florida, Illinois, Michigan, New
York, Ohio, Pennsylvania, and Texas
shall not exceed 50 each (except as provided for in paragraph (h)(8)(ii)(F)(3) of
this section).
(2) For each fiscal year, the number
of visas issued to the states not listed
in paragraph (h)(8)(ii)(F)(1) of this section shall not exceed 25 each (except as

provided for in paragraph (h)(8)(ii)(F)(3)
of this section).
(3) If the total number of visas available during the first three quarters of a
fiscal year exceeds the number of approvable H–1C petitions during those
quarters, visas may be issued during
the last quarter of the fiscal year to
nurses who will be working in a state
whose cap has already been reached for
that fiscal year.
(4) When an approved H–1C petition is
not used because the alien(s) does not
obtain H–1C classification, e.g., the
alien is never admitted to the United
States, or the alien never worked for
the facility, the facility must notify
the Service according to the instructions contained in paragraph (h)(11)(ii)
of this section. The Service will subtract H–1C petitions approved in the
current fiscal year that are later revoked from the total count of approved
H–1C petitions, provided that the alien
never commenced employment with
the facility.
(5) If the number of alien nurses included in an H–1C petition exceeds the
number available for the remainder of
a fiscal year, the Service shall approve
the petition for the beneficiaries to the
allowable amount in the order that
they are listed on the petition. The remaining beneficiaries will be considered for approval in the subsequent fiscal year.
(6) Once the 500 cap has been reached,
the Service will reject any new petitions subsequently filed requesting a
work start date prior to the first day of
the next fiscal year.
(9) Approval and validity of petition—
(i) Approval. The director shall consider
all the evidence submitted and such
other evidence as he or she may independently require to assist his or her
adjudication. The director shall notify
the petitioner of the approval of the petition on Form I–797, Notice of Action.
The approval shall be as follows:
(A) The approval notice shall include
the beneficiary’s(ies’) name(s) and classification and the petition’s period of
validity. A petition for more than one
beneficiary and/or multiple services
may be approved in whole or in part.
The approval notice shall cover only

322

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00332

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

those beneficiaries approved for classification under section 101(a)(15)(H) of
the Act.
(B) The petition may not be filed or
approved earlier than 6 months before
the date of actual need for the beneficiary’s services or training, except
that an H–2B petition for a temporary
nonagricultural worker may not be
filed or approved more than 120 days
before the date of the actual need for
the
beneficiary’s
temporary
nonagricultural services that is identified
on the temporary labor certification.
(C) If the period of services or training requested by the petitioner exceeds
the limit specified in paragraph
(h)(9)(iii) of this section, the petition
shall be approved only up to the limit
specified in that paragraph.
(iii) Validity. The initial approval period of an H petition shall conform to
the limits prescribed as follows:
(A)(1) H–1B petition in a specialty occupation. An approved petition classified
under section 101(a)(15)(H)(i)(b) of the
Act for an alien in a specialty occupation shall be valid for a period of up to
three years but may not exceed the validity period of the labor condition application.
(2) H–1B petition involving a DOD research and development or coproduction
project. An approved petition classified
under section 101(a)(15)(H)(i)(b) of the
Act for an alien involved in a DOD research and development project or a
coproduction project shall be valid for
a period of up to five years.
(3) H–1B petition involving an alien of
distinguished merit and ability in the field
of fashion modeling. An approved petition
classified
under
section
101(a)(15)(H)(i)(b) of the Act for an alien
of distinguished merit and ability in
the field of fashion modeling shall be
valid for a period of up to three years.
(B) H–2B petition. (1) The approval of
the petition to accord an alien a classification
under
section
101(a)(15)(H)(ii)(b) of the Act shall be
valid for the period of the approved
temporary labor certification.
(2) Notice that certification cannot be
made attached—(i) Countervailing evidence. If a petition is submitted containing a notice from the Secretary of
Labor or the Governor of Guam that
certification cannot be made, and is

not accompanied by countervailing evidence, the petitioner shall be informed
that he or she may submit the countervailing evidence in accordance with
paragraphs
(h)(6)(iii)(E)
and
(h)(6)(iv)(D) of this section.
(ii) Approval. In any case where the
director decides that approval of the H–
2B petition is warranted despite the
issuance of a notice by the Secretary of
Labor or the Governor of Guam that
certification cannot be made, the approval shall be certified by the Director to the Commissioner pursuant to 8
CFR 103.4. In emergent situations, the
certification may be presented by telephone to the Director, Administrative
Appeals Office, Headquarters. If approved, the petition is valid for the period of established need not to exceed
one year. There is no appeal from a decision which has been certified to the
Commissioner.
(C)(1) H–3 petition for alien trainee. An
approved petition for an alien trainee
classified
under
section
101(a)(15)(H)(iii) of the Act shall be
valid for a period of up to two years.
(2) H–3 petition for alien participant in
a special education training program. An
approved petition for an alien classified under section 101(a)(15)(H)(iii) of
the Act as a participant in a special
education exchange visitor program
shall be valid for a period of up to 18
months.
(D) H–1C petition for a registered nurse.
An approved petition for an alien classified under section 101(a)(15)(H)(i)(c) of
the Act shall be valid for a period of 3
years.
(iv) Spouse and dependents. The
spouse and unmarried minor children
of the beneficiary are entitled to H
nonimmigrant classification, subject
to the same period of admission and
limitations as the beneficiary, if they
are accompanying or following to join
the beneficiary in the United States.
Neither the spouse nor a child of the
beneficiary may accept employment
unless he or she is the beneficiary of an
approved petition filed in his or her behalf and has been granted a nonimmigrant classification authorizing
his or her employment.
(10) Denial of petition—(i) Multiple
beneficiaries. A petition for multiple

323

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00333

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

beneficiaries may be denied in whole or
in part.
(ii) Notice of denial. The petitioner
shall be notified of the reasons for the
denial and of the right to appeal the
denial of the petition under 8 CFR part
103. The petition will be denied if it is
determined that the statements on the
petition were inaccurate, fraudulent,
or misrepresented a material fact.
There is no appeal from a decision to
deny an extension of stay to the alien.
(11) Revocation of approval of petition—(i) General. (A) The petitioner
shall immediately notify the Service of
any changes in the terms and conditions of employment of a beneficiary
which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended
petition on Form I–129 should be filed
when the petitioner continues to employ the beneficiary. However, H–2A
petitioners must send notification to
DHS pursuant to paragraph (h)(5)(vi) of
this section. However, H–2A and H–2B
petitioners must send notification to
DHS pursuant to paragraphs (h)(5)(vi)
and (h)(6)(i)(F) of this section respectively.
(B) The director may revoke a petition at any time, even after the expiration of the petition.
(ii) Immediate and automatic revocation. The approval of any petition is
immediately and automatically revoked if the petitioner goes out of business, files a written withdrawal of the
petition, or the Department of Labor
revokes the labor certification upon
which the petition is based.
(iii) Revocation on notice—(A) Grounds
for revocation. The director shall send
to the petitioner a notice of intent to
revoke the petition in relevant part if
he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the
beneficiary is no longer receiving
training as specified in the petition; or
(2) The statement of facts contained
in the petition or on the application for
a temporary labor certification was not
true and correct, inaccurate, fraudulent, or misrepresented a material fact;
or
(3) The petitioner violated terms and
conditions of the approved petition; or

(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act
or paragraph (h) of this section; or
(5) The approval of the petition violated pargraph (h) of this section or involved gross error.
(B) Notice and decision. The notice of
intent to revoke shall contain a detailed statement of the grounds for the
revocation and the time period allowed
for the petitioner’s rebuttal. The petitioner may submit evidence in rebuttal
within 30 days of receipt of the notice.
The director shall consider all relevant
evidence presented in deciding whether
to revoke the petition in whole or in
part. If the petition is revoked in part,
the remainder of the petition shall remain approved and a revised approval
notice shall be sent to the petitioner
with the revocation notice.
(12) Appeal of a denial or a revocation
of a petition—(i) Denial. A petition denied in whole or in part may be appealed under part 103 of this chapter.
(ii) Revocation. A petition that has
been revoked on notice in whole or in
part may be appealed under part 103 of
this chapter. Automatic revocations
may not be appealed.
(13) Admission—(i) General. (A) A beneficiary shall be admitted to the
United States for the validity period of
the petition, plus a period of up to 10
days before the validity period begins
and 10 days after the validity period
ends. The beneficiary may not work except during the validity period of the
petition.
(B) When an alien in an H classification has spent the maximum allowable
period of stay in the United States, a
new
petition
under
sections
101(a)(15)(H) or (L) of the Act may not
be approved unless that alien has resided and been physically present outside the United States, except for brief
trips for business or pleasure, for the
time limit imposed on the particular H
classification. Brief trips to the United
States for business or pleasure during
the required time abroad are not
interruptive, but do not count towards
fulfillment of the required time abroad.
A certain period of absence from the
United States of H–2A and H–2B aliens
can interrupt the accrual of time spent
in such status against the 3-year limit
set forth in 8 CFR 214.2(h)(13)(iv). The

324

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00334

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

petitioner shall provide information
about the alien’s employment, place of
residence, and the dates and purposes
of any trips to the United States during the period that the alien was required to reside abroad.
(ii) H–1C limitation on admission. The
maximum period of admission for an
H–1C nonimmigrant alien is 3 years.
The maximum period of admission for
an H–1C alien begins on the date the H–
1C alien is admitted to the United and
ends on the third anniversary of the
alien’s admission date. Periods of time
spent out of the United States for business or personal reasons during the validity period of the H–1C petition count
towards the alien’s maximum period of
admission. When an H–1C alien has
reached the 3-year maximum period of
admission, the H–1C alien is no longer
eligible for admission to the United
States as an H–1C nonimmigrant alien.
(iii) H–1B limitation on admission. (A)
Alien in a specialty occupation or an
alien of distinguished merit and ability in
the field of fashion modeling. An H–1B
alien in a specialty occupation or an
alien of distinguished merit and ability
who has spent six years in the United
States under section 101(a)(15)(H) and/
or (L) of the Act may not seek extension, change status, or be readmitted
to the United States under section
101(a)(15) (H) or (L) of the Act unless
the alien has resided and been physically present outside the United
States, except for brief trips for business or pleasure, for the immediate
prior year.
(B) Alien involved in a DOD research
and development or coproduction project.
An H–1B alien involved in a DOD research and development or coproduction project who has spent 10 years in
the United States under section
101(a)(15) (H) and/or (L) of the Act may
not seek extension, change status, or
be readmitted to the United States
under section 101(a)(15) (H) or (L) of the
Act to perform services involving a
DOD research and development project
or coproduction project. A new petition
or change of status under section
101(a)(15) (H) or (L) of the Act may not
be approved for such an alien unless
the alien has resided and been physically present outside the United
States, except for brief trips for busi-

ness or pleasure, for the immediate
prior year.
(iv) H–2B and H–3 limitation on admission. An H–2B alien who has spent 3
years in the United States under section 101(a)(15)(H) and/or (L) of the Act
may not seek extension, change status,
or be readmitted to the United States
under sections 101(a)(15)(H) and/or (L)
of the Act unless the alien has resided
and been physically present outside the
United States for the immediately preceding 3 months. An H–3 alien participant in a special education program
who has spent 18 months in the United
States under sections 101(a)(15)(H) and/
or (L) of the Act; and an H–3 alien
trainee who has spent 24 months in the
United
States
under
sections
101(a)(15)(H) and/or (L) of the Act may
not seek extension, change status, or
be readmitted to the United States
under sections 101(a)(15)(H) and/or (L)
of the Act unless the alien has resided
and been physically present outside the
United States for the immediate prior 6
months.
(v) Exceptions. The limitations in
paragraphs
(h)(13)(iii)
through
(h)(13)(iv) of this section shall not
apply to H–1B, H–2B, and H–3 aliens
who did not reside continually in the
United States and whose employment
in the United States was seasonal or
intermittent or was for an aggregate of
6 months or less per year. In addition,
the limitations shall not apply to
aliens who reside abroad and regularly
commute to the United States to engage in part-time employment. An absence from the United States can interrupt the accrual of time spent as an H–
2B nonimmigrant against the 3-year
limit. If the accumulated stay is 18
months or less, an absence is
interruptive if it lasts for at least 45
days. If the accumulated stay is greater than 18 months, an absence is
interruptive if it lasts for at least two
months. To qualify for this exception,
the petitioner and the alien must provide clear and convincing proof that
the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure
records, copies of tax returns, and
records of employment abroad.
(14) Extension of visa petition validity.
The petitioner shall file a request for a

325

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00335

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

petition extension on Form I–129 to extend the validity of the original petition under section 101(a)(15)(H) of the
Act. Supporting evidence is not required unless requested by the director.
A request for a petition extension may
be filed only if the validity of the original petition has not expired.
(15) Extension of stay—(i) General. The
petitioner shall apply for extension of
an alien’s stay in the United States by
filing a petition extension on Form I–
129 accompanied by the documents described for the particular classification
in paragraph (h)(15)(ii) of this section.
The petitioner must also request a petition extension. The dates of extension shall be the same for the petition
and the beneficiary’s extension of stay.
The beneficiary must be physically
present in the United States at the
time of the filing of the extension of
stay. Even though the requests to extend the petition and the alien’s stay
are combined on the petition, the director shall make a separate determination on each. If the alien is required to leave the United States for
business or personal reasons while the
extension requests are pending, the petitioner may request the director to
cable notification of approval of the petition extension to the consular office
abroad where the alien will apply for a
visa. When the total period of stay in
an H classification has been reached,
no further extensions may be granted.
(ii) Extension periods—(A) H–1C extension of stay. The maximum period of admission for an H–1C alien is 3 years. An
H–1C alien who was initially admitted
to the United States for less than 3
years may receive an extension of stay
up to the third anniversary date of his
or her initial admission. An H–1C nonimmigrant may not receive an extension of stay beyond the third anniversary date of his or her initial admission
to the United States.
(B) H–1B extension of stay—(1) Alien in
a specialty occupation or an alien of distinguished merit and ability in the field of
fashion modeling. An extension of stay
may be authorized for a period of up to
three years for a beneficiary of an H–1B
petition in a specialty occupation or an
alien of distinguished merit and ability. The alien’s total period of stay
may not exceed six years. The request

for extension must be accompanied by
either a new or a photocopy of the
prior certification from the Department of Labor that the petitioner continues to have on file a labor condition
application valid for the period of time
requested for the occupation.
(2) Alien in a DOD research and development or coproduction project. An extension of stay may be authorized for a
period up to five years for the beneficiary of an H–1B petition involving a
DOD research and development project
or coproduction project. The total period of stay may not exceed 10 years.
(C) H–2A or H–2B extension of stay. An
extension of stay for the beneficiary of
an H–2A or H–2B petition may be authorized for the validity of the labor
certification or for a period of up to
one year, except as provided for in
paragraph (h)(5)(x) of this section. The
alien’s total period of stay as an H–2A
or H–2B worker may not exceed three
years, except that in the Virgin Islands, the alien’s total period of stay
may not exceed 45 days.
(D) H–3 extension of stay. An extension of stay may be authorized for the
length of the training program for a
total period of stay as an H–3 trainee
not to exceed two years, or for a total
period of stay as a participant in a special education training program not to
exceed 18 months.
(16) Effect of approval of a permanent
labor certification or filing of a preference
petition on H classification—(i) H–1B or
H–1C classification. The approval of a
permanent labor certification or the
filing of a preference petition for an
alien shall not be a basis for denying
an H–1C or H–1B petition or a request
to extend such a petition, or the alien’s
admission, change of status, or extension of stay. The alien may legitimately come to the United States for a
temporary period as an H–1C or H–1B
nonimmigrant and depart voluntarily
at the end of his or her authorized stay
and, at the same time, lawfully seek to
become a permanent resident of the
United States.
(ii) H–2A, H–2B, and H–3 classification.
The approval of a permanent labor certification, or the filing of a preference
petition for an alien currently employed by or in a training position with
the same petitioner, shall be a reason,

326

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00336

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

by itself, to deny the alien’s extension
of stay.
(17) Effect of a strike—(i) If the Secretary of Labor certifies to the Commissioner that a strike or other labor
dispute involving a work stoppage of
workers is in progress in the occupation and at the place where the beneficiary is to be employed or trained,
and that the employment of training of
the beneficiary would adversely affect
the wages and working conditions of
U.S. citizens and lawful resident workers:
(A) A petition to classify an alien as
a nonimmigrant as defined in section
101(a)(15)(H) of the Act shall be denied.
(B) If a petition has already been approved, but the alien has not yet entered the United States, or has entered
the United States but has not commenced the employment, the approval
of the petition is automatically suspended, and the application for admission on the basis of the petition shall
be denied.
(ii) If there is a strike or other labor
dispute involving a work stoppage of
workers in progress, but such strike or
other labor dispute is not certified
under paragraph (h)(17)(i), the Commissioner shall not deny a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and
is participating in a strike or other
labor dispute involving a work stoppage of workers, whether or not such
strike or other labor dispute has been
certified by the Department of Labor,
the alien shall not be deemed to be failing to maintain his or her status solely
on account of past, present, or future
participation in a strike or other labor
dispute involving a work stoppage of
workers, but is subject to the following
terms and conditions:
(A) The alien shall remain subject to
all applicable provisions of the Immigration and Nationality Act, and regulations promulgated in the same manner as all other H nonimmigrants;
(B) The status and authorized period
of stay of such an alien is not modified
or extended in any way by virtue of his
or her participation in a strike or other
labor dispute involving a work stoppage of workers; and

(C) Although participation by an H
nonimmigrant alien in a strike or
other labor dispute involving a work
stoppage of workers will not constitute
a ground for deportation, any alien
who violates his or her status or who
remains in the United States after his
or her authorized period of stay has expired will be subject to deportation.
(18) Use of approval notice, Form I–797.
The Service shall notify the petitioner
on Form I–797 whenever a visa petition,
an extension of a visa petition, or an
alien’s extension of stay is approved
under the H classification. The beneficiary of an H petition who does not
require a nonimmigrant visa may
present a copy of the approval notice
at a port of entry to facilitate entry
into the United States. A beneficiary
who is required to present a visa for admission and whose visa will have expired before the date of his or her intended return may use a copy of Form
I–797 to apply for a new or revalidated
visa during the validity period of the
petition. The copy of Form I–797 shall
be retained by the beneficiary and presented during the validity of the petition when reentering the United States
to resume the same employment with
the same petitioner.
(19) Additional fee for filing certain H–
1B petitions. (i) A United States employer (other than an exempt employer
as defined in paragraph (h)(19)(iii) of
this section) who files a Form I–129, on
or after December 1, 1998, and before
October 1, 2001, must include the additional fee required in § 103.7(b)(1) of this
chapter, if the petition is filed for any
of the following purposes:
(A) An initial grant of H–1B status
under section 101(a)(15)(H)(i)(b) of the
Act;
(B) An initial extension of stay, as
provided in paragraph (h)(15)(i) of this
section; or
(C) Authorization for a change in employers, as provided in paragraph
(h)(2)(i)(D) of this section.
(ii) A petitioner must submit the $110
filing fee and additional $500 filing fee
in a single remittance totaling $610.
Payment of the $610 sum ($110 filing fee
and additional $500 filing fee) must be
made at the same time to constitute a
single remittance. A petitioner may
submit two checks, one in the amount

327

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00337

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

of $500 and the other in the amount of
$110. The Service will accept remittances of the $500 fee only from the
United States employer or its representative of record, as defined under
8 CFR part 292 and 8 CFR 103.2(a).
(iii) The following exempt organizations are not required to pay the additional fee:
(A) An institution of higher education,
as defined in section 101(a) of the Higher Education Act of 1965;
(B) An affiliated or related nonprofit
entity. A nonprofit entity (including
but not limited to hospitals and medical or research institutions) that is
connected or associated with an institution of higher education, through
shared ownership or control by the
same board or federation operated by
an institution of higher education, or
attached to an institution of higher
education as a member, branch, cooperative, or subsidiary; or
(C) A nonprofit research organization or
governmental research organization. A
nonprofit research organization is an
organization that is primarily engaged
in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is
the performance or promotion of basic
research and/or applied research. Basic
research is general research to gain
more comprehensive knowledge or understanding of the subject under study,
without specific applications in mind.
Basic research is also research that advances scientific knowledge, but does
not have specific immediate commercial objectives although it may be in
fields of present or potential commercial interest. It may include research
and investigation in the sciences, social sciences, or humanities. Applied
research is research to gain knowledge
or understanding to determine the
means by which a specific, recognized
need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that
has specific commercial objectives
with respect to products, processes, or
services. It may include research and
investigation in the sciences, social
sciencies, or humanities.
(iv) Non-profit or tax exempt organizations. For purposes of paragraphs

(h)(19)(iii) (B) and (C) of this section, a
nonprofit organization or entity is:
(A) Defined as a tax exempt organization under the Internal Revenue Code
of 1986, section 501(c)(3), (c)(4) or (c)(6),
26 U.S.C. 501(c)(3), (c)(4) or (c)(6), and
(B) Has been approved as a tax exempt organization for research or educational purposes by the Internal Revenue Service.
(v) Filing situations where the $500 filing fee is not required. The $500 filing fee
is not required:
(A) If the petition is an amended H–
1B petition that does not contain any
requests for an extension of stay;
(B) If the petition is an H–1B petition
filed for the sole purpose of correcting
a Service error; or
(C) If the petition is the second or
subsequent request for an extension of
stay filed by the employer regardless of
when the first extension of stay was
filed or whether the $500 filing fee was
paid on the initial petition or the first
extension of stay.
(vi) Petitioners required to file Form I–
129W. All petitioners must submit
Form I–129W with the appropriate supporting documentation with the petition for an H–1B nonimmigrant alien.
Petitioners who do not qualify for a fee
exemption are required only to fill our
Part A of Form I–129W.
(vii) Evidence to be submitted in support of the Form I–129W. (A) Employer
claiming to be exempt. An employer
claiming to be exempt from the $500 filing fee must complete both Parts A
and B of Form I–129W along with Form
I–129. The employer must also submit
evidence as described on Form I–129W
establishing that it meets one of the
exemptions described at paragraph
(h)(19)(iii) of this section. A United
States employer claiming an exemption from the $500 filing fee on the
basis that it is a non-profit research organization must submit evidence that
it has tax exempt status under the Internal Revenue Code of 1986, section
501(c)(3), (c)(4) or (c)(6), 26 U.S.C.
501(c)(3), (c)(4) or (c)(6). All other employers claiming an exemption must
submit a statement describing why the
organization or entity is exempt.
(B) Exempt filing situations. Any
non-exempt employer who claims that
the $500 filing fee does not apply with

328

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00338

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

respect to a particular filing for one of
the reasons described in § 214.2(h)(19)(v),
must submit a statement describing
why the filing fee is not required.
(i) Representatives of information
media. The admission of an alien of the
class defined in section 101(a)(15)(I) of
the Act constitutes an agreement by
the alien not to change the information medium or his or her employer
until he or she obtains permission to
do so from the district director having
jurisdiction over his or her residence.
An alien classified as an information
media nonimmigrant (I) may be authorized admission for the duration of
employment.
(j) Exchange aliens—(1) General—(i)
Eligibility
for
admission.
A
nonimmigrant exchange visitor and his or
her accompanying spouse and minor
children may be admitted into the
United States in J–1 and J–2 classifications under section 101(a)(15)(J) of the
Act, if the exchange visitor and his or
her accompanying spouse and children
each presents a SEVIS Form DS–2019
issued in his or her own name by a program approved by the Department of
State for participation by J–1 exchange
visitors. Prior to August 1, 2003, if exigent circumstances are demonstrated,
the Service will allow the dependent of
an exchange visitor possessing a SEVIS
Form DS–2019 to enter the United
States using a copy of the exchange
visitor’s SEVIS Form DS–2019. However, where the exchange visitor presents a properly completed Form DS–
2019, Certificate of Eligibility for Exchange Visitor (J–1) Status, which was
issued to the J–1 exchange visitor by a
program approved by the Department
of State for participation by exchange
visitors and which remains valid for
the admission of the exchange visitor,
the accompanying spouse and children
may be admitted on the basis of the J–
1’s non-SEVIS Form DS–2019.
(ii) Admission period. An exchange
alien, and J–2 spouse and children, may
be admitted for a period up to 30 days
before the report date or start of the
approved program listed on Form DS–
2019. The initial admission of an exchange visitor, spouse and children
may not exceed the period specified on
Form DS–2019, plus a period of 30 days
for the purposes of travel or for the pe-

riod designated by the Commissioner
as provided in paragraph (j)(1)(vi) of
this section. Regulations of the Department of State published at 22 CFR part
62 give general limitations on the stay
of the various classes of exchange visitors. A spouse or child may not be admitted for longer than the principal exchange visitor.
(iii) Readmission. An exchange alien
may be readmitted to the United
States for the remainder of the time
authorized on Form I–94, without presenting Form IAP–66, if the alien is returning from a visit solely to foreign
contiguous territory or adjacent islands after an absence of less than 30
days and if the original Form I–94 is
presented. All other exchange aliens
must present a valid Form IAP–66. An
original Form IAP–66 or copy three
(the pink copy) of a previously issued
form presented by an exchange alien
returning from a temporary absence
shall be retained by the exchange alien
for re-entries during the balance of the
alien’s stay.
(iv) Extensions of Stay. If an exchange
alien requires an extension beyond the
initial admission period, the alien shall
apply by submitting a new Form DS–
2019 which indicates the date to which
the alien’s program is extended. The
extension may not exceed the period
specified on Form DS–2019, plus a period of 30 days for the purpose of travel. Extensions of stay for the alien’s
spouse and children require, as an attachment to Form DS–2019, Form I–94
for each dependent, and a list containing the names of the applicants,
dates and places of birth, passport
numbers, issuing countries, and expiration dates. An accompanying spouse or
child may not be granted an extension
of stay for longer than the principal exchange alien.
(v) Employment. (A) The accompanying spouse and minor children of a
J–1 exchange visitor may accept employment only with authorization by
the Immigration and Naturalization
Service. A request for employment authorization must be made on Form I–
765, Application for Employment Authorization, with fee, as required by
the Service, to the district director
having jurisdiction over the J–1 exchange visitor’s temporary residence in

329

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00339

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

the United States. Income from the
spouse’s or dependent’s employment
may be used to support the family’s
customary recreational and cultural
activities and related travel, among
other things. Employment will not be
authorized if this income is needed to
support the J–1 principal alien.
(B) J–2 employment may be authorized for the duration of the J–1 principal alien’s authorized stay as indicated on Form I–94 or a period of four
years, whichever is shorter. The employment authorization is valid only if
the J–1 is maintaining status. Where a
J–2 spouse or dependent child has filed
a timely application for extension of
stay, only upon approval of the request
for extension of stay may he or she
apply for a renewal of the employment
authorization on a Form I–765 with the
required fee.
(vi) Extension of duration of status.
The Commissioner may, by notice in
the FEDERAL REGISTER, at any time she
determines that the H–1B numerical
limitation as described in section
214(g)(1)(A) of the Act will likely be
reached prior to the end of a current
fiscal year, extend for such a period of
time as the Commissioner deems necessary to complete the adjudication of
the H–1B application, the duration of
status of any J–1 alien on behalf of
whom an employer has timely filed an
application for change of status to H–
1B. The alien, in accordance with 8
CFR part 248, must not have violated
the terms of his or her nonimmigrant
stay and is not subject to the 2-year
foreign residence requirement at 212(e)
of the Act. Any J–1 student whose duration of status has been extended
shall be considered to be maintaining
lawful nonimmigrant status for all purposes under the Act, provided that the
alien does not violate the terms and
conditions of his or her J nonimmigrant stay. An extension made
under this paragraph also applies to
the J–2 dependent aliens.
(vii) Use of SEVIS. At a date to be established by the Department of State,
the use of the Student and Exchange
Visitor Information System (SEVIS)
will become mandatory for designated
program sponsors. After that date,
which will be announced by publication
in the FEDERAL REGISTER, all des-

ignated program sponsors must begin
issuance of the SEVIS Form DS–2019.
(viii) Current name and address. A J–1
exchange visitor must inform the Service and the responsible officer of the
exchange visitor program of any legal
changes to his or her name or of any
change of address, within 10 days of the
change, in a manner prescribed by the
program sponsor. A J–1 exchange visitor enrolled in a SEVIS program can
satisfy the requirement in 8 CFR 265.1
of notifying the Service by providing a
notice of a change of address within 10
days to the responsible officer, who in
turn shall enter the information in
SEVIS within 21 days of notification by
the exchange visitor. A J–1 exchange
visitor enrolled at a non-SEVIS program must submit a change of address
to the Service, as provided in 8 CFR
265.1, within 10 days of the change. Except in the case of an exchange visitor
who cannot receive mail where he or
she resides, the address provided by the
exchange visitor must be the actual
physical location where the exchange
visitor resides rather than a mailing
address. In cases where an exchange
visitor provides a mailing address, the
exchange visitor program must maintain a record of, and must provide upon
request from the Service, the actual
physical location where the exchange
visitor resides.
(2) Special reporting requirement. Each
exchange alien participating in a program of graduate medical education or
training shall file Form I–644 (Supplementary Statement for Graduate Medical Trainees) annually with the Service attesting to the conditions as specified on the form. The exchange alien
shall also submit Form I–644 as an attachment to a completed Form DS–2019
when applying for an extension of stay.
(3) Alien in cancelled programs. When
the approval of an exchange visitor
program is withdrawn by the Director
of the United States Information Agency, the district director shall send a
notice of the withdrawal to each participant in the program and a copy of
each such notice shall be sent to the
program sponsor. If the exchange visitor is currently engaged in activities
authorized by the cancelled program,
the participant is authorized to remain
in the United States to engage in those

330

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00340

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

activities until expiration of the period
of stay previously authorized. The district director shall notify participants
in cancelled programs that permission
to remain in the United States as an
exchange visitor, or extension of stay
may be obtained if the participant is
accepted in another approved program
and a Form DS–2019, executed by the
new program sponsor, is submitted. In
this case, a release from the sponsor of
the cancelled program will not be required.
(4) Eligibility requirements for section
101(a)(15)(J) classification for aliens desiring to participate in programs under
which they will receive graduate medical
education or training—(i) Requirements.
Any alien coming to the United States
as an exchange visitor to participate in
a program under which the alien will
receive graduate medical education or
training, or any alien seeking to
change nonimmigrant status to that of
an exchange visitor on Form I–506 for
that purpose, must have passed parts of
I and II of the National Board of Medical Examiners Examination (or an
equivalent examination as determined
by the Secretary of Health and Human
Services), and must be competent in
oral and written English, and shall submit a completely executed and valid
Form DS–2019.
(ii) Exemptions. From January 10, 1978
until December 31, 1983, any alien who
has come to or seeks to come to the
United States as an exchange visitor to
participate in an accredited program of
graduate medical education or training, or any alien who seeks to change
nonimmigrant status for that purpose,
may be admitted to participate in such
program without regard to the requirements stated in subparagraphs (A) and
(B)(ii)(I) of section 212(j)(1) of the Act if
a substantial disruption in the health
services provided by such program
would result from not permitting the
alien to participate in the program:
Provided that the exemption will not
increase the total number of aliens
then participating in such programs to
a level greater than that participating
on January 10, 1978.
(5) Remittance of the fee. An alien who
applies for J–1 nonimmigrant status in
order to commence participation in a
Department of State-designated ex-

change visitor program is required to
pay the SEVIS fee to DHS, pursuant to
8 CFR 214.13, except as otherwise provided in that section.
(k) Spouses, Fiance´es, and Fiance´s of
United States Citizens—(1) Petition and
supporting documents. To be classified
as a fiance or fiancee as defined in section 101(a)(15)(K)(i) of the Act, an alien
must be the beneficiary of an approved
visa petition filed on Form I–129F. A
copy of a document submitted in support of a visa petition filed pursuant to
section 214(d) of the Act and this paragraph may be accepted, though unaccompanied by the original, if the copy
bears a certification by an attorney,
typed or rubber-stamped, in the language set forth in § 204.2(j) of this chapter. However, the original document
shall be submitted if requested by the
Service.
(2) Requirement that petitioner and K–
1 beneficiary have met. The petitioner
shall establish to the satisfaction of
the director that the petitioner and K–
1 beneficiary have met in person within
the two years immediately preceding
the filing of the petition. As a matter
of discretion, the director may exempt
the petitioner from this requirement
only if it is established that compliance would result in extreme hardship
to the petitioner or that compliance
would violate strict and long-established customs of the K–1 beneficiary’s
foreign culture or social practice, as
where marriages are traditionally arranged by the parents of the contracting parties and the prospective
bride and groom are prohibited from
meeting subsequent to the arrangement and prior to the wedding day. In
addition to establishing that the required meeting would be a violation of
custom or practice, the petitioner must
also establish that any and all other
aspects of the traditional arrangements have been or will be met in accordance with the custom or practice.
Failure to establish that the petitioner
and K–1 beneficiary have met within
the required period or that compliance
with the requirement should be waived
shall result in the denial of the petition. Such denial shall be without prejudice to the filing of a new petition
once the petitioner and K–1 beneficiary
have met in person.

331

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00341

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(3) Children of beneficiary. Without
the approval of a separate petition on
his or her behalf, a child of the beneficiary
(as
defined
in
section
101(b)(1)(A), (B), (C), (D), or (E) of the
Act) may be accorded the same nonimmigrant classification as the beneficiary if accompanying or following to
join him or her.
(4) Notification. The petitioner shall
be notified of the decision and, if the
petition is denied, of the reasons therefor and of the right to appeal in accordance with the provisions of part 103 of
this chapter.
(5) Validity. The approval of a petition under this paragraph shall be valid
for a period of four months. A petition
which has expired due to the passage of
time may be revalidated by a director
or a consular officer for a period of four
months from the date of revalidation
upon a finding that the petitioner and
K–1 beneficiary are free to marry and
intend to marry each other within 90
days of the beneficiary’s entry into the
United States. The approval of any petition is automatically terminated
when the petitioner dies or files a written withdrawal of the petition before
the beneficiary arrives in the United
States.
(6) Adjustment of status from nonimmigrant to immigrant.
(i) [Reserved]
(ii) Nonimmigrant visa issued on or
after November 10, 1986. Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to
a valid K–1 visa issued on or after November 10, 1986, the K–1 beneficiary and
his or her minor children may apply for
adjustment of status to lawful permanent resident under section 245 of the
Act. Upon approval of the application
the director shall record their lawful
admission for permanent residence in
accordance with that section and subject to the conditions prescribed in section 216 of the Act.
(7) Eligibility, petition and supporting
documents for K–3/K–4 classification. To
be classified as a K–3 spouse as defined
in section 101(a)(15)(k)(ii) of the Act, or
the K–4 child of such alien defined in
section 101(a)(15)(K)(iii) of the Act, the
alien spouse must be the beneficiary of
an immigrant visa petition filed by a

U.S. citizen on Form I–130, Petition for
Alien Relative, and the beneficiary of
an approved petition for a K–3 nonimmigrant visa filed on Form I–129F.
(8) Period of admission for K3/K–4 status. Aliens entering the United States
as a K–3 shall be admitted for a period
of 2 years. Aliens entering the United
States as a K–4 shall be admitted for a
period of 2 years or until that alien’s
21st birthday, whichever is shorter.
(9) Employment authorization. An alien
admitted to the United States as a
nonimmigrant
under
section
101(a)(15)(K) of the Act shall be authorized to work incident to status for the
period of authorized stay. K–1/K–2
aliens seeking work authorization
must apply, with fee, to the Service for
work
authorization
pursuant
to
§ 274a.12(a)(6) of this chapter. K–3/K–4
aliens must apply to the Service for a
document evidencing employment authorization pursuant to § 274a.12(a)(9) of
this chapter. Employment authorization documents issued to K–3/K–4 aliens
may be renewed only upon a showing
that the applicant has an application
or petition awaiting approval, equivalent to the showing required for an extension
of
stay
pursuant
to
§ 214.2(k)(10).
(10) Extension of stay for K–3/K–4 status—(i) General. A K–3/K–4 alien may
apply for extension of stay, on Form I–
539, Application to Extend/Change Nonimmigrant Status, 120 days prior to the
expiration of his or her authorized
stay. Extensions for K–4 status must be
filed concurrently with the alien’s parent’s K–3 status extension application.
In addition, the citizen parent of a K–
4 alien filing for extension of K status
should file Form I–130 on their behalf.
Extension will be granted in 2-year intervals upon a showing of eligibility
pursuant to section 101(a)(15)(K)(ii) or
(iii) of the Act. Aliens wishing to extend their period of stay as a K–3 or K–
4 alien pursuant to § 214.1(c)(2) must
show that one of the following has been
filed with the Service or the Department of State, as applicable, and is
awaiting approval:
(A) The Form I–130, Petition for
Alien Relative, filed by the K–3’s U.S.
citizen spouse who filed the Form I–
129F;

332

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00342

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(B) An application for an immigrant
visa based on a Form I–130 described in
§ 214.2(K)(10)(i);
(C) A Form I–485, Application for Adjustment to that of Permanent Residence, based on a Form I–130 described
in § 214.2(k)(10)(i);
(ii) ‘‘Good Cause’’ showing. Aliens may
file for an extension of stay as a K–3/K–
4 nonimmigrant after a Form I–130
filed on their behalf has been approved,
without filing either an application for
adjustment of status or an immigrant
visa upon a showing of ‘‘good cause.’’ A
showing of ‘‘good cause’’ may include an
illness, a job loss, or some other catastrophic event that has prevented the
filing of an adjustment of status application by the K–3/K–4 alien. The event
or events must have taken place since
the alien entered the United States as
a K–3/K–4 nonimmigrant. The burden of
establishing ‘‘good cause’’ rests solely
with the applicant. Whether the applicant has shown ‘‘good cause’’ is a purely
discretionary decision by the Service
from which there is no appeal.
(11) Termination of K–3/K–4 status. The
status of an alien admitted to the
United States as a K–3/K–4 under section 101(a)(15)(K)(ii) or (iii) of the Act,
shall be automatically terminated 30
days following the occurrence of any of
the following:
(i) The denial or revocation of the
Form I–130 filed on behalf of that alien;
(ii) The denial or revocation of the
immigrant visa application filed by
that alien;
(iii) The denial or revocation of the
alien’s application for adjustment of
status to that of lawful permanent residence;
(iv) The K–3 spouse’s divorce from
the U.S. citizen becomes final;
(v) The marriage of an alien in K–4
status.
(vi) The denial of any of these petitions or applications to a K–3 also results in termination of a dependent K–
4’s status. For purposes of this section,
there is no denial or revocation of a petition or application until the administrative appeal applicable to that application or petition has been exhausted.
(l) Intracompany transferees—(1) Admission of intracompany transferees—(i)
General. Under section 101(a)(15)(L) of
the Act, an alien who within the pre-

ceding three years has been employed
abroad for one continuous year by a
qualifying organization may be admitted temporarily to the United States to
be employed by a parent, branch, affiliate, or subsidiary of that employer in
a managerial or executive capacity, or
in a position requiring specialized
knowledge. An alien transferred to the
United
States
under
this
nonimmigrant classification is referred to
as an intracompany transferee and the
organization which seeks the classification of an alien as an intracompany
transferee is referred to as the petitioner. The Service has responsibility
for determining whether the alien is eligible for admission and whether the
petitioner is a qualifying organization.
These regulations set forth the standards applicable to these classifications.
They also set forth procedures for admission of intracompany transferees
and appeal of adverse decisions. Certain petitioners seeking the classification of aliens as intracompany transferees may file blanket petitions with
the Service. Under the blanket petition
process, the Service is responsible for
determining whether the petitioner
and its parent, branches, affiliates, or
subsidiaries specified are qualifying organizations. The Department of State
or, in certain cases, the Service is responsible for determining the classification of the alien.
(ii)
Definitions—(A)
Intracompany
transferee means an alien who, within
three years preceding the time of his or
her application for admission into the
United States, has been employed
abroad continuously for one year by a
firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter
the United States temporarily in order
to render his or her services to a
branch of the same employer or a parent, affiliate, or subsidiary thereof in a
capacity that is managerial, executive,
or involves specialized knowledge. Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the
United States for business or pleasure
shall not be interruptive of the one
year of continuous employment abroad

333

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00343

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

but such periods shall not be counted
toward fulfillment of that requirement.
(B) Managerial capacity means an assignment within an organization in
which the employee primarily:
(1) Manages the organization, or a department, subdivision, function, or
component of the organization;
(2) Supervises and controls the work
of other supervisory, professional, or
managerial employees, or manages an
essential function within the organization, or a department or subdivision of
the organization;
(3) Has the authority to hire and fire
or recommend those as well as other
personnel actions (such as promotion
and leave authorization) if another employee or other employees are directly
supervised; if no other employee is directly supervised, functions at a senior
level within the organizational hierarchy or with respect to the function
managed; and
(4) Exercises discretion over the dayto-day operations of the activity or
function for which the employee has
authority. A first-line supervisor is not
considered to be acting in a managerial
capacity merely by virtue of the supervisor’s supervisory duties unless the
employees supervised are professional.
(C) Executive capacity means an assignment within an organization in
which the employee primarily:
(1) Directs the management of the organization or a major component or
function of the organization;
(2) Establishes the goals and policies
of the organization, component, or
function;
(3) Exercises wide latitude in discretionary decision-making; and
(4) Receives only general supervision
or direction from higher level executives, the board of directors, or stockholders of the organization.
(D) Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s
product, service, research, equipment,
techniques, management, or other interests and its application in international markets, or an advanced level
of knowledge or expertise in the organization’s processes and procedures.
(E) Specialized knowledge professional
means an individual who has specialized knowledge as defined in paragraph

(l)(1)(ii)(D) of this section and is a
member of the professions as defined in
section 101(a)(32) of the Immigration
and Nationality Act.
(F) New office means an organization
which has been doing business in the
United States through a parent,
branch, affiliate, or subsidiary for less
than one year.
(G) Qualifying organization means a
United States or foreign firm, corporation, or other legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the
definitions of a parent, branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not required) as an employer in the United
States and in at least one other country directly or through a parent,
branch, affiliate, or subsidiary for the
duration of the alien’s stay in the
United States as an intracompany
transferee; and
(3) Otherwise meets the requirements
of section 101(a)(15)(L) of the Act.
(H) Doing business means the regular,
systematic, and continuous provision
of goods and/or services by a qualifying
organization and does not include the
mere presence of an agent or office of
the qualifying organization in the
United States and abroad.
(I) Parent means a firm, corporation,
or other legal entity which has subsidiaries.
(J) Branch means an operating division or office of the same organization
housed in a different location.
(K) Subsidiary means a firm, corporation, or other legal entity of which a
parent owns, directly or indirectly,
more than half of the entity and controls the entity; or owns, directly or
indirectly, half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50–50 joint
venture and has equal control and veto
power over the entity; or owns, directly or indirectly, less than half of
the entity, but in fact controls the entity.
(L) Affiliate means (1) One of two subsidiaries both of which are owned and
controlled by the same parent or individual, or

334

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00344

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(2) One of two legal entities owned
and controlled by the same group of individuals, each individual owning and
controlling approximately the same
share or proportion of each entity, or
(3) In the case of a partnership that is
organized in the United States to provide accounting services along with
managerial and/or consulting services
and that markets its accounting services under an internationally recognized name under an agreement with a
worldwide coordinating organization
that is owned and controlled by the
member accounting firms, a partnership (or similar organization) that is
organized outside the United States to
provide accounting services shall be
considered to be an affiliate of the
United States partnership if it markets
its accounting services under the same
internationally recognized name under
the agreement with the worldwide coordinating organization of which the
United States partnership is also a
member.
(M) Director means a Service Center
director with delegated authority at 8
CFR 103.1.
(2) Filing of petitions. (
(i) Except as provided in paragraph
(l)(2)(ii) and (l)(17) of this section, a petitioner seeking to classify an alien as
an intracompany transferee must file a
petition on Form I–129, Petition for
Nonimmigrant Worker. The petitioner
shall advise USCIS whether a previous
petition for the same beneficiary has
been filed, and certify that another petition for the same beneficiary will not
be filed unless the circumstances and
conditions in the initial petition have
changed. Failure to make a full disclosure of previous petitions filed may result in a denial of the petition.
(ii) A United States petitioner which
meets the requirements of paragraph
(l)(4) of this section and seeks continuing approval of itself and its parent, branches, specified subsidiaries
and affiliates as qualifying organizations and, later, classification under
section 101(a)(15)(L) of the Act multiple
numbers of aliens employed by itself,
its parent, or those branches, subsidiaries, or affiliates may file a blanket
petition on Form I–129. The blanket petition shall be maintained at the adjudicating office. The petitioner shall be

the single representative for the qualifying organizations with which USCIS
will deal regarding the blanket petition.
(3) Evidence for individual petitions. An
individual petition filed on Form I–129
shall be accompanied by:
(i) Evidence that the petitioner and
the organization which employed or
will employ the alien are qualifying organizations as defined in paragraph
(l)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be
employed in an executive, managerial,
or specialized knowledge capacity, including a detailed description of the
services to be performed.
(iii) Evidence that the alien has at
least one continuous year of full-time
employment abroad with a qualifying
organization within the three years
preceding the filing of the petition.
(iv) Evidence that the alien’s prior
year of employment abroad was in a
position that was managerial, executive, or involved specialized knowledge
and that the alien’s prior education,
training, and employment qualifies
him/her to perform the intended services in the United States; however, the
work in the United States need not be
the same work which the alien performed abroad.
(v) If the petition indicates that the
beneficiary is coming to the United
States as a manager or executive to
open or to be employed in a new office
in the United States, the petitioner
shall submit evidence that:
(A) Sufficient physical premises to
house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the
three year period preceding the filing
of the petition in an executive or managerial capacity and that the proposed
employment involved executive or
managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position as defined
in paragraphs (l)(1)(ii) (B) or (C) of this
section, supported by information regarding:
(1) The proposed nature of the office
describing the scope of the entity, its

335

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00345

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

organizational structure, and its financial goals;
(2) The size of the United States investment and the financial ability of
the foreign entity to remunerate the
beneficiary and to commence doing
business in the United States; and
(3) The organizational structure of
the foreign entity.
(vi) If the petition indicates that the
beneficiary is coming to the United
States in a specialized knowledge capacity to open or to be employed in a
new office, the petitioner shall submit
evidence that:
(A) Sufficient physical premises to
house the new office have been secured;
(B) The business entity in the United
States is or will be a qualifying organization
as
defined
in
paragraph
(l)(1)(ii)(G) of this section; and
(C) The petitioner has the financial
ability to remunerate the beneficiary
and to commence doing business in the
United States.
(vii) If the beneficiary is an owner or
major stockholder of the company, the
petition must be accompanied by evidence that the beneficiary’s services
are to be used for a temporary period
and evidence that the beneficiary will
be transferred to an assignment abroad
upon the completion of the temporary
services in the United States.
(viii) Such other evidence as the director, in his or her discretion, may
deem necessary.
(4) Blanket petitions. (i) A petitioner
which meets the following requirements may file a blanket petition seeking continuing approval of itself and
some or all of its parent, branches, subsidiaries, and affiliates as qualifying
organizations if:
(A) The petitioner and each of those
entities are engaged in commercial
trade or services;
(B) The petitioner has an office in the
United States that has been doing business for one year or more;
(C) The petitioner has three or more
domestic and foreign branches, subsidiaries, or affiliates; and
(D) The petitioner and the other
qualifying organizations have obtained
approval of petitions for at least ten
‘‘L’’ managers, executives, or specialized knowledge professionals during
the previous 12 months; or have U.S.

subsidiaries or affiliates with combined
annual sales of at least $25 million; or
have a United States work force of at
least 1,000 employees.
(ii) Managers, executives, and specialized knowledge professionals employed by firms, corporations, or other
entities which have been found to be
qualifying organizations pursuant to
an approved blanket petition may be
classified as intracompany transferees
and admitted to the United States as
provided in paragraphs (l) (5) and (11) of
this section.
(iii) When applying for a blanket petition, the petitioner shall include in
the blanket petition all of its branches,
subsidiaries, and affiliates which plan
to seek to transfer aliens to the United
States under the blanket petition. An
individual petition may be filed by the
petitioner or organizations in lieu of
using the blanket petition procedure.
However, the petitioner and other
qualifying organizations may not seek
L classification for the same alien
under both procedures, unless a consular officer first denies eligibility.
Whenever a petitioner which has blanket L approval files an individual petition to seek L classification for a manager, executive, or specialized knowledge professional, the petitioner shall
advise the Service that it has blanket
L approval and certify that the beneficiary has not and will not apply to a
consular officer for L classification
under the approved blanket petition.
(iv) Evidence. A blanket petition filed
on Form I–129 shall be accompanied by:
(A) Evidence that the petitioner
meets the requirements of paragraph
(l)(4)(i) of this section.
(B) Evidence that all entities for
which approval is sought are qualifying
organizations as defined in subparagraph (l)(1)(ii)(G) of this section.
(C) Such other evidence as the director, in his or her discretion, deems necessary in a particular case.
(5) Certification and admission procedures for beneficiaries under blanket petition—(i) Jurisdiction. United States consular officers shall have authority to
determine eligibility of individual
beneficiaries outside the United States
seeking L classification under blanket
petitions, except for visa-exempt nonimmigrants. An application for a visa-

336

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00346

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

exempt nonimmigrant seeking L classification under a blanket petition or
by an alien in the United States applying for change of status to L classification under a blanket petition shall be
filed with the Service office at which
the blanket petition was filed.
(ii) Procedures. (A) When one qualifying organization listed in an approved blanket petition wishes to
transfer an alien outside the United
States to a qualifying organization in
the United States and the alien requires a visa to enter the United
States, that organization shall complete Form I–129S, Certificate of Eligibility for Intracompany Transferee
under a Blanket Petition, in an original and three copies. The qualifying organization shall retain one copy for its
records and send the original and two
copies to the alien. A copy of the approved Form I–797 must be attached to
the original and each copy of Form I–
129S.
(B) After receipt of Form I–797 and
Form I–129S, a qualified employee who
is being transferred to the United
States may use these documents to
apply for visa issuance with the consular officer within six months of the
date on Form I–129S.
(C) When the alien is a visa-exempt
nonimmigrant seeking L classification
under a blanket petition, or when the
alien is in the United States and is
seeking a change of status from another nonimmigrant classification to L
classification under a blanket petition,
the petitioner shall submit Form I–
129S, Certificate of Eligibility, and a
copy of the approval notice, Form I–
797, to the USCIS office with which the
blanket petition was filed.
(D) The consular or Service officer
shall determine whether the position in
which the alien will be employed in the
United States is with an organization
named in the approved petition and
whether the specific job is for a manager, executive, or specialized knowledge professional. The consular or
Service officer shall determine further
whether the alien’s immediate prior
year of continuous employment abroad
was with an organization named in the
petition and was in a position as manager, executive, or specialized knowledge professional.

(E) Consular officers may grant ‘‘L’’
classification only in clearly approvable applications. If the consular officer determines that the alien is eligible
for L classification, the consular officer may issue a nonimmigrant visa,
noting the visa classification ‘‘Blanket
L–1’’ for the principal alien and ‘‘Blanket L–2’’ for any accompanying or following to join spouse and children. The
consular officer shall also endorse all
copies of the alien’s Form I–129S with
the blanket L–1 visa classification and
return the original and one copy to the
alien. When the alien is inspected for
entry into the United States, both copies of the Form I–129S shall be stamped
to show a validity period not to exceed
three years and the second copy collected and sent to the appropriate Regional Service Center for control purposes. Service officers who determine
eligibility of aliens for L–1 classification under blanket petitions shall endorse both copies of Form I–129S with
the blanket L–1 classification and the
validity period not to exceed three
years and retain the second copy for
Service records.
(F) If the consular officer determines
that the alien is ineligible for L classification under a blanket petition, the
consular officer’s decision shall be
final. The consular officer shall record
the reasons for the denial on Form I–
129S, retain one copy, return the original of I–129S to the USCIS office which
approved the blanket petition, and provide a copy to the alien. In such a case,
an individual petition may be filed for
the alien on Form I–129, Petition for
Nonimmigrant Worker. The petition
shall state the reason the alien was denied L classification and specify the
consular office which made the determination and the date of the determination.
(G) An alien admitted under an approved blanket petition may be reassigned to any organization listed in the
approved petition without referral to
the Service during his/her authorized
stay if the alien will be performing virtually the same job duties. If the alien
will be performing different job duties,
the petitioner shall complete a new
Certificate of Eligibility and send it for
approval to the director who approved
the blanket petition.

337

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00347

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(6) Copies of supporting documents. The
petitioner may submit a legible photocopy of a document in support of the
visa petition, in lieu of the original
document. However, the original document shall be submitted if requested by
the Service.
(7) Approval of petition—(i) General.
The director shall notify the petitioner
of the approval of an individual or a
blanket petition within 30 days after
the date a completed petition has been
filed. If additional information is required from the petitioner, the 30 day
processing period shall begin again
upon receipt of the information. The
original Form I–797 received from the
USCIS with respect to an approved individual or blanket petition may be duplicated by the petitioner for the beneficiary’s use as described in paragraph
(l)(13) of this section.
(A) Individual petition—(1) Form I–797
shall include the beneficiary’s name
and classification and the petition’s period of validity.
(2) An individual petition approved
under this paragraph shall be valid for
the period of established need for the
beneficiary’s services, not to exceed
three years, except where the beneficiary is coming to the United States
to open or to be employed in a new office.
(3) If the beneficiary is coming to the
United States to open or be employed
in a new office, the petition may be approved for a period not to exceed one
year, after which the petitioner shall
demonstrate as required by paragraph
(l)(14)(ii) of this section that it is doing
business as defined in paragraph (l)
(1)(ii)(H) of this section to extend the
validity of the petition.
(B) Blanket petition. (1) Form I–797
shall identify the approved organizations included in the petition and the
petition’s period of validity.
(2) A blanket petition approved under
this paragraph shall be valid initially
for a period of three years and may be
extended indefinitely thereafter if the
qualifying organizations have complied
with these regulations.
(3) A blanket petition may be approved in whole or in part and shall
cover only qualifying organizations.
(C) Amendments. The petitioner must
file an amended petition, with fee, at

the USCIS office where the original petition was filed to reflect changes in
approved
relationships,
additional
qualifying organizations under a blanket petition, change in capacity of employment (i.e., from a specialized
knowledge position to a managerial position), or any information which
would affect the beneficiary’s eligibility under section 101(a)(15)(L) of the
Act.
(ii) Spouse and dependents. The spouse
and unmarried minor children of the
beneficiary are entitled to L nonimmigrant classification, subject to
the same period of admission and limits as the beneficiary, if the spouse and
unmarried minor children are accompanying or following to join the beneficiary in the United States. Neither
the spouse nor any child may accept
employment unless he or she has been
granted employment authorization.
(8) Denial of petition—(i) Individual petition. If an individual is denied, the petitioner shall be notified within 30 days
after the date a completed petition has
been filed of the denial, the reasons for
the denial, and the right to appeal the
denial.
(ii) Blanket petition. If a blanket petition is denied in whole or in part, the
petitioner shall be notified within 30
days after the date a completed petition has been filed of the denial, the
reasons for the denial, and the right to
appeal the denial. If the petition is denied in part, the USCIS office issuing
the denial shall forward to the petitioner, along with the denial, a Form I–
797 listing those organizations which
were found to quality. If the decision
to deny is reversed on appeal, a new
Form I–797 shall be sent to the petitioner to reflect the changes made as a
result of the appeal.
(9) Revocation of approval of individual
and blanket petitions—(i) General. The
director may revoke a petition at any
time, even after the expiration of the
petition.
(ii) Automatic revocation. The approval of any individual or blanket petition is automatically revoked if the
petitioner withdraws the petition or
the petitioner fails to request indefinite validity of a blanket petition.

338

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00348

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(iii) Revocation on notice. (A) The director shall send to the petitioner a notice of intent to revoke the petition in
relevant part if he/she finds that:
(1) One or more entities are no longer
qualifying organizations;
(2) The alien is no longer eligible
under section 101(a)(15)(L) of the Act;
(3) A qualifying organization(s) violated
requirements
of
section
101(a)(15)(L) and these regulations;
(4) The statement of facts contained
in the petition was not true and correct; or
(5) Approval of the petition involved
gross error; or
(6) None of the qualifying organizations in a blanket petition have used
the blanket petition procedure for
three consecutive years.
(B) The notice of intent to revoke
shall contain a detailed statement of
the grounds for the revocation and the
time period allowed for the petitioner’s
rebuttal. Upon receipt of this notice,
the petitioner may submit evidence in
rebuttal within 30 days of the notice.
The director shall consider all relevant
evidence presented in deciding whether
to revoke the petition in whole or in
part. If a blanket petition is revoked in
part, the remainder of the petition
shall remain approved, and a revised
Form I–797 shall be sent to the petitioner with the revocation notice.
(iv) Status of beneficiaries. If an individual petition is revoked, the beneficiary shall be required to leave the
United States, unless the beneficiary
has obtained other work authorization
from the Service. If a blanket petition
is revoked and the petitioner and beneficiaries already in the United States
are otherwise eligible for L classification, the director shall extend the blanket petition for a period necessary to
support the stay of those blanket L
beneficiaries. The approval notice,
Form I–171C, shall include only the
names of qualifying organizations and
covered beneficiaries. No new beneficiaries may be classified or admitted
under this limited extension.
(10) Appeal of denial or revocation of
individual or blanket petition. (i) A petition denied in whole or in part may be
appealed under 8 CFR part 103. Since
the determination on the Certificate of
Eligibility, Form I–129S, is part of the

petition process, a denial or revocation
of approval of an I–129S is appealable in
the same manner as the petition.
(ii) A petition that has been revoked
on notice in whole or in part may be
appealed under part 103 of this chapter.
Automatic revocations may not be appealed.
(11) Admission. A beneficiary may
apply for admission to the United
States only while the individual or
blanket petition is valid. The beneficiary of an individual petition shall
not be admitted for a date past the validity period of the petition. The beneficiary of a blanket petition may be admitted for three years even though the
initial validity period of the blanket
petition may expire before the end of
the three-year period. If the blanket
petition will expire while the alien is
in the United States, the burden is on
the petitioner to file for indefinite validity of the blanket petition or to file
an individual petition in the alien’s behalf to support the alien’s status in the
United States. The admission period
for any alien under section 101(a)(15)(L)
shall not exceed three years unless an
extension of stay is granted pursuant
to paragraph (l)(15) of this section.
(12) L–1 limitation on period of stay—(i)
Limits. An alien who has spent five
years in the United States in a specialized knowledge capacity or seven years
in the United States in a managerial or
executive
capacity
under
section
101(a)(15) (L) and/or (H) of the Act may
not be readmitted to the United States
under section 101(a)(15) (L) or (H) of the
Act unless the alien has resided and
been physically present outside the
United States, except for brief visits
for business or pleasure, for the immediate prior year. Such visits do not interrupt the one year abroad, but do not
count towards fulfillment of that requirement. In view of this restriction,
a new individual petition may not be
approved for an alien who has spent the
maximum time period in the United
States under section 101(a)(15) (L) and/
or (H) of the Act, unless the alien has
resided and been physically present
outside the United States, except for
brief visits for business or pleasure, for
the immediate prior year. The petitioner shall provide information about

339

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00349

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

the alien’s employment, place of residence, and the dates and purpose of any
trips to the United States for the previous year. A consular or Service officer may not grant L classification
under a blanket petition to an alien
who has spent five years in the United
States as a professional with specialized knowledge or seven years in the
United States as a manager or executive, unless the alien has met the requirements contained in this paragraph.
(ii) Exceptions. The limitations of
paragraph (l)(12)(i) of this section shall
not apply to aliens who do not reside
continually in the United States and
whose employment in the United
States is seasonal, intermittent, or
consists of an aggregate of six months
or less per year. In addition, the limitations will not apply to aliens who reside abroad and regularly commute to
the United States to engage in parttime employment. The petitioner and
the alien must provide clear and convincing proof that the alien qualifies
for an exception. Clear and convincing
proof shall consist of evidence such as
arrival and departure records, copies of
tax returns, and records of employment
abroad.
(13) Beneficiary’s use of Form I–797 and
Form I–129S—(i) Beneficiary of an individual petition. The beneficiary of an individual petition who does not require
a nonimmigrant visa may present a
copy of Form I–797 at a port of entry to
facilitate entry into the United States.
The copy of Form I–797 shall be retained by the beneficiary and presented
during the validity of the petition (provided that the beneficiary is entering
or reentering the United States) for
entry and reentry to resume the same
employment with the same petitioner
(within the validity period of the petition) and to apply for an extension of
stay. A beneficiary who is required to
present a visa for admission and whose
visa will have expired before the date
of his or her intended return may use
an original Form I–797 to apply for a
new or revalidated visa during the validity period of the petition and to
apply for an extension of stay.
(ii) Beneficiary of a blanket petition.
Each alien seeking L classification and
admission under a blanket petition

shall present a copy of Form I–797 and
a Form I–129S from the petitioner
which identifies the position and organization from which the employee is
transferring, the new organization and
position to which the employee is destined, a description of the employee’s
actual duties for both the new and
former positions, and the positions,
dates, and locations of previous L stays
in the United States. A current copy of
Form I–797 and Form I–129S should be
retained by the beneficiary and used
for leaving and reentering the United
States to resume employment with a
qualifying organization during his/her
authorized period of stay, for applying
for a new or revalidated visa, and for
applying for readmission at a port of
entry. The alien may be readmitted
even though reassigned to a different
organization named on the Form I–797
than the one shown on Form I–129S if
the job duties are virtually the same.
(14) Extension of visa petition validity—
(i) Individual petition. The petitioner
shall file a petition extension on Form
I–129 to extend an individual petition
under section 101(a)(15)(L) of the Act.
Except in those petitions involving new
offices, supporting documentation is
not required, unless requested by the
director. A petition extension may be
filed only if the validity of the original
petition has not expired.
(ii) New offices. A visa petition under
section 101(a)(15)(L) which involved the
opening of a new office may be extended by filing a new Form I–129, accompanied by the following:
(A) Evidence that the United States
and foreign entities are still qualifying
organizations as defined in paragraph
(l)(1)(ii)(G) of this section;
(B) Evidence that the United States
entity has been doing business as defined in paragraph (l)(1)(ii)(H) of this
section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended
petition;
(D) A statement describing the staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence of

340

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00350

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

wages paid to employees when the beneficiary will be employed in a managerial or executive capacity; and
(E) Evidence of the financial status
of the United States operation.
(iii) Blanket petitions—(A) Extension
procedure. A blanket petition may only
be extended indefinitely by filing a new
Form I–129 with a copy of the previous
approval notice and a report of admissions during the preceding three years.
The report of admissions shall include
a list of the aliens admitted under the
blanket petition during the preceding
three years, including positions held
during that period, the employing entity, and the dates of initial admission
and final departure of each alien. The
petitioner shall state whether it still
meets the criteria for filing a blanket
petition and shall document any
changes in approved relationships and
additional qualifying organizations.
(B) Other conditions. If the petitioner
in an approved blanket petition fails to
request indefinite validity or if indefinite validity is denied, the petitioner
and its other qualifying organizations
shall seek L classification by filing individual petitions until another three
years have expired; after which the petitioner may seek approval of a new
blanket petition.
(15) Extension of stay. (i) In individual
petitions, the petitioner must apply for
the petition extension and the alien’s
extension of stay concurrently on
Form I–129. When the alien is a beneficiary under a blanket petition, a new
certificate of eligibility, accompanied
by a copy of the previous approved certificate of eligibility, shall be filed by
the petitioner to request an extension
of the alien’s stay. The petitioner must
also request a petition extension. The
dates of extension shall be the same for
the petition and the beneficiary’s extension of stay. The beneficiary must
be physically present in the United
States at the time the extension of
stay is filed. Even though the requests
to extend the visa petition and the
alien’s stay are combined on the petition, the director shall make a separate determination on each. If the alien
is required to leave the United States
for business or personal reasons while
the extension requests are pending, the
petitioner may request the director to

cable notification of approval of the petition extension to the consular office
abroad where the alien will apply for a
visa.
(ii) An extension of stay may be authorized in increments of up to two
years for beneficiaries of individual
and blanket petitions. The total period
of stay may not exceed five years for
aliens employed in a specialized knowledge capacity. The total period of stay
for an alien employed in a managerial
or executive capacity may not exceed
seven years. No further extensions may
be granted. When an alien was initially
admitted to the United States in a specialized knowledge capacity and is
later promoted to a managerial or executive position, he or she must have
been employed in the managerial or executive position for at least six months
to be eligible for the total period of
stay of seven years. The change to
managerial or executive capacity must
have been approved by the Service in
an amended, new, or extended petition
at the time that the change occurred.
(16) Effect of filing an application for or
approval of a permanent labor certification, preference petition, or filing of an
application for adjustment of status on L–
1 classification. An alien may legitimately come to the United States for a
temporary period as an L–1 nonimmigrant and, at the same time, lawfully seek to become a permanent resident of the United States provided he
or she intends to depart voluntarily at
the end of his or her authorized stay.
The filing of an application for or approval of a permanent labor certification, an immigrant visa preference
petition, or the filing of an application
of readjustment of status for an L–1
nonimmigrant shall not be the basis
for denying:
(i) An L–1 petition filed on behalf of
the alien,
(ii) A request to extend an L–1 petition which had previously been filed on
behalf of the alien;
(iii) An application for admission as
an L–1 nonimmigrant by the alien, or
as an L–2 nonimmigrant by the spouse
or child of such alien;
(iv) An application for change of status to H–1 or L–2 nonimmigrant filed

341

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00351

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

by the alien, or to H–1, H–4, or L–1 status filed by the L–2 spouse or child of
such alien;
(v) An application for change of status to H–4 nonimmigrant filed by the
L–1 nonimmigrant, if his or her spouse
has been approved for classification as
an H–1; or
(vi) An application for extension of
stay filed by the alien, or by the L–2
spouse or child of such alien.
(17) Filing of individual petitions and
certifications under blanket petitions for
citizens of Canada under the North American Free Trade Agreement (NAFTA)—(i)
Individual petitions. Except as provided
in paragraph (1)(2)(ii) of this section
(filing of blanket petitions), a United
States or foreign employer seeking to
classify a citizen of Canada as an
intracompany transferee may file an
individual petition in duplicate on
Form I–129 in conjunction with an application for admission of the citizen of
Canada. Such filing may be made with
an immigration officer at a Class A
port of entry located on the United
States-Canada land border or at a
United States pre-clearance/pre-flight
station in Canada. The petitioning employer need not appear, but Form I–129
must bear the authorized signature of
the petitioner.
(ii) Certification of eligibility for
intracompany transferree under the blanket petition. An immigration officer at
a location identified in paragraph
(1)(17)(i) of this section may determine
eligibility of individual citizens of Canada seeking L classification under approved blanket petitions. At these locations, such citizens of Canada shall
present the original and two copies of
Form I–129S, Intracompany Transferee
Certificate of Eligibility, prepared by
the approved organization, as well as
three copies of Form I–797, Notice of
Approval of Nonimmigrant Visa Petition.
(iii) Nothing in this section shall preclude or discourage the advance filing
of petitions and certificates of eligibility in accordance with paragraph
(l)(2) of this section.
(iv) Deficient or deniable petitions or
certificates of eligibility. If a petition or
certificate of eligibility submitted concurrently with an application for admission is lacking necessary sup-

porting documentation or is otherwise
deficient, the inspecting immigration
officer shall return it to the applicant
for admission in order to obtain the
necessary documentation from the petitioner or for the deficiency to be
overcome. The fee to file the petition
will be remitted at such time as the
documentary or other deficiency is
overcome. If the petition or certificate
of eligibility is clearly deniable, the
immigration officer will accept the petition (with fee) and the petitioner
shall be notified of the denial, the reasons for denial, and the right of appeal.
If a formal denial order cannot be
issued by the port of entry, the petition with a recommendation for denial
shall be forwarded to the appropriate
Service Center for final action. For the
purposes of this provision, the appropriate Service Center will be the one
within the same Service region as the
location where the application for admission is made.
(v) Spouse and dependent minor children accompanying or following to join.
(A) The Canadian citizen spouse and
Canadian citizen unmarried minor children of a Canadian citizen admitted
under this paragraph shall be entitled
to the same nonimmigrant classification and same length of stay subject to
the same limits as the principal alien.
They shall not be required to present
visas, and they shall be admitted under
the classification symbol L–2.
(B) A non-Canadian citizen spouse or
non-Canadian citizen unmarried minor
child shall be entitled to the same nonimmigrant classification and the same
length of stay subject to the same limits as the principal, but shall be required to present a visa upon application for admission as an L–2 unless otherwise exempt under § 212.1 of this
chapter.
(C) The spouse and dependent minor
children shall not accept employment
in the United States unless otherwise
authorized under the Act.
(18) Denial of intracompany transferee
status to citizens of Canada or Mexico in
the case of certain labor disputes. (i) If
the Secretary of Labor certifies to or
otherwise informs the Commissioner
that a strike or other labor dispute involving a work stoppage of workers is
in progress where the beneficiary is to

342

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00352

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

be employed, and the temporary entry
of the beneficiary may affect adversely
the settlement of such labor dispute or
the employment of any person who is
involved in such dispute, a petition to
classify a citizen of Mexico or Canada
as an L–1 intracompany transferee may
be denied. If a petition has already
been approved, but the alien has not
yet entered the United States, or has
entered the United States but not yet
commenced employment, the approval
of the petition may be suspended, and
an application for admission on the
basis of the petition may be denied.
(ii) If there is a strike or other labor
dispute involving a work stoppage of
workers in progress, but such strike or
other labor dispute is not certified
under paragraph (l)(18)(i) of this section, or the Service has not otherwise
been informed by the Secretary that
such a strike or labor dispute is in
progress, the Commissioner shall not
deny a petition or suspend an approved
petition.
(iii) If the alien has already commended employment in the United
States under an approved petition and
is participating in a strike or other
labor dispute involving a work stoppage of workers, whether or not such
strike or other labor dispute has been
certified by the Department of Labor,
the alien shall not be deemed to be failing to maintain his or her status solely
on account of past, present, or future
participation in a strike or other labor
dispute involving a work stoppage of
workers, but is subject to the following
terms and conditions.
(A) The alien shall remain subject to
all applicable provisions of the Immigration and Nationality Act, and regulations promulgated in the same manner as all other L nonimmigrants;
(B) The status and authorized period
of stay of such an alien is not modified
or extended in any way by virtue of his
or her participation in a strike or other
labor dispute involving work stoppage
of workers; and
(C) Although participation by an L
nonimmigrant alien in a strike or
other labor dispute involving a work
stoppage of workers will not constitute
a ground for deportation, any alien
who violates his or her status or who
remains in the United States after his

or her authorized period of stay has expired will be subject to deportation.
(m) Students in established vocational
or other recognized nonacademic institutions, other than in language training
programs—(1) Admission of student—(i)
Eligibility
for
admission.
A
nonimmigrant student may be admitted
into the United States in nonimmigrant
status
under
section
101(a)(15)(M) of the Act, if:
(A) The student presents a SEVIS
Form I–20 issued in his or her own
name by a school approved by the Service for attendance by M–1 foreign students. (In the alternative, for a student
seeking admission prior to August 1,
2003, the student may present a currently-valid Form I–20M–N/I–20ID, if
that form was issued by the school
prior to January 30, 2003);
(B) The student has documentary evidence of financial support in the
amount indicated on the SEVIS Form
I–20 (or the Form I–20M–N/I–20ID); and
(C) For students seeking initial admission only, the student intends to
attend the school specified in the student’s visa (or, where the student is exempt from the requirement for a visa,
the school indicated on the SEVIS
Form I–20 (or the Form I–20M–N/I–
20ID)).
(ii) Disposition of Form I–20M–N. When
a student is admitted to the United
States, the inspecting officer shall forward Form I–20M–N to the Service’s
processing center. The processing center shall forward Form I–20N to the
school which issued the form to notify
the school of the student’s admission.
(iii) Use of SEVIS. On January 30,
2003, the use of the Student and Exchange Visitor Information System
(SEVIS) will become mandatory for the
issuance of any new Form I–20. A student or dependent who presents a nonSEVIS Form I–20 issued on or after
January 30, 2003, will not be accepted
for admission to the United States.
Non-SEVIS Forms I–20 issued prior to
January 30, 2003, will continue to be accepted for admission to the United
States until August 1, 2003. However,
schools must issue a SEVIS Form I–20
to any current student requiring a reportable action (e.g., extension of status, practical training, and requests for
employment authorization) or a new

343

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00353

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

Form I–20, or for any aliens who must
obtain a new nonimmigrant student
visa. As of August 1, 2003, the records of
all current or continuing students
must be entered in SEVIS.
(2) Form I–20 ID copy. The first time
an M–1 student comes into contact
with the Service for any reason, the
student must present to the Service a
Form I–20M–N properly and completely
filled out by the student and by the
designated official of the school the
student is attending or intends to attend. The student will be issued a Form
I–20 ID copy with his or her admission
number. The student must have the
Form I–20 ID copy with him or her at
all times. If the student loses the Form
I–20 ID copy, the student must request
a new Form I–20 ID copy on Form I–102
from the Service office having jurisdiction over the school the student was
last authorized to attend.
(3) Admission of the spouse and minor
children of an M–1 student. The spouse
and minor children accompanying an
M–1 student are eligible for admission
in M–2 status if the student is admitted
in M–1 status. The spouse and minor
children following-to-join an M–1 student are eligible for admission to the
United States in M–2 status if they are
able to demonstrate that the M–1 student has been admitted and is, or will
be within 30 days, enrolled in a full
course of study, or engaged in approved
practical training following completion
of studies. In either case, at the time
they seek admission, the eligible
spouse and minor children of an M–1
student with a SEVIS Form I–20 must
individually present an original SEVIS
Form I–20 issued in the name of each
M–2 dependent issued by a school authorized by the Service for attendance
by M–1 foreign students. Prior to August 1, 2003, if exigent circumstances
are demonstrated, the Service will
allow the dependent of an M–1 student
in possession of a SEVIS Form I–20 to
enter the United States using a copy of
the M–1 student’s SEVIS Form I–20. (In
the alternative, for dependents seeking
admission to the United States prior to
August 1, 2003, a copy of the M–1 student’s current Form I–20ID issued prior
to January 30, 2003, with proper endorsement by the DSO will satisfy this
requirement.) A new SEVIS Form I–20

(or Form I–20M–N) is required for a dependent where there has been any substantive change in the M–1 student’s
current information.
(i) A properly endorsed page 4 of
Form I–20M–N if there has been no substantive change in the information on
the student’s most recent Form I–20M
since the form was initially issued; or
(ii) A new Form I–20M–N if there has
been any substantive change in the information on the student’s most recent
Form I–20M since the form was initially issued.
(4) Temporary absence—(i) General. An
M–1 student returning to the United
States from a temporary absence to attend the school which the student was
previously authorized to attend must
present either—
(A) A properly endorsed page 4 of
Form I–20M–N if there has been no substantive change in the information on
the student’s most recent Form I–20M
since the form was initially issued; or
(B) A new Form I–20M–N if there has
been any substantive change in the information on the student’s most recent
Form I–20M since the form was initially issued.
(ii) Student who transferred between
schools. If an M–1 student has been authorized to transfer between schools
and is returning to the United States
from a temporary absence in order to
attend the school to which transfer was
authorized as indicated on the student’s Form I–20 ID copy, the name of
the school to which the student is destined does not need to be specified in
the student’s visa.
(5) Period of stay. A student in M nonimmigrant status is admitted for a
fixed time period, which is the period
necessary to complete the course of
study indicated on the Form I–20, plus
practical training following completion
of the course of study, plus an additional 30 days to depart the United
States, but not to exceed a total period
of one year. An M–1 student may be admitted for a period up to 30 days before
the report date or start date of the
course of study listed on the Form I–20.
An M–1 student who fails to maintain a
full course of study or otherwise fails
to maintain status is not eligible for
the additional 30-day period of stay.
(6)–(8) [Reserved]

344

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00354

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(9) Full course of study. Successful
completion of the course of study must
lead to the attainment of a specific
educational or vocational objective. A
‘‘full course of study’’ as required by
section 101(a)(15)(M)(i) of the Act
means—
(i) Study at a community college or
junior college, certified by a school official to consist of at least twelve semester or quarter hours of instruction
per academic term in those institutions using standard semester, trimester, or quarter-hour systems, where
all students enrolled for a minimum of
twelve semester or quarter hours are
charged full-time tuition or considered
full-time for other administrative purposes, or its equivalent (as determined
by the district director) except when
the student needs a lesser course load
to complete the course of study during
the current term;
(ii) Study at a postsecondary vocational or business school, other than in
a language training program except as
provided in § 214.3(a)(2)(iv), which confers upon its graduates recognized associate or other degrees or has established that its credits have been and
are accepted unconditionally by at
least three institutions of higher learning which are either: (1) A school (or
school system) owned and operated as a
public educational institution by the
United States or a State or political
subdivision thereof; or (2) a school accredited by a nationally recognized accrediting body; and which has been certified by a designated school official to
consist of at least twelve hours of instruction a week, or its equivalent as
determined by the district director;
(iii) Study in a vocational or other
nonacademic curriculum, other than in
a language training program except as
provided in § 214.3(a)(2)(iv), certified by
a designated school official to consist
of at least eighteen clock hours of attendance a week if the dominant part
of the course of study consists of classroom instruction, or at least twentytwo clock hours a week if the dominant
part of the course of study consists of
shop or laboratory work; or
(iv) Study in a vocational or other
nonacademic high school curriculum,
certified by a designated school official
to consist of class attendance for not

less than the minimum number of
hours a week prescribed by the school
for normal progress towards graduation.
(v) On-line courses/distance education
programs. No on-line or distance education classes may be considered to
count toward an M–1 student’s full
course of study requirement if such
classes do not require the student’s
physical attendance for classes, examination or other purposes integral to
completion of the class. An on-line or
distance education course is a course
that is offered principally through the
use of television, audio, or computer
transmission including open broadcast,
closed circuit, cable, microwave, or
satellite, audio conferencing, or computer conferencing.
(vi) Reduced course load. The designated school official may authorize
an M–1 student to engage in less than a
full course of study only where the student has been compelled by illness or a
medical condition that has been documented by a licensed medical doctor,
doctor of osteopathy, or licensed clinical psychologist, to interrupt or reduce his or her course of study. A DSO
may not authorize a reduced course
load for more than an aggregate of 5
months per course of study. An M–1
student previously authorized to drop
below a full course of study due to illness or medical condition for an aggregate of 5 months, may not be authorized by the DSO to reduce his or her
course load on subsequent occasions
during his or her particular course of
study.
(A) Non-SEVIS schools. A DSO must
report any student who has been authorized by the DSO to carry a reduced
course load. Within 21 days of the authorization, the DSO must send a photocopy of the student’s Form I–20 to
the Service’s data processing center indicating the date that authorization
was granted. The DSO must also report
to the Service’s data processing center
when the student has resumed a full
course of study, no more than 21 days
from the date the student resumed a
full course of study. In this case, the
DSO must submit a photocopy of the
student’s Form I–20 indicating the date
that a full course of study was resumed, with a new program end date.

345

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00355

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(B) SEVIS reporting. In order for a
student to be authorized to drop below
a full course of study, the DSO must
update SEVIS prior to the student reducing his or her course load. The DSO
must update SEVIS with the date, reason for authorization, and the start
date of the next term or session. The
DSO must also notify SEVIS within 21
days of the student’s commencement of
a full course of study.
(10) Extension of stay—(i) Eligibility.
The cumulative time of extensions that
can be granted to an M–1 student is
limited to a period of 3 years from the
M–1 student’s original start date, plus
30 days. No extension can be granted to
an M–1 student if the M–1 student is
unable to complete the course of study
within 3 years of the original program
start date. This limit includes extensions that have been granted due to a
drop below full course of study, a
transfer of schools, or reinstatement.
An M–1 student may be granted an extension of stay if it is established that:
(A) He or she is a bona fide nonimmigrant currently maintaining student status;
(B) Compelling educational or medical reasons have resulted in a delay to
his or her course of study. Delays
caused by academic probation or suspension are not acceptable reasons for
program extension; and
(C) He or she is able to, and in good
faith intends to, continue to maintain
that status for the period for which the
extension is granted.
(ii) Application. A student must apply
to the Service for an extension on
Form I–539, Application to Extend/
Change Nonimmigrant Status. A student’s M–2 spouse and children seeking
an extension of stay must be included
in the application. The student must
submit the application to the service
center having jurisdiction over the
school the student is currently authorized to attend, at least 15 days but not
more than 60 days before the program
end date on the student’s Form I–20.
The application must also be accompanied by the student’s Form I–20 and
the Forms I–94 of the student’s spouse
and children, if applicable.
(iii) Period of stay. If an application
for extension is granted, the student
and the student’s spouse and children,

if applicable, are to be given an extension of stay for the period of time necessary to complete the course of study,
plus 30 days within which to depart
from the United States, or for a total
period of one year, whichever is less. A
student’s M–2 spouse and children are
not eligible for an extension unless the
M–1 student is granted an extension of
stay, or for a longer period than is
granted to the M–1 student.
(iv) SEVIS update. A DSO must update SEVIS to recommend that a student be approved for an extension of
stay. The SEVIS Form I–20 must be
printed with the recommendation and
new program end date for submission
by mail to the service center, with
Form I–539, and Forms I–94 if applicable.
(11) School transfer—(i) Eligibility. An
M–1 student may not transfer to another school after six months from the
date the student is first admitted as, or
changes nonimmigrant classification
to that of, an M–1 student unless the
student is unable to remain at the
school to which the student was initially admitted due to circumstances
beyond the student’s control. An M–1
student may be otherwise eligible to
transfer to another school if the student—
(A) Is a bona fide nonimmigrant;
(B) Has been pursuing a full course of
study at the school the student was
last authorized to attend;
(C) Intends to pursue a full course of
study at the school to which the student intends to transfer; and
(D) Is financially able to attend the
school to which the student intends to
transfer.
(ii) Procedure. A student must apply
to the Service on Form I–539 for permission to transfer between schools.
Upon application for school transfer, a
student may effect the transfer subject
to approval of the application. A student who transfers without complying
with this requirement or whose application is denied after transfer pursuant
to this regulation is considered to be
out of status. If the application is approved, the approval of the transfer
will be determined to be the program
start date listed on the Form I–20, and

346

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00356

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

the student will be granted an extension of stay for the period of time necessary to complete the new course of
study plus 30 days, or for a total period
of one year, whichever is less.
(A) Non-SEVIS school. The application
must be accompanied by the Form I–
20ID copy and the Form I–94 of the student’s spouse and children, if applicable. The Form I–539 must also be accompanied by Form I–20M–N properly
and completely filled out by the student and by the designated official of
the school which the student wishes to
attend. Upon approval, the adjudicating officer will endorse the name of
the school to which the transfer is authorized on the student’s Form I–20ID
copy and return it to the student. The
officer will also endorse Form I–20M–N
to indicate that a school transfer has
been authorized and forward it to the
Service’s processing center for updating. The processing center will forward
Form I–20M–N to the school to which
the transfer has been authorized to notify the school of the action taken.
(B) SEVIS school. The student must
first notify his or her current school of
the intent to transfer and indicate the
school to which the student intends to
transfer. Upon notification by the student, the current school must update
SEVIS to show the student as a ‘‘transfer out’’ and input the ‘‘release date’’ for
transfer. Once updated as a ‘‘transfer
out’’ the transfer school is permitted to
generate a SEVIS Form I–20 for transfer but will not gain access to the student’s SEVIS record until the release
date is reached. Upon receipt of the
SEVIS Form I–20 from the transfer
school, the student must submit Form
I–539 in accordance with § 214.2(m)(11).
The student may enroll in the transfer
school at the next available term or
session and is required to notify the
DSO of the transfer school immediately upon beginning attendance.
The transfer school must update the
student’s registration record in SEVIS
in accordance with § 214.3(g)(3). Upon
approval of the transfer application,
the Service officer will endorse the
name of the school to which the transfer is authorized on the student’s
SEVIS Form I–20 and return it to the
student.

(C) Transition process. Once SEVIS is
fully operational and interfaced with
the service center benefit processing
system, the Service officer will transmit the approval of the transfer to
SEVIS and endorse the name of the
school to which transfer is authorized
on the student’s SEVIS Form I–20 and
return it to the student. As part of a
transitional process until that time,
the student is required to notify the
DSO at the transfer school of the decision of the Service within 15 days of
the receipt of the adjudication by the
Service. Upon notification by the student of the approval of the Service, the
DSO must immediately update SEVIS
to show that approval of the transfer
has been granted. The DSO must then
print an updated SEVIS Form I–20 for
the student indicating that the transfer has been completed. If the application for transfer is denied, the student
is out of status and the DSO must terminate the student’s record in SEVIS.
(iii) Student who has not been pursuing
a full course of study. If an M–1 student
who has not been pursuing a full course
of study at the school the student was
last authorized to attend desires to attend a different school, the student
must apply for reinstatement to student status under paragraph (m)(16) of
this section.
(12) Change in educational objective.
An M–1 student may not change educational objective.
(13) Employment. Except as provided
in paragraph (m)(14) of this section, a
student may not accept employment.
(14) Practical training—(i) When practical training may be authorized. Temporary employment for practical training may be authorized only after completion of the student’s course of
study.
(A) The proposed employment is recommended for the purpose of practical
training;
(B) The proposed employment is related to the student’s course of study;
and
(C) Upon the designated school official’s information and belief, employment comparable to the proposed employment is not available to the student in the country of the student’s
foreign residence.

347

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00357

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(ii) Application. A M–1 student must
apply for permission to accept employment for practical training on Form I–
765, with fee as contained in 8 CFR
103.7(b)(1), accompanied by a Form I–20
that has been endorsed for practical
training by the designated school official. The application must be submitted prior to the program end date
listed on the student’s Form I–20 but
not more than 90 days before the program end date. The designated school
official must certify on Form I–538
that—
(A) The proposed employment is recommended for the purpose of practical
training;
(B) The proposed employment is related to the student’s course of study;
and
(C) Upon the designated school official’s information and belief, employment comparable to the proposed employment is not available to the student in the country of the student’s
foreign residence.
(iii) Duration of practical training.
When the student is authorized to engage in employment for practical
training, he or she will be issued an
employment authorization document.
The M–1 student may not begin employment until he or she has been
issued an employment authorization
document by the Service. One month of
employment authorization will be
granted for each four months of fulltime study that the M–1 student has
completed. However, an M–1 student
may not engage in more than six
months of practical training in the aggregate. The student will not be granted employment authorization if he or
she cannot complete the requested
practical training within six months.
(iv) Temporary absence of M–1 student
granted practical training. An M–1 student who has been granted permission
to accept employment for practical
training and who temporarily departs
from the United States, may be readmitted for the remainder of the authorized period indicated on the student’s Form I–20 ID copy. The student
must be returning to the United States
to perform the authorized practical
training. A student may not be readmitted to begin practical training
which was not authorized prior to the

student’s departure from the United
States.
(v) Effect of strike or other labor dispute. Authorization for all employment
for practical training is automatically
suspended upon certification by the
Secretary of Labor or the Secretary’s
designee to the Commissioner of Immigration and Naturalization or the Commissioner’s designee that a strike or
other labor dispute involving a work
stoppage of workers is in progress in
the occupation at the place of employment. As used in this paragraph, ‘‘place
of employment’’ means wherever the
employer or joint employer does business.
(vi) SEVIS process. The DSO must update the student’s record in SEVIS to
recommend that the Service approve
the student for practical training, and
print SEVIS Form I–20 with the recommendation, for the student to submit to the Service with Form I–765 as
provided in this paragraph (m)(14).
(15) Decision on application for extension, permission to transfer to another
school, or permission to accept employment for practical training. The Service
shall notify the applicant of the decision and, if the application is denied, of
the reason(s) for the denial. The applicant may not appeal the decision.
(16) Reinstatement to student status—(i)
General. A district director may consider reinstating a student who makes
a request for reinstatement on Form I–
539, Application to Extend/Change Nonimmigrant Status, accompanied by a
properly completed SEVIS Form I–20
indicating the DSO’s recommendation
for reinstatement (or a properly completed Form I–20M–N issued prior to
January 30, 2003, from the school the
student is attending or intends to attend prior to August 1, 2003). The district director may consider granting
the request only if the student:
(A) Has not been out of status for
more than 5 months at the time of filing the request for reinstatement (or
demonstrates that the failure to file
within the 5 month period was the result of exceptional circumstances and
that the student filed the request for
reinstatement as promptly as possible
under
these
exceptional
circumstances);

348

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00358

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(B) Does not have a record of repeated or willful violations of the Service regulations;
(C) Is currently pursuing, or intends
to pursue, a full course of study at the
school which issued the Form I–20M–N
or SEVIS Form I–20;
(D) Has not engaged in unlawful employment;
(E) Is not deportable on any ground
other than section 237(a)(1)(B) or (C)(i)
of the Act; and
(F) Establishes to the satisfaction of
the Service, by a detailed showing, either that:
(1) The violation of status resulted
from circumstances beyond the student’s control. Such circumstances
might include serious injury or illness,
closure of the institution, a natural
disaster, or inadvertence, oversight or
neglect on the part of the DSO, but do
not include instances where a pattern
of repeated violations or where a willful failure on the part of the student
resulted in the need for reinstatement;
or
(2) The violation relates to a reduction in the student’s course load that
would have been within a DSO’s power
to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.
(ii) Decision. If the Service reinstates
the student, the Service shall endorse
the student’s copy of Form I–20 to indicate that the student has been reinstated and return the form to the student. If the Form I–20 is from a nonSEVIS school, the school copy will be
forwarded to the school. If the Form I–
20 is from a SEVIS school, the adjudicating officer will update SEVIS to reflect the Service’s decision. In either
case, if the Service does not reinstate
the student, the student may not appeal the decision. The district director
will send notification to the school of
the decision.
(17) Spouse and children of M–1 student. The M–2 spouse and minor children of an M–1 student shall each be
issued an individual SEVIS Form I–20
in accordance with the provisions of
§ 214.3(k).
(i) Employment. The M–2 spouse and
children may not accept employment.
(ii) Study. (A) The M–2 spouse may
not engage in full time study, and the

M–2 child may only engage in full time
study if the study is in an elementary
or secondary school (kindergarten
through twelfth grade). The M–2 spouse
and child may engage in study that is
avocational or recreational in nature.
(B) An M–2 spouse or M–2 child desiring to engage in full time study, other
than that allowed for a child in paragraph (m)(17)(ii) of this section, must
apply for and obtain a change of nonimmigrant classification to F–1, J–1, or
M–1 status. An M–2 spouse or child who
was enrolled on a full time basis prior
to January 1, 2003, will be allowed to
continue study but must file for a
change of nonimmigrant classification
to F–1, J–1, or M–1 status on or before
March 11, 2003.
(C) An M–2 spouse or M–2 child violates his or her nonimmigrant status
by engaging in full time study except
as provided in paragraph (m)(17)(i) and
(ii) of this section.
(18) Current name and address. A student must inform the Service and the
DSO of any legal changes to his or her
name or of any change of address, within 10 days of the change, in a manner
prescribed by the school. A student enrolled at a SEVIS school can satisfy
the requirement in 8 CFR 265.1 of notifying the Service by providing a notice
of a change of address within 10 days to
the DSO, and the DSO in turn shall
enter the information in SEVIS within
21 days of notification by the student.
A nonimmigrant student enrolled at a
non-SEVIS institution must submit a
notice of change of address to the Service, as provided in 8 CFR 265.1, within
10 days of the change. Except in the
case of a student who cannot receive
mail where he or she resides, the address provided by the student must be
the actual physical location where the
student resides rather than a mailing
address. In cases where a student provides a mailing address, the school
must maintain a record of, and must
provide upon request from the Service,
the actual physical location where the
student resides.
(19) Special rules for certain border commuter students—(i) Applicability. For
purposes of the special rules in this
paragraph (m)(19), the term ‘‘border
commuter student’’ means a national of
Canada or Mexico who is admitted to

349

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00359

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

the United States as an M–1 student to
enroll in a full course of study, albeit
on a part-time basis, in an approved
school located within 75 miles of a
United States land border. The border
commuter student must maintain actual residence and place of abode in the
student’s country of nationality, and
seek admission to the United States at
a land border port-of-entry. These special rules do not apply to a national of
Canada or Mexico who is:
(A) Residing in the United States
while attending an approved school as
an M–1 student, or
(B) Enrolled in a full course of study
as defined in paragraph (m)(9) of this
section.
(ii) Full course of study. The border
commuter student must be enrolled in
a full course of study at the school that
leads to the attainment of a specific
educational or vocational objective, albeit on a part-time basis. A designated
school official at the school may authorize an eligible border commuter
student to enroll in a course load below
that otherwise required for a full
course of study under paragraph (m)(9)
of this section, provided that the reduced course load is consistent with
the border commuter student’s approved course of study.
(iii) Period of stay. An M–1 border
commuter student is not entitled to an
additional 30-day period of stay otherwise available under paragraph (m)(5)
of this section.
(iv) Employment. A border commuter
student may not be authorized to accept any employment in connection
with his or her M–1 student status, except for practical training as provided
in paragraph (m)(14) of this section.
(20) Remittance of the fee. An alien
who applies for M–1 or M–3 nonimmigrant status in order to enroll in
a program of study at a DHS-approved
vocational educational institution is
required to pay the SEVIS fee to DHS,
pursuant to 8 CFR 214.13, except as otherwise provided in that section.
(n) Certain parents and children of section 101(a)(27)(I) special immigrants—(1)
Parent of special immigrant. Upon application, a parent of a child accorded
special immigrant status under section
101(a)(27)(I)(i) of the Act may be granted status under section 101(a)(15)(N)(i)

of the Act as long as the permanent
resident child through whom eligibility
is derived remains a child as defined in
section 101(b)(1) of the Act.
(2) Child of section 101(a)(27)(I) special
immigrants and section 101(a)(15)(N)(i)
nonimmigrants. Children of parents
granted nonimmigrant status under
section 101(a)(15)(N)(i) of the Act, or of
parents who have been granted special
immigrant
status
under
section
101(a)(27)(I) (ii), (iii) or (iv) of the Act
may be granted status under section
101(a)(15)(N)(ii) of the Act for such time
as each remains a child as defined in
section 101(b)(1) of the Act.
(3) Admission and extension of stay. A
nonimmigrant granted (N) status shall
be admitted for not to exceed three
years with extensions in increments up
to but not to exceed three years. Status as an (N) nonimmigrant shall terminate on the date the child described
in paragraph (n)(1) or (n)(2) of this section no longer qualifies as a child as
defined in section 101(b)(1) of the Act.
(4) Employment. A nonimmigrant admitted in or granted (N) status is authorized employment incident to (N)
status without restrictions as to location or type of employment.
(o) Aliens of extraordinary ability or
achievement—(1) Classifications—(i) General. Under section 101(a)(15)(O) of the
Act, a qualified alien may be authorized to come to the United States to
perform services relating to an event
or events if petitioned for by an employer. Under this nonimmigrant category, the alien may be classified
under section 101(a)(15)(O)(i) of the Act
as an alien who has extraordinary ability in the sciences, arts, education,
business, or athletics, or who has a
demonstrated record of extraordinary
achievement in the motion picture or
television industry. Under section
101(a)(15)(O)(ii) of the Act, an alien
having a residence in a foreign country
which he or she has no intention of
abandoning may be classified as an accompanying alien who is coming to assist in the artistic or athletic performance of an alien admitted under section
101(a)(15)(O)(i) of the Act. The spouse or
child of an alien described in section
101(a)(15)(O)(i) or (ii) of the Act who is
accompanying or following to join the

350

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00360

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

alien is entitled to classification pursuant to section 101(a)(15)(O)(iii) of the
Act. These classifications are called
the O–1, O–2, and O–3 categories, respectively. The petitioner must file a
petition with the Service for a determination of the alien’s eligibility for
O–1 or O–2 classification before the
alien may apply for a visa or seek admission to the United States. This
paragraph sets forth the standards and
procedures applicable to these classifications.
(ii) Description of classifications. (A)
An O–1 classification applies to:
(1) An individual alien who has extraordinary ability in the sciences,
arts, education, business, or athletics
which has been demonstrated by sustained national or international acclaim and who is coming temporarily
to the United States to continue work
in the area of extraordinary ability; or
(2) An alien who has a demonstrated
record of extraordinary achievement in
motion picture and/or television productions and who is coming temporarily to the United States to continue
work in the area of extraordinary
achievement.
(B) An O–2 classification applies to
an accompanying alien who is coming
temporarily to the United States solely
to assist in the artistic or athletic performance by an O–1. The O–2 alien
must:
(1) Be an integral part of the actual
performances or events and posses critical skills and experience with the O–1
alien that are not of a general nature
and which are not possessed by others;
or
(2) In the case of a motion picture or
television production, have skills and
experience with the O–1 alien which are
not of a general nature and which are
critical, either based on a pre-existing
and longstanding working relationship
or, if in connection with a specific production only, because significant production (including pre- and post-production) will take place both inside and
outside the United States and the continuing participation of the alien is essential to the successful completion of
the production.
(2) Filing of petitions—(i) General. Except as provided for in paragraph
(o)(2)(iv)(A) of this section, a petitioner

seeking to classify an alien as an O–1
or O–2 nonimmigrant shall file a petition on Form I–129, Petition for a Nonimmigrant Worker. The petition may
not be filed more than one year before
the actual need for the alien’s services.
An O–1 or O–2 petition shall be adjudicated at the appropriate Service Center, even in emergency situations. Only
one beneficiary may be included on an
O–1 petition. O–2 aliens must be filed
for on a separate petition from the O–
1 alien. An O–1 or O–2 petition may
only be filed by a United States employer, a United States agent, or a foreign employer through a United States
agent. For purposes of paragraph (o) of
this section, a foreign employer is any
employer who is not amenable to service of process in the United States. A
foreign employer may not directly petition for an O nonimmigrant alien but
instead must use the services of a
United States agent to file a petition
for an O nonimmigrant alien. A United
States agent petitioning on behalf of a
foreign employer must be authorized to
file the petition, and to accept services
of process in the United States in proceedings under section 274A of the Act,
on behalf of the foreign employer. An O
alien may not petition for himself or
herself.
(ii) Evidence required to accompany a
petition. Petitions for O aliens shall be
accompanied by the following:
(A) The evidence specified in the particular section for the classification;
(B) Copies of any written contracts
between the petitioner and the alien
beneficiary or, if there is no written
contract, a summary of the terms of
the oral agreement under which the
alien will be employed;
(C) An explanation of the nature of
the events or activities, the beginning
and ending dates for the events or activities, and a copy of any itinerary for
the events or activities; and
(D) A written advisory opinion(s)
from the appropriate consulting entity
or entities.
(iii) Form of documentation. The evidence submitted with an O petition
shall conform to the following:
(A) Affidavits, contracts, awards, and
similar documentation must reflect
the nature of the alien’s achievement

351

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00361

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

and be executed by an officer or responsible person employed by the institution, firm, establishment, or organization where the work was performed.
(B) Affidavits written by present or
former employers or recognized experts
certifying to the recognition and extraordinary ability, or in the case of a
motion picture or television production, the extraordinary achievement of
the alien, shall specifically describe
the alien’s recognition and ability or
achievement in factual terms and set
forth the expertise of the affiant and
the manner in which the affiant acquired such information.
(C) A legible photocopy of a document in support of the petition may be
submitted in lieu of the original. However, the original document shall be
submitted if requested by the Director.
(iv) Other filing situations—(A) Services
in more than one location. A petition
which requires the alien to work in
more than one location must include
an itinerary with the dates and locations of work.
(B) Services for more than one employer. If the beneficiary will work concurrently for more than one employer
within the same time period, each employer must file a separate petition unless an established agent files the petition.
(C) Change of employer. If an O–1 or O–
2 alien in the United States seeks to
change employers, the new employer
must file a petition and a request to
extend the alien’s stay. An O–2 alien
may change employers only in conjunction with a change of employers by the
principal O–1 alien. If the O–1 or O–2 petition was filed by an agent, an amended petition must be filed with evidence
relating to the new employer and a request for an extension of stay.
(D) Amended petition. The petitioner
shall file an amended petition on Form
I–129, with fee, to reflect any material
changes in the terms and conditions of
employment or the beneficiary’s eligibility as specified in the original approved petition. In the case of a petition filed for an artist or entertainer, a
petitioner may add additional performances or engagements during the validity period of the petition without filing
an amended petition, provided the ad-

ditional performances or engagements
require an alien of O–1 caliber.
(E) Agents as petitioners. A United
States agent may file a petition in
cases involving workers who are traditionally self-employed or workers who
use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a
foreign employer authorizes the agent
to act in its behalf. A United States
agent may be: The actual employer of
the beneficiary, the representative of
both the employer and the beneficiary;
or, a person or entity authorized by the
employer to act for, or in place of, the
employer as its agent. A petition filed
by an agent is subject to the following
conditions:
(1) An agent performing the function
of an employer must provide the contractual agreement between the agent
and the beneficiary which specifies the
wage offered and the other terms and
conditions of employment of the beneficiary.
(2) A person or company in business
as an agent may file the petition involving multiple employers as the representative of both the employers and
the beneficiary, if the supporting documentation
includes
a
complete
itinerary of the event or events. The
itinerary must specify the dates of
each service or engagement, the names
and addresses of the actual employers,
and the names and addresses of the establishments, venues, or locations
where the services will be performed. A
contract between the employers and
the beneficiary is required. The burden
is on the agent to explain the terms
and conditions of the employment and
to provide any required documentation.
(3) A foreign employer who, through
a United States agent, files a petition
for an O nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section
274A of the Act and 8 CFR part 274a.
(F) Multiple beneficiaries. More than
one O–2 accompanying alien may be included on a petition if they are assisting the same O–1 alien for the same
events or performances, during the
same period of time, and in the same
location.

352

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00362

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(G) Traded professional O–1 athletes. In
the case of a professional O–1 athlete
who is traded from one organization to
another organization, employment authorization for the player will automatically continue for a period of 30
days after acquisition by the new organization, within which time the new
organization is expected to file a new
Form I–129. If a new Form I–129 is not
filed within 30 days, employment authorization will cease. If a new Form I–
129 is filed within 30 days, the professional athlete shall be deemed to be in
valid O–1 status, and employment shall
continue to be authorized, until the petition is adjudicated. If the new petition is denied, employment authorization will cease.
(3) Petition for alien of extraordinary
ability or achievement (O–1)—(i) General.
Extraordinary ability in the sciences,
arts, education, business, or athletics,
or extraordinary achievement in the
case of an alien in the motion picture
or television industry, must be established for an individual alien. An O–1
petition must be accompanied by evidence that the work which the alien is
coming to the United States to continue is in the area of extraordinary
ability, and that the alien meets the
criteria in paragraph (o)(3)(iii) or (iv)
of this section.
(ii) Definitions. As used in this paragraph, the term:
Arts includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary
arts, and performing arts. Aliens engaged in the field of arts include not
only the principal creators and performers but other essential persons
such as, but not limited to, directors,
set designers, lighting designers, sound
designers,
choreographers,
choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians,
and animal trainers.
Event means an activity such as, but
not limited to, a scientific project, conference, convention, lecture series,
tour, exhibit, business project, academic year, or engagement. Such activity may include short vacations,
promotional appearances, and stopovers which are incidental and/or re-

lated to the event. A group of related
activities may also be considered to be
an event. In the case of an O–1 athlete,
the event could be the alien’s contract.
Extraordinary ability in the field of arts
means distinction. Distinction means a
high level of achievement in the field
of arts evidenced by a degree of skill
and recognition substantially above
that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or wellknown in the field of arts.
Extraordinary ability in the field of
science, education, business, or athletics
means a level of expertise indicating
that the person is one of the small percentage who have arisen to the very
top of the field of endeavor.
Extraordinary achievement with respect to motion picture and television
productions, as commonly defined in
the industry, means a very high level
of accomplishment in the motion picture or television industry evidenced
by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person
is recognized as outstanding, notable,
or leading in the motion picture or television field.
Peer group means a group or organization which is comprised of practitioners of the alien’s occupation. If
there is a collective bargaining representative of an employer’s employees
in the occupational classification for
which the alien is being sought, such a
representative may be considered the
appropriate peer group for purposes of
consultation.
(iii) Evidentiary criteria for an O–1
alien of extraordinary ability in the fields
of science, education, business, or athletics. An alien of extraordinary ability
in the fields of science, education, business, or athletics must demonstrate
sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:
(A) Receipt of a major, internationally recognized award, such as the
Nobel Prize; or
(B) At least three of the following
forms of documentation:
(1) Documentation of the alien’s receipt of nationally or internationally

353

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00363

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

recognized prizes or awards for excellence in the field of endeavor;
(2) Documentation of the alien’s
membership in associations in the field
for which classification is sought,
which require outstanding achievements of their members, as judged by
recognized national or international
experts in their disciplines or fields;
(3) Published material in professional
or major trade publications or major
media about the alien, relating to the
alien’s work in the field for which classification is sought, which shall include the title, date, and author of
such published material, and any necessary translation;
(4) Evidence of the alien’s participation on a panel, or individually, as a
judge of the work of others in the same
or in an allied field of specialization to
that for which classification is sought;
(5) Evidence of the alien’s original
scientific, scholarly, or business-related contributions of major significance in the field;
(6) Evidence of the alien’s authorship
of scholarly articles in the field, in professional journals, or other major
media;
(7) Evidence that the alien has been
employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
(8) Evidence that the alien has either
commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
(C) If the criteria in paragraph
(o)(3)(iii) of this section do not readily
apply to the beneficiary’s occupation,
the petitioner may submit comparable
evidence in order to establish the beneficiary’s eligibility.
(iv) Evidentiary criteria for an O–1
alien of extraordinary ability in the arts.
To qualify as an alien of extraordinary
ability in the field of arts, the alien
must be recognized as being prominent
in his or her field of endeavor as demonstrated by the following:
(A) Evidence that the alien has been
nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy

Award, an Emmy, a Grammy, or a Director’s Guild Award; or
(B) At least three of the following
forms of documentation:
(1) Evidence that the alien has performed, and will perform, services as a
lead or starring participant in productions or events which have a distinguished reputation as evidenced by
critical reviews, advertisements, publicity releases, publications contracts,
or endorsements;
(2) Evidence that the alien has
achieved national or international recognition for achievements evidenced by
critical reviews or other published materials by or about the individual in
major newspapers, trade journals, magazines, or other publications;
(3) Evidence that the alien has performed, and will perform, in a lead,
starring, or critical role for organizations and establishments that have a
distinguished reputation evidenced by
articles in newspapers, trade journals,
publications, or testimonials;
(4) Evidence that the alien has a
record of major commercial or critically acclaimed successes as evidenced
by such indicators as title, rating,
standing in the field, box office receipts, motion pictures or television
ratings,
and
other
occupational
achievements reported in trade journals, major newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for
achievements from organizations, critics, government agencies, or other recognized experts in the field in which
the alien is engaged. Such testimonials
must be in a form which clearly indicates the author’s authority, expertise,
and knowledge of the alien’s achievements; or
(6) Evidence that the alien has either
commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced
by contracts or other reliable evidence;
or
(C) If the criteria in paragraph
(o)(3)(iv) of this section do not readily
apply to the beneficiary’s occupation,
the petitioner may submit comparable
evidence in order to establish the beneficiary’s eligibility.

354

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00364

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(v) Evidentiary criteria for an alien of
extraordinary achievement in the motion
picture or television industry. To qualify
as an alien of extraordinary achievement in the motion picture or television industry, the alien must be recognized as having a demonstrated
record of extraordinary achievement as
evidenced by the following:
(A) Evidence that the alien has been
nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy
Award, an Emmy, a Grammy, or a Director’s Guild Award; or
(B) At least three of the following
forms of documentation:
(1) Evidence that the alien has performed, and will perform, services as a
lead or starring participant in productions or events which have a distinguished reputation as evidenced by
critical reviews, advertisements, publicity releases, publications contracts,
or endorsements;
(2) Evidence that the alien has
achieved national or international recognition for achievements evidenced by
critical reviews or other published materials by or about the individual in
major newspapers, trade journals, magazines, or other publications;
(3) Evidence that the alien has performed, and will perform, in a lead,
starring, or critical role for organizations and establishments that have a
distinguished reputation evidenced by
articles in newspapers, trade journals,
publications, or testimonials;
(4) Evidence that the alien has a
record of major commercial or critically acclaimed successes as evidenced
by such indicators as title, rating,
standing in the field, box office receipts, motion picture or television
ratings,
and
other
occupational
achievements reported in trade journals, major newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for
achievements from organizations, critics, government agencies, or other recognized experts in the field in which
the alien is engaged. Such testimonials
must be in a form which clearly indicates the author’s authority, expertise,

and knowledge of the alien’s achievements; or
(6) Evidence that the alien has either
commanded a high salary or will command a high salary or other substantial remuneration for services in relation to other in the field, as evidenced
by contracts or other reliable evidence.
(4) Petition for an O–2 accompanying
alien—(i) General. An O–2 accompanying alien provides essential support to an O–1 artist or athlete. Such
aliens may not accompany O–1 aliens
in the fields of science, business, or
education. Although the O–2 alien must
obtain his or her own classification,
this classification does not entitle him
or her to work separate and apart from
the O–1 alien to whom he or she provides support. An O–2 alien must be petitioned for in conjunction with the
services of the O–1 alien.
(ii) Evidentiary criteria for qualifying
as an O–2 accompanying alien—(A) Alien
accompanying an O–1 artist or athlete of
extraordinary ability. To qualify as an
O–2 accompanying alien, the alien
must be coming to the United States to
assist in the performance of the O–1
alien, be an integral part of the actual
performance, and have critical skills
and experience with the O–1 alien
which are not of a general nature and
which are not possessed by a U.S.
worker.
(B) Alien accompanying an O–1 alien of
extraordinary achievement. To qualify as
an O–2 alien accompanying and O–1
alien involved in a motion picture or
television production, the alien must
have skills and experience with the O–
1 alien which are not of a general nature and which are critical based on a
pre-existing longstanding working relationship or, with respect to the specific production, because significant
production (including pre- and postproduction work) will take place both
inside and outside the United States
and the continuing participation of the
alien is essential to the successful completion of the production.
(C) The evidence shall establish the
current essentiality, critical skills, and
experience of the O–2 alien with the O–
1 alien and that the alien has substantial experience performing the critical
skills and essential support services for
the O–1 alien. In the case of a specific

355

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00365

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

motion picture or television production, the evidence shall establish that
significant production has taken place
outside the United States, and will
take place inside the United States,
and that the continuing participation
of the alien is essential to the successful completion of the production.
(5) Consultation—(i) General. (A) Consultation with an appropriate U.S. peer
group (which could include a person or
persons with expertise in the field),
labor and/or management organization
regarding the nature of the work to be
done and the alien’s qualifications is
mandatory before a petition for an O–1
or O–2 classification can be approved.
(B) Except as provided in paragraph
(o)(5)(i)(E) of this section, evidence of
consultation shall be in the form of a
written advisory opinion from a peer
group (which could include a person or
persons with expertise in the field),
labor and/or management organization
with expertise in the specific field involved.
(C) Except as provided in paragraph
(o)(5)(i)(E) of this section, the petitioner shall obtain a written advisory
opinion from a peer group (which could
include a person or persons with expertise in the field), labor, and/or management organization with expertise in
the specific field involved. The advisory opinion shall be submitted along
with the petition when the petition is
filed. If the advisory opinion is not favorable to the petitioner, the advisory
opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. Advisory opinions must be submitted in
writing and must be signed by an authorized official of the group or organization.
(D) Except as provided in paragraph
(o)(5)(i)(E) and (G) of this section, written evidence of consultation shall be
included in the record in every approved O petition. Consultations are
advisory and are not binding on the
Service.
(E) In a case where the alien will be
employed in the field of arts, entertainment, or athletics, and the Service
has determined that a petition merits
expeditious handling, the Service shall
contact the appropriate labor and/or
management organization and request

an advisory opinion if one is not submitted by the petitioner. The labor
and/or management organization shall
have 24 hours to respond to the Service’s request. The Service shall adjudicate the petition after receipt of the
response from the consulting organization. The labor and/or management organization shall then furnish the Service with a written advisory opinion
within 5 days of the initiating request.
If the labor and/or management organization fails to respond within 24 hours,
the Service shall render a decision on
the petition without the advisory opinion.
(F) In a routine processing case
where the petition is accompanied by a
written opinion from a peer group, but
the peer group is not a labor organization, the Director will forward a copy
of the petition and all supporting documentation to the national office of the
appropriate labor organization within 5
days of receipt of the petition. If there
is a collective bargaining representative of an employer’s employees in the
occupational classification for which
the alien is being sought, that representative shall be the appropriate
labor organization for purposes of this
section. The labor organization will
then have 15 days from receipt of the
petition and supporting documents to
submit to the Service a written advisory opinion, comment, or letter of no
objection. Once the 15-day period has
expired, the Director shall adjudicate
the petition in no more than 14 days.
The Director may shorten this time in
his or her discretion for emergency reasons, if no unreasonable burden would
be imposed on any participant in the
process. If the labor organization does
not respond within 15 days, the Director will render a decision on the record
without the advisory opinion.
(G) In those cases where it is established by the petitioner that an appropriate peer group, including a labor organization, does not exist, the Service
shall render a decision on the evidence
of record.
(ii) Consultation requirements for an O–
1 alien for extraordinary ability—(A) Content. Consultation with a peer group in
the area of the alien’s ability (which
may include a labor organization), or a
person or persons with expertise in the

356

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00366

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

area of the alien’s ability, is required
in an O–1 petition for an alien of extraordinary ability. If the advisory
opinion is not favorable to the petitioner, the advisory opinion must set
forth a specific statement of facts
which supports the conclusion reached
in the opinion. If the advisory opinion
is favorable to the petitioner, it should
describe
the
alien’s
ability
and
achievements in the field of endeavor,
describe the nature of the duties to be
performed, and state whether the position requires the services of an alien of
extraordinary ability. A consulting organization may also submit a letter of
no objection in lieu of the above if it
has no objection to the approval of the
petition.
(B) Waiver of consultation of certain
aliens of extraordinary ability in the field
of arts. Consultation for an alien of extraordinary ability in the field of arts
shall be waived by the Director in
those instances where the alien seeks
readmission to the United States to
perform similar services within 2 years
of the date of a previous consultation.
The director shall, within 5 days of
granting the waiver, forward a copy of
the petition and supporting documentation to the national office of an
appropriate labor organization. Petitioners desiring to avail themselves of
the waiver should submit a copy of the
prior consultation with the petition
and advise the Director of the waiver
request.
(iii) Consultation requirements for an
O–1 alien of extraordinary achievement.
In the case of an alien of extraordinary
achievement who will be working on a
motion picture or television production, consultation shall be made with
the appropriate union representing the
alien’s occupational peers and a management organization in the area of
the alien’s ability. If an advisory opinion is not favorable to the petitioner,
the advisory opinion must set forth a
specific statement of facts which supports the conclusion reached in the
opinion. If the advisory opinion is favorable to the petitioner, the written
advisory opinion from the labor and
management organizations should describe the alien’s achievements in the
motion picture or television field and
state whether the position requires the

services of an alien of extraordinary
achievement. If a consulting organization has no objection to the approval of
the petition, the organization may submit a letter of no objection in lieu of
the above.
(iv) Consultation requirements for an
O–2 accompanying alien. Consultation
with a labor organization with expertise in the skill area involved is required for an O–2 alien accompanying
an O–1 alien of extraordinary ability.
In the case of an O–2 alien seeking
entry for a motion picture or television
production, consultation with a labor
organization and a management organization in the area of the alien’s ability is required. If an advisory opinion
is not favorable to the petitioner, the
advisory opinion must set forth a specific statement of facts which supports
the conclusion reached in the opinion.
If the advisory opinion is favorable to
the petitioner, the opinion provided by
the labor and/or management organization should describe the alien’s essentiality to, and working relationship
with, the O–1 artist or athlete and
state whether there are available U.S.
workers who can perform the support
services. If the alien will accompany an
O–1 alien involved in a motion picture
or television production, the advisory
opinion should address the alien’s
skills and experience wit the O–1 alien
and whether the alien has a pre-existing longstanding working relationship
with the O–1 alien, or whether significant production will take place in the
United States and abroad and if the
continuing participation of the alien is
essential to the successful completion
of the production. A consulting organization may also submit a letter of no
objection in lieu of the above if it has
no objection to the approval of the petition.
(v) Organizations agreeing to provide
advisory opinions. The Service will list
in its Operations Instructions for O
classification those peer groups, labor
organizations, and/or management organizations which have agreed to provide advisory opinions to the Service
and/or petitioners. The list will not be
an exclusive or exhaustive list. The
Service and petitioners may use other

357

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00367

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

sources, such as publications, to identify appropriate peer groups, labor organizations, and management organizations. Additionally, the Service will
list in its Operations Instructions
those occupations or fields of endeavor
where the nonexistence of an appropriate consulting entity has been
verified.
(6) Approval and validity of petition—
(1) Approval. The Director shall consider all of the evidence submitted and
such other evidence as may be independently required to assist in the adjudication. The Director shall notify
the petitioner of the approval of the petition on Form I–797, Notice of Action.
The approval notice shall include the
alien beneficiary name, the classification, and the petition’s period of validity.
(ii) Recording the validity of petitions.
Procedures for recording the validity
period of petitions are as follows;
(A) If a new O petition is approved
before the date the petitioner indicates
the services will begin, the approved
petition and approval notice shall show
the actual dates requested by the petitioner, not to exceed the limit specified
by paragraph (o)(6)(iii) of this section
or other Service policy.
(B) If a new 0 petition is approved
after the date the petitioner indicates
the services will begin, the approved
petition and approval notice shall generally show a validity period commencing with the date of approval and
ending with the date requested by the
petitioner, not to exceed the limit
specified by paragraph (o)(6)(iii) of this
section or other Service policy.
(C) If the period of services requested
by the petitioner exceeds the limit
specified in paragraph (o)(6)(iii) of this
section, the petition shall be approved
only up to the limit specified in that
paragraph.
(iii) Validity—(A) O–1 petition. An approved petition for an alien classified
under section 101(a)(15)(O)(i) of the Act
shall be valid for a period of time determined by the Director to be necessary to accomplish the event or activity, not to exceed 3 years.
(B) O–2 petition. An approved petition
for an alien classified under section
101(a)(15)(O)(ii) of the Act shall be valid
for a period of time determined to be

necessary to assist the O–1 alien to accomplish the event or activity, not to
exceed 3 years.
(iv) Spouse and dependents. The
spouse and unmarried minor children
of the O–1 or O–2 alien beneficiary are
entitled to O–3 nonimmigrant classification, subject to the same period of
admission and limitations as the alien
beneficiary, if they are accompanying
or following to join the alien beneficiary in the United States. Neither
the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization.
(7) The petitioner shall be notified of
the decision, the reasons for the denial,
and the right to appeal the denial
under 8 CFR part 103.
(8) Revocation of approval of petition—
(i) General. (A) The petitioner shall immediately notify the Service of any
changes in the terms and conditions of
employment of a beneficiary which
may affect eligibility under section
101(a)(15)(O) of the Act and paragraph
(o) of this section. An amended petition
should be filed when the petitioner continues to employ the beneficiary. If the
petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the Director who approved the petition.
(B) The Director may revoke a petition at any time, even after the validity of the petition has expired.
(ii) Automatic revocation. The approval of an unexpired petition is automatically revoked if the petitioner, or
the named employer in a petition filed
by an agent, goes out of business, files
a written withdrawal of the petition, or
notifies the Service that the beneficiary is no longer employed by the petitioner.
(iii) Revocation on notice—(A) Grounds
for revocation. The Director shall send
to the petitioner a notice of intent to
revoke the petition in relevant part if
is determined that:
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
(2) The statement of facts contained
in the petition was not true and correct;
(3) The petitioner violated the terms
or conditions of the approved petition;

358

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00368

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(4) The petitioner violated the requirements of section 101(a)(15)(O) of
the Act or paragraph (o) of this section; or
(5) The approval of the petition violated paragraph (o) of this section or
involved gross error.
(B) Notice and decision. The notice of
intent to revoke shall contain a detailed statement of the grounds for the
revocation and the time period allowed
for the petitioner’s rebuttal. The petitioner may submit evidence in rebuttal
within 30 days of the date of the notice.
The Director shall consider all relevant
evidence presented in deciding whether
to revoke the petition.
(9) Appeal of a denial or a revocation of
a petition—(i) Denial. A denied petition
may be appealed under 8 CFR part 103.
(ii) Revocation. A petition that has
been revoked on notice may be appealed under 8 CFR part 103. Automatic
revocations may not be appealed.
(10) Admission. A beneficiary may be
admitted to the United States for the
validity period of the petition, plus a
period of up to 10 days before the validity period begins and 10 days after the
validity period ends. The beneficiary
may only engage in employment during the validity period of the petition.
(11) Extention of visa petition validity.
The petitioner shall file a request to
extend the validity of the original petition under section 101(a)(15)(O) of the
Act on Form I–129, Petition for a Nonimmigrant Worker, in order to continue or complete the same activities
or events specified in the original petition. Supporting documents are not required unless requested by the Director. A petition extension may be filed
only if the validity of the original petition has not expired.
(12) Extension of stay—(i) Extension
procedure. The petitioner shall request
extension of the alien’s stay to continue or complete the same event or
activity by filing Form I–129, accompanied by a statement explaining the
reasons for the extension. The petitioner must also request a petition extension. The dates of extension shall be
the same for the petition and the beneficiary’s extension of stay. The alien
beneficiary must be physically present
in the United States at the time of filing of the extension of stay. Even

though the request to extend the petition and the alien’s stay are combined
on the petition, the Director shall
make a separate determination on
each. If the alien leaves the United
States for business or personal reasons
while the extension requests are pending, the petitioner may request the Director to cable notification of approval
of the petition extension to the consular office abroad where the alien will
apply for a visa.
(ii) Extension period. An extension of
stay may be authorized in increments
of up to 1 year for an O–1 or O–2 beneficiary to continue or complete the
same event or activity for which he or
she was admitted plus an additional 10
days to allow the beneficiary to get his
or her personal affairs in order.
(iii) Denial of an extension of stay. The
denial of the request for the alien’s extension of temporary stay may not be
appealed.
(13) Effect of approval of a permanent
labor certification or filing of a preference
petition on O classification. The approval
of a permanent labor certification or
the filing of a preference petition for
an alien shall not be a basis for denying an O–1 petition, a request to extend
such a petition, or the alien’s application for admission, change of status, or
extension of stay. The alien may legitimately come to the United States for a
temporary period as an O–1 nonimmigrant and depart voluntarily at
the end of his or her authorized stay
and, at the same time, lawfully seek to
become a permanent resident of the
United States.
(14) Effect of a strike. (i) If the Secretary of Labor certifies to the Commissioner that a strike or other labor
dispute involving a work stoppage of
workers is in progress in the occupation at the place where the beneficiary
is to be employed, and that the employment of the beneficiary would adversely affect the wages and working
conditions of U.S. citizens and lawful
resident workers:
(A) A petition to classify an alien as
a nonimmigrant as defined in section
101(a)(15)(O) of the Act shall be denied;
or
(B) If a petition has been approved,
but the alien has not yet entered the
United States, or has entered the

359

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00369

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

United States but has not commenced
employment, the approval of the petition is automatically suspended, and
the application for admission on the
basis of the petition shall be denied.
(ii) If there is a strike or other labor
dispute involving a work stoppage of
workers in progress, but such strike or
other labor dispute is not certified
under paragraph (o)(14)(i) of this section, the Commissioner shall not deny
a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and
is participating in a strike or labor dispute involving a work stoppage of
workers, whether or not such strike or
other labor dispute has been certified
by the Secretary of Labor, the alien
shall not be deemed to be failing to
maintain his or her status solely on account of past, present, or future participation in a strike or other labor
dispute involving a work stoppage of
workers but is subject to the following
terms and conditions:
(A) The alien shall remain subject to
all applicable provisions of the Immigration and Nationality Act and regulations promulgated thereunder in the
same manner as are all other O nonimmigrants;
(B) The status and authorized period
of stay of such an alien is not modified
or extended in any way by virtue of his
or her participation in a strike or other
labor dispute involving a work stoppage of workers; and
(C) Although participation by an O
nonimmigrant alien in a strike or
other labor dispute involving a work
stoppage of workers will not constitute
a ground for deportation, and alien who
violates his or her status or who remains in the United States after his or
her authorized period of stay has expired will be subject to deportation.
(15) Use of approval notice, Form I–797.
The Service shall notify the petitioner
of Form I–797 whenever a visa petition
or an extension of a visa petition is approved under the O classification. The
beneficiary of an O petition who does
not require a nonimmigrant visa may
present a copy of the approval notice
at a Port-of-Entry to facilitate entry
into the United States. A beneficiary

who is required to present a visa for admission, and who visa will have expired
before the date of his or her intended
return, may use Form I–797 to apply for
a new or revalidated visa during the
validity period of the petition. A copy
of Form I–797 shall be retained by the
beneficiary and presented during the
validity of the petition when reentering the United States to resume the
same employment with the same petitioner.
(16) Return transportation requirement.
In the case of an alien who enters the
United States under section 101(a)(15(O)
of the Act and whose employment terminates for reasons other than voluntary resignation, the employer
whose offer of employment formed the
basis of such nonimmigrant status and
the petitioner are jointly and severally
liable for the reasonable cost of return
transportation of the alien abroad. For
the purposes of this paragraph, the
term ‘‘abroad’’ means the alien’s last
place of residence prior to his or her
entry into the United States.
(p) Artists, athletes, and entertainers—
(1) Classifications—(i) General. Under
section 101(a)(15)(P) of the Act, an alien
having a residence in a foreign country
which he or she has not intention or
abandoning may be authorized to come
to the United States temporarily to
perform services for an employer or a
sponsor. Under the nonimmigrant category, the alien may be classified
under section 101(a)(15)(P)(i) of the Act
as an alien who is coming to the United
States to perform services as an internationally recognized athlete, individually or as part of a group or team, or
member of an internationally recognized entertainment group; under section 101(a)(15)(P)(ii) of the Act, who is
coming to perform as an artist or entertainer under a reciprocal exchange
program; under section 101(a)(15)(P)(iii)
of the Act, as an alien who is coming
solely to perform, teach, or coach
under a program that is culturally
unique;
or
under
section
101(a)(15)(P)(iv) of the Act, as the
spouse or child of an alien described in
section 101(a)(15)(P) (i), (ii), or (iii) of
the Act who is accompanying or following to join the alien. These classifications are called P–1, P–2, P–3, and
P–4 respectively. The employer or

360

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00370

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

sponsor must file a petition with the
Service for review of the services to be
performed and for determination of the
alien’s eligibility for P–1, P–2, or P–3
classification before the alien may
apply for a visa or seek admission to
the United States. This paragraph sets
forth the standards and procedures applicable to these classifications.
(ii) Description of classification.(A) A
P–1 classification applies to an alien
who is coming temporarily to the
United States:
(1) To perform at specific athletic
competition as an athlete, individually
or as part of a group or team, at an
internationally recognized level or performance, or
(2) To perform with, or as an integral
and essential part of the performance
of, and entertainment group that has
been recognized internationally as
being outstanding in the discipline for
a sustained and substantial period of
time, and who has had a sustained and
substantial relationship with the group
(ordinarily for at least 1 year) and provides functions integral to the performance of the group.
(B) A P–2 classification applies to an
alien who is coming temporarily to the
United States to perform as an artist
or entertainer, individually or as part
of a group, or to perform as an integral
part of the performance of such a
group, and who seeks to perform under
a reciprocal exchange program which is
between an organization or organizations in the United States and an organization or organizations in one or
more foreign states, and which provides for the temporary exchange of
artists and entertainers, or groups of
artists and entertainers.
(C) A P–3 classification applies to an
alien artist or entertainer who is coming temporarily to the United States,
either individually or as part of a
group, or as an integral part of the performance of the group, to perform,
teach, or coach under a commercial or
noncommercial program that is culturally unique.
(2) Filing of petitions—(i) General. A P–
1 petition for an athlete or entertainment group shall be filed by a United
States employer, a United States sponsoring organization, a United States
agent, or a foreign employer through a

United States agent. For purposes of
paragraph (p) of this section, a foreign
employer is any employer who is not
amenable to service of process in the
United States. Foreign employers seeking to employ a P–1 alien may not directly petition for the alien but must
use a United States agent. A United
States agent petitioning on behalf of a
foreign employer must be authorized to
file the petition, and to accept service
of process in the United States in proceedings under section 274A of the Act,
on behalf of the foreign employer. A P–
2 petition for an artist or entertainer
in a reciprocal exchange program shall
be filed by the United States labor organization which negotiated the reciprocal exchange agreement, the sponsoring organization, or a United States
employer. A P–3 petition for an artist
or entertainer in a culturally unique
program shall be filed by the sponsoring organization or a United States
employer. Essential support personnel
may not be included on the petition
filed for the principal alien(s). These
aliens require a separate petition. The
petitioner must file a P petition on
Form I–129, Petition for Nonimmigrant
Worker. The petition may not be filed
more than one year before the actual
need for the alien’s services. A P–1, P–
2, or P–3 petition shall be adjudicated
at the appropriate Service Center, even
in emergency situations.
(ii) Evidence required to accompany a
petition for a P nonimmigrant. Petitions
for P nonimmigrant aliens shall be accompanied by the following:
(A) The evidence specified in the specific section of this part for the classification;
(B) Copies of any written contracts
between the petitioner and the alien
beneficiary or, if there is no written
contract, a summary of the terms of
the oral agreement under which the
alien(s) will be employed;
(C) An explanation of the nature of
the events or activities, the beginning
and ending dates for the events or activities, and a copy of any itinerary for
the events or activities; and
(D) A written consultation from a
labor organization.
(iii) Form of documentation. The evidence submitted with an P petition
should conform to the following:

361

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00371

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(A) Affidavits, contracts, awards, and
similar documentation must reflect
the nature of the alien’s achievement
and be executed by an officer or responsible person employed by the institution, establishment, or organization
where the work has performed.
(B) Affidavits written by present or
former employers or recognized experts
certifying to the recognition and extraordinary ability, or, in the case of a
motion picture or television production, the extraordinary achievement of
the alien, which shall specifically describe the alien’s recognition and ability or achievement in factual terms.
The affidavit must also set forth the
expertise of the affiant and the manner
in which the affiant acquired such information.
(C) A legible copy of a document in
support of the petition may be submitted in lieu of the original. However,
the original document shall be submitted if requested by the Director.
(iv) Other filing situations—(A) Services
in more than one location. A petition
which requires the alien to work in
more than one location (e.g., a tour)
must include an itinerary with the
dates and locations of the performances.
(B) Services for more than one employer. If the beneficiary or beneficiaries will work for more than one
employer within the same time period,
each employer must file a separate petition unless an agent files the petition
pursuant to paragraph (p)(2)(iv)(E) of
this section.
(C) Change of employer—(1) General. If
a P–1, P–2, or P–3 alien in the United
States seeks to change employers or
sponsors, the new employer or sponsor
must file both a petition and a request
to extend the alien’s stay in the United
States. The alien may not commence
employment with the new employer or
sponsor until the petition and request
for extension have been approved.
(2) Traded professional P–1 athletes. In
the case of a professional P–1 athlete
who is traded from one organization to
another organization, employment authorization for the player will automatically continue for a period of 30
days after acquisition by the new organization, within which time the new
organization is expected to file a new

Form I–129 for P–1 nonimmigrant classification. If a new Form I–129 is not
filed within 30 days, employment authorization will cease. If a new Form I–
129 is filed within 30 days, the professional athlete shall be deemed to be in
valid P–1 status, and employment shall
continue to be authorized, until the petition is adjudicated. If the new petition is denied, employment authorization will cease.
(D) Amended petition. The petitioner
shall file an amended petition, with
fee, with the Service Center where the
original petition was filed to reflect
any material changes in the terms and
conditions of employment or the beneficiary’s eligibility as specified in the
original approved petition. A petitioner may add additional, similar or
comparable performance, engagements,
or competitions during the validity period of the petition without filing an
amended petition.
(E) Agents as petitioners. A United
States agent may file a petition in
cases involving workers who are traditionally self-employed or workers who
use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a
foreign employer authorizes the agent
to act on its behalf. A United States
agent may be: the actual employer of
the beneficiary; the representative of
both the employer and the beneficiary;
or, a person or entity authorized by the
employer to act for, or in place of, the
employer as its agent. A petition filed
by an United States agent is subject to
the following conditions:
(1) An agent performing the function
of an employer must specify the wage
offered and the other terms and conditions of employment by contractual
agreement with the beneficiary or
beneficiaries. The agent/employer must
also provide an itinerary of definite
employment and information on any
other services planned for the period of
time requested.
(2) A person or company in business
as an agent may file the P petition involving multiple employers as the representative of both the employers and
the beneficiary or beneficiaries if the
supporting documentation includes a
complete itinerary of services or engagements. The itinerary shall specify

362

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00372

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

the dates of each service or engagement, the names and addresses of the
actual employers, the names and addresses of the establishment, venues, or
locations where the services will be
performed. In questionable cases, a
contract between the employer(s) and
the beneficiary or beneficiaries may be
required. The burden is on the agent to
explain the terms and conditions of the
employment and to provide any required documentation.
(3) A foreign employer who, through
a United States agent, files a petition
for a P nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section
274A of the Act and 8 CFR part 274a.
(F) Multiple beneficiaries. More than
one beneficiary may be included in a P
petition if they are members of a group
seeking classification based on the reputation of the group as an entity, or if
they will provide essential support to
P–1, P–2, or P–3 beneficiaries performing in the same location and in
the same occupation.
(G) Named beneficiaries. Petitions for
P classification must include the
names of beneficiaries and other required information at the time of filing.
(H) Substitution of beneficiaries. A petitioner may request substitution of
beneficiaries in approved P–1, P–2, and
P–3 petitions for groups. To request
substitution, the petitioner shall submit a letter requesting such substitution, along with a copy of the petitioner’s approval notice, to the consular office at which the alien will
apply for a visa or the Port-of-Entry
where the alien will apply for admission. Essential support personnel may
not be substituted at consular offices
or at Ports-of-entry. In order to add additional new essential support personnel, a new I–129 petition must be
filed.
(3) Definitions. As used in this paragraph, the term:
Arts includes fields of creative activity or endeavor such as, but not limited to, fine arts, visual arts, and performing arts.
Competition, event, or performance
means an activity such as an athletic
competition, athletic season, tournament, tour, exhibit, project, enter-

tainment event, or engagement. Such
activity could include short vacations,
promotional appearances for the petitioning employer relating to the competition, event, or performance, and
stopovers which are incidental and/or
related to the activity. An athletic
competition or entertainment event
could include an entire season of performances A group of related activities
will also be considered an event. In the
case of a P–2 petition, the event may be
the duration of the reciprocal exchange
agreement. In the case of a P–1 athlete,
the event may be the duration of the
alien’s contract.
Contract means the written agreement between the petitioner and the
beneficiary(ies) that explains the terms
and conditions of employment. The
contract shall describe the services to
be performed, and specify the wages,
hours of work, working conditions, and
any fringe benefits.
Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular
country, nation, society, class, ethnicity, religion, tribe, or other group of
persons.
Essential support alien means a highly
skilled, essential person determined by
the Director to be an integral part of
the performance of a P–1, P–2, or P–3
alien because he or she performs support services which cannot be readily
performed by a United States worker
and which are essential to the successful performance of services by the P–1,
P–2, alien. Such alien must have appropriate qualifications to perform the
services, critical knowledge of the specific services to be performed, and experience in providing such support to
the P–1, P–2, or P–3 alien.
Group means two or more persons established as one entity or unit to perform or to provide a service.
Internationally recognized means having a high level of achievement in a
field evidenced by a degree of skill and
recognition substantially above that
ordinarily encountered, to the extent
that such achievement is renowned,
leading, or well-known in more than
one country.
Member of a group means a person
who is actually performing the entertainment services.

363

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00373

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

Sponsor means an established organization in the United States which will
not directly employ a P–1, P–2, or P–3
alien but will assume responsibility for
the accuracy of the terms and conditions specified in the petition.
Team means two or more persons organized to perform together as a competitive unit in a competitive event.
(4) Petition for an internationally recognized athlete or member of an internationally recognized entertainment group (P–
1)—(i) Types of classification—(A) P–1
classification as an athlete in an individual capacity. A P–1 classification
may be granted to an alien who is an
internationally
recognized
athlete
based on his or her own reputation and
achievements as an individual. The
alien must be coming to the United
States to perform services which require an internationally recognized
athlete.
(B) P–1 classification as a member of an
entertainment group or an athletic team.
An entertainment group or athletic
team consists of two or more persons
who function as a unit. The entertainment group or athletic team as a unit
must be internationally recognized as
outstanding in the discipline and must
be coming to perform services which
require an internationally recognized
entertainment group or athletic team.
A person who is a member of an internationally recognized entertainment
group or athletic team may be granted
P–1 classification based on that relationship, but may not perform services
separate and apart from the entertainment group or athletic team. An entertainment group must have been established for a minimum of 1 year, and 75
percent of the members of the group
must have been performing entertainment services for the group for a minimum of 1 year.
(ii) Criteria and documentary requirements for P–1 athletes—(A) General. A P–
1 athlete must have an internationally
recognized reputation as an international athlete or he or she must be a
member of a foreign team that is internationally recognized. The athlete or
team must be coming to the United
States to participate in an athletic
competition which has a distinguished
reputation and which requires partici-

pation of an athlete or athletic team
that has an international reputation.
(B) Evidentiary requirements for an
internationally recognized athlete or athletic team. A petition for an athletic
team must be accompanied by evidence
that the team as a unit has achieved
international recognition in the sport.
Each member of the team is accorded
P–1 classification based on the international reputation of the team. A petition for an athlete who will compete
individually or as a member of a U.S.
team must be accompanied by evidence
that the athlete has achieved international recognition in the sport based
on his or her reputation. A petition for
a P–1 athlete or athletic team shall include:
(1) A tendered contract with a major
United States sports league or team, or
a tendered contract in an individual
sport commensurate with international
recognition in that sport, if such contracts are normally executed in the
sport, and
(2) Documentation of at least two of
the following:
(i) Evidence of having participated to
a significant extent in a prior season
with a major United States sports
league;
(ii) Evidence of having participated
in international competition with a national team;
(iii) Evidence of having participated
to a significant extent in a prior season
for a U.S. college or university in
intercollegiate competition;
(iv) A written statement from an official of the governing body of the sport
which details how the alien or team is
internationally recognized;
(v) A written statement from a member of the sports media or a recognized
expert in the sport which details how
the alien or team is internationally
recognized;
(vi) Evidence that the individual or
team is ranked if the sport has international rankings; or
(vii) Evidence that the alien or team
has received a significant honor or
award in the sport.
(iii) Criteria and documentary requirements for members of an internationally
recognized entertainment group—(A) General. A P–1 classification shall be accorded to an entertainment group to

364

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00374

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

perform as a unit based on the international reputation of the group. Individual entertainers shall not be accorded P–1 classification to perform
separate and apart from a group. Except
as
provided
in
paragraph
(p)(4)(iii)(C)(2) of this section, it must
be established that the group has been
internationally recognized as outstanding in the discipline for a sustained and substantial period of time.
Seventy-five percent of the members of
the group must have had a sustained
and substantial relationship with the
group for at least 1 year and must provide functions integral to the group’s
performance.
(B) Evidentiary criteria for members of
internationally recognized entertainment
groups. A petition for P–1 classification
for the members of an entertainment
group shall be accompanied by:
(1) Evidence that the group has been
established and performing regularly
for a period of at least 1 year;
(2) A statement from the petitioner
listing each member of the group and
the exact dates for which each member
has been employed on a regular basis
by the group; and
(3) Evidence that the group has been
internationally recognized in the discipline for a sustained and substantial
period of time. This may be demonstrated by the submission of evidence of the group’s nomination or receipt
of
significant
international
awards or prices for outstanding
achievement in its field or by three of
the following different types of documentation:
(i) Evidence that the group has performed, and will perform, as a starring
or leading entertainment group in productions or events which have a distinguished reputation as evidenced by
critical reviews, advertisements, publicity releases, publications, contracts,
or endorsements;
(ii) Evidence that the group has
achieved international recognition and
acclaim for outstanding achievement
in its field as evidenced by reviews in
major newspapers, trade journals, magazines, or other published material;
(iii) Evidence that the group has performed, and will perform, services as a
leading or starring group for organizations and establishments that have a

distinguished reputation evidenced by
articles in newspapers, trade journals,
publications, or testimonials;
(iv) Evidence that the group has a
record of major commercial or critically acclaimed successes, as evidenced
by such indicators as ratings; standing
in the field; box office receipts; record,
cassette, or video sales; and other
achievements in the field as reported
in trade journals, major newspapers, or
other publications;
(v) Evidence that the group has
achieved significant recognition for
achievements from organizations, critics, government agencies, or other recognized experts in the field. Such
testimonials must be in a form that
clearly indicates the author’s authority, expertise, and knowledge of the
alien’s achievements; or
(vi) Evidence that the group has either commanded a high salary or will
command a high salary or other substantial remuneration for services
comparable to other similarly situated
in the field as evidenced by contracts
or other reliable evidence.
(C) Special provisions for certain entertainment groups—(1) Alien circus personnel. The 1-year group membership
requirement and the international recognition requirement are not applicable to alien circus personnel who perform as part of a circus or circus group,
or who constitute an integral and essential part of the performance of such
circus or circus group, provided that
the alien or aliens are coming to join a
circus that has been recognized nationally as outstanding for a sustained and
substantial period of time or as part of
such a circus.
(2) Certain nationally known entertainment groups. The Director may waive
the international recognition requirement in the case of an entertainment
group which has been recognized nationally as being outstanding in its discipline for a sustained and substantial
period of time in consideration of special circumstances. An example of a
special circumstances would be when
an entertainment group may find it
difficult to demonstrate recognition in
more than one country due to such factors as limited access to news media or
consequences of geography.

365

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00375

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(3) Waiver of 1-year relationship in exigent circumstances. The Director may
waive the 1-year relationship requirement for an alien who, because of illness or unanticipated and exigent circumstances, replaces an essential
member of a P–1 entertainment group
or an alien who augments the group by
performing a critical role. The Department of State is hereby delegated the
authority to waive the 1-year relationship requirement in the case of consular substitutions involving P–1 entertainment groups.
(iv) P–1 classification as an essential
support alien—(A) General. An essential
support alien as defined in paragraph
(p)(3) of this section may be granted P–
1 classification based on a support relationship with an individual P–1 athlete,
P–1 athletic team, or a P–1 entertainment group.
(B) Evidentiary criteria for a P–1 essential support petition. A petition for P–1
essential support personnel must be accompanied by:
(1) A consultation from a labor organization with expertise in the area of
the alien’s skill;
(2) A statement describing the
alien(s) prior essentiality, critical
skills, and experience with the principal alien(s); and
(3) A copy of the written contract or
a summary of the terms of the oral
agreement between the alien(s) and the
employer.
(5) Petition for an artist or entertainer
under a reciprocal exchange program (P–
2)—(i) General. (A) A P–2 classification
shall be accorded to artists or entertainers, individually or as a group, who
will be performing under a reciprocal
exchange program which is between an
organization or organizations in the
United States, which may include a
management organization, and an organization or organizations in one or
more foreign states and which provides
for the temporary exchange of artists
and entertainers, or groups of artists
and entertainers.
(B) The exchange of artists or entertainers shall be similar in terms of caliber of artists or entertainers, terms
and conditions of employment, such as
length of employment, and numbers of
artists or entertainers involved in the
exchange. However, this requirement

does not preclude an individual for
group exchange.
(C) An alien who is an essential support person as defined in paragraph
(p)(3) of this section may be accorded
P–2 classification based on a support
relationship to a P–2 artist or entertainer under a reciprocal exchange program.
(ii) Evidentiary requirements for petition involving a reciprocal exchange program. A petition for P–2 classification
shall be accompanied by:
(A) A copy of the formal reciprocal
exchange agreement between the U.S.
organization or organizations which
sponsor the aliens and an organization
or organizations in a foreign country
which will receive the U.S. artist or entertainers;
(B) A statement from the sponsoring
organization describing the reciprocal
exchange of U.S. artists or entertainers
as it relates to the specific petition for
which P–2 classification is being
sought;
(C) Evidence that an appropriate
labor organization in the United States
was involved in negotiating, or has
concurred with, the reciprocal exchange of U.S. and foreign artists or
entertainers; and
(D) Evidence that the aliens for
whom P–2 classification is being sought
and the U.S. artists or entertainers
subject to the reciprocal exchange
agreement are artists or entertainers
with comparable skills, and that the
terms and conditions of employment
are similar.
(iii) P–2 classification as an essential
support alien—(A) General. An essential
support alien as defined in paragraph
(p)(3) of this section may be granted P–
2 classification based on a support relationship with a P–2 entertainer or P–2
entertainment group.
(B) Evidentiary criteria for a P–2 essential support petition. A petition for P–2
essential support personnel must be accompanied by:
(1) A consultation from a labor organization with expertise in the area of
the alien’s skill;
(2) A statement describing the
alien(s) prior essentiality, critical
skills, and experience with the principal alien(s); and

366

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00376

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(3) A copy of the written contract or
a summary of the terms of the oral
agreement between the alien(s) and the
employer.
(6) Petition for an artist or entertainer
under a culturally unique program—(i)
General. (A) A P–3 classification may be
accorded to artists or entertainers, individually or as a group, coming to the
United States for the purpose of developing,
interpreting,
representing,
coaching, or teaching a unique or traditional ethnic, folk, cultural, musical,
theatrical, or artistic performance or
presentation.
(B) The artist or entertainer must be
coming to the United States to participate in a cultural event or events
which will further the understanding
or development of his or her art form.
The program may be of a commercial
or noncommercial nature.
(ii) Evidentiary criteria for a petition
involving a culturally unique program. A
petition for P–3 classification shall be
accompanied by:
(A) Affidavits, testimonials, or letters from recognized experts attesting
to the authenticity of the alien’s or the
group’s skills in performing, presenting, coaching, or teaching the
unique or traditional art form and giving the credentials of the expert, including the basis of his or her knowledge of the alien’s or group’s skill, or
(B) Documentation that the performance of the alien or group is culturally
unique, as evidence by reviews in newspapers, journals, or other published
materials; and
(C) Evidence that all of the performances or presentations will be culturally unique events.
(iii) P–3 classification as an essential
support alien—(A) General. An essential
support alien as defined in paragraph
(p)(3) of this section may be granted P–
3 classification based on a support relationship with a P–3 entertainer or P–3
entertainment group.
(B) Evidentiary criteria for a P–3 essential support petition. A petition for P–3
essential support personnel must be accompanied by:
(1) A consultation from a labor organization with expertise in the area of
the alien’s skill;
(2) A statement describing the
alien(s) prior essentiality, critical

skills and experience with the principal
alien(s); and
(3) A copy of the written contract or
a summary of the terms of the oral
agreement between the alien(s) and the
employer.
(7) Consultation—(i) General. (A) Consultation with an appropriate labor organization regarding the nature of the
work to be done and the alien’s qualifications is mandatory before a petition for P–1, P–2, or P–3 classification
can be approved.
(B) Except as provided in paragraph
(p)(7)(i)(E) of this section, evidence of
consultation shall be a written advisory opinion from an appropriate labor
organization.
(C) Except as provided in paragraph
(p)(7)(i)(E) of this section, the petitioner shall obtain a written advisory
opinion from an appropriate labor organization. The advisory opinion shall
be submitted along with the petition
when the petition is filed. If the advisory opinion is not favorable to the petitioner, the advisory opinion must set
forth a specific statement of facts
which support the conclusion reached
in the opinion. Advisory opinions must
be submitted in writing and signed by
an authorized official of the organization.
(D) Except as provided in paragraph
(p)(7)(i) (E) and (F) of this section,
written evidence of consultation shall
be included in the record of every approved petition. Consultations are advisory and are not binding on the Service.
(E) In a case where the Service has
determined that a petition merits expeditious handling, the Service shall
contact the labor organization and request an advisory opinion if one is not
submitted by the petitioner. The labor
organization shall have 24 hours to respond to the Service’s request. The
Service shall adjudicate the petition
after receipt of the response from the
labor organization. The labor organization shall then furnish the Service with
a written advisory opinion within 5
working days of the request. If the
labor organization fails to respond
within 24 hours, the Service shall
render a decision on the petition without the advisory opinion.

367

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00377

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(F) In those cases where it is established by the petitioner that an appropriate labor organization does not
exist, the Service shall render a decision on the evidence of record.
(ii) Consultation requirements for P–1
athletes and entertainment groups. Consultation with a labor organization
that has expertise in the area of the
alien’s sport or entertainment field is
required in the case of a P–1 petition. If
the advisory opinion is not favorable to
the petitioner, the advisory opinion
must set forth a specific statement of
facts which support the conclusion
reached in the opinion. If the advisory
opinion provided by the labor organization is favorable to the petitioner it
should evaluate and/or describe the
alien’s or group’s ability and achievements in the field of endeavor, comment on whether the alien or group is
internationally recognized for achievements, and state whether the services
the alien or group is coming to perform
are appropriate for an internationally
recognized athlete or entertainment
group. In lieu of the above, a labor organization may submit a letter of no
objection if it has no objection to the
approval of the petition.
(iii) Consultation requirements for P–1
circus personnel. The advisory opinion
provided by the labor organization
should comment on whether the circus
which will employ the alien has national recognition as well as any other
aspect of the beneficiary’s or beneficiaries’ qualifications which the labor
organization deems appropriate. If the
advisory opinion is not favorable to the
petitioner, it must set forth a specific
statement of facts which support the
conclusion reached in the opinion. In
lieu of the above, a labor organization
may submit a letter of no objection if
it has no objection to the approval of
the petition.
(iv) Consultation requirements for P–2
alien in a reciprocal exchange program.
In P–2 petitions where an artist or entertainer is coming to the United
States under a reciprocal exchange program, consultation with the appropriate labor organization is required to
verify the existence of a viable exchange program. The advisory opinion
from the labor organization shall comment on the bona fides of the recip-

rocal exchange program and specify
whether the exchange meets the requirements of paragraph (p)(5) of this
section. If the advisory opinion is not
favorable to the petitioner, it must
also set forth a specific statement of
facts which support the conclusion
reached in the opinion.
(v) Consultation requirements for P–3 in
a culturally unique program. Consultation with an appropriate labor organization is required for P–3 petitions involving aliens in culturally unique programs. If the advisory opinion is favorable to the petitioner, it should evaluate the cultural uniqueness of the
alien’s skills, state whether the events
are cultural in nature, and state
whether the event or activity is appropriate for P–3 classification. If the advisory opinion is not favorable to the
petitioner, it must also set forth a specific statement of facts which support
the conclusion reached in the opinion.
In lieu of the above, a labor organization may submit a letter of no objection if it has no objection to the approval of the petition.
(vi) Consultation requirements for essential support aliens. Written consultation on petitions for P–1, P–2, or P–3 essential support aliens must be made
with a labor organization with expertise in the skill area involved. If the
advisory opinion provided by the labor
organization is favorable to the petitioner, it must evaluate the alien’s essentiality to and working relationship
with the artist or entertainer, and
state whether United States workers
are available who can perform the support services. If the advisory opinion is
not favorable to the petitioner, it must
also set forth a specific statement of
facts which support the conclusion
reached in the opinion. A labor organization may submit a letter of no objection if it has no objection to the approval of the petition.
(vii) Labor organizations agreeing to
provide consultations. The Service shall
list in its Operations Instructions for P
classification
those
organizations
which have agreed to provide advisory
opinions to the Service and/or petitioners. The list will not be an exclusive or exhaustive list. The Service and
petitioners may use other sources, such
as publications, to identify appropriate

368

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00378

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

labor organizations. The Service will
also list in its Operations Instructions
those occupations or fields of endeavor
where it has been determined by the
Service that no appropriate labor organization exists.
(8) Approval and validity of petition—
(i) Approval. The Director shall consider all the evidence submitted and
such other evidence as he or she may
independently require to assist in his
or her adjudication. The Director shall
notify the petitioner of the approval of
the petition on Form I–797, Notice of
Action. The approval notice shall include the alien beneficiary’s name and
classification and the petition’s period
of validity.
(ii) Recording the validity of petitions.
Procedures for recording the validity
period of petitions are:
(A) If a new P petition is approved
before the date the petitioner indicates
the services will begin, the approved
petition and approval notice shall show
the actual dates requested by the petitioner as the validity period, not to exceed the limit specified in paragraph
(p)(8)(iii) of this section or other Service policy.
(B) If a new P petition is approved
after the date the petitioner indicates
the services will begin, the approved
petition and approval notice shall generally show a validity period commencing with the date of approval and
ending with the date requested by the
petitioner, not to exceed the limit
specified in paragraph (p)(8)(iii) of this
section or other Service policy.
(C) If the period of services requested
by the petitioner exceeds the limit
specified in paragraph (p)(8)(iii) of this
section, the petition shall be approved
only up to the limit specified in that
paragraph.
(iii) Validity. The approval period of a
P petition shall conform to the limits
prescribed as follows:
(A) P–1 petition for athletes. An approved petition for an individual athlete
classified
under
section
101(a)(15)(P)(i) of the Act shall be valid
for a period up to 5 years. An approved
petition for an athletic team classified
under section 101(a)(15)(P)(i) of the Act
shall be valid for a period of time determined by the Director to complete
the competition or event for which the

alien team is being admitted, not to exceed 1 year.
(B) P–1 petition for an entertainment
group. An approved petition for an entertainment group classified under section 101(a)(15)(P)(i) of the Act shall be
valid for a period of time determined
by the Director to be necessary to complete the performance or event for
which the group is being admitted, not
to exceed 1 year.
(C) P–2 and P–3 petitions for artists or
entertainers. An approved petition for
an artist or entertainer under section
101(a)(15)(P)(ii) or (iii) of the Act shall
be valid for a period of time determined by the Director to be necessary
to complete the event, activity, or performance for which the P–2 or P–3 alien
is admitted, not to exceed 1 year.
(D) Spouse and dependents. The spouse
and unmarried minor children of a P–1,
P–2, or P–3 alien beneficiary are entitled to P–4 nonimmigrant classification, subject to the same period of admission and limitations as the alien
beneficiary, if they are accompanying
or following to join the alien beneficiary in the United States. Neither
the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization.
(E) Essential support aliens. Petitions
for essential support personnel to P–1,
P–2, and P–3 aliens shall be valid for a
period of time determined by the Director to be necessary to complete the
event, activity, or performance for
which the P–1, P–2, or P–3 alien is admitted, not to exceed 1 year.
(9) The petitioner shall be notified of
the decision, the reasons for the denial,
and the right to appeal the denial
under 8 CFR part 103. There is no appeal from a decision to deny an extension of stay to the alien or a change of
nonimmigrant status.
(10) Revocation of approval of petition—(i) General. (A) The petitioner
shall immediately notify the Service of
any changes in the terms and conditions of employment of a beneficiary
which may affect eligibility under section 101(a)(15)(P) of the Act and paragraph (p) of this section. An amended

369

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00379

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

petition should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner
shall send a letter explaining the
change(s) to the Director who approved
the petition.
(B) The Director may revoke a petition at any time, even after the validity of the petition has expired.
(ii) Automatic revocation. The approval of an unexpired petition is automatically revoked if the petitioner, or
the employer in a petition filed by an
agent, goes out of business, files a written withdrawal of the petition, or notifies the Service that the beneficiary is
no longer employed by the petitioner.
(iii) Revocation on notice—(A) Grounds
for revocation. The Director shall send
to the petitioner a notice of intent to
revoke the petition in relevant part if
he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
(2) The statement of facts contained
in the petition were not true and correct;
(3) The petitioner violated the terms
or conditions of the approved petition;
(4) The petitioner violated requirements of section 101(a)(15)(P) of the Act
or paragraph (p) of this section; or
(5) The approval of the petition violated paragraph (p) of this section or
involved gross error.
(B) Notice and decision. The notice of
intent to revoke shall contain a detailed statement of the grounds for the
revocation and the time period allowed
for the petitioner’s rebuttal. The petitioner may submit evidence in rebuttal
within 30 days of the date of the notice.
The Director shall consider all relevant
evidence presented in deciding whether
to revoke the petition.
(11) Appeal of a denial or a revocation
of a petition—(i) Denial. A denied petition may be appealed under 8 CFR part
103.
(ii) Revocation. A petition that has
been revoked on notice may be appealed under 8 CFR part 103. Automatic
revocations may not be appealed.
(12) Admission. A beneficiary may be
admitted to the United States for the
validity period of the petition, plus a
period of up to 10 days before the valid-

ity period begins and 10 days after the
validity period ends. The beneficiary
may not work except during the validity period of the petition.
(13) Extension of visa petition validity.
The petitioner shall file a request to
extend the validity of the original petition under section 101(a)(15)(P) of the
Act on Form I–129 in order to continue
or complete the same activity or event
specified in the original petition. Supporting documents are not required unless requested by the Director. A petition extension may be filed only if the
validity of the original petition has not
expired.
(14) Extension of stay—(i) Extension
procedure. The petitioner shall request
extension of the alien’s stay to continue or complete the same event or
activity by filing Form I–129, accompanied by a statement explaining the
reasons for the extension. The petitioner must also request a petition extension. The extension dates shall be
the same for the petition and the beneficiary’s stay. The beneficiary must be
physically present in the United States
at the time the extension of stay is
filed. Even though the requests to extend the petition and the alien’s stay
are combined on the petition, the Director shall make a separate determination on each. If the alien leaves
the United States for business or personal reasons while the extension requests are pending, the petitioner may
request the Director to cable notification of approval of the petition extension to the consular office abroad
where the alien will apply for a visa.
(ii) Extension periods—(A) P–1 individual athlete. An extension of stay for
a P–1 individual athlete and his or her
essential support personnel may be authorized for a period up to 5 years for a
total period of stay not to exceed 10
years.
(B) Other P–1, P–2, and P–3 aliens. An
extension of stay may be authorized in
increments of 1 year for P–1 athletic
teams, entertainment groups, aliens in
reciprocal exchange programs, aliens
in culturally unique programs, and
their essential support personnel to
continue or complete the same event or
activity for which they were admitted.
(15) Effect of approval of a permanent
labor certification or filing of a preference

370

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00380

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

petition on P classification. The approval
of a permanent labor certification or
the filing of a preference petition for
an alien shall not be a basis for denying a P petition, a request to extend
such a petition, or the alien’s admission, change of status, or extension of
stay. The alien may legitimately come
to the United States for a temporary
period as a P nonimmigrant and depart
voluntarily at the end of his or her authorized stay and, at the same time,
lawfully seek to become a permanent
resident of the United States. This provision does not include essential support personnel.
(16) Effect of a strike—(i) If the Secretary of Labor certifies to the Commissioner that a strike or other labor
dispute involving a work stoppage of
workers is in progress in the occupation at the place where the beneficiary
is to be employed, and that the employment of the beneficiary would adversely affect the wages and working
conditions of U.S. citizens and lawful
resident workers:
(A) A petition to classify an alien as
a nonimmigrant as defined in section
101(a)(15)(P) of the Act shall be denied;
or
(B) If a petition has been approved,
but the alien has not yet entered the
United States, or has entered the
United States but has not commenced
employment, the approval of the petition is automatically suspended, and
the application for admission of the
basis of the petition shall be denied.
(ii) If there is a strike or other labor
dispute involving a work stoppage of
workers in progress, but such strike or
other labor dispute is not certified
under paragraph (p)(16)(i) of this section, the Commissioner shall not deny
a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and
is participating in a strike or labor dispute involving a work stoppage of
workers, whether or not such strike or
other labor dispute has been certified
by the Secretary of Labor, the alien
shall not be deemed to be failing to
maintain his or her status solely on account of past, present, or future participation in a strike or other labor

dispute involving a work stoppage of
workers but is subject to the following
terms and conditions:
(A) The alien shall remain subject to
all applicable provisions of the Immigration and Nationality Act and regulations promulgated thereunder in the
same manner as all other P nonimmigrant aliens;
(B) The status and authorized period
of stay of such an alien is not modified
or extended in any way by virtue of his
or her participation in a strike or other
labor dispute involving a work stoppage of workers; and
(C) Although participation by a P
nonimmigrant alien in a strike or
other labor dispute involving a work
stoppages of workers will not constitute a ground for deportation, an
alien who violates his or her status or
who remains in the United States after
his or her authorized period of stay has
expired, will be subject to deportation.
(17) Use of approval of notice, Form I–
797. The Service has notify the petitioner on Form I–797 whenever a visa
petition or an extension of a visa petition is approved under the P classification. The beneficiary of a P petition
who does not require a nonimmigrant
visa may present a copy of the approved notice at a Port-of-Entry to facilitate entry into the United States. A
beneficiary who is required to present a
visa for admission, and whose visa expired before the date of his or her intended return, may use Form I–797 to
apply for a new or revalidated visa during the validity period of the petition.
The copy of Form I–797 shall be retained by the beneficiary and present
during the validity of the petition
when reentering the United States to
resume the same employment with the
same petitioner.
(18) Return transportation requirement.
In the case of an alien who enters the
United
States
under
section
101(a)(15)(P) of the Act and whose employment terminates for reasons other
than voluntary resignation, the employer whose offer of employment
formed the basis of suh nonimmigrant
status and the petitioner are jointly
and severally liable for the reasonable
cost of return transporation of the
alien abroad. For the purposes of this
paragraph, the term ‘‘abroad’’ means

371

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00381

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

the alien’s last place of residence prior
to his or her entry into the United
States.
(q)
Cultural
visitors—(1)(i)
International cultural exchange visitors program. Paragraphs (q)(2) through (q)(11)
of this section provide the rules governing nonimmigrant aliens who are
visiting the United States temporarily
in an international cultural exchange
visitors program (Q–1).
(ii) Irish peace process cultural and
training program. Paragraph (q)(15) of
this section provides the rules governing nonimmigrant aliens who are
visiting the United States temporarily
under the Irish peace process cultural
and training program (Q–2) and their
dependents (Q–3).
(iii) Definitions. As used in this section:
Country of nationality means the
country of which the participant was a
national at the time of the petition
seeking international cultural exchange visitor status for him or her.
Doing business means the regular,
systematic, and continuous provision
of goods and/or services (including lectures, seminars and other types of cultural programs) by a qualified employer which has employees, and does
not include the mere presence of an
agent or office of the qualifying employer.
Duration of program means the time
in which a qualified employer is conducting an approved international cultural exchange program in the manner
as established by the employer’s petition for program approval, provided
that the period of time does not exceed
15 months.
International cultural exchange visitor
means an alien who has a residence in
a foreign country which he or she has
no intention of abandoning, and who is
coming temporarily to the United
States to take part in an international
cultural exchange program approved by
the Attorney General.
Petitioner means the employer or its
designated agent who has been employed by the qualified employer on a
permanent basis in an executive or
managerial capacity. The designated
agent must be a United States citizen,
an alien lawfully admitted for permanent residence, or an alien provided

temporary residence status under sections 210 or 245A of the Act.
Qualified employer means a United
States or foreign firm, corporation,
non-profit organization, or other legal
entity (including its U.S. branches,
subsidiaries, affiliates, and franchises)
which administers an international
cultural exchange program designated
by the Attorney General in accordance
with
the
provisions
of
section
101(a)(15)(Q)(i) of the Act.
(2) Admission of international cultural
exchange visitor—(i) General. A nonimmigrant alien may be authorized to
enter the United States as a participant in an international cultural exchange program approved by the Attorney General for the purpose of providing practical training, employment,
and the sharing of the history, culture,
and traditions of the country of the
alien’s nationality. The period of admission is the duration of the approved
international cultural exchange program or fifteen (15) months, whichever
is shorter. A nonimmigrant alien admitted under this provision is classifiable as an international cultural exchange visitor in Q–1 status.
(ii) Limitation on admission. Any alien
who has been admitted into the United
States as an international cultural exchange
visitor
under
section
101(a)(15)(Q)(i) of the Act shall not be
readmittted in Q–1 status unless the
alien has resided and been physically
present outside the United States for
the immediate prior year. Brief trips to
the United States for pleasure or business during the immediate prior year
do not break the continuity of the oneyear foreign residency.
(3) International cultural exchange program—(i) General. A United States employer shall petition the Attorney General on Form I–129, Petition for a Nonimmigrant Worker, for approval of an
international cultural exchange program which is designed to provide an
opportunity for the American public to
learn about foreign cultures. The
United States employer must simultaneously petition on the same Form I–
129 for the authorization for one or
more individually identified nonimmigrant aliens to be admitted in Q–

372

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00382

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

1 status. These aliens are to be admitted to engage in employment or training of which the essential element is
the sharing with the American public,
or a segment of the public sharing a
common cultural interest, of the culture of the alien’s country of nationality. The international cultural exchange visitor’s eligibility for admission will be considered only if the
international cultural exchange program is approved.
(ii) Program validity. Each petition for
an international cultural exchange program will be approved for the duration
of the program, which may not exceed
15 months, plus 30 days to allow time
for the participants to make travel arrangements. Subsequent to the approval of the initial petition, a new petition must be filed each time the
qualified employer wishes to bring in
additional cultural visitors. A qualified
employer may replace or substitute a
participant named on a previously approved petition for the remainder of
the program in accordance with paragraph (q)(6) of this section. The replacement or substituting alien may be
admitted in Q–1 status until the expiration date of the approved petition.
(iii) Requirements for program approval. An international cultural exchange program must meet all of the
following requirements:
(A) Accessibility to the public. The
international cultural exchange program must take place in a school, museum, business or other establishment
where the American public, or a segment of the public sharing a common
cultural interest, is exposed to aspects
of a foreign culture as part of a structured program. Activities that take
place in a private home or an isolated
business setting to which the American
public, or a segment of the public sharing a common cultural interest, does
not have direct access do not qualify.
(B) Cultural component. The international cultural exchange program
must have a cultural component which
is an essential and integral part of the
international cultural exchange visitor’s employment or training. The cultural component must be designed, on
the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the inter-

national cultural exchange visitor’s
country of nationality. A cultural component may include structured instructional activities such as seminars,
courses, lecture series, or language
camps.
(C) Work component. The international cultural exchange visitor’s
employment or training in the United
States may not be independent of the
cultural component of the international cultural exchange program.
The work component must serve as the
vehicle to achieve the objectives of the
cultural component. The sharing of the
culture of the international cultural
exchange visitor’s country of nationality must result from his or her employment or training with the qualified
employer in the United States.
(iv) Requirements for international cultural exchange visitors. To be eligible for
international cultural exchange visitor
status, an alien must be a bona fide
nonimmigrant who:
(A) Is at least 18 years of age at the
time the petition is filed;
(B) Is qualified to perform the service
or labor or receive the type of training
stated in the petition;
(C) Has the ability to communicate
effectively about the cultural attributes of his or her country of nationality to the American public; and
(D) Has resided and been physically
present outside of the United States for
the immediate prior year, if he or she
was previously admitted as an international cultural exchange visitor.
(4) Supporting documentation—(i) Documentation by the employer. To establish
eligibility as a qualified employer, the
petitioner must submit with the completed Form I–129 appropriate evidence
that the employer:
(A) Maintains an established international cultural exchange program in
accordance with the requirements set
forth in paragraph (q)(3) of this section;
(B) Has designated a qualified employee as a representative who will be
responsible for administering the international cultural exchange program
and who will serve as liaison with the
Immigration and Naturalization Service;
(C) Is actively doing business in the
United States;

373

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00383

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(D) Will offer the alien(s) wages and
working conditions comparable to
those accorded local domestic workers
similarly employed; and
(E) Has the financial ability to remunerate the participant(s).
(ii) Certification by petitioner. (A) The
petitioner must give the date of birth,
country of nationality, level of education, position title, and a brief job
description for each international cultural exchange visitor included in the
petition. The petitioner must verify
and certify that the prospective participants are qualified to perform the
service or labor, or receive the type of
training, described in the petition.
(B) The petitioner must report the
international cultural exchange visitors’ wages and certify that such cultural exchange visitors are offered
wages and working conditions comparable to those accorded to local domestic workers similarly employed.
(iii) Supporting documentation as
prescribed in paragraphs (q)(4)(i) and
(q)(4)(ii) of this section must accompany a petition filed on Form I–129 in
all cases except where the employer
files multiple petitions in the same calendar year. When petitioning to repeat
a previously approved international
cultural exchange program, a copy of
the initial program approval notice
may be submitted in lieu of the documentation required under paragraph
(q)(4)(i) of this section. The Service
will request additional documentation
only when clarification is needed.
(5) Filing of petitions for international
cultural exchange visitor program—(i)
General. A United States employer
seeking to bring in international cultural exchange visitors must file a petition on Form I-129, Petition for a
Nonimmigrant Worker, with the applicable fee, along with appropriate documentation. A new petition on Form I–
129, with the applicable fee, must be
filed with the appropriate service center each time a qualified employer
wants to bring in additional international cultural exchange visitors.
Each person named on an approved petition will be admitted only for the duration of the approved program. Replacement or substitution may be
made for any person named on an approved petition as provided in para-

graph (q)(6) of this section, but only for
the remainder of the approved program.
(ii) Petition for multiple participants.
The petitioner may include more than
one participant on the petition. The petitioner shall include the name, date of
birth, nationality, and other identifying information required on the petition for each participant. The petitioner must also indicate the United
States consulate at which each participant will apply for a Q–1 visa. For participants who are visa-exempt under 8
CFR 212.1(a), the petitioner must indicate the port of entry at which each
participant will apply for admission to
the United States.
(iii) Service, labor, or training in more
than one location. A petition which requires the international cultural exchange visitor to engage in employment or training (with the same employer) in more than one location must
include an itinerary with the dates and
locations of the services, labor, or
training.
(iv) Services, labor, or training for more
than one employer. If the international
cultural exchange visitor will perform
services or labor for, or receive training from, more than one employer,
each employer must file a separate petition. The international cultural exchange visitor may work part-time for
multiple employers provided that each
employer has an approved petition for
the alien.
(v) Change of employers. If an international cultural exchange visitor is in
the United States under section
101(a)(15)(Q)(i) of the Act and decides to
change employers, the new employer
must file a petition. However, the total
period of time the international cultural exchange visitor may stay in the
United States remains limited to fifteen (15) months.
(6) Substitution or replacements of participants in an international cultural exchange visitor program. The petitioner
may substitute for or replace a person
named on a previously approved petition for the remainder of the program
without filing a new Form I–129. The

374

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00384

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

substituting international cultural exchange visitor must meet the qualification requirements prescribed in paragraph (q)(3)(iv) of this section. To request substitution or replacement, the
petitioner shall, by letter, notify the
consular office at which the alien will
apply for a visa or, in the case of visaexempt aliens, the Service office at the
port of entry where the alien will apply
for admission. A copy of the petition’s
approval notice must be included with
the letter. The petitioner must state
the date of birth, country of nationality, level of education, and position
title of each prospective international
cultural exchange visitor and must certify that each is qualified to perform
the service or labor or receive the type
of training described in the approved
petition. The petitioner must also indicate each international cultural exchange visitor’s wages and certify that
the international cultural exchange
visitor is offered wages and working
conditions comparable to those accorded to local domestic workers in accordance with paragraph (q)(11)(ii) of
this section.
(7) Approval of petition for international cultural exchange visitor program. (i) The director shall consider all
the evidence submitted and request
other evidence as he or she may deem
necessary.
(ii) The director shall notify the petitioner and the appropriate United
States consulate(s) of the approval of a
petition. For participants who are visaexempt under 8 CFR 212.1(a), the director shall give notice of the approval to
the director of the port of entry at
which each such participant will apply
for admission to the United States. The
notice of approval shall include the
name of the international cultural exchange visitors, their classification,
and the petition’s period of validity.
(iii) An approved petition for an alien
classified under section 101(a)(15)(Q)(i)
of the Act is valid for the length of the
approved program or fifteen (15)
months, whichever is shorter.
(iv) A petition shall not be approved
for an alien who has an aggregate of
fifteen (15) months in the United States
under section 101(a)(15)(Q)(i) of the Act,
unless the alien has resided and been

physically present outside the United
States for the immediate prior year.
(8) Denial of the petition—(i) Notice of
denial. The petitioner shall be notified
of the denial of a petition, the reasons
for the denial, and the right to appeal
the denial under part 103 of this chapter.
(ii) Multiple participants. A petition
for multiple international cultural exchange visitors may be denied in whole
or in part.
(9) Revocation of approval of petition—
(i) General. The petitioner shall immediately notify the appropriate Service
center of any changes in the employment of a participant which would affect
eligibility
under
section
101(a)(15)(Q)(i) of the Act.
(ii) Automatic revocation. The approval of any petition is automatically
revoked if the qualifying employer
goes out of business, files a written
withdrawal of the petition, or terminates the approved international cultural exchange program prior to its expiration date. No further action or notice by the Service is necessary in the
case of automatic revocation. In any
other case, the Service shall follow the
revocation procedures in paragraphs
(q)(9) (iii) through (v) of this section.
(iii) Revocation on notice. The director
shall send the petitioner a notice of intent to revoke the petition in whole or
in part if he or she finds that:
(A) The international cultural exchange visitor is no longer employed
by the petitioner in the capacity specified in the petition, or if the international cultural exchange visitor is no
longer receiving training as specified
in the petition;
(B) The statement of facts contained
in the petition was not true and correct;
(C) The petitioner violated the terms
and conditions of the approved petition; or
(D) The Service approved the petition
in error.
(iv) Notice and decision. The notice of
intent to revoke shall contain a detailed statement of the grounds for the
revocation and the period of time allowed for the petitioner’s rebuttal. The
petitioner may submit evidence in rebuttal within 30 days of receipt of the
notice. The director shall consider all

375

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00385

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

relevant evidence presented in deciding
whether to revoke the petition in
whole or in part. If the petition is revoked in part, the remainder of the petition shall remain approved and a revised approval notice shall be sent to
the petitioner with the revocation notice.
(v) Appeal of a revocation of a petition.
Revocation with notice of a petition in
whole or in part may be appealed to
the Associate Commissioner for Examinations under part 103 of this chapter.
Automatic revocation may not be appealed.
(10) Extension of stay. An alien’s total
period of stay in the United States
under section 101(a)(15)(Q)(i) of the Act
cannot exceed fifteen (15) months. The
authorized stay of an international cultural exchange visitor may be extended
within the 15-month limit if he or she
is the beneficiary of a new petition
filed in accordance with paragraph
(q)(3) of this section. The new petition,
if filed by the same employer, should
include a copy of the previous petition’s approval notice and a letter from
the petitioner indicating any terms
and conditions of the previous petition
that have changed.
(11) Employment provisions—(i) General. An alien classified under section
101(a)(15)(Q)(i) of the Act may be employed only by the qualified employer
through which the alien attained Q–1
nonimmigrant status. An alien in this
class is not required to apply for an
employment authorization document.
Employment outside the specific program violates the terms of the alien’s
Q–1 nonimmigrant status within the
meaning of section 237(a)(1)(C)(i) of the
Act.
(ii) Wages and working conditions. The
wages and working conditions of an
international cultural exchange visitor
must be comparable to those accorded
to domestic workers similarly employed in the geographical area of the
alien’s employment. The employer
must certify on the petition that such
conditions are met as in accordance
with paragraph (q)(4)(iii)(B) of this section.
(12)–(14) [Reserved]
(15) Irish peace process cultural and
training program visitors (Q–2) and their
dependents (Q–3)—(i) General. An Irish

Peace Process Cultural and Training
Program (IPPCTP) visitor is a nonimmigrant alien coming to the United
States temporarily to gain or upgrade
work skills through training and temporary employment and to experience
living in a diverse and peaceful environment.
(ii) What are the requirements for participation? (A) The principal alien must
have been physically resident in either
Northern Ireland or the counties of
Louth, Monaghan, Cavan, Leitrim,
Sligo, and Donegal in the Republic of
Ireland, for at least 3 months immediately preceding application to the
program and must show that he or she
has no intention of abandoning this
residence.
(B) The principal alien must be between the ages of 18 and 35.
(C) The principal alien must:
(1) Be unemployed for at least 3
months, or have completed or currently be enrolled in a training/employment program sponsored by the
Training and Employment Agency of
Northern Ireland (T&EA) or by the
Training and Employment Authority
of Ireland (FAS), or by other such publicly funded programs, or have been
made redundant from employment (i.e.,
lost their job), or have received a notice of redundancy (termination of employment); or
(2) Be a currently employed person
whose employer has nominated him/her
to participate in this program for additional training or job experience that
is to benefit both the participant and
his/her employer upon returning home.
(D) The principal alien must intend
to come to the United States temporarily, for a period not to exceed 36
months, in order to obtain training,
employment, and the experience of coexistence and conflict resolution in a
diverse society.
(iii) Are there any limitations on admissions? (A) No more than 4,000 participants, including spouses and any minor
children of principal aliens, may be admitted annually for 3 consecutive program years, beginning with FY 2000
(October 1, 1999, through September 30,
2000).
(B) For each alien admitted under
section 101(a)(15)(Q)(ii) of the Act, the

376

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00386

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

number of aliens admitted under section 101(a)(15)(H)(ii)(b) of the Act is reduced by one for that fiscal year or the
subsequent fiscal year.
(C) This program expires on October
1, 2005.
(iv) What are the requirements for initial admission to the United States? (A)
Principal aliens, their spouses, and
minor children of principal aliens must
present valid passports and either a Q–
2 or Q–3 visa at the time of inspection.
(B) Initial admission for those principal and dependent aliens in this program who received their visas at either
the U.S. Embassy in Dublin or the U.S.
Consulate in Belfast must take place at
the Service’s Pre-Flight Inspection facilities at either the Shannon or Dublin airports in the Republic of Ireland.
(C) The principal alien will be required to present a Certification Letter
issued by the Department of State’s
(DOS’) Program Administrator documenting him or her as an individual selected for participation in the IPPCTP.
Eligible dependents may be requested
to present written documentation certifying their relationship to the principal.
(v) May the principal alien and dependents make brief visits outside the United
States? (A) The principal alien, spouse,
and any minor children of the principal
alien may make brief departures, for
periods not to exceed 3 consecutive
months, and may be readmitted without having to obtain a new visa. However, such periods of time spent outside
the United States will not be added to
the end of stay, which is not to exceed
a total of 3 years from the initial date
of entry of the principal alien.
(B) Those participants or dependents
who remain outside the United States
in excess of 3 consecutive months will
not be readmitted by the Service on
their initial Q–2 or Q–3 visa. Instead,
any such individual and eligible dependents wishing to rejoin the program
will be required to reapply to the program and be in receipt of a new Q–2 or
Q–3 visa and a Certification Letter
issued by the DOS’ Program Administrator, prior to any subsequent admission to the United States.
(vi) How long may a Q–2 or Q–3 visa
holder remain in the United States under
this program? (A) The principal alien

and any accompanying, or followingto-join, spouse or minor children of the
principal alien are admitted for the duration of the principal alien’s planned
cultural and training program or 36
months, whichever is shorter.
(B) Those participants and eligible
dependents admitted for specific periods less than 36 months may extend
their period of stay through the Service so that their total period of stay is
36 months, provided the extension of
stay is related to employment or training certified by the DOS’ Program Administrator.
(vii) How is employment authorized
under this program? (A) Following endorsement of his/her Form I–94, Arrival-Departure Record, by a Service
officer, any principal alien admitted
under section 101(a)(15)(Q)(ii) of the Act
is permitted to work for an employer
or employers listed on the Certification Letter issued by the DOS’ Program Administrator.
(B) The accompanying spouse and
minor children of the principal alien
may not accept employment, unless
the spouse has also been designated as
a principal alien (Q–2) in this program
and has been issued a Certification Letter by the DOS’ Program Administrator.
(viii) May the principal alien change
employers? Principal aliens wishing to
change employers must request such a
change through the DOS’ Program Administrator to the Service. Following
review and consideration of the request
by the Service, the Service will inform
the participant of the decision. The
Service will grant such approval of employers only if the new employer has
been approved by DOS in accordance
with its regulations and such approval
is communicated to the Service
through the DOS’ Program Administrator. If approved, the participant’s
Form I–94 will be annotated to show
the new employer. If denied, there is no
appeal under this section.
(ix) May the principal alien hold other
jobs during his/her U.S. visit? No; any
principal alien classified as an Irish
peace process cultural and training
program visitor may only engage in
employment that has been certified by
the DOS’ Program Administrator and
approved by the DOS or the Service as

377

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00387

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

endorsed on the Form I–94. An alien
who engages in unauthorized employment violates the terms of the Q-2 visa
and will be considered to have violated
section 237(a)(1)(C)(i) of the Act.
(x) What happens if a principal alien
loses his/her job? A principal alien, who
loses his or her job, will have 30 days
from his/her last date of employment
to locate appropriate employment or
training, to have the job offer certified
by the DOS’ Program Administrator in
accordance with the DOS’ regulations
and to have it approved by the Service.
If appropriate employment or training
cannot be found within this 30-day-period, the principal alien and any accompany family members will be required to depart the United States.
(r) Religious workers. This paragraph
governs classification of an alien as a
nonimmigrant religious worker (R–1).
(1) To be approved for temporary admission to the United States, or extension and maintenance of status, for the
purpose of conducting the activities of
a religious worker for a period not to
exceed five years, an alien must:
(i) Be a member of a religious denomination having a bona fide nonprofit religious organization in the
United States for at least two years
immediately preceding the time of application for admission;
(ii) Be coming to the United States
to work at least in a part time position
(average of at least 20 hours per week);
(iii) Be coming solely as a minister
or to perform a religious vocation or
occupation as defined in paragraph
(r)(3) of this section (in either a professional or nonprofessional capacity);
(iv) Be coming to or remaining in the
United States at the request of the petitioner to work for the petitioner; and
(v) Not work in the United States in
any other capacity, except as provided
in paragraph (r)(2) of this section.
(2) An alien may work for more than
one qualifying employer as long as
each qualifying employer submits a petition plus all additional required documentation as prescribed by USCIS
regulations.
(3) Definitions. As used in this section, the term:
Bona fide non-profit religious organization in the United States means a religious organization exempt from tax-

ation as described in section 501(c)(3) of
the Internal Revenue Code of 1986, subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code, and possessing a
currently valid determination letter
from the Internal Revenue Service
(IRS) confirming such exemption.
Bona fide organization which is affiliated with the religious denomination
means an organization which is closely
associated with the religious denomination and which is exempt from taxation as described in section 501(c)(3) of
the Internal Revenue Code of 1986, or
subsequent amendment or equivalent
sections of prior enactments of the Internal Revenue Code, and possessing a
currently valid determination letter
from the IRS confirming such exemption.
Denominational membership means
membership during at least the twoyear period immediately preceding the
filing date of the petition, in the same
type of religious denomination as the
United States religious organization
where the alien will work.
Minister means an individual who:
(A) Is fully authorized by a religious
denomination, and fully trained according to the denomination’s standards, to conduct religious worship and
perform other duties usually performed
by authorized members of the clergy of
that denomination;
(B) Is not a lay preacher or a person
not authorized to perform duties usually performed by clergy;
(C) Performs activities with a rational relationship to the religious calling
of the minister; and
(D) Works solely as a minister in the
United States which may include administrative duties incidental to the
duties of a minister.
Petition means USCIS Form I–129, Petition for a Nonimmigrant Worker, a
successor form, or any other form as
may be prescribed by USCIS, along
with a supplement containing attestations required by this section, the fee
specified in 8 CFR 103.7(b)(1), and supporting evidence required by this part.
Religious denomination means a religious group or community of believers
that is governed or administered under

378

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00388

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

a common type of ecclesiastical government and includes one or more of
the following:
(A) A recognized common creed or
statement of faith shared among the
denomination’s members;
(B) A common form of worship;
(C) A common formal code of doctrine and discipline;
(D) Common religious services and
ceremonies;
(E) Common established places of religious worship or religious congregations; or
(F) Comparable indicia of a bona fide
religious denomination.
Religious occupation means an occupation that meets all of the following requirements:
(A) The duties must primarily relate
to a traditional religious function and
be recognized as a religious occupation
within the denomination;
(B) The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious
creed and beliefs of the denomination;
(C) The duties do not include positions which are primarily administrative or support such as janitors, maintenance workers, clerical employees,
fund raisers, persons solely involved in
the solicitation of donations, or similar
positions, although limited administrative duties that are only incidental to
religious functions are permissible; and
(D) Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status.
Religious vocation means a formal
lifetime commitment, through vows,
investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class
of individuals whose lives are dedicated
to religious practices and functions, as
distinguished from the secular members of the religion. Examples of vocations include nuns, monks, and religious brothers and sisters.
Religious worker means an individual
engaged in and, according to the denomination’s standards, qualified for a
religious
occupation
or
vocation,
whether or not in a professional capacity, or as a minister.

Tax-exempt organization means an organization that has received a determination letter from the IRS establishing that it, or a group it belongs to,
is exempt from taxation in accordance
with sections 501(c)(3) of the Internal
Revenue Code of 1986, or subsequent
amendments or equivalent sections of
prior enactments of the Internal Revenue Code.
(4) Requirements for admission/change
of status; time limits—(i) Principal applicant (R–1 nonimmigrant). If otherwise
admissible, an alien who meets the requirements of section 101(a)(15)(R) of
the Act may be admitted as an R–1
alien or changed to R–1 status for an
initial period of up to 30 months from
date of initial admission. If visa-exempt, the alien must present original
documentation of the petition approval.
(ii) Spouse and children (R–2 status).
The spouse and unmarried children
under the age of 21 of an R–1 alien may
be accompanying or following to join
the R–1 alien, subject to the following
conditions:
(A) R–2 status is granted for the same
period of time and subject to the same
limits as the principal, regardless of
the time such spouse and children may
have spent in the United States in R–2
status;
(B) Neither the spouse nor children
may accept employment while in the
United States in R–2 status; and
(C) The primary purpose of the
spouse or children coming to the
United States must be to join or accompany the principal R–1 alien.
(5) Extension of stay or readmission. An
R–1 alien who is maintaining status or
is seeking readmission and who satisfies the eligibility requirements of this
section may be granted an extension of
R–1 stay or readmission in R–1 status
for the validity period of the petition,
up to 30 months, provided the total period of time spent in R–1 status does
not exceed a maximum of five years. A
Petition for a Nonimmigrant Worker
to request an extension of R–1 status
must be filed by the employer with a
supplement prescribed by USCIS containing attestations required by this
section, the fee specified in 8 CFR
103.7(b)(1), and the supporting evidence,

379

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00389

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

in accordance with the applicable form
instructions.
(6) Limitation on total stay. An alien
who has spent five years in the United
States in R–1 status may not be readmitted to or receive an extension of
stay in the United States under the R
visa classification unless the alien has
resided abroad and has been physically
present outside the United States for
the immediate prior year. The limitations in this paragraph shall not apply
to R–1 aliens who did not reside continually in the United States and whose
employment in the United States was
seasonal or intermittent or was for an
aggregate of six months or less per
year. In addition, the limitations shall
not apply to aliens who reside abroad
and regularly commute to the United
States to engage in part-time employment. To qualify for this exception, the
petitioner and the alien must provide
clear and convincing proof that the
alien qualifies for such an exception.
Such proof shall consist of evidence
such as arrival and departure records,
transcripts of processed income tax returns, and records of employment
abroad.
(7) Jurisdiction and procedures for obtaining R–1 status. An employer in the
United States seeking to employ a religious worker, by initial petition or by
change of status, shall file a petition in
accordance with the applicable form
instructions.
(8) Attestation. An authorized official
of the prospective employer of an R–1
alien must complete, sign and date an
attestation prescribed by USCIS and
submit it along with the petition. The
prospective employer must specifically
attest to all of the following:
(i) That the prospective employer is a
bona fide non-profit religious organization or a bona fide organization which
is affiliated with the religious denomination and is exempt from taxation;
(ii) That the alien has been a member
of the denomination for at least two
years and that the alien is otherwise
qualified for the position offered;
(iii) The number of members of the
prospective employer’s organization;
(iv) The number of employees who
work at the same location where the
beneficiary will be employed and a
summary of the type of responsibilities

of those employees. USCIS may request
a list of all employees, their titles, and
a brief description of their duties at its
discretion;
(v) The number of aliens holding special immigrant or nonimmigrant religious worker status currently employed or employed within the past five
years by the prospective employer’s organization;
(vi) The number of special immigrant
religious worker and nonimmigrant religious worker petitions and applications filed by or on behalf of any aliens
for employment by the prospective employer in the past five years;
(vii) The title of the position offered
to the alien and a detailed description
of the alien’s proposed daily duties;
(viii) Whether the alien will receive
salaried or non-salaried compensation
and the details of such compensation;
(ix) That the alien will be employed
at least 20 hours per week;
(x) The specific location(s) of the proposed employment; and
(xi) That the alien will not be engaged in secular employment.
(9) Evidence relating to the petitioning
organization. A petition shall include
the following initial evidence relating
to the petitioning organization:
(i) A currently valid determination
letter from the IRS showing that the
organization is a tax-exempt organization; or
(ii) For a religious organization that
is recognized as tax-exempt under a
group tax-exemption, a currently valid
determination letter from the IRS establishing that the group is tax-exempt; or
(iii) For a bona fide organization that
is affiliated with the religious denomination, if the organization was granted
tax-exempt
status
under
section
501(c)(3), or subsequent amendment or
equivalent sections of prior enactments, of the Internal Revenue Code,
as something other than a religious organization:
(A) A currently valid determination
letter from the IRS establishing that
the organization is a tax-exempt organization;
(B) Documentation that establishes
the religious nature and purpose of the

380

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00390

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the
organization;
(C) Organizational literature, such as
books, articles, brochures, calendars,
flyers, and other literature describing
the religious purpose and nature of the
activities of the organization; and
(D) A religious denomination certification. The religious organization
must complete, sign and date a statement certifying that the petitioning
organization is affiliated with the religious denomination. The statement
must be submitted by the petitioner
along with the petition.
(10) Evidence relating to the qualifications of a minister. If the alien is a minister, the petitioner must submit the
following:
(i) A copy of the alien’s certificate of
ordination or similar documents reflecting acceptance of the alien’s qualifications as a minister in the religious
denomination; and
(ii) Documents reflecting acceptance
of the alien’s qualifications as a minister in the religious denomination, as
well as evidence that the alien has
completed any course of prescribed
theological education at an accredited
theological institution normally required or recognized by that religious
denomination, including transcripts,
curriculum, and documentation that
establishes that the theological education is accredited by the denomination, or
(iii) For denominations that do not
require a prescribed theological education, evidence of:
(A) The denomination’s requirements
for ordination to minister;
(B) The duties allowed to be performed by virtue of ordination;
(C) The denomination’s levels of ordination, if any; and
(D) The alien’s completion of the denomination’s requirements for ordination.
(11) Evidence relating to compensation.
Initial evidence must state how the petitioner intends to compensate the
alien, including specific monetary or
in-kind compensation, or whether the
alien intends to be self-supporting. In
either case, the petitioner must submit
verifiable evidence explaining how the

petitioner will compensate the alien or
how the alien will be self-supporting.
Compensation may include:
(i) Salaried or non-salaried compensation. Evidence of compensation may include past evidence of compensation
for similar positions; budgets showing
monies set aside for salaries, leases,
etc.; verifiable documentation that
room and board will be provided; or
other evidence acceptable to USCIS.
IRS documentation, such as IRS Form
W–2 or certified tax returns, must be
submitted, if available. If IRS documentation is unavailable, the petitioner must submit an explanation for
the absence of IRS documentation,
along with comparable, verifiable documentation.
(ii) Self support. (A) If the alien will
be self-supporting, the petitioner must
submit documentation establishing
that the position the alien will hold is
part of an established program for temporary,
uncompensated
missionary
work, which is part of a broader international program of missionary work
sponsored by the denomination.
(B) An established program for temporary, uncompensated work is defined
to be a missionary program in which:
(1) Foreign workers, whether compensated or uncompensated, have previously participated in R–1 status;
(2) Missionary workers are traditionally uncompensated;
(3) The organization provides formal
training for missionaries; and
(4) Participation in such missionary
work is an established element of religious development in that denomination.
(C) The petitioner must submit evidence demonstrating:
(1) That the organization has an established program for temporary, uncompensated missionary work;
(2) That the denomination maintains
missionary programs both in the
United states and abroad;
(3) The religious worker’s acceptance
into the missionary program;
(4) The religious duties and responsibilities associated with the traditionally uncompensated missionary work;
and
(5) Copies of the alien’s bank records,
budgets documenting the sources of

381

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00391

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

self-support (including personal or family savings, room and board with host
families in the United States, donations from the denomination’s churches), or other verifiable evidence acceptable to USCIS.
(12) Evidence of previous R–1 employment. Any request for an extension of
stay as an R–1 must include initial evidence of the previous R–1 employment.
If the beneficiary:
(i) Received salaried compensation,
the petitioner must submit IRS documentation that the alien received a
salary, such as an IRS Form W–2 or
certified copies of filed income tax returns, reflecting such work and compensation for the preceding two years.
(ii) Received non-salaried compensation, the petitioner must submit IRS
documentation of the non-salaried
compensation if available. If IRS documentation is unavailable, an explanation for the absence of IRS documentation must be provided, and the
petitioner must provide verifiable evidence of all financial support, including stipends, room and board, or other
support for the beneficiary by submitting a description of the location where
the beneficiary lived, a lease to establish where the beneficiary lived, or
other evidence acceptable to USCIS.
(iii) Received no salary but provided
for his or her own support, and that of
any dependents, the petitioner must
show how support was maintained by
submitting with the petition verifiable
documents such as audited financial
statements,
financial
institution
records, brokerage account statements,
trust documents signed by an attorney,
or other evidence acceptable to USCIS.
(13) Change or addition of employers.
An R–1 alien may not be compensated
for work for any religious organization
other than the one for which a petition
has been approved or the alien will be
out of status. A different or additional
employer seeking to employ the alien
may obtain prior approval of such employment through the filing of a separate petition and appropriate supplement, supporting documents, and fee
prescribed in 8 CFR 103.7(b)(1).
(14) Employer obligations. When an R–
1 alien is working less than the required number of hours or has been released from or has otherwise termi-

nated employment before the expiration of a period of authorized R–1 stay,
the R–1 alien’s approved employer
must notify DHS within 14 days using
procedures set forth in the instructions
to the petition or otherwise prescribed
by USCIS on the USCIS Internet Web
site at www.uscis.gov.
(15) Nonimmigrant intent. An alien
classified under section 101(a)(15)(R) of
the Act shall maintain an intention to
depart the United States upon the expiration or termination of R–1 or R–2 status. However, a nonimmigrant petition, application for initial admission,
change of status, or extension of stay
in R classification may not be denied
solely on the basis of a filed or an approved request for permanent labor
certification or a filed or approved immigrant visa preference petition.
(16)
Inspections,
evaluations,
verifications, and compliance reviews.
The supporting evidence submitted
may be verified by USCIS through any
means determined appropriate by
USCIS, up to and including an on-site
inspection of the petitioning organization. The inspection may include a
tour of the organization’s facilities, an
interview with the organization’s officials, a review of selected organization
records relating to compliance with
immigration laws and regulations, and
an interview with any other individuals or review of any other records
that the USCIS considers pertinent to
the integrity of the organization. An
inspection may include the organization headquarters, or satellite locations, or the work locations planned
for the applicable employee. If USCIS
decides to conduct a pre-approval inspection, satisfactory completion of
such inspection will be a condition for
approval of any petition.
(17) Denial and appeal of petition.
USCIS will provide written notification of the reasons for the denial under
8 CFR 103.3(a)(1). The petitioner may
appeal the denial under 8 CFR 103.3.
(18) Revocation of approved petitions—
(i) Director discretion. The director may
revoke a petition at any time, even
after the expiration of the petition.
(ii) Automatic revocation. The approval of any petition is automatically
revoked if the petitioner ceases to

382

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00392

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

exist or files a written withdrawal of
the petition.
(iii) Revocation on notice—(A) Grounds
for revocation. The director shall send
to the petitioner a notice of intent to
revoke the petition in relevant part if
he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
(2) The statement of facts contained
in the petition was not true and correct;
(3) The petitioner violated terms and
conditions of the approved petition;
(4) The petitioner violated requirements of section 101(a)(15)(R) of the Act
or paragraph (r) of this section; or
(5) The approval of the petition violated paragraph (r) of this section or
involved gross error.
(B) Notice and decision. The notice of
intent to revoke shall contain a detailed statement of the grounds for the
revocation and the time period allowed
for the petitioner’s rebuttal. The petitioner may submit evidence in rebuttal
within 30 days of receipt of the notice.
The director shall consider all relevant
evidence presented in deciding whether
to revoke the petition.
(19) Appeal of a revocation of a petition.
A petition that has been revoked on
notice in whole or in part may be appealed under 8 CFR 103.3. Automatic
revocations may not be appealed.
(s) NATO nonimmigrant aliens—(1)
General—(i) Background. The North Atlantic Treaty Organization (NATO) is
constituted of nations signatory to the
North Atlantic Treaty. The Agreement
Between the Parties to the North Atlantic Treaty Regarding the Status of
Their Forces, signed in London, June
1951 (NATO Status of Forces Agreement), is the agreement between those
nations that defines the terms of the
status of their armed forces while serving abroad.
(A) Nonimmigrant aliens classified as
NATO–1 through NATO–5 are officials,
employees, or persons associated with
NATO, and members of their immediate families, who may enter the
United States in accordance with the
NATO Status of Forces Agreement or
the Protocol on the Status of International Military Headquarters set up
pursuant to the North Atlantic Treaty

(Paris Protocol). The following specific
classifications shall be assigned to such
NATO nonimmigrants:
(1) NATO–1—A principal permanent
representative of a Member State to
NATO (including any of its subsidiary
bodies) resident in the United States
and resident members of permanent
representative’s official staff; Secretary General, Deputy Secretary General, Assistant Secretaries General and
Executive Secretary of NATO; other
permanent NATO officials of similar
rank; and the members of the immediate family of such persons.
(2) NATO–2—Other representatives of
Member States to NATO (including any
of its subsidiary bodies) including representatives, advisers and technical experts of delegations, and the members
of the immediate family of such persons; dependents of members of a force
entering in accordance with the provisions of the NATO Status of Forces
Agreement or in accordance with the
provisions of the Paris Protocol; members of such a force, if issued visas.
(3) NATO–3—Official clerical staff accompanying a representative of a Member State to NATO (including any of its
subsidiary bodies) and the members of
the immediate family of such persons.
(4) NATO–4—Officials of NATO (other
than those classifiable under NATO–1)
and the members of their immediate
family
(5) NATO–5—Experts, other than
NATO
officials
classifiable
under
NATO–4, employed on missions on behalf of NATO and their dependents.
(B) Nonimmigrant aliens classified as
NATO–6 are civilians, and members of
their immediate families, who may
enter the United States as employees
of a force entering in accordance with
the NATO Status of Forces Agreement,
or as members of a civilian component
attached to or employed by NATO
Headquarters, Supreme Allied Commander, Atlantic (SACLANT), set up
pursuant to the Paris Protocol.
(C) Nonimmigrant aliens classified as
NATO–7 are attendants, servants, or
personal employees of nonimmigrant
aliens classified as NATO–1, NATO–2,
NATO–3, NATO–4, NATO–5, and NATO–
6, who are authorized to work only for

383

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00393

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

the NATO–1 through NATO–6 nonimmigrant from whom they derive status, and members of their immediate
families.
(ii) Admission and extension of stay.
NATO–1, NATO–2, NATO–3, NATO–4,
and NATO–5 aliens are normally exempt from inspection under 8 CFR
235.1(c). NATO–6 aliens may be authorized admission for duration of status.
NATO–7 aliens may be admitted for not
more than 3 years and may be granted
extensions of temporary stay in increments of not more than 2 years. In addition, an application for extension of
temporary stay for a NATO–7 alien
must be accompanied by a statement
signed by the employing official stating that he or she intends to continue
to employ the NATO–7 applicant, describing the work the applicant will
perform, and acknowledging that this
is, and will be, the sole employment of
the NATO–7 applicant.
(2) Definition of a dependent of a
NATO–1, NATO–2, NATO–3, NATO–4,
NATO–5, or NATO–6. For purposes of
employment in the United States, the
term dependent of a NATO–1, NATO–2,
NATO–3, NATO–4, NATO–5, or NATO–6
principal alien, as used in this section,
means any of the following immediate
members of the family habitually residing in the same household as the
NATO–1, NATO–2, NATO–3, NATO–4,
NATO–5, or NATO–6 principal alien assigned to official duty in the United
States:
(i) Spouse;
(ii) Unmarried children under the age
of 21;
(iii) Unmarried sons or daughters
under the age of 23 who are in full-time
attendance as students at post-secondary educational institutions;
(iv) Unmarried sons or daughters
under the age of 25 who are in full-time
attendance as students at post-secondary educational institutions if a
formal bilateral employment agreement permitting their employment in
the United States was signed prior to
November 21, 1988, and such bilateral
employment agreements do not specify
under the age of 23 as the maximum
age for employment of such sons and
daughters;
(v) Unmarried sons or daughters who
are physically or mentally disabled to

the extent that they cannot adequately
care for themselves or cannot establish, maintain, or re-establish their
own households. The Service may require medical certification(s) as it
deems necessary to document such
mental or physical disability.
(3) Dependent employment requirements
based on formal bilateral employment
agreements and informal de facto reciprocal arrangements—(i) Formal bilateral
employment agreements. The Department of State’s Family Liaison office
(FLO) shall maintain all listing of
NATO Member States which have entered into formal bilateral employment
agreements that include NATO personnel. A dependent of a NATO–1,
NATO–2, NATO–3, NATO–4, NATO–5, or
NATO–6 principal alien assigned to official duty in the United States may
accept, or continue in, unrestricted
employment based on such formal bilateral agreement upon favorable recommendation by SACLANT, pursuant
to paragraph (s)(5) of this section, and
issuance of employment authorization
documentation by the Service in accordance with 8 CFR part 274a. The application procedures are set forth in
paragraph (s)(5) of this section.
(ii) Informal de facto reciprocal arrangements. For purposes of this section, an informal de facto reciprocal
arrangement exists when the Office of
the Secretary of Defense, Foreign Military Rights Affairs (OSD/FMRA), certifies, with State Department concurrence, that a NATO Member State allows appropriate employment in the
local economy for dependents of members of the force and members of the civilian component of the United States
assigned to duty in the NATO Member
State. OSD/FMRA and State’s FLO
shall maintain a listing of countries
with which such reciprocity exists. Dependents of a NATO–1, NATO–2, NATO–
3, NATO–4, NATO–5, or NATO–6 principal alien assigned to official duty in
the United States may be authorized to
accept, or continue in, employment
based upon informal de facto arrangements upon favorable recommendation
by SACLANT, pursuant to paragraph
(s)(5) of this section, and issuance of
employment authorization by the Service in accordance with 8 CFR part 274a.

384

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00394

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

Additionally, the application procedures set forth in paragraph (s)(5) of
this section must be complied with,
and the following conditions must be
met:
(A) Both the principal alien and the
dependent requesting employment are
maintaining NATO–1, NATO–2, NATO–
3, NATO–4, NATO–5, or NATO–6 status,
as appropriate;
(B) The principal alien’s total length
of assignment in the United States is
expected to last more than 6 months;
(C) Employment of a similar nature
for dependents of members of the force
and members of the civilian component
of the United States assigned to official duty in the NATO Member State
employing the principal alien is not
prohibited by the NATO Member State;
(D) The proposed employment is not
in an occupation listed in the Department of Labor’s Schedule B (20 CFR
part 656), or otherwise determined by
the Department of Labor to be one for
which there is an oversupply of qualified United States workers in the area
of proposed employment. This Schedule B restriction does not apply to a
dependent son or daughter who is a
full-time student if the employment is
part-time, consisting of not more than
20 hours per week, of if it is temporary
employment of not more than 12 weeks
during school holiday periods; and
(E) The proposed employment is not
contrary to the interest of the United
States. Employment contrary to the
interest of the United States includes,
but is not limited to, the employment
of NATO–1, NATO–2, NATO–3, NATO–4,
NATO–5, or NATO–6 dependents who
have criminal records; who have violated United States immigration laws
or regulations, or visa laws or regulations; who have worked illegally in the
United States; or who cannot establish
that they have paid taxes and social security on income from current or previous United States employment.
(iii) State’s FLO shall inform the
Service, by contacting Headquarters,
Adjudications, Attention: Chief, Business and Trade Services Branch, 425 I
Street, NW., Washington, DC 20536, of
any additions or changes to the formal
bilateral employment agreements and
informal de facto reciprocal arrangements.

(4) Applicability of a formal bilateral
agreement or an informal de facto arrangement for NATO–1, NATO–2, NATO–
3, NATO–4, NATO–5, or NATO–6 dependents. The applicability of a formal bilateral agreement shall be based on the
NATO Member State which employs
the principal alien and not on the nationality of the principal alien or dependent. The applicability of an informal de facto arrangement shall be
based on the NATO Member State
which employs the principal alien, and
the principal alien also must be a national of the NATO Member State
which employs him or her in the
United
States.
Dependents
of
SACLANT employees receive bilateral
agreement or de facto arrangement
employment privileges as appropriate
based upon the nationality of the
SACLANT employee (principal alien).
(5) Application procedures. The following procedures are required for dependent
employment
applications
under bilateral agreements and de
facto arrangements:
(i) The dependent of a NATO alien
shall submit a complete application for
employment authorization, including
Form I–765 and Form I–566, completed
in accordance with the instructions on,
or attached to, those forms. The complete application shall be submitted to
SACLANT for certification of the Form
I–566 and forwarding to the Service.
(ii) In a case where a bilateral dependent employment agreement containing a numerical limitation on the
number of dependents authorized to
work is applicable, the certifying officer of SACLANT shall not forward the
application for employment authorization to the Service unless, following
consultation with State’s Office of Protocol, the certifying officer has confirmed that this numerical limitation
has not been reached. The countries
with such limitations are indicated on
the bilateral/de facto dependent employment listing issued by State’s
FLO.
(iii) SACLANT shall keep copies of
each application and certified Form I–
566 for 3 years from the date of the certification.
(iv) A dependent applying under the
terms of a de facto arrangement must

385

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00395

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

also attach a statement from the prospective employer which includes the
dependent’s name, a description of the
position offered, the duties to be performed, the hours to be worked, the
salary offered, and verification that
the dependent possesses the qualifications for the position.
(v) A dependent applying under paragraph (s)(2) (iii) or (iv) of this section
must also submit a certified statement
from the post-secondary educational
institution confirming that he or she is
pursuing studies on a full-time basis.
(vi) A dependent applying under paragraph (s)(2)(v) of this section must also
submit medical certification regarding
his or her condition. The certification
should identify both the dependent and
the certifying physician, give the physician’s phone number, identify the
condition, describe the symptoms, provide a clear prognosis, and certify that
the dependent is unable to maintain a
home of his or her own.
(vii) The Service may require additional supporting documentation, but
only
after
consultation
with
SACLANT.
(6) Period of time for which employment
may be authorized. If approved, an application to accept or continue employment under this paragraph shall be
granted in increments of not more than
3 years.
(7) Income tax and Social Security liability. Dependents who are granted
employment authorization under this
paragraph are responsible for payment
of all Federal, state, and local income
taxes, employment and related taxes
and Social Security contributions on
any remuneration received.
(8) No appeal. There shall be no appeal from a denial of permission to accept or continue employment under
this paragraph.
(9) Unauthorized employment. An alien
classified as a NATO–1, NATO–2,
NATO–3, NATO–4, NATO–5, NATO–6, or
NATO–7 who is not a NATO principal
alien and who engages in employment
outside the scope of, or in a manner
contrary to, this paragraph may be
considered in violation of status pursuant to section 237(a)(1)(C)(i) of the Act.
A NATO principal alien in those classifications who engages in employment
outside the scope of his or her official

position may be considered in violation
of
status
pursuant
to
section
237(a)(1)(C)(i) of the Act.
(t) Alien witnesses and informants—(1)
Alien witness or informant in criminal
matter. An alien may be classified as an
S–5 alien witness or informant under
the provisions of section 101(a)(15)(S)(i)
of the Act if, in the exercise of discretion pursuant to an application on
Form I–854 by an interested federal or
state
law
enforcement
authority
(‘‘LEA’’), it is determined by the Commissioner that the alien:
(i) Possesses critical reliable information concerning a criminal organization or enterprise;
(ii) Is willing to supply, or has supplied, such information to federal or
state LEA; and
(iii) Is essential to the success of an
authorized criminal investigation or
the successful prosecution of an individual involved in the criminal organization or enterprise.
(2) Alien witness or informant in
counterterrorism matter. An alien may be
classified as an S–6 alien counterterrorism witness or informant under the
provisions of section 101(a)(15)(S)(ii) of
the Act if it is determined by the Secretary of State and the Commissioner
acting jointly, in the exercise of their
discretion, pursuant to an application
on Form I–854 by an interested federal
LEA, that the alien:
(i) Possesses critical reliable information concerning a terrorist organization, enterprise, or operation;
(ii) Is willing to supply or has supplied such information to a federal
LEA;
(iii) Is in danger or has been placed in
danger as a result of providing such information; and
(iv) Is eligible to receive a reward
under section 36(a) of the State Department Basic Authorities Act of 1956, 22
U.S.C. 2708(a).
(3) Spouse, married and unmarried sons
and daughters, and parents of alien witness or informant in criminal or counterterrorism matter. An alien spouse, married or unmarried son or daughter, or
parent of an alien witness or informant
may be granted derivative S classification (S–7) when accompanying, or following to join, the alien witness or informant if, in the exercise of discretion

386

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00396

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

by, with respect to paragraph (t)(1) of
this section, the Commissioner, or,
with respect to paragraph (t)(2) of this
section, the Secretary of State and the
Commissioner acting jointly, consider
it to be appropriate. A nonimmigrant
in such derivative S–7 classification
shall be subject to the same period of
admission, limitations, and restrictions as the alien witness or informant
and must be identified by the requesting LEA on the application Form I–854
in order to qualify for S nonimmigrant
classification. Family members not
identified on the Form I–854 application will not be eligible for S nonimmigrant classification.
(4) Request for S nonimmigrant classification. An application on Form I–854,
requesting S nonimmigrant classification for a witness or informant, may
only be filed by a federal or state LEA
(which shall include a federal or state
court or a United States Attorney’s Office) directly in need of the information to be provided by the alien witness
or informant. The completed application is filed with the Assistant Attorney General, Criminal Division, Department of Justice, who will forward
only properly certified applications
that fall within the numerical limitation to the Commissioner, Immigration
and Naturalization Service, for approval, pursuant to the following process.
(i) Filing request. For an alien to qualify for status as an S nonimmigrant, S
nonimmigrant classification must be
requested by an LEA. The LEA shall
recommend an alien for S nonimmigrant classification by: Completing Form I–854, with all necessary
endorsements and attachments, in accordance with the instructions on, or
attached to, that form, and agreeing,
as a condition of status, that no promises may be, have been, or will be made
by the LEA that the alien will or may
remain in the United States in S or
any other nonimmigrant classification
or parole, adjust status to that of lawful permanent resident, or otherwise
attempt to remain beyond a 3-year period other than by the means authorized by section 101(a)(15)(S) of the Act.
The alien, including any derivative
beneficiary who is 18 years or older,
shall sign a statement, that is part of

or affixed to Form I–854, acknowledging awareness that he or she is restricted by the terms of S nonimmigrant classification to the specific
terms of section 101(a)(15)(S) of the Act
as the exclusive means by which he or
she may remain permanently in the
United States.
(A) District director referral. Any district director or Service officer who receives a request by an alien, an eligible
LEA, or other entity seeking S nonimmigrant classification shall advise
the requestor of the process and the requirements for applying for S nonimmigrant
classification.
Eligible
LEAs seeking S nonimmigrant classification shall be referred to the Commissioner.
(B) United States Attorney certification.
The United States Attorney with jurisdiction over a prosecution or investigation that forms the basis for a request
for S nonimmigrant classification
must certify and endorse the application on Form I–854 and agree that no
promises may be, have been, or will be
made that the alien will or may remain
in the United States in S or any other
nonimmigrant classification or parole,
adjust status to lawful permanent resident, or attempt to remain beyond the
authorized period of admission.
(C) LEA certification. LEA certifications on Form I–854 must be made at
the seat-of-government level, if federal,
or the highest level of the state LEA
involved in the matter. With respect to
the alien for whom S nonimmigrant
classification is sought, the LEA shall
provide evidence in the form of attachments establishing the nature of the
alien’s cooperation with the government, the need for the alien’s presence
in the United States, all conduct or
conditions which may constitute a
ground or grounds of excludability, and
all factors and considerations warranting a favorable exercise of discretionary waiver authority by the Attorney General on the alien’s behalf. The
attachments submitted with a request
for S nonimmigrant classification may
be in the form of affidavits, statements, memoranda, or similar documentation. The LEA shall review Form
I–854 for accuracy and ensure the alien
understands the certifications made on
Form I–854.

387

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00397

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(D) Filing procedure. Upon completion
of Form I–854, the LEA shall forward
the form and all required attachments
to the Assistant Attorney General,
Criminal Division, United States Department of Justice, at the address
listed on the form.
(ii) Assistant Attorney General, Criminal Division review—(A) Review of information. Upon receipt of a complete application for S nonimmigrant classification on Form I–854, with all required attachments, the Assistant Attorney General, Criminal Division,
shall ensure that all information relating to the basis of the application, the
need for the witness or informant, and
grounds of excludability under section
212 of the Act has been provided to the
Service on Form I–854, and shall consider the negative and favorable factors
warranting an exercise of discretion on
the alien’s behalf. No application may
be acted on by the Assistant Attorney
General unless the eligible LEA making the request has proceeded in accordance with the instructions on, or
attached to, Form I–854 and agreed to
all provisions therein.
(B) Advisory panel. Where necessary
according to procedures established by
the Assistant Attorney General, Criminal Division, an advisory panel, composed of representatives of the Service,
Marshals Service, Federal Bureau of
Investigation, Drug Enforcement Administration, Criminal Division, and
the Department of State, and those
representatives of other LEAs, including state and federal courts designated
by the Attorney General, will review
the completed application and submit
a recommendation to the Assistant Attorney General, Criminal Division, regarding requests for S nonimmigrant
classification. The function of this advisory panel is to prioritize cases in
light of the numerical limitation in
order to determine which cases will be
forwarded to the Commissioner.
(C) Assistant Attorney General certification. The certification of the Assistant Attorney General, Criminal Division, to the Commissioner recommending approval of the application
for S nonimmigrant classification shall
contain the following:
(1) All information and attachments
that may constitute, or relate to, a

ground or grounds of excludability
under section 212(a) of the Act;
(2) Each section of law under which
the alien appears to be inadmissible;
(3) The reasons that waiver(s) of inadmissibility are considered to be justifiable and in the national interest;
(4) A detailed statement that the
alien is eligible for S nonimmigrant
classification, explaining the nature of
the alien’s cooperation with the government and the government’s need for
the alien’s presence in the United
States;
(5) The intended date of arrival;
(6) The length of the proposed stay in
the United States;
(7) The purpose of the proposed stay;
and
(8) A statement that the application
falls within the statutorily specified
numerical limitation.
(D) Submission of certified requests for
S nonimmigrant classification to Service.
(1) The Assistant Attorney General,
Criminal Division, shall forward to the
Commissioner only qualified applications for S–5 nonimmigrant classification that have been certified in accordance with the provisions of this paragraph and that fall within the annual
numerical limitation.
(2) The Assistant Attorney General
Criminal Division, shall forward to the
Commissioner applications for S–6 nonimmigrant classification that have
been certified in accordance with the
provisions of this paragraph, certified
by the Secretary of State or eligibility
for S–6 classification, and that fall
within the annual numerical limitation.
(5) Decision on application. (i) The Attorney General’s authority to waive
grounds of excludability pursuant to
section 212 of the Act is delegated to
the Commissioner and shall be exercised with regard to S nonimmigrant
classification only upon the certification of the Assistant Attorney General, Criminal Division. Such certification is nonreviewable as to the matter’s significance, importance, and/or
worthwhileness to law enforcement.
The Commissioner shall make the final
decision to approve or deny a request
for S nonimmigrant classification certified by the Assistant Attorney General, Criminal Division.

388

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00398

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(ii) Decision to approve application.
Upon approval of the application on
Form I–854, the Commissioner shall notify the Assistant Attorney General,
Criminal Division, the Secretary of
State, and Service officers as appropriate. Admission shall be authorized
for a period not to exceed 3 years.
(iii) Decision to deny application. In
the event the Commissioner decides to
deny an application for S nonimmigrant classification on Form I–
854, the Assistant Attorney General,
Criminal Division, and the relevant
LEA shall be notified in writing to that
effect. The Assistant Attorney General,
Criminal Division, shall concur in or
object to that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she
shall be deemed to have concurred in
the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will
be expeditiously referred to the Deputy
Attorney General for a final resolution.
In no circumstances shall the alien or
the relevant LEA have a right of appeal from any decision to deny.
(6) Submission of requests for S nonimmigrant visa classification to Secretary
of State. No request for S nonimmigrant visa classification may be
presented to the Secretary of State unless it is approved and forwarded by the
Commissioner.
(7) Conditions of status. An alien witness or informant is responsible for
certifying and fulfilling the terms and
conditions specified on Form I–854 as a
condition of status. The LEA that assumes responsibility for the S nonimmigrant must:
(i) Ensure that the alien:
(A) Reports quarterly to the LEA on
his or her whereabouts and activities,
and as otherwise specified on Form I–
854 or pursuant to the terms of his or
her S nonimmigrant classification;
(B) Notifies the LEA of any change of
home or work address and phone numbers or any travel plans;
(C) Abides by the law and all specified terms, limitations, or restrictions
on the visa, Form I–854, or any waivers
pursuant to classification; and
(D) Cooperates with the responsible
LEA in accordance with the terms of

his or her classification and any restrictions on Form I–854;
(ii) Provide the Assistant Attorney
General, Criminal Division, with the
name of the control agent on an ongoing basis and provide a quarterly report indicating the whereabouts, activities, and any other control information required on Form I–854 or by the
Assistant Attorney General;
(iii) Report immediately to the Service any failure on the alien’s part to:
(A) Report quarterly;
(B) Cooperate with the LEA;
(C) Comply with the terms and conditions of the specific S nonimmigrant
classification; or
(D) Refrain from criminal activity
that may render the alien deportable,
which information shall also be forwarded to the Assistant Attorney General, Criminal Division; and
(iv) Report annually to the Assistant
Attorney General, Criminal Division,
on whether the alien’s S nonimmigrant
classification and cooperation resulted
in either:
(A) A successful criminal prosecution
or investigation or the failure to
produce a successful resolution of the
matter; or
(B) The prevention or frustration of
terrorist acts or the failure to prevent
such acts.
(v) Assist the alien in his or her application to the Service for employment authorization.
(8) Annual report. The Assistant Attorney General, Criminal Division, in
consultation with the Commissioner,
shall compile the statutorily mandated
annual report to the Committee on the
Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate.
(9) Admission. The responsible LEA
will coordinate the admission of an
alien in S nonimmigrant classification
with the Commissioner as to the date,
time, place, and manner of the alien’s
arrival.
(10) Employment. An alien classified
under section 101(a)(15)(S) of the Act
may apply for employment authorization by filing Form I–765, Application
for Employment Authorization, with
fee, in accordance with the instructions on, or attached to, that form pursuant to § 274a.12(c)(21) of this chapter.

389

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00399

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(11) Failure to maintain status. An
alien
classified
under
section
101(a)(15)(S) of the Act shall abide by
all the terms and conditions of his or
her S nonimmigrant classification imposed by the Attorney General. If the
terms and conditions of S nonimmigrant classification will not be or
have not been met, or have been violated, the alien is convicted of any
criminal offense punishable by a term
of imprisonment of 1 year or more, is
otherwise rendered deportable, or it is
otherwise appropriate or in the public
interest to do so, the Commissioner
shall proceed to deport an alien pursuant to the terms of 8 CFR 242.26. In the
event the Commissioner decides to deport an alien witness or informant in S
nonimmigrant classification, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be
notified in writing to that effect. The
Assistant Attorney General, Criminal
Division, shall concur in or object to
that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be
deemed to have concurred in the decision. In the event of an objection by
the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In
no circumstances shall the alien or the
relevant LEA have a right of appeal
from any decision to deport.
(12) Change of classification. (i) An
alien in S nonimmigrant classification
is prohibited from changing to any
other nonimmigrant classification.
(ii) An LEA may request that any
alien lawfully admitted to the United
States and maintaining status in accordance with the provisions of § 248.1
of this chapter, except for those aliens
enumerated in 8 CFR 248.2, have his or
her
nonimmigrant
classification
changed to that of an alien classified
pursuant to section 101(a)(15)(S) of the
Act as set forth in 8 CFR 248.3(h).
(u) [Reserved]
(v) Certain spouses and children of
LPRs. Section 214.15 of this chapter
provides the procedures and requirements pertaining to V nonimmigrant
status.
(w) CNMI-Only Transitional Worker
(CW–1)

(1) Definitions. The following definitions apply to petitions for CW status
for employment in the Commonwealth
of the Northern Mariana Islands (the
CNMI or the Commonwealth) filed
under this section:
(i) Doing business means the regular,
systematic, and continuous provision
of goods or services by an employer as
defined in this paragraph and does not
include the mere presence of an agent
or office of the employer in the CNMI.
(ii) Employer means a person, firm,
corporation, contractor, or other association, or organization which:
(A) Engages a person to work within
the CNMI; and
(B) Has or will have an employer-employee relationship with the CW–1 nonimmigrant being petitioned for.
(iii) Employer-employee relationship
means that the employer may hire,
pay, fire, supervise, or otherwise control the work of the employee.
(iv) Lawfully present in the CNMI
means that the alien has lawfully been
admitted to the CNMI under the immigration laws of the Commonwealth in a
category other than short term visitor
for pleasure or business (240(c), 703(A),
703(B), or 704(B) under CNMI classifications). With respect to any application
for transitional worker status filed or
adjudicated after the transition program effective date, lawfully present in
the CNMI means that the alien:
(A) Is an alien described in section
6(e)(1) or (2) of Public Law 94–241, as
added by section 702(a) of Public Law
110–229, other than an alien described
in section 6(e)(1) who was admitted to
the CNMI as a short term visitor for
pleasure or business (240(c), 703(A),
703(B), or 704(B) under CNMI classifications); or
(B) Was lawfully admitted to the
CNMI under the immigration laws on
or after the transition program effective date, other than an alien admitted
as a visitor for business or pleasure (B–
1 or B–2 or under any visa-free travel
provision).
(v) Legitimate business means a real,
active, and operating commercial or
entrepreneurial
undertaking
which
produces services or goods for profit, or
is a governmental, charitable or other
validly recognized nonprofit entity.
The business must meet applicable

390

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00400

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

legal requirements for doing business
in the CNMI. A business will not be
considered legitimate if it engages directly or indirectly in prostitution,
trafficking in minors, or any other activity that is illegal under Federal or
CNMI law. The Secretary will determine whether a business is legitimate.
(vi) Minor child means a child as defined in section 101(b)(1) of the Act who
is under the age of eighteen years.
(vii) Numerical limitation means the
maximum number of persons who may
be granted CW–1 status in a given fiscal
year or other period as determined by
the Secretary, as follows:
(A) For the period beginning on November 28, 2009 and ending on September 30, 2010, the numerical limitation is 22,417.
(B) For each fiscal year beginning on
October 1, 2010 until the end of the
transition period, the numerical limitation shall be a number less than
22,417 that is determined by the Secretary and published via Notice in the
FEDERAL REGISTER. The numerical limitation for any fiscal year shall be less
than the number for the previous fiscal
year, and shall be a number reasonably
calculated in the Secretary’s discretion
to reduce the number ofCW–1 nonimmigrants to zero by the end of the
transition period.
(C) The Secretary may adjust the numerical limitation for a fiscal year or
other period at her discretion at any
time via Notice in the FEDERAL REGISTER, as long as such adjustment is
consistent with paragraph (w)(1)(vii)(B)
of this section.
(viii) Occupational category means
those employment activities that the
Secretary of Homeland Security has
determined require alien workers to
supplement the resident workforce and
includes:
(A) Professional, technical, or management occupations;
(B) Clerical and sales occupations;
(C) Service occupations;
(D) Agricultural, fisheries, forestry,
and related occupations;
(E) Processing occupations;
(F) Machine trade occupations;
(G) Benchwork occupations;
(H) Structural work occupations; and
(I) Miscellaneous occupations.

(ix) Petition means USCIS FormI–
129CW, Petition for a Nonimmigrant
Worker in the CNMI, a successor form,
or other form, any supplemental information requested by USCIS, and additional evidence as prescribed by
USCIS.
(x) Transition period means the period
beginning on the transition program
effective date and ending on December
31, 2014, unless the CNMI-only transitional worker program is extended by
the Secretary of Labor.
(xi) Transition program effective date
means November 28, 2009.
(xii) United States worker means a national of the United States, an alien
lawfully admitted for permanent residence, or a national of the Federated
States of Micronesia, the Republic of
the Marshall Islands, or the Republic of
Palau who is eligible for nonimmigrant
admission and is employment-authorized under the Compacts of Free Association between the United States and
those nations.
(2) Eligible aliens. Subject to the numerical limitation, an alien may be
classified as a CW–1 nonimmigrant if,
during the transition period, the alien:
(i) Will enter or remain in the CNMI
for the purpose of employment in the
transition period in an occupational
category as designated by the Secretary as requiring alien workers to
supplement the resident workforce;
(ii) Is petitioned for by an employer;
(iii) Is not present in the United
States, other than the CNMI;
(iv) If present in the CNMI, is lawfully present in the CNMI;
(v) Is not inadmissible to the United
States as a nonimmigrant, except for
an alien present in the CNMI who is described in section 212(a)(7)(B)(i)(II) of
the Act (not in possession of nonimmigrant visa); and
(vi) Is ineligible for status in a nonimmigrant worker classification under
section 101(a)(15) of the Act, including
but not limited to, section 101(a)(15)(H)
of the Act.
(3) Derivative beneficiaries—CW–2 nonimmigrant classification. The spouse or
minor child of a CW–1 nonimmigrant
may accompany or follow the alien as
a CW–2 nonimmigrant if the alien:
(i) Is not present in the United
States, other than the CNMI;

391

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00401

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(ii) If present in the CNMI, is lawfully present in the CNMI; and
(iii) Is not inadmissible to the United
States as a nonimmigrant, except for
an alien present in the CNMI who is described in section 212(a)(7)(B) of the Act
(not in possession of nonimmigrant
visa).
(4) Eligible employers. To be eligible to
petition for a CW–1 nonimmigrant
worker, an employer must:
(i) Be engaged in legitimate business;
(ii) Consider all available United
States workers for the positions being
filled by the CW–1 worker;
(iii) Offer terms and conditions of
employment which are consistent with
the nature of the occupation, activity,
and industry in the CNMI; and
(iv) Comply with all Federal and
Commonwealth requirements relating
to employment, including but not limited to nondiscrimination, occupational safety, and minimum wage requirements.
(5) Petition requirements. An employer
who seeks to classify an alien as a CW–
1 worker must file a petition with
USCIS and pay the requisite petition
fee plus the CNMI education fee of $150
per beneficiary per year. If the beneficiary will perform services for more
than one employer, each employer
must file a separate petition with
USCIS.
(6) Accompanying evidence. A petition
must be accompanied by:
(i) Evidence demonstrating the petitioner meets the definition of eligible
employer in this section.
(ii) An attestation by the petitioner
certified as true and accurate by an appropriate official of the petitioner, of
the following:
(A) Qualified United States workers
are not available to fill the position;
(B) The employer is doing business as
defined in 8 CFR 214.2(w)(1)(i);
(C) The employer is a legitimate
business
as
defined
in
8
CFR
214.2(w)(1)(v);
(D) The beneficiary meets the qualifications for the position;
(E) The beneficiary, if present in the
CNMI, is lawfully present in the CNMI;
(F) The position is not temporary or
seasonal employment, and the petitioner does not reasonably believe it to

qualify for any other nonimmigrant
worker classification; and
(G) The position falls within the list
of occupational categories designated
by the Secretary.
(iii) Evidence of licensure if an occupation requires a Commonwealth or
local license for an individual to fully
perform the duties of the occupation.
Categories of valid licensure for CW–1
classification are:
(A) Licensure. An alien seeking CW–1
classification in that occupation must
have that license prior to approval of
the petition to be found qualified to
enter the CNMI and immediately engage in employment in the occupation.
(B) Temporary licensure. If a temporary license is available and allowed
for the occupation with a temporary license, USCIS may grant the petition at
its discretion after considering the duties performed, the degree of supervision received, and any limitations
placed on the alien by the employer
and/or pursuant to the temporary license.
(C) Duties without licensure. If the
CNMI allows an individual to fully
practice the occupation that usually
requires a license without a license
under the supervision of licensed senior
or supervisory personnel in that occupation, USCIS may grant CW–1 status
at its discretion after considering the
duties performed, the degree of supervision received, and any limitations
placed on the alien if the facts demonstrate that the alien under supervision could fully perform the duties of
the occupation.
(7) Change of employers. An unauthorized change of employment to a new
employer will constitute a failure to
maintain status within the meaning of
section 237(a)(1)(C)(i) of the Act. A CW–
1 nonimmigrant may change employers
if:
(i) The prospective new employer
files a petition requesting the CW–1,
and
(ii) An extension of the alien’s stay is
requested if necessary for the validity
period of the petition.
(8) Amended or new petition. If there
are any material changes in the terms
and conditions of employment, the petitioner must file an amended or new
petition to reflect the changes.

392

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00402

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2

(9) Multiple beneficiaries. A petitioning employer may include more
than one beneficiary in a CW–1 petition
if the beneficiaries will be working in
the same occupational category, for
the same period of time, and in the
same location.
(10) Named beneficiaries. The petition
must include the name of the beneficiary and other required information,
as indicated in the form instructions,
at the time of filing. Unnamed beneficiaries will not be permitted.
(11) Early termination. The petitioning
employer must pay the reasonable cost
of return transportation of the alien to
the alien’s last place of foreign residence if the alien is dismissed from employment for any reason by the employer before the end of the period of
authorized admission.
(12) Approval. USCIS will consider all
the evidence submitted and such other
evidence required in the form instructions to adjudicate the petition. USCIS
will notify the petitioner of the approval of the petition on Form I–797,
Notice of Action, or in another form as
USCIS may prescribe:
(i) The approval notice will include
the classification and name of the beneficiary or beneficiaries and the petition’s period of validity. A petition for
more than one beneficiary may be approved in whole or in part.
(ii) The petition may not be filed or
approved earlier than six months before the date of actual need for the
beneficiary’s services. USCIS may in
its discretion permit petitions to be
filed and take other actions under this
paragraph prior to the transition program effective date, but in no case will
USCIS grant CW–1 status or authorize
the admission of any alien to the CNMI
prior to such date.
(13) Petition validity. A beneficiary
will be admitted to the CNMI for the
validity period of the petition, plus up
to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not
work except during the validity period
of the petition. No petition shall authorize admission as a CW–1 nonimmigrant before the transition period
effective date.

(14) Where to apply. The beneficiary,
eligible spouse and minor children
may:
(i) Upon petition approval, apply for
a visa at a U.S. consulate authorizing
admission in CW–1 or CW–2 status, as
appropriate, at a port of entry in the
CNMI on or after the transition program effective date; or
(ii) If present in the CNMI, apply for
classification as a CW–1 or CW–2 nonimmigrant by filing Form I–129CW (or
such alternative form as USCIS may
designate) with USCIS. An alien applying for CW–1 or CW–2 status is eligible
for a waiver of the fee for Form I–
129CW based upon inability to pay as
provided by 8 CFR 103.7(c)(1).
(15) Biometrics. USCIS shall require a
beneficiary initially applying for CW–1
or CW–2 status to submit biometric information if the beneficiary is present
in the CNMI. A beneficiary present in
the CNMI must pay or obtain a waiver
of the biometric service fee described
in 8 CFR 103.7(b)(1).
(16) Period of admission. (i) A CW–1
nonimmigrant will be admitted for an
initial period of one year. A CW–2
spouse will be admitted for the same
period as the principal alien. A CW–2
minor child will be admitted for the
same period as the principal alien, but
such admission shall not extend beyond
the child’s 18th birthday.
(ii) The temporary departure from
the CNMI of the CW–1 nonimmigrant
will not affect the derivative status of
the CW–2 spouse and minor children,
provided the familial relationship continues to exist and the principal remains eligible for admission as a CW–1
nonimmigrant.
(17) Extension of visa petition validity
and extension of stay. (i) The petitioner
may request an extension of an employee’s CW–1 nonimmigrant status by
filing a new petition and accompanying
evidence as described in 8 CFR
214.2(w)(6)(ii).
(ii) A request for a petition extension
may be filed only if the validity of the
original petition has not expired.
(iii) Extensions of CW–1 status may
be granted for periods of 1 year until
the end of the transition period, subject to the numerical limitation.

393

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00403

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2

8 CFR Ch. I (1–1–11 Edition)

(iv) To qualify for an extension of
stay, the petitioner must demonstrate
that the beneficiary or beneficiaries:
(A) Continuously maintained the
terms and conditions of CW–1 status;
and
(B) Remains admissible to the United
States; and
(C) Remains eligible for CW–1 classification.
(v)
The
derivative
CW–2
nonimmigrant may file an application for
extension of nonimmigrant stay on
Form I–539 (or such alternative form as
USCIS may designate) in accordance
with the form instructions. The CW–2
status extension may not be approved
until approval of the CW–1 extension
petition.
(18) Change or adjustment of status. A
CW–1 or CW–2 nonimmigrant can apply
to change nonimmigrant status under
section 248 of the Act or apply for adjustment of status under section 245 of
the Act, if otherwise eligible. During
the transition period, CW–1 or CW–2
nonimmigrants may be petitioned for
or may apply for any nonimmigrant or
immigrant visa classification for which
they may qualify.
(19) Effect of filing an application for or
approval of a permanent labor certification, preference petition, or filing of an
application for adjustment of status on
CW–1 or CW–2 classification. An alien
may legitimately come to the CNMI
for a temporary period as a CW–1 or
CW–2 nonimmigrant and, at the same
time, lawfully seek to become a lawful
permanent resident of the United
States provided he or she intends to depart the CNMI voluntarily at the end
of the period of authorized stay. The
filing of an application for or approval
of a permanent labor certification or
an immigrant visa preference petition,
the filing of an application for adjustment of status, or the lack of residence
abroad will not be the basis for denying:
(i) A CW–1 petition filed on behalf of
the alien;
(ii) A request to extend a CW–1 status
pursuant to a petition previously filed
on behalf of the alien; or
(iii) An application for admission as
a CW–1 or CW–2 nonimmigrant.
(20) Rejection. USCIS may reject an
employer’s petition for new or ex-

tended CW–1 status if the numerical
limitation has been met. In that case,
the petition and accompanying fee will
be rejected and returned with the notice that numbers are unavailable for
the particular nonimmigrant classification. The beneficiary’s application
for admission based upon an approved
petition will not be rejected based upon
the numerical limitation.
(21) Denial. The ultimate decision to
grant or deny CW–1 or CW–2 status is a
discretionary determination, and the
petition or the application may be denied for failure of the petitioner or the
applicant to demonstrate eligibility or
for other good cause. The denial of a
CW–1 petition may be appealed to the
USCIS Administrative Appeals Office.
The denial of a Form I–539 application
may not be appealed.
(22) Terms and conditions of CW Nonimmigrant status. (i) Geographical limitations. CW–1 and CW–2 statuses are only
applicable in the CNMI. Entry, employment and residence in the rest of the
United States (including Guam) require
the appropriate visa or visa waiver eligibility. An alien with CW–1 or CW–2
status who enters or attempts to enter,
travels or attempts to travel to any
other part of the United States without
the appropriate visa or visa waiver eligibility, or who violates conditions of
nonimmigrant stay applicable to any
such authorized status in any other
part of the United States, will be
deemed to have violated CW–1 or CW–2
status.
(ii) Re-entry. An alien with CW–1 or
CW–2 status who departs the CNMI will
require a CW–1 or CW–2 or other appropriate visa to be re-admitted to the
CNMI.
(iii) Employment authorization. An
alien with CW–1 nonimmigrant status
is only authorized employment in the
CNMI for the petitioning employer. An
alien with CW–2 status is not authorized to be employed.
(23) Expiration of transition period.
CW–1 status expires at the end of the
transition period. CW–2 nonimmigrant
status expires when the related CW–1
status expires or on a CW–2 minor
child’s 18th birthday, if sooner, or if
the alien violates his or her status. No
alien will be eligible for admission to
the CNMI in CW–1 or CW–2 status, and

394

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00404

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027

Department of Homeland Security

§ 214.2 Nt.

no CW–1 or CW–2 visa will be valid for
travel to the CNMI, after the transition period.
(Title VI of the Health Professions Educational Assistance Act of 1976 (Pub. L. 94–
484; 90 Stat. 2303); secs. 103 and 214, Immigration and Nationality Act (8 U.S.C. 1103 and
1184))
[38 FR 35425, Dec. 28, 1973]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 214.2, see the List of CFR
Sections Affected, which appears in the
Finding Aids section in the printed volume
and at www.fdsys.gov.
EFFECTIVE DATE NOTE: At 75 FR 79275, Dec.
20, 2010, § 214.2 was amended by adding a new
paragraph (e)(23), effective Jan. 19, 2011. For
the convenience of the user, the added text is
set forth as follows:
§ 214.2 Special requirements for admission,
extension, and maintenance of status.

wwoods2 on DSK1DXX6B1PROD with CFR

*

*

*

*

*

(e) * * *
(23) Special procedures for classifying foreign
investors in the Commonwealth of the Northern
Mariana Islands (CNMI) as E–2 nonimmigrant
treaty investors under title VII of the Consolidated Natural Resources Act of 2008 (Pub. L.
110–229), 48 U.S.C. 1806.
(i) E–2 CNMI Investor eligibility. During the
period ending on January 18, 2013, an alien
may, upon application to the Secretary of
Homeland Security, be classified as a CNMIonly nonimmigrant treaty investor (E–2
CNMI Investor) under section 101(a)(15)(E)(ii)
of the Act if the alien:
(A) Was lawfully admitted to the CNMI in
long-term investor status under the immigration laws of the CNMI before the transition program effective date and had that status on the transition program effective date;
(B) Has continuously maintained residence
in the CNMI;
(C) Is otherwise admissible to the United
States; and
(D) Maintains the investment or investments that formed the basis for such longterm investment status.
(ii) Definitions. For purposes of paragraph
(e)(23) of this section, the following definitions apply:
(A) Approved investment or residence means
an investment or residence approved by the
CNMI government.
(B) Approval letter means a letter issued by
the CNMI government certifying the acceptance of an approved investment subject to
the minimum investment criteria and standards provided in 4 N. Mar. I. Code section
5941 et seq. (long-term business certificate), 4
N. Mar. I. Code section 5951 et seq. (foreign
investor certificate), and 4 N. Mar. I. Code

section 50101 et seq. (foreign retiree investment certificate).
(C) Certificate means a certificate or certification issued by the CNMI government to an
applicant whose application has been approved by the CNMI government.
(D) Continuously maintained residence in the
CNMI means that the alien has maintained
his or her residence within the CNMI since
being lawfully admitted as a long-term investor and has been physically present therein for periods totaling at least half of that
time. Absence from the CNMI for any continuous period of more than six months but less
than one year after such lawful admission
shall break the continuity of such residence,
unless the subject alien establishes to the
satisfaction of DHS that he or she did not in
fact abandon residence in the CNMI during
such period. Absence from the CNMI for any
period of one year or more during the period
for which continuous residence is required
shall break the continuity of such residence.
(E) Public organization means a CNMI public corporation or an agency of the CNMI
government.
(F) Transition period means the period beginning on the transition program effective
date and ending on December 31, 2014.
(iii) Long-term investor status. Long-term
investor status under the immigration laws
of the CNMI includes only the following investor classifications under CNMI immigration laws as in effect on or before November
27, 2009:
(A) Long-term business investor. An alien
who has an approved investment of at least
$50,000 in the CNMI, as evidenced by a LongTerm Business Certificate.
(B) Foreign investor. An alien in the CNMI
who has invested either a minimum of
$100,000 in an aggregate approved investment
in excess of $2,000,000, or a minimum of
$250,000 in a single approved investment, as
evidenced by a Foreign Investment Certificate.
(C) Retiree investor. An alien in the CNMI
who:
(1) Is over the age of 55 years and has invested a minimum of $100,000 in an approved
residence on Saipan or $75,000 in an approved
residence on Tinian or Rota, as evidenced by
a Foreign Retiree Investment Certification;
or
(2) Is over the age of 55 years and has invested a minimum of $150,000 in an approved
residence to live in the CNMI, as evidenced
by a Foreign Retiree Investment Certificate.
(iv) Maintaining investments. An alien in
long-term investor status under the immigration laws of the CNMI is maintaining his
or her investments if that alien investor is in
compliance with the terms upon which the
investor certificate was issued.
(v) Filing procedures. An alien seeking classification under E–2 CNMI Investor nonimmigrant status must file an application

395

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00405

Fmt 8010

Sfmt 8003

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

§ 214.2 Nt.

8 CFR Ch. I (1–1–11 Edition)

for E–2 CNMI investor nonimmigrant status,
along with accompanying evidence, with
USCIS in accordance with the form instructions before January 18, 2013. An application
filed after the filing date deadline will be rejected.
(vi) Appropriate documents. Documentary
evidence establishing eligibility for E–2
CNMI nonimmigrant investor status is required.
(A) Required evidence of admission includes a valid unexpired foreign passport and
a properly endorsed CNMI admission document (e.g., entry permit or certificate) reflecting lawful admission to the CNMI in
long-term business investor, foreign investor, or retiree foreign investor status.
(B) Required evidence of long-term investor status includes:
(1) An unexpired Long-Term Business Certificate, in the case of an alien in long-term
business investor status.
(2) An unexpired Foreign Investment Certificate, in the case of an alien in foreign investor status.
(3) A Foreign Retiree Investment Certification or a Foreign Retiree Investment Certificate, in the case of an alien in retiree investor status.
(C) Required evidence that the long-term
investor is maintaining his or her investment includes all of the following, as applicable:
(1) An approval letter issued by the CNMI
government.
(2) Evidence that capital has been invested,
including bank statements showing amounts
deposited in CNMI business accounts, invoices, receipts or contracts for assets purchased, stock purchase transaction records,
loan or other borrowing agreements, land
leases, financial statements, business gross
tax receipts, or any other agreements supporting the application.
(3) Evidence that the applicant has invested at least the minimum amount required, including evidence of assets which
have been purchased for use in the enterprise, evidence of property transferred from
abroad for use in the enterprise, evidence of
monies transferred or committed to be transferred to the new or existing enterprise in
exchange for shares of stock, any loan or
mortgage, promissory note, security agreement, or other evidence of borrowing which
is secured by assets of the applicant.
(4) A comprehensive business plan for new
enterprises.
(5) Articles of incorporation, by-laws, partnership agreements, joint venture agreements, corporate minutes and annual reports, affidavits, declarations, or certifications of paid-in capital.
(6) Current business licenses.
(7) Foreign business registration records,
recent tax returns of any kind, evidence of
other sources of capital.

(8) A listing of all resident and nonresident
employees.
(9) A listing of all holders of business certificates for the business establishment.
(10) A listing of all corporations in which
the applicant has a controlling interest.
(11) In the case of a holder of a certificate
of foreign investment, copies of annual reports of investment activities in the CNMI
containing sufficient information to determine whether the certificate holder is under
continuing compliance with the standards of
issuance, accompanied by annual financial
audit reports performed by an independent
certified public accountant.
(12) In the case of an applicant who is a retiree investor, evidence that he or she has an
interest in property in the CNMI (e.g., lease
agreement), evidence of the value of the
property interest (e.g., an appraisal regarding the value of the property), and, as applicable, evidence of the value of the improvements on the property (e.g., receipts or invoices of the costs of construction, the
amount paid for a preexisting structure, or
an appraisal of improvements).
(vii) Physical presence in the CNMI. Physical presence in the CNMI at the time of filing or during the pendency of the application
is not required, but an application may not
be filed by, or E–2 CNMI Investor status
granted to, any alien present in U.S. territory other than in the CNMI. If an alien with
CNMI long-term investor status departs the
CNMI on or after the transition program effective date but before being granted E–2
CNMI Investor status, he or she may not be
re-admitted to the CNMI without a visa or
appropriate inadmissibility waiver under the
U.S. immigration laws. If USCIS grants E–2
CNMI Investor nonimmigrant classification
to an alien who is not physically present in
the CNMI at the time of the grant, such
alien must obtain an E–2 CNMI Investor nonimmigrant visa at a consular office abroad in
order to seek admission to the CNMI in E–2
CNMI Investor status.
(viii) Information for background checks.
USCIS may require an applicant for E–2
CNMI Investor status, including but not limited to any applicant for derivative status as
a spouse or child, to submit biometric information. An applicant present in the CNMI
must pay or obtain a waiver of the biometric
services fee described in 8 CFR 103.7(b) for
any biometric services provided, including
but not limited to reuse of previously provided biometric information for background
checks.
(ix) Denial. A grant of E–2 CNMI Investor
status is a discretionary determination, and
the application may be denied for failure of
the applicant to demonstrate eligibility or
for other good cause. Denial of the application may be appealed to the USCIS Administrative Appeals Office or any successor body.

396

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00406

Fmt 8010

Sfmt 8003

Y:\SGML\223027.XXX

223027

wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 214.2 Nt.

(x) Spouse and children of an E–2 CNMI Investor.
(A) Classification. The spouse and children
of an E–2 CNMI Investor accompanying or
following-to-join the principal alien, if otherwise admissible, may receive the same
classification as the principal alien. The nationality of a spouse or child of an E–2 CNMI
investor is not material to the classification
of the spouse or child.
(B) Employment authorization. The spouse of
an E–2 CNMI Investor lawfully admitted in
the CNMI in E–2 CNMI Investor nonimmigrant status, other than the spouse of
an E–2 CNMI investor who obtained such status based upon a Foreign Retiree Investment
Certificate, is eligible to apply for employment
authorization
under
8
CFR
274a.12(c)(12) while in E–2 CNMI Investor
nonimmigrant status. Employment authorization acquired under this paragraph is limited to employment in the CNMI only.
(xi) Terms and conditions of E–2 CNMI Investor nonimmigrant status.
(A) Nonimmigrant status. E–2 CNMI Investor
nonimmigrant status and any derivative status are only applicable in the CNMI. Entry,
employment, and residence in the rest of the
United States (including Guam) require the
appropriate visa or visa waiver eligibility.
An E–2 CNMI Investor who enters, attempts
to enter or attempts to travel to any other
part of the United States without the appropriate visa or visa waiver eligibility, or who
violates conditions of nonimmigrant stay applicable to any such authorized status in any
other part of the United States, will be
deemed to have violated the terms and conditions of his or her E–2 CNMI Investor status. An E–2 CNMI Investor who departs the
CNMI will require an E–2 CNMI investor visa
for readmission to the CNMI as an E–2 CNMI
Investor.
(B) Employment authorization. An alien with
E–2 CNMI Investor nonimmigrant status is
only employment authorized in the CNMI for
the enterprise that is the basis for his or her
CNMI Foreign Investment Certificate or
Long-Term Business Certificate, to the extent that such Certificate authorized such
activity. An alien with E–2 CNMI Investor
nonimmigrant status based upon a Foreign
Retiree Investor Certificate is not employment authorized.
(C) Changes in E–2 CNMI investor nonimmigrant status. If there are any substantive
changes to an alien’s compliance with the
terms and conditions of qualification for E–
2 CNMI Investor nonimmigrant status, the
alien must file a new application for E–2
CNMI Investor nonimmigrant status, in accordance with the appropriate form instructions to request an extension of stay in the
United States. Prior approval is not required
if corporate changes occur that do not affect
a previously approved employment relationship, or are otherwise non-substantive.

(D) Unauthorized change of employment. An
unauthorized change of employment to a
new employer will constitute a failure to
maintain status within the meaning of section 237(a)(1)(C)(i) of the Act.
(E) Periods of admission. (1) An E–2 CNMI
Investor may be admitted for an initial period of not more than two years.
(2) The spouse and children accompanying
or following-to-join an E–2 CNMI Investor
may be admitted for the period during which
the principal alien is in valid E–2 CNMI Investor nonimmigrant status. The temporary
departure from the United States of the principal E–2 CNMI Investor shall not affect the
derivative status of the dependent spouse
and children, provided the familial relationship continues to exist and the principal
alien remains eligible for admission as an E–
2 CNMI Investor.
(xii) Extensions of stay. Requests for extensions of E–2 CNMI Investor nonimmigrant
status may be granted in increments of not
more than two years, until the end of the
transition period. To request an extension of
stay, an E–2 CNMI Investor must file with
USCIS an application for extension of stay,
with required accompanying documents, in
accordance with the appropriate form instructions. To qualify for an extension of E–
2 CNMI Investor nonimmigrant status, each
alien must demonstrate:
(A) Continuous maintenance of the terms
and conditions of E–2 CNMI Investor nonimmigrant status;
(B) Physical presence in the CNMI at the
time of filing the application for extension of
stay; and
(C) That he or she did not leave during the
pendency of the application.
(xiii) Change of status. An alien lawfully
admitted to the United States in another
valid nonimmigrant status who is continuing
to maintain that status may apply to change
nonimmigrant status to E–2 CNMI Investor
in accordance with paragraph (e)(21) of this
section, if otherwise eligible, including but
not limited to having been in CNMI longterm investor status on the transition date
and within the period provided by paragraph
(e)(23)(v) of this section.
(xiv) Expiration of initial transition period.
Upon expiration of the initial transition period, the E–2 CNMI Investor nonimmigrant
status will automatically terminate.
(xv) Fee waiver. An alien applying for E–2
CNMI Investor nonimmigrant status is eligible for a waiver of the required fee for an application based upon inability to pay as provided by 8 CFR 103.7(c)(1).
(xvi) Waiver of inadmissibility for applicants
present in the CNMI. An applicant for E–2
CNMI Investor nonimmigrant status, who is
otherwise eligible for such status and otherwise admissible to the United States, and
who has provided all appropriate documents
as described in paragraph (e)(23)(vi) of this

397

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00407

Fmt 8010

Sfmt 8003

Y:\SGML\223027.XXX

223027

§ 214.3

8 CFR Ch. I (1–1–11 Edition)

section, may be granted a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the
Act, including the grounds of inadmissibility
described in sections 212(a)(6)(A)(i) (to the
extent such grounds arise solely because of
the alien’s presence in the CNMI on November 28, 2009) and 212(a)(7)(B)(i)(II) of the Act,
for the purpose of granting the E–2 CNMI Investor nonimmigrant status. Such waiver
may be granted without additional form or
fee required. In the case of an application by
a spouse or child as described in paragraph
(e)(23)(x) of this section who is present in the
CNMI, the appropriate documents required
for such waiver are a valid unexpired passport and evidence that the spouse or child is
lawfully present in the CNMI under section
1806(e) of title 48, U.S. Code (which may include evidence of a grant of parole by USCIS
or by the Department of Homeland Security
pursuant to a grant of advance parole by
USCIS in furtherance of section 1806(e) of
title 48, U.S. Code).

wwoods2 on DSK1DXX6B1PROD with CFR

*

*

*

*

*

§ 214.3 Approval of schools for enrollment of F and M nonimmigrants.
(a) Filing petition—
(1) General. A school or school system
seeking initial or continued authorization for attendance by nonimmigrant
students under sections 101(a)(15)(F)(i)
or 101(a)(15)(M)(i) of the Act, or both,
must file a petition for certification or
recertification with SEVP, using the
Student and Exchange Visitor Information System (SEVIS), in accordance
with the procedures at paragraph (h) of
this section. The petition must state
whether the school or school system is
seeking certification or recertification
for attendance of nonimmigrant students under section 101(a)(15)(F)(i) or
101(a)(15)(M)(i) of the Act or both. The
petition must identify by name and address each location of the school that
is included in the petition for certification or recertification, specifically
including any physical location in
which a nonimmigrant can attend
classes through the school (i.e., campus, extension campuses, satellite campuses, etc.).
(i) School systems. A school system, as
used in this section, means public
school (grades 9–12) or private school
(grades kindergarten–12). A petition by
a school system must include a list of
the names and addresses of those
schools included in the petition with
the supporting documents.

(ii) Submission requirements. Certification and recertification petitions require that a complete Form I–17, Petition for Approval of School for Attendance by Nonimmigrant Student, including supplements A and B and bearing original signatures, be included
with the school’s submission of supporting documentation. In submitting
the Form I–17, a school certifies that
the designated school officials (DSOs)
signing the form have read and understand DHS regulations relating to:
Nonimmigrant students at 8 CFR 214.1,
214.2(f), and/or 214.2(m); change of nonimmigrant classification for students
at 8 CFR 248; school certification and
recertification under this section;
withdrawal of school certification
under this section and 8 CFR 214.4; that
both the school and its DSOs intend to
comply with these regulations at all
times; and that, to the best of its
knowledge, the school is eligible for
SEVP
certification.
Willful
misstatements may constitute perjury
(18 U.S.C. 1621).
(2) Approval for F–1 or M–1 classification, or both—(i) F–1 classification. The
following schools may be approved for
attendance by nonimmigrant students
under section 101(a)(15)(F)(i) of the Act:
(A) A college or university, i.e., an institution of higher learning which
awards recognized bachelor’s, master’s
doctor’s or professional degrees.
(B) A community college or junior
college which provides instruction in
the liberal arts or in the professions
and which awards recognized associate
degrees.
(C) A seminary.
(D) A conservatory.
(E) An academic high school.
(F) A private elementary school.
(G) An institution which provides
language training, instruction in the
liberal arts or fine arts, instruction in
the professions, or instruction or training in more than one of these disciplines.
(ii) M–1 classification. The following
schools are considered to be vocational
or nonacademic institutions and may
be approved for attendance by nonimmigrant students under section
101(a)(15)(M)(i) of the Act:
(A) A community college or junior
college which provides vocational or

398

VerDate Mar<15>2010

09:04 Mar 15, 2011

Jkt 223027

PO 00000

Frm 00408

Fmt 8010

Sfmt 8010

Y:\SGML\223027.XXX

223027