8 Cfr 214

Department of Homeland Security

§ 214.1

the date the benefit was first provided
to the immigrant.
(c) Congressional reports. (1) For purposes of section 213A(i)(3) of the Act,
USCIS will consider a sponsor or joint
sponsor to be in compliance with the financial obligations of section 213A of
the Act unless a party that has obtained a final judgment enforcing the
sponsor or joint sponsor’s obligations
under section 213A(a)(1)(A) or 213A(b) of
the Act has provided a copy of the final
judgment to the USCIS by mailing a
certified copy to the address listed in
paragraph (c)(3) of this section. The
copy should be accompanied by a cover
letter that includes the reference
‘‘Civil Judgments for Congressional Reports under section 213A(i)(3) of the
Act.’’ Failure to file a certified copy of
the final civil judgment in accordance
with this section has no effect on the
plaintiff’s ability to collect on the
judgment pursuant to law.
(2) If a Federal, state, or local agency
or private entity that administers any
means-tested public benefit makes a
determination under section 421(e) of
the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996
in the case of any sponsored immigrant, the program official shall send
written notice of the determination,
including the name of the sponsored
immigrant and of the sponsor, to the
address listed in paragraph (c)(3) of this
section. The written notice should include the reference ‘‘Determinations
under 421(e) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.’’
(3) The address referred to in paragraphs (c)(1) and (c)(2) of this section
is: Office of Program and Regulation
Development, U.S. Citizenship and Immigration Services, 20 Massachusetts
Avenue, NW., Washington, DC, 20529.

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[62 FR 54352, Oct. 20, 1997, as amended at 71
FR 35755, June 21, 2006; 76 FR 53790, Aug. 29,
2011]

§ 213a.5 Relationship of this part to
other affidavits of support.
Nothing in this part precludes the
continued use of other affidavits of
support provided by USCIS in a case
other than a case described in
§ 213a.2(a)(2). The obligations of section
213A of the Act do not bind a person

who executes such other USCIS affidavits of support. Persons sponsoring an
Amerasian alien described in section
204(f)(2) of the Act remain subject to
the provisions of section 204(f)(4)(B) of
the Act and 8 CFR 204.4(i), as appropriate.
[76 FR 53790, Aug. 29, 2011]

PART 214—NONIMMIGRANT
CLASSES
Sec.
214.1 Requirements for admission, extension, and maintenance of status.
214.2 Special requirements for admission,
extension, and maintenance of status.
214.3 Approval of schools for enrollment of
F and M nonimmigrants.
214.4 Denial of certification, denial of recertification or withdrawal of SEVP certification.
214.5 Libyan and third country nationals
acting on behalf of Libyan entities.
214.6 Citizens of Canada or Mexico seeking
temporary entry under NAFTA to engage
in business activities at a professional
level.
214.7 Habitual residence in the territories
and possessions of the United States and
consequences thereof.
214.8–214.10 [Reserved]
214.11 Alien victims of severe forms of trafficking in persons.
214.12 Preliminary enrollment of schools in
the Student and Exchange Visitor Information System (SEVIS).
214.13 SEVIS for certain F, J, and M nonimmigrants.
214.14 Alien victims of certain qualifying
criminal activity.
214.15 Certain spouses and children of lawful
permanent residents.
AUTHORITY: 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305 and
1372; sec. 643, Pub. L. 104–208, 110 Stat. 3009–
708; Public Law 106–386, 114 Stat. 1477–1480;
section 141 of the Compacts of Free Association with the Federated States of Micronesia
and the Republic of the Marshall Islands, and
with the Government of Palau, 48 U.S.C. 1901
note, and 1931 note, respectively; 48 U.S.C.
1806; 8 CFR part 2.

§ 214.1 Requirements for admission,
extension, and maintenance of status.
(a) General—(1) Nonimmigrant classes.
For the purpose of administering the
nonimmigrant provisions of the Act,

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the following administrative subclassifications of nonimmigrant classifications as defined in section 101(a)(15) of
the Act are established:
(i) Section 101(a)(15)(B) is divided
into (B)(i) for visitors for business and
(B)(ii) for visitors for pleasure;
(ii) Section 101(a)(15)(C) is divided
into (C)(i) for aliens who are not diplomats and are in transit through the
United States; (C)(ii) for aliens in transit to and from the United Nations
Headquarters District; and (C)(iii) for
alien diplomats in transit through the
United States;
(iii) Section 101(a)(15)(H) is divided to
create an (H)(iv) subclassification for
the spouse and children of a nonimmigrant classified under section
101(a)(15) (H) (i), (ii), or (iii);
(iv) Section 101(a)(15)(J) is divided
into (J)(i) for principal aliens and
(J)(ii) for such alien’s spouse and children;
(v) Section 101(a)(15)(K) is divided
into (K)(i) for the fiancee´(e), (K)(ii) for
the spouse, and (K)(iii) for the children
of either;
(vi) Section 101(a)(15)(L) is divided
into (L)(i) for principal aliens and
(L)(ii) for such alien’s spouse and children;
(vii) Section 101(a)(15)(Q)(ii) is divided to create a (Q)(iii) for subclassification for the spouse and children of
a nonimmigrant classified under section 101(a)(15)(Q)(ii) of the Act;
(viii) Section 101(a)(15)(T)(ii) is divided into (T)(ii), (T)(iii) and (T)(iv) for
the spouse, child, and parent, respectively, of a nonimmigrant classified
under section 101(a)(15)(T)(i); and
(ix) Section 101(a)(15)(U)(ii) is divided
into (U)(ii), (U)(iii), (U)(iv), and (U)(v)
for the spouse, child, parent, and siblings, respectively, of a nonimmigrant
classified under section 101(a)(15)(U)(i);
and
(2) Classification designations. For the
purpose of this chapter the following
nonimmigrant designations are established. The designation in the second
column may be used to refer to the appropriate nonimmigrant classification.

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Section

Designation

101(a)(15)(A)(i) .........................................
101(a)(15)(A)(ii) ........................................
101(a)(15)(A)(iii) .......................................
101(a)(15)(B)(i) .........................................

A–1.
A–2.
A–3.
B–1.

Section

Designation

101(a)(15)(B)(ii) ........................................
101(a)(15)(C)(i) ........................................
101(a)(15)(C)(ii) ........................................
101(a)(15)(C)(iii) .......................................
101(a)(15)(D)(i) ........................................
101(a)(15)(D)(ii) ........................................
101(a)(15)(E)(i) .........................................
101(a)(15)(E)(ii) ........................................
101(a)(15)(F)(i) .........................................
101(a)(15)(F)(ii) ........................................
101(a)(15)(G)(i) ........................................
101(a)(15)(G)(ii) .......................................
101(a)(15)(G)(iii) .......................................
101(a)(15)(G)(iv) ......................................
101(a)(15)(g)(v) ........................................
101(a)(15)(H)(i)(B) ....................................
101(a)(15)(H)(i)(C) ...................................
101(a)(15)(H)(ii)(A) ...................................
101(a)(15)(H)(ii)(B) ...................................
101(a)(15)(H)(iii) .......................................
101(a)(15)(H)(iv) .......................................
101(a)(15)(I) .............................................
101(a)(15)(J)(i) .........................................
101(a)(15)(J)(ii) ........................................
101(a)(15)(K)(i) .........................................
101(a)(15)(K)(ii) ........................................
101(a)(15)(K)(iii) .......................................
101(a)(15)(L)(i) .........................................
101(a)(15)(L)(ii) ........................................
101(a)(15)(M)(i) ........................................
101(a)(15)(M)(ii) .......................................
101(a)(15)(N)(i) ........................................
101(a)(15)(N)(ii) ........................................
101(a)(15)(O)(i) ........................................
101(a)(15)(O)(ii) .......................................
101(a)(15)(O)(iii) .......................................
101(a)(15)(P)(i) .........................................
101(a)(15)(P)(ii) ........................................
101(a)(15)(P)(iii) .......................................
101(a)(15)(P)(iv) .......................................
101(a)(15)(Q)(i) ........................................
101(a)(15)(Q)(ii) .......................................
101(a)(15)(Q)(iii) .......................................
101(a)(15)(R)(i) ........................................
101(a)(15)(R)(ii) ........................................
101(a)(15)(S)(i) .........................................
101(a)(15)(S)(ii) ........................................
101(a)(15)(S) qualified family members ..
101(a)(15)(T)(i) .........................................
101(a)(15)(T)(ii) ........................................
101(a)(15)(T)(iii) .......................................
101(a)(15)(T)(iv) .......................................
101(a)(15)(U)(i) ........................................
101(a)(15)(U)(ii) ........................................

B–2.
C–1.
C–2.
C–3.
D–1.
D–2.
E–1.
E–2.
F–1.
F–2.
G–1.
G–2.
G–3.
G–4.
G–5.
H–1B.
H–1C.
H–2A.
H–2B.
H–3.
H–4.
I.
J–1.
J–2.
K–1.
K–3.
K–2; K–4.
L–1.
L–2.
M–1.
M–2.
N–8.
N–9.
O–1.
O–2.
O–3.
P–1.
P–2.
P–3.
P–4.
Q–1.
Q–2.
Q–3.
R–1.
R–2.
S–5.
S–6.
S–7.
T–1
T–2
T–3
T–4
U–1.
U–2, U–3, U–4,
U–5
V–1, V–2, or V–3
TN.
TD.
WB.
WT.

101(a)(15)(V) ............................................
NAFTA, Principal ......................................
NAFTA, Dependent ..................................
Visa Waiver, Business .............................
Visa Waiver, Tourist .................................

NOTE 1: The classification designation K–2
is for the child of a K–1. The classification
designation K–4 is for the child of a K–3.
NOTE 2: The classification designation V–1
is for the spouse of a lawful permanent resident; the classification designation V–2 is for
the principal beneficiary of an I–130 who is
the child of an LPR; the classification V–3 is
for the derivative child of a V–1 or V–2 alien.

(3) General requirements. (i) Every
nonimmigrant alien who applies for admission to, or an extension of stay in,

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§ 214.1

the United States, must establish that
he or she is admissible to the United
States, or that any ground of inadmissibility has been waived under section
212(d)(3) of the Act. Upon application
for admission, the alien must present a
valid passport and valid visa unless either or both documents have been
waived. A nonimmigrant alien’s admission to the United States is conditioned on compliance with any inspection requirement in § 235.1(d) or of this
chapter. The passport of an alien applying for admission must be valid for
a minimum of six months from the expiration date of the contemplated period of stay, unless otherwise provided
in this chapter, and the alien must
agree to abide by the terms and conditions of his or her admission. An alien
applying for extension of stay must
present a passport only if requested to
do so by the Department of Homeland
Security. The passport of an alien applying for extension of stay must be
valid at the time of application for extension, unless otherwise provided in
this chapter, and the alien must agree
to maintain the validity of his or her
passport and to abide by all the terms
and conditions of his extension.
(ii) At the time of admission or extension of stay, every nonimmigrant
alien must also agree to depart the
United States at the expiration of his
or her authorized period of admission
or extension of stay, or upon abandonment of his or her authorized nonimmigrant status, and to comply with
the departure procedures at section
215.8 of this chapter if such procedures
apply to the particular alien. The nonimmigrant alien’s failure to comply
with those departure requirements, including any requirement that the alien
provide biometric identifiers, may constitute a failure of the alien to maintain the terms of his or her nonimmigrant status.
(iii) At the time a nonimmigrant
alien applies for admission or extension of stay, he or she must post a bond
on Form I–352 in the sum of not less
than $500, to ensure the maintenance of
his or her nonimmigrant status and departure from the United States, if required to do so by the Commissioner of
CBP, the Director of U.S. Citizenship
and Immigration Services, an immigra-

tion judge, or the Board of Immigration Appeals.
(b) Readmission of nonimmigrants
under section 101(a)(15) (F), (J), (M), or
(Q)(ii) to complete unexpired periods of
previous admission or extension of stay—
(1) Section 101(a)(15)(F). The inspecting
immigration officer shall readmit for
duration of status as defined in
§ 214.2(f)(5)(iii), any nonimmigrant alien
whose nonimmigrant visa is considered
automatically revalidated pursuant to
22 CFR 41.125(f) and who is applying for
readmission under section 101(a)(15)(F)
of the Act, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after
an absence from the United States not
exceeding thirty days solely in contiguous territory or adjacent islands;
(iii) Is in possession of a valid passport unless exempt from the requirement for presentation of a passport;
and
(iv) Presents, or is the accompanying
spouse or child of an alien who presents, an Arrival-Departure Record,
Form I–94 (see § 1.4), issued to the alien
in connection with the previous admission or stay, the alien’s Form I–20 ID
copy, and either:
(A) A properly endorsed page 4 of
Form I-20A-B if there has been no substantive change in the information on
the student’s most recent Form I-20A
since the form was initially issued; or
(B) A new Form I-20A-B if there has
been any substantive change in the information on the student’s most recent
Form I-20A since the form was initially
issued.
(2) Section 101(a)(15)(J). The inspecting
immigration officer shall readmit for
the unexpired period of stay authorized
prior to the alien’s departure, any nonimmigrant alien whose nonimmigrant
visa is considered automatically revalidated pursuant to 22 CFR 41.125(f) and
who is applying for readmission under
section 101(a)(15)(J) of the Act, if the
alien:
(i) Is admissible;
(ii) Is applying for readmission after
an absence from the United States not
exceeding thirty days solely in contiguous territory or adjacent islands;

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§ 214.1

8 CFR Ch. I (1–1–16 Edition)

(iii) Is in possession of a valid passport unless exempt from the requirement for the presentation of a passport; and
(iv) Presents, or is the accompanying
spouse or child of an alien who presents, Form I–94 issued to the alien in
connection with the previous admission or stay or copy three of the last
Form IAP–66 issued to the alien. Form
I–94 or Form IAP–66 must show the unexpired period of the alien’s stay endorsed by the Service.
(3) Section 101(a)(15)(M). The inspecting immigration officer shall readmit
for the unexpired period of stay authorized prior to the alien’s departure, any
nonimmigrant
alien
whose
nonimmigrant visa is considered automatically revalidated pursuant to 22 CFR
41.125(f) and who is applying for readmission under section 101(a)(15)(M) of
the Act, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after
an absence not exceeding thirty days
solely in contiguous territory;
(iii) Is in possession of a valid passport unless exempt from the requirement for presentation of a passport;
and
(iv) Presents, or is the accompanying
spouse or child of an alien who presents, Form I–94 issued to the alien in
connection with the previous admission or stay, the alien’s Form I–20 ID
copy, and a properly endorsed page 4 of
Form I–20M–N.
(4) Section 101(a)(15)(Q)(ii). The inspecting immigration officer shall readmit for the unexpired period of stay
authorized prior to the alien’s departure, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after
an absence from the United States not
exceeding 30 days solely in contiguous
territory or adjacent islands;
(iii) Is in possession of a valid passport;
(iv) Presents, or is the accompanying
spouse or child of an alien who presents, an Arrival-Departure Record,
Form I–94, issued to the alien in connection with the previous admission or
stay. The principal alien must also
present a Certification Letter issued by
the Department of State’s Program Administrator.

(c) Extensions of stay—(1) Filing on
Form I–129. An employer seeking the
services of an E–1, E–2, H–1B, H–2A, H–
2B, H–3, L–1, O–1, O–2, P–1, P–2, P–3, Q–
1, R–1, or TN nonimmigrant beyond the
period previously granted, must petition for an extension of stay on Form
I–129. The petition must be filed with
the fee required in § 103.7 of this chapter, and the initial evidence specified
in § 214.2, and on the petition form. Dependents holding derivative status may
be included in the petition if it is for
only one worker and the form version
specifically provides for their inclusion. In all other cases dependents of
the worker should file on Form I–539.
(2) Filing on Form I–539. Any other
nonimmigrant alien, except an alien in
F or J status who has been granted duration of status, who seeks to extend
his or her stay beyond the currently
authorized period of admission, must
apply for an extension of stay on Form
I–539 with the fee required in § 103.7 of
this chapter together with any initial
evidence specified in the applicable
provisions of § 214.2, and on the application form. More than one person may
be included in an application where the
co-applicants are all members of a single family group and either all hold the
same nonimmigrant status or one
holds a nonimmigrant status and the
other co-applicants are his or her
spouse and/or children who hold derivative nonimmigrant status based on his
or her status. Extensions granted to
members of a family group must be for
the same period of time. The shortest
period granted to any member of the
family shall be granted to all members
of the family. In order to be eligible for
an extension of stay, nonimmigrant
aliens in K–3/K–4 status must do so in
accordance with § 214.2(k)(10).
(3) Ineligible for extension of stay. A
nonimmigrant in any of the following
classes is ineligible for an extension of
stay:
(i) B–1 or B–2 where admission was
pursuant to the Visa Waiver Pilot Program;
(ii) C–1, C–2, C–3;
(iii) D–1, D–2;
(iv) K–1, K–2;
(v) Any nonimmigrant admitted for
duration of status, other than as provided in § 214.2(f)(7);

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(vi) Any nonimmigrant who is classified pursuant to section 101(a)(15)(S) of
the Act beyond a total of 3 years; or
(vii) Any nonimmigrant who is classified
according
to
section
101(a)(15)(Q)(ii) of the Act beyond a
total of 3 years.
(viii) Any nonimmigrant admitted
pursuant to the Guam-CNMI Visa
Waiver Program, as provided in section
212(l) of the Act.
(4) Timely filing and maintenance of
status. An extension of stay may not be
approved for an applicant who failed to
maintain the previously accorded status or where such status expired before
the application or petition was filed,
except that failure to file before the period of previously authorized status expired may be excused in the discretion
of the Service and without separate application, with any extension granted
from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:
(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and
the Service finds the delay commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant status;
(iii) The alien remains a bona fide
nonimmigrant; and
(iv) The alien is not the subject of deportation proceedings under section 242
of the Act (prior to April 1, 1997) or removal proceedings under section 240 of
the Act.
(5) Decision in Form I–129 or I–539 extension proceedings. Where an applicant
or petitioner demonstrates eligibility
for a requested extension, it may be
granted at the discretion of the Service. There is no appeal from the denial
of an application for extension of stay
filed on Form I–129 or I–539.
(d) Termination of status. Within the
period of initial admission or extension
of stay, the nonimmigrant status of an
alien shall be terminated by the revocation of a waiver authorized on his
or her behalf under section 212(d) (3) or
(4) of the Act; by the introduction of a
private bill to confer permanent resident status on such alien; or, pursuant
to notification in the FEDERAL REGISTER, on the basis of national security,
diplomatic, or public safety reasons.

(e) Employment. A nonimmigrant in
the United States in a class defined in
section 101(a)(15)(B) of the Act as a
temporary visitor for pleasure, or section 101(a)(15)(C) of the Act as an alien
in transit through this country, may
not engage in any employment. Any
other nonimmigrant in the United
States may not engage in any employment unless he has been accorded a
nonimmigrant classification which authorizes employment or he has been
granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant
who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to
maintain status within the meaning of
section 241(a)(1)(C)(i) of the Act.
(f) Registration and false information.
A nonimmigrant’s admission and continued stay in the United States is conditioned on compliance with any registration,
photographing,
and
fingerprinting
requirements
under
§ 264.1(f) of this chapter that relate to
the maintenance of nonimmigrant status and also on the full and truthful
disclosure of all information requested
by the Service. Willful failure by a
nonimmigrant to register or to provide
full and truthful information requested
by the Service (regardless of whether
or not the information requested was
material) constitutes a failure to maintain nonimmigrant status under section 237(a)(1)(C)(i) of the Act (8 U.S.C.
1227(a)(1)(C)(i)).
(g) Criminal activity. A condition of a
nonimmigrant’s admission and continued stay in the United States is obedience to all laws of United States jurisdictions which prohibit the commission
of crimes of violence and for which a
sentence of more than one year imprisonment may be imposed. A nonimmigrant’s conviction in a jurisdiction in the United States for a crime of
violence for which a sentence of more
than one year imprisonment may be
imposed (regardless of whether such
sentence is in fact imposed) constitutes
a failure to maintain status under section 241(a)(1)(C)(i) of the Act.

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8 CFR Ch. I (1–1–16 Edition)

(h) Education privacy and F, J, and M
nonimmigrants. As authorized by section 641(c)(2) of Division C of Pub. L.
104–208, 8 U.S.C. 1372, and § 2.1(a) of this
chapter, the Service has determined
that, with respect to F and M nonimmigrant students and J nonimmigrant exchange visitors, waiving
the provisions of the Family Educational Rights and Privacy Act
(FERPA), 20 U.S.C. 1232g, is necessary
for the proper implementation of 8
U.S.C. 1372. An educational agency or
institution may not refuse to report information concerning an F or M nonimmigrant student or a J nonimmigrant exchange visitor that the
educational agency or institution is required to report under 8 U.S.C. 1372 and
§ 214.3(g) (or any corresponding Department of State regulation concerning J
nonimmigrants) on the basis of FERPA
and any regulation implementing
FERPA. The waiver of FERPA under
this paragraph authorizes and requires
an educational agency or institution to
report information concerning an F, J
or M nonimmigrant that would ordinarily be protected by FERPA, but
only to the extent that 8 U.S.C. 1372
and § 214.3(g) (or any corresponding Department of State regulation concerning J nonimmigrants) requires the
educational agency or institution to
report information.
(i) Employment in a health care occupation. (1) Except as provided in 8 CFR
212.15(n), any alien described in 8 CFR
212.15(a) who is coming to the United
States to perform labor in a health
care occupation described in 8 CFR
212.15(c) must obtain a certificate from
a credentialing organization described
in 8 CFR 212.15(e). The certificate or
certified statement must be presented
to the Department of Homeland Security in accordance with 8 CFR 212.15(d).
In the alternative, an eligible alien
seeking admission as a nurse may obtain a certified statement as provided
in 8 CFR 212.15(h).
(2) A TN nonimmigrant may establish that he or she is eligible for a
waiver described at 8 CFR 212.15(n) by
providing evidence that his or her initial admission as a TN (or TC) nonimmigrant health care worker occurred
before September 23, 2003, and he or she
was licensed and employed in the

United States as a health care worker
before September 23, 2003. Evidence
may include, but is not limited to, copies of TN or TC approval notices, copies
of
Form
I–94
Arrival/Departure
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

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§ 214.2

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 part 655, 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]

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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.
(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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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/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 arrange-

ments 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 (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:

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Department of Homeland Security

§ 214.2

(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 em-

ployed 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
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 (see
§ 1.4), 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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

(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.
(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

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Department of Homeland Security

§ 214.2

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,
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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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
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

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Department of Homeland Security

§ 214.2

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
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

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8 CFR Ch. I (1–1–16 Edition)

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 conditions 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 em-

ploying 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
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

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§ 214.2

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, readmission 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 identifi-

able. 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.
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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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.
(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

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§ 214.2

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
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.

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8 CFR Ch. I (1–1–16 Edition)

(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:
(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.
(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
CNMI-only
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;

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§ 214.2

(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 long-term 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. Longterm 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 Long-Term 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 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.

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8 CFR Ch. I (1–1–16 Edition)

(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 longterm 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

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§ 214.2

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.
(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-tojoin 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.

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8 CFR Ch. I (1–1–16 Edition)

(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 long-term 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
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).
(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

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§ 214.2

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.
(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 endorse-

ment 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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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
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 beneficiary 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.

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Department of Homeland Security

§ 214.2

(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
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 recog-

nized 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 on-

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

line 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.
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 illness 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.

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§ 214.2

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.
(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

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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
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 re-

turn 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

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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
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

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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
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 emer-

gent 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

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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
(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

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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
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

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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.
(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

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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
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 re-

sponsibility 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 expiration 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.

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Department of Homeland Security

§ 214.2

(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
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) F–2 post-secondary/vocational study—(1) Authorized study at
SEVP-certified schools. An F–2 spouse or
F–2 child may enroll in less than a full
course of study, as defined in paragraphs (f)(6)(i)(A) through (D) and
(m)(9)(i) through (iv), in any course of
study
described
in
paragraphs
(f)(6)(i)(A) through (D) or (m)(9)(i)
through (iv) of this section at an
SEVP-certified
school.
Notwithstanding paragraphs (f)(6)(i)(B) and
(m)(9)(i) of this section, study at an undergraduate college or university or at
a community college or junior college
is not a full course of study solely because the F–2 nonimmigrant is engaging in a lesser course load to complete
a course of study during the current
term. An F–2 spouse or F–2 child enrolled in less than a full course of
study is not eligible to engage in employment pursuant to paragraphs (f)(9)
and (10) of this section or pursuant to
paragraph (m)(14) of this section.
(2) Full course of study. Subject to
paragraphs (f)(15)(ii)(B) and (f)(18) of
this section, an F–2 spouse and child
may engage in a full course of study
only by applying for and obtaining a

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

change of status to F–1, M–1 or J–1 nonimmigrant status, as appropriate, before beginning a full course of study.
An F–2 spouse and child may engage in
study that is avocational or recreational in nature, up to and including on a full-time basis.
(B) F–2 elementary or secondary study.
An F–2 child may engage in full-time
study, including any full course of
study, in any elementary or secondary
school (kindergarten through twelfth
grade).
(C) An F–2 spouse and child violates
his or her nonimmigrant status by enrolling in any 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
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,

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Department of Homeland Security

§ 214.2

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 nonimmigrant 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.
(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:

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

(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
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

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Department of Homeland Security

§ 214.2

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 de-

pendents 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
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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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 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
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:

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Department of Homeland Security

§ 214.2

(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
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.

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(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 eligibility 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
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.

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(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]
(v) H–2A Petitions. Special criteria for
admission, extension, and maintenance
of status apply to H–2A petitions and
are specified in paragraph (h)(5) of this
section. The other provisions of
§ 214.2(h) apply to H–2A only to the extent that they do not conflict with the
special agricultural provisions in paragraph (h)(5) of this section.
(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 re-

ferred 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.
(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

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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 registered 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
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

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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 photocopies 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 grant-

ed 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
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

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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 minimum 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 re-

quired 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
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;

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(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
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

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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 con-

tinues 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)
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.

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§ 214.2

(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 require 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
(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.

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8 CFR Ch. I (1–1–16 Edition)

(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
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

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§ 214.2

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 Depart-

ment 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
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

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8 CFR Ch. I (1–1–16 Edition)

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 requirements, 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
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.

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§ 214.2

(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
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

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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.
(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

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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).
(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

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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 petition 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.
(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;

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(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 admission 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
shall be a one-time occurrence, a seasonal need, a peak load need, or an
intermittent need.
(1) One-time occurance. 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

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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 Governor of Guam shall separately establish procedures for administering the temporary labor program
under his or her jurisdiction. The Secretary of Labor shall separately establish for the temporary labor program
under his or her jurisdiction, by regulation at 20 CFR 655, procedures for administering that temporary labor program under his or her jurisdiction, and
shall determine the prevailing wage applicable to an application for temporary labor certification for that temporary labor program in accordance

with the Secretary of Labor’s regulation at 20 CFR 655.10.
(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,
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

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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 determinations 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;
(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

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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
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

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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 vis-

itor 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
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

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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 suffi-

ciently 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
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.

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Department of Homeland Security

§ 214.2

(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
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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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
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.
(ii) Recording the validity of petitions.
Procedures for recording the validity
period of petitions are:
(A) If a new H petition is approved
before the date the petitioner indicates
that the services or training will begin,
the approved petition and approval notice shall show the actual dates requested by the petitoner as the validity
period, not to exceed the limits specified by paragraph (h)(9)(iii) of this section or other Service policy.
(B) If a new H petition is approved
after the date the petitioner indicates
that the services or training will begin,
the aproved petition and approval notice shall show a validity period commencing with the date of approval and
ending with the date requested by the
petitioner, as long as that date does
not exceed either the limits specified
by paragraph (h)(9)(iii) of this section
or other Service policy.
(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.

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Department of Homeland Security

§ 214.2

(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. 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.
(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) H–4 dependents. The spouse and
children of an H nonimmigrant, if they
are accompanying or following to join
such H nonimmigrant in the United
States, may be admitted, if otherwise
admissible, as H–4 nonimmigrants for
the same period of admission or extension as the principal spouse or parent.

H–4 nonimmigrant status does not confer eligibility for employment authorization incident to status. An H–4 nonimmigrant spouse of an H–1B nonimmigrant may be eligible for employment authorization only if the H–1B
nonimmigrant is the beneficiary of an
approved Immigrant Petition for Alien
Worker, or successor form, or the H–1B
nonimmigrant’s period of stay in H–1B
status is authorized in the United
States under sections 106(a) and (b) of
the American Competitiveness in the
Twenty-first Century Act of 2000
(AC21), Public Law 106–313, as amended
by the 21st Century Department of Justice Appropriations Authorization Act,
Public Law 107–273 (2002). To request
employment authorization, an eligible
H–4 nonimmigrant spouse must file an
Application for Employment Authorization, or a successor form, in accordance with 8 CFR 274a.13 and the form
instructions. If such Application for
Employment Authorization is filed
concurrently with another related benefit request(s), in accordance with and
as permitted by form instructions, the
90-day period described in 8 CFR
274.13(d) will commence on the latest
date that a concurrently filed related
benefit request is approved. An Application for Employment Authorization
must be accompanied by documentary
evidence establishing eligibility, including evidence of the spousal relationship and that the principal H–1B is
the beneficiary of an approved Immigrant Petition for Alien Worker or has
been provided H–1B status under sections 106(a) and (b) of AC21, as amended
by the 21st Century Department of Justice Appropriations Authorization Act,
the H–1B beneficiary is currently in H–
1B status, and the H–4 nonimmigrant
spouse is currently in H–4 status.
(10) Denial of petition—(i) Multiple
beneficiaries. A petition for multiple
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.

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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. 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. 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
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.

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Department of Homeland Security

§ 214.2

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 business 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
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.

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

(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,
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

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Department of Homeland Security

§ 214.2

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
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).

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

(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
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

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§ 214.2

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 period 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 visi-

tors. 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
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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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 designated 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
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

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§ 214.2

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 exchange 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.
(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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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;
(B) An application for an immigrant
visa based on a Form I–130 described in
§ 214.2(K)(10)(i);

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§ 214.2

(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 preceding 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
but such periods shall not be counted
toward fulfillment of that requirement.

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

(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
(2) One of two legal entities owned
and controlled by the same group of individuals, each individual owning and

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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
organizational structure, and its financial goals;

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8 CFR Ch. I (1–1–16 Edition)

(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 visaexempt nonimmigrant seeking L classification under a blanket petition or

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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 approv-

able 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.

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(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.

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(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

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8 CFR Ch. I (1–1–16 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

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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

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§ 214.2

8 CFR Ch. I (1–1–16 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

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§ 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

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§ 214.2

8 CFR Ch. I (1–1–16 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]

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§ 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.

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8 CFR Ch. I (1–1–16 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

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§ 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.

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8 CFR Ch. I (1–1–16 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);

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(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) M–2 post-secondary/vocational study—(1) Authorized study at

SEVP-certified schools. An M–2 spouse or
M–2 child may enroll in less than a full
course of study, as defined in paragraphs (f)(6)(i)(A) through (D) or
(m)(9)(i) through (v), in any course of
study
described
in
paragraphs
(f)(6)(i)(A) through (D) or (m)(9)(i)
through (v) of this section at an SEVPcertified school. Notwithstanding paragraphs (f)(6)(i)(B) and (m)(9)(i) of this
section, study at an undergraduate college or university or at a community
college or junior college is not a full
course of study solely because the M–2
nonimmigrant is engaging in a lesser
course load to complete a course of
study during the current term. An M–2
spouse or M–2 child enrolled in less
than a full course of study is not eligible to engage in employment pursuant
to paragraph (m)(14) of this section or
pursuant to paragraphs (f)(9) through
(10) of this section.
(2) Full course of study. Subject to
paragraph (m)(17)(ii)(B) of this section,
an M–2 spouse and child may engage in
a full course of study only by applying
for and obtaining a change of status to
F–1, M–1, or J–1 status, as appropriate,
before beginning a full course of study.
An M–2 spouse and M–2 child may engage in study that is avocational or
recreational in nature, up to and including on a full-time basis.
(B) M–2 elementary or secondary study.
An M–2 child may engage in full-time
study, including any full course of
study, in any elementary or secondary
school (kindergarten through twelfth
grade).
(C) An M–2 spouse or child violates
his or her nonimmigrant status by enrolling in any study except as provided
in paragraph (m)(17)(ii)(A) or (B) 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

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8 CFR Ch. I (1–1–16 Edition)

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
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

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§ 214.2

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
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 crit-

ical 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;

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8 CFR Ch. I (1–1–16 Edition)

(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
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 additional 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

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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.
(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 related 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.

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(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
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

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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.
(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 criti-

cally 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

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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
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 au-

thorized 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

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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
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 produc-

tion, 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

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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
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

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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;
(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.

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(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
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

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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
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 orga-

nization 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

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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:
(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

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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
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 substi-

tution, 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, entertainment 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

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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.
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 participation 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

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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
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

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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.
(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

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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
(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 news-

papers, 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

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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.
(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 reciprocal 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

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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
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 com-

mencing 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,

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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
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 validity 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

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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
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

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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
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

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readmitted 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–
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 pro-

gram 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 international 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

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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;
(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 paragraph (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

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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
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 direc-

tor 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

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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
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.

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(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
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

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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
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 taxation 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;

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(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
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.

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(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,
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

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(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
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:

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(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
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 terminated 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

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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
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 Agree-

ment), 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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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
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

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Department of Homeland Security

§ 214.2

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.
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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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
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

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Department of Homeland Security

§ 214.2

(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
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

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§ 214.2

8 CFR Ch. I (1–1–16 Edition)

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.
(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

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Department of Homeland Security

§ 214.2

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.
(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.

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8 CFR Ch. I (1–1–16 Edition)

(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.
(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 and
maintenance of CW status in the Commonwealth of the Northern Mariana Islands (the CNMI or the Commonwealth):
(i) Direct Guam transit means travel
from the CNMI to the Philippines by an
alien in CW status, or from the Philippines to the CNMI by an alien with a
valid CW visa, on a direct itinerary involving a flight stopover or connection
in Guam (and no other place) within 8
hours of arrival in Guam, without the
alien leaving the Guam airport.
(ii) 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.
(iii) 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.
(iv) Employer-employee relationship
means that the employer will hire, pay,
fire, supervise, and control the work of
the employee.
(v) Lawfully present in the CNMI
means that the alien:
(A) At the time the application for
CW status is filed, is an alien lawfully
present in the CNMI under 48 U.S.C.
1806(e); or
(B) Was lawfully admitted or paroled
into the CNMI under the immigration
laws on or after the transition program
effective date, other than an alien admitted or paroled as a visitor for business or pleasure (B–1 or B–2, under any
visa-free travel provision or parole of

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§ 214.2

certain visitors from Russia and the
People’s Republic of China), and remains in a lawful immigration status.
(vi) 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
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. DHS will determine whether
a business is legitimate.
(vii) Minor child means a child as defined in section 101(b)(1) of the Act who
is under 18 years of age.
(viii) 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
DHS, as follows:
(A) For fiscal year 2011, the numerical limitation is 22,417 per fiscal year.
(B) For fiscal year 2012, the numerical limitation is 22,416 per fiscal year.
(C) For each fiscal year beginning on
October 1, 2012 until the end of the
transition period, the numerical limitation will be a number less than 22,416
that is determined by DHS and published via Notice in the FEDERAL REGISTER. The numerical limitation for
any fiscal year will be less than the
number for the previous fiscal year,
and will be a number reasonably calculated in DHS’s discretion to reduce
the number of CW–1 nonimmigrants to
zero by the end of the transition period.
(D) DHS may adjust the numerical
limitation for a fiscal year or other period in its discretion at any time via
Notice in the FEDERAL REGISTER, as
long as such adjustment is consistent
with paragraph (w)(1)(viii)(C) of this
section.
(E) If the numerical limitation is not
reached for a specified fiscal year, unused numbers do not carry over to the
next fiscal year.
(ix) Occupational category means
those employment activities that DHS
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.
(x) Petition means USCIS Form I–
129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, a successor form, other form, or electronic
equivalent, any supplemental information requested by USCIS, and additional evidence as may be prescribed or
requested by USCIS.
(xi) 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, in
which case the transition period will
end for purposes of the CW transitional
worker program on the date designated
by the Secretary of Labor.
(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 that DHS has designated 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 or has been

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granted a waiver of each applicable
ground of inadmissibility; and
(vi) Is ineligible for status in a nonimmigrant worker classification under
section 101(a)(15) 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;
(ii) If present in the CNMI, is lawfully present in the CNMI; and
(iii) Is not inadmissible to the United
States as a nonimmigrant or has been
granted a waiver of each applicable
ground of inadmissibility.
(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 position being
filled by the CW–1 worker;
(iii) Offer terms and conditions of
employment which are consistent with
the nature of the petitioner’s business
and 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. An employer
filing a petition is eligible to apply for
a waiver of the fee based upon inability
to pay as provided by 8 CFR 103.7(c). If
the beneficiary will perform services
for more than one employer, each employer must file a separate petition
with fees with USCIS.
(6) Appropriate documents. Documentary evidence establishing eligibility
for CW status is required. 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 ap-

propriate official of the petitioner, of
the following:
(A) No qualified United States worker is available to fill the position;
(B) The employer is doing business as
defined in paragraph (w)(1)(ii) of this
section;
(C) The employer is a legitimate
business as defined in paragraph
(w)(1)(vi) of this section;
(D) The employer is an eligible employer as described in paragraph (w)(4)
of this section and will continue to
comply with the requirements for an
eligible employer until such time as
the employer no longer employs the
CW–1 nonimmigrant worker;
(E) The beneficiary meets the qualifications for the position;
(F) The beneficiary, if present in the
CNMI, is lawfully present in the CNMI;
(G) 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
(H) The position falls within the list
of occupational categories designated
by DHS.
(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

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§ 214.2

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. A change of
employment to a new employer inconsistent with paragraphs (w)(7)(i) and
(ii) of this section 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 to classify the alien as
a CW–1 worker in accordance with
paragraph (w)(5) of this section, and
(ii) An extension of the alien’s stay is
requested if necessary for the validity
period of the petition.
(iii) A CW–1 may work for a prospective new employer after the prospective new employer files a Form I–129CW
petition on the employee’s behalf if:
(A) The prospective employer has
filed a nonfrivolous petition for new
employment before the date of expiration of the CW–1’s authorized period of
stay; and
(B) Subsequent to his or her lawful
admission, the CW–1 has not been employed without authorization in the
United States.
(iv) Employment authorization shall
continue for such alien until the new
petition is adjudicated. If the new petition is denied, such authorization shall
cease.
(v) If a CW–1’s employment has been
terminated prior to the filing of a petition by a prospective new employer
consistent with paragraphs (w)(7)(i)
and (ii), the CW–1 will not be considered to be in violation of his or her
CW–1 status during the 30-day period
immediately following the date on
which the CW–1’s employment terminated if a nonfrivolous petition for new
employment is filed consistent with
this paragraph within that 30-day period and the CW–1 does not otherwise
violate the terms and conditions of his
or her status during that 30-day period.
(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.

(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.
(13) Petition validity. An approved petition will be valid for a period of up to
one year.
(14) How to apply for CW–1 or CW–2
status. (i) Upon approval of the petition, a beneficiary, his or her eligible
spouse, and or his or her minor
child(ren) outside the CNMI will be informed in the approval notice of where
they may apply for a visa authorizing
admission in CW–1 or CW–2 status.
(ii) If the beneficiary is present in the
CNMI, the petition also serves as the
application for a grant of status as a
CW–1.
(iii) If the eligible spouse and/or
minor child(ren) are present in the
CNMI, the spouse or child(ren) may
apply for CW–2 dependent status on
Form I–539 (or such alternative form as

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USCIS may designate) in accordance
with the form instructions. The CW–2
status may not be approved until approval of the CW–1 petition. A spouse
or child applying for CW–2 status on
Form I–539 is eligible to apply for a
waiver of the fee based upon inability
to pay as provided by 8 CFR 103.7(c).
(15) Biometrics and other information.
The beneficiary of a CW–1 petition or
the spouse or child applying for a grant
or, extension of CW–2 status, or a
change of status to CW–2 status, must
submit biometric information as requested by USCIS. For a Form I–129CW
petition where the beneficiary is
present in the CNMI, the employer
must submit the biometric service fee
described in 8 CFR 103.7(b)(1) with the
petition for each beneficiary for which
CW–1 status is being requested or request a fee waiver for any biometric
services provided, including but not
limited to reuse of previously provided
biometric information for background
checks. For a Form I–539 application
where the applicant is present in the
CNMI, the applicant must submit a biometric service fee for each CW–2 nonimmigrant on the application with the
application or obtain a waiver of the
biometric service fee described in 8
CFR 103.7(b)(1) for any biometric services provided, including but not limited
to reuse of previously provided biometric information for background checks.
A biometric service fee is not required
for beneficiaries under the age of 14, or
who are at least 79 years of age.
(16) Period of admission. (i) A CW–1
nonimmigrant will be admitted for the
period of petition validity, plus up to 10
days before the validity period begins
and 10 days after the validity period
ends. The CW–1 nonimmigrant may not
work except during the validity period
of the petition. 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
will 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 re-

mains eligible for admission as a CW–1
nonimmigrant.
(17) Extension of 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.
(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 a period of up to 1 year
until the end of the transition period,
subject to the numerical limitation.
(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;
(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 the beneficiary
of a petition 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 be granted, be admitted in and
maintain lawful CW–1 or CW–2 nonimmigrant status while, at the same
time, lawfully seeking 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

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§ 214.2

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;
(iii) An application for CW–2 classification filed by an alien;
(iv) A request to extend CW–2 status
pursuant to the extension of a related
CW–1 alien’s extension; or
(v) An application for admission as a
CW–1 or CW–2 nonimmigrant.
(20) Rejection. USCIS may reject an
employer’s petition for new or extended 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 CW 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 classification or 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 petition to classify an alien as a CW–1 may be appealed to the USCIS Administrative
Appeals Office or any successor body.
The denial of a grant of CW–1 or CW–2
status within the CNMI, or of an application for change or extension of status filed under this section, 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. Except
as
provided
in
paragraph
(w)(22)(iii) of this section, an alien with
CW–1 or CW–2 status who enters or attempts to enter, or travels or attempts
to travel to any other part of the
United States without an appropriate
visa or visa waiver, or who violates
conditions of nonimmigrant stay appli-

cable 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 travels abroad from
the CNMI will require a CW–1 or CW–2
or other appropriate visa to be re-admitted to the CNMI.
(iii) Direct Guam transit.
(A) Travel from the CNMI to the Philippines. An alien with CW–1 or CW–2
status who is a national of the Philippines may travel to the Philippines
via a direct Guam transit without
being deemed to violate that status.
(B) Travel from the Philippines to the
CNMI. An alien who is a national of the
Philippines may travel to the CNMI via
a direct Guam transit under the following conditions: If an immigration
officer determines that the alien warrants a discretionary exercise of parole
authority, the alien may be paroled
into Guam via direct Guam transit to
undergo preinspection outbound from
Guam for admission to the CNMI pursuant to 8 CFR 235.5(a) or to proceed
for inspection upon arrival in the
CNMI. During any such preinspection,
the alien will be admitted in CW–1 or
CW–2 status if the immigration officer
in Guam determines that the alien is
admissible to the CNMI. A condition of
the admission is that the alien must
complete the direct Guam transit.
DHS, in its discretion, may exempt
such alien from the provisions of 8 CFR
235.5(a) relating to separation and
boarding of passengers after inspection.
(iv) 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 status. CW–1 status
expires when the alien violates his or
her CW–1 status (or in the case of a
CW–1 status violation caused solely by
termination of the alien’s employment,
at the end of the 30 day period described in section 214.2(w)(7)(v)), 10
days after the end of the petition’s validity period, or at the end of the transitional worker program, whichever is
earlier. CW–2 nonimmigrant status expires when the status of the related
CW–1 alien expires, on a CW–2 minor

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8 CFR Ch. I (1–1–16 Edition)

child’s 18th birthday, when the alien
violates his or her status, or at the end
of the transitional worker program,
whichever is earlier. No alien will be
eligible for admission to the CNMI in
CW–1 or CW–2 status, and no CW–1 or
CW–2 visa will be valid for travel to the
CNMI, after the transitional worker
program ends.
(24) Waivers of inadmissibility for applicants lawfully present in the CNMI. An
applicant for CW–1 or CW–2 nonimmigrant status, who is otherwise eligible for such status and otherwise admissible to the United States, and who
possesses appropriate documents demonstrating that the applicant is lawfully present in the CNMI, 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) and 212(a)(7)(B)(i)(II) of
the Act, as a matter of discretion for
the purpose of granting the CW–1 or
CW–2 nonimmigrant status. Such waiver may be granted without additional
form or fee. Appropriate documents required for such a waiver include a valid
unexpired passport and other documentary evidence demonstrating that the
applicant is lawfully present in the
CNMI, such as an ‘‘umbrella permit’’ or
a DHS-issued Form I–94. Evidence that
the applicant possesses appropriate
documents may be provided by an employer to accompany a petition, by an
eligible spouse or minor child to accompany the Form I–539 (or such alternative form as USCIS may designate),
or in such other manner as USCIS may
designate.
(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]

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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.

§ 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 authoriza-

tion 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).

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§ 214.3

(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
technical training and which awards
recognized associate degrees.
(B) A vocational high school.
(C) A school which provides vocational or nonacademic training other
than language training.
(iii) Both F–1 and M–1 classification. A
school may be approved for attendance
by nonimmigrant students under both
sections
101(a)(15)(F)(i)
and
101(a)(15)(M)(i) of the Act if it has both
instruction in the liberal arts, fine
arts, language, religion, or the professions and vocational or technical training. In that case, a student whose primary intent is to pursue studies in liberal arts, fine arts, language, religion,
or the professions at the school is classified as a nonimmigrant under section
101(a)(15)(F)(i) of the Act. A student
whose primary intent is to pursue vocational or technical training at the
school is classified as a nonimmigrant
under section 101(a)(15)(M)(i) of the
Act.
(iv) English language training for a vocational student. A student whose pri-

mary intent is to pursue vocational or
technical training who takes English
language training at the same school
solely for the purpose of being able to
understand the vocational or technical
course of study is classified as a nonimmigrant
under
section
101(a)(15)(M)(i) of the Act.
(v) The following may not be approved for attendance by foreign students:
(A) A home school,
(B) A public elementary school, or
(C) An adult education program, as
defined by section 203(l) of the Adult
Education and Family Literacy Act,
Public Law 105–220, as amended, 20
U.S.C. 9202(l), if the adult education
program is funded in whole or in part
by a grant under the Adult Education
and Family Literacy Act, or by any
other Federal, State, county or municipal funding.
(3) Eligibility. (i) The petitioner, to be
eligible for certification, must establish at the time of filing that it:
(A) Is a bona fide school;
(B) Is an established institution of
learning or other recognized place of
study;
(C) Possesses the necessary facilities,
personnel, and finances to conduct instruction in recognized courses; and
(D) Is, in fact, engaged in instruction
in those courses.
(ii) The petitioner, to be eligible for
recertification, must establish at the
time of filing that it:
(A) Remains eligible for certification
in accordance with paragraph (a)(3)(i)
of this section;
(B) Has complied during its previous
period of certification or recertification with recordkeeping, retention,
and reporting requirements and all
other requirements of paragraphs (g),
(j), (k), and (l) of this section.
(b) Supporting documents. Institutions
petitioning for certification or recertification must submit certain supporting documents as follows, pursuant
to sections 101(a)(15)(F) and (M) of the
Act. A petitioning school or school system owned and operated as a public
educational institution or system by
the United States or a State or a political subdivision thereof shall submit a
certification to that effect signed by
the appropriate public official who

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shall certify that he or she is authorized to do so. A petitioning private or
parochial elementary or secondary
school system shall submit a certification signed by the appropriate public
official who shall certify that he or she
is authorized to do so to the effect that
it meets the requirements of the State
or local public educational system.
Any other petitioning school shall submit a certification by the appropriate
licensing, approving, or accrediting official who shall certify that he or she is
authorized to do so to the effect that it
is licensed, approved, or accredited. In
lieu of such certification a school
which offers courses recognized by a
State-approving agency as appropriate
for study for veterans under the provisions of 38 U.S.C. 3675 and 3676 may submit a statement of recognition signed
by the appropriate official of the State
approving agency who shall certify
that he or she is authorized to do so. A
charter shall not be considered a license, approval, or accreditation. A
school catalogue, if one is issued, shall
also be submitted with each petition. If
not included in the catalogue, or if a
catalogue is not issued, the school
shall furnish a written statement containing information concerning the
size of its physical plant, nature of its
facilities for study and training, educational, vocational or professional
qualifications of the teaching staff, salaries of the teachers, attendance and
scholastic grading policy, amount and
character of supervisory and consultative services available to students and
trainees, and finances (including a certified copy of the accountant’s last
statement of school’s net worth, income, and expenses). Neither a catalogue nor such a written statement
need be included with a petition submitted by:
(1) A school or school system owned
and operated as a public educational
institution or system by the United
States or a State or a political subdivision thereof;
(2) A school accredited by a nationally recognized accrediting body; or
(3) A secondary school operated by or
as part of a school so accredited.
(c) Other evidence. If the petitioner is
a vocational, business, or language
school, or American institution of re-

search recognized as such by the Secretary of Homeland Security, it must
submit evidence that its courses of
study are accepted as fulfilling the requirements for the attainment of an
educational, professional, or vocational
objective, and are not avocational or
recreational in character. If the petitioner is a vocational, business, or language school, or American institution
of research recognized as such by the
Attorney General, it must submit evidence that its courses of study are accepted as fulfilling the requirements
for the attainment of an educational,
professional, or vocational objective,
and are not avocational or recreational
in character. If the petitioner is an institution of higher education and is not
within the category described in paragraph (b) (1) or (2) of this section, it
must submit evidence that it confers
upon its graduates recognized bachelor,
master, doctor, professional, or divinity degrees, or if it does not confer
such degrees that its credits have been
and are accepted unconditionally by at
least three such institutions of higher
learning. If the petitioner is an elementary or secondary school and is not
within the category described in paragraph (b) (1) or (3) of this section, it
must submit evidence that attendance
at the petitioning institution satisfies
the compulsory attendance requirements of the State in which it is located and that the petitioning school
qualifies graduates for acceptance by
schools of a higher educational level
within the category described in paragraph (b) (1), (2), or (3) of this section.
(d) Interview of petitioner. The petitioner or an authorized representative
of the petitioner may be required to appear in person before or be interviewed
by telephone by a DHS representative
prior to the adjudication of a petition
for certification or recertification. The
interview will be conducted under oath.
(e) Notices to schools related to certification or recertification petitions or to
out-of-cycle review—(1) General. All notices from SEVP to schools or school
systems related to school certification,
recertification, or out-of-cycle review
(including, but not limited to, notices
related to the collection of evidence,
testimony, and appearance pertaining

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Department of Homeland Security

§ 214.3

to petitions for recertification encompassing compliance with the recordkeeping, retention and reporting, and
other requirements of paragraphs (f),
(g), (j), (k), and (l) of this section, as
well as to eligibility) will be served in
accordance with the procedures at 8
CFR 103.2(b)(1), (4)–(16), (18) and (19),
with the exception that all procedures
will be conducted by SEVP, the SEVP
Director, and the Assistant Secretary,
ICE, as appropriate, and except as provided in this section. All such notices
will be served (i.e., generated and
transmitted) through SEVIS and/or by
e-mail. The date of service is the date
of transmission of the e-mail notice.
DSOs must maintain current contact
information, including current e-mail
addresses, at all times. Failure of a
school to receive SEVP notices due to
inaccurate DSO e-mail addresses in
SEVIS or blockages of the school’s email system caused by spam filters is
not grounds for appeal of a denial or
withdrawal. The term ‘‘in writing’’
means either a paper copy bearing
original signatures or an electronic
copy bearing electronic signatures.
(2) SEVP approval notification and
SEVIS updating by certified schools.
SEVP will notify the petitioner by updating SEVIS to reflect approval of the
petition and by e-mail upon approval of
a certification or recertification petition. The certification or recertification is valid only for the type of program and nonimmigrant classification
specified in the certification or recertification approval notice. The certification must be recertified every two
years and may be subject to out-ofcycle review at any time. Approval
may be withdrawn in accordance with 8
CFR 214.4.
(3) Modifications to Form I–17 while a
school is SEVP-certified. Any modification made by an SEVP-certified school
on the Form I–17 at any time after certification and for the duration of a
school’s authorization to enroll F and/
or M students must be reported to
SEVP and will be processed by SEVP
in accordance with the provisions of
paragraphs (f)(1), (g)(2) and (h)(3)(i) of
this section.
(4) Notice of Intent to Withdraw
(NOIW) SEVP certification—(i) Automatic
withdrawal. SEVP will serve the school

with an NOIW 30 days prior to a
school’s SEVP certification expiration
date if the school has not submitted to
SEVP a completed recertification petition, in accordance with paragraph
(h)(2) of this section. The school will be
automatically withdrawn immediately,
in accordance with 8 CFR 214.4(a)(3), if
it has not submitted a completed recertification petition by the school’s certification expiration date.
(ii) Withdrawal on notice. SEVP will
serve a Withdrawal on Notice, in accordance with 8 CFR 214.4(b), if SEVP
determines that a school reviewed outof-cycle has failed to sustain eligibility
or has failed to comply with the recordkeeping, retention, reporting and
other requirements of paragraphs (f),
(g), (j), (k), and (l) of this section. When
a school fails to file an answer to an
NOIW within the 30-day period, SEVP
will withdraw the school’s certification
and notify the DSOs of the decision, in
accordance with 8 CFR 214.4(d). Such
withdrawal of certification may not be
appealed.
(5) Notice of Denial. A Notice of Denial will be served to a school when
SEVP denies a petition for initial certification or recertification. The notice
will address appeals options. Schools
denied recertification must comply
with 8 CFR 214.4(i).
(6) Notice of Automatic Withdrawal.
Schools that relinquish SEVP certification for any of the reasons cited in 8
CFR 214.4(a)(3) will be served a Notice
of Automatic Withdrawal.
(7) Notice of Withdrawal. A school
found to be ineligible for continued
SEVP certification as a result of an
out-of-cycle review will receive a Notice of Withdrawal. Schools withdrawn
must comply with 8 CFR 214.4(i).
(8) Notice of SEVIS Access Termination
Date. The Notice of SEVIS Access Termination Date gives the official date
for the school’s denial or withdrawal to
be final and SEVIS access to be terminated. In most situations, SEVP will
not determine a SEVIS access termination date for that school until the
appeals process has concluded and the
initial denial or withdrawal has been
upheld, in accordance with 8 CFR
214.4(i)(3). The school will no longer be
able to access SEVIS and SEVP will

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8 CFR Ch. I (1–1–16 Edition)

automatically terminate any remaining Active SEVIS records for that
school on that date.
(f) Adjudication of a petition for SEVP
certification or recertification—(1) Approval. The school is required to immediately report through SEVIS any
change to its school information upon
approval of a petition for SEVP certification or recertification. Modification
to school information listed in paragraph (h)(3) of this section will require
a determination of continued eligibility for certification. The certification or recertification is valid only
for the type of program and student
specified in the approval notice. The
certification may be withdrawn in accordance with the provisions of 8 CFR
214.4, is subject to review at any time,
and will be reviewed every two years.
(2) Denial. The petitioner will be notified of the reasons for the denial and
appeal rights, in accordance with the
provisions of 8 CFR part 103 and 8 CFR
214.4, if SEVP denies a petition for certification or recertification.
(g) Recordkeeping and reporting requirements—(1) Student records. An
SEVP-certified school must keep
records containing certain specific information and documents relating to
each F–1 or M–1 student to whom it has
issued a Form I–20, while the student is
attending the school and until the
school notifies SEVP, in accordance
with the requirements of paragraphs
(g)(1) and (2) of this section, that the
student is not pursuing a full course of
study. Student information not required for entry in SEVIS may be kept
in the school’s student system of
records, but must be accessible to
DSOs. The school must keep a record of
having complied with the reporting requirements for at least three years
after the student is no longer pursuing
a full course of study. The school must
maintain records on the student in accordance with paragraphs (g)(1) and (2)
of this section if a school recommends
reinstatement for a student who is out
of status. The school must maintain
records on the student for three years
from the date of the denial if the reinstatement is denied. The DSO must
make the information and documents
required by this paragraph available,
including academic transcripts, and

must furnish them to DHS representatives upon request. Schools must maintain and be able to provide an academic
transcript or other routinely maintained student records that reflect the
total, unabridged academic history of
the student at the institution, in accordance with paragraph (g)(1)(iv) of
this section. All courses must be recorded in the academic period in which
the course was taken and graded. The
information and documents that the
school must keep on each student are
as follows:
(i) Identification of the school, to include name and full address.
(ii) Identification of the student, to
include name while in attendance
(record any legal name change), date
and place of birth, country of citizenship, and school’s student identification number.
(iii) Current address where the student and his or her dependents physically reside. In the event the student
or his or her dependents cannot receive
mail at such physical residence, the
school must provide a mailing address
in SEVIS. If the mailing address and
the physical address are not the same,
the school must maintain a record of
both mailing and physical addresses
and provide the physical location of
residence of the student and his or her
dependents to DHS upon request.
(iv) Record of coursework. Identify
the student’s degree program and field
of study. For each course, give the periods of enrollment, course identification code and course title; the number
of credits or contact hours, and the
grade; the number of credits or clock
hours, and for credit hour courses the
credit unit; the term unit (semester
hour, quarter hour, etc.). Include the
date of withdrawal if the student withdrew from a course. Show the grade
point average for each session or term.
Show the cumulative credits or clock
hours and cumulative grade point average. Narrative evaluation will be accepted in lieu of grades when the
school uses no other type of grading.
(v) Record of transfer credit or clock
hours accepted. Type of hours, course
identification, grades.

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§ 214.3

(vi) Academic status. Include the effective date or period if suspended, dismissed, placed on probation, or withdrawn.
(vii) Whether the student has been
certified for practical training, and the
beginning and end dates of certification.
(viii) Statement of graduation (if applicable). Title of degree or credential
received, date conferred, program of
study or major.
(ix) Termination date and reason.
(x) The documents referred to in
paragraph (k) of this section.

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NOTE TO PARAGRAPH (g)(1): A DHS officer
may request any or all of the data in paragraphs (g)(1)(i) through (x) of this section on
any individual student or class of students
upon notice. This notice will be in writing if
requested by the school. The school will have
three work days to respond to any request
for information concerning an individual
student, and ten work days to respond to any
request for information concerning a class of
students. The school will respond orally on
the same day the request for information is
made if DHS requests information on a student who is being held in custody, and DHS
will provide a written notification that the
request was made after the fact, if the school
so desires. DHS will first attempt to gain information concerning a class of students
from DHS record systems.

(2) Reporting changes in student and
school information. (i) Schools must update SEVIS with the current information within 21 days of a change in any
of the information contained in paragraphs (f)(1) and (h)(3) of this section.
(ii) Schools are also required to report within 21 days any change of the
information contained in paragraph
(g)(1) or the occurrence of the following
events:
(A) Any student who has failed to
maintain status or complete his or her
program;
(B) A change of the student’s or dependent’s legal name or U.S. address;
(C) Any student who has graduated
early or prior to the program end date
listed on SEVIS Form I–20;
(D) Any disciplinary action taken by
the school against the student as a result of the student being convicted of a
crime; and
(E) Any other notification request
not covered by paragraph (g)(1) of this

section made by DHS with respect to
the current status of the student.
(F) For F–1 students authorized by
USCIS to engage in a 17-month extension of OPT,
(1) Any change that the student reports to the school concerning legal
name, residential or mailing address,
employer name, or employer address;
and
(2) The end date of the student’s employment reported by a former employer
in
accordance
with
§ 214.2(f)(10)(ii)(C)(4).
(iii) Each term or session and no
later than 30 days after the deadline for
registering for classes, schools are required to report the following registration information:
(A) Whether the student has enrolled
at the school, dropped below a full
course of study without prior authorization by the DSO, or failed to enroll;
(B) The current address of each enrolled student; and
(C) The start date of the student’s next
session, term, semester, trimester, or quarter. For initial students, the start date
is the ‘‘program start date’’ or ‘‘report
date.’’ (These terms are used interchangeably.) 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 when determining the report date on the Form I–
20. Such required activities may include, but are not limited to, research
projects and orientation sessions. The
DSO may not, however, indicate a report date more than 30 days prior to
the start of classes. The next session
start date is the start of classes for
continuing students.
(D) Adjustment to the program completion date. Any factors that influence
the student’s progress toward program
completion (e.g., deferred attendance,
authorized drop below, program extension) must be reflected by making an
adjustment updating the program completion date.
(3) Administrative correction of a student’s record. In instances where technological or computer problems on the
part of SEVIS cause an error in the
student’s record, the DSO may request

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§ 214.3

8 CFR Ch. I (1–1–16 Edition)

the SEVIS system administrator, without fee, to administratively correct the
student’s record.
(h) SEVP certification, recertification,
out-of-cycle review, and oversight of
schools—(1) Certification. A school seeking SEVP certification for attendance
by
nonimmigrants
under
section
101(a)(15)(F)(i) or 101(a)(15)(m)(i) of the
Act must use SEVIS to file an electronic petition (which compiles the
data for the Form I–17) and must submit the nonrefundable certification petition fee on-line.
(i) Filing a petition. The school must
access the SEVP Web site at http://
www.ice.gov/sevis to file a certification
petition in SEVIS. The school will be
issued a temporary ID and password in
order to access SEVIS to complete and
submit an electronic Form I–17. The
school must submit the proper nonrefundable certification petition fee as
provided in 8 CFR 103.7(b)(1).
(ii) Site visit, petition adjudication and
school notification. SEVP will conduct a
site visit for each petitioning school
and its additional schools or campuses.
SEVP will contact the school to arrange the site visit. The school must
comply with and complete the visit
within 30 days after the date SEVP
contacts the school to arrange the
visit, or the petition for certification
will be denied as abandoned. DSOs and
school officials that have signed the
school’s Form I–17 petition must be
able to demonstrate to DHS representatives how they obtain access to the
regulations cited in the certification as
part of the site visit. Paper or electronic access is acceptable. DSOs must
be able to extract pertinent citations
within the regulations related to their
requirements
and
responsibilities.
SEVP will serve a notice of approval
and SEVIS will be updated to reflect
the school’s certification if SEVP approves the school’s certification petition.
(iii) Certification denial. SEVP will
serve a notice of denial in accordance
with paragraph (f)(2) of this section if a
school’s petition for certification is denied.
(2) Recertification. Schools are required to file a completed petition for
SEVP
recertification
before
the
school’s certification expiration date,

which is two years from the date of
their previous SEVP certification or
recertification expiration date, except
for the first recertification cycle after
publication of the recertification rule.
There is no recertification petition fee.
SEVP will review a petitioning school’s
compliance with the recordkeeping, retention and reporting, and other requirements of paragraphs (f), (g), (j),
(k), and (l) of this section, as well as
continued eligibility for certification,
pursuant to paragraph (a)(3) of this section.
(i) Filing of petition for recertification.
Schools must submit a completed
Form I–17 (including supplements A
and B) using SEVIS, and submit a
paper copy of the Form I–17 bearing
original signatures of all officials.
SEVP will notify all DSOs of a previously certified school 180 days prior
to the school’s certification expiration
date that the school may submit a petition for recertification. A school may
file its recertification petition at any
time after receipt of this notification.
A school must submit a complete recertification petition package, as outlined in the submission guidelines, by
its certification expiration date. SEVP
will send a notice of confirmation of
complete filing or rejection to the
school upon receipt of any filing of a
petition for recertification.
(A) Notice of confirmation assures a
school of uninterrupted access to
SEVIS while SEVP adjudicates the
school’s petition for recertification. A
school that has complied with the petition submission requirements will continue to have SEVIS access after its
certification expiration date while the
adjudication for recertification is pending. The school is required to comply
with all regulatory recordkeeping, retention and reporting, and other requirements of paragraphs (f), (g), (j),
(k), and (l) of this section during the
period the petition is pending.
(B) Notice of rejection informs a
school that it must take prompt corrective action in regard to its recertification petition prior to its certification expiration date to ensure that
its SEVIS access will not be terminated and its petition for recertification will be accepted for adjudication.

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§ 214.3

(ii) Consequence of failure to petition.
SEVP will serve an NOIW to the school
30 days prior to a school’s certification
expiration date. SEVP will no longer
accept a petition for recertification
from the school and will immediately
withdraw the school’s certification if
the school does not petition for recertification, abandons its petition, or
does not submit a complete recertification petition package by the certification expiration date, in accordance
with the automatic withdrawal criteria
in 8 CFR 214.4(a)(3). The school must
comply with 8 CFR 214.4(i) upon withdrawal.
(iii) School recertification process—(A)
General. School recertification reaffirms the petitioning school’s eligibility for SEVP certification and the
school’s
compliance
with
recordkeeping, retention, reporting and other
requirements of paragraphs (f), (g), (j),
(k), and (l) of this section since its previous certification.
(B) Compliance. Assessment by SEVP
of a school petitioning for recertification will focus primarily on overall
school compliance, but may also include examination of individual DSO
compliance as data and circumstances
warrant. Past performance of these individuals, whether or not they continue to serve as principal designated
school officials (PDSOs) or DSOs, will
be considered in any petition for recertification of the school.
(C) On-site review for recertification.
All schools are subject to on-site review, at the discretion of SEVP, in conjunction with recertification. The
school must comply with and complete
an on-site review within 30 days of the
notification by a DHS representative of
a school that it has been selected for
an on-site review for recertification, or
the petition for recertification will be
denied as abandoned, resulting in the
school’s withdrawal from SEVIS.
(iv) Recertification approval. SEVP
will serve a notice of approval if a
school’s petition for recertification is
approved. The date of the subsequent
recertification review will be two years
after the school’s certification expiration date from this petition cycle.
(v) Recertification denial. SEVP will
serve a notice of denial if a school’s pe-

tition for recertification is denied, in
accordance with 8 CFR 103.3(a)(1)(i).
(vi) Adjustment of certification expiration date. Schools eligible for recertification before March 25, 2009 will, at a
minimum, have their certification expiration date extended to March 25,
2009. SEVP may extend the certification expiration date beyond this date
during the first cycle of recertification.
(3) Out-of-cycle review and oversight of
SEVP-certified schools. (i) SEVP will determine if out-of-cycle review is required upon receipt in SEVIS of any
changes from an SEVP-certified school
to its Form I–17 information. The Form
I–17 information that requires out-ofcycle review when changed includes:
(A) Approval for attendance of students (F/M/both);
(B) Name of school system; name of
main campus;
(C) Mailing address of the school;
(D) Location of the school;
(E) School type;
(F) Public/private school indicator;
(G) Private school owner name;
(H) The school is engaged in;
(I) The school operates under the following Federal, State, Local or other
authorization;
(J) The school has been approved by
the following national, regional, or
state accrediting association or agency;
(K) Areas of study;
(L) Degrees available from the
school;
(M) If the school is engaged in elementary or secondary education;
(N) If the school is engaged in higher
education;
(O) If the school is engaged in vocational or technical education;
(P) If the school is engaged in
English language training;
(Q) Adding or deleting campuses;
(R) Campus name;
(S) Campus mailing address; and
(T) Campus location address.
(ii) SEVP may request a school to
electronically update all Form I–17
fields in SEVIS and provide SEVP with
documentation supporting the update.
The school must complete such updates
in SEVIS and submit the supporting
documentation to SEVP within 10 business days of the request from SEVP.

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§ 214.3

8 CFR Ch. I (1–1–16 Edition)

(iii) SEVP may review a school’s certification at any time to verify the
school’s compliance with the recordkeeping, retention, reporting and other
requirements of paragraphs (f), (g), (j),
(k), and (l) of this section to verify the
school’s continued eligibility for SEVP
certification pursuant to paragraph
(a)(3) of this section. SEVP may initiate remedial action with the school,
as appropriate, and may initiate withdrawal proceedings against the school
pursuant to 8 CFR 214.4(b) if noncompliance or ineligibility of a school
is identified.
(iv) On-site review. SEVP-certified
schools are subject to on-site review at
any time. SEVP will initiate withdrawal proceedings against a certified
school, pursuant to 8 CFR 214.4(b), if
the certified school selected for on-site
review prior to its certification expiration date fails to comply with and complete the review within 30 days of the
date SEVP contacted the school to arrange the review.
(v) Notice of Continued Eligibility.
SEVP will serve the school a notice of
continued eligibility if, upon completion of an out-of-cycle review, SEVP
determines that the school remains eligible for certification. Such notice will
not change the school’s previously-determined certification expiration date
unless specifically notified by SEVP.
(vi) Withdrawal of certification. SEVP
will institute withdrawal proceedings
in accordance with 8 CFR 214.4(b) if,
upon completion of an out-of-cycle review, SEVP determines that a school
or its programs are no longer eligible
for certification.
(vii) Voluntary withdrawal. A school
can voluntarily withdraw from SEVP
certification at any time or in lieu of
complying with an out-of-cycle review
or request. Failure of a school to comply with an out-of-cycle review or request by SEVP will be treated as a voluntary withdrawal. A school must initiate voluntary withdrawal by sending
a request for withdrawal on official
school letterhead to SEVP.
(i) Administration of student regulations. DHS officials may conduct outof-cycle, on-site reviews on the campuses of SEVP-certified schools to determine whether nonimmigrant students on those campuses are complying

with DHS regulations pertaining to
them, including the requirement that
each maintains a valid passport. DHS
officers will take appropriate action regarding violations of the regulations
by nonimmigrant students.
(j) Advertising. In any advertisement,
catalogue, brochure, pamphlet, literature, or other material hereafter
printed or reprinted by or for an approved school, any statement which
may appear in such material concerning approval for attendance by
nonimmigrant students shall be limited solely to the following: This school
is authorized under Federal law to enroll nonimmigrant alien students.
(k) Issuance of Certificate of Eligibility.
A DSO of an SEVP-certified school
must sign any completed Form I–20
issued for either a prospective or continuing student or a dependent. A
Form I–20 issued by a certified school
system must state which school within
the system the student will attend.
Only a DSO of an SEVP-certified
school may issue a Form I–20 to a prospective student and his or her dependents, and only after the following conditions are met:
(1) The prospective student has made
a written application to the school.
(2) The written application, the student’s transcripts or other records of
courses taken, proof of financial responsibility for the student, and other
supporting documents have been received, reviewed, and evaluated at the
school’s location in the United States.
(3) The appropriate school authority
has determined that the prospective
student’s qualifications meet all standards for admission.
(4) The official responsible for admission at the school has accepted the prospective student for enrollment in a
full course of study.
(l) Designated Official. (1) Meaning of
term Designated Official. As used in
§§ 214.1(b), 214.2(b), 214.2(f), 214.2(m), and
214.4, a Designated Official, Designated
School Official (DSO), or Principal Designated School Official (PDSO), means a
regularly employed member of the
school administration whose office is
located at the school and whose compensation does not come from commissions for recruitment of foreign students. An individual whose principal

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Department of Homeland Security

§ 214.4

obligation to the school is to recruit
foreign students for compensation does
not qualify as a designated official.
The PDSO and any other DSO must be
named by the president, owner, or head
of a school or school system. The PDSO
and DSO may not delegate this designation to any other person.
(i) A PDSO and DSO must be either a
citizen or lawful permanent resident of
the United States.
(ii) Each campus must have one
PDSO. The PDSO is responsible for updating SEVIS to reflect the addition or
deletion of any DSO on his or her associated campus. SEVP will use the
PDSO as the point of contact on any
issues that relate to the school’s compliance with the regulations, as well as
any system alerts generated by SEVIS.
SEVP may also designate certain functions in SEVIS for use by the PDSO
only. The PDSO of the main campus is
the only DSO authorized to submit a
Form I–17 for recertification. The
PDSO and DSO will share the same responsibilities in all other respects.
(iii) School officials may nominate as
many DSOs in addition to PDSOs as
they determine necessary to adequately provide recommendations to F
and/or M students enrolled at the
school regarding maintenance of nonimmigrant status and to support timely and complete recordkeeping and reporting to DHS, as required by this section. School officials must not permit a
DSO or PDSO nominee access to SEVIS
until DHS approves the nomination.
(2) Name, title, and sample signature.
Petitions for SEVP certification, review and recertification must include
the names, titles, and sample signatures of designated officials. An SEVPcertified school must update SEVIS
upon any changes to the persons who
are principal or designated officials,
and furnish the name, title and e-mail
address of any new official within 21
days of the change. Any changes to the
PDSO or DSO must be made by the
PDSO within 21 days of the change.
DHS may, at its discretion, reject the
submission of any individual as a DSO
or withdraw a previous submission by a
school of an individual.
(3) Statement of designated officials. A
petition for school approval must include a statement by each designated

official certifying that the official is
familiar with the Service regulations
relating to the requirements for admission and maintenance of status of nonimmigrant students, change of nonimmigrant status under part 248 of this
chapter, and school approval under
§§ 214.3 and 214.4, and affirming the official’s intent to comply with these regulations. At the time a new designated
official is added, the designated official
must make the same certification.
[30 FR 919, Jan. 29, 1965]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 214.3, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

§ 214.4 Denial of certification, denial of
recertification or withdrawal of
SEVP certification.
(a) General—(1) Denial of certification.
The petitioning school will be notified
of the reasons and appeal rights if a petition for certification is denied, in accordance with the provisions of 8 CFR
103.3(a)(1)(iii). No fee is required with
appeals related to SEVP certification.
A petitioning school denied certification may file a new petition for certification at any time.
(2) Denial of recertification or withdrawal on notice. The school must wait
at least one calendar year from the
date of denial of recertification or
withdrawal on notice before being eligible to petition again for SEVP certification if a school’s petition for recertification is denied by SEVP pursuant to 8 CFR 214.3(h)(3)(v), or its certification is withdrawn on notice pursuant to paragraph (b) of this section.
Eligibility to re-petition will be at the
discretion of the Director of SEVP.
SEVP certification of a school or
school system for the attendance of
nonimmigrant students, pursuant to
sections
101(a)(15)(F)(i)
and/or
101(a)(15)(M)(i) of the Immigration and
Nationality Act, will be withdrawn on
notice subsequent to out-of-cycle review, or recertification denied, if the
school or school system is determined
to no longer be entitled to certification
for any valid and substantive reason
including, but not limited to, the following:

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§ 214.4

8 CFR Ch. I (1–1–16 Edition)

(i) Failure to comply with 8 CFR
214.3(g)(1) without a subpoena.
(ii) Failure to comply with 8 CFR
214.3(g)(2).
(iii) Failure of a DSO to notify SEVP
of the attendance of an F–1 transfer
student as required by 8 CFR
214.2(f)(8)(ii).
(iv) Failure of a DSO to identify on
the Form I–20 which school within the
system the student must attend, in
compliance with 8 CFR 214.3(k).
(v) Willful issuance by a DSO of a
false statement, including wrongful
certification of a statement by signature, in connection with a student’s
school transfer or application for employment or practical training.
(vi) Conduct on the part of a DSO
that does not comply with the regulations.
(vii) The designation as a DSO of an
individual who does not meet the requirements of 8 CFR 214.3(l)(1).
(viii) Failure to provide SEVP paper
copies of the school’s Form I–17 bearing
the names, titles, and signatures of
DSOs as required by 8 CFR 214.3(l)(2).
(ix) Failure to submit statements of
DSOs as required by 8 CFR 214.3(l)(3).
(x) Issuance of Forms I–20 to students
without receipt of proof that the students have met scholastic, language, or
financial requirements as required by 8
CFR 214.3(k)(2).
(xi) Issuance of Forms I–20 to aliens
who will not be enrolled in or carry full
courses of study, as defined in 8 CFR
214.2(f)(6) or 214.2(m)(9).
(xii) Failure to operate as a bona fide
institution of learning.
(xiii) Failure to employ adequate
qualified professional personnel.
(xiv) Failure to limit advertising in
the manner prescribed in 8 CFR 214.3(j).
(xv) Failure to maintain proper facilities for instruction.
(xvi) Failure to maintain accreditation or licensing necessary to qualify
graduates as represented in the
school’s Form I–17.
(xvii) Failure to maintain the physical plant, curriculum, and teaching
staff in the manner represented in the
Form I–17.
(xviii) Failure to comply with the
procedures for issuance of Forms I–20
as set forth in 8 CFR 214.3(k).

(xix) Failure of a DSO to notify
SEVP of material changes, such as
changes to the school’s name, address,
or curricular changes that represent
material change to the scope of institution offerings (e.g., addition of a program, class or course for which the
school is issuing Forms I–20, but which
does not have Form I–17 approval), as
required by 8 CFR 214.3(f)(1).
(3) Automatic withdrawal. A school
that is automatically withdrawn and
subsequently wishes to enroll nonimmigrant students in the future may
file a new petition for SEVP certification at any time. The school must
use the certification petition procedures described in 8 CFR 214.3(h)(1) to
gain access to SEVIS for submitting its
petition. Past compliance with the recordkeeping, retention, reporting and
other requirements of 8 CFR 214.3(f),
(g), (j), (k), and (l), and with the requirements for transition of students
under paragraph (i) of this section will
be considered in the evaluation of a
school’s subsequent petition for certification. SEVP certification will be
automatically withdrawn:
(i) As of the date of termination of
operations, if an SEVP-certified school
terminates its operations.
(ii) As of a school’s certification expiration date, if an SEVP-certified
school does not submit a completed recertification petition in the manner required by 8 CFR 214.3(h)(2).
(iii) Sixty days after the change of
ownership if an SEVP-certified school
changes ownership, unless the school
files a new petition for SEVP certification, in accordance with the procedures at 8 CFR 214.3(h)(1), within 60
days of the change of ownership. SEVP
will review the petition if the school
properly files such petition to determine whether the school still meets
the eligibility requirements of 8 CFR
214.3(a)(3) and is still in compliance
with the recordkeeping, retention, reporting and other requirements of 8
CFR 214.3(f), (g), (j), (k), and (l). SEVP
will institute withdrawal proceedings
in accordance with paragraph (b) of
this section if, upon completion of the
review, SEVP finds that the school is
no longer eligible for certification, or
is not in compliance with the recordkeeping, retention, reporting and other

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Department of Homeland Security

§ 214.4

requirements of 8 CFR 214.3(f), (g), (j),
(k), and (l).
(iv) If an SEVP-certified school voluntarily withdraws from its certification.
(4) Automatic withdrawal as of SEVIS
mandatory compliance date. The present
approval of any school that has not
filed for enrollment in SEVIS by the
mandatory compliance date for attendance of nonimmigrant students under
section
101(a)(15)(F)(i)
or
101(a)(15)(M)(i) of the Act is automatically withdrawn as of the day following
the mandatory compliance date for
SEVIS. Given the time necessary to
conduct a review of each school, the
Service will review and adjudicate
Form I–17 petitions for approval in
SEVIS prior to the SEVIS mandatory
compliance date only for Form I–17 petitions filed at least 75 days prior to
this mandatory date. If a Form I–17 petition is filed less than 75 days prior to
the mandatory compliance date and is
not adjudicated prior to the mandatory
compliance date, the school will not be
authorized to access SEVIS and will be
unable to issue any SEVIS Forms I–20
until the adjudication is complete.
(b) Withdrawal on notice. SEVP will
initiate an out-of-cycle review and
serve the school with an NOIW if SEVP
has information that a school or school
system may no longer be entitled to
SEVP certification prior to the school
being due for its two-year recertification. The NOIW will inform the
school of:
(1) The grounds for withdrawing
SEVP certification.
(2) The 30-day deadline from the date
of the service of the NOIW for the
school to submit sworn statements,
and documentary or other evidence, to
rebut the grounds for withdrawal of
certification in the NOIW. An NOIW is
not a means for the school to submit
evidence that it should have previously
submitted as a part of its established
reporting requirements.
(3) The school’s right to submit a
written request (including e-mail)
within 30 days of the date of service of
the NOIW for a telephonic interview in
support of its response to the NOIW.
(c) Assistance of counsel. The school or
school system shall also be informed in
the notice of intent to withdraw ap-

proval that it may be assisted or represented by counsel of its choice qualified under part 292 of this chapter, at
no expense to the Government, in preparation of its answer or in connection
with the interview.
(d) Allegations admitted or no answer
filed. If the school or school system admits all of the allegations in the notice
of intent to withdraw approval, or if
the school or school system fails to file
an answer within the 30-day period, the
district director shall withdraw the approval previously granted and he/she
shall notify the designated school official of the decision. No appeal shall lie
from the district director’s decision if
all allegations are admitted or no answer is filed within the 30-day period.
(e) Allegations denied. If the school or
school system denies the allegations in
the notice of intent to withdraw approval, then the school or school system shall, in its answer, provide all information or evidence on which the answer is based.
(f) Interview requested. (1) If in its answer to the notice of intent to withdraw approval the school or school system requests an interview, the school
or school system shall be given notice
of the date set for the interview.
(2) A summary of the information
provided by the school or school system at the interview shall be prepared
and included in the record. In the discretion of the district director, the
interview may be recorded.
(g) Decision. The decision of SEVP
will be in accordance with 8 CFR
103.3(a)(1).
(h) Appeals. Notices of denial or withdrawal of SEVP certification will include appeal alternatives and filing instructions. Any appeal must be taken
within 15 days after the service of the
decision by stating the reasons for the
appeal in the notice of appeal provided
with the instructions, and supported by
a statement or brief specifically setting forth the grounds for contesting
the withdrawal of the approval. No fee
is required with appeals related to denial of SEVP recertification or withdrawal of SEVP certification.
(i) Operations at a school when SEVP
certification is relinquished or withdrawn,
or whose recertification is denied and on
the SEVIS access termination date—(1)

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§ 214.5

8 CFR Ch. I (1–1–16 Edition)

General. A school whose certification is
relinquished or withdrawn, or whose
recertification is denied may, at SEVP
discretion, no longer be able to create
Initial student records or issue new
Forms I–20, Certificate of Eligibility
for Nonimmigrant Student, for initial
attendance. Schools must comply with
the instructions given in the notice of
withdrawal or denial with regard to
management of status for their Initial
and continuing F and/or M students.
All other SEVIS functionality, including event reporting for students, will
remain unchanged until the school’s
SEVIS access termination date. The
school must continue to comply with
the recordkeeping, retention, reporting
and other requirements of 8 CFR
214.3(f), (g), (j), (k), and (l) until its
SEVIS access termination date.
(2) SEVIS access termination. In determining the SEVIS access termination
date, SEVP will consider the impact
that such date will have upon SEVP,
the school, and the school’s nonimmigrant students in determining the
SEVIS access termination date. In
most situations, SEVP will not determine a SEVIS access termination date
for that school until the appeals process has concluded and the initial denial
or withdrawal has been upheld unless a
school whose certification is withdrawn or whose recertification is denied is suspected of criminal activity
or poses a potential national security
threat. The school will no longer be
able to access SEVIS, and SEVP will
automatically terminate any remaining Active SEVIS records for that
school on the SEVIS access termination date.
(3) Legal obligations and ramifications
for a school and its DSOs when a school
is having SEVP certification denied or
withdrawn. Schools are obligated to
their students to provide the programs
of study to which they have committed
themselves in the students’ application
for enrollment and acceptance process.
Schools are obligated to the U.S. government to comply with the recordkeeping, retention, reporting and other
requirements contained in 8 CFR 214.3.
With any new petition for SEVP certification, SEVP will consider the extent to which a school has fulfilled
these obligations to students and the

U.S. government during any previous
period of SEVP certification.
[37 FR 17463, Aug. 29, 1972, as amended at 48
FR 14592, Apr. 5, 1983; 48 FR 19867, May 3,
1983; 48 FR 22131, May 17, 1983; 49 FR 41015,
Oct. 19, 1984; 50 FR 9991, Mar. 13, 1985; 54 FR
19544, May 8, 1989; 55 FR 41988, Oct. 17, 1990;
67 FR 60112, Sept. 25, 2002; 73 FR 55702, Sept.
26, 2008]

§ 214.5 Libyan and third country nationals acting on behalf of Libyan
entities.
(a) Notwithstanding any other provision of this title, the nonimmigrant
status of any Libyan national, or of
any other foreign national acting on
behalf of a Libyan entity, who is engaging in aviation maintenance, flight
operations, or nuclear-related studies
or training is terminated.
(b) Notwithstanding any other provision of this chapter, the following benefits will not be available to any Libyan national or any other foreign national acting on behalf of a Libyan entity where the purpose is to engage in,
or seek to obtain aviation maintenance, flight operations or nuclear-related studies or training:
(1) Application for school transfer.
(2) Application for extension of stay.
(3) Employment authorization or
practical training.
(4) Request for reinstatement of student status.
(5) Application for change of nonimmigrant status.
(Secs. 103, 212, 214, 248; 8 U.S.C. 1103, 1182,
1184, 1258)
[48 FR 10297, Mar. 3, 1983]

§ 214.6 Citizens of Canada or Mexico
seeking temporary entry under
NAFTA to engage in business activities at a professional level.
(a) General. Under section 214(e) of
the Act, a citizen of Canada or Mexico
who seeks temporary entry as a business person to engage in business activities at a professional level may be
admitted to the United States in accordance with the North American
Free Trade Agreement (NAFTA).
(b) Definitions. As used in this section, the terms:
Business activities at a professional
level means those undertakings which
require that, for successful completion,

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Department of Homeland Security

§ 214.6

the individual has a least a baccalaureate degree or appropriate credentials demonstrating status as a professional in a profession set forth in Appendix 1603.D.1 of the NAFTA.
Business person, as defined in the
NAFTA, means a citizen of Canada or
Mexico who is engaged in the trade of
goods, the provision of services, or the
conduct of investment activities.
Engage in business activities at a professional level means the performance of
prearranged business activities for a
United States entity, including an individual. It does not authorize the establishment of a business or practice in
the United States in which the professional will be, in substance, self-employed. A professional will be deemed
to be self-employed if he or she will be
rendering services to a corporation or
entity of which the professional is the
sole or controlling shareholder or
owner.
Temporary entry, as defined in the
NAFTA, means entry without the intent to establish permanent residence.
The alien must satisfy the inspecting
immigration officer that the proposed
stay is temporary. A temporary period
has a reasonable, finite end that does
not equate to permanent residence. In
order to establish that the alien’s
entry will be temporary, the alien
must demonstrate to the satisfaction
of the inspecting immigration officer
that his or her work assignment in the
United States will end at a predictable
time and that he or she will depart
upon completion of the assignment.
(c) Appendix 1603.D.1 to Annex 1603 of
the NAFTA. Pursuant to the NAFTA,
an applicant seeking admission under
this section shall demonstrate business
activity at a professional level in one
of the professions set forth in Appendix
1603.D.1 to Annex 1603. The professions
in Appendix 1603.D.1 and the minimum
requirements for qualification for each
are as follows: 1
APPENDIX 1603.D.1 (ANNOTATED)

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—Accountant—Baccalaureate
or
Licenciatura Degree; or C.P.A., C.A.,
C.G.A., or C.M.A.
1 A business person seeking temporary employment under this Appendix may also perform training functions relating to the profession, including conducting seminars.

—Architect—Baccalaureate or Licenciatura
Degree; or state/provincial license. 2
—Computer
Systems
Analyst—Baccalaureate or Licenciatura Degree; or PostSecondary Diploma 3 or Post Secondary
Certificate 4 and three years’ experience.
—Disaster relief insurance claims adjuster
(claims adjuster employed by an insurance company located in the territory of
a Party, or an independent claims adjuster)—Baccalaureate or Licenciatura
Degree and successful completion of
training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful
completion of training in the appropriate
areas of insurance adjustment pertaining
to disaster relief claims.
—Economist—Baccalaureate or Licenciatura
Degree.
—Engineer—Baccalaureate or Licenciatura
Degree; or state/provincial license.
—Forester—Baccalaureate or Licenciatura
Degree; or state/provincial license.
—Graphic
Designer—Baccalaureate
or
Licenciatura Degree; or Post-Secondary
Diploma or Post-Secondary Certificate
and three years experience.
—Hotel
Manager—Baccalaureate
or
Licenciatura Degree in hotel/restaurant
management; or Post-Secondary Diploma or Post Secondary Certificate in
hotel/restaurant management and three
years experience in hotel/restaurant
management.
—Industrial
Designer—Baccalaureate
or
Licenciatura Degree; or Post-Secondary
Diploma or Post Secondary Certificate,
and three years experience.
—Interior
Designer—Baccalaureate
or
Licenciatura Degree or Post-Secondary
Diploma or Post-Secondary Certificate,
and three years experience.
2 The terms ‘‘state/provincial license’’ and
‘‘state/provincial/federal license’’ mean any
document issued by a state, provincial, or
federal government, as the case may be, or
under its authority, but not by a local government, that permits a person to engage in
a regulated activity or profession.
3 ‘‘Post Secondary Diploma’’ means a credential issued, on completion of two or more
years of post secondary education, by an accredited academic institution in Canada or
the United States.
4 ‘‘Post Secondary Certificate’’ means a
certificate issued, on completion of two or
more years of post secondary education at an
academic institution, by the federal government of Mexico or a state government in
Mexico, an academic institution recognized
by the federal government or a state government, or an academic institution created by
federal or state law.

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8 CFR Ch. I (1–1–16 Edition)

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—Land
Surveyor—Baccalaureate
or
Licenciatura Degree or state/provincial/
federal license.
—Landscape Architect—Baccalaureate or
Licenciatura Degree.
—Lawyer (including Notary in the province
of Quebec)—L.L.B., J.D., L.L.L., B.C.L.,
or Licenciatura degree (five years); or
membership in a state/provincial bar.
—Librarian—M.L.S., or B.L.S. (for which another Baccalaureate or Licenciatura Degree was a prerequisite).
—Management
Consultant—Baccalaureate
or Licenciatura Degree; or equivalent
professional experience as established by
statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the
consulting agreement.
—Mathematician (including Statistician)—
Baccalaureate or Licenciatura Degree. 5
—Range Manager/Range Conservationist—
Baccalaureate or Licenciatura Degree.
—Research Assistant (working in a post-secondary educational institution)—Baccalaureate or Licenciatura Degree.
—Scientific Technician/Technologist 6—Possession of (a) theoretical knowledge of
any of the following disciplines: agricultural sciences, astronomy, biology,
chemistry, engineering, forestry, geology, geophysics, meteorology, or physics;
and (b) the ability to solve practical
problems in any of those disciplines, or
the ability to apply principles of any of
those disciplines to basic or applied research.
—Social
Worker—Baccalaureate
or
Licenciatura Degree.
—Sylviculturist (including Forestry Specialist)—Baccalaureate or Licenciatura
Degree.
—Technical
Publications
Writer—Baccalaureate or Licenciatura Degree, or PostSecondary Diploma or Post-Secondary
Certificate, and three years experience.
—Urban Planner (including Geographer)—
Baccalaureate or Licenciatura Degree.
—Vocational Counselor—Baccalaureate or
Licenciatura Degree.
5 The term ‘‘Mathematician’’ includes the
profession of Actuary. An Actuary must satisfy the necessary requirements to be recognized as an actuary by a professional actuarial association or society. A professional
actuarial association or society means a professional actuarial association or society operating in the territory of at least one of the
Parties.
6 A business person in this category must
be seeking temporary entry for work in direct support of professionals in agricultural
sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.

Medical/Allied Professionals
—Dentist—D.D.S.,
D.M.D.,
Doctor
en
Odontologia or Doctor en Cirugia Dental
or state/provincial license.
—Dietitian—Baccalaureate or Licenciatura
Degree; or state/provincial license.
—Medical Laboratory Technologist (Canada)/
Medical Technologist (Mexico and the
or
United
States) 7—Baccalaureate
Licenciatura Degree; or Post-Secondary
Diploma or Post-Secondary Certificate,
and three years experience.
—Nutritionist—Baccalaureate
or
Licenciatura Degree.
—Occupational Therapist—Baccalaureate or
Licenciatura Degree; or state/provincial
license.
—Pharmacist—Baccalaureate
or
Licenciatura Degree; or state/provincial
license.
—Physician (teaching or research only)—
M.D. Doctor en Medicina; or state/provincial license.
—Physiotherapist/Physical Therapist—Baccalaureate or Licenciatura Degree; or
state/provincial license.
—Psychologist—state/provincial license; or
Licenciatura Degree.
—Recreational Therapist-Baccalaureate or
Licenciatura Degree.
—Registered nurse—state/provincial license
or Licenciatura Degree.
—Veterinarian—D.V.M., D.M.V., or Doctor
en Veterinaria; or state/provincial license.
—SCIENTIST
—Agriculturist (including Agronomist)—
Baccalaureate or Licenciatura Degree.
—Animal
Breeder—Baccalaureate
or
Licenciatura Degree.
—Animal
Scientist—Baccalaureate
or
Licenciatura Degree.
—Apiculturist—Baccalaureate
or
Licenciatura Degree.
—Astronomer—Baccalaureate
or
Licenciatura Degree.
—Biochemist—Baccalaureate
or
Licenciatura Degree.
—Biologist—Baccalaureate or Licenciatura
Degree. 8
—Chemist—Baccalaureate or Licenciatura
Degree.
—Dairy
Scientist—Baccalaureate
or
Licenciatura Degree.
—Entomologist—Baccalaureate
or
Licenciatura Degree.
7 A business person in this category must
be seeking temporary entry to perform in a
laboratory
chemical,
biological,
hematological, immunologic, microscopic or
bacteriological tests and analyses for diagnosis, treatment, or prevention of diseases.
8 The term ‘‘Biologist’’ includes the profession of Plant Pathologist.

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§ 214.6

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—Epidemiologist—Baccalaureate
or
Licenciatura Degree.
—Geneticist—Baccalaureate or Licenciatura
Degree.
—Geochemist—Baccalaureate
or
Licenciatura Degree.
—Geologist—Baccalaureate or Licenciatura
Degree.
—Geophysicist (including Oceanographer in
Mexico and the United States)—Baccalaureate or Licenciatura Degree.
—Horticulturist—Baccalaureate
or
Licenciatura Degree.
—Meteorologist—Baccalaureate
or
Licenciatura Degree.
—Pharmacologist—Baccalaureate
or
Licenciatura Degree.
—Physicist (including Oceanographer in
Canada—Baccalaureate or Licenciatura
Degree.
—Plant
Breeder—Baccalaureate
or
Licenciatura Degree.
—Poultry
Scientist—Baccalaureate
or
Licenciatura Degree.
—Soil
Scientist—Baccalaureate
or
Licenciatura Degree.
—Zoologist—Baccalaureate or Licenciatura
Degree.
—TEACHER
—College—Baccalaureate or Licenciatura
Degree.
—Seminary—Baccalaureate or Licenciatura
Degree.
—University—Baccalaureate or Licenciatura
Degree.

(d) Classification of citizens of Canada
or Mexico as TN professionals under the
NAFTA—(1) Citizens of Mexico. A citizen
of Mexico who seeks temporary entry
as a business person to engage in business activities at a professional level
may be admitted to the United States
in accordance with NAFTA upon presentation of a valid passport and valid
TN nonimmigrant visa at a United
States Class A port-of-entry, at a
United States airport handling international traffic, or at a United States
pre-clearance/pre-flight station.
(2) Citizens of Canada. A citizen of
Canada seeking temporary entry as a
business person to engage in business
activities at a professional level shall
make application for admission with a
Department officer at the United
States Class A port-of-entry, at a
United States airport handling international traffic, or at a United States
pre-clearance/pre-flight station.
(3) Documentation. Upon application
for a visa at a United States consular
office, or, in the case of a citizen of

Canada making application for admission at a port-of-entry, an applicant
under this section shall present the following:
(i) Proof of citizenship. A Mexican citizen applying for admission as a TN
nonimmigrant must establish such
citizenship by presenting a valid passport. Canadian citizens, while not required to present a valid passport for
admission unless traveling from outside the Western hemisphere, must establish Canadian citizenship.
(ii) Documentation demonstrating engagement in business activities at a professional level and demonstrating professional qualifications. The applicant
must present documentation sufficient
to satisfy the consular officer (in the
case of a Mexican citizen) or the Department officer (in the case of a Canadian citizen) that the applicant is seeking entry to the United States to engage in business activities for a United
States employer(s) or entity(ies) at a
professional level, and that the applicant meets the criteria to perform at
such a professional level. This documentation may be in the form of a letter from the prospective employer(s) in
the United States or from the foreign
employer, and must be supported by diplomas, degrees or membership in a
professional organization. Degrees received by the applicant from an educational institution not located within
Canada, Mexico, or the United States
must be accompanied by an evaluation
by a reliable credentials evaluation
service which specializes in evaluating
foreign educational credentials. The
documentation shall fully affirm:
(A) The Appendix 1603.D.1 profession
of the applicant;
(B) A description of the professional
activities, including a brief summary
of daily job duties, if appropriate, in
which the applicant will engage in for
the United States employer/entity;
(C) The anticipated length of stay;
(D The educational qualifications or
appropriate credentials which demonstrate that the Canadian or Mexican
citizen has professional level status;
and
(E) The arrangements for remuneration for services to be rendered.
(e) Procedures for admission. A citizen
of Canada or Mexico who qualifies for

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admission under this section shall be
provided confirming documentation
and shall be admitted under the classification symbol TN for a period not to
exceed three years. The conforming
document provided shall bear the legend ‘‘multiple entry.’’ The fee prescribed under 8 CFR 103.7(b)(1) shall be
remitted by Canadian Citizens upon admission to the United States pursuant
to the terms and conditions of the
NAFTA. Upon remittance of the prescribed fee, the TN applicant for admission shall be provided a DHS-issued receipt on the appropriate form.
(f) [Reserved]
(g) Readmission. (1) With a Form I–94.
An alien may be readmitted to the
United States in TN classification for
the remainder of the authorized period
of TN admission on Form I–94 (see
§ 1.4), without presentation of the letter
or supporting documentation described
in paragraph (d)(3) of this section, and
without the prescribed fee set forth in
8 CFR 103.7(b)(1), provided that the
original intended professional activities and employer(s) have not changed,
and the Form I–94 has not expired.
(2) Without a valid I–94. If the alien
seeking readmission to the United
States in TN classification is no longer
in possession of a valid, unexpired
Form I–94, and the period of initial admission in TN classification has not
lapsed, then a new Form I–94 may be
issued for the period of validity that
remains on the TN nonimmigrant’s
original Form I–94 with the legend
‘‘multiple entry’’ and the alien can
then be readmitted in TN status if the
alien presents alternate evidence as
follows:
(i) For Canadian citizens, alternate
evidence may include, but is not limited to, a fee receipt for admission as a
TN or a previously issued admission
stamp as TN in a passport, and a confirming letter from the United States
employer(s).
(ii) For Mexican citizens seeking readmission as TN nonimmigrants, alternate evidence shall consist of presentation of a valid unexpired TN visa and
evidence of a previous admission.
(h) Extension of stay. (1) Filing. A
United States employer of a citizen of
Canada or Mexico who is currently
maintaining valid TN nonimmigrant

status, or a United States entity (in
the case of a citizen of Canada or Mexico who is currently maintaining valid
TN nonimmigrant status and is employed by a foreign employer), may request an extension of stay, subject to
the following conditions:
(i) An extension of stay must be requested by filing the appropriate form
with the fee provided at 8 CFR
103.7(b)(1), in accordance with the form
instructions with USCIS.
(ii) The beneficiary must be physically present in the United States at
the time of the filing of the appropriate
form requesting an extension of stay as
a TN nonimmigrant. If the alien is required to leave the United States for
any reason while the petition is pending, the petitioner may request that
USCIS notify the consular office where
the beneficiary is required to apply for
a visa or, if visa exempt, a DHS-designated port-of-entry where the beneficiary will apply for admission to the
United States, of the approval.
(iii) An extension of stay in TN status may be approved by USCIS for a
maximum period of three years.
(iv) There is no specific limit on the
total period of time an alien may be in
TN status provided the alien continues
to be engaged in TN business activities
for a U.S. employer or entity at a professional level, and otherwise continues
to
properly
maintain
TN
nonimmigrant status.
(2) Readmission at the border. Nothing
in paragraph (h)(1) of this section shall
preclude a citizen of Canada or Mexico
who has previously been admitted to
the United States in TN status, and
who has not violated such status while
in the United States, from applying at
a DHS-designated port-of-entry, prior
to the expiration date of the previous
period of admission, for a new threeyear period of admission. The application for a new period of admission must
be supported by a new letter from the
United States employer or the foreign
employer, in the case of a citizen of
Canada who is providing prearranged
services to a United States entity,
which meets the requirements of paragraph (d) of this section, together with
the appropriate filing fee as noted in 8
CFR 103.7(b)(1). Citizens of Mexico
must present a valid passport and a

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Department of Homeland Security

§ 214.6

valid, unexpired TN nonimmigrant visa
when applying for readmission, as outlined in paragraph (d)(1) of this section.
(i) Request for change or addition of
United States employers—(1) Filing at the
service center. A citizen of Canada or
Mexico admitted into the United
States as a TN nonimmigrant who
seeks to change or add a United States
employer during the period of admission must have the new employer file a
Form I–129 with appropriate supporting
documentation, including a letter from
the new employer describing the services to be performed, the time needed
to render such services, and the terms
of remuneration for services. Employment with a different or with an additional employer is not authorized prior
to Department approval of the request.
(2) Readmission at the border. Nothing
in paragraph (i)(1) of those section precludes a citizen of Canada or Mexico
from applying for readmission to the
United States for the purpose of presenting documentation from a different
or additional United States or foreign
employer. Such documentation shall
meet the requirements prescribed in
paragraph (d) of this section. The fee
prescribed under 8 CFR 103.7(b)(1) shall
be remitted by Canadian citizens upon
admission to the United States pursuant to the terms and conditions of the
NAFTA. Citizens of Mexico may
present documentation from a different
or additional United States or foreign
employer to a consular officer as evidence in support of a new nonimmigrant TN visa application.
(3) No action shall be required on the
part of a citizen of Canada or Mexico in
TN status who is transferred to another location by the same United
States employer to perform the same
services. Such an acceptable transfer
would be to a branch or office of the
employer. In a case of a transfer to a
separately incorporated subsidiary or
affiliate, the requirements of paragraphs (i)(1) and (i)(2) of this section
will apply.
(j) Spouse and unmarried minor children accompanying or following to join.
(1) The spouse or unmarried minor children of a citizen of Canada or Mexico
admitted in TN nonimmigrant status,
if otherwise admissible, may be admitted initially, readmitted, or granted a

change of nonimmigrant status or an
extension of his or her period of stay
for the same period of time granted to
the TN nonimmigrant. Such spouse or
unmarried minor children shall, upon
approval of an application for admission, readmission, change of status or
extension of stay be classified as TD
nonimmigrants. A request for a change
of status to TD or an extension of stay
of a TD nonimmigrant may be made on
the appropriate form together with appropriate filing fees and evidence of the
principal alien’s current TN status.
(2) The spouse or unmarried minor
children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall be required to present a valid,
unexpired TD nonimmigrant visa unless otherwise exempt under 8 CFR
212.1.
(3) The spouse and unmarried minor
children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall be issued confirming documentation bearing the legend ‘‘multiple entry.’’ There shall be no fee required for admission of the spouse and
unmarried minor children.
(4) The spouse and unmarried minor
children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall not accept employment in the
United States unless otherwise authorized under the Act.
(k) Effect of a strike. (1) If the Secretary of Labor certifies or otherwise
informs the Director of USCIS that a
strike or other labor dispute involving
a work stoppage of workers is in
progress, and the temporary entry of a
citizen of Mexico or Canada in TN nonimmigrant status may adversely affect
the settlement of any labor dispute or
the employment of any person who is
involved in such dispute, the United
States may refuse to issue an immigration document authorizing the entry or
employment of such an alien.
(2) 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 Department of
Labor, or whether USCIS has been otherwise informed that such a strike or
labor dispute is in progress, the alien

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§ 214.7

8 CFR Ch. I (1–1–16 Edition)

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:
(i) 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 TN nonimmigrants;
(ii) 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
(iii) Although participation by a TN
nonimmigrant alien in a strike or
other labor dispute involving a work
stoppage of workers will not constitute
a ground for removal, 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 removal.
(3) 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 (k)(1) of this section,
or USCIS has not otherwise been informed by the Secretary that such a
strike or labor dispute is in progress,
Director of USCIS shall not deny a petition or deny entry to an applicant for
TN status based upon such strike or
other labor dispute.
[58 FR 69212, Dec. 30, 1993, as amended at 63
FR 1335, Jan. 9, 1998; 69 FR 11289, Mar. 10,
2004; 69 FR 60941, Oct. 13, 2004; 73 FR 61334,
Oct. 16, 2008; 78 FR 18472, Mar. 27, 2013]

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§ 214.7 Habitual residence in the territories and possessions of the United
States and consequences thereof.
(a) Definitions. As used in this section, the term:
(1) Compacts means the agreements of
free association between the United
States and the governments of the Republic of the Marshall Islands, the Federated States of Micronesia, and Palau,
approved by Public Law 99–239 with respect to the governments of the Republic of the Marshall Islands and the Federated States of Micronesia, and by

Public Law 99–658, with respect to
Palau.
(2) Freely associated states (FAS)
means the following parts of the
former Trust Territories of the Pacific
Islands, namely, the Republic of the
Marshall Islands, the Federated States
of Micronesia, and Palau.
(3) Territories and possessions of the
United States means all territories and
possessions of the United States to
which the Act applies, including those
commonwealths of the United States
that are not States. It does not include
American Samoa, as long as the Act
does not apply to it.
(4)(i) Habitual resident means a citizen
of the FAS who has been admitted to a
territory or possession of the United
States (other than American Samoa, as
long as the Act is not applicable to it)
pursuant to section 141(a) of the Compacts and who occupies in such territory or possession a habitual residence
as that term is defined in section 461 of
the Compacts, namely a place of general abode or a principal, actual dwelling place of a continuing or lasting nature. The term ‘‘habitual resident’’
does not apply to:
(A) A person who has established a
continuing residence in a territory or
possession of the United States, but
whose cumulative physical presence in
the United States amounts to less than
365 days; or
(B) A dependent of a resident representative described in section 152 of
the Compacts; or
(C) A person who entered the United
States for the purpose of full-time
studies as long as such person maintains that status.
(ii) Since the term ‘‘habitual’’ resident requires that the person have entered the United States pursuant to
section 141(a) of the Compacts, the
term does not apply to FAS citizens
whose presence in the territories or
possessions is based on an authority
other than section 141(a), such as:
(A) Members of the Armed Forces of
the United States described in 8 CFR
§ 235.1(c);
(B) Persons lawfully admitted for
permanent residence in the United
States; or
(C) Persons having nonimmigrant
status whose entry into the United

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Department of Homeland Security

§ 214.7

States is based on provisions of the
Compacts or the Act other than section
141(a) of the Compacts.
(5) Dependent means a citizen of the
FAS, as defined in section 141(a) of the
Compacts, who:
(i) Is a habitual resident;
(ii) Resides with a principal habitual
resident;
(iii) Relies for financial support on
that principal habitual resident; and
(iv) Is either the parent, spouse, or
unmarried child under the age of 21 of
the principal habitual resident or the
parent or child of the spouse of the
principal habitual resident.
(6) Principal habitual resident means a
habitual resident with whom one or
more dependents reside and on whom
dependent(s) rely for financial support.
(7) Self-supporting means:
(i) Having a lawful occupation of a
current and continuing nature that
provides 40 hours of gainful employment each week. A part-time student
attending an accredited college or institution of higher learning in a territory or possession of the United States
receives for each college or graduate
credit-hour of study a three-hour credit
toward the 40-hour requirement; or
(ii) If the person cannot meet the 40hour employment requirement, having
lawfully derived funds that meet or exceed 100 percent of the official poverty
guidelines for Hawaii for a family unit
of the appropriate size as published annually by the Department of Health
and Human Services.
(8) Receipt of unauthorized public benefits means the acceptance of public benefits by fraud or willful misrepresentation in violation of section 401 or 411 of
the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996,
Public Law 104–193, 110 Stat. 2261, 2268,
as amended by sections 5561 and 5565 of
the Balanced Budget Act of 1997, Public
Law 105–33, 111 Stat. 638. 639.
(b) Where do these rules regarding habitual residence apply? The rules in this
section apply to habitual residents living in a territory or possession of the
United States to which the Act applies.
Those territories and possessions are at
present Guam, the Commonwealth of
Puerto Rico, the American Virgin Islands, and the Commonwealth of the
Northern Mariana Islands. These rules

do not apply to habitual residents living in American Samoa as long as the
Act does not extend to it. These rules
are not applicable to habitual residents
living in the fifty States or the District
of Columbia.
(c) When is an arriving FAS citizen presumed to be a habitual resident? (1) An
arriving FAS citizen will be subject to
the rebuttable presumption that he or
she is a habitual resident if the Service
has reason to believe that the arriving
FAS citizen was previously admitted to
the territory or possession more than
one year ago; and
(2) That the arriving FAS citizen either;
(i) Failed to turn in his or her Form
I–94 (see § 1.4) when he or she previously
departed from the United States; or
(ii) Failed to apply for a replacement
Form I–94.
(d) What rights do habitual residents
have? Habitual residents have the right
to enter, reside, study, and work in the
United States, its territories or possessions, in nonimmigrant status without
regard to the requirements of sections
212(a)(5)(A) and 212(a)(7)(A) and (B) of
the Act.
(e) What are the limitations on the
rights of habitual residents? (1) A habitual resident who is not a dependent is
subject to removal if he or she:
(i) Is not and has not been self-supporting for a period exceeding 60 consecutive days for reasons other than a
lawful strike or other labor dispute involving work stoppage; or
(ii) Has received unauthorized public
benefits by fraud or willful misrepresentation; or
(iii) Is subject to removal pursuant to
section 237 of the Act, or any other provision of the Act.
(2) Any dependent is removable from
a territory or possession of the United
States if:
(i) The principal habitual resident
who financially supports him or her
and with whom he or she resides, becomes subject to removal unless the
dependent establishes that he or she
has become a dependent of another habitual resident or becomes self-supporting; or
(ii) The dependent, as an individual,
receives unauthorized public benefits

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§§ 214.8–214.10

8 CFR Ch. I (1–1–16 Edition)

by fraud or willful misrepresentation;
or
(iii) The dependent, as an individual,
is subject to removal pursuant to section 237 of the Act, or any other provision of the Act.
[65 FR 56465, Sept. 19, 2000, as amended at 74
FR 55738, Oct. 28, 2009; 78 FR 18472, Mar. 27,
2013]

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§§ 214.8–214.10

[Reserved]

§ 214.11 Alien victims of severe forms
of trafficking in persons.
(a) Definitions. The Service shall
apply the following definitions as provided in sections 103 and 107(e) of the
Trafficking Victims Protection Act
(TVPA) with due regard for the definitions and application of these terms in
28 CFR part 1100 and the provisions of
chapter 77 of title 18, United States
Code:
Bona fide application means an application for T–1 nonimmigrant status as
to which, after initial review, the Service has determined that there appears
to be no instance of fraud in the application, the application is complete,
properly filed, contains an LEA endorsement or credible secondary evidence, includes completed fingerprint
and background checks, and presents
prima facie evidence to show eligibility
for T nonimmigrant status, including
admissibility.
Child means a person described as
such in section 101(b)(1) of the Act.
Coercion means threats of serious
harm to or physical restraint against
any person; any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act
would result in serious harm to or
physical restraint against any person;
or the abuse or threatened abuse of the
legal process.
Commercial sex act means any sex act
on account of which anything of value
is given to or received by any person.
Debt bondage means the status or
condition of a debtor arising from a
pledge by the debtor of his or her personal services or of those of a person
under his or her control as a security
for debt, if the value of those services
as reasonably assessed is not applied
toward the liquidation of the debt or
the length and nature of those services

are not respectively limited and defined.
Immediate family member means the
spouse or a child of a victim of a severe
form of trafficking in persons, and, in
the case of a victim of a severe form of
trafficking in persons who is under 21
years of age, a parent of the victim.
Involuntary servitude means a condition of servitude induced by means of
any scheme, plan, or pattern intended
to cause a person to believe that, if the
person did not enter into or continue in
such condition, that person or another
person would suffer serious harm or
physical restraint; or the abuse or
threatened abuse of legal process. Accordingly, involuntary servitude includes ‘‘a condition of servitude in
which the victim is forced to work for
the defendant by the use or threat of
physical restraint or physical injury,
or by the use or threat of coercion
through law or the legal process. This
definition encompasses those cases in
which the defendant holds the victim
in servitude by placing the victim in
fear of such physical restraint or injury or legal coercion.’’ (United States
v. Kozminski, 487 U.S. 931, 952 (1988)).
Law Enforcement Agency (LEA) means
any Federal law enforcement agency
that has the responsibility and authority for the detection, investigation, or
prosecution of severe forms of trafficking in persons. LEAs include the
following components of the Department of Justice: the United States Attorneys’ Offices, the Civil Rights and
Criminal Divisions, the Federal Bureau
of Investigation (FBI), the Immigration and Naturalization Service (Service), and the United States Marshals
Service. The Diplomatic Security Service, Department of State, also is an
LEA.
Law Enforcement Agency (LEA) endorsement means Supplement B, Declaration of Law Enforcement Officer for
Victim of Trafficking in Persons of Form
I–914, Application for T Nonimmigrant
Status.
Peonage means a status or condition
of involuntary servitude based upon
real or alleged indebtedness.
Reasonable
request
for
assistance
means a reasonable request made by a
law enforcement officer or prosecutor

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Department of Homeland Security

§ 214.11

to a victim of a severe form of trafficking in persons to assist law enforcement authorities in the investigation
or prosecution of the acts of trafficking
in persons. The ‘‘reasonableness’’ of the
request depends on the totality of the
circumstances taking into account
general law enforcement and prosecutorial practices, the nature of the victimization, and the specific circumstances of the victim, including
fear, severe traumatization (both mental and physical), and the age and maturity of young victims.
Severe forms of trafficking in persons
means sex trafficking in which a commercial sex act is induced by force,
fraud, or coercion, or in which the person induced to perform such act has
not attained 18 years of age; or the recruitment, harboring, transportation,
provision, or obtaining of a person for
labor or services, through the use of
force, fraud, or coercion for the purpose
of subjection to involuntary servitude,
peonage, debt bondage, or slavery.
Sex trafficking means the recruitment, harboring, transportation, provision, or obtaining of a person for the
purpose of a commercial sex act.
TVPA means the Trafficking Victims
Protection Act of 2000, Division A of
the VTVPA, Pub. L. 106–386.
United States means the continental
United States, Alaska, Hawaii, Puerto
Rico, Guam, the United States Virgin
Islands, and the Commonwealth of the
Northern Mariana Islands.
Victim of a severe form of trafficking in
persons means an alien who is or has
been subject to a severe form of trafficking in persons, as defined in section
103 of the VTVPA and in this section.
VTVPA means the Victims of Trafficking and Violence Protection Act of
2000, Pub. L. 106–386.
(b)
Eligibility.
Under
section
101(a)(15)(T)(i) of the Act, and subject
to section 214(n) of the Act, the Service
may classify an alien, if otherwise admissible, as a T–1 nonimmigrant if the
alien demonstrates that he or she:
(1) Is or has been a victim of a severe
form of trafficking in persons;
(2) Is physically present in the United
States, American Samoa, or at a portof-entry thereto, on account of such
trafficking in persons;
(3) Either:

(i) Has complied with any reasonable
request for assistance in the investigation or prosecution of acts of such trafficking in persons, or
(ii) Is less than 15 years of age; and
(4) Would suffer extreme hardship involving unusual and severe harm upon
removal, as described in paragraph (i)
of this section.
(c) Aliens ineligible for T nonimmigrant
status. No alien, otherwise admissible,
shall be eligible to receive a T nonimmigrant
status
under
section
101(a)(15)(T) of the Act if there is substantial reason to believe that the
alien has committed an act of a severe
form of trafficking in persons.
(d) Application procedures for T status—(1) Filing an application. An applicant seeking T nonimmigrant status
shall submit, by mail, a complete application package containing Form I–
914, Application for T Nonimmigrant Status, along with all necessary supporting documentation, to the Service.
(2) Contents of the application package.
In addition to Form I–914, an application package must include the following:
(i) The proper fee for Form I–914 as
provided in § 103.7(b)(1) of this chapter,
or an application for a fee waiver as
provided in § 103.7(c) of this chapter;
(ii) Three current photographs;
(iii) The fingerprint fee as provided
in § 103.7(b)(1) of this chapter;
(iv) Evidence demonstrating that the
applicant is a victim of a severe form
of trafficking in persons as set forth in
paragraph (f) of this section;
(v) Evidence that the alien is physically present in the United States on
account of a severe form of trafficking
in persons as set forth in paragraph (g)
of this section;
(vi) Evidence that the applicant has
complied with any reasonable request
for assistance in the investigation or
prosecution of acts of severe forms of
trafficking in persons, as set forth in
paragraph (h) of this section, or has
not attained 15 years of age; and
(vii) Evidence that the applicant
would suffer extreme hardship involving unusual and severe harm if he or
she were removed from the United
States, as set forth in paragraph (i) of
this section.

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(3) Evidentiary standards. The applicant may submit any credible evidence
relevant to the essential elements of
the T nonimmigrant status. Original
documents or copies may be submitted
as set forth in § 103.2(b)(4) and (b)(5) of
this chapter. Any document containing
text in a foreign language shall be submitted in accordance with § 103.2(b)(3)
of this chapter.
(4) Filing deadline in cases in which
victimization occurred prior to October 28,
2000. Victims of a severe form of trafficking in persons whose victimization
occurred prior to October 28, 2000 must
file a completed application within one
(1) year of January 31, 2002 in order to
be eligible to receive T–1 nonimmigrant status. If the victimization
occurred prior to October 28, 2000, an
alien who was a child at the time he or
she was a victim of a severe form of
trafficking in persons must file a T status application within one (1) year of
his or her 21st birthday, or one (1) year
of January 31, 2002, whichever is later.
For purposes of determining the filing
deadline, an act of severe form of trafficking in persons will be deemed to
have occurred on the last day in which
an act constituting an element of a severe form of trafficking in persons, as
defined in paragraph (a) of this section,
occurred. If the applicant misses the
deadline, he or she must show that exceptional circumstances prevented him
or her from filing in a timely manner.
Exceptional circumstances may include severe trauma, either psychological or physical, that prevented the
victim from applying within the allotted time.
(5) Fingerprint procedure. All applicants for T nonimmigrant status must
be fingerprinted for the purpose of conducting a criminal background check
in accordance with the process and procedures described in § 103.2(e) of this
chapter. After submitting an application with fee to the Service, the applicant will be notified of the proper time
and
location
to
appear
for
fingerprinting.
(6) Personal interview. After the filing
of an application for T nonimmigrant
status, the Service may require an applicant to participate in a personal
interview. The necessity of an interview is to be determined solely by the

Service. All interviews will be conducted in person at a Service-designated location. Every effort will be
made to schedule the interview in a location convenient to the applicant.
(7) Failure to appear for an interview or
failure to follow fingerprinting requirements. (i) Failure to appear for a scheduled interview without prior authorization or to comply with fingerprint
processing requirements may result in
the denial of the application.
(ii) Failure to appear shall be excused
if the notice of the interview or fingerprint appointment was not mailed to
the applicant’s current address and
such address had been provided to the
Service unless the Service determines
that the applicant received reasonable
notice of the appointment. The applicant must notify the Service of any
change of address in accordance with
§ 265.1 of this chapter prior to the date
on which the notice of the interview or
fingerprint appointment was mailed to
the applicant.
(iii) Failure to appear at the interview or fingerprint appointment may
be excused, at the discretion of the
Service, if the applicant promptly contacts the Service and demonstrates
that such failure to appear was the result of exceptional circumstances.
(8) Aliens in pending immigration proceedings. Individuals who believe they
are victims of severe forms of trafficking in persons and who are in pending immigration proceedings must inform the Service if they intend to
apply for T nonimmigrant status under
this section. With the concurrence of
Service counsel, a victim of a severe
form of trafficking in persons in proceedings before an immigration judge
or the Board of Immigration Appeals
(Board) may request that the proceedings be administratively closed (or
that a motion to reopen or motion to
reconsider be indefinitely continued) in
order to allow the alien to pursue an
application for T nonimmigrant status
with the Service. If the alien appears
eligible for T nonimmigrant status, the
immigration judge or the Board,
whichever has jurisdiction, may grant
such a request to administratively
close the proceeding or continue a motion to reopen or motion to reconsider
indefinitely. In the event the Service

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finds an alien ineligible for T–1 nonimmigrant status, the Service may recommence proceedings that have been
administratively closed by filing a motion to re-calendar with the immigration court or a motion to reinstate
with the Board. If the alien is in Service custody pending the completion of
immigration proceedings, the Service
may continue to detain the alien until
a decision has been rendered on the application. An alien who is in custody
and requests bond or a bond redetermination will be governed by the provisions of part 236 of this chapter.
(9) T applicants with final orders of exclusion, deportation or removal. An alien
who is the subject of a final order is
not precluded from filing an application for T–1 nonimmigrant status directly with the Service. The filing of
an application for T nonimmigrant status has no effect on the Service’s execution of a final order, although the
alien may file a request for stay of removal pursuant to § 241.6(a) of this
chapter. However, if the Service subsequently determines, under the procedures of this section, that the application is bona fide, the Service will automatically stay execution of the final
order of deportation, exclusion, or removal, and the stay will remain in effect until a final decision is made on
the T–1 application. The time during
which such a stay is in effect shall not
be counted in determining the reasonableness of the duration of the alien’s
continued detention under the standards of § 241.4 of this chapter. If the T–
1 application is denied, the stay of the
final order is deemed lifted as of the
date of such denial, without regard to
whether the alien appeals the decision.
If the Service grants an application for
T nonimmigrant status, the final order
shall be deemed canceled by operation
of law as of the date of the approval.
(e) Dissemination of information. In appropriate cases, and in accordance with
Department of Justice policies, the
Service shall make information from
applications for T–1 nonimmigrant status available to other Law Enforcement Agencies (LEAs) with the authority to detect, investigate, or prosecute
severe forms of trafficking in persons.
The Service shall coordinate with the
appropriate Department of Justice

component responsible for prosecution
in all cases where there is a current or
impending prosecution of any defendants who may be charged with severe
forms of trafficking in persons crimes
in connection with the victimization of
the applicant to ensure that the Department of Justice component responsible for prosecution has access to all
witness statements provided by the applicant in connection with the application for T–1 nonimmigrant status, and
any other documents needed to facilitate investigation or prosecution of
such severe forms of trafficking in persons offenses.
(f) Evidence demonstrating that the applicant is a victim of a severe form of trafficking in persons. The applicant must
submit evidence that fully establishes
eligibility for each element of the T
nonimmigrant status to the satisfaction of the Attorney General. First, an
alien must demonstrate that he or she
is a victim of a severe form of trafficking in persons. The applicant may
satisfy this requirement either by submitting an LEA endorsement, by demonstrating that the Service previously
has arranged for the alien’s continued
presence under 28 CFR 1100.35, or by
submitting sufficient credible secondary evidence, describing the nature
and scope of any force, fraud, or coercion used against the victim (this
showing is not necessary if the person
induced to perform a commercial sex
act is under the age of 18). An application must contain a statement by the
applicant describing the facts of his or
her victimization. In determining
whether an applicant is a victim of a
severe form of trafficking in persons,
the Service will consider all credible
and relevant evidence.
(1) Law Enforcement Agency endorsement. An LEA endorsement is not required. However, if provided, it must be
submitted by an appropriate law enforcement official on Supplement B,
Declaration of Law Enforcement Officer
for Victim of Trafficking in Persons, of
Form I–914. The LEA endorsement
must be filled out completely in accordance with the instructions contained on the form and must attach the
results of any name or database inquiry performed. In order to provide

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persuasive evidence, the LEA endorsement must contain a description of the
victimization upon which the application is based (including the dates the
severe forms of trafficking in persons
and victimization occurred), and be
signed by a supervising official responsible for the investigation or prosecution of severe forms of trafficking in
persons. The LEA endorsement must
address whether the victim had been
recruited, harbored, transported, provided, or obtained specifically for either labor or services, or for the purposes of a commercial sex act. The
traffickers must have used force, fraud,
or coercion to make the victim engage
in the intended labor or services, or
(for those 18 or older) the intended
commercial sex act. The situations involving labor or services must rise to
the level of involuntary servitude, peonage, debt bondage, or slavery. The
decision of whether or not to complete
an LEA endorsement for an applicant
shall be at the discretion of the LEA.
(2) Primary evidence of victim status.
The Service will consider an LEA endorsement as primary evidence that
the applicant has been the victim of a
severe form of trafficking in persons
provided that the details contained in
the endorsement meet the definition of
a severe form of trafficking in persons
under this section. In the alternative,
documentation from the Service granting the applicant continued presence in
accordance with 28 CFR 1100.35 will be
considered as primary evidence that
the applicant has been the victim of a
severe form of trafficking in persons,
unless the Service has revoked the continued presence based on a determination that the applicant is not a victim
of a severe form of trafficking in persons.
(3) Secondary evidence of victim status;
Affidavits. Credible secondary evidence
and affidavits may be submitted to explain the nonexistence or unavailability of the primary evidence and to
otherwise establish the requirement
that the applicant be a victim of a severe form of trafficking in persons. The
secondary evidence must include an
original statement by the applicant indicating that he or she is a victim of a
severe form of trafficking in persons;
credible evidence of victimization and

cooperation, describing what the alien
has done to report the crime to an
LEA; and a statement indicating
whether similar records for the time
and place of the crime are available.
The statement or evidence should demonstrate that good faith attempts were
made to obtain the LEA endorsement,
including what efforts the applicant
undertook to accomplish these attempts. Applicants are encouraged to
provide and document all credible evidence, because there is no guarantee
that a particular piece of evidence will
result in a finding that the applicant
was a victim of a severe form of trafficking in persons. If the applicant does
not submit an LEA endorsement, the
Service will proceed with the adjudication based on the secondary evidence
and affidavits submitted. A non-exhaustive list of secondary evidence includes trial transcripts, court documents, police reports, news articles,
and copies of reimbursement forms for
travel to and from court. In addition,
applicants may also submit their own
affidavit and the affidavits of other
witnesses. The determination of what
evidence is credible and the weight to
be given that evidence shall be within
the sole discretion of the Service.
(4) Obtaining an LEA endorsement. A
victim of a severe form of trafficking
in persons who does not have an LEA
endorsement should contact the LEA
to which the alien has provided assistance to request an endorsement. If the
applicant has not had contact with an
LEA regarding the acts of severe forms
of trafficking in persons, the applicant
should promptly contact the nearest
Service or Federal Bureau of Investigation (FBI) field office or U.S. Attorneys’ Office to file a complaint, assist
in the investigation or prosecution of
acts of severe forms of trafficking in
persons, and request an LEA endorsement. If the applicant was recently liberated from the trafficking in persons
situation, the applicant should ask the
LEA for an endorsement. Alternatively, the applicant may contact
the Department of Justice, Civil Rights
Division, Trafficking in Persons and
Worker Exploitation Task Force complaint hotline at 1–888–428–7581 to file a
complaint and be referred to an LEA.

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(g) Physical presence on account of
trafficking in persons. The applicant
must establish that he or she is physically present in the United States,
American Samoa, or at a port-of-entry
thereto on account of such trafficking,
and that he or she is a victim of a severe form of trafficking in persons that
forms the basis for the application.
Specifically, the physical presence requirement reaches an alien who: is
present because he or she is being subjected to a severe form of trafficking in
persons; was recently liberated from a
severe form of trafficking in persons;
or was subject to severe forms of trafficking in persons at some point in the
past and whose continuing presence in
the United States is directly related to
the original trafficking in persons.
(1) In general. The evidence and statements included with the application
must state the date and place (if
known) and the manner and purpose (if
known) for which the applicant entered
the United States, American Samoa, or
a port-of-entry thereto, and demonstrate that the applicant is present
now on account of the applicant’s victimization as described in paragraph (f)
of
this
section
and
section
101(a)(15)(T)(i)(I) of the Act.
(2) Opportunity to depart. If the alien
has escaped the traffickers before law
enforcement became involved in the
matter, he or she must show that he or
she did not have a clear chance to leave
the United States in the interim. The
Service will consider whether an applicant had a clear chance to leave in
light of the individual applicant’s circumstances. Information relevant to
this determination may include, but is
not limited to, circumstances attributable to the trafficking in persons situation, such as trauma, injury, lack of
resources, or travel documents that
have been seized by the traffickers.
This determination may reach both
those who entered the United States
lawfully and those who entered without being admitted or paroled. The
Service will consider all evidence presented to determine the physical presence requirement, including asking the
alien to answer questions on Form I–
914, about when he or she escaped from
the trafficker, what activities he or she
has undertaken since that time, includ-

ing the steps he or she may have taken
to deal with the consequences of having been trafficked, and the applicant’s
ability to leave the United States.
(3) Departure from the United States.
An alien who has voluntarily left (or
has been removed from) the United
States at any time after the act of a severe form of trafficking in persons
shall be deemed not to be present in
the United States as a result of such
trafficking in persons unless the alien’s
reentry into the United States was the
result of the continued victimization of
the alien or a new incident of a severe
form of trafficking in persons described
in section 101(a)(15)(T)(i)(I) of the Act.
(h) Compliance with reasonable requests
from a law enforcement agency for assistance in the investigation or prosecution.
Except as provided in paragraph (h)(3)
of this section, the applicant must submit evidence that fully establishes that
he or she has complied with any reasonable request for assistance in the
investigation or prosecution of acts of
severe forms of trafficking in persons.
As provided in paragraph (h)(3) of this
section, if the victim of a severe form
of trafficking in persons is under age
15, he or she is not required to comply
with any reasonable request for assistance in order to be eligible for T nonimmigrant status, but may cooperate
at his or her discretion.
(1) Primary evidence of compliance with
law enforcement requests. An LEA endorsement describing the assistance
provided by the applicant is not required evidence. However, if an LEA
endorsement is provided as set forth in
paragraph (f)(1) of this section, it will
be considered primary evidence that
the applicant has complied with any
reasonable request in the investigation
or prosecution of the severe form of
trafficking in persons of which the applicant was a victim. If the Service has
reason to believe that the applicant
has not complied with any reasonable
request for assistance by the endorsing
LEA or other LEAs, the Service will
contact the LEA and both the Service
and the LEA will take all practical
steps to reach a resolution acceptable
to both agencies. The Service may, at
its discretion, interview the alien regarding the evidence for and against
the compliance, and allow the alien to

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submit additional evidence of such
compliance. If the Service determines
that the alien has not complied with
any reasonable request for assistance,
then the application will be denied, and
any approved application based on the
LEA endorsement will be revoked pursuant to this section.
(2) Secondary evidence of compliance
with law enforcement requests; Affidavits.
Credible secondary evidence and affidavits may be submitted to show the nonexistence or unavailability of the primary evidence and to otherwise establish the requirement that the applicant
comply with any reasonable request for
assistance in the investigation or prosecution of that severe form of trafficking in persons. The secondary evidence must include an original statement by the applicant that indicates
the reason the LEA endorsement does
not exist or is unavailable, and whether similar records documenting any assistance provided by the applicant are
available. The statement or evidence
must show that an LEA that has responsibility and authority for the detection, investigation, or prosecution
of severe forms of trafficking in persons has information about such trafficking in persons, that the victim has
complied with any reasonable request
for assistance in the investigation or
prosecution of such acts of trafficking,
and, if the victim did not report the
crime at the time, why the crime was
not previously reported. The statement
or evidence should demonstrate that
good faith attempts were made to obtain the LEA endorsement, including
what efforts the applicant undertook
to accomplish these attempts. In addition, applicants may also submit their
own affidavit and the affidavits of
other witnesses. The determination of
what evidence is credible and the
weight to be given that evidence shall
be within the sole discretion of the
Service. Applicants are encouraged to
describe and document all applicable
factors, since there is no guarantee
that a particular reason will result in a
finding that the applicant has complied
with reasonable requests. An applicant
who never has had contact with an
LEA regarding the acts of severe forms
of trafficking in persons will not be eligible for T–1 nonimmigrant status.

(3) Exception for applicants under the
age of 15. Applicants under the age of 15
are not required to demonstrate compliance with the requirement of any
reasonable request for assistance in the
investigation and prosecution of acts of
severe forms of trafficking in persons.
Applicants under the age of 15 must
provide evidence of their age. Primary
evidence that a victim of a severe form
of trafficking in persons has not yet
reached the age of 15 would be an official copy of the alien’s birth certificate, a passport, or a certified medical
opinion. Secondary evidence regarding
the age of the applicant also may be
submitted
in
accordance
with
§ 103.2(b)(2)(i) of this chapter. An applicant under the age of 15 still must provide evidence demonstrating that he or
she satisfies the other necessary requirements, including that he or she is
the victim of a severe form of trafficking in persons and faces extreme
hardship involving unusual and severe
harm if removed from the United
States.
(i) Evidence of extreme hardship involving unusual and severe harm upon removal. To be eligible for T–1 nonimmigrant
status
under
section
101(a)(15)(T)(i) of the Act, an applicant
must demonstrate that removal from
the United States would subject the applicant to extreme hardship involving
unusual and severe harm.
(1) Standard. Extreme hardship involving unusual and severe harm is a
higher standard than that of extreme
hardship as described in § 240.58 of this
chapter. A finding of extreme hardship
involving unusual and severe harm
may not be based upon current or future economic detriment, or the lack
of, or disruption to, social or economic
opportunities. Factors that may be
considered in evaluating whether removal would result in extreme hardship involving unusual and severe harm
should take into account both traditional extreme hardship factors and
those factors associated with having
been a victim of a severe form of trafficking in persons. These factors include, but are not limited to, the following:
(i) The age and personal circumstances of the applicant;

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(ii) Serious physical or mental illness
of the applicant that necessitates medical or psychological attention not reasonably available in the foreign country;
(iii) The nature and extent of the
physical
and
psychological
consequences of severe forms of trafficking
in persons;
(iv) The impact of the loss of access
to the United States courts and the
criminal justice system for purposes
relating to the incident of severe forms
of trafficking in persons or other
crimes perpetrated against the applicant, including criminal and civil redress for acts of trafficking in persons,
criminal prosecution, restitution, and
protection;
(v) The reasonable expectation that
the existence of laws, social practices,
or customs in the foreign country to
which the applicant would be returned
would penalize the applicant severely
for having been the victim of a severe
form of trafficking in persons;
(vi) The likelihood of re-victimization and the need, ability, or willingness of foreign authorities to protect
the applicant;
(vii) The likelihood that the trafficker in persons or others acting on
behalf of the trafficker in the foreign
country would severely harm the applicant; and
(viii) The likelihood that the applicant’s individual safety would be seriously threatened by the existence of
civil unrest or armed conflict as demonstrated by the designation of Temporary Protected Status, under section
244 of the Act, or the granting of other
relevant protections.
(2) Evidence. An applicant is encouraged to describe and document all factors that may be relevant to his or her
case, since there is no guarantee that a
particular reason or reasons will result
in a finding that removal would cause
extreme hardship involving unusual
and severe harm to the applicant.
Hardship to persons other than the
alien victim of a severe form of trafficking in persons cannot be considered
in determining whether an applicant
would suffer extreme hardship involving unusual and severe harm.
(3) Evaluation. The Service will evaluate on a case-by-case basis, after a re-

view of the evidence, whether the applicant has demonstrated extreme
hardship involving unusual or severe
harm. The Service will consider all
credible evidence submitted regarding
the nature and scope of the hardship
should the applicant be removed from
the United States, including evidence
of hardship arising from circumstances
surrounding the victimization as described in section 101(a)(15)(T)(i)(I) of
the Act and any other circumstances.
In appropriate cases, the Service may
consider evidence from relevant country condition reports and any other
public or private sources of information. The determination that extreme
hardship involving unusual or severe
harm to the alien exists is to be made
solely by the Service.
(j) Waiver of grounds of inadmissibility.
An application for a waiver of inadmissibility under section 212(d)(13) or section 212(d)(3) of the Act must be filed in
accordance with § 212.16 of this chapter,
and submitted to the Service with the
completed application package.
(k) Bona fide application for T–1 nonimmigrant status—(1) Criteria. Once an
application is submitted to the Service, the Service will conduct an initial
review to determine if the application
is a bona fide application for T nonimmigrant status. An application shall
be determined to be bona fide if, after
initial review, it is properly filed, there
appears to be no instance of fraud in
the application, the application is complete (including the LEA endorsement
or other secondary evidence), the application presents prima facie evidence of
each element to show eligibility for T–
1 nonimmigrant status, and the Service
has
completed
the
necessary
fingerprinting and criminal background checks. If an alien is inadmissible under section 212(a) of the Act,
the application will not be deemed to
be bona fide unless the only grounds of
inadmissibility are those under the circumstances
described
in
section
212(d)(13) of the Act, or unless the Service has granted a waiver of inadmissibility on any other grounds. All waivers are discretionary and require a request for a waiver. Under section
212(d)(13), an application can be bona
fide before the waiver is granted. This

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is not the case under other grounds of
inadmissibility.
(2) Determination by USCIS. An application for T–1 status under this section
will not be treated as a bona fide application until USCIS has provided the
notice described in paragraph (k)(3) of
this section. In the event that an application is incomplete or if the application is complete but does not present
sufficient evidence to establish prima
facie eligibility for each required element of T nonimmigrant status, USCIS
will follow the procedures provided in 8
CFR 103.2(b) for requesting additional
evidence, issuing a notice of intent to
deny, or adjudicating the case on the
merits.
(3) Notice to alien. Once an application
is determined to be a bona fide application for a T–1 nonimmigrant status,
the Service will provide written confirmation to the applicant.
(4) Stay of final order of exclusion, deportation, or removal. A determination
by the Service that an application for
T–1 nonimmigrant status is bona fide
automatically stays the execution of
any final order of exclusion, deportation, or removal. This stay shall remain in effect until there is a final decision on the T application. The filing
of an application for T nonimmigrant
status does not stay the execution of a
final order unless the Service has determined that the application is bona
fide. Neither an immigration judge nor
the Board of Immigration Appeals
(Board) has jurisdiction to adjudicate
an application for a stay of execution,
deportation, or removal order, on the
basis of the filing of an application for
T nonimmigrant status.
(l) Review and decision on applications—(1) De novo review. The Service
shall conduct a de novo review of all
evidence submitted and is not bound by
its previous factual determinations as
to any essential elements of the T nonimmigrant status application. Evidence previously submitted for this and
other immigration benefits or relief
may be used by the Service in evaluating the eligibility of an applicant for
T nonimmigrant status. However, the
Service will not be bound by its previous factual determinations as to any
essential elements of the T classification. The Service will determine, in its

sole discretion, the evidentiary value
of previously or concurrently submitted evidence.
(2) Burden of proof. At all stages of
the processing of an application for any
benefits under T nonimmigrant status,
the burden shall be on the applicant to
present to the Service evidence that
fully establishes eligibility for the desired benefit.
(3) Decision. After completing its review of the application, the Service
shall issue a written decision granting
or denying the application. If the Service determines that the applicant has
met the requirements for T–1 nonimmigrant status, the Service shall
grant the application, subject to the
annual limitation as provided in paragraph (m) of this section. Along with
the approval, the Service will include a
list of nongovernmental organizations
to which the applicant can refer regarding the alien’s options while in the
United States and resources available
to the alien.
(4) Work authorization. When the
Service grants an application for T–1
nonimmigrant status, the Service will
provide the alien with an Employment
Authorization Document incident to
that status, which shall extend concurrently with the duration of the alien’s
T–1 nonimmigrant status.
(m) Annual cap. In accordance with
section 214(n)(2) of the Act, the total
number of principal aliens issued T–1
nonimmigrant status may not exceed
5,000 in any fiscal year.
(1) Issuance of T–1 nonimmigrant status. Once the cap is reached in any fiscal year, the Service will continue to
review and consider applications in the
order they are received. The Service
will determine if the applicants are eligible for T–1 nonimmigrant status, but
will not issue T–1 nonimmigrant status
at that time. The revocation of an
alien’s T–1 status will have no effect on
the annual cap.
(2) Waiting list. All eligible applicants
who, due solely to the cap, are not
granted T–1 nonimmigrant status shall
be placed on a waiting list and will receive notice of such placement. While
on the waiting list, the applicant shall
maintain his or her current means to

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prevent removal (deferred action, parole, or stay of removal) and any employment authorization, subject to any
limits imposed on that authorization.
Priority on the waiting list is determined by the date the application was
properly filed, with the oldest applications receiving the highest priority. As
new classifications become available in
subsequent years, the Service will issue
them to applicants on the waiting list,
in the order in which the applications
were properly filed, providing the applicant remains admissible. The Service may require new fingerprint and
criminal history checks before issuing
an approval. After T–1 nonimmigrant
status has been issued to qualifying applicants on the waiting list, any remaining T–1 nonimmigrant numbers
will be issued to new qualifying applicants in the order that the applications
were properly filed.
(n) [Reserved]
(o) Admission of the T–1 applicant’s immediate family members—(1) Eligibility.
Subject to section 214(n) of the Act, an
alien who has applied for or been granted T–1 nonimmigrant status may apply
for admission of an immediate family
member, who is otherwise admissible
to the United States, in a T–2 (spouse)
or T–3 (child) derivative status (and, in
the case of a T–1 principal applicant
who is a child, a T–4 (parent) derivative
status), if accompanying or following
to join the principal alien. The applicant must submit evidence sufficient
to demonstrate that:
(i) The alien for whom T–2, T–3, or T–
4 status is being sought is an immediate family member of a T–1 nonimmigrant, as defined in paragraph (a)
of this section, and is otherwise eligible for that status; and
(ii) The immediate family member or
the T–1 principal would suffer extreme
hardship, as described in paragraph
(o)(5) of this section, if the immediate
family member was not allowed to accompany or follow to join the principal
T–1 nonimmigrant.
(2) Filing procedures. A T–1 principal
may apply for T–2, T–3, or T–4 nonimmigrant status for an immediate
family member by submitting Form I–
914 and all necessary documentation by
mail, including Supplement A, to the
Service. The application for derivative

T nonimmigrant status for eligible
family members can be filed on the
same application as the T–1 application, or in a separate application filed
at a subsequent time.
(3) Contents of the application package
for an immediate family member. In addition to Form I–914, an application for
T–2, T–3, or T–4 nonimmigrant status
must include the following:
(i) The proper fee for Form I–914 as
provided in § 103.7(b)(1) of this chapter,
or an application for a fee waiver as
provided in § 103.7(c) of this chapter;
(ii) Three current photographs;
(iii) The fingerprint fee as provided
in § 103.2(e) of this chapter for each immediate family member;
(iv) Evidence demonstrating the relationship of an immediate family member, as provided in paragraph (o)(4) of
this section; and
(v) Evidence demonstrating extreme
hardship as provided in paragraph (o)(5)
of this section.
(4) Relationship. The relationship
must exist at the time the application
for the T–1 nonimmigrant status was
filed, and must continue to exist at the
time of the application for T–2, T–3, or
T–4 status and at the time of the immediate family member’s subsequent
admission to the United States. If the
T–1 principal alien proves that he or
she became the parent of a child after
the T–1 nonimmigrant status was filed,
the child shall be eligible to accompany or follow to join the T–1 principal.
(5) Evidence demonstrating extreme
hardship for immediate family members.
The application must demonstrate that
each alien for whom T–2, T–3, or T–4
status is being sought, or the principal
T–1 applicant, would suffer extreme
hardship if the immediate family member was not admitted to the United
States or was removed from the United
States (if already present). When the
immediate family members are following to join the principal, the extreme hardship must be substantially
different than the hardship generally
experienced by other residents of their
country of origin who are not victims
of a severe form of trafficking in persons. The Service will consider all
credible evidence of extreme hardship
to the T–1 recipient or the individual

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immediate family members. The determination of the extreme hardship
claim will be evaluated on a case-bycase basis, in accordance with the factors outlined in § 240.58 of this chapter.
Applicants are encouraged to raise and
document all applicable factors, since
there is no guarantee that a particular
reason or reasons will result in a finding of extreme hardship if the applicant is not allowed to enter or remain
in the United States. In addition to
these factors, other factors that may
be considered in evaluating extreme
hardship include, but are not limited
to, the following:
(i) The need to provide financial support to the principal alien;
(ii) The need for family support for a
principal alien; or
(iii) The risk of serious harm, particularly bodily harm, to an immediate
family member from the perpetrators
of the severe forms of trafficking in
persons.
(6) Fingerprinting; interviews. The provisions for fingerprinting and interviews in paragraphs (c)(5) through (c)(7)
of this section also are applicable to
applications for immediate family
members.
(7) Admissibility. If an alien is inadmissible, an application for a waiver of
inadmissibility under section 212(d)(13)
or section 212(d)(3) of the Act must be
filed in accordance with § 212.16 of this
chapter, and submitted to the Service
with the completed application package.
(8) Review and decision. After reviewing the application under the standards
of paragraph (l) of this section, the
Service shall issue a written decision
granting or denying the application for
T–2, T–3, or T–4 status.
(9) Derivative grants. Individuals who
are granted T–2, T–3, or T–4 nonimmigrant status are not subject to an
annual cap. Applications for T–2, T–3,
or T–4 nonimmigrant status will not be
granted until a T–1 status has been
issued to the related principal alien.
(10) Employment authorization. An
alien granted T–2, T–3, or T–4 nonimmigrant status may apply for employment authorization by filing Form
I–765, Application for Employment Authorization, with the appropriate fee or
an application for fee waiver, in ac-

cordance with the instructions on, or
attached to, that form. For derivatives
in the United States, the Form I–765
may be filed concurrently with the filing of the application for T–2, T–3, or
T–4 status or at any time thereafter. If
the application for employment authorization is approved, the T–2, T–3, or
T–4 alien will be granted employment
authorization
pursuant
to
§ 274a.12(c)(25) of this chapter. Employment authorization will last for the
length of the duration of the T–1 nonimmigrant status.
(11) Aliens outside the United States.
When the Service approves an application for a qualifying immediate family
member who is outside the United
States, the Service will notify the T–1
principal alien of such approval on
Form I–797, Notice of Action. Form I–914,
Supplement A, Supplemental Application
for Immediate Family Members of T–1 Recipient, must be forwarded to the Department of State for delivery to the
American Embassy or Consulate having jurisdiction over the area in which
the T–1 recipient’s qualifying immediate family member is located. The
supplemental form may be used by a
consular officer in determining the
alien’s eligibility for a T–2, T–3, or T–
4 visa, as appropriate.
(p) Duration of T nonimmigrant status.
(1) In general. An approved T nonimmigrant status shall expire after 4
years from the date of approval. The
status may be extended if a Federal,
State, or local law enforcement official, prosecutor, judge, or other authority investigating or prosecuting
activity relating to human trafficking
certifies that the presence of the alien
in the United States is necessary to assist in the investigation or prosecution
of such activity. At the time an alien is
approved for T nonimmigrant status or
receives an extension, USCIS shall notify the alien when his or her nonimmigrant status will expire. The applicant
shall
immediately
notify
USCIS of any changes in the applicant’s circumstances that may affect
eligibility under section 101(a)(15)(T)(i)
of the Act and this section.
(2) Information pertaining to adjustment of status. USCIS will notify an
alien granted T nonimmigrant status
of the requirement to timely apply for

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adjustment of status, and that the failure to apply for adjustment of status in
accordance with 8 CFR 245.23 will result in termination of the alien’s T
nonimmigrant status at the end of the
4-year period unless that status is extended in accordance with paragraph
(p)(1) of this section. Aliens who properly apply for adjustment of status to
that of a person admitted to permanent
residence in accordance with 8 CFR
245.23 shall remain eligible for adjustment of status.
(q) De novo review. The Service shall
conduct a de novo review of all evidence submitted at all stages in the adjudication of an application for T nonimmigrant status. Evidence previously
submitted for this and other immigration benefits or relief may be used by
the Service in evaluating the eligibility of an applicant for T nonimmigrant status. However, the Service will not be bound by its previous
factual determinations as to any essential elements of the T classification.
The Service will determine, in its sole
discretion, the evidentiary value of
previously or concurrently submitted
evidence.
(r) Denial of application. Upon denial
of any T application, the Service shall
notify the applicant, any LEA providing an LEA endorsement, and the
Department of Health and Human
Service’s Office of Refugee Resettlement in writing of the decision and the
reasons for the denial in accordance
with § 103.3 of this chapter. Upon denial
of an application for T nonimmigrant
status, any benefits derived as a result
of having filed a bona fide application
will automatically be revoked when
the denial becomes final. If an applicant chooses to appeal the denial pursuant to the provisions of § 103.3 of this
chapter, the denial will not become
final until the appeal is adjudicated.
(s) Revocation of approved T nonimmigrant status. The alien shall immediately notify the Service of any
changes in the terms and conditions of
an alien’s circumstances that may affect
eligibility
under
section
101(a)(15)(T) of the Act and this section.
(1) Grounds for notice of intent to revoke. The Service shall send to the T
nonimmigrant a notice of intent to re-

voke the status in relevant part if it is
determined that:
(i) The T nonimmigrant violated the
requirements of section 101(a)(15)(T) of
the Act or this section;
(ii) The approval of the application
violated this section or involved error
in preparation procedure or adjudication that affects the outcome;
(iii) In the case of a T–2 spouse, the
alien’s divorce from the T–1 principal
alien has become final;
(iv) In the case of a T–1 principal
alien, an LEA with jurisdiction to detect or investigate the acts of severe
forms of trafficking in persons by
which the alien was victimized notifies
the Service that the alien has unreasonably refused to cooperate with the
investigation or prosecution of the
trafficking in persons and provides the
Service with a detailed explanation of
its assertions in writing; or
(v) The LEA providing the LEA endorsement withdraws its endorsement
or disavows the statements made
therein and notifies the Service with a
detailed explanation of its assertions in
writing.
(2) Notice of intent to revoke and consideration of evidence. A district director may revoke the approval of a T
nonimmigrant status at any time, even
after the validity of the status has expired. The notice of intent to revoke
shall be in writing and shall contain a
detailed statement of the grounds for
the revocation and the time period allowed for the T nonimmigrant’s rebuttal. The alien 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 approval of
the T nonimmigrant status. The determination of what is relevant evidence
and the weight to be given to that evidence shall be within the sole discretion of the director.
(3) Revocation of T nonimmigrant status. If, upon reconsideration, the approval previously granted is revoked,
the director shall provide the alien
with a written notification of the decision that explains the specific reasons
for the revocation. The director also
shall notify the LEA that supplied an
endorsement to the alien, any consular

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officer having jurisdiction over the applicant, and HHS’s Office of Refugee
Resettlement.
(4) Appeal of a revocation of approval.
The alien may appeal the decision to
revoke the approval within 15 days
after the service of notice of the revocation. All appeals of a revocation of
approval will be processed and adjudicated in accordance with § 103.3 of
this chapter.
(5) Effect of revocation of T–1 status. In
the event that a principal alien’s T–1
nonimmigrant status is revoked, all T
nonimmigrant status holders deriving
status from the revoked status automatically shall have that status revoked. In the case where a T–2, T–3, or
T–4 application is still awaiting adjudication, it shall be denied. The revocation of an alien’s T–1 status will have
no effect on the annual cap as described in paragraph (m) of this section.
(t) Removal proceedings without revocation. Nothing in this section shall prohibit the Service from instituting removal proceedings under section 240 of
the Act for conduct committed after
admission, or for conduct or a condition that was not disclosed to the Service prior to the granting of nonimmigrant
status
under
section
101(a)(15)(T) of the Act, including the
misrepresentation of material facts in
the applicant’s application for T nonimmigrant status.
(u) [Reserved]
(v) Service officer referral. Any Service
officer who receives a request from an
alien seeking protection as a victim of
a severe form of trafficking in persons
or seeking information regarding T
nonimmigrant status shall follow the
procedures for protecting and providing
services to victims of severe forms of
trafficking outlined in 28 CFR 1100.31.
Aliens believed to be victims of a severe form of trafficking in persons
shall be referred to the local Service
office with responsibility for investigations relating to victims of severe
forms of trafficking in persons for a
consultation within 7 days. The local
Service office may, in turn, refer the
victim to another LEA with responsibility for investigating or prosecuting
severe forms of trafficking in persons.
If the alien has a credible claim to vic-

timization, he or she will be given the
opportunity to submit an application
for T status pursuant to section
101(a)(15)(T) of the Act and any other
benefit or protection for which he or
she may be eligible. An alien determined not to have a credible claim to
being a victim of a severe form of trafficking in persons and who is subject to
removal will be removed in accordance
with Service policy.
[67 FR 4795, Jan. 31, 2002, as amended at 72
FR 19107, Apr. 17, 2007; 73 FR 75558, Dec. 12,
2008; 74 FR 55738, Oct. 28, 2009]

§ 214.12 Preliminary
enrollment
of
schools in the Student and Exchange Visitor Information System
(SEVIS).
(a) Private elementary and private
secondary schools, public high schools,
post-secondary
schools,
language
schools, and vocational schools are eligible for preliminary enrollment in
Student and Exchange Visitor Information System (SEVIS), beginning on or
after July 1, 2002, but only if the school
is accredited by an accrediting agency
recognized by the United States Department of Education, CAPE, or
AACS, or in the case of a public high
school, the school provides certification from the appropriate public official that the school meets the requirements of the state or local public educational system and has been continuously approved by the Service for a
minimum of three years, as of July 1,
2002, for the admission of F or M nonimmigrant students. A school may establish that it is accredited by showing
that it has been designated as an eligible school under Title IV of the Higher
Education Act of 1965.
(b) Preliminary enrollment in SEVIS
is optional for eligible schools. The
preliminary enrollment period will be
open from July 1, 2002, through August
16, 2002, or, if later, until the Service
begins the SEVIS full scale certification process. The process for eligible
schools to apply for preliminary enrollment through the Internet is as follows:
(1) Eligible institutions must access
the
Internet
site,
http://
www.ins.usdoj.gov/sevis. Upon accessing
the site, the president, owner, head of
the school or designated school official

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will be asked to enter the following information: the school’s name; the first,
middle, and last name of the contact
person for the school; and the e-mail
address and phone number of the contact person.
(2) Once this information has been
submitted, the Service will issue the
school a temporary ID and password,
which will be forwarded to the e-mail
address listed. When the contact person
receives this temporary ID and password, the school will again access the
Internet site and will electronically
enter the school’s information for its
Form I–17.
(c) The Service will review the information by a school submitted as provided in paragraph (b) of this section,
and will preliminarily enroll a school
in SEVIS, if it is determined to be eligible under the standards of paragraph
(a) of this section. If the officer determines that the school is eligible for
preliminary enrollment, the officer
will update SEVIS and enroll the
school and permanent user IDs and
passwords will be automatically generated via e-mail to the DSOs listed on
the Form I–17. Schools that are not approved by the Service for preliminary
enrollment will be notified that they
must apply for certification in accordance with the Interim Certification
Rule. A school that is granted preliminary enrollment will have to use
SEVIS for the issuance of any new
Form I–20 to a new or continuing student.
(d) Schools granted preliminary enrollment in SEVIS will not have to
apply for certification at this time.
However, all such schools will be required to apply for certification, and
pay the certification fee, prior to May
14, 2004.
(e) Eligible schools that meet the
standards of paragraph (a) of this section, but do not apply for preliminary
enrollment in SEVIS prior to the close
of the preliminary enrollment period
will have to apply for certification review under the Interim Certification
Rule and pay the certification fee before enrolling in SEVIS. However, once
a school meeting the standards of paragraph (a) of this section applies for certification review, the Service will have
the discretion, after a review of the

school’s application, to allow the
school to enroll in SEVIS without requiring an on-site visit prior to enrollment. If the Service permits such a
school to enroll in SEVIS prior to completion of the on-site visit, the on-site
visit must be completed prior to May
14, 2004.
(f) Schools that are not eligible to
apply for preliminary enrollment in
SEVIS under this section—including
flight schools—will have to apply for
certification under the Interim Certification Rule, pay the certification fee,
and undergo a full certification review
including an on-site visit, prior to
being allowed to enroll in SEVIS.
[67 FR 44346, July 1, 2002]

§ 214.13 SEVIS fee for certain F, J, and
M nonimmigrants.
(a) Applicability. The following aliens
are required to submit a payment in
the amount indicated for their status
to the Student and Exchange Visitor
Program (SEVP) in advance of obtaining nonimmigrant status as an F or M
student or J exchange visitor, in addition to any other applicable fees, except as otherwise provided for in this
section:
(1) An alien who applies for F–1 or F–
3 status in order to enroll in a program
of study at an SEVP-certified institution of higher education, as defined in
section 101(a) of the Higher Education
Act of 1965, as amended, or in a program of study at any other SEVP-certified academic or language-training
institution including private elementary and secondary schools and public
secondary schools, the amount of $200;
(2) An alien who applies for J–1 status in order to commence participation
in an exchange visitor program designated by the Department of State
(DoS), the amount of $180, with a reduced fee for certain exchange visitor
categories as provided in paragraphs
(b)(1) and (c) of this section; and
(3) An alien who applies for M–1 or
M–3 status in order to enroll in a program of study at an SEVP-certified vocational educational institution, including a flight school, in the amount
of $200.
(b) Aliens not subject to a fee. No
SEVIS fee is required with respect to:

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(1) A J–1 exchange visitor who is
coming to the United States as a participant in an exchange visitor program sponsored by the Federal government, identified by a program identifier designation prefix of G–1, G–2, G–3,
or G–7;
(2) Dependents of F, M, or J nonimmigrants. The principal alien must
pay the fee, when required under this
section, in order for his/her qualifying
dependents to obtain F–2, J–2, or M–2
status. However, an F–2, J–2, or M–2 dependent is not required to pay a separate fee under this section in order to
obtain that status or during the time
he/she remains in that status.
(3) A nonimmigrant described in
paragraph (a) of this section whose
Form I–20 or Form DS–2019 for initial
attendance was issued on or before August 31, 2004.
(c) Special Fee for Certain J–1 Nonimmigrants. A J–1 exchange visitor coming to the United States as an au pair,
camp counselor, or participant in a
summer work/travel program is subject
to a fee of $35.
(d) Time for payment of SEVIS fee. An
alien who is subject to payment of the
SEVIS fee must remit the fee directly
to DHS as follows:
(1) An alien seeking an F–1, F–3, J–1,
M–1, or M–3 visa from a consular officer
abroad for initial attendance at a DHSapproved school or to commence participation in a Department of Statedesignated exchange visitor program,
must pay the fee to DHS before
issuance of the visa.
(2) An alien who is exempt from the
visa requirement described in section
212(d)(4) of the Act must pay the fee to
DHS before the alien applies for admission at a U.S. port-of-entry to begin
initial attendance at a DHS-approved
school or initial participation in a Department of State-designated exchange
visitor program.
(3) A nonimmigrant alien in the
United States seeking a change of status to F–1, F–3, J–1, M–1, or M–3 must
pay the fee to DHS before the alien is
granted the change of nonimmigrant
status, except as provided in paragraph
(e)(4) of this section.
(4) A J–1 nonimmigrant who is applying for a change of program category
within the United Status, in accord-

ance with 22 CFR 62.42, must pay the
fee associated with that new category,
if any, prior to being granted such a
change.
(5) A J–1 nonimmigrant initially
granted J–1 status to participate in a
program sponsored by the Federal government, as defined in paragraph (b)(1)
of this section, and transferring in accordance with 22 CFR 62.42 to a program that is not similarly sponsored,
must pay the fee associated with the
new program prior to completing the
transfer.
(6) A J–1 nonimmigrant who is applying for reinstatement after a substantive violation of status, or who has
been out of program status for longer
than 120 days but less than 270 days
during the course of his/her program
must pay a new fee to DHS, if applicable, prior to being granted a reinstatement to valid J–1 status.
(7) An F or M student who is applying
for reinstatement of student status because of a violation of status, and who
has been out of status for a period of
time that exceeds the presumptive ineligibility deadline set forth in 8 CFR
214.2(f)(16)(i)(A) or (m)(16)(i)(A), must
pay a new fee to DHS prior to being
granted a return to valid status.
(8) An F–1, F–3, M–1, or M–3 nonimmigrant who has been absent from
the United States for a period that exceeds 5 months in duration, and wishes
to reenter the United States to engage
in further study in the same course of
study, with the exception of students
who have been working toward completion of a U.S. course of study in authorized overseas study, must pay a
new fee to DHS prior to being granted
student status.
(e) Circumstances where no new fee is
required. (1) Extension of stay, transfer,
or optional practical training for students. An F–1, F–3, M–1, or M–3 nonimmigrant is not required to pay a new
fee in connection with:
(i) An application for an extension of
stay, as provided in 8 CFR 214.2(f)(7) or
(m)(10);
(ii) An application for transfer, as
provided in 8 CFR 214.2(f)(8) or (m)(11);
(iii) A change in educational level, as
provided in 8 CFR 214.2(f)(5)(ii); or

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(iv) An application for post-completion practical training, as provided in 8
CFR 214.2(f)(10)(ii) or (m)(14).
(2) Extension of program or transfer
for exchange visitors. A J–1 nonimmigrant is not required to pay a new
fee in connection with:
(i) An application for an extension of
program, as provided in 22 CFR 62.43; or
(ii) An application for transfer of program, as provided in 22 CFR 62.42.
(3) Visa issuance for a continuation
of study. An F–1, F–3, J–1, M–1, or M–3
nonimmigrant who has previously paid
the fee is not required to pay a new fee
in order to be granted a visa to return
to the United States as a continuing
student or exchange visitor in a single
course of study, so long as the nonimmigrant is not otherwise required to
pay a new fee in accordance with the
other provisions in this section.
(4) Certain changes in student classification.
(i) No fee is required for changes between the F–1 and F–3 classifications,
and no fee is required for changes between the M–1 and M–3 classifications.
(ii)
Institutional
reclassification.
DHS retains the discretionary authority to waive the additional fee requirement when a nonimmigrant changes
classification between F and M, if the
change of status is due solely to institutional reclassification by the Student and Exchange Visitor Program
during that nonimmigrant’s course of
study.
(5) Re-application following denial of
application by consular officer. An
alien who fully paid a SEVIS fee in
connection with an initial application
for an F–1, F–3, M–1, or M–3 visa, or a
J–1 visa in a particular program category, whose initial application was denied, and who is reapplying for the
same status, or the same J–1 exchange
visitor category, within 12 months following the initial notice of denial is
not required to repay the SEVIS fee.
(6) Re-application following denial of
an application for a change of status. A
nonimmigrant who fully paid a SEVIS
fee in connection with an initial application for a change of status within in
the United States to F–1, F–3, M–1, or
M–3 classification, or for a change of
status to a particular J–1 exchange visitor category, whose initial application

was denied, and who is granted a motion to reopen the denied case is not required to repay the SEVIS fee if the
motion to reopen is granted within 12
months of receipt of initial notice of
denial.
(f) [Reserved]
(g) Procedures for payment of the
SEVIS fee. (1) Options for payment. An
alien subject to payment of a fee under
this section may pay the fee by any
procedure approved by DHS, including:
(i) Submission of Form I–901, to DHS
by mail, along with the proper fee paid
by check, money order, or foreign draft
drawn on a financial institution in the
United States and payable in United
States currency, as provided by 8 CFR
103.7(a)(1);
(ii) Electronic submission of Form I–
901 to DHS using a credit card or other
electronic means of payment accepted
by DHS; or,
(iii) A designated payment service
and receipt mechanism approved and
set forth in future guidance by DHS.
(2) Receipts. DHS will provide a receipt for each fee payment under paragraph (g)(1) of this section until such
time as DHS issues a notice in the FEDERAL REGISTER that paper receipts will
no longer be necessary. Further receipt
provisions include:
(i) DHS will provide for an expedited
delivery of the receipt, upon request
and receipt of an additional fee;
(ii) If payment was made electronically, both DHS and the Department of
State will accept a properly completed
receipt that is printed-out electronically, in lieu of the receipt generated
by DHS;
(iii) If payment was made through an
approved payment service, DHS and
the Department of State will accept a
properly completed receipt issued by
the payment service, in lieu of the receipt generated by DHS.
(3) Electronic record of fee payment.
DHS will maintain an electronic record
of payment for the alien as verification
of receipt of the required fee under this
section. If DHS records indicate that
the fee has been paid, an alien who has
lost or did not receive a receipt for a
fee payment under this section will not
be denied an immigration benefit, including visa issuance or admission to
the United States, solely because of a

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8 CFR Ch. I (1–1–16 Edition)

failure to present a paper receipt of fee
payment.
(4) Third-party payments. DHS will accept payment of the required fee for an
alien from an approved school or a designated exchange visitor program sponsor, or from another source, in accordance with procedures approved by DHS.
(h) Failure to pay the fee. The failure
to pay the required fee is grounds for
denial of F, M, or J nonimmigrant status or status-related benefits. Payment
of the fee does not preserve the lawful
status of any F, J, or M nonimmigrant
that has violated his or her status in
some other manner.
(1) For purposes of reinstatement to
F or M status, failure to pay the required fee will be considered a ‘‘willful
violation’’ under 8 CFR 214.2(f)(16) or
(m)(16), unless DHS determines that
there are sufficient extenuating circumstances (as determined at the discretion of the Student and Exchange
Visitor Program).
(2) For purposes of reinstatement to
valid J program status, failure to pay
the required fee will not be considered
a ‘‘minor or technical infraction’’
under 22 CFR 62.45.

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[69 FR 39825, July 1, 2004; 69 FR 41388, July 9,
2004, as amended at 73 FR 55704, Sept. 26,
2008]

§ 214.14 Alien victims of certain qualifying criminal activity.
(a) Definitions. As used in this section, the term:
(1) BIWPA means Battered Immigrant Women Protection Act of 2000 of
the Victims of Trafficking and Violence Protection Act of 2000, div. B, Violence Against Women Act of 2000, tit.
V, Pub. L. 106–386, 114 Stat. 1464, (2000),
amended by Violence Against Women
and Department of Justice Reauthorization Act of 2005, tit. VIII, Pub. L.
109–162, 119 Stat. 2960 (2006), amended by
Violence Against Women and Department of Justice Reauthorization Act—
Technical Corrections, Pub. L. 109–271,
120 Stat. 750 (2006).
(2) Certifying agency means a Federal,
State, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity. This
definition includes agencies that have

criminal investigative jurisdiction in
their respective areas of expertise, including, but not limited to, child protective services, the Equal Employment Opportunity Commission, and the
Department of Labor.
(3) Certifying official means:
(i) The head of the certifying agency,
or any person(s) in a supervisory role
who has been specifically designated by
the head of the certifying agency to
issue U nonimmigrant status certifications on behalf of that agency; or
(ii) A Federal, State, or local judge.
(4) Indian Country is defined as:
(i) All land within the limits of any
Indian reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any
patent, and including rights-of-way
running through the reservation;
(ii) All dependent Indian communities within the borders of the United
States whether within the original or
subsequently acquired territory thereof, and whether within or without the
limits of a state; and
(iii) All Indian allotments, the Indian
titles to which have not been extinguished, including rights-of-way running through such allotments.
(5) Investigation or prosecution refers
to the detection or investigation of a
qualifying crime or criminal activity,
as well as to the prosecution, conviction, or sentencing of the perpetrator
of the qualifying crime or criminal activity.
(6) Military Installation means any facility, base, camp, post, encampment,
station, yard, center, port, aircraft, vehicle, or vessel under the jurisdiction
of the Department of Defense, including any leased facility, or any other location under military control.
(7) Next friend means a person who appears in a lawsuit to act for the benefit
of an alien under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental
abuse as a result of being a victim of
qualifying criminal activity. The next
friend is not a party to the legal proceeding and is not appointed as a
guardian.
(8) Physical or mental abuse means injury or harm to the victim’s physical
person, or harm to or impairment of

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Department of Homeland Security

§ 214.14

the emotional or psychological soundness of the victim.
(9) Qualifying crime or qualifying criminal activity includes one or more of the
following or any similar activities in
violation of Federal, State or local
criminal law of the United States:
Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal
restraint; false imprisonment; blackmail; extortion; manslaughter; murder;
felonious assault; witness tampering;
obstruction of justice; perjury; or attempt, conspiracy, or solicitation to
commit any of the above mentioned
crimes. The term ‘‘any similar activity’’ refers to criminal offenses in
which the nature and elements of the
offenses are substantially similar to
the statutorily enumerated list of
criminal activities.
(10) Qualifying family member means,
in the case of an alien victim 21 years
of age or older who is eligible for U
nonimmigrant status as described in
section 101(a)(15)(U) of the Act, 8 U.S.C.
1101(a)(15)(U), the spouse or child(ren)
of such alien; and, in the case of an
alien victim under the age of 21 who is
eligible for U nonimmigrant status as
described in section 101(a)(15)(U) of the
Act, qualifying family member means the
spouse, child(ren), parents, or unmarried siblings under the age of 18 of such
an alien.
(11) Territories and Possessions of the
United States means American Samoa,
Swains Island, Bajo Nuevo (the Petrel
Islands), Baker Island, Howland Island,
Jarvis Island, Johnston Atoll, Kingman
Reef, Midway Atoll, Navassa Island,
Palmyra Atoll, Serranilla Bank, and
Wake Atoll.
(12) U nonimmigrant status certification
means Form I–918, Supplement B, ‘‘U
Nonimmigrant Status Certification,’’
which confirms that the petitioner has
been helpful, is being helpful, or is
likely to be helpful in the investigation
or prosecution of the qualifying criminal activity of which he or she is a victim.
(13) U interim relief refers to the interim benefits that were provided by

USCIS to petitioners for U nonimmigrant status, who requested such
benefits and who were deemed prima
facie eligible for U nonimmigrant status prior to the publication of the implementing regulations.
(14) Victim of qualifying criminal activity generally means an alien who has
suffered direct and proximate harm as
a result of the commission of qualifying criminal activity.
(i) The alien spouse, children under 21
years of age and, if the direct victim is
under 21 years of age, parents and unmarried siblings under 18 years of age,
will be considered victims of qualifying
criminal activity where the direct victim is deceased due to murder or manslaughter, or is incompetent or incapacitated, and therefore unable to provide information concerning the criminal activity or be helpful in the investigation or prosecution of the criminal
activity. For purposes of determining
eligibility under this definition, USCIS
will consider the age of the victim at
the time the qualifying criminal activity occurred.
(ii) A petitioner may be considered a
victim of witness tampering, obstruction of justice, or perjury, including
any attempt, solicitation, or conspiracy to commit one or more of those
offenses, if:
(A) The petitioner has been directly
and proximately harmed by the perpetrator of the witness tampering, obstruction of justice, or perjury; and
(B) There are reasonable grounds to
conclude that the perpetrator committed the witness tampering, obstruction of justice, or perjury offense, at
least in principal part, as a means:
(1) To avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring to justice the perpetrator
for other criminal activity; or
(2) To further the perpetrator’s abuse
or exploitation of or undue control
over the petitioner through manipulation of the legal system.
(iii) A person who is culpable for the
qualifying criminal activity being investigated or prosecuted is excluded
from being recognized as a victim of
qualifying criminal activity.
(b) Eligibility. An alien is eligible for
U–1 nonimmigrant status if he or she

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§ 214.14

8 CFR Ch. I (1–1–16 Edition)

demonstrates all of the following in accordance with paragraph (c) of this section:
(1) The alien has suffered substantial
physical or mental abuse as a result of
having been a victim of qualifying
criminal activity. Whether abuse is
substantial is based on a number of factors, including but not limited to: The
nature of the injury inflicted or suffered; the severity of the perpetrator’s
conduct; the severity of the harm suffered; the duration of the infliction of
the harm; and the extent to which
there is permanent or serious harm to
the appearance, health, or physical or
mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite
to establish that the abuse suffered was
substantial. Also, the existence of one
or more of the factors automatically
does not create a presumption that the
abuse suffered was substantial. A series
of acts taken together may be considered to constitute substantial physical
or mental abuse even where no single
act alone rises to that level;
(2) The alien possesses credible and
reliable information establishing that
he or she has knowledge of the details
concerning the qualifying criminal activity upon which his or her petition is
based. The alien must possess specific
facts regarding the criminal activity
leading a certifying official to determine that the petitioner has, is, or is
likely to provide assistance to the investigation or prosecution of the qualifying criminal activity. In the event
that the alien has not yet reached 16
years of age on the date on which an
act constituting an element of the
qualifying criminal activity first occurred, a parent, guardian or next
friend of the alien may possess the information
regarding
a
qualifying
crime. In addition, if the alien is incapacitated or incompetent, a parent,
guardian, or next friend may possess
the information regarding the qualifying crime;
(3) The alien has been helpful, is
being helpful, or is likely to be helpful
to a certifying agency in the investigation or prosecution of the qualifying
criminal activity upon which his or her
petition is based, and since the initiation of cooperation, has not refused or

failed to provide information and assistance reasonably requested. In the
event that the alien has not yet
reached 16 years of age on the date on
which an act constituting an element
of the qualifying criminal activity first
occurred, a parent, guardian or next
friend of the alien may provide the required assistance. In addition, if the
petitioner is incapacitated or incompetent and, therefore, unable to be
helpful in the investigation or prosecution of the qualifying criminal activity, a parent, guardian, or next friend
may provide the required assistance;
and
(4) The qualifying criminal activity
occurred in the United States (including Indian country and U.S. military
installations) or in the territories or
possessions of the United States, or
violated a U.S. federal law that provides for extraterritorial jurisdiction
to prosecute the offense in a U.S. federal court.
(c) Application procedures for U nonimmigrant status—(1) Filing a petition.
USCIS has sole jurisdiction over all petitions for U nonimmigrant status. An
alien seeking U–1 nonimmigrant status
must submit, by mail, Form I–918,
‘‘Petition for U Nonimmigrant Status,’’ applicable biometric fee (or request for a fee waiver as provided in 8
CFR 103.7(c)), and initial evidence to
USCIS in accordance with this paragraph and the instructions to Form I–
918. A petitioner who received interim
relief is not required to submit initial
evidence with Form I–918 if he or she
wishes to rely on the law enforcement
certification and other evidence that
was submitted with the request for interim relief.
(i) Petitioners in pending immigration
proceedings. An alien who is in removal
proceedings under section 240 of the
Act, 8 U.S.C. 1229a, or in exclusion or
deportation
proceedings
initiated
under former sections 236 or 242 of the
Act, 8 U.S.C. 1226 and 1252 (as in effect
prior to April 1, 1997), and who would
like to apply for U nonimmigrant status must file a Form I–918 directly with
USCIS. U.S. Immigration and Customs
Enforcement (ICE) counsel may agree,
as a matter of discretion, to file, at the
request of the alien petitioner, a joint

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§ 214.14

motion to terminate proceedings without prejudice with the immigration
judge or Board of Immigration Appeals,
whichever is appropriate, while a petition for U nonimmigrant status is
being adjudicated by USCIS.
(ii) Petitioners with final orders of removal, deportation, or exclusion. An alien
who is the subject of a final order of removal, deportation, or exclusion is not
precluded from filing a petition for U–
1 nonimmigrant status directly with
USCIS. The filing of a petition for U–1
nonimmigrant status has no effect on
ICE’s authority to execute a final
order, although the alien may file a request for a stay of removal pursuant to
8 CFR 241.6(a) and 8 CFR 1241.6(a). If
the alien is in detention pending execution of the final order, the time during
which a stay is in effect will extend the
period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the petitioner’s
removal.
(2) Initial evidence. Form I–918 must
include the following initial evidence:
(i) Form I–918, Supplement B, ‘‘U
Nonimmigrant Status Certification,’’
signed by a certifying official within
the six months immediately preceding
the filing of Form I–918. The certification must state that: the person
signing the certificate is the head of
the certifying agency, or any person(s)
in a supervisory role who has been specifically designated by the head of the
certifying agency to issue U nonimmigrant status certifications on behalf of that agency, or is a Federal,
State, or local judge; the agency is a
Federal, State, or local law enforcement agency, or prosecutor, judge or
other authority, that has responsibility for the detection, investigation,
prosecution, conviction, or sentencing
of qualifying criminal activity; the applicant has been a victim of qualifying
criminal activity that the certifying
official’s agency is investigating or
prosecuting; the petitioner possesses
information concerning the qualifying
criminal activity of which he or she
has been a victim; the petitioner has
been, is being, or is likely to be helpful
to an investigation or prosecution of
that qualifying criminal activity; and
the qualifying criminal activity violated U.S. law, or occurred in the

United States, its territories, its possessions, Indian country, or at military
installations abroad.
(ii) Any additional evidence that the
petitioner wants USCIS to consider to
establish that: the petitioner is a victim of qualifying criminal activity; the
petitioner has suffered substantial
physical or mental abuse as a result of
being a victim of qualifying criminal
activity; the petitioner (or, in the case
of a child under the age of 16 or petitioner who is incompetent or incapacitated, a parent, guardian or next friend
of the petitioner) possesses information
establishing that he or she has knowledge of the details concerning the
qualifying criminal activity of which
he or she was a victim and upon which
his or her application is based; the petitioner (or, in the case of a child under
the age of 16 or petitioner who is incompetent or incapacitated, a parent,
guardian or next friend of the petitioner) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement
agency, prosecutor, or authority, or
Federal or State judge, investigating
or prosecuting the criminal activity of
which the petitioner is a victim; or the
criminal activity is qualifying and occurred in the United States (including
Indian country and U.S. military installations) or in the territories or possessions of the United States, or violates a U.S. federal law that provides
for extraterritorial jurisdiction to
prosecute the offense in a U.S. federal
court;
(iii) A signed statement by the petitioner describing the facts of the victimization. The statement also may include information supporting any of
the eligibility requirements set out in
paragraph (b) of this section. When the
petitioner is under the age of 16, incapacitated, or incompetent, a parent,
guardian, or next friend may submit a
statement on behalf of the petitioner;
and
(iv) If the petitioner is inadmissible,
Form I–192, ‘‘Application for Advance
Permission to Enter as Non-Immigrant,’’ in accordance with 8 CFR
212.17.

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§ 214.14

8 CFR Ch. I (1–1–16 Edition)

(3) Biometric capture. All petitioners
for U–1 nonimmigrant status must submit to biometric capture and pay a biometric capture fee. USCIS will notify
the petitioner of the proper time and
location to appear for biometric capture after the petitioner files Form I–
918.
(4) Evidentiary standards and burden of
proof. The burden shall be on the petitioner to demonstrate eligibility for U–
1 nonimmigrant status. The petitioner
may submit any credible evidence relating to his or her Form I–918 for consideration by USCIS. USCIS shall conduct a de novo review of all evidence
submitted in connection with Form I–
918 and may investigate any aspect of
the petition. Evidence previously submitted for this or other immigration
benefit or relief may be used by USCIS
in evaluating the eligibility of a petitioner for U–1 nonimmigrant status.
However, USCIS will not be bound by
its previous factual determinations.
USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence, including Form I–918, Supplement B, ‘‘U Nonimmigrant Status Certification.’’
(5) Decision. After completing its de
novo review of the petition and evidence, USCIS will issue a written decision approving or denying Form I–918
and notify the petitioner of this decision. USCIS will include in a decision
approving Form I–918 a list of nongovernmental organizations to which
the petitioner can refer regarding his
or her options while in the United
States and available resources.
(i) Approval of Form I–918, generally. If
USCIS determines that the petitioner
has met the requirements for U–1 nonimmigrant status, USCIS will approve
Form I–918. For a petitioner who is
within the United States, USCIS also
will concurrently grant U–1 nonimmigrant status, subject to the annual limitation as provided in paragraph (d) of this section. For a petitioner who is subject to an order of exclusion, deportation, or removal issued
by the Secretary, the order will be
deemed canceled by operation of law as
of the date of USCIS’ approval of Form
I–918. A petitioner who is subject to an
order of exclusion, deportation, or re-

moval issued by an immigration judge
or the Board may seek cancellation of
such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a
matter of discretion, to join such a motion to overcome any applicable time
and numerical limitations of 8 CFR
1003.2 and 1003.23.
(A) Notice of Approval of Form I–918 for
U–1 petitioners within the United States.
After USCIS approves Form I–918 for
an alien who filed his or her petition
from within the United States, USCIS
will notify the alien of such approval
on Form I–797, ‘‘Notice of Action,’’ and
include Form I–94 (see § 1.4), ‘‘ArrivalDeparture Record,’’ indicating U–1 nonimmigrant status.
(B) Notice of Approval of Form I–918 for
U–1 petitioners outside the United States.
After USCIS approves Form I–918 for
an alien who filed his or her petition
from outside the United States, USCIS
will notify the alien of such approval
on Form I–797, ‘‘Notice of Action,’’ and
will forward notice to the Department
of State for delivery to the U.S. Embassy or Consulate having jurisdiction
over the area in which the alien is located, or, for a visa exempt alien, to
the appropriate port of entry.
(ii) Denial of Form I–918. USCIS will
provide written notification to the petitioner of the reasons for the denial.
The petitioner may appeal a denial of
Form I–918 to the Administrative Appeals Office (AAO) in accordance with
the provisions of 8 CFR 103.3. For petitioners who appeal a denial of their
Form I–918 to the AAO, the denial will
not be deemed administratively final
until the AAO issues a decision affirming the denial. Upon USCIS’ final denial of a petition for a petitioner who
was in removal proceedings that were
terminated
pursuant
to
8
CFR
214.14(c)(1)(i), DHS may file a new Notice to Appear (see section 239 of the
Act, 8 U.S.C. 1229) to place the individual in proceedings again. For petitioners who are subject to an order of
removal, deportation, or exclusion and
whose order has been stayed, USCIS’
denial of the petition will result in the
stay being lifted automatically as of
the date the denial becomes administratively final.

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§ 214.14

(6) Petitioners granted U interim relief.
Petitioners who were granted U interim relief as defined in paragraph
(a)(13) of this section and whose Form
I–918 is approved will be accorded U–1
nonimmigrant status as of the date
that a request for U interim relief was
initially approved.
(7) Employment authorization. An alien
granted U–1 nonimmigrant status is
employment authorized incident to
status. USCIS automatically will issue
an initial Employment Authorization
Document (EAD) to such aliens who
are in the United States. For principal
aliens who applied from outside the
United States, the initial EAD will not
be issued until the petitioner has been
admitted to the United States in U
nonimmigrant status. After admission,
the alien may receive an initial EAD,
upon request and submission of a copy
of his or her Form I–94, ‘‘Arrival-Departure Record,’’ to the USCIS office
having jurisdiction over the adjudication of petitions for U nonimmigrant
status. No additional fee is required.
An alien granted U–1 nonimmigrant
status seeking to renew his or her expiring EAD or replace an EAD that was
lost, stolen, or destroyed, must file
Form I–765 in accordance with the instructions to the form.
(d) Annual cap on U–1 nonimmigrant
status—(1) General. In accordance with
section 214(p)(2) of the Act, 8 U.S.C.
1184(p)(2), the total number of aliens
who may be issued a U–1 nonimmigrant
visa or granted U–1 nonimmigrant status may not exceed 10,000 in any fiscal
year.
(2) Waiting list. All eligible petitioners who, due solely to the cap, are
not granted U–1 nonimmigrant status
must be placed on a waiting list and receive written notice of such placement.
Priority on the waiting list will be determined by the date the petition was
filed with the oldest petitions receiving
the highest priority. In the next fiscal
year, USCIS will issue a number to
each petition on the waiting list, in the
order of highest priority, providing the
petitioner remains admissible and eligible for U nonimmigrant status. After
U–1 nonimmigrant status has been
issued to qualifying petitioners on the
waiting list, any remaining U–1 nonimmigrant numbers for that fiscal year

will be issued to new qualifying petitioners in the order that the petitions
were properly filed. USCIS will grant
deferred action or parole to U–1 petitioners and qualifying family members
while the U–1 petitioners are on the
waiting list. USCIS, in its discretion,
may authorize employment for such
petitioners and qualifying family members.
(3) Unlawful presence. During the time
a petitioner for U nonimmigrant status
who was granted deferred action or parole is on the waiting list, no accrual of
unlawful
presence
under
section
212(a)(9)(B) of the INA, 8 U.S.C.
1182(a)(9)(B), will result. However, a petitioner may be removed from the
waiting list, and the deferred action or
parole may be terminated at the discretion of USCIS.
(e) Restrictions on use and disclosure of
information relating to petitioners for U
nonimmigrant classification—(1) General.
The use or disclosure (other than to a
sworn officer or employee of DHS, the
Department of Justice, the Department
of State, or a bureau or agency of any
of those departments, for legitimate
department, bureau, or agency purposes) of any information relating to
the beneficiary of a pending or approved petition for U nonimmigrant
status is prohibited unless the disclosure is made:
(i) By the Secretary of Homeland Security, at his discretion, in the same
manner and circumstances as census
information may be disclosed by the
Secretary of Commerce under 13 U.S.C.
8;
(ii) By the Secretary of Homeland Security, at his discretion, to law enforcement officials to be used solely for
a legitimate law enforcement purpose;
(iii) In conjunction with judicial review of a determination in a manner
that protects the confidentiality of
such information;
(iv) After adult petitioners for U nonimmigrant status or U nonimmigrant
status holders have provided written
consent to waive the restrictions prohibiting the release of information;
(v) To Federal, State, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits
pursuant to 8 U.S.C. 1641(c);

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(vi) After a petition for U nonimmigrant status has been denied in a
final decision;
(vii) To the chairmen and ranking
members of the Committee on the Judiciary of the Senate or the Committee
on the Judiciary of the House of Representatives, for the exercise of congressional oversight authority, provided the disclosure relates to information about a closed case and is made in
a manner that protects the confidentiality of the information and omits
personally identifying information (including locational information about
individuals);
(viii) With prior written consent from
the petitioner or derivative family
members, to nonprofit, nongovernmental victims’ service providers for
the sole purpose of assisting the victim
in obtaining victim services from programs with expertise working with immigrant victims; or
(ix) To federal prosecutors to comply
with constitutional obligations to provide statements by witnesses and certain other documents to defendants in
pending federal criminal proceedings.
(2) Agencies receiving information
under this section, whether governmental or non-governmental, are
bound by the confidentiality provisions
and other restrictions set out in 8
U.S.C. 1367.
(3) Officials of the Department of
Homeland Security are prohibited from
making adverse determinations of admissibility or deportability based on
information obtained solely from the
perpetrator of substantial physical or
mental abuse and the criminal activity.
(f) Admission of qualifying family members—(1) Eligibility. An alien who has
petitioned for or has been granted U–1
nonimmigrant status (i.e., principal
alien) may petition for the admission
of a qualifying family member in a U–
2 (spouse), U–3 (child), U–4 (parent of a
U–1 alien who is a child under 21 years
of age), or U–5 (unmarried sibling under
the age of 18) derivative status, if accompanying or following to join such
principal alien. A qualifying family
member who committed the qualifying
criminal activity in a family violence
or trafficking context which established the principal alien’s eligibility

for U nonimmigrant status shall not be
granted U–2, U–3, U–4, or U–5 nonimmigrant status. To be eligible for U–
2, U–3, U–4, or U–5 nonimmigrant status, it must be demonstrated that:
(i) The alien for whom U–2, U–3, U–4,
or U–5 status is being sought is a qualifying family member, as defined in
paragraph (a)(10) of this section; and
(ii) The qualifying family member is
admissible to the United States.
(2) Filing procedures. A petitioner for
U–1 nonimmigrant status may apply
for derivative U nonimmigrant status
on behalf of qualifying family members
by submitting a Form I–918, Supplement A, ‘‘Petition for Qualifying Family Member of U–1 Recipient,’’ for each
family member either at the same time
the petition for U–1 nonimmigrant status is filed, or at a later date. An alien
who has been granted U–1 nonimmigrant status may apply for derivative U nonimmigrant status on behalf
of qualifying family members by submitting Form I–918, Supplement A for
each family member. All Forms I–918,
Supplement A must be accompanied by
initial evidence and the required fees
specified in the instructions to the
form. Forms I–918, Supplement A that
are not filed at the same time as Form
I–918 but are filed at a later date must
be accompanied by a copy of the Form
I–918 that was filed by the principal petitioner or a copy of his or her Form I–
94 demonstrating proof of U–1 nonimmigrant status, as applicable.
(i) Qualifying family members in
pending immigration proceedings. The
principal alien of a qualifying family
member who is in removal proceedings
under section 240 of the Act, 8 U.S.C.
1229a, or in exclusion or deportation
proceedings initiated under former sections 236 or 242 of the Act, 8 U.S.C. 1226
and 1252 (as in effect prior to April 1,
1997), and who is seeking U nonimmigrant status, must file a Form I–
918, Supplement A directly with
USCIS. ICE counsel may agree to file,
at the request of the qualifying family
member, a joint motion to terminate
proceedings without prejudice with the
immigration judge or Board of Immigration Appeals, whichever is appropriate, while the petition for U nonimmigrant status is being adjudicated
by USCIS.

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Department of Homeland Security

§ 214.14

(ii) Qualifying family members with
final orders of removal, deportation, or
exclusion. An alien who is the subject
of a final order of removal, deportation, or exclusion is not precluded from
filing a petition for U–2, U–3, U–4, or U–
5 nonimmigrant status directly with
USCIS. The filing of a petition for U–2,
U–3, U–4, or U–5 nonimmigrant status
has no effect on ICE’s authority to execute a final order, although the alien
may file a request for a stay of removal
pursuant to 8 CFR 241.6(a) and 8 CFR
1241.6(a). If the alien is in detention
pending execution of the final order,
the time during which a stay is in effect will extend the period of detention
(under the standards of 8 CFR 241.4)
reasonably necessary to bring about
the alien’s removal.
(3) Initial evidence. Form I–918, Supplement A, must include the following
initial evidence:
(i) Evidence demonstrating the relationship of a qualifying family member, as provided in paragraph (f)(4) of
this section;
(ii) If the qualifying family member
is inadmissible, Form I–192, ‘‘Application for Advance Permission to Enter
as a Non-Immigrant,’’ in accordance
with 8 CFR 212.17.
(4) Relationship. Except as set forth in
paragraphs (f)(4)(i) and (ii) of this section, the relationship between the U–1
principal alien and the qualifying family member must exist at the time
Form I–918 was filed, and the relationship must continue to exist at the time
Form I–918, Supplement A is adjudicated, and at the time of the qualifying family member’s subsequent admission to the United States.
(i) If the U–1 principal alien proves
that he or she has become the parent of
a child after Form I–918 was filed, the
child shall be eligible to accompany or
follow to join the U–1 principal alien.
(ii) If the principal alien was under 21
years of age at the time he or she filed
Form I–918, and filed Form I–918, Supplement A for an unmarried sibling
under the age of 18, USCIS will continue to consider such sibling as a
qualifying family member for purposes
of U nonimmigrant status even if the
principal alien is no longer under 21
years of age at the time of adjudication, and even if the sibling is no

longer under 18 years of age at the time
of adjudication.
(5) Biometric capture and evidentiary
standards. The provisions for biometric
capture and evidentiary standards in
paragraphs (c)(3) and (c)(4) of this section also are applicable to petitions for
qualifying family members.
(6) Decision. USCIS will issue a written decision approving or denying
Form I–918, Supplement A and send notice of this decision to the U–1 principal petitioner. USCIS will include in
a decision approving Form I–918 a list
of nongovernmental organizations to
which the qualifying family member
can refer regarding his or her options
while in the United States and available resources. For a qualifying family
member who is subject to an order of
exclusion, deportation, or removal
issued by the Secretary, the order will
be deemed canceled by operation of law
as of the date of USCIS’ approval of
Form I–918, Supplement A. A qualifying family member who is subject to
an order of exclusion, deportation, or
removal issued by an immigration
judge or the Board may seek cancellation of such order by filing, with the
immigration judge or the Board, a motion to reopen and terminate removal
proceedings. ICE counsel may agree, as
a matter of discretion, to join such a
motion to overcome any applicable
time and numerical limitations of 8
CFR 1003.2 and 1003.23.
(i) Approvals for qualifying family members within the United States. When
USCIS approves a Form I–918, Supplement A for a qualifying family member
who is within the United States, it will
concurrently grant that alien U–2, U–3,
U–4, or U–5 nonimmigrant status.
USCIS will notify the principal of such
approval on Form I–797, ‘‘Notice of Action,’’ with Form I–94, ‘‘Arrival-Departure Record,’’ indicating U–2, U–3, U–4,
or U–5 nonimmigrant status. Aliens
who were previously granted U interim
relief as defined in paragraph (a)(13) of
this section will be accorded U nonimmigrant status as of the date that
the request for U interim relief was approved. Aliens who are granted U–2, U–
3, U–4, or U–5 nonimmigrant status are
not subject to an annual numerical
limit. USCIS may not approve Form I–

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§ 214.14

8 CFR Ch. I (1–1–16 Edition)

918, Supplement A unless it has approved the principal alien’s Form I–918.
(ii) Approvals for qualifying family
members outside the United States. When
USCIS approves Form I–918, Supplement A for a qualifying family member
who is outside the United States,
USCIS will notify the principal alien of
such approval on Form I–797. USCIS
will forward the approved Form I–918,
Supplement A to the Department of
State for delivery to the U.S. Embassy
or Consulate having jurisdiction over
the area in which the qualifying family
member is located, or, for a visa exempt alien, to the appropriate port of
entry.
(iii) Denial of the Form I–918, Supplement A. In accordance with 8 CFR
103.3(a)(1), USCIS will provide written
notification of the reasons for the denial. The principal alien may appeal
the denial of Form I–918, Supplement A
to the Administrative Appeals Office in
accordance with the provisions of 8
CFR 103.3. Upon USCIS’ final denial of
Form I–918, Supplement A for a qualifying family member who was in removal proceedings that were terminated pursuant to 8 CFR 214.14(f)(2)(i),
DHS may file a new Notice to Appear
(see section 239 of the INA, 8 U.S.C.
1229) to place the individual in proceedings again. For qualifying family
members who are subject to an order of
removal, deportation, or exclusion and
whose order has been stayed, USCIS’
denial of the petition will result in the
stay being lifted automatically as of
the date the denial becomes administratively final.
(7) Employment authorization. An alien
granted U–2, U–3, U–4, or U–5 nonimmigrant status is employment authorized incident to status. To obtain
an Employment Authorization Document (EAD), such alien must file Form
I–765, ‘‘Application for Employment
Authorization,’’ with the appropriate
fee or a request for a fee waiver, in accordance with the instructions to the
form. For qualifying family members
within the United States, the Form I–
765 may be filed concurrently with
Form I–918, Supplement A, or at any
time thereafter. For qualifying family
members who are outside the United
States, Form I–765 only may be filed

after admission to the United States in
U nonimmigrant status.
(g) Duration of U nonimmigrant status—(1) In general. U nonimmigrant
status may be approved for a period
not to exceed 4 years in the aggregate.
A qualifying family member granted
U–2, U–3, U–4, and U–5 nonimmigrant
status will be approved for an initial
period that does not exceed the expiration date of the initial period approved
for the principal alien.
(2) Extension of status. (i) Where a U
nonimmigrant’s approved period of
stay on Form I–94 is less than 4 years,
he or she may file Form I–539, ‘‘Application
to
Extend/Change
Nonimmigrant Status,’’ to request an extension of U nonimmigrant status for
an aggregate period not to exceed 4
years. USCIS may approve an extension of status for a qualifying family
member beyond the date when the U–1
nonimmigrant’s status expires when
the qualifying family member is unable
to enter the United States timely due
to delays in consular processing, and
an extension of status is necessary to
ensure that the qualifying family
member is able to attain at least 3
years in nonimmigrant status for purposes of adjusting status under section
245(m) of the Act, 8 U.S.C. 1255.
(ii) Extensions of U nonimmigrant
status beyond the 4-year period are
available upon attestation by the certifying official that the alien’s presence
in the United States continues to be
necessary to assist in the investigation
or prosecution of qualifying criminal
activity. In order to obtain an extension of U nonimmigrant status based
upon such an attestation, the alien
must file Form I–539 and a newly executed Form I–918, Supplement B in accordance with the instructions to Form
I–539.
(h) Revocation of approved petitions for
U nonimmigrant status—(1) Automatic
revocation. An approved petition for U–
1 nonimmigrant status will be revoked
automatically if, pursuant to 8 CFR
214.14(d)(1), the beneficiary of the approved petition notifies the USCIS office that approved the petition that he
or she will not apply for admission to
the United States and, therefore, the
petition will not be used.

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Department of Homeland Security

§ 214.15

(2) Revocation on notice. (i) USCIS
may revoke an approved petition for U
nonimmigrant status following a notice of intent to revoke. USCIS may revoke an approved petition for U nonimmigrant status based on one or more
of the following reasons:
(A) The certifying official withdraws
the U nonimmigrant status certification
referred
to
in
8
CFR
214.14(c)(2)(i) or disavows the contents
in writing;
(B) Approval of the petition was in
error;
(C) Where there was fraud in the petition;
(D) In the case of a U–2, U–3, U–4, or
U–5 nonimmigrant, the relationship to
the principal petitioner has terminated; or
(E) In the case of a U–2, U–3, U–4, or
U–5 nonimmigrant, the principal U–1’s
nonimmigrant status is revoked.
(ii) The notice of intent to revoke
must be in writing and contain a statement of the grounds for the revocation
and the time period allowed for the U
nonimmigrant’s rebuttal. The alien
may submit evidence in rebuttal within 30 days of the date of the notice.
USCIS shall consider all relevant evidence presented in deciding whether to
revoke the approved petition for U nonimmigrant status. The determination
of what is relevant evidence and the
weight to be given to that evidence will
be within the sole discretion of USCIS.
If USCIS revokes approval of a petition
and
thereby
terminates
U
nonimmigrant status, USCIS will provide
the alien with a written notice of revocation that explains the specific reasons for the revocation.
(3) Appeal of a revocation of approval.
A revocation on notice may be appealed to the Administrative Appeals
Office in accordance with 8 CFR 103.3
within 30 days after the date of the notice of revocation. Automatic revocations may not be appealed.
(4) Effects of revocation of approval.
Revocation of a principal alien’s approved Form I–918 will result in termination of status for the principal alien,
as well as in the denial of any pending
Form I–918, Supplement A filed for
qualifying family members seeking U–
2, U–3, U–4, or U–5 nonimmigrant status. Revocation of a qualifying family

member’s approved Form I–918, Supplement A will result in termination of
status for the qualifying family member. Revocation of an approved Form I–
918 or Form I–918, Supplement A also
revokes any waiver of inadmissibility
granted in conjunction with such petition.
(i) Removal proceedings. Nothing in
this section prohibits USCIS from instituting removal proceedings under
section 240 of the Act, 8 U.S.C. 1229(a),
for conduct committed after admission, for conduct or a condition that
was not disclosed to USCIS prior to the
granting of U nonimmigrant status, for
misrepresentations of material facts in
Form I–918 or Form I–918, Supplement
A and supporting documentation, or
after revocation of U nonimmigrant
status.
[72 FR 53036, Sept. 17, 2007, as amended at 72
FR 54813, Sept. 27, 2007; 74 FR 55738, Oct. 28,
2009; 78 FR 18472, Mar. 27, 2013]

§ 214.15 Certain spouses and children
of lawful permanent residents.
(a) Aliens abroad. Under section
101(a)(15)(v) of the Act, certain eligible
spouses and children of lawful permanent residents may apply for a V nonimmigrant visa at a consular office
abroad and be admitted to the United
States in V–1 (spouse), V–2 (child), or
V–3 (dependent child of the spouse or
child who is accompanying or following
to join the principal beneficiary) nonimmigrant status to await the approval of:
(1) A relative visa petition;
(2) The availability of an immigrant
visa number; or
(3) Lawful permanent resident (LPR)
status through adjustment of status or
an immigrant visa.
(b) Aliens already in the United States.
Eligible aliens already in the United
States may apply to the Service to obtain V nonimmigrant status for the
same purpose. Aliens in the United
States in V nonimmigrant status are
entitled to reside in the United States
as V nonimmigrants and obtain employment authorization.
(c) Eligibility. Subject to section
214(o) of the Act, an alien who is the
beneficiary (including a child of the
principal alien, if eligible to receive a
visa under section 203(d) of the Act) of

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§ 214.15

8 CFR Ch. I (1–1–16 Edition)

an immigrant visa petition to accord a
status under section 203(a)(2)(A) of the
Act that was filed with the Service
under section 204 of the Act on or before December 21, 2000, may apply for V
nonimmigrant status if:
(1) Such immigrant visa petition has
been pending for 3 years or more; or
(2) Such petition has been approved,
and 3 or more years have passed since
such filing date, in either of the following circumstances:
(i) An immigrant visa is not immediately available to the alien because
of a waiting list of applicants for visas
under section 203(a)(2)(A) of the Act; or
(ii) The alien’s application for an immigrant visa, or the alien’s application
for adjustment of status under section
245 of the Act, pursuant to the approval
of such petition, remains pending.
(d) The definition of ‘‘pending petition.’’ For purposes of this section, a
pending petition is defined as a petition to accord a status under section
203(a)(2)(A) of the Act that was filed
with USCIS under section 204 of the
Act on or before December 21, 2000, and
has not been adjudicated. In addition,
the petition must have been properly
filed according to 8 CFR 103.2(a), and if,
subsequent to filing, USCIS returns the
petition to the applicant for any reason
or makes a request for evidence or
issues a notice of intent to deny under
8 CFR 103.2(b), the petitioner must
comply with the request within the
time period set by USCIS. If USCIS denies a petition but the petitioner appeals that decision, the petition will be
considered pending until the administrative appeal is decided by USCIS. A
petition rejected by USCIS as not properly filed is not considered to be pending.
(e) Classification process for aliens outside the United States—(1) V nonimmigrant visa. An eligible alien may
obtain a V nonimmigrant visa from the
Department of State at a consular office abroad pursuant to the procedures
set forth in 22 CFR 41.86.
(2) Aliens applying for admission to the
United States as a V nonimmigrant at a
port-of-entry. Aliens applying under
section 235 of the Act for admission to
the United States at a port-of-entry as
a V nonimmigrant must have a visa in
the appropriate category. Such aliens

are exempt from the ground of inadmissibility under section 212(a)(9)(B) of
the Act.
(f) Application by aliens in the United
States. An alien described in paragraph
(c) of this section who is in the United
States may apply to the Service to obtain V nonimmigrant status pursuant
to the procedures set forth in this section and 8 CFR part 248. The alien must
be admissible to the United States, except that, in determining the alien’s
admissibility in V nonimmigrant status, sections 212(a)(6)(A), (a)(7), and
(a)(9)(B) of the Act do not apply.
(1) Contents of application. To apply
for V nonimmigrant status, an eligible
alien must submit:
(i) Form I–539, Application to Extend/
Change Nonimmigrant Status, with the
fee required by § 103.7(b)(1) of this chapter;
(ii) The fingerprint fee as required by
§ 103.2(e)(4) of this chapter;
(iii) Form I–693, Medical Examination of Aliens Seeking Adjustment of
Status, without the vaccination supplement; and
(iv) Evidence of eligibility as described by Supplement A to Form I–539
and in paragraph (f)(2) of this section.
(2) Evidence. Supplement A to Form
I–539 provides instructions regarding
the submission of evidence. An alien
applying for V nonimmigrant status
with the Service should submit proof of
filing of the immigrant petition that
qualifies the alien for V status. Proof
of filing may include Form I–797, Notice of Action, which serves as a receipt of the petition or as a notice of
approval, or a receipt for a filed petition or notice of approval issued by a
local district office. If the alien does
not have such proof, the Service will
review other forms of evidence, such as
correspondence to or from the Service
regarding a pending petition. If the
alien does not have any of the items
previously mentioned in this paragraph, but believes he or she is eligible
for V nonimmigrant status, he or she
should state where and when the petition was filed, the name and alien number of the petitioner, and the names of
all beneficiaries (if known).
(g) Period of admission—(1) Spouse of
an LPR. An alien admitted to the
United States in V–1 nonimmigrant

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Department of Homeland Security

§ 214.15

status (or whose status in the United
States is changed to V–1) will be granted a period of admission not to exceed
2 years.
(2) Child of an LPR or derivative child.
An alien admitted to the United States
in V–2 or V–3 nonimmigrant status (or
whose status in the United States is
changed to V–2 or V–3) will be granted
a period of admission not to exceed 2
years or the day before the alien’s 21st
birthday, whichever comes first.
(3) Extension of status. An alien may
apply to the Service for an extension of
V nonimmigrant status pursuant to
this part and 8 CFR part 248. Aliens
may apply for the extension of V nonimmigrant status, submitting Form I–
539, and the associated filing fee, on or
before 120 days before the expiration of
their status. If approved, the Service
will grant an extension of status to
aliens in V nonimmigrant status who
remain eligible for V nonimmigrant
status for a period not to exceed 2
years, or in the case of a child in V–2 or
V–3 status, the day before the alien’s
21st birthday, whichever comes first.
(4) Special rules. The following special
rules apply with respect to aliens who
have a current priority date in the
United States, but do not have a pending application for an immigrant visa
abroad or an application to adjust status.
(i) For an otherwise eligible alien
who applies for admission to the
United States in a V nonimmigrant
category at a designated Port-of-Entry
and has a current priority date but
does not have a pending immigrant
visa abroad or application for adjustment of status in the United States,
the Service will admit the alien for a 6month period (or to the date of the day
before the alien’s 21st birthday, as appropriate).
(ii) For such an alien in the United
States who applies for extension of V
nonimmigrant status, the Service will
grant a one-time extension not to exceed 6 months.
(iii) If the alien has not filed an application, either for adjustment of status or for an immigrant visa within
that 6-month period, the alien cannot
extend or be admitted or readmitted to
V nonimmigrant status. If the alien
does file an application, either for ad-

justment of status or for an immigrant
visa within the time allowed, the alien
will continue to be eligible for further
extensions of V nonimmigrant status
as provided in this section while that
application remains pending.
(h) Employment authorization. An
alien in V nonimmigrant status may
apply to the Service for employment
authorization pursuant to this section
and § 274a.12(a)(15) of this chapter. An
alien must file Form I–765, Application
for Employment Authorization, with
the fee required by 8 CFR 103.7. The
Service will grant employment authorization to aliens in V nonimmigrant
status who remain eligible for V nonimmigrant status valid for a period
equal to the alien’s authorized admission as a V nonimmigrant.
(i) Travel abroad; unlawful presence—
(1) V nonimmigrant status in the United
States. An alien who applies for and obtains V nonimmigrant status in the
United States will be issued Form I–
797, Notice of Action, indicating the
alien’s V status in the United States.
Form I–797 does not serve as a travel
document. If such an alien departs the
United States, he or she must obtain a
V visa from a consular office abroad in
order to be readmitted to the United
States as a V nonimmigrant. This visa
requirement, however, does not apply if
the alien traveled to contiguous territory or adjacent islands, possesses another valid visa, and is eligible for
automatic revalidation.
(2) V nonimmigrants with a pending
Form I–485. An alien in V nonimmigrant status with a pending Form
I–485 (Application to Register Permanent Residence or Adjust Status) that
was properly filed with the Service
does not have to obtain advance parole
in order to prevent the abandonment of
that application when the alien departs
the United States.
(3)
Unlawful
presence—(i)
Nonimmigrant admission. An alien otherwise
eligible for admission as a V nonimmigrant is not subject to the ground
of
inadmissibility
under
section
212(a)(9)(B) of the Act. This is true even
if the alien had accrued more than 180
days of unlawful presence in the United
States and is applying for admission as
a nonimmigrant after travel abroad.

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Pt. 215

8 CFR Ch. I (1–1–16 Edition)

(ii) Permanent resident status. A V
nonimmigrant alien is subject to the
ground of inadmissibility under section
212(a)(9)(B) of the Act when applying
for an immigrant visa or for adjustment of status to that of a lawful permanent resident. Therefore, a departure from the United States at any
time after having accrued more than
180 days of unlawful presence will
render the alien inadmissible under
that section for the purpose of adjustment of status or admission as an immigrant, unless he or she has obtained
a waiver under section 212(a)(9)(B)(v) of
the Act or falls within one of the exceptions in section 212(a)(9)(B)(iii) of
the Act.
(j) Termination of status—(1) General.
The status of an alien admitted to the
United States as a V nonimmigrant
under section 101(a)(15)(V) of the Act
shall be automatically terminated 30
days following the occurrence of any of
the following:
(i) The denial, withdrawal, or revocation of the Form I–130, Petition for Immediate Relative, filed on behalf of
that alien;
(ii) The denial or withdrawal of the
immigrant visa application filed by
that alien;
(iii) The denial or withdrawal of the
alien’s application for adjustment of
status to that of lawful permanent residence;
(iv) The V–1 spouse’s divorce from
the LPR becomes final; or
(v) The marriage of an alien in V–2 or
V–3 status.
(2) Dependents. When a principal
alien’s V nonimmigrant status is terminated, the V nonimmigrant status of
any alien listed as a V–3 dependent or
who is seeking derivative benefits is
also terminated.
(3) Appeals. If the denial of the immigrant visa petition is appealed, the
alien’s V nonimmigrant status does not
terminate until 30 days after the administrative appeal is dismissed.
(4) Violations of status. Nothing in this
section precludes the Service from immediately initiating removal proceedings for other violations of an
alien’s V nonimmigrant status.
(k) Naturalization of the petitioner. If
the lawful permanent resident who
filed the qualifying Form I–130 immi-

grant visa petition subsequently naturalizes, the V nonimmigrant status of
the spouse and any children will terminate after his or her current period of
admission ends. However, in such a
case, the alien spouse or child will be
considered an immediate relative of a
U.S. citizen as defined in section 201(b)
of the Act and will immediately be eligible to apply for adjustment of status
and related employment authorization.
If the V–1 spouse or V–2 child had already filed an application for adjustment of status by the time the LPR
naturalized, a new application for adjustment will not be required.
(l) Aliens in proceedings. An alien who
is already in immigration proceedings
and believes that he or she may have
become eligible to apply for V nonimmigrant status should request before
the immigration judge or the Board, as
appropriate, that the proceedings be
administratively closed (or before the
Board that a previously-filed motion
for reopening or reconsideration be indefinitely continued) in order to allow
the alien to pursue an application for V
nonimmigrant status with the Service.
If the alien appears eligible for V nonimmigrant status, the immigration
judge or the Board, whichever has jurisdiction, shall administratively close
the proceeding or continue the motion
indefinitely. In the event that the
Service finds an alien eligible for V
nonimmigrant status, the Service can
adjudicate the change of status under
this section. In the event that the
Service finds an alien ineligible for V
nonimmigrant status, the Service shall
recommence proceedings by filing a
motion to re-calendar.
[66 FR 46702, Sept. 7, 2001, as amended at 72
FR 19107, Apr. 17, 2007]

PART 215—CONTROLS OF ALIENS
DEPARTING FROM THE UNITED
STATES
Sec.
215.1 Definitions.
215.2 Authority of departure-control officer
to prevent alien’s departure from the
United States.
215.3 Alien whose departure is deemed prejudicial to the interests of the United
States.

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08:59 Mar 10, 2016

Jkt 238027

PO 00000

Frm 00448

Fmt 8010

Sfmt 8010

Y:\SGML\238027.XXX

238027