8 CFR Ch. I (1–1–21 Edition)

Department of Homeland Security § 214.1

sponsor or joint sponsor’s obligations PART 214—NONIMMIGRANT under section 213A(a)(1)(A) or 213A(b) of CLASSES the Act has provided a copy of the final judgment to the USCIS by mailing a Sec. certified copy to the address listed in 214.1 Requirements for admission, exten- paragraph (c)(3) of this section. The sion, and maintenance of status. copy should be accompanied by a cover 214.2 Special requirements for admission, letter that includes the reference extension, and maintenance of status. ‘‘Civil Judgments for Congressional Re- 214.3 Approval of schools for enrollment of ports under section 213A(i)(3) of the F and M nonimmigrants. Act.’’ Failure to file a certified copy of 214.4 Denial of certification, denial of recer- the final civil judgment in accordance tification, or withdrawal of SEVP certifi- with this section has no effect on the cation. plaintiff’s ability to collect on the 214.5 Libyan and third country nationals acting on behalf of Libyan entities. judgment pursuant to law. 214.6 Citizens of Canada or Mexico seeking (2) If a Federal, state, or local agency temporary entry under NAFTA to engage or private entity that administers any in business activities at a professional means-tested public benefit makes a level. determination under section 421(e) of 214.7 Habitual residence in the territories the Personal Responsibility and Work and possessions of the United States and Opportunity Reconciliation Act of 1996 consequences thereof. in the case of any sponsored immi- 214.8–214.10 [Reserved] grant, the program official shall send 214.11 Alien victims of severe forms of trafficking in persons. written notice of the determination, 214.12 Preliminary enrollment of schools in including the name of the sponsored the Student and Exchange Visitor Infor- immigrant and of the sponsor, to the mation System (SEVIS). address listed in paragraph (c)(3) of this 214.13 SEVIS for certain F, J, and M non- section. The written notice should in- immigrants. clude the reference ‘‘Determinations 214.14 Alien victims of certain qualifying under 421(e) of the Personal Responsi- criminal activity. bility and Work Opportunity Reconcili- 214.15 Certain spouses and children of lawful ation Act of 1996.’’ permanent residents. (3) The address referred to in para- AUTHORITY: 6 U.S.C. 202, 236; 8 U.S.C. 1101, graphs (c)(1) and (c)(2) of this section 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, is: Office of Program and Regulation 1282, 1301–1305 and 1372; sec. 643, Pub. L. 104– Development, U.S. Citizenship and Im- 208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477–1480; section 141 of the Compacts of migration Services, 20 Massachusetts Free Association with the Federated States Avenue, NW., Washington, DC, 20529. of Micronesia and the Republic of the Mar- [62 FR 54352, Oct. 20, 1997, as amended at 71 shall Islands, and with the Government of FR 35755, June 21, 2006; 76 FR 53790, Aug. 29, Palau, 48 U.S.C. 1901 note and 1931 note, re- 2011] spectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115–218. § 213a.5 Relationship of this part to other affidavits of support. § 214.1 Requirements for admission, extension, and maintenance of sta- Nothing in this part precludes the tus. continued use of other affidavits of (a) General—(1) Nonimmigrant classes. support provided by USCIS in a case For the purpose of administering the other than a case described in nonimmigrant provisions of the Act, § 213a.2(a)(2). The obligations of section the following administrative subclassi- 213A of the Act do not bind a person fications of nonimmigrant classifica- who executes such other USCIS affida- tions as defined in section 101(a)(15) of vits of support. Persons sponsoring an the Act are established: Amerasian alien described in section (i) Section 101(a)(15)(B) is divided 204(f)(2) of the Act remain subject to into (B)(i) for visitors for business and the provisions of section 204(f)(4)(B) of (B)(ii) for visitors for pleasure; the Act and 8 CFR 204.4(i), as appro- (ii) Section 101(a)(15)(C) is divided priate. into (C)(i) for aliens who are not dip- [76 FR 53790, Aug. 29, 2011] lomats and are in transit through the

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United States; (C)(ii) for aliens in tran- Section Designation sit to and from the United Nations 101(a)(15)(E)(i) ...... E–1. Headquarters District; and (C)(iii) for 101(a)(15)(E)(ii) ...... E–2. alien diplomats in transit through the 101(a)(15)(F)(i) ...... F–1. United States; 101(a)(15)(F)(ii) ...... F–2. (iii) Section 101(a)(15)(H) is divided to 101(a)(15)(G)(i) ...... G–1. 101(a)(15)(G)(ii) ...... G–2. create an (H)(iv) subclassification for 101(a)(15)(G)(iii) ...... G–3. the spouse and children of a non- 101(a)(15)(G)(iv) ...... G–4. immigrant classified under section 101(a)(15)(g)(v) ...... G–5. 101(a)(15)(H)(i)(B) ...... H–1B. 101(a)(15) (H) (i), (ii), or (iii); 101(a)(15)(H)(i)(C) ...... H–1C. (iv) Section 101(a)(15)(J) is divided 101(a)(15)(H)(ii)(A) ...... H–2A. into (J)(i) for principal aliens and 101(a)(15)(H)(ii)(B) ...... H–2B. 101(a)(15)(H)(iii) ...... H–3. (J)(ii) for such alien’s spouse and chil- 101(a)(15)(H)(iv) ...... H–4. dren; 101(a)(15)(I) ...... I. (v) Section 101(a)(15)(K) is divided 101(a)(15)(J)(i) ...... J–1. ´ 101(a)(15)(J)(ii) ...... J–2. into (K)(i) for the fiancee(e), (K)(ii) for 101(a)(15)(K)(i) ...... K–1. the spouse, and (K)(iii) for the children 101(a)(15)(K)(ii) ...... K–3. of either; 101(a)(15)(K)(iii) ...... K–2; K–4. (vi) Section 101(a)(15)(L) is divided 101(a)(15)(L)(i) ...... L–1. 101(a)(15)(L)(ii) ...... L–2. into (L)(i) for principal aliens and 101(a)(15)(M)(i) ...... M–1. (L)(ii) for such alien’s spouse and chil- 101(a)(15)(M)(ii) ...... M–2. dren; 101(a)(15)(N)(i) ...... N–8. 101(a)(15)(N)(ii) ...... N–9. (vii) Section 101(a)(15)(Q)(ii) is di- 101(a)(15)(O)(i) ...... O–1. vided to create a (Q)(iii) for subclassi- 101(a)(15)(O)(ii) ...... O–2. fication for the spouse and children of 101(a)(15)(O)(iii) ...... O–3. a nonimmigrant classified under sec- 101(a)(15)(P)(i) ...... P–1. 101(a)(15)(P)(ii) ...... P–2. tion 101(a)(15)(Q)(ii) of the Act; 101(a)(15)(P)(iii) ...... P–3. (viii) Section 101(a)(15)(T)(ii) is di- 101(a)(15)(P)(iv) ...... P–4. vided into (T)(ii), (T)(iii), (T)(iv), and 101(a)(15)(Q)(i) ...... Q–1. (T)(v) for the spouse, child, parent, and 101(a)(15)(Q)(ii) ...... Q–2. 101(a)(15)(Q)(iii) ...... Q–3. unmarried sibling under 18 years of 101(a)(15)(R)(i) ...... R–1. age, respectively, of a principal non- 101(a)(15)(R)(ii) ...... R–2. immigrant classified under section 101(a)(15)(S)(i) ...... S–5. 101(a)(15)(S)(ii) ...... S–6. 101(a)(15)(T)(i); and T(vi) for the adult 101(a)(15)(S) qualified family members .. S–7. or minor child of a derivative non- 101(a)(15)(T)(i) ...... T–1 immigrant classified under section 101(a)(15)(T)(ii) ...... T–2 101(a)(15)(T)(ii); and 101(a)(15)(T)(iii) ...... T–3 101(a)(15)(T)(iv) ...... T–4 (ix) Section 101(a)(15)(U)(ii) is divided 101(a)(15)(T)(v) ...... T–5 into (U)(ii), (U)(iii), (U)(iv), and (U)(v) 101(a)(15)(T)(vi) ...... T–6 for the spouse, child, parent, and sib- 101(a)(15)(U)(i) ...... U–1 101(a)(15)(U)(ii) ...... U–2, U–3, U–4, lings, respectively, of a nonimmigrant U–5 classified under section 101(a)(15)(U)(i); 101(a)(15)(V) ...... V–1, V–2, or V–3 and NAFTA, Principal ...... TN. (2) Classification designations. For the NAFTA, Dependent ...... TD. Visa Waiver, Business ...... WB. purpose of this chapter the following Visa Waiver, Tourist ...... WT. nonimmigrant designations are established. The designation in the second NOTE 1: The classification designation K–2 column may be used to refer to the ap- is for the child of a K–1. The classification propriate nonimmigrant classification. designation K–4 is for the child of a K–3. NOTE 2: The classification designation V–1 Section Designation is for the spouse of a lawful permanent resident; the classification designation V–2 is for 101(a)(15)(A)(i) ...... A–1. the principal beneficiary of an I–130 who is 101(a)(15)(A)(ii) ...... A–2. the child of an LPR; the classification V–3 is 101(a)(15)(A)(iii) ...... A–3. for the derivative child of a V–1 or V–2 alien. 101(a)(15)(B)(i) ...... B–1. 101(a)(15)(B)(ii) ...... B–2. (3) General requirements. (i) Every 101(a)(15)(C)(i) ...... C–1. nonimmigrant alien who applies for ad- 101(a)(15)(C)(ii) ...... C–2. mission to, or an extension of stay in, 101(a)(15)(C)(iii) ...... C–3. 101(a)(15)(D)(i) ...... D–1. the United States, must establish that 101(a)(15)(D)(ii) ...... D–2. he or she is admissible to the United

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States, or that any ground of inadmis- tion judge, or the Board of Immigra- sibility has been waived under section tion Appeals. 212(d)(3) of the Act. Upon application (iv) Except where the nonimmigrant for admission, the alien must present a classification for which the alien seeks valid passport and valid visa unless ei- to extend is exempt from section ther or both documents have been 212(a)(4) of the Act or that section has waived. A nonimmigrant alien’s admis- been waived, as a condition for ap- sion to the United States is condi- proval of extension of status, the alien tioned on compliance with any inspec- must demonstrate that he or she has tion requirement in § 235.1(d) or of this not received since obtaining the non- chapter, as well as compliance with immigrant status he or she seeks to ex- part 215, subpart B, of this chapter, if tend one or more public benefits as de- applicable. The passport of an alien ap- fined in 8 CFR 212.21(b), for more than plying for admission must be valid for 12 months in the aggregate within any a minimum of six months from the ex- 36-month period (such that, for in- piration date of the contemplated period of stay, unless otherwise provided stance, receipt of two benefits in one in this chapter, and the alien must month counts as two months). For the agree to abide by the terms and condi- purposes of this determination, DHS tions of his or her admission. An alien will only consider public benefits reapplying for extension of stay must ceived on or after October 15, 2019 for present a passport only if requested to petitions or applications postmarked do so by the Department of Homeland (or, if applicable, submitted electroni- Security. The passport of an alien ap- cally) on or after that date. plying for extension of stay must be (b) Readmission of nonimmigrants valid at the time of application for ex- under section 101(a)(15) (F), (J), (M), or tension, unless otherwise provided in (Q)(ii) to complete unexpired periods of this chapter, and the alien must agree previous admission or extension of stay— to maintain the validity of his or her (1) Section 101(a)(15)(F). The inspecting passport and to abide by all the terms immigration officer shall readmit for and conditions of his extension. duration of status as defined in (ii) At the time of admission or ex- § 214.2(f)(5)(iii), any nonimmigrant alien tension of stay, every nonimmigrant whose nonimmigrant visa is considered alien must also agree to depart the automatically revalidated pursuant to United States at the expiration of his 22 CFR 41.125(f) and who is applying for or her authorized period of admission readmission under section 101(a)(15)(F) or extension of stay, or upon abandon- of the Act, if the alien: ment of his or her authorized non- (i) Is admissible; immigrant status, and to comply with (ii) Is applying for readmission after the departure procedures at section an absence from the United States not 215.8 of this chapter if such procedures exceeding thirty days solely in contig- apply to the particular alien. The non- uous territory or adjacent islands; immigrant alien’s failure to comply (iii) Is in possession of a valid pass- with those departure requirements, including any requirement that the alien port unless exempt from the require- provide biometric identifiers, may con- ment for presentation of a passport; stitute a failure of the alien to main- and tain the terms of his or her non- (iv) Presents, or is the accompanying immigrant status. spouse or child of an alien who pre- (iii) At the time a nonimmigrant sents, an Arrival-Departure Record, alien applies for admission or exten- Form I–94 (see § 1.4), issued to the alien sion of stay, he or she must post a bond in connection with the previous admis- on Form I–352 in the sum of not less sion or stay, the alien’s Form I–20 ID than $500, to ensure the maintenance of copy, and either: his or her nonimmigrant status and de- (A) A properly endorsed page 4 of parture from the United States, if re- Form I-20A-B if there has been no sub- quired to do so by the Commissioner of stantive change in the information on CBP, the Director of U.S. Citizenship the student’s most recent Form I-20A and Immigration Services, an immigra- since the form was initially issued; or

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(B) A new Form I-20A-B if there has (4) Section 101(a)(15)(Q)(ii). The in- been any substantive change in the inspecting immigration officer shall re- formation on the student’s most recent admit for the unexpired period of stay Form I-20A since the form was initially authorized prior to the alien’s depar- issued. ture, if the alien: (2) Section 101(a)(15)(J). The inspecting (i) Is admissible; immigration officer shall readmit for (ii) Is applying for readmission after the unexpired period of stay authorized an absence from the United States not prior to the alien’s departure, any non- exceeding 30 days solely in contiguous immigrant alien whose nonimmigrant territory or adjacent islands; visa is considered automatically revali- (iii) Is in possession of a valid pass- dated pursuant to 22 CFR 41.125(f) and port; who is applying for readmission under (iv) Presents, or is the accompanying section 101(a)(15)(J) of the Act, if the spouse or child of an alien who pre- alien: sents, an Arrival-Departure Record, (i) Is admissible; Form I–94, issued to the alien in con- (ii) Is applying for readmission after nection with the previous admission or an absence from the United States not stay. The principal alien must also exceeding thirty days solely in contig- present a Certification Letter issued by uous territory or adjacent islands; the Department of State’s Program Ad- (iii) Is in possession of a valid pass- ministrator. port unless exempt from the require- (c) Extensions of stay—(1) Extension of ment for the presentation of a pass- stay for certain employment-based non- port; and immigrant workers. A petitioner seeking (iv) Presents, or is the accompanying the services of an E–1, E–2, E–3, H–1B, spouse or child of an alien who pre- H–1B1, H–2A, H–2B, H–3, L–1, O–1, O–2, sents, Form I–94 issued to the alien in P–1, P–2, P–3, Q–1, R–1, or TN non- connection with the previous admis- immigrant beyond the period pre- sion or stay or copy three of the last viously granted, must apply for an ex- Form IAP–66 issued to the alien. Form tension of stay on the form designated I–94 or Form IAP–66 must show the un- by USCIS, with the fee prescribed in 8 expired period of the alien’s stay en- CFR 106.2, with the initial evidence dorsed by the Service. specified in § 214.2, and in accordance (3) Section 101(a)(15)(M). The inspect- with the form instructions. Dependents ing immigration officer shall readmit holding derivative status may be infor the unexpired period of stay author- cluded in the petition if it is for only ized prior to the alien’s departure, any one worker and the form version spe- nonimmigrant alien whose non- cifically provides for their inclusion. In immigrant visa is considered automati- all other cases dependents of the work- cally revalidated pursuant to 22 CFR er should file on Form I–539. 41.125(f) and who is applying for read- (2) Filing on Form I–539. Any other mission under section 101(a)(15)(M) of nonimmigrant alien, except an alien in the Act, if the alien: F or J status who has been granted du- (i) Is admissible; ration of status, who seeks to extend (ii) Is applying for readmission after his or her stay beyond the currently an absence not exceeding thirty days authorized period of admission, must solely in contiguous territory; apply for an extension of stay on Form (iii) Is in possession of a valid pass- I–539 with the fee required in 8 CFR port unless exempt from the require- 106.2 together with any initial evidence ment for presentation of a passport; specified in the applicable provisions of and § 214.2, and on the application form. (iv) Presents, or is the accompanying More than one person may be included spouse or child of an alien who pre- in an application where the co-appli- sents, Form I–94 issued to the alien in cants are all members of a single fam- connection with the previous admis- ily group and either all hold the same sion or stay, the alien’s Form I–20 ID nonimmigrant status or one holds a copy, and a properly endorsed page 4 of nonimmigrant status and the other co- Form I–20M–N. applicants are his or her spouse and/or

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children who hold derivative non- (iv) The alien is not the subject of de- immigrant status based on his or her portation proceedings under section 242 status. Extensions granted to members of the Act (prior to April 1, 1997) or re- of a family group must be for the same moval proceedings under section 240 of period of time. The shortest period the Act. granted to any member of the family (5) Decision on application for extension shall be granted to all members of the or change of status. Where an applicant family. In order to be eligible for an ex- or petitioner demonstrates eligibility tension of stay, nonimmigrant aliens for a requested extension, it may be in K–3/K–4 status must do so in accord- granted at the discretion of USCIS. ance with § 214.2(k)(10). The denial of an application for exten- (3) Ineligible for extension of stay. A sion of stay may not be appealed. nonimmigrant in any of the following (d) Termination of status. Within the classes is ineligible for an extension of period of initial admission or extension stay: of stay, the nonimmigrant status of an (i) B–1 or B–2 where admission was alien shall be terminated by the rev- pursuant to the Visa Waiver Pilot Pro- ocation of a waiver authorized on his gram; or her behalf under section 212(d) (3) or (ii) C–1, C–2, C–3; (4) of the Act; by the introduction of a (iii) D–1, D–2; private bill to confer permanent resi- (iv) K–1, K–2; dent status on such alien; or, pursuant (v) Any nonimmigrant admitted for to notification in the FEDERAL REG- duration of status, other than as pro- ISTER, on the basis of national security, vided in § 214.2(f)(7); diplomatic, or public safety reasons. (vi) Any nonimmigrant who is classi- (e) Employment. A nonimmigrant in fied pursuant to section 101(a)(15)(S) of the United States in a class defined in the Act beyond a total of 3 years; or section 101(a)(15)(B) of the Act as a (vii) Any nonimmigrant who is clas- temporary visitor for pleasure, or sec- sified according to section tion 101(a)(15)(C) of the Act as an alien 101(a)(15)(Q)(ii) of the Act beyond a in transit through this country, may total of 3 years. not engage in any employment. Any (viii) Any nonimmigrant admitted other nonimmigrant in the United pursuant to the Guam-CNMI Visa States may not engage in any employ- Waiver Program, as provided in section ment unless he has been accorded a 212(l) of the Act. nonimmigrant classification which au- (4) Timely filing and maintenance of thorizes employment or he has been status. An extension of stay may not be granted permission to engage in em- approved for an applicant who failed to ployment in accordance with the provi- maintain the previously accorded sta- sions of this chapter. A nonimmigrant tus or where such status expired before who is permitted to engage in employ- the application or petition was filed, ment may engage only in such employ- except that failure to file before the pe- ment as has been authorized. Any un- riod of previously authorized status ex- authorized employment by a non- pired may be excused in the discretion immigrant constitutes a failure to of the Service and without separate ap- maintain status within the meaning of plication, with any extension granted section 241(a)(1)(C)(i) of the Act. from the date the previously author- (f) False information. A condition of a ized stay expired, where it is dem- nonimmigrant’s admission and contin- onstrated at the time of filing that: ued stay in the United States is the (i) The delay was due to extraor- full and truthful disclosure of all infor- dinary circumstances beyond the con- mation requested by DHS. A non- trol of the applicant or petitioner, and immigrant’s willful failure to provide the Service finds the delay commensu- full and truthful information requested rate with the circumstances; by DHS (regardless of whether or not (ii) The alien has not otherwise vio- the information requested was mate- lated his or her nonimmigrant status; rial) constitutes a failure to maintain (iii) The alien remains a bona fide nonimmigrant status under section nonimmigrant; 237(a)(1)(C)(i) of the Act.

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(g) Criminal activity. A condition of a in 8 CFR 212.15(e). The certificate or nonimmigrant’s admission and contin- certified statement must be presented ued stay in the United States is obedi- to the Department of Homeland Secu- ence to all laws of United States juris- rity in accordance with 8 CFR 212.15(d). dictions which prohibit the commission In the alternative, an eligible alien of crimes of violence and for which a seeking admission as a nurse may ob- sentence of more than one year impris- tain a certified statement as provided onment may be imposed. A non- in 8 CFR 212.15(h). immigrant’s conviction in a jurisdic- (2) A TN nonimmigrant may estab- tion in the United States for a crime of lish that he or she is eligible for a violence for which a sentence of more waiver described at 8 CFR 212.15(n) by than one year imprisonment may be providing evidence that his or her ini- imposed (regardless of whether such tial admission as a TN (or TC) non- sentence is in fact imposed) constitutes immigrant health care worker occurred a failure to maintain status under sec- before September 23, 2003, and he or she tion 241(a)(1)(C)(i) of the Act. was licensed and employed in the (h) Education privacy and F, J, and M United States as a health care worker nonimmigrants. As authorized by sec- before September 23, 2003. Evidence tion 641(c)(2) of Division C of Pub. L. may include, but is not limited to, cop- 104–208, 8 U.S.C. 1372, and § 2.1(a) of this ies of TN or TC approval notices, copies chapter, the Service has determined of Form I–94 Arrival/Departure that, with respect to F and M non- Records, employment verification let- immigrant students and J non- ters and/or pay-stubs or other employ- immigrant exchange visitors, waiving ment records, and state health care the provisions of the Family Edu- worker licenses. cational Rights and Privacy Act (j) Extension of stay or change of status (FERPA), 20 U.S.C. 1232g, is necessary for health care worker. In the case of for the proper implementation of 8 any alien admitted temporarily as a U.S.C. 1372. An educational agency or nonimmigrant under section 212(d)(3) of institution may not refuse to report in- the Act and 8 CFR 212.15(n) for the pri- formation concerning an F or M non- mary purpose of the providing labor in immigrant student or a J non- a health care occupation described in 8 immigrant exchange visitor that the CFR 212.15(c), the petitioning employer educational agency or institution is re- may file an application or petition to quired to report under 8 U.S.C. 1372 and extend the approval period for the § 214.3(g) (or any corresponding Depart- alien’s classification for the non- ment of State regulation concerning J immigrant status. If the alien is in the nonimmigrants) on the basis of FERPA United States and is eligible for an ex- and any regulation implementing tension of stay or change of status, the FERPA. The waiver of FERPA under application or petition also serves as this paragraph authorizes and requires an application to extend the period of an educational agency or institution to the alien’s authorized stay or to report information concerning an F, J change the alien’s status. Although the or M nonimmigrant that would ordi- application or petition may be ap- narily be protected by FERPA, but proved, as it relates to the employer’s only to the extent that 8 U.S.C. 1372 request to classify the alien, the appli- and § 214.3(g) (or any corresponding De- cation for an extension of stay or partment of State regulation con- change of status shall be denied if: cerning J nonimmigrants) requires the (1) The petitioner or applicant fails educational agency or institution to to submit the certification required by report information. 8 CFR 212.15(a) with the petition or ap- (i) Employment in a health care occupa- plication to extend the alien’s stay or tion. (1) Except as provided in 8 CFR change the alien’s status; or 212.15(n), any alien described in 8 CFR (2) The petition or application to ex- 212.15(a) who is coming to the United tend the alien’s stay or change the States to perform labor in a health alien’s status does include the certifi- care occupation described in 8 CFR cation required by 8 CFR 212.15(a), but 212.15(c) must obtain a certificate from the alien obtained the certification a credentialing organization described more than 1 year after the date of the

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alien’s admission under section basis of a cessation of the employment 212(d)(3) of the Act and 8 CFR 212.15(n). on which the alien’s classification was While DHS may admit, extend the pe- based, for up to 60 consecutive days or riod of authorized stay, or change the until the end of the authorized validity status of a nonimmigrant health care period, whichever is shorter, once dur- worker for a period of 1 year if the ing each authorized validity period. alien does not have certification on or DHS may eliminate or shorten this 60- before July 26, 2004 (or on or before day period as a matter of discretion. July 26, 2005, in the case of a citizen of Unless otherwise authorized under 8 Canada or Mexico, who, before Sep- CFR 274a.12, the alien may not work tember 23, 2003, was employed as a TN during such a period. or TC nonimmigrant health care work- (3) An alien in any authorized period er and held a valid license from a U.S. described in paragraph (l) of this sec- jurisdiction), the alien will not be eli- tion may apply for and be granted an gible for a subsequent admission, extension of stay under paragraph change of status, or extension of stay (c)(4) of this section or change of status as a health care worker if the alien has under 8 CFR 248.1, if otherwise eligible. not obtained the requisite certification [26 FR 12067, Dec. 16, 1961] 1 year after the initial date of admission, change of status, or extension of EDITORIAL NOTE: For FEDERAL REGISTER ci- stay as a health care worker. tations affecting § 214.1, see the List of CFR Sections Affected, which appears in the (k) Denial of petitions under section Finding Aids section of the printed volume 214(c) of the Act based on a finding by the and at www.govinfo.gov. Department of Labor. Upon debarment by the Department of Labor pursuant § 214.2 Special requirements for ad- to 20 CFR part 655, USCIS may deny mission, extension, and mainte- any petition filed by that petitioner for nance of status. nonimmigrant status under section The general requirements in § 214.1 101(a)(15)(H) (except for status under are modified for the following non- sections 101(a)(15)(H)(i)(b1)), (L), (O), immigrant classes: and (P)(i) of the Act) for a period of at (a) Foreign government officials—(1) least 1 year but not more than 5 years. General. The determination by a con- The length of the period shall be based sular officer prior to admission and the on the severity of the violation or vio- recognition by the Secretary of State lations. The decision to deny petitions, subsequent to admission is evidence of the time period for the bar to petitions, the proper classification of a non- and the reasons for the time period will immigrant under section 101(a)(15)(A) be explained in a written notice to the of the Act. An alien who has a non- petitioner. immigrant status under section (l) Period of stay. (1) An alien admis- 101(a)(15)(A)(i) or (ii) of the Act is to be sible in E–1, E–2, E–3, H–1B, L–1, or TN admitted for the duration of the period classification and his or her dependents for which the alien continues to be rec- may be admitted to the United States ognized by the Secretary of State as or otherwise provided such status for being entitled to that status. An alien the validity period of the petition, or defined in section (101)(a)(15)(A)(iii) of for a validity period otherwise author- the Act is to be admitted for an initial ized for the E–1, E–2, E–3, and TN clas- period of not more than three years, sifications, plus an additional period of and may be granted extensions of tem- up to 10 days before the validity period porary stay in increments of not more begins and 10 days after the validity than two years. In addition, the appli- period ends. Unless authorized under 8 cation for extension of temporary stay CFR 274a.12, the alien may not work must be accompanied by a statement except during the validity period. signed by the employing official stat- (2) An alien admitted or otherwise ing that he/she intends to continue to provided status in E–1, E–2, E–3, H–1B, employ the applicant and describing H–1B1, L–1, O–1 or TN classification the type of work the applicant will per- and his or her dependents shall not be form. considered to have failed to maintain (2) Definition of A–1 or A–2 dependent. nonimmigrant status solely on the For purposes of employment in the

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United States, the term dependent of an alien, but under a de facto arrange- A–1 or A–2 principal alien, as used in ment the principal alien also must be a § 214.2(a), means any of the following national of the foreign state which em- immediate members of the family ha- ploys him/her in the United States. bitually residing in the same household (4) Income tax, Social Security liability; as the principal alien who is an officer non-applicability of certain immunities. or employee assigned to a diplomatic Dependents who are granted employ- or consular office in the United States: ment authorization under this section (i) Spouse; are responsible for payment of all fed- (ii) Unmarried children under the age eral, state and local income, employ- of 21; ment and related taxes and Social Se- (iii) Unmarried sons or daughters curity contributions on any remunera- under the age of 23 who are in full-time tion received. In addition, immunity attendance as students at post-sec- from civil or administrative jurisdic- ondary educational institutions; tion in accordance with Article 37 of (iv) Unmarried sons or daughters the Vienna Convention on Diplomatic under the age of 25 who are in full-time Relations or other international agree- attendance as students at post-sec- ments does not apply to these depend- ondary educational institutions if a ents with respect to matters arising formal bilateral employment agree- out of their employment. ment permitting their employment in (5) Dependent employment pursuant to the United States was signed prior to formal bilateral employment agreements November 21, 1988, and such bilateral and informal de facto reciprocal arrange- employment agreement does not speci- ments. (i) The Office of Protocol shall fy 23 as the maximum age for employment of such sons and daughters. The maintain a listing of foreign states Office of Protocol of the Department of which have entered into formal bilat- State shall maintain a listing of for- eral employment agreements. Depend- eign states with which the United ents of an A–1 or A–2 principal alien as- States has such bilateral employment signed to official duty in the United agreements; States may accept or continue in unre- (v) Unmarried sons or daughters who stricted employment based on such for- are physically or mentally disabled to mal bilateral agreements upon favor- the extent that they cannot adequately able recommendation by the Depart- care for themselves or cannot estab- ment of State and issuance of employ- lish, maintain or re-establish their own ment authorization documentation by households. The Department of State the Service in accordance with 8 CFR or the Service may require certifi- part 274a. The application procedures cation(s) as it deems sufficient to docu- are set forth in paragraph (a)(6) of this ment such mental or physical dis- section. ability; or (ii) For purposes of this section, an (vi) An immediate family member of informal de facto reciprocal arrange- an A–1 or A–2 principal alien described ment exists when the Department of in 22 CFR 41.21(a)(3)(i) to (iv) with A–1 State determines that a foreign state or A–2 nonimmigrant status, who falls allows appropriate employment on the within a category of aliens recognized local economy for dependents of cer- by the Department of State as quali- tain United States officials assigned to fying dependents. duty in that foreign state. The Office of (3) Applicability of a formal bilateral Protocol shall maintain a listing of agreement or an informal de facto ar- countries with which such reciprocity rangement for A–1 or A–2 dependents. exists. Dependents of an A–1 or A–2 The applicability of a formal bilateral principal alien assigned to official duty agreement shall be based on the foreign in the United States may be authorized state which employs the principal alien to accept or continue in employment and not on the nationality of the prin- based upon informal de facto arrange- cipal alien or dependent. The applica- ments upon favorable recommendation bility of an informal de facto arrange- by the Department of State and ment shall be based on the foreign issuance of employment authorization state which employs the principal by the Service in accordance with 8

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CFR part 274a. Additionally, the proce- statement from the post-secondary dures set forth in paragraph (a)(6) of educational institution confirming this section must be complied with, that he/she is pursuing studies on a and the following conditions must be full-time basis. A dependent applying met: under paragraph (a)(2)(v) of this section (A) Both the principal alien and the must submit medical certification re- dependent desiring employment are garding his/her condition. The certifi- maintaining A–1 or A–2 status as ap- cation should identify the dependent propriate; and the certifying physician and give (B) The principal’s assignment in the the physician’s phone number; identify United States is expected to last more the condition, describe the symptoms than six months; and provide a prognosis; and certify (C) Employment of a similar nature that the dependent is unable to main- for dependents of United States Gov- tain a home of his or her own. Addi- ernment officials assigned to official tionally, a dependent applying under duty in the foreign state employing the the terms of a de facto arrangement principal alien is not prohibited by must attach a statement from the pro- that foreign state’s government; spective employer which includes the (D) The proposed employment is not dependent’s name; a description of the in an occupation listed in the Depart- position offered and the duties to be ment of Labor Schedule B (20 CFR part performed; the salary offered; and 656), or otherwise determined by the verification that the dependent pos- Department of Labor to be one for sesses the qualifications for the posi- which there is an oversupply of quali- tion. fied U.S. workers in the area of pro- (ii) The Department of State reviews posed employment. This Schedule B re- and verifies the information provided, striction does not apply to a dependent makes its determination, and endorses son or daughter who is a full-time stu- the Form I–566. dent if the employment is part-time, (iii) If the Department of State’s en- consisting of not more than 20 hours dorsement is favorable, the dependent per week, and/or if it is temporary em- may apply to USCIS for employment ployment of not more than 12 weeks authorization. When applying to USCIS during school holiday periods; and for employment authorization, the de- (E) The proposed employment is not pendent must present his or her Form contrary to the interest of the United I–566 with a favorable endorsement States. Employment contrary to the from the Department of State and any interest of the United States includes, additional documentation as may be but is not limited to, the employment required by the Secretary. of A–1 or A–2 dependents: who have (7) Period of time for which employment criminal records; who have violated may be authorized. If approved, an appli- United States immigration laws or reg- cation to accept or continue employ- ulations, or visa laws or regulations; ment under this section shall be grant- who have worked illegally in the ed in increments of not more than United States; and/or who cannot es- three years each. tablish that they have paid taxes and (8) No appeal. There shall be no ap- social security on income from current peal from a denial of permission to ac- or previous United States employment. cept or continue employment under (6) Application procedures. The fol- this section. lowing procedures are applicable to de- (9) Dependents or family members of pendent employment applications principal aliens classified A–3. A depend- under bilateral agreements and de ent or family member of a principal facto arrangements: alien classified A–3 may not be em- (i) The dependent must submit a ployed in the United States under this completed Form I–566 to the Depart- section. ment of State through the office, mis- (10) Unauthorized employment. An sion, or organization which employs alien classified under section his/her principal alien. A dependent ap- 101(a)(15)(A) of the Act who is not a plying under paragraph (a)(2)(iii) or (iv) principal alien and who engages in em- of this section must submit a certified ployment outside the scope of, or in a

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manner contrary to this section, may the source of remuneration, shall be be considered in violation of section admitted upon presentation of proof of 241(a)(1)(C)(i) of the Act. An alien who such citizenship in the case of Cana- is classified under section 101(a)(15)(A) dian applicants, and valid, unexpired of the Act who is a principal alien and entry documents such as a passport who engages in employment outside and visa, or a passport and BCC in the the scope of his/her official position case of Mexican applicants, a descrip- may be considered in violation of section of the purpose for which the alien tion 241(a)(1)(C)(i) of the Act. is seeking admission, and evidence (b) Visitors—(1) General. Any B–1 vis- demonstrating that he or she is en- itor for business or B–2 visitor for gaged in one of the occupations or pro- pleasure may be admitted for not more fessions set forth in paragraph (b)(4)(i) than one year and may be granted ex- of this section. Existing requirements, tensions of temporary stay in incre- with respect to Canada, are those re- ments of not more than six months quirements which were in effect at the each, except that alien members of a time of entry into force of the Canada/ religious denomination coming tempo- U.S. Free Trade Agreement and, with rarily and solely to do missionary work respect to Mexico, are those require- in behalf of a religious denomination ments which were in effect at the time may be granted extensions of not more of entry into force of the NAFTA. Ad- than one year each, provided that such ditionally, nothing shall preclude the work does not involve the selling of ar- admission of a citizen of Mexico or ticles or the solicitation or acceptance Canada who meets the requirements of of donations. Those B–1 and B–2 visi- paragraph (b)(4)(ii) of this section. tors admitted pursuant to the waiver (i) Occupations and professions set provided at § 212.1(e) of this chapter forth in Appendix 1603.A.1 to Annex 1603 may be admitted to and stay on Guam of the NAFTA—(A) Research and design. for period not to exceed fifteen days Technical scientific and statistical re- and are not eligible for extensions of searchers conducting independent re- stay. search or research for an enterprise lo- (2) Minimum six month admissions. Any cated in the territory of another Party. B–2 visitor who is found otherwise ad- (B) Growth, manufacture and produc- missible and is issued a Form I–94 (see tion (1) Harvester owner supervising a § 1.4), will be admitted for a minimum harvesting crew admitted under appli- period of six months, regardless of cable law. (Applies only to harvesting whether less time is requested, proof agricultural crops: Grain, fiber, fruit vided, that any required passport is valid as specified in section 212(a)(26) of and vegetables.) the Act. Exceptions to the minimum (2) Purchasing and production man- six month admission may be made only agement personnel conducting com- in individual cases upon the specific mercial transactions for an enterprise approval of the district director for located in the territory of another good cause. Party. (3) Visa Waiver Pilot Program. Special (C) Marketing. (1) Market researchers requirements for admission and main- and analyst conducting independent re- tenance of status for visitors admitted search or analysis, or research or anal- to the United States under the Visa ysis for an enterprise located in the Waiver Pilot Program are set forth in territory of another Party. section 217 of the Act and part 217 of (2) Trade fair and promotional per- this chapter. sonnel attending a trade convention. (4) Admission of aliens pursuant to the (D) Sales. (1) Sales representatives North American Free Trade Agreement and agents taking orders or negoti- (NAFTA). A citizen of Canada or Mex- ating contracts for goods or services ico seeking temporary entry for pur- for an enterprise located in the terri- poses set forth in paragraph (b)(4)(i) of tory of another Party but not deliv- this section, who otherwise meets ex- ering goods or providing services. isting requirements under section (2) Buyers purchasing for an enter- 101(a)(15)(B) of the Act, including but prise located in the territory of an- not limited to requirements regarding other Party.

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(E) Distribution. (1) Transportation (3) Financial services personnel (in- operators transporting goods or pas- surers, bankers or investment brokers) sengers to the United States from the engaging in commercial transactions territory of another Party or loading for an enterprise located in the terri- and transporting goods or passengers tory of another Party. from the United States to the territory (4) Public relations and advertising of another Party, with no unloading in personnel consulting with business as- the United States, to the territory of sociates, or attending or participating another Party. (These operators may in conventions. make deliveries in the United States if (5) Tourism personnel (tour and trav- all goods or passengers to be delivered el agents, tour guides or tour opera- were loaded in the territory of another tors) attending or participating in con- Party. Furthermore, they may load ventions or conducting a tour that has from locations in the United States if begun in the territory of another all goods or passengers to be loaded Party. (The tour may begin in the will be delivered in the territory of an- United States; but must terminate in other Party. Purely domestic service foreign territory, and a significant por- or solicitation, in competition with the tion of the tour must be conducted in United States operators, is not per- foreign territory. In such a case, an op- mitted.) erator may enter the United States (2) Customs brokers performing bro- with an empty conveyance and a tour kerage duties associated with the ex- guide may enter on his or her own and port of goods from the United States to join the conveyance.) or through Canada. (6) Tour bus operators entering the (F) After-sales service. Installers, re- United States: pair and maintenance personnel, and supervisors, possessing specialized (i) With a group of passengers on a knowledge essential to the seller’s con- bus tour that has begun in, and will re- tractual obligation, performing serv- turn to, the territory of another Party. ices or training workers to perform (ii) To meet a group of passengers on services, pursuant to a warranty or a bus tour that will end, and the pre- other service contract incidental to the dominant portion of which will take sale of commercial or industrial equip- place, in the territory of another ment or machinery, including com- Party. puter software, purchased from an en- (iii) With a group of passengers on a terprise located outside the United bus tour to be unloaded in the United States, during the life of the warranty States and returning with no pas- or service agreement. (For the purposes sengers or reloading with the group for of this provision, the commercial or in- transportation to the territory of an- dustrial equipment or machinery, in- other Party. cluding computer software, must have (7) Translators or interpreters per- been manufactured outside the United forming services as employees of an en- States.) terprise located in the territory of an- (G) General service. (1) Professionals other Party. engaging in a business activity at a (ii) Occupations and professions not professional level in a profession set listed in Appendix 1603.A.1 to Annex out in Appendix 1603.D.1 to Annex 1603 1603 of the NAFTA. Nothing in this of the NAFTA, but receiving no salary paragraph shall preclude a business or other remuneration from a United person engaged in an occupation or States source (other than an expense profession other than those listed in allowance or other reimbursement for Appendix 1603.A.1 to Annex 1603 of the expenses incidental to the temporary NAFTA from temporary entry under stay) and otherwise satisfying the re- section 101(a)(15)(B) of the Act, if such quirements of Section A to Annex 1063 person otherwise meets the existing re- of the NAFTA. quirements for admission as prescribed (2) Management and supervisory per- by the Attorney General. sonnel engaging in commercial trans- (5) Construction workers not admissible. actions for an enterprise located in the Aliens seeking to enter the country to territory of another Party. perform building or construction work,

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whether on-site or in-plant, are not eli- lying within a twenty-five mile radius gible for classification or admission as of Columbus Circle, New York, NY. B–1 nonimmigrants under section (3) Others. The period of admission of 101(a)(15)(B) of the Act. However, alien an alien admitted under section nonimmigrants otherwise qualified as 101(a)(15)(C) of the Act shall not exceed B–1 nonimmigrants may be issued visas 29 days. and may enter for the purpose of super- (d) Crewmen. (1) The provisions of vision or training of others engaged in parts 251, 252, 253, and 258 of this chap- building or construction work, but not ter shall govern the landing of crew- for the purpose of actually performing men as nonimmigrants of the class de- any such building or construction work fined in section 101(a)(15)(D) of the Act. themselves. An alien in this status may be em- (6) [Reserved] ployed only in a crewman capacity on (7) Enrollment in a course of study pro- the vessel or aircraft of arrival, or on a hibited. An alien who is admitted as, or vessel or aircraft of the same transpor- changes status to, a B–1 or B–2 non- tation company, and may not be em- immigrant on or after April 12, 2002, or ployed in connection with domestic who files a request to extend the period flights or movements of a vessel or air- of authorized stay in B–1 or B–2 non- craft. However, nonimmigrant crew- immigrant status on or after such date, men may perform crewmember duties violates the conditions of his or her B– through stopovers on an international 1 or B–2 status if the alien enrolls in a flight for any United States carrier where such flight uses a single aircraft course of study. Such an alien who de- and has an origination or destination sires to enroll in a course of study point outside the United States. must either obtain an F–1 or M–1 non- (2) Denial of crewman status in the case immigrant visa from a consular officer of certain labor disputes (D non- abroad and seek readmission to the immigrants). (i) An alien shall be denied United States, or apply for and obtain D crewman status as described in sec- a change of status under section 248 of tion 101(a)(15)(D) of the Act if: the Act and 8 CFR part 248. The alien (A) The alien intends to land for the may not enroll in the course of study purpose of performing service on a ves- until the Service has admitted the sel of the United States (as defined in alien as an F–1 or M–1 nonimmigrant 46 U.S.C. 2101(46)) or an aircraft of an or has approved the alien’s application air carrier (as defined in section 101(3) under part 248 of this chapter and of the Federal Aviation Act of 1958); changed the alien’s status to that of an and F–1 or M–1 nonimmigrant. (B) A labor dispute consisting of a (c) Transits. (1) [Reserved] strike or lockout exists in the bar- (2) United Nations Headquarters Dis- gaining unit of the employer in which trict. An alien of the class defined in the alien intends to perform such serv- section 101(a)(15)(C) of the Act, whose ice; and visa is limited to transit to and from (C) The alien is not already an em- the United Nations Headquarters Dis- ployee of the company (as described in trict, if otherwise admissible, shall be paragraph (d)(2)(iv) of this section). admitted on the additional conditions (ii) Refusal to land. Any alien (except that he proceed directly to the imme- a qualified current employee as de- diate vicinity of the United Nations scribed in paragraph (d)(2)(iv) of this Headquarters District, and remain section) who the examining immigra- there continuously, departing there- tion officer determines has arrived in from only if required in connection the United States for the purpose of with his departure from the United performing service on board a vessel or States, and that he have a document an aircraft of the United States when a establishing his ability to enter some strike or lockout is under way in the country other than the United States bargaining unit of the employer, shall following his sojourn in the United Na- be refused a conditional landing permit tions Headquarters District. The imme- under section 252 of the Act. diate vicinity of the United Nations (iii) Ineligibility for parole. An alien Headquarters District is that area described in paragraph (d)(2)(i) of this

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section may not be paroled into the either on the alien’s behalf or as an United States under section 212(d)(5) of employee of a foreign person or organi- the Act for the purpose of performing zation engaged in trade principally be- crewmember duties unless the Attor- tween the United States and the treaty ney General determines that the parole country of which the alien is a na- of such alien is necessary to protect tional, taking into consideration any the national security of the United conditions in the country of which the States. This paragraph does not pro- alien is a national which may affect hibit the granting of parole for other the alien’s ability to carry on such sub- purposes, such as medical emergencies. stantial trade; and (iv) Qualified current employees. (A) (ii) Intends to depart the United Paragraphs (d)(2)(i), (d)(2)(ii), and States upon the expiration or termi- (d)(2)(iii) of this section do not apply to nation of treaty trader (E–1) status. an alien who is already an employee of (2) Treaty investor. An alien, if other- the owner or operator of the vessel or wise admissible, may be classified as a air carrier and who at the time of in- nonimmigrant treaty investor (E–2) spection presents true copies of em- under the provision of section ployer work records which satisfy the 101(a)(15)(E)(ii) of the Act if the alien: examining immigration officer that (i) Has invested or is actively in the the alien: process of investing a substantial (1) Has been an employee of such em- amount of capital in a bona fide enter- ployer for a period of not less than one prise in the United States, as distinct year preceding the date that a strike or from a relatively small amount of cap- lawful lockout commenced; ital in a marginal enterprise solely for (2) Has served as a qualified crewman the purpose of earning a living; for such employer at least once in (ii) Is seeking entry solely to develop three different months during the 12- and direct the enterprise; and month period preceding the date that (iii) Intends to depart the United the strike or lockout commenced; and States upon the expiration or termi- (3) Shall continue to provide the nation of treaty investor (E–2) status. same crewman services that he or she (3) Employee of treaty trader or treaty previously provided to the employer. investor. An alien employee of a treaty (B) An alien crewman who qualifies trader, if otherwise admissible, may be as a current employee under this para- classified as E–1, and an alien employee graph remains subject to the restric- of a treaty investor, if otherwise ad- tions on his or her employment in the missible, may be classified as E–2 if the United States contained in paragraph employee is in or is coming to the (d)(1) of this section. United States to engage in duties of an (v) Strike or lockout determination. executive or supervisory character, or, These provisions will take effect if the if employed in a lesser capacity, the Attorney General, through the Com- employee has special qualifications missioner of the Immigration and Nat- that make the alien’s services essential uralization Service or his or her des- to the efficient operation of the enter- ignee, after consultation with the Na- prise. The employee must have the tional Mediation Board, determines same nationality as the principal alien that a strike, lockout, or labor dispute employer. In addition, the employee involving a work stoppage is in must intend to depart the United progress in the bargaining unit of the States upon the expiration or termi- employer for whom the alien intends to nation of E–1 or E–2 status. The prin- perform such service. cipal alien employer must be: (e) Treaty traders and investors—(1) (i) A person in the United States hav- Treaty trader. An alien, if otherwise ad- ing the nationality of the treaty coun- missible, may be classified as a non- try and maintaining nonimmigrant immigrant treaty trader (E–1) under treaty trader or treaty investor status the provisions of section 101(a)(15)(E)(i) or, if not in the United States, would of the Act if the alien: be classifiable as a treaty trader or (i) Will be in the United States solely treaty investor; or to carry on trade of a substantial na- (ii) An enterprise or organization at ture, which is international in scope, least 50 percent owned by persons in

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the United States having the nation- tions of his or her status and the activ- ality of the treaty country and main- ity forming the basis for the E treaty taining nonimmigrant treaty trader or status. treaty investor status or who, if not in (ii) Subsidiary employment. Treaty em- the United States, would be classifiable ployees may perform work for the par- as treaty traders or treaty investors. ent treaty organization or enterprise, (4) Spouse and children of treaty trader or any subsidiary of the parent organi- or treaty investor. The spouse and child zation or enterprise. Performing work of a treaty trader or treaty investor ac- for subsidiaries of a common parent en- companying or following to join the terprise or organization will not be principal alien, if otherwise admissible, deemed to constitute a substantive may receive the same classification as change in the terms and conditions of the principal alien. The nationality of the underlying E treaty employment if, a spouse or child of a treaty trader or at the time the E treaty status was de- treaty investor is not material to the termined, the applicant presented evi- classification of the spouse or child dence establishing: under the provisions of section (A) The enterprise or organization, 101(a)(15)(E) of the Act. and any subsidiaries thereof, where the (5) Nonimmigrant intent. An alien clas- work will be performed; the requisite sified under section 101(a)(15)(E) of the parent-subsidiary relationship; and Act shall maintain an intention to de- that the subsidiary independently part the United States upon the expira- qualifies as a treaty organization or tion or termination of E–1 or E–2 sta- enterprise under this paragraph; tus. However, an application for initial (B) In the case of an employee of a admission, change of status, or exten- treaty trader or treaty investor, the sion of stay in E classification may not work to be performed requires execu- be denied solely on the basis of an ap- tive, supervisory, or essential skills; proved request for permanent labor and certification or a filed or approved immigrant visa preference petition. (C) The work is consistent with the (6) Treaty country. A treaty country terms and conditions of the activity is, for purposes of this section, a for- forming the basis of the classification. eign state with which a qualifying (iii) Substantive changes. Approval of Treaty of Friendship, Commerce, or USCIS must be obtained where there Navigation or its equivalent exists will be a substantive change in the with the United States. A treaty coun- terms or conditions of E status. The try includes a foreign state that is ac- treaty alien must file a new applica- corded treaty visa privileges under section in accordance with the instruction 101(a)(15)(E) of the Act by specific tions on the form prescribed by USCIS legislation. requesting extension of stay in the (7) Treaty country nationality. The na- United States, plus evidence of contin- tionality of an individual treaty trader ued eligibility for E classification in or treaty investor is determined by the the new capacity. Or the alien may ob- authorities of the foreign state of tain a visa reflecting the new terms which the alien is a national. In the and conditions and subsequently apply case of an enterprise or organization, for admission at a port-of-entry. USCIS ownership must be traced as best as is will deem there to have been a sub- practicable to the individuals who are stantive change necessitating the fil- ultimately its owners. ing of a new application where there (8) Terms and conditions of E treaty has been a fundamental change in the status—(i) Limitations on employment. employing entity’s basic characteris- The Service determines the terms and tics, such as a merger, acquisition, or conditions of E treaty status at the sale of the division where the alien is time of admission or approval of a re- employed. quest to change nonimmigrant status (iv) Non-substantive changes. Neither to E classification. A treaty trader, prior approval nor a new application is treaty investor, or treaty employee required if there is no substantive, or may engage only in employment which fundamental, change in the terms or is consistent with the terms and condi- conditions of the alien’s employment

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which would affect the alien’s eligi- employer or of a change in the sub- bility for E classification. Further, stantive terms or conditions of treaty prior approval is not required if cor- status or employment in E classifica- porate changes occur which do not af- tion, or, in accordance with 22 CFR fect the previously approved employ- 41.112(d), where the alien is applying ment relationship, or are otherwise for readmission after an absence not non-substantive. To facilitate admis- exceeding 30 days solely in contiguous sion, the alien may: territory. (A) Present a letter from the treaty- (vii) An unauthorized change of em- qualifying company through which the ployment to a new employer will con- alien attained E classification explain- stitute a failure to maintain status ing the nature of the change; within the meaning of section (B) Request a new approval notice re- 237(a)(1)(C)(i) of the Act. In all cases flecting the non-substantive change by where the treaty employee will be pro- filing an application with a description viding services to a subsidiary under of the change, or; this paragraph, the subsidiary is re- (C) Apply directly to Department of quired to comply with the terms of 8 State for a new E visa reflecting the CFR part 274a. change. An alien who does not elect (9) Trade—definitions. For purposes of one of the three options contained in this paragraph: Items of trade include paragraph (e)(8)(iv) (A) through (C) of but are not limited to goods, services, this section, is not precluded from international banking, insurance, mon- demonstrating to the satisfaction of ies, transportation, communications, the immigration officer at the port-of- data processing, advertising, account- entry in some other manner, his or her ing, design and engineering, manage- admissibility under section ment consulting, tourism, technology 101(a)(15)(E) of the Act. and its transfer, and some news-gath- (v) Advice. To request advice from ering activities. For purposes of this USCIS as to whether a change is sub- paragraph, goods are tangible commod- stantive, an alien may file an applica- ities or merchandise having extrinsic tion with a complete description of the value. Further, as used in this para- change. In cases involving multiple employees, an alien may request that graph, services are legitimate eco- USCIS determine if a merger or other nomic activities which provide other corporate restructuring requires the than tangible goods. filing of separate applications by filing Trade is the existing international a single application and attaching a exchange of items of trade for consider- list of the related receipt numbers for ation between the United States and the employees involved and an expla- the treaty country. Existing trade in- nation of the change or changes. cludes successfully negotiated con- (vi) Approval. If an application to tracts binding upon the parties which change the terms and conditions of E call for the immediate exchange of status or employment is approved, the items of trade. Domestic trade or the Service shall notify the applicant on development of domestic markets Form I–797. An extension of stay in without international exchange does nonimmigrant E classification may be not constitute trade for purposes of granted for the validity of the approved section 101(a)(15)(E) of the Act. This ex- application. The alien is not authorized change must be traceable and identifi- to begin the new employment until the able. Title to the trade item must pass application is approved. Employment from one treaty party to the other. is authorized only for the period of (10) Substantial trade. Substantial time the alien remains in the United trade is an amount of trade sufficient States. If the alien subsequently de- to ensure a continuous flow of inter- parts from the United States, readmis- national trade items between the sion in E classification may be author- United States and the treaty country. ized where the alien presents his or her This continuous flow contemplates nu- unexpired E visa together with the merous transactions over time. Treaty Form I–797, Approval Notice, indi- trader status may not be established or cating Service approval of a change of maintained on the basis of a single

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transaction, regardless of how pro- goods for profit. The enterprise must tracted or monetarily valuable the meet applicable legal requirements for transaction. Although the monetary doing business in the particular juris- value of the trade item being ex- diction in the United States. changed is a relevant consideration, (14) Substantial amount of capital. A greater weight will be given to more substantial amount of capital con- numerous exchanges of larger value. stitutes an amount which is: There is no minimum requirement with (i) Substantial in relationship to the respect to the monetary value or vol- total cost of either purchasing an es- ume of each individual transaction. In tablished enterprise or creating the the case of smaller businesses, an in- type of enterprise under consideration; come derived from the value of numer- (ii) Sufficient to ensure the treaty in- ous transactions which is sufficient to vestor’s financial commitment to the support the treaty trader and his or her successful operation of the enterprise; family constitutes a favorable factor in and assessing the existence of substantial (iii) Of a magnitude to support the trade. likelihood that the treaty investor will (11) Principal trade. Principal trade successfully develop and direct the en- between the United States and the terprise. Generally, the lower the cost treaty country exists when over 50 per- of the enterprise, the higher, propor- cent of the volume of international tionately, the investment must be to trade of the treaty trader is conducted be considered a substantial amount of between the United States and the treaty country of the treaty trader’s capital. nationality. (15) Marginal enterprise. For purposes (12) Investment. An investment is the of this section, an enterprise may not treaty investor’s placing of capital, in- be marginal. A marginal enterprise is cluding funds and other assets (which an enterprise that does not have the have not been obtained, directly or in- present or future capacity to generate directly, through criminal activity), at more than enough income to provide a risk in the commercial sense with the minimal living for the treaty investor objective of generating a profit. The and his or her family. An enterprise treaty investor must be in possession that does not have the capacity to gen- of and have control over the capital in- erate such income, but that has a vested or being invested. The capital present or future capacity to make a must be subject to partial or total loss significant economic contribution is if investment fortunes reverse. Such not a marginal enterprise. The pro- investment capital must be the inves- jected future income-generating capac- tor’s unsecured personal business cap- ity should generally be realizable with- ital or capital secured by personal as- in 5 years from the date the alien com- sets. Capital in the process of being in- mences the normal business activity of vested or that has been invested must the enterprise. be irrevocably committed to the enter- (16) Solely to develop and direct. An prise. The alien has the burden of es- alien seeking classification as a treaty tablishing such irrevocable commit- investor (or, in the case of an employee ment. The alien may use any legal of a treaty investor, the owner of the mechanism available, such as the treaty enterprise) must demonstrate placement of invested funds in escrow that he or she does or will develop and pending admission in, or approval of, E direct the investment enterprise. Such classification, that would not only ir- an applicant must establish that he or revocably commit funds to the enter- she controls the enterprise by dem- prise, but might also extend personal onstrating ownership of at least 50 per- liability protection to the treaty inves- cent of the enterprise, by possessing tor in the event the application for E operational control through a manage- classification is denied. rial position or other corporate device, (13) Bona fide enterprise. The enter- or by other means. prise must be a real, active, and oper- (17) Executive and supervisory char- ating commercial or entrepreneurial acter. The applicant’s position must be undertaking which produces services or principally and primarily, as opposed

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

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unmarried children, provided the fa- the instructions on the form prescribed milial relationship continues to exist by USCIS. and the principal remains eligible for (ii) The spouse or minor children of admission as an E nonimmigrant to an applicant seeking a change of status perform the activity. to that of treaty trader or treaty inves- (iii) Unless otherwise provided for in tor alien shall file concurrent applica- this chapter, an alien shall not be ad- tions for change of status to derivative mitted in E classification for a period treaty classification on the appropriate of time extending more than 6 months Service form. Applications for deriva- beyond the expiration date of the tive treaty status shall: alien’s passport. (A) Be approved only if the principal (20) Extensions of stay. Requests for treaty alien is granted treaty alien sta- extensions of stay may be granted in tus and continues to maintain that sta- increments of not more than 2 years. A tus; treaty trader or treaty investor in (B) Be approved for the period of ad- valid E status may apply for an exten- mission authorized in paragraph (e)(20) sion of stay by filing an application for of this section. extension of stay on the form pre- (22) Denial of treaty trader or treaty in- scribed by USCIS, with required ac- vestor status to citizens of Canada or companying documents, in accordance Mexico in the case of certain labor dis- with § 214.1 and the instructions on that putes. (i) A citizen of Canada or Mexico form. may be denied E treaty trader or trea- (i) For purposes of eligibility for an ty investor status as described in sec- extension of stay, the alien must prove tion 101(a)(15)(E) of the Act and section that he or she: B of Annex 1603 of the NAFTA if: (A) Has at all times maintained the (A) The Secretary of Labor certifies terms and conditions of his or her E to or otherwise informs the Commis- nonimmigrant classification; sioner that a strike or other labor dis- (B) Was physically present in the pute involving a work stoppage of United States at the time of filing the workers in the alien’s occupational application for extension of stay; and classification is in progress at the (C) Has not abandoned his or her ex- place where the alien is or intends to tension request. be employed; and (ii) With limited exceptions, it is pre- (B) Temporary entry of that alien sumed that employees of treaty enter- may affect adversely either: prises with special qualifications who are responsible for start-up operations (1) The settlement of any labor dis- should be able to complete their objec- pute that is in progress at the place or tives within 2 years. Absent special cir- intended place of employment, or cumstances, therefore, such employees (2) The employment of any person will not be eligible to obtain an exten- who is involved in such dispute. sion of stay. (ii) If the alien has already com- (iii) Subject to paragraph (e)(5) of menced employment in the United this section and the presumption noted States and is participating in a strike in paragraph (e)(22)(ii) of this section, or other labor dispute involving a work there is no specified number of exten- stoppage of workers, whether or not sions of stay that a treaty trader or such strike or other labor dispute has treaty investor may be granted. been certified by the Secretary of (21) Change of nonimigrant status. (i) Labor, or whether the Service has been An alien in another valid non- otherwise informed that such a strike immigrant status may apply for or labor dispute is in progress, the change of status to E classification by alien shall not be deemed to be failing filing an application for change of sta- to maintain his or her status solely on tus on the form prescribed by USCIS, account of past, present, or future par- with required accompanying docu- ticipation in a strike or other labor ments establishing eligibility for a dispute involving a work stoppage of change of status and E classification, workers, but is subject to the following in accordance with 8 CFR part 248 and terms and conditions:

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(A) The alien shall remain subject to (ii) Definitions. For purposes of para- all applicable provisions of the Immi- graph (e)(23) of this section, the fol- gration and Nationality Act, and regu- lowing definitions apply: lations promulgated in the same man- (A) Approved investment or residence ner as all other E nonimmigrants; and means an investment or residence ap- (B) The status and authorized period proved by the CNMI government. of stay of such an alien is not modified (B) Approval letter means a letter or extended in any way by virtue of his issued by the CNMI government certi- or her participation in a strike or other fying the acceptance of an approved in- labor dispute involving a work stop- vestment subject to the minimum in- page of workers. vestment criteria and standards pro- (iii) Although participation by an E vided in 4 N. Mar. I. Code section 5941 nonimmigrant alien in a strike or et seq. (long-term business certificate), other labor dispute involving a work 4 N. Mar. I. Code section 5951 et seq. stoppage of workers will not constitute (foreign investor certificate), and 4 N. a ground for deportation, any alien Mar. I. Code section 50101 et seq. (for- who violates his or her status or who eign retiree investment certificate). remains in the United States after his (C) Certificate means a certificate or or her authorized period of stay has ex- certification issued by the CNMI gov- pired will be subject to deportation. ernment to an applicant whose applica- (iv) If there is a strike or other labor tion has been approved by the CNMI dispute involving a work stoppage of government. workers in progress, but such strike or (D) Continuously maintained residence other labor dispute is not certified in the CNMI means that the alien has under paragraph (e)(22)(i) of this section, or the Service has not otherwise maintained his or her residence within been informed by the Secretary that the CNMI since being lawfully admit- such a strike or labor dispute is in ted as a long-term investor and has progress, the Commissioner shall not been physically present therein for pe- deny entry to an applicant for E status. riods totaling at least half of that (23) Special procedures for classifying time. Absence from the CNMI for any foreign investors in the Commonwealth of continuous period of more than six the Northern Mariana Islands (CNMI) as months but less than one year after E–2 nonimmigrant treaty investors under such lawful admission shall break the title VII of the Consolidated Natural Re- continuity of such residence, unless the sources Act of 2008 (Pub. L. 110–229), 48 subject alien establishes to the satis- U.S.C. 1806. faction of DHS that he or she did not in (i) E–2 CNMI Investor eligibility. Dur- fact abandon residence in the CNMI ing the period ending on January 18, during such period. Absence from the 2013, an alien may, upon application to CNMI for any period of one year or the Secretary of Homeland Security, be more during the period for which con- classified as a CNMI-only non- tinuous residence is required shall immigrant treaty investor (E–2 CNMI break the continuity of such residence. Investor) under section 101(a)(15)(E)(ii) (E) Public organization means a CNMI of the Act if the alien: public corporation or an agency of the (A) Was lawfully admitted to the CNMI government. CNMI in long-term investor status (F) Transition period means the pe- under the immigration laws of the riod beginning on the transition pro- CNMI before the transition program ef- gram effective date and ending on De- fective date and had that status on the cember 31, 2029. transition program effective date; (iii) Long-term investor status. Long- (B) Has continuously maintained res- term investor status under the immi- idence in the CNMI; gration laws of the CNMI includes only (C) Is otherwise admissible to the the following investor classifications United States; and under CNMI immigration laws as in ef- (D) Maintains the investment or in- fect on or before November 27, 2009: vestments that formed the basis for (A) Long-term business investor. An such long-term investment status. alien who has an approved investment

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of at least $50,000 in the CNMI, as evi- (2) An unexpired Foreign Investment denced by a Long-Term Business Cer- Certificate, in the case of an alien in tificate. foreign investor status. (B) Foreign investor. An alien in the (3) A Foreign Retiree Investment CNMI who has invested either a min- Certification or a Foreign Retiree In- imum of $100,000 in an aggregate ap- vestment Certificate, in the case of an proved investment in excess of alien in retiree investor status. $2,000,000, or a minimum of $250,000 in a (C) Required evidence that the long- single approved investment, as evi- term investor is maintaining his or her denced by a Foreign Investment Cer- investment includes all of the fol- tificate. lowing, as applicable: (C) Retiree investor. An alien in the (1) An approval letter issued by the CNMI who: CNMI government. (1) Is over the age of 55 years and has (2) Evidence that capital has been in- invested a minimum of $100,000 in an vested, including bank statements approved residence on Saipan or $75,000 showing amounts deposited in CNMI in an approved residence on Tinian or business accounts, invoices, receipts or Rota, as evidenced by a Foreign Re- contracts for assets purchased, stock tiree Investment Certification; or purchase transaction records, loan or other borrowing agreements, land (2) Is over the age of 55 years and has leases, financial statements, business invested a minimum of $150,000 in an gross tax receipts, or any other agree- approved residence to live in the CNMI, ments supporting the application. as evidenced by a Foreign Retiree In- (3) Evidence that the applicant has vestment Certificate. invested at least the minimum amount (iv) An alien Maintaining investments. required, including evidence of assets in long-term investor status under the which have been purchased for use in immigration laws of the CNMI is main- the enterprise, evidence of property taining his or her investments if that transferred from abroad for use in the alien investor is in compliance with enterprise, evidence of monies trans- the terms upon which the investor cer- ferred or committed to be transferred tificate was issued. to the new or existing enterprise in ex- (v) Filing procedures. An alien seeking change for shares of stock, any loan or classification under E–2 CNMI Investor mortgage, promissory note, security nonimmigrant status must file an ap- agreement, or other evidence of bor- plication for E–2 CNMI investor non- rowing which is secured by assets of immigrant status, along with accom- the applicant. panying evidence, with USCIS in ac- (4) A comprehensive business plan for cordance with the form instructions new enterprises. before January 18, 2013. An application (5) Articles of incorporation, by-laws, filed after the filing date deadline will partnership agreements, joint venture be rejected. agreements, corporate minutes and an- (vi) Appropriate documents. Documen- nual reports, affidavits, declarations, tary evidence establishing eligibility or certifications of paid-in capital. for E–2 CNMI nonimmigrant investor (6) Current business licenses. status is required. (7) Foreign business registration (A) Required evidence of admission records, recent tax returns of any kind, includes a valid unexpired foreign pass- evidence of other sources of capital. port and a properly endorsed CNMI ad- (8) A listing of all resident and non- mission document (e.g., entry permit or resident employees. certificate) reflecting lawful admission (9) A listing of all holders of business to the CNMI in long-term business in- certificates for the business establish- vestor, foreign investor, or retiree for- ment. eign investor status. (10) A listing of all corporations in (B) Required evidence of long-term which the applicant has a controlling investor status includes: interest. (1) An unexpired Long-Term Business (11) In the case of a holder of a cer- Certificate, in the case of an alien in tificate of foreign investment, copies of long-term business investor status. annual reports of investment activities

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in the CNMI containing sufficient in- istrative Appeals Office or any suc- formation to determine whether the cessor body. certificate holder is under continuing (x) Spouse and children of an E–2 compliance with the standards of CNMI Investor—(A) Classification. The issuance, accompanied by annual finan- spouse and children of an E–2 CNMI In- cial audit reports performed by an vestor accompanying or following-to- independent certified public account- join the principal alien, if otherwise ant. admissible, may receive the same clas- (12) In the case of an applicant who is sification as the principal alien. The a retiree investor, evidence that he or nationality of a spouse or child of an she has an interest in property in the E–2 CNMI investor is not material to CNMI (e.g., lease agreement), evidence the classification of the spouse or of the value of the property interest child. (e.g., an appraisal regarding the value (B) Employment authorization. The of the property), and, as applicable, spouse of an E–2 CNMI Investor law- evidence of the value of the improve- fully admitted in the CNMI in E–2 ments on the property (e.g., receipts or CNMI Investor nonimmigrant status, invoices of the costs of construction, other than the spouse of an E–2 CNMI the amount paid for a preexisting investor who obtained such status structure, or an appraisal of improve- based upon a Foreign Retiree Invest- ments). ment Certificate, is eligible to apply (vii) Physical presence in the CNMI. for employment authorization under 8 Physical presence in the CNMI at the CFR 274a.12(c)(12) while in E–2 CNMI time of filing or during the pendency of Investor nonimmigrant status. Em- the application is not required, but an ployment authorization acquired under application may not be filed by, or E– this paragraph is limited to employ- 2 CNMI Investor status granted to, any ment in the CNMI only. alien present in U.S. territory other than in the CNMI. If an alien with (xi) Terms and conditions of E–2 CNMI CNMI long-term investor status de- Investor nonimmigrant status—(A) Non- parts the CNMI on or after the transi- immigrant status. E–2 CNMI Investor tion program effective date but before nonimmigrant status and any deriva- being granted E–2 CNMI Investor sta- tive status are only applicable in the tus, he or she may not be re-admitted CNMI. Entry, employment, and resi- to the CNMI without a visa or appro- dence in the rest of the United States priate inadmissibility waiver under the (including Guam) require the appro- U.S. immigration laws. If USCIS grants priate visa or visa waiver eligibility. E–2 CNMI Investor nonimmigrant clas- An E–2 CNMI Investor who enters, at- sification to an alien who is not phys- tempts to enter or attempts to travel ically present in the CNMI at the time to any other part of the United States of the grant, such alien must obtain an without the appropriate visa or visa E–2 CNMI Investor nonimmigrant visa waiver eligibility, or who violates con- at a consular office abroad in order to ditions of nonimmigrant stay applica- seek admission to the CNMI in E–2 ble to any such authorized status in CNMI Investor status. any other part of the United States, (viii) Information for background will be deemed to have violated the checks. USCIS may require an appli- terms and conditions of his or her E–2 cant for E–2 CNMI Investor status, in- CNMI Investor status. An E–2 CNMI In- cluding but not limited to any appli- vestor who departs the CNMI will re- cant for derivative status as a spouse quire an E–2 CNMI investor visa for re- or child, to submit biometrics as readmission to the CNMI as an E–2 CNMI quired under 8 CFR 103.16. Investor. (ix) Denial. A grant of E–2 CNMI In- (B) Employment authorization. An vestor status is a discretionary deter- alien with E–2 CNMI Investor non- mination, and the application may be immigrant status is only employment denied for failure of the applicant to authorized in the CNMI for the enter- demonstrate eligibility or for other prise that is the basis for his or her good cause. Denial of the application CNMI Foreign Investment Certificate may be appealed to the USCIS Admin- or Long-Term Business Certificate, to

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the extent that such Certificate au- (A) Continuous maintenance of the thorized such activity. An alien with terms and conditions of E–2 CNMI In- E–2 CNMI Investor nonimmigrant sta- vestor nonimmigrant status; tus based upon a Foreign Retiree Inves- (B) Physical presence in the CNMI at tor Certificate is not employment au- the time of filing the application for thorized. extension of stay; and (C) Changes in E–2 CNMI investor non- (C) That he or she did not leave dur- immigrant status. If there are any sub- ing the pendency of the application. stantive changes to an alien’s compli- (xiii) Change of status. An alien law- ance with the terms and conditions of fully admitted to the United States in qualification for E–2 CNMI Investor another valid nonimmigrant status nonimmigrant status, the alien must who is continuing to maintain that file a new application for E–2 CNMI In- status may apply to change non- vestor nonimmigrant status, in accord- immigrant status to E–2 CNMI Investor ance with the appropriate form in- in accordance with paragraph (e)(21) of structions to request an extension of this section, if otherwise eligible, in- stay in the United States. Prior ap- cluding but not limited to having been proval is not required if corporate in CNMI long-term investor status on changes occur that do not affect a pre- the transition date and within the pe- viously approved employment relation- riod provided by paragraph (e)(23)(v) of ship, or are otherwise non-substantive. this section. (D) Unauthorized change of employ- (xiv) Expiration of the transition pe- ment. An unauthorized change of em- riod. Upon expiration of the transition ployment to a new employer will con- period, the E–2 CNMI Investor non- stitute a failure to maintain status immigrant status will automatically within the meaning of section terminate. 237(a)(1)(C)(i) of the Act. (xv) [Reserved] (E) Periods of admission. (1) An E–2 (xvi) Waiver of inadmissibility for appli- CNMI Investor may be admitted for an cants present in the CNMI. An applicant initial period of not more than two for E–2 CNMI Investor nonimmigrant years. status, who is otherwise eligible for (2) The spouse and children accom- such status and otherwise admissible panying or following-to-join an E–2 to the United States, and who has pro- CNMI Investor may be admitted for the vided all appropriate documents as de- period during which the principal alien scribed in paragraph (e)(23)(vi) of this is in valid E–2 CNMI Investor non- section, may be granted a waiver of in- immigrant status. The temporary de- admissibility under section parture from the United States of the 212(d)(3)(A)(ii) of the Act, including the principal E–2 CNMI Investor shall not grounds of inadmissibility described in affect the derivative status of the de- sections 212(a)(6)(A)(i) (to the extent pendent spouse and children, provided such grounds arise solely because of the familial relationship continues to the alien’s presence in the CNMI on No- exist and the principal alien remains vember 28, 2009) and 212(a)(7)(B)(i)(II) of eligible for admission as an E–2 CNMI the Act, for the purpose of granting the Investor. E–2 CNMI Investor nonimmigrant sta- (xii) Extensions of stay. Requests for tus. Such waiver may be granted with- extensions of E–2 CNMI Investor non- out additional form or fee required. In immigrant status may be granted in the case of an application by a spouse increments of not more than two years, or child as described in paragraph until the end of the transition period. (e)(23)(x) of this section who is present To request an extension of stay, an E– in the CNMI, the appropriate docu- 2 CNMI Investor must file with USCIS ments required for such waiver are a an application for extension of stay, valid unexpired passport and evidence with required accompanying docu- that the spouse or child is lawfully ments, in accordance with the appro- present in the CNMI under section priate form instructions. To qualify for 1806(e) of title 48, U.S. Code (which may an extension of E–2 CNMI Investor non- include evidence of a grant of parole by immigrant status, each alien must USCIS or by the Department of Home- demonstrate: land Security pursuant to a grant of

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advance parole by USCIS in further- (B) Endorse all copies of the Form I– ance of section 1806(e) of title 48, U.S. 20 A–B; Code). (C) Return the I–20 ID to the student; (f) Students in colleges, universities, and seminaries, conservatories, academic high (D) Forward the I–20 School Copy to schools, elementary schools, other aca- the Service’s processing center for data demic institutions, and in language train- entry. (The school copy of Form I–20 A– ing programs—(1) Admission of student— B will be sent back to the school as a (i) Eligibility for admission. A non- notice of the student’s admission after immigrant student may be admitted data entry.) into the United States in non- (iii) Use of SEVIS. On January 30, immigrant status under section 2003, the use of the Student and Ex- 101(a)(15)(F) of the Act, if: change Visitor Information System (A) The student presents a SEVIS (SEVIS) will become mandatory for the Form I–20 issued in his or her own issuance of any new Form I–20. A stu- name by a school approved by the Serv- dent or dependent who presents a non- ice for attendance by F–1 foreign stu- SEVIS Form I–20 issued on or after dents. (In the alternative, for a student January 30, 2003, will not be accepted seeking admission prior to August 1, for admission to the United States. 2003, the student may present a cur- Non-SEVIS Forms I–20 issued prior to rently-valid Form I–20A–B/I–20ID, if January 30, 2003, will continue to be ac- that form was issued by the school ceptable until August 1, 2003. However, prior to January 30, 2003); schools must issue a SEVIS Form I–20 (B) The student has documentary evi- to any current student requiring a re- dence of financial support in the portable action (e.g., extension of sta- amount indicated on the SEVIS Form tus, practical training, and requests for I–20 (or the Form I–20A–B/I–20ID); employment authorization) or a new (C) For students seeking initial ad- Form I–20, or for any aliens who must mission only, the student intends to obtain a new nonimmigrant student attend the school specified in the stu- visa. As of August 1, 2003, the records of dent’s visa (or, where the student is ex- all current or continuing students empt from the requirement for a visa, must be entered in SEVIS. the school indicated on the SEVIS (2) I–20 ID. An F–1 student is expected Form I–20 (or the Form I–20A–B/I– to safekeep the initial I–20 ID bearing 20ID)); and the admission number and any subse- (D) In the case of a student who in- quent copies which have been issued to tends to study at a public secondary him or her. Should the student lose his school, the student has demonstrated or her current I–20 ID, a replacement that he or she has reimbursed the local copy bearing the same information as educational agency that administers the lost copy, including any endorse- the school for the full, unsubsidized per ment for employment and notations, capita cost of providing education at may be issued by the designated school the school for the period of the stu- official (DSO) as defined in 8 CFR dent’s attendance. 214.3(l)(1)(i). (ii) Disposition of Form I–20 A–B/I–20 (3) Admission of the spouse and minor ID. Form I–20 A–B/I–20 ID contains two children of an F–1 student. The spouse copies, the I–20 School Copy and the I– and minor children accompanying an 20 ID (Student) Copy. For purposes of F–1 student are eligible for admission clarity, the entire Form I–20 A–B/I–20 in F–2 status if the student is admitted ID shall be referred to as Form I–20 A– in F–1 status. The spouse and minor B and the I–20 ID (Student) Copy shall children following-to-join an F–1 stu- be referred to as the I–20 ID. When an dent are eligible for admission to the F–1 student applies for admission with United States in F–2 status if they are a complete Form I–20 A–B, the inspect- able to demonstrate that the F–1 stu- ing officer shall: dent has been admitted and is, or will (A) Transcribe the student’s admis- be within 30 days, enrolled in a full sion number from Form I–94 onto his or course of study, or engaged in approved her Form I–20 A–B (for students seek- practical training following completion ing initial admission only); of studies. In either case, at the time

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they seek admission, the eligible Service for attendance by foreign stu- spouse and minor children of an F–1 dents, or engaging in authorized prac- student with a SEVIS Form I–20 must tical training following completion of individually present an original SEVIS studies, except that an F–1 student who Form I–20 issued in the name of each is admitted to attend a public high F–2 dependent issued by a school au- school is restricted to an aggregate of thorized by the Service for attendance 12 months of study at any public high by F–1 foreign students. Prior to Au- school(s). An F–1 student may be ad- gust 1, 2003, if exigent circumstances mitted for a period up to 30 days before are demonstrated, the Service will the indicated report date or program allow the dependent of an F–1 student start date listed on Form I–20. The stu- in possession of a SEVIS Form I–20 to dent is considered to be maintaining enter the United States using a copy of status if he or she is making normal the F–1 student’s SEVIS Form I–20. (In the alternative, for dependents seeking progress toward completing a course of admission to the United States prior to study. August 1, 2003, a copy of the F–1 stu- (ii) Change in educational levels. An F– dent’s current Form I–20ID issued prior 1 student who continues from one edu- to January 30, 2003, with proper en- cational level to another is considered dorsement by the DSO will satisfy this to be maintaining status, provided that requirement.) A new SEVIS Form I–20 the transition to the new educational (or Form I–20A–B) is required for a de- level is accomplished according to pendent where there has been any sub- transfer procedures outlined in para- stantive change in the F–1 student’s graph (f)(8) of this section. current information. (iii) Annual vacation. An F–1 student (4) Temporary absence. An F–1 student at an academic institution is consid- returning to the United States from a ered to be in status during the annual temporary absence of five months or (or summer) vacation if the student is less may be readmitted for attendance eligible and intends to register for the at a Service-approved educational in- next term. A student attending a stitution, if the student presents: school on a quarter or trimester cal- (i) A current SEVIS Form I–20 (or, endar who takes only one vacation a for readmission prior to August 1, 2003, year during any one of the quarters or a current Form I–20ID which was issued trimesters instead of during the sum- prior to January 30, 2003), properly en- mer is considered to be in status during dorsed by the DSO for reentry if there has been no substantive change to the that vacation, if the student has com- most recent Form I–20 information; or pleted the equivalent of an academic (ii) A new SEVIS Form I–20 (or, for year prior to taking the vacation. readmission prior to August 1, 2003, a (iv) Preparation for departure. An F–1 new Form I–20ID which was issued student who has completed a course of prior to January 30, 2003), if there has study and any authorized practical been a substantive change in the infor- training following completion of stud- mation on the student’s most recent ies will be allowed an additional 60-day Form I–20 information, such as in the period to prepare for departure from case of a student who has changed the the United States or to transfer in ac- major area of study, who intends to cordance with paragraph (f)(8) of this transfer to another Service approved section. An F–1 student authorized by institution or who has advanced to a the DSO to withdraw from classes will higher level of study. be allowed a 15-day period for depar- (5) Duration of status—(i) General. Ex- ture from the United States. However, cept for border commuter students cov- an F–1 student who fails to maintain a ered by the provisions of paragraph full course of study without the ap- (f)(18) of this section, an F–1 student is proval of the DSO or otherwise fails to admitted for duration of status. Dura- maintain status is not eligible for an tion of status is defined as the time additional period for departure. during which an F–1 student is pursuing a full course of study at an edu- (v) Emergent circumstances as deter- cational institution approved by the mined by the Commissioner. Where the

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Commissioner has suspended the appli- (C) In order to obtain the automatic cability of any or all of the require- extension of stay and employment au- ments for on-campus or off-campus em- thorization under paragraph ployment authorization for specified (f)(5)(vi)(A) of this section, the F–1 stu- students pursuant to paragraphs dent, consistent with 8 CFR part 248, (f)(9)(i) or (f)(9)(ii) of this section by no- must not have violated the terms or tice in the FEDERAL REGISTER, an af- conditions of his or her nonimmigrant fected student who needs to reduce his status. or her full course of study as a result of (D) An automatic extension of an F– accepting employment authorized by 1 student’s duration of status under such notice in the FEDERAL REGISTER paragraph (f)(5)(vi)(A) of this section will be considered to be in status dur- also applies to the duration of status of ing the authorized employment, sub- any F–2 dependent aliens. ject to any other conditions specified (6) Full course of study—(i) General. in the notice, provided that, for the du- Successful completion of the full ration of the authorized employment, course of study must lead to the at- the student is registered for the num- tainment of a specific educational or ber of semester or quarter hours of in- professional objective. A course of struction per academic term specified study at an institution not approved in the notice, which in no event shall for attendance by foreign students as be less than 6 semester or quarter provided in § 214.3(a)(3) does not satisfy hours of instruction per academic term this requirement. A ‘‘full course of if the student is at the undergraduate study’’ as required by section level or less than 3 semester or quarter 101(a)(15)(F)(i) of the Act means: hours of instruction per academic term (A) Postgraduate study or if the student is at the graduate level, postdoctoral study at a college or uni- and is continuing to make progress to- versity, or undergraduate or post- ward completing the course of study. graduate study at a conservatory or religious seminary, certified by a DSO as (vi) Extension of duration of status and a full course of study; grant of employment authorization. (A) (B) Undergraduate study at a college The duration of status, and any em- or university, certified by a school offi- ployment authorization granted under cial to consist of at least twelve semes- 8 CFR 274a.12(c)(3)(i)(B) or (C), of an F– ter or quarter hours of instruction per 1 student who is the beneficiary of an academic term in those institutions H–1B petition subject to section using standard semester, trimester, or 214(g)(1)(A) of the Act (8 U.S.C. quarter hour systems, where all under- 1184(g)(1)(A)) and request for change of graduate students who are enrolled for status shall be automatically extended a minimum of twelve semester or quar- until October 1 of the fiscal year for ter hours are charged full-time tuition which such H–1B status is being re- or are considered full-time for other quested where such petition: administrative purposes, or its equiva- (1) Has been timely filed; and lent (as determined by the district di- (2) Requests an H–1B employment rector in the school approval process), start date of October 1 of the following except when the student needs a lesser fiscal year. course load to complete the course of (B) The automatic extension of an F– study during the current term; 1 student’s duration of status and em- (C) Study in a postsecondary lan- ployment authorization under para- guage, liberal arts, fine arts, or other graph (f)(5)(vi)(A) of this section shall non-vocational program at a school automatically terminate upon the re- which confers upon its graduates recog- jection, denial, revocation, or with- nized associate or other degrees or has drawal of the H–1B petition filed on established that its credits have been such F–1 student’s behalf or upon the and are accepted unconditionally by at denial or withdrawal of the request for least three institutions of higher learn- change of nonimmigrant status, even if ing which are either: (1) A school (or the H–1B petition filed on the F–1 stu- school system) owned and operated as a dent’s behalf is approved for consular public educational institution by the processing. United States or a State or political

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subdivision thereof; or (2) a school ac- mission including open broadcast, credited by a nationally recognized ac- closed circuit, cable, microwave, or crediting body; and which has been cer- satellite, audio conferencing, or com- tified by a designated school official to puter conferencing. If the F–1 student’s consist of at least twelve clock hours course of study is in a language study of instruction a week, or its equivalent program, no on-line or distance edu- as determined by the district director cation classes may be considered to in the school approval process; count toward a student’s full course of (D) Study in any other language, lib- study requirement. eral arts, fine arts, or other nonvoca- (H) On-campus employment pursuant tional training program, certified by a to the terms of a scholarship, fellow- designated school official to consist of ship, or assistantship is deemed to be at least eighteen clock hours of attend- part of the academic program of a stu- ance a week if the dominant part of the dent otherwise taking a full course of course of study consists of classroom study. instruction, or to consist of at least (ii) Institution of higher learning. For twenty-two clock hours a week if the purposes of this paragraph, a college or dominant part of the course of study university is an institution of higher consists of laboratory work; or learning which awards recognized asso- (E) Study in a curriculum at an ap- ciate, bachelor’s, master’s, doctorate, proved private elementary or middle or professional degrees. Schools which school or public or private academic devote themselves exclusively or pri- high school which is certified by a des- marily to vocational, business, or lan- ignated school official to consist of guage instruction are not included in class attendance for not less than the the category of colleges or universities. minimum number of hours a week pre- Vocational or business schools which scribed by the school for normal are classifiable as M–1 schools are pro- progress toward graduation. vided for by regulations under 8 CFR (F) Notwithstanding paragraphs 214.2(m). (f)(6)(i)(A) and (f)(6)(i)(B) of this sec- (iii) Reduced course load. The des- tion, an alien who has been granted ignated school official may allow an F– employment authorization pursuant to 1 student to engage in less than a full the terms of a document issued by the course of study as provided in this Commissioner under paragraphs paragraph (f)(6)(iii). Except as other- (f)(9)(i) or (f)(9)(ii) of this section and wise noted, a reduced course load must published in the FEDERAL REGISTER consist of at least six semester or quar- shall be deemed to be engaged in a ter hours, or half the clock hours re- ‘‘full course of study’’ if he or she required for a full course of study. A stu- mains registered for no less than the dent who drops below a full course of number of semester or quarter hours of study without the prior approval of the instruction per academic term speci- DSO will be considered out of status. fied by the Commissioner in the notice On-campus employment pursuant to for the validity period of such employ- the terms of a scholarship, fellowship, ment authorization. or assistantship is deemed to be part of (G) For F–1 students enrolled in the academic program of a student oth- classes for credit or classroom hours, erwise taking a full course of study. no more than the equivalent of one (A) Academic difficulties. The DSO class or three credits per session, term, may authorize a reduced course load on semester, trimester, or quarter may be account of a student’s initial difficulty counted toward the full course of study with the English language or reading requirement if the class is taken on- requirements, unfamiliarity with U.S. line or through distance education and teaching methods, or improper course does not require the student’s physical level placement. The student must re- attendance for classes, examination or sume a full course of study at the next other purposes integral to completion available term, session, or semester, of the class. An on-line or distance edu- excluding a summer session, in order to cation course is a course that is offered maintain student status. A student principally through the use of tele- previously authorized to drop below a vision, audio, or computer trans- full course of study due to academic

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difficulties is not eligible for a second for change of status or departure from authorization by the DSO due to aca- the U.S. demic difficulties while pursuing a (D) Reporting requirements for non- course of study at that program level. SEVIS schools. A DSO must report to A student authorized to drop below a the Service any student who is author- full course of study for academic dif- ized to reduce his or her course load. ficulties while pursuing a course of Within 21 days of the authorization, study at a particular program level the DSO must send a photocopy of the may still be authorized for a reduced student’s current Form I–20ID along course load due to an illness medical with Form I–538 to Service’s data proc- condition as provided for in paragraph essing center indicating the date and (B) of this section. reason that the student was authorized (B) Medical conditions. The DSO may to drop below full time status. Simi- authorize a reduced course load (or, if larly, the DSO will report to the Serv- necessary, no course load) due to a stu- ice no more than 21 days after the student’s temporary illness or medical condition for a period of time not to dent has resumed a full course of study exceed an aggregate of 12 months while by submitting a current copy of the the student is pursuing a course of students’ Form I–20ID to the Service’s study at a particular program level. In data processing center indicating the order to authorize a reduced course date a full course of study was resumed load based upon a medical condition, and the new program end date with the student must provide medical docu- Form I–538, if applicable. mentation from a licensed medical doc- (E) SEVIS reporting requirements. In tor, doctor of osteopathy, or licensed order for a student to be authorized to clinical psychologist, to the DSO to drop below a full course of study, the substantiate the illness or medical con- DSO must update SEVIS prior to the dition. The student must provide cur- student reducing his or her course load. rent medical documentation and the The DSO must update SEVIS with the DSO must reauthorize the drop below date, reason for authorization, and the full course of study each new term, ses- start date of the next term or session. sion, or semester. A student previously The DSO must also notify SEVIS with- authorized to drop below a full course in 21 days of the student’s commence- of study due to illness or medical con- ment of a full course of study. If an ex- dition for an aggregate of 12 months tension of the program end date is re- may not be authorized by a DSO to required due to the drop below a full duce his or her course load on subse- course of study, the DSO must update quent occasions while pursuing a SEVIS by completing a new SEVIS course of study at the same program Form I–20 with the new program end level. A student may be authorized to date in accordance with paragraph reduce course load for a reason of ill- (f)(7) of this section. ness or medical condition on more than (iv) Concurrent enrollment. An F–1 stu- one occasion while pursuing a course of dent may be enrolled in two different study, so long as the aggregate period of that authorization does not exceed Service-approved schools at one time 12 months. as long as the combined enrollment (C) Completion of course of study. The amounts to a full time course of study. DSO may authorize a reduced course In cases where a student is concur- load in the student’s final term, semes- rently enrolled, the school from which ter, or session if fewer courses are the student will earn his or her degree needed to complete the course of study. or certification should issue the Form If the student is not required to take I–20, and conduct subsequent certifi- any additional courses to satisfy the cations and updates to the Form I–20. requirements for completion, but con- The DSO from this school is also re- tinues to be enrolled for administrative sponsible for all of the reporting re- purposes, the student is considered to quirements to the Service. In instances have completed the course of study and where a student is enrolled in programs must take action to maintain status. with different full course of study re- Such action may include application quirements (e.g., clock hours vs. credit

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hours), the DSO is permitted to deter- gible for program extension pursuant mine what constitutes a full time to this paragraph (f)(7) is considered course of study. out of status. If eligible, the student (7) Extension of stay—(i) General. An may apply for reinstatement under the F–1 student who is admitted for dura- provisions of paragraph (f)(16) of this tion of status is not required to apply section. for extension of stay as long as the stu- (iv) Notification. Upon granting a pro- dent is maintaining status and making gram extension, a DSO at a non-SEVIS normal progress toward completion of school must immediately submit noti- his or her educational objective. An F– fication to the Service’s data proc- 1 student who is currently maintaining essing center using Form I–538 and the status and making normal progress to- top page of Form I–20A–B showing the ward completing his or her educational new program completion date. For a objective, but who is unable to com- school enrolled in SEVIS, a DSO may plete his or her course of study by the grant a program extension only by up- program end date on the Form I–20, dating SEVIS and issuing a new Form must apply prior to the program end I–20 reflecting the current program end date for a program extension pursuant date. A DSO may grant an extension to paragraph (f)(7)(iii) of this section. any time prior to the program end date (ii) Report date and program completion listed on the student’s original Form I– date on Form I–20. When determining 20. the report date on the Form I–20, the (8) School transfer. (i) A student who DSO may choose a reasonable date to is maintaining status may transfer to accommodate a student’s need to be in another Service approved school by fol- attendance for required activities at lowing the notification procedure pre- the school prior to the actual start of scribed in paragraph (f)(8)(ii) of this classes. Such required activities may section. However, an F–1 student is not include, but are not limited to, re- permitted to remain in the United search projects and orientation ses- States when transferring between sions. However, for purposes of employ- schools or programs unless the student ment, the DSO may not indicate a re- will begin classes at the transfer school port date more than 30 days prior to or program within 5 months of trans- the start of classes. When determining ferring out of the current school or the program completion date on Form within 5 months of the program com- I–20, the DSO should make a reasonable pletion date on his or her current Form estimate based upon the time an aver- I–20, whichever is earlier. In the case of age student would need to complete a an F–1 student authorized to engage in similar program in the same discipline. post-completion optional practical (iii) Program extension for students in training (OPT), the student must be lawful status. An F–1 student who is unable resume classes within 5 months of able to meet the program completion transferring out of the school that rec- date on the Form I–20 may be granted ommended OPT or the date the OPT an extension by the DSO if the DSO authorization ends, whichever is ear- certifies that the student has contin- lier. An F–1 student who was not pur- ually maintained status and that the suing a full course of study at the delays are caused by compelling aca- school he or she was last authorized to demic or medical reasons, such as attend is ineligible for school transfer changes of major or research topics, and must apply for reinstatement unexpected research problems, or docu- under the provisions of paragraph mented illnesses. Delays caused by aca- (f)(16) of this section, or, in the alter- demic probation or suspension are not native, may depart the country and re- acceptable reasons for program exten- turn as an initial entry in a new F–1 sions. A DSO may not grant an exten- nonimmigrant status. sion if the student did not apply for an (ii) Transfer procedure. To transfer extension until after the program end schools, an F–1 student must first no- date noted on the Form I–20. An F–1 tify the school he or she is attending of student who is unable to complete the the intent to transfer, then obtain a educational program within the time Form I–20 A–B, issued in accordance listed on Form I–20 and who is ineli- with the provisions of 8 CFR 214.3(k),

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from the school to which he or she in- sible for updating and maintaining the tends to transfer. The transfer will be student’s record in SEVIS. The student effected only if the F–1 student com- is then required to notify the DSO at pletes the Student Certification por- the transfer school within 15 days of tion of the Form I–20 A–B and returns the program start date listed on SEVIS the form to a designated school official Form I–20. Upon notification that the on campus within 15 days of beginning student is enrolled in classes, the DSO attendance at the new school. of the transfer school must update (A) Non-SEVIS School to Non-SEVIS SEVIS to reflect the student’s registra- school. To transfer from one non-SEVIS tion and current address, thereby ac- school to a different non-SEVIS school, knowledging that the student has com- the student must first notify the pleted the transfer process. In the re- school he or she is attending of the in- marks section of the student’s SEVIS tent to transfer, then obtain a Form I– Form I–20, the DSO must note that the 20 issued in accordance with the provi- transfer has been completed, including sions of 8 CFR 214.3(k) from the school the date, and return the form to the to which he or she intends to transfer. student. The transfer is effected when Prior to issuance of any Form I–20, the the transfer school updates SEVIS in- DSO at the transfer school is respon- dicating that the student has reg- sible for determining that the student istered in classes within the 30 days re- has been maintaining status at his or quired by § 214.3(g)(3)(iii). her current school and is eligible for (C) SEVIS school to SEVIS school. To transfer to the new school. The trans- transfer from a SEVIS school to a fer will be effected only if the student SEVIS school the student must first completes the Student Certification notify his or her current school of the portion of the Form I–20 and returns intent to transfer and must indicate the form to a DSO of the transfer the school to which he or she intends school within 15 days of the program to transfer. Upon notification by the start date listed on Form I–20. Upon re- student, the current school will update ceipt of the student’s Form I–20 the the student’s record in SEVIS as a DSO must note ‘‘transfer completed on ‘‘transfer out’’ and indicate the school (date)’’ in the space provided for the to which the student intends to trans- DSO’s remarks, thereby acknowledging fer, and a release date. The release date the student’s attendance at the trans- will be the current semester or session fer school; return the Form I–20 to the completion date, or the date of ex- student; submit the School copy of the pected transfer if earlier than the es- Form I–20 to Service’s Data Processing tablished academic cycle. The current Center within 30 days of receipt from school will retain control over the stu- the student; and forward a photocopy dent’s record in SEVIS until the stu- of the school copy to the school from dent completes the current term or which the student transferred. reaches the release date. At the request (B) Non-SEVIS school to SEVIS school. of the student, the DSO of the current To transfer from a non-SEVIS school school may cancel the transfer request to a SEVIS school, the student must at any time prior to the release date. first notify the school he or she is at- As of the release date specified by the tending of the intent to transfer, then current DSO, the transfer school will obtain a SEVIS Form I–20 issued in ac- be granted full access to the student’s cordance with the provisions of 8 CFR SEVIS record and then becomes re- 214.3(k) from the school to which he or sponsible for that student. The current she intends to transfer. Prior to school conveys authority and responsi- issuance of any Form I–20, the DSO at bility over that student to the transfer the transfer school is responsible for school, and will no longer have full determining that the student has been SEVIS access to that student’s record. maintaining status at his or her cur- As such, a transfer request may not be rent school and is eligible for transfer cancelled by the current DSO after the to the new school. Once the transfer release date has been reached. After school has issued the SEVIS Form I–20 the release date, the transfer DSO to the student indicating a transfer, must complete the transfer of the stu- the transfer school becomes respon- dent’s record in SEVIS and may issue a

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SEVIS Form I–20. The student is then Form I–20 to the student; submit the required to contact the DSO at the school copy of the Form I–20 to the transfer school within 15 days of the Service’s data processing center within program start date listed on the SEVIS 30 days of receipt from the student; and Form I–20. Upon notification that the forward a photocopy of the school copy student is enrolled in classes, the DSO to the school from which the student of the transfer school must update transferred. SEVIS to reflect the student’s registra- (iii) Notification. Upon receipt of the tion and current address, thereby ac- student’s Form I–20 A–B, the DSO knowledging that the student has com- must: pleted the transfer process. In the re- (A) Note ‘‘transfer completed on marks section of the student’s SEVIS (date)’’ on the student’s I–20 ID in the Form I–20, the DSO must note that the space provided for the DSO’s remarks, transfer has been completed, including thereby acknowledging the student’s the date, and return the form to the attendance; student. The transfer is effected when (B) Return the I–20 ID to the student; the transfer school notifies SEVIS that (C) Submit the I–20 School copy to the student has enrolled in classes in the Service’s Data Processing Center accordance with the 30 days required within 30 days of receipt from the stu- by § 214.3(g)(3)(iii). dent; and (D) SEVIS school to non-SEVIS school. (D) Forward a photocopy of the Form To transfer from a SEVIS school to a I–20 A-B School Copy to the school non-SEVIS school, the student must from which the student transferred. first notify his or her current school of (9) Employment—(i) On-campus employ- the intent to transfer and must indi- ment. On-campus employment must ei- cate the school to which he or she in- ther be performed on the school’s tends to transfer. Upon notification by premises, (including on-location com- the student, the current school will up- mercial firms which provide services date the student’s status in SEVIS as for students on campus, such as the ‘‘a transfer out’’, enter a ‘‘release’’ or school bookstore or cafeteria), or at an expected transfer date, and update the off-campus location which is educa- transfer school as ‘‘non-SEVIS.’’ The tionally affiliated with the school. Em- student must then notify the school to ployment with on-site commercial which the he or she intends to transfer firms, such as a construction company of his or her intent to enroll. After the building a school building, which do student has completed his or her cur- not provide direct student services is rent term or session, or has reached not deemed on-campus employment for the expected transfer date, the DSO at the purposes of this paragraph. In the the current school will no longer have case of off-campus locations, the edu- full access to the student’s SEVIS cational affiliation must be associated record. At this point, if the student has with the school’s established cur- notified the transfer school of his or riculum or related to contractually her intent to transfer, and the transfer funded research projects at the post- school has determined that the student graduate level. In any event, the em- has been maintaining status at his or ployment must be an integral part of her current school, the transfer school the student’s educational program. may issue the student a Form I–20. The Employment authorized under this transfer will be effected only if the stu- paragraph must not exceed 20 hours a dent completes the Student Certifi- week while school is in session, unless cation portion of the Form I–20 and re- the Commissioner suspends the appli- turns the form to a designated school cability of this limitation due to emer- official of the transfer school within 15 gent circumstances, as determined by days of the program start date listed the Commissioner, by means of notice on Form I–20. Upon receipt of the stu- in the FEDERAL REGISTER, the student dent’s Form I–20 the DSO must do as demonstrates to the DSO that the em- follows: note ‘‘transfer completed on ployment is necessary to avoid severe (date)’’ in the space provided for the economic hardship resulting from the DSO’s remarks, thereby acknowledging emergent circumstances, and the DSO the student’s attendance; return the notates the Form I–20 in accordance

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with the FEDERAL REGISTER document. an eligible F–1 student may request off- An F–1 student may, however, work on campus employment work authoriza- campus full-time when school is not in tion based upon severe economic hard- session or during the annual vacation. ship caused by unforeseen cir- A student who has been issued a Form cumstances beyond the student’s con- I–20 A-B to begin a new program in ac- trol. These circumstances may include cordance with the provision of 8 CFR loss of financial aid or on-campus em- 214.3(k) and who intends to enroll for ployment without fault on the part of the next regular academic year, term, the student, substantial fluctuations in or session at the institution which the value of currency or exchange rate, issued the Form I–20 A-B may continue inordinate increases in tuition and/or on-campus employment incident to living costs, unexpected changes in the status. Otherwise, an F-1 student may financial condition of the student’s not engage in on-campus employment source of support, medical bills, or after completing a course of study, ex- other substantial and unexpected except employment for practical training penses. as authorized under paragraph (f)(10) of (D) Procedure for off-campus employ- this section. An F-1 student may en- ment authorization due to severe economic gage in any on-campus employment au- hardship. The student must request a thorized under this paragraph which recommendation from the DSO for off- will not displace United States resi- campus employment. The DSO at a dents. In the case of a transfer in non-SEVIS school must make such a SEVIS, the student may only engage in certification on Form I–538, Certifi- on-campus employment at the school cation by Designated School Official. having jurisdiction over the student’s The DSO of a SEVIS school must com- SEVIS record. Upon initial entry to plete such certification in SEVIS. The begin a new course of study, an F–1 stu- DSO may recommend the student for dent may not begin on-campus employ- work off-campus for one year intervals ment more than 30 days prior to the ac- by certifying that: tual start of classes. (1) The student has been in F–1 status (ii) Off-campus work authorization— for one full academic year; (A) General. An F–1 student may be au- (2) The student is in good standing as thorized to work off-campus on a part- a student and is carrying a full course time basis in accordance with para- of study as defined in paragraph (f)(6) graph (f)(9)(ii) (B) or (C) of this section of this section; after having been in F–1 status for one (3) The student has demonstrated full academic year provided that the that acceptance of employment will student is in good academic standing not interfere with the student’s car- as determined by the DSO. Part-time rying a full course of study; and off-campus employment authorized (4) The student has demonstrated under this section is limited to no that the employment is necessary to more than twenty hours a week when avoid severe economic hardship due to school is in session. A student who is unforeseen circumstances beyond the granted off-campus employment au- student’s control pursuant to para- thorization may work full-time during graph (f)(9)(ii)(C) of this section and holidays or school vacation. The em- has demonstrated that employment ployment authorization is automati- under paragraph (f)(9)(i) of this section cally terminated whenever the student is unavailable or otherwise insufficient fails to maintain status. In emergent to meet the needs that have arisen as a circumstances as determined by the result of the unforeseen circumstances. Commissioner, the Commissioner may (E) [Reserved] suspend the applicability of any or all (F) Severe economic hardship applica- of the requirements of paragraph tion. (1) The applicant should submit (f)(9)(ii) of this section by notice in the the economic hardship application for FEDERAL REGISTER. employment authorization on Form I– (B) [Reserved] 765, with the fee required by 8 CFR (C) Severe economic hardship. If other 106.2, to the service center having juris- employment opportunities are not diction over his or her place of resi- available or are otherwise insufficient, dence. Applicants at a non-SEVIS

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school should submit Form I–20, Form certifying eligibility for employment, I–538, and any other supporting mate- and a completed Form I–765, with re- rials such as affidavits which further quired fee as contained in § 103.7(b)(1) of detail the unforeseen circumstances this chapter. that require the student to seek em- (10) Practical training. Practical train- ployment authorization and the un- ing may be authorized to an F–1 stu- availability or insufficiency of employ- dent who has been lawfully enrolled on ment under paragraph (f)(9)(i) of this a full time basis, in a Service-approved section. Students enrolled in a SEVIS college, university, conservatory, or school should submit the SEVIS Form seminary for one full academic year. I–20 with the employment page dem- This provision also includes students onstrating the DSO’s comments and who, during their course of study, were certification. enrolled in a study abroad program, if (2) The Service shall adjudicate the the student had spent at least one full application for work authorization academic term enrolled in a full course based upon severe economic hardship of study in the United States prior to on the basis of Form I–20 ID, Form I– studying abroad. A student may be au- 538, and Form I–765, and any additional thorized 12 months of practical train- supporting materials. If employment is ing, and becomes eligible for another 12 authorized, the adjudicating officer months of practical training when he shall issue an EAD. The Service direc- or she changes to a higher educational tor shall notify the student of the deci- level. Students in English language sion, and, if the application is denied, training programs are ineligible for of the reason or reasons for the denial. practical training. An eligible student No appeal shall lie from a decision to may request employment authoriza- deny a request for employment author- tion for practical training in a position ization under this section. The employ- that is directly related to his or her ment authorization may be granted in major area of study. There are two one year intervals up to the expected types of practical training available: date of completion of the student’s cur- (i) Curricular practical training. An F– rent course of study. A student has per- 1 student may be authorized by the mission to engage in off-campus em- DSO to participate in a curricular ployment only if the student receives practical training program that is an the EAD endorsed to that effect. Off- integral part of an established cur- campus employment authorization riculum. Curricular practical training may be renewed by the Service only if is defined to be alternative work/study, the student is maintaining status and internship, cooperative education, or good academic standing. The employ- any other type of required internship ment authorization is automatically or practicum that is offered by spon- terminated whenever the student fails soring employers through cooperative to maintain status. agreements with the school. Students (iii) Internship with an international who have received one year or more of organization. A bona fide F–1 student full time curricular practical training who has been offered employment by a are ineligible for post-completion aca- recognized international organization demic training. Exceptions to the one within the meaning of the Inter- academic year requirement are pro- national Organization Immunities Act vided for students enrolled in graduate (59 Stat. 669) must apply for employ- studies that require immediate partici- ment authorization to the service cen- pation in curricular practical training. ter having jurisdiction over his or her A request for authorization for cur- place of residence. A student seeking ricular practical training must be employment authorization under this made to the DSO. A student may begin provision is required to present a writ- curricular practical training only after ten certification from the inter- receiving his or her Form I–20 with the national organization that the pro- DSO endorsement. posed employment is within the scope (A) Non-SEVIS process. A student of the organization’s sponsorship, must request authorization for cur- Form I–20 ID or SEVIS Form I–20 with ricular practical training using Form employment page completed by DSO I–538. Upon approving the request for

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authorization, the DSO shall: certify for the school’s administrative pur- Form I–538 and send the form to the poses, after all requirements for the de- Service’s data processing center; en- gree have been met does not preclude dorse the student’s Form I–20 ID with eligibility for optional practical train- ‘‘full-time (or part-time) curricular ing. A student must complete all prac- practical training authorized for (em- tical training within a 14-month period ployer) at (location) from (date) to following the completion of study, ex- (date)’’; and sign and date the Form I– cept that a 24-month extension pursu- 20ID before returning it to the student. ant to paragraph (f)(10)(ii)(C) of this (B) SEVIS process. To grant author- section does not need to be completed ization for a student to engage in cur- within such 14-month period. ricular practical training, a DSO at a (B) Termination of practical training. SEVIS school will update the student’s Authorization to engage in optional record in SEVIS as being authorized practical training employment is auto- for curricular practical training that is matically terminated when the student directly related to the student’s major transfers to another school or begins area of study. The DSO will indicate study at another educational level. whether the training is full-time or (C) 24-month extension of post-comple- part-time, the employer and location, tion OPT for a science, technology, engi- and the employment start and end neering, or mathematics (STEM) degree. date. The DSO will then print a copy of Consistent with paragraph (f)(11)(i)(C) the employment page of the SEVIS of this section, a qualified student may Form I–20 indicating that curricular apply for an extension of OPT while in practical training has been approved. a valid period of post-completion OPT The DSO must sign, date, and return authorized under 8 CFR the SEVIS Form I–20 to the student 274a.12(c)(3)(i)(B). An extension will be prior to the student’s commencement for 24 months for the first qualifying of employment. degree for which the student has com- (ii) Optional practical training—(A) pleted all course requirements (exclud- General. Consistent with the applica- ing thesis or equivalent), including any tion and approval process in paragraph qualifying degree as part of a dual de- (f)(11) of this section, a student may gree program, subject to the require- apply to USCIS for authorization for ment in paragraph (f)(10)(ii)(C)(3) of temporary employment for optional this section that previously obtained practical training directly related to degrees must have been conferred. If a the student’s major area of study. The student completes all such course re- student may not begin optional prac- quirements for another qualifying de- tical training until the date indicated gree at a higher degree level than the on his or her employment authoriza- first, the student may apply for a section document, Form I–766. A student ond 24-month extension of OPT while may be granted authorization to en- in a valid period of post-completion gage in temporary employment for op- OPT authorized under 8 CFR tional practical training: 274a.12(c)(3)(i)(B). In no event may a (1) During the student’s annual vaca- student be authorized for more than tion and at other times when school is two lifetime STEM OPT extensions. A not in session, if the student is cur- student who was granted a 17-month rently enrolled, and is eligible for reg- OPT extension under the rule issued at istration and intends to register for the 73 FR 18944, whether or not such stu- next term or session; dent requests an additional 7-month (2) While school is in session, pro- period of STEM OPT under 8 CFR vided that practical training does not 214.16, is considered to have been au- exceed 20 hours a week while school is thorized for one STEM OPT extension, in session; or and may be eligible for only one more (3) After completion of the course of STEM OPT extension. Any subsequent study, or, for a student in a bachelor’s, application for an additional 24-month master’s, or doctoral degree program, OPT extension under this paragraph after completion of all course require- (f)(10)(ii)(C) must be based on a degree ments for the degree (excluding thesis at a higher degree level than the degree or equivalent). Continued enrollment, that was the basis for the student’s

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first OPT extension. In order to qualify (3) Previously obtained STEM degree(s). for an extension of post-completion The degree that is the basis for the 24- OPT based upon a STEM degree, all of month OPT extension under this para- the following requirements must be graph (f)(10)(ii)(C) may be, but is not met. required to be, the degree that is the (1) Accreditation. The degree that is basis for the post-completion OPT pe- the basis for the 24-month OPT exten- riod authorized under 8 CFR sion is from a U.S. educational institu- 274a.12(c)(3)(i)(B). If an application for tion accredited by an accrediting agen- a 24-month OPT extension under this cy recognized by the Department of paragraph (f)(10)(ii)(C) is based upon a Education at the time of application. degree obtained previous to the degree (2) DHS-approved degree. The degree that provided the basis for the period that is the basis for the 24-month OPT of post-completion OPT authorized extension is a bachelor’s, master’s, or under 8 CFR 274a.12(c)(3)(i)(B), that doctoral degree in a field determined previously obtained degree must have by the Secretary, or his or her des- been conferred from a U.S. educational ignee, to qualify within a science, tech- institution that is accredited and nology, engineering, or mathematics SEVP-certified at the time the stu- field. dent’s DSO recommends the student for the 24-month OPT extension and (i) The term ‘‘science, technology, en- must be in a degree program category gineering or mathematics field’’ means included on the current STEM Des- a field included in the Department of ignated Degree Program List at the Education’s Classification of Instruc- time of the DSO recommendation. That tional Programs taxonomy within the previously obtained degree must have two-digit series or successor series con- been conferred within the 10 years pre- taining engineering, biological ceding the date the DSO recommends sciences, mathematics, and physical the student for the 24-month OPT ex- sciences, or a related field. In general, tension. related fields will include fields involv- (4) Eligible practical training oppor- ing research, innovation, or develop- tunity. The STEM practical training ment of new technologies using engi- opportunity that is the basis for the 24- neering, mathematics, computer month OPT extension under this para- science, or natural sciences (including graph (f)(10)(ii)(C) must be directly re- physical, biological, and agricultural lated to the degree that qualifies the sciences). student for such extension, which may (ii) The Secretary, or his or her des- be the previously obtained degree de- ignee, will maintain the STEM Des- scribed in paragraph (f)(10)(ii)(C)(3) of ignated Degree Program List, which this section. will be a complete list of qualifying de- (5) Employer qualification. The stu- gree program categories, published on dent’s employer is enrolled in E-Verify, the Student and Exchange Visitor Pro- as evidenced by either a valid E-Verify gram Web site at http://www.ice.gov/ Company Identification number or, if sevis. Changes that are made to the the employer is using an employer Designated Degree Program List may agent to create its E-Verify cases, a also be published in a notice in the valid E-Verify Client Company Identi- FEDERAL REGISTER. All program cat- fication number, and the employer re- egories included on the list must be mains a participant in good standing consistent with the definition set forth with E-Verify, as determined by in paragraph (f)(10)(ii)(C)(2)(i) of this USCIS. An employer must also have an section. employer identification number (EIN) (iii) At the time the DSO recommends used for tax purposes. a 24-month OPT extension under this (6) Employer reporting. A student may paragraph (f)(10)(ii)(C) in SEVIS, the not be authorized for employment with degree that is the basis for the applica- an employer pursuant to paragraph tion for the OPT extension must be (f)(10)(ii)(C)(2) of this section unless the contained within a category on the employer agrees, by signing the Train- STEM Designated Degree Program ing Plan for STEM OPT Students, List. Form I–983 or successor form, to report

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the termination or departure of an quirements relating to performance OPT student to the DSO at the stu- evaluation and oversight and super- dent’s school, if the termination or de- vision, as applicable. parture is prior to the end of the au- (iii) The training plan described in thorized period of OPT. Such reporting the Form I–983 or successor form must must be made within five business days explain how the training is directly re- of the termination or departure. An lated to the student’s qualifying STEM employer shall consider a student to degree. have departed when the employer (iv) If a student initiates a new prac- knows the student has left the practical training opportunity with a new tical training opportunity, or if the employer during his or her 24-month student has not reported for his or her OPT extension, the student must sub- practical training for a period of five mit, within 10 days of beginning the consecutive business days without the new practical training opportunity, a consent of the employer, whichever oc- new Form I–983 or successor form to curs earlier. the student’s DSO, and subsequently (7) Training Plan for STEM OPT Stu- obtain a new DSO recommendation. dents, Form I–983 or successor form. (i) A (8) Duties, hours, and compensation for student must fully complete an indi- training. The terms and conditions of a vidualized Form I–983 or successor form STEM practical training opportunity and obtain requisite signatures from an during the period of the 24-month OPT appropriate individual in the employ- extension, including duties, hours, and er’s organization on the form, con- compensation, must be commensurate sistent with form instructions, before with terms and conditions applicable the DSO may recommend a 24-month to the employer’s similarly situated OPT extension under paragraph U.S. workers in the area of employ- (f)(10)(ii)(C)(2) of this section in SEVIS. ment. A student may not engage in A student must submit the Form I–983 practical training for less than 20 hours or successor form, which includes a per week, excluding time off taken con- certification of adherence to the train- sistent with leave-related policies ap- ing plan completed by an appropriate plicable to the employer’s similarly individual in the employer’s organiza- situated U.S. workers in the area of tion who has signatory authority for employment. If the employer does not the employer, to the student’s DSO, employ and has not recently employed prior to the new DSO recommendation. more than two similarly situated U.S. A student must present his or her workers in the area of employment, the signed and completed Form I–983 or employer nevertheless remains obli- successor form to a DSO at the edu- gated to attest that the terms and con- cational institution of his or her most ditions of a STEM practical training recent enrollment. A student, while in opportunity are commensurate with F–1 student status, may also be re- the terms and conditions of employ- quired to submit the Form I–983 or suc- ment for other similarly situated U.S. cessor form to ICE and/or USCIS upon workers in the area of employment. request or in accordance with form in- ‘‘Similarly situated U.S. workers’’ instructions. cludes U.S. workers performing similar (ii) The training plan described in the duties subject to similar supervision Form I–983 or successor form must and with similar educational back- identify goals for the STEM practical grounds, industry expertise, employ- training opportunity, including spe- ment experience, levels of responsi- cific knowledge, skills, or techniques bility, and skill sets as the student. that will be imparted to the student, The duties, hours, and compensation of and explain how those goals will be such students are ‘‘commensurate’’ achieved through the work-based learn- with those offered to U.S. workers em- ing opportunity with the employer; de- ployed by the employer in the same scribe a performance evaluation proc- area of employment when the employer ess; and describe methods of oversight can show that the duties, hours, and and supervision. Employers may rely compensation are consistent with the on their otherwise existing training range of such terms and conditions the programs or policies to satisfy the re- employer has offered or would offer to

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similarly situated U.S. employees. The inaccurate, or renders inaccurate the student must disclose his or her com- information in the Form I–983 or suc- pensation, including any adjustments, cessor form on the nature, purpose, as agreed to with the employer, on the oversight, or assessment of the stu- Form I–983 or successor form. dent’s practical training opportunity. (9) Evaluation requirements and Train- The student and employer must ensure ing Plan modifications. (i) A student that the modified Form I–983 or suc- may not be authorized for employment cessor form is submitted to the stu- with an employer pursuant to para- dent’s DSO at the earliest available op- graph (f)(10)(ii)(C)(2) of this section un- portunity. less the student submits a self-evalua- (iii) The educational institution tion of the student’s progress toward whose DSO is responsible for duties as- the training goals described in the sociated with the student’s latest OPT Form I–983 or successor form. All re- extension under paragraph quired evaluations must be completed (f)(10)(ii)(C)(2) of this section is respon- prior to the conclusion of a STEM sible for ensuring the Student and Ex- practical training opportunity, and the change Visitor Program has access to student and an appropriate individual each individualized Form I–983 or suc- in the employer’s organization must cessor form and associated student sign each evaluation to attest to its ac- evaluations (electronic or hard copy), curacy. All STEM practical training including through SEVIS if techno- opportunities require an initial evalua- logically available, beginning within 30 tion within 12 months of the approved days after the document is submitted starting date on the employment au- to the DSO and continuing for a period thorization document granted pursuant of three years following the completion to the student’s 24-month OPT exten- of each STEM practical training oppor- sion application, and a concluding tunity. evaluation. The student is responsible (10) Additional STEM opportunity obli- for ensuring the DSO receives his or gations. A student may only participate her 12-month evaluation and final eval- in a STEM practical training oppor- uation no later than 10 days following tunity in which the employer attests, the conclusion of the reporting period including by signing the Form I–983 or or conclusion of his or her practical successor form, that: training opportunity, respectively. (i) The employer has sufficient re- (ii) If any material change to or devi- sources and personnel available and is ation from the training plan described prepared to provide appropriate train- in the Form I–983 or successor form oc- ing in connection with the specified op- curs, the student and employer must portunity at the location(s) specified in sign a modified Form I–983 or successor the Form I–983 or successor form; form reflecting the material change(s) (ii) The student on a STEM OPT ex- or deviation(s). Material changes and tension will not replace a full- or part- deviations relating to training may in- time, temporary or permanent U.S. clude, but are not limited to, any worker; and change of Employer Identification (iii) The student’s opportunity assists Number resulting from a corporate re- the student in reaching his or her structuring, any reduction in com- training goals. pensation from the amount previously (11) Site visits. DHS, at its discretion, submitted on the Form I–983 or suc- may conduct a site visit of any em- cessor form that is not tied to a reduc- ployer. The purpose of the site visit is tion in hours worked, any significant for DHS to ensure that each employer decrease in hours per week that a stu- possesses and maintains the ability and dent engages in a STEM training op- resources to provide structured and portunity, and any decrease in hours guided work-based learning experiences worked below the minimum hours for consistent with any Form I–983 or suc- the 24-month extension as described in cessor form completed and signed by paragraph (f)(10)(ii)(C)(8) of this sec- the employer. DHS will provide notice tion. Material changes and deviations to the employer 48 hours in advance of also include any change or deviation any site visit, except notice may not be that renders an employer attestation provided if the visit is triggered by a

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complaint or other evidence of non- (2) Post-completion OPT. For post- compliance with the regulations in this completion OPT, not including a 24- paragraph (f)(10)(ii)(C). month OPT extension under paragraph (D) Duration of status while on post- (f)(10)(ii)(C)(2) of this section, the stu- completion OPT. For a student with ap- dent may properly file his or her Form proved post-completion OPT, the dura- I–765 or successor form up to 90 days tion of status is defined as the period prior to his or her program end date beginning on the date that the stu- and no later than 60 days after his or dent’s application for OPT was prop- her program end date. The student erly filed and pending approval, includ- must also file his or her Form I–765 or ing the authorized period of post-com- successor form with USCIS within 30 pletion OPT, and ending 60 days after days of the date the DSO enters the the OPT employment authorization ex- recommendation for OPT into his or pires. her SEVIS record. (E) Periods of unemployment during (C) Applications and filing deadlines for post-completion OPT. During post-com- 24-month OPT extension. A student pletion OPT, F–1 status is dependent meeting the eligibility requirements upon employment. Students may not for a 24-month OPT extension under accrue an aggregate of more than 90 paragraph (f)(10)(ii)(C) of this section days of unemployment during any may request an extension of employ- post-completion OPT period described ment authorization by filing Form I– in 8 CFR 274a.12(c)(3)(i)(B). Students 765 or successor form, with the required granted a 24-month OPT extension fee and supporting documents, up to 90 under paragraph (f)(10)(ii)(C)(2) of this days prior to the expiration date of the section may not accrue an aggregate of student’s current OPT employment au- more than 150 days of unemployment thorization. The student seeking such during a total OPT period, including 24-month OPT extension must properly file his or her Form I–765 or successor any post-completion OPT period de- form with USCIS within 60 days of the scribed in 8 CFR 274a.12(c)(3)(i)(B) and date the DSO enters the recommenda- any subsequent 24-month extension pe- tion for the OPT extension into his or riod. her SEVIS record. If a student timely (11) OPT application and approval and properly files an application for process—(i) Student responsibilities. A such 24-month OPT extension and student must initiate the OPT applica- timely and properly requests a DSO tion process by requesting a rec- recommendation, including by submit- ommendation for OPT from his or her ting the fully executed Form I–983 or DSO. Upon making the recommenda- successor form to his or her DSO, but tion, the DSO will provide the student the Employment Authorization Docu- a signed Form I–20 indicating that rec- ment, Form I–766 or successor form, ommendation. currently in the student’s possession (A) Applications for employment au- expires prior to the decision on the stu- thorization. The student must properly dent’s application for the OPT exten- file an Application for Employment sion, the student’s Form I–766 or suc- Authorization, Form I–765 or successor cessor form is extended automatically form, with USCIS, accompanied by the pursuant to the terms and conditions required fee, and the supporting docu- specified in 8 CFR 274a.12(b)(6)(iv). ments, as described in the form’s in- (D) Start of OPT employment. A stu- structions. dent may not begin OPT employment (B) Applications and filing deadlines for prior to the approved start date on his pre-completion OPT and post-completion or her Employment Authorization Doc- OPT—(1) Pre-completion OPT. For pre- ument, Form I–766 or successor form, completion OPT, the student may except as described in paragraph properly file his or her Form I–765 or (f)(11)(i)(C) of this section. A student successor form up to 90 days before may not request a start date that is being enrolled for one full academic more than 60 days after the student’s year, provided that the period of em- program end date. Employment au- ployment will not start prior to the thorization will begin on the date re- completion of the full academic year. quested or the date the employment

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authorization is adjudicated, whichever time, or for a student seeking a rec- is later. ommendation for a 24-month OPT ex- (ii) Additional DSO responsibilities. A tension under paragraph (f)(10)(ii)(C) of student must have a recommendation this section whether the OPT employ- from his or her DSO in order to apply ment meets the minimum hours re- for OPT. When a DSO recommends a quirements described in paragraph student for OPT, the school assumes (f)(10)(ii)(C)(8) of this section, and note the added responsibility for maintain- in SEVIS the OPT start and end dates. ing the SEVIS record of that student (C) The DSO must provide the stu- for the entire period of authorized dent with a signed, dated Form I–20 or OPT, consistent with paragraph (f)(12) successor form indicating that OPT has of this section. been recommended. (A) Prior to making a recommenda- (iii) Decision on application for OPT tion, the DSO at the educational insti- employment authorization. USCIS will tution of the student’s most recent en- adjudicate a student’s Form I–765 or rollment must ensure that the student successor form on the basis of the is eligible for the given type and period DSO’s recommendation and other eligi- of OPT and that the student is aware of bility considerations. the student’s responsibilities for main- (A) If granted, the employment au- taining status while on OPT. Prior to thorization period for post-completion recommending a 24-month OPT exten- OPT begins on the requested date of sion under paragraph (f)(10)(ii)(C) of commencement or the date the Form I– this section, the DSO at the edu- 765 or successor form is approved, cational institution of the student’s whichever is later, and ends at the con- most recent enrollment must certify clusion of the remaining time period of that the student’s degree being used to post-completion OPT eligibility. The qualify that student for the 24-month employment authorization period for a OPT extension, as shown in SEVIS or 24-month OPT extension under para- official transcripts, is a bachelor’s, graph (f)(10)(ii)(C) of this section begins master’s, or doctorate degree with a degree code that is contained within a on the day after the expiration of the category on the current STEM Des- initial post-completion OPT employ- ignated Degree Program List at the ment authorization and ends 24 months time the recommendation is made. A thereafter, regardless of the date the DSO may recommend a student for a actual extension is approved. 24-month OPT extension under para- (B) USCIS will notify the applicant of graph (f)(10)(ii)(C) of this section only the decision on the Form I–765 or suc- if the Form I–983 or successor form de- cessor form in writing, and, if the ap- scribed in paragraph (f)(10)(ii)(C)(7) of plication is denied, of the reason or this section has been properly com- reasons for the denial. pleted and executed by the student and (C) The applicant may not appeal the prospective employer. A DSO may not decision. recommend a student for an OPT ex- (12) Reporting while on optional prac- tension under paragraph (f)(10)(ii)(C) of tical training—(i) General. An F–1 stu- this section if the practical training dent who is granted employment au- would be conducted by an employer thorization by USCIS to engage in op- who has failed to meet the require- tional practical training is required to ments under paragraphs (f)(10)(ii)(C)(5) report any change of name or address, through (9) of this section or has failed or interruption of such employment to to provide the required assurances of the DSO for the duration of the op- paragraph (f)(10)(ii)(C)(10) of this sec- tional practical training. A DSO who tion. recommends a student for OPT is re- (B) The DSO must update the stu- sponsible for updating the student’s dent’s SEVIS record with the DSO’s record to reflect these reported recommendation for OPT before the changes for the duration of the time student can apply to USCIS for em- that training is authorized. ployment authorization. The DSO will (ii) Additional reporting obligations for indicate in SEVIS whether the OPT students with an approved 24-month OPT employment is to be full-time or part- extension. Students with an approved

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24-month OPT extension under para- The employer is prohibited from trans- graph (f)(10)(ii)(C) of this section have ferring F–1 students working at other additional reporting obligations. Com- facilities to the facility where the pliance with these reporting require- work stoppage is occurring. ments is required to maintain F–1 sta- (15) Spouse and children of F–1 student. tus. The reporting obligations are: The F–2 spouse and minor children of (A) Within 10 days of the change, the an F–1 student shall each be issued an student must report to the student’s individual SEVIS Form I–20 in accord- DSO a change of legal name, residen- ance with the provisions of § 214.3(k). tial or mailing address, employer (i) Employment. The F–2 spouse and name, employer address, and/or loss of children of an F–1 student may not ac- employment. cept employment. (B) The student must complete a val- (ii) Study—(A) F–2 post-secondary/vo- idation report, confirming that the in- cational study—(1) Authorized study at formation required by paragraph SEVP-certified schools. An F–2 spouse or (f)(12)(ii)(A) of this section has not F–2 child may enroll in less than a full changed, every six months. The re- course of study, as defined in para- quirement for validation reporting graphs (f)(6)(i)(A) through (D) and starts on the date the 24-month OPT (m)(9)(i) through (iv), in any course of extension begins and ends when the study described in paragraphs student’s F–1 status expires or the 24- (f)(6)(i)(A) through (D) or (m)(9)(i) month OPT extension concludes, through (iv) of this section at an whichever is first. The validation re- SEVP-certified school. Notwith- port is due to the student’s DSO within standing paragraphs (f)(6)(i)(B) and 10 business days of each reporting date. (m)(9)(i) of this section, study at an un- (13) Temporary absence from the United dergraduate college or university or at States of F–1 student granted employment a community college or junior college authorization. (i) A student returning is not a full course of study solely be- from a temporary trip abroad with an cause the F–2 nonimmigrant is engag- unexpired off-campus employment authorization on his or her I–20 ID may ing in a lesser course load to complete resume employment only if the student a course of study during the current is readmitted to attend the same term. An F–2 spouse or F–2 child en- school which granted the employment rolled in less than a full course of authorization. study is not eligible to engage in em- (ii) An F–1 student who has an unex- ployment pursuant to paragraphs (f)(9) pired EAD issued for post-completion and (10) of this section or pursuant to practical training and who is otherwise paragraph (m)(14) of this section. admissible may return to the United (2) Full course of study. Subject to States to resume employment after a paragraphs (f)(15)(ii)(B) and (f)(18) of period of temporary absence. The EAD this section, an F–2 spouse and child must be used in combination with an I– may engage in a full course of study 20 ID endorsed for reentry by the DSO only by applying for and obtaining a within the last six months. change of status to F–1, M–1 or J–1 non- (14) Effect of strike or other labor dis- immigrant status, as appropriate, be- pute. Any employment authorization, fore beginning a full course of study. whether or not part of an academic An F–2 spouse and child may engage in program, is automatically suspended study that is avocational or rec- upon certification by the Secretary of reational in nature, up to and includ- Labor or the Secretary’s designee to ing on a full-time basis. the Commissioner of the Immigration (B) F–2 elementary or secondary study. and Naturalization Service or the Com- An F–2 child may engage in full-time missioner’s designee, that a strike or study, including any full course of other labor dispute involving a work study, in any elementary or secondary stoppage of workers is in progress in school (kindergarten through twelfth the occupation at the place of employ- grade). ment. As used in this paragraph, ‘‘place (C) An F–2 spouse and child violates of employment’’ means the facility or his or her nonimmigrant status by en- facilities where a labor dispute exists. rolling in any study except as provided

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in paragraph (f)(15)(ii)(A) or (B) of this prove reinstatement would result in ex- section. treme hardship to the student. (16) Reinstatement to student status—(i) (ii) Decision. If the Service reinstates General. The district director may con- the student, the Service shall endorse sider reinstating a student who makes the student’s copy of Form I–20 to indi- a request for reinstatement on Form I– cate the student has been reinstated 539, Application to Extend/Change Non- and return the form to the student. If immigrant Status, accompanied by a the Form I–20 is from a non-SEVIS properly completed SEVIS Form I–20 school, the school copy will be for- indicating the DSO’s recommendation warded to the school. If the Form I–20 for reinstatement (or a properly com- is from a SEVIS school, the adjudi- pleted Form I–20A-B issued prior to cating officer will update SEVIS to re- January 30, 2003, from the school the flect the Service’s decision. In either student is attending or intends to at- case, if the Service does not reinstate tend prior to August 1, 2003). The dis- the student, the student may not ap- trict director may consider granting peal that decision. the request if the student: (17) Current name and address. A stu- (A) Has not been out of status for dent must inform the DSO and the more than 5 months at the time of fil- Service of any legal changes to his or ing the request for reinstatement (or her name or of any change of address, demonstrates that the failure to file within 10 days of the change, in a man- within the 5 month period was the re- ner prescribed by the school. A student sult of exceptional circumstances and enrolled at a SEVIS school can satisfy that the student filed the request for the requirement in 8 CFR 265.1 of noti- reinstatement as promptly as possible fying the Service by providing a notice under these exceptional cir- of a change of address within 10 days to cumstances); the DSO, who in turn shall enter the information in SEVIS within 21 days of (B) Does not have a record of re- notification by the student. A student peated or willful violations of Service enrolled at a non-SEVIS school must regulations; submit a notice of change of address to (C) Is currently pursuing, or intend- the Service, as provided in 8 CFR 265.1, ing to pursue, a full course of study in within 10 days of the change. Except in the immediate future at the school the case of a student who cannot re- which issued the Form I–20; ceive mail where he or she resides, the (D) Has not engaged in unauthorized address provided by the student must employment; be the actual physical location where (E) Is not deportable on any ground the student resides rather than a mail- other than section 237(a)(1)(B) or (C)(i) ing address. In cases where a student of the Act; and provides a mailing address, the school (F) Establishes to the satisfaction of must maintain a record of, and must the Service, by a detailed showing, ei- provide upon request from the Service, ther that: the actual physical location where the (1) The violation of status resulted student resides. from circumstances beyond the stu- (18) Special rules for certain border com- dent’s control. Such circumstances muter students—(i) Applicability. For might include serious injury or illness, purposes of the special rules in this closure of the institution, a natural paragraph (f)(18), the term ‘‘border disaster, or inadvertence, oversight, or commuter student’’ means a national neglect on the part of the DSO, but do of Canada or Mexico who is admitted to not include instances where a pattern the United States as an F–1 non- of repeated violations or where a will- immigrant student to enroll in a full ful failure on the part of the student course of study, albeit on a part-time resulted in the need for reinstatement; basis, in an approved school located or within 75 miles of a United States land (2) The violation relates to a reduc- border. A border commuter student tion in the student’s course load that must maintain actual residence and would have been within a DSO’s power place of abode in the student’s country to authorize, and that failure to ap- of nationality, and seek admission to

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the United States at a land border DHS, pursuant to 8 CFR 214.13, except port-of-entry. These special rules do as otherwise provided in that section. not apply to a national of Canada or (g) Representatives to international or- Mexico who is: ganizations—(1) General. The determina- (A) Residing in the United States tion by a consular officer prior to ad- while attending an approved school as mission and the recognition by the an F–1 student, or Secretary of State subsequent to ad- (B) Enrolled in a full course of study mission is evidence of the proper clas- as defined in paragraph (f)(6) of this sification of a nonimmigrant under section. section 101(a)(15)(G) of the Act. An (ii) Full course of study. The border alien who has a nonimmigrant status commuter student must be enrolled in under section 101(a)(15)(G) (i), (ii), (iii) a full course of study at the school that or (iv) of the Act is to be admitted for leads to the attainment of a specific the duration of the period for which educational or professional objective, the alien continues to be recognized by albeit on a part-time basis. A designated school official at the school the Secretary of State as being entitled may authorize an eligible border com- to that status. An alien defined in sec- muter student to enroll in a course tion (101)(a)(15)(G)(v) of the Act is to be load below that otherwise required for admitted for an initial period of not a full course of study under paragraph more than three years, and may be (f)(6) of this section, provided that the granted extensions of temporary stay reduced course load is consistent with in increments of not more than two the border commuter student’s ap- years. In addition, the application for proved course of study. extension of temporary stay must be (iii) Period of admission. An F–1 non- accompanied by a statement signed by immigrant student who is admitted as the employing official stating that he a border commuter student under this or she intends to continue to employ paragraph (f)(18) will be admitted until the applicant and describing the type a date certain. The DSO is required to of work the applicant will perform. specify a completion date on the Form (2) Definition of G–1, G–3, or G–4 de- I–20 that reflects the actual semester pendent. For purposes of employment or term dates for the commuter stu- in the United States, the term depend- dent’s current term of study. A new ent of a G–1, G–3, or G–4 principal alien, Form I–20 will be required for each new as used in § 214.2(g), means any of the semester or term that the border com- following immediate members of the muter student attends at the school. family habitually residing in the same The provisions of paragraphs (f)(5) and household as the principal alien who is (f)(7) of this section, relating to dura- an officer or employee assigned to a tion of status and extension of stay, mission, to an international organiza- are not applicable to a border com- tion, or is employed by an inter- muter student. national organization in the United (iv) Employment. A border commuter States: student may not be authorized to ac- (i) Spouse; cept any employment in connection with his or her F–1 student status, ex- (ii) Unmarried children under the age cept for curricular practical training as of 21; provided in paragraph (f)(10)(i) of this (iii) Unmarried sons or daughters section or post-completion optional under the age of 23 who are in full-time practical training as provided in para- attendance as students at post-sec- graph (f)(10)(ii)(A)(3) of this section. ondary educational institutions; (19) Remittance of the fee. An alien (iv) Unmarried sons or daughters who applies for F–1 or F–3 non- under the age of 25 who are in full-time immigrant status in order to enroll in attendance as students at post-sec- a program of study at a Department of ondary educational institutions if a Homeland Security (DHS)-approved formal bilateral employment agree- educational institution is required to ment permitting their employment in pay the Student and Exchange Visitor the United States was signed prior to Information System (SEVIS) fee to November 21, 1988, and such bilateral

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employment agreement does not speci- ents with respect to matters arising fy 23 as the maximum age for employ- out of their employment. ment of such sons and daughters. The (5) G–1 and G–3 dependent employment Office of Protocol of the Department of pursuant to formal bilateral employment State shall maintain a listing of for- agreements and informal de facto recip- eign states which the United States rocal arrangements, and G–4 dependent has such bilateral employment agree- employment. (i) The Office of Protocol ments. The provisions of this para- shall maintain a listing of foreign graph apply only to G–1 and G–3 de- states which have entered into formal pendents under certain bilateral agree- bilateral employment agreements. De- ments and are not applicable to G–4 dependents of a G–1 or G–3 principal alien pendents; assigned to official duty in the United (v) Unmarried sons or daughters who States may accept or continue in unre- are physically or mentally disabled to stricted employment based on such for- the extent that they cannot adequately mal bilateral agreements, if the appli- care for themselves or cannot estab- cable agreement includes persons in G– lish, maintain, or re-establish their 1 or G–3 visa status, upon favorable own households. The Department of recommendation by the Department of State or the Service may require cer- State and issuance of employment au- tification(s) as it deems sufficient to thorization documentation by the document such mental or physical dis- Service in accordance with 8 CFR part ability; or 274a. The application procedures are (vi) An immediate family member of set forth in paragrpah (g)(6) of this sec- a G–1, G–3, or G–4 principal alien de- tion. scribed in 22 CFR 41.21(a)(3)(i) to (iv) (ii) For purposes of this section, an with G–1, G–3, or G–4 nonimmigrant informal de facto reciprocal arrange- status who falls within a category of ment exists when the Department of aliens designated by the Department of State determines that a foreign state State as qualifying dependents. allows appropriate employment on the (3) Applicability of a formal bilateral local economy for dependents of cer- agreement or an informal de facto ar- tain United States officials assigned to rangement for G–1 and G–3 dependents. duty in that foreign state. The Office of The applicability of a formal bilateral Protocol shall maintain a listing of agreement shall be based on the foreign countries with which such reciprocity state which employs the principal alien exists. Dependents of a G–1 or G–3 prin- and not on the nationality of the principal alien assigned to official duty in cipal alien or dependent. The applica- the United States may be authorized to bility of an informal de facto arrange- accept or continue in employment ment shall be based on the foreign based upon informal de facto arrange- state which employs the principal ments, and dependents of a G–4 prin- alien, but under a de facto arrange- cipal alien assigned to official duty in ment the principal alien also must be a the United States may be authorized to national of the foreign state which em- accept or continue in employment ploys him or her in the United States. upon favorable recommendation by the (4) Income tax, Social Security liability; Department of State and issuance of non-applicability of certain immunities. employment authorization by the Serv- Dependents who are granted employ- ice in accordance with 8 CFR part 274a. ment authorization under this section Additionally, the procedures set forth are responsible for payment of all fed- in paragraph (g)(6) of this section must eral, state and local income, employ- be complied with, and the following ment and related taxes and Social Se- conditions must be met: curity contributions on any remunera- (A) Both the principal alien and the tion received. In addition, immunity dependent desiring employment are from civil or administrative jurisdic- maintaining G–1, G–3, or G–4 status as tion in accordance with Article 37 of appropriate; the Vienna Convention on Diplomatic (B) The principal’s assignment in the Relations or other international agree- United States is expected to last more ments does not apply to these depend- than six months;

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(C) Employment of a similar nature his or her principal alien. If the prin- for dependents of United States Gov- cipal is assigned to or employed by the ernment officials assigned to official United Nations, the Form I–566 must be duty in the foreign state employing the submitted to the U.S. Mission to the principal alien is not prohibited by United Nations. All other applications that foreign government. The provi- must be submitted to the Office of Pro- sions of this paragraph apply only to tocol of the Department of State. A de- G–1 and G–3 dependents; pendent applying under paragraph (D) The proposed employment is not (g)(2) (iii) or (iv) of this section must in an occupation listed in the Depart- submit a certified statement from the ment of Labor Schedule B (20 CFR part post-secondary educational institution 656), or otherwise determined by the confirming that he or she is pursuing Department of Labor to be one for studies on a full-time basis. A depend- which there is an oversupply of quali- ent applying under paragraph (g)(2)(v) fied U.S. workers in the area of proof this section must submit medical posed employment. This Schedule B recertification regarding his or her con- striction does not apply to a dependent dition. The certification should iden- son or daughter who is a full-time stu- tify the dependent and the certifying dent if the employment is part-time, physician and give the physician’s consisting of not more than 20 hours phone number; identify the condition, per week, and/or if it is temporary em- describe the symptoms and provide a ployment of not more than 12 weeks prognosis; certify that the dependent is during school holiday periods; and unable to establish, re-establish, and (E) The proposed employment is not maintain a home or his or her own. Ad- contrary to the interest of the United ditionally, a G–1 or G–3 dependent ap- States. Employment contrary to the plying under the terms of a de facto ar- interest of the United States includes, rangement or a G–4 dependent must at- but is not limited to, the employment tach a statement from the prospective of G–1, G–3, or G–4 dependents: who employer which includes the depend- have criminal records; who have vio- ent’s name; a description of the posi- lated United States immigration laws tion offered and the duties to be per- or regulations, or visa laws or regula- formed; the salary offered; and tions; who have worked illegally in the verification that the dependent pos- United States; and/or who cannot es- sesses the qualifications for the posi- tablish that they have paid taxes and tion. social security on income from current (ii) The Department of State reviews or previous United States employment. and verifies the information provided, Additionally, the Department of State makes its determination, and endorses may determine a G–4 dependent’s em- the Form I–566. ployment is contrary to the interest of (iii) If the Department of State’s en- the United States when the principal dorsement is favorable, the dependent alien’s country of nationality has one may apply to USCIS for employment or more components of an inter- authorization. When applying to USCIS national organization or international for employment authorization, the de- organizations within its borders and pendent must present his or her Form does not allow the employment of de- I–566 with a favorable endorsement pendents of United States citizens em- from the Department of State and any ployed by such component(s) or organi- additional documentation as may be zation(s). required by the Secretary. (6) Application procedures. The fol- (7) Period of time for which employment lowing procedures are applicable to G– may be authorized. If approved, an appli- 1 and G–3 dependent employment application to accept or continue employ- cations under bilateral agreements and ment under this section shall be grant- de facto arrangements, as well as to G– ed in increments of not more than 4 dependent employment applications: three years each. (i) The dependent must submit a (8) No appeal. There shall be no ap- completed Form I–566 to the Depart- peal from a denial of permission to ac- ment of State through the office, mis- cept or continue employment under sion, or organization which employs this section.

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(9) Dependents or family members of to a Department of Defense (DOD) co- principal aliens classified G–2 or G–5. A operative research and development dependent or family member of a prin- project or coproduction project, or cipal alien classified G–2 or G–5 may services as a fashion model who is of not be employed in the United States distinguished merit and ability; under under this section. section 101(a)(15)(H)(ii)(a) of the Act as (10) Unauthorized employment. An an alien who is coming to perform agri- alien classified under section cultural labor or services of a tem- 101(a)(15)(G) of the Act who is not a porary or seasonal nature; under sec- principal alien and who engages in em- tion 101(a)(15)(H)(ii)(b) of the Act as an ployment outside the scope of, or in a alien coming to perform other tem- manner contrary to this section, may porary services or labor; or under sec- be considered in violation of section tion 101(a)(15)(H)(iii) of the Act as an 241(a)(1)(C)(i) of the Act. An alien who alien who is coming as a trainee or as is classified under section 101(a)(15)(G) a participant in a special education ex- of the Act who is a principal alien and change visitor program. These classi- who engages in employment outside fications are called H–1C, H–1B, H–2A, the scope of his/her official position H–2B, and H–3, respectively. The em- may be considered in violation of sec- ployer must file a petition with the tion 241(a)(1)(C)(i) of the Act. Service for review of the services or (11) Special provision. As of February training and for determination of the 16, 1990 no new employment authoriza- alien’s eligibility for classification as a tion will be granted and no pre-existing temporary employee or trainee, before employment authorization will be ex- the alien may apply for a visa or seek tended for a G–1 dependent absent an admission to the United States. This appropriate bilateral agreement or de paragraph sets forth the standards and facto arrangement. However, a G–1 de- procedures applicable to these classi- pendent who has been granted employ- fications. ment authorization by the Department (ii) Description of classifications. (A) of State prior to the effective date of An H–1C classification applies to an this section and who meets the defini- alien who is coming temporarily to the tion of dependent under § 214.2(g)(2) (i), (ii), (iii) or (v) of this part but is not United States to perform services as a covered by the terms of a bilateral registered nurse, meets the require- agreement or de facto arrangement ments of section 212(m)(1) of the Act, may be allowed to continue in employ- and will perform services at a facility ment until whichever of the following (as defined at section 212(m)(6) of the occurs first: Act) for which the Secretary of Labor (i) The employment authorization by has determined and certified to the At- the Department of State expires; or torney General that an unexpired at- (ii) He or she no longer qualifies as a testation is on file and in effect under dependent as that term is defined in section 212(m)(2) of the Act. This clas- this section; or sification will expire 4 years from June (iii) March 19, 1990. 11, 2001. (h) Temporary employees—(1) Admis- (B) An H–1B classification applies to sion of temporary employees—(i) General. an alien who is coming temporarily to Under section 101(a)(15)(H) of the Act, the United States: an alien may be authorized to come to (1) To perform services in a specialty the United States temporarily to per- occupation (except agricultural work- form services or labor for, or to receive ers, and aliens described in section training from, an employer, if peti- 101(a)(15) (O) and (P) of the Act) de- tioned for by that employer. Under this scribed in section 214(i)(1) of the Act, nonimmigrant category, the alien may that meets the requirements of section be classified as follows: under section 214(i)(2) of the Act, and for whom the 101(a)(15)(H)(i)(c) of the Act as a reg- Secretary of Labor has determined and istered nurse; under section certified to the Attorney General that 101(a)(15)(H)(i)(b) of the Act as an alien the prospective employer has filed a who is coming to perform services in a labor condition application under sec- specialty occupation, services relating tion 212(n)(1) of the Act;

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(2) To perform services of an excep- (2) Petitions—(i) Filing of petitions—(A) tional nature requiring exceptional General. A United States employer merit and ability relating to a coopera- seeking to classify an alien as an H–1B, tive research and development project H–2A, H–2B, or H–3 temporary em- or a coproduction project provided for ployee must file a petition on the form under a Government-to-Government prescribed by USCIS in accordance agreement administered by the Sec- with the form instructions. retary of Defense; (B) Service or training in more than one (3) To perform services as a fashion location. A petition that requires serv- model of distinguished merit and abil- ices to be performed or training to be ity and for whom the Secretary of received in more than one location Labor has determined and certified to must include an itinerary with the the Attorney General that the prospec- dates and locations of the services or tive employer has filed a labor condi- training. The itinerary must be sub- tion application under section 212(n)(1) mitted to USCIS with the Petition for of the Act. a Nonimmigrant Worker, or successor (C) An H–2A classification applies to form, as provided in the form instruc- an alien who is coming temporarily to tions. The address that the petitioner the United States to perform agricul- specifies as its location on the Petition tural work of a temporary or seasonal for a Nonimmigrant Worker must be nature. where the petitioner is located for pur- (D) An H–2B classification applies to poses of this paragraph (h)(2)(i)(B). an alien who is coming temporarily to This paragraph (h)(2)(i)(B) does not the United States to perform non- apply to H–1B petitions. agricultural work of a temporary or (C) Services or training for more than seasonal nature, if there are not suffi- one employer. If the beneficiary will cient workers who are able, willing, perform nonagricultural services for, qualified, and available at the time of or receive training from, more than application for a visa and admission to one employer, each employer must file the United States and at the place a separate petition with USCIS as pro- where the alien is to perform such serv- vided in the form instructions. ices or labor. This classification does (D) Change of employers. If the alien is not apply to graduates of medical in the United States and seeks to schools coming to the United States to change employers, the prospective new perform services as members of the employer must file a petition on the medical profession. The temporary or form prescribed by USCIS requesting permanent nature of the services or classification and an extension of the labor described on the approved tem- alien’s stay in the United States. If the porary labor certification are subject new petition is approved, the extension to review by USCIS. This classification of stay may be granted for the validity requires a temporary labor certifi- of the approved petition. The validity cation issued by the Secretary of Labor of the petition and the alien’s exten- or the Governor of Guam prior to the sion of stay must conform to the limits filing of a petition with USCIS. on the alien’s temporary stay that are (E) An H–3 classification applies to prescribed in paragraph (h)(13) of this an alien who is coming temporarily to section. Except as provided by 8 CFR the United States: 274a.12(b)(21) or section 214(n) of the (1) As a trainee, other than to receive Act, 8 U.S.C. 1184(n), the alien is not graduate medical education or train- authorized to begin the employment ing, or training provided primarily at with the new petitioner until the peti- or by an academic or vocational insti- tion is approved. An H–1C non- tution, or immigrant alien may not change em- (2) As a participant in a special edu- ployers. cation exchange visitor program which (E) Amended or new petition. The peti- provides for practical training and ex- tioner shall file an amended or new pe- perience in the education of children tition, with fee, with the Service Cen- with physical, mental, or emotional ter where the original petition was disabilities. filed to reflect any material changes in

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the terms and conditions of employ- for an H nonimmigrant alien is respon- ment or training or the alien’s eligi- sible for complying with all of the em- bility as specified in the original ap- ployer sanctions provisions of section proved petition. An amended or new H– 274A of the Act and 8 CFR part 274a. 1C, H–1B, H–2A, or H–2B petition must (G) Multiple H–1B petitions. An em- be accompanied by a current or new ployer may not file, in the same fiscal Department of Labor determination. In year, more than one H–1B petition on the case of an H–1B petition, this re- behalf of the same alien if the alien is quirement includes a new labor condi- subject to the numerical limitations of tion application. section 214(g)(1)(A) of the Act or is ex- (F) Agents as petitioners. A United empt from those limitations under sec- States agent may file a petition in tion 214(g)(5)(C) of the Act. If an H–1B cases involving workers who are tradi- petition is denied, on a basis other tionally self-employed or workers who than fraud or misrepresentation, the use agents to arrange short-term em- employer may file a subsequent H–1B ployment on their behalf with numer- petition on behalf of the same alien in ous employers, and in cases where a the same fiscal year, provided that the foreign employer authorizes the agent numerical limitation has not been to act on its behalf. A United States reached or if the filing qualifies as ex- agent may be: the actual employer of empt from the numerical limitation. the beneficiary, the representative of Otherwise, filing more than one H–1B both the employer and the beneficiary, petition by an employer on behalf of or, a person or entity authorized by the the same alien in the same fiscal year employer to act for, or in place of, the will result in the denial or revocation employer as it agent. A petition filed of all such petitions. If USCIS believes by a United States agent is subject to that related entities (such as a parent the following conditions; company, subsidiary, or affiliate) may (1) An agent performing the function not have a legitimate business need to of an employer must guarantee the file more than one H–1B petition on be- wages and other terms and conditions half of the same alien subject to the of employment by contractual agree- numerical limitations of section ment with the beneficiary or bene- 214(g)(1)(A) of the Act or otherwise eli- ficiaries of the petition. The agent/em- gible for an exemption under section ployer must also provide an itinerary 214(g)(5)(C) of the Act, USCIS may of definite employment and informa- issue a request for additional evidence tion on any other services planned for or notice of intent to deny, or notice of the period of time requested. intent to revoke each petition. If any (2) A person or company in business of the related entities fail to dem- as an agent may file the H petition in- onstrate a legitimate business need to volving multiple employers as the rep- file an H–1B petition on behalf of the resentative of both the employers and same alien, all petitions filed on that the beneficiary or beneficiaries if the alien’s behalf by the related entities supporting documentation includes a will be denied or revoked. complete itinerary of services or en- (H) H–1B portability. An eligible H–1B gagements. The itinerary shall specify nonimmigrant is authorized to start the dates of each service or engage- concurrent or new employment under ment, the names and addresses of the section 214(n) of the Act upon the fil- actual employers, and the names and ing, in accordance with 8 CFR 103.2(a), addresses of the establishment, venues, of a nonfrivolous H–1B petition on be- or locations where the services will be half of such alien, or as of the re- performed. In questionable cases, a quested start date, whichever is later. contract between the employers and (1) Eligible H–1B nonimmigrant. For H– the beneficiary or beneficiaries may be 1B portability purposes, an eligible H– required. The burden is on the agent to 1B nonimmigrant is defined as an alien: explain the terms and conditions of the (i) Who has been lawfully admitted employment and to provide any re- into the United States in, or otherwise quired documentation. provided, H–1B nonimmigrant status; (3) A foreign employer who, through (ii) On whose behalf a nonfrivolous H– a United States agent, files a petition 1B petition for new employment has

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been filed, including a petition for new 1B status or been in a period of author- employment with the same employer, ized stay and has not been employed in with a request to amend or extend the the United States without authoriza- H–1B nonimmigrant’s stay, before the tion. H–1B nonimmigrant’s period of stay (I) Time of filing. A petition filed authorized by the Secretary of Home- under section 101(a)(15)(H) of the Act land Security expires; and may not be filed earlier than 6 months (iii) Who has not been employed with- before the date of actual need for the out authorization in the United States beneficiary’s services or training. from the time of last admission (ii) Multiple beneficiaries. Up to 25 through the filing of the petition for named beneficiaries may be included in new employment. an H–1C, H–2A, H–2B, or H–3 petition if (2) Length of employment. Employ- the beneficiaries will be performing the ment authorized under paragraph same service, or receiving the same (h)(2)(i)(H) of this section automati- training, for the same period, and in cally ceases upon the adjudication of the same location. If more than 25 the H–1B petition described in para- named beneficiaries are being peti- graph (h)(2)(i)(H)(1)(ii) of this section. tioned for, an additional petition is re- (3) Successive H–1B portability peti- quired. Petitions for H–2A and H–2B tions. (i) An alien maintaining author- workers from countries not designated ization for employment under para- in accordance with paragraph graph (h)(2)(i)(H) of this section, whose (h)(6)(i)(E) of this section must be filed status, as indicated on the Arrival-De- separately. parture Record (Form I–94), has expired, shall be considered to be in a pe- (iii) Naming beneficiaries. H–1B, H–1C, riod of stay authorized by the Sec- and H–3 petitions must include the retary of Homeland Security for pur- name of each beneficiary. Except as poses of paragraph (h)(2)(i)(H)(1)(ii) of provided in this paragraph (h), all H–2A this section. If otherwise eligible under and H–2B petitions must include the paragraph (h)(2)(i)(H) of this section, name of each beneficiary who is cur- such alien may begin working in a sub- rently in the United States, but need sequent position upon the filing of an- not name any beneficiary who is not other H–1B petition or from the re- currently in the United States. quested start date, whichever is later, Unnamed beneficiaries must be shown notwithstanding that the previous H– on the petition by total number. USCIS 1B petition upon which employment is may require the petitioner to name H– authorized under paragraph (h)(2)(i)(H) 2B beneficiaries where the name is of this section remains pending and re- needed to establish eligibility for H–2B gardless of whether the validity period nonimmigrant status. If all of the of an approved H–1B petition filed on beneficiaries covered by an H–2A or H– the alien’s behalf expired during such 2B temporary labor certification have pendency. not been identified at the time a peti- (ii) A request to amend the petition tion is filed, multiple petitions for sub- or for an extension of stay in any suc- sequent beneficiaries may be filed at cessive H–1B portability petition can- different times but must include a copy not be approved if a request to amend of the same temporary labor certifi- the petition or for an extension of stay cation. Each petition must reference in any preceding H–1B portability peti- all previously filed petitions associated tion in the succession is denied, unless with that temporary labor certifi- the beneficiary’s previously approved cation. All H–2A and H–2B petitions on period of H–1B status remains valid. behalf of workers who are not from a (iii) Denial of a successive portability country that has been designated as a petition does not affect the ability of participating country in accordance the H–1B beneficiary to continue or re- with paragraphs (h)(5)(i)(F)(1) or sume working in accordance with the (h)(6)(i)(E)(1) of this section must name terms of an H–1B petition previously all the workers in the petition who fall approved on behalf of the beneficiary if within these categories. All H–2A and that petition approval remains valid H–2B petitions must state the nation- and the beneficiary has maintained H– ality of all beneficiaries, whether or

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not named, even if there are bene- istered nurse in the state of intended ficiaries from more than one country. employment; and (iv) [Reserved] (C) Is fully qualified and eligible (v) H–2A Petitions. Special criteria for under the laws (including such tem- admission, extension, and maintenance porary or interim licensing require- of status apply to H–2A petitions and ments which authorize the nurse to be are specified in paragraph (h)(5) of this employed) governing the place of in- section. The other provisions of tended employment to practice as a § 214.2(h) apply to H–2A only to the ex- registered nurse immediately upon ad- tent that they do not conflict with the mission to the United States, and is special agricultural provisions in para- authorized under such laws to be em- graph (h)(5) of this section. ployed by the employer. For purposes (3) Petition for registered nurse (H– of this paragraph, the temporary or in- 1C)—(i) General. (A) For purposes of H– terim licensing may be obtained imme- 1C classification, the term ‘‘registered diately after the alien enters the nurse’’ means a person who is or will be United States. authorized by a State Board of Nursing (iv) Petitioner requirements. The peti- to engage in registered nurse practice tioning facility shall submit the fol- in a state or U.S. territory or posses- lowing with an H–1C petition: sion, and who is or will be practicing at (A) A current copy of the DOL’s no- a facility which provides health care tice of acceptance of the filing of its services. attestation on Form ETA 9081; (B) A United States employer which (B) A statement describing any limi- provides health care services is re- tations which the laws of the state or ferred to as a facility. A facility may file jurisdiction of intended employment an H–1C petition for an alien nurse to place on the alien’s services; and perform the services of a registered nurse, if the facility meets the eligi- (C) Evidence that the alien(s) named bility standards of 20 CFR 655.1111 and on the petition meets the definition of the other requirements of the Depart- a registered nurse as defined at 8 CFR ment of Labor’s regulations in 20 CFR 214.2(h)(3)(i)(A), and satisfies the re- part 655, subpart L. quirements contained in section (C) The position must involve nurs- 212(m)(1) of the Act. ing practice and require licensure or (v) Licensure requirements. (A) A nurse other authorization to practice as a who is granted H–1C classification registered nurse from the State Board based on passage of the CGFNS exam- of Nursing in the state of intended em- ination must, upon admission to the ployment. United States, be able to obtain tem- (ii) [Reserved] porary licensure or other temporary (iii) Beneficiary requirements. An H–1C authorization to practice as a reg- petition for a nurse shall be accom- istered nurse from the State Board of panied by evidence that the nurse: Nursing in the state of intended em- (A) Has obtained a full and unre- ployment. stricted license to practice nursing in (B) An alien who was admitted as an the country where the alien obtained H–1C nonimmigrant on the basis of a nursing education, or has received temporary license or authorization to nursing education in the United States; practice as a registered nurse must (B) Has passed the examination given comply with the licensing require- by the Commission on Graduates of ments for registered nurses in the state Foreign Nursing Schools (CGFNS), or of intended employment. An alien ad- has obtained a full and unrestricted mitted as an H–1C nonimmigrant is re- (permanent) license to practice as a quired to obtain a full and unrestricted registered nurse in the state of in- license if required by the state of intended employment, or has obtained a tended employment. The Service must full and unrestricted (permanent) li- be notified pursuant to § 214.2(h)(11) cense in any state or territory of the when an H–1C nurse is no longer li- United States and received temporary censed as a registered nurse in the authorization to practice as a reg- state of intended employment.

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(C) A nurse shall automatically lose (2) Based on reciprocity, will perform his or her eligibility for H–1C classi- services of an exceptional nature re- fication if he or she is no longer per- quiring exceptional merit and ability forming the duties of a registered pro- relating to a DOD cooperative research fessional nurse. Such a nurse is not au- and development project or a coproduc- thorized to remain in employment un- tion project provided for under a Gov- less he or she otherwise receives au- ernment-to-Government agreement ad- thorization from the Service. ministered by the Secretary of Defense; (vi) Other requirements. (A) If the Sec- (3) Will perform services in the field retary of Labor notifies the Service of fashion modeling and who is of dis- that a facility which employs H–1C tinguished merit and ability. nonimmigrant nurses has failed to (B) General requirements for petitions meet a condition in its attestation, or involving a specialty occupation. (1) Be- that there was a misrepresentation of a fore filing a petition for H–1B classi- material fact in the attestation, the fication in a specialty occupation, the Service shall not approve petitions for petitioner shall obtain a certification H–1C nonimmigrant nurses to be em- from the Department of Labor that it ployed by the facility for a period of at has filed a labor condition application least 1 year from the date of receipt of in the occupational specialty in which such notice. The Secretary of Labor the alien(s) will be employed. shall make a recommendation with re- (2) Certification by the Department spect to the length of debarment. If the of Labor of a labor condition applica- Secretary of Labor recommends a tion in an occupational classification longer period of debarment, the Service does not constitute a determination by will give considerable weight to that that agency that the occupation in recommendation. question is a specialty occupation. The director shall determine if the applica- (B) If the facility’s attestation ex- tion involves a specialty occupation as pires, or is suspended or invalidated by defined in section 214(i)(1) of the Act. DOL, the Service will not suspend or The director shall also determine revoke the facility’s approved petitions whether the particular alien for whom for nurses, if the facility has agreed to H–1B classification is sought qualifies comply with the terms of the attesta- to perform services in the specialty oc- tion under which the nurses were ad- cupation as prescribed in section mitted or subsequent attestations ac- 214(i)(2) of the Act. cepted by DOL for the duration of the (3) If all of the beneficiaries covered nurses’ authorized stay. by an H–1B labor condition application (4) Petition for alien to perform services have not been identified at the time a in a specialty occupation, services relating petition is filed, petitions for newly to a DOD cooperative research and devel- identified beneficiaries may be filed at opment project or coproduction project, or any time during the validity of the services of distinguished merit and ability labor condition application using pho- in the ield of fashion modeling (H–1B)— tocopies of the same application. Each (i)(A) Types of H–1B classification. An H– petition must refer by file number to 1B classification may be granted to an all previously approved petitions for alien who: that labor condition application. (1) Will perform services in a spe- (4) When petitions have been ap- cialty occupation which requires theo- proved for the total number of workers retical and practical application of a specified in the labor condition appli- body of highly specialized knowledge cation, substitution of aliens against and attainment of a baccalaureate or previously approved openings shall not higher degree or its equivalent as a be made. A new labor condition appli- minimum requirement for entry into cation shall be required. the occupation in the United States, (5) If the Secretary of Labor notifies and who is qualified to perform serv- the Service that the petitioning em- ices in the specialty occupation be- ployer has failed to meet a condition of cause he or she has attained a bacca- paragraph (B) of section 212(n)(1) of the laureate or higher degree or its equiva- Act, has substantially failed to meet a lent in the specialty occupation; condition of paragraphs (C) or (D) of

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section 212(n)(1) of the Act, has will- pletion of such inspection will be a con- fully failed to meet a condition of para- dition for approval of any petition. graph (A) of section 212(n)(1) of the Act, (iii) USCIS conducts on-site inspec- or has misrepresented any material tions or other compliance reviews to fact in the application, the Service verify facts related to the adjudication shall not approve petitions filed with of the petition and compliance with H– respect to that employer under section 1B petition requirements. If USCIS is 204 or 214(c) of the Act for a period of at unable to verify such facts due to the least one year from the date of receipt failure or refusal of the petitioner or a of such notice. third-party worksite party to cooper- (6) If the employer’s labor condition ate in an inspection or other compli- application is suspended or invalidated ance review, then such failure or re- by the Department of Labor, the Serv- fusal to cooperate and allow USCIS to ice will not suspend or revoke the em- verify facts may result in denial or rev- ployer’s approved petitions for aliens ocation of any H–1B petition for H–1B already employed in specialty occupa- workers performing services at the lo- tions if the employer has certified to cation or locations which are a subject the Department of Labor that it will of inspection or compliance review, in- comply with the terms of the labor cluding any third-party worksites. condition application for the duration (C) General requirements for petitions of the authorized stay of aliens it em- involving an alien of distinguished merit ploys. and ability in the field of fashion mod- (7)(i) The information provided on an eling. H–1B classification may be grant- H–1B petition and the evidence sub- ed to an alien who is of distinguished mitted in support of such petition may merit and ability in the field of fashion be verified by USCIS through lawful modeling. An alien of distinguished means as determined by USCIS, includ- merit and ability in the field of fashion ing telephonic and electronic modeling is one who is prominent in verifications and on-site inspections. the field of fashion modeling. The alien Such inspections may include, but are must also be coming to the United not limited to, a visit of the peti- States to perform services which re- tioning organization’s facilities, inter- quire a fashion model of prominence. views with the petitioning organiza- (ii) Definitions. tion’s officials, review of the peti- Employer-employee relationship means tioning organization’s records related the conventional master-servant rela- to compliance with immigration laws tionship consistent with the common and regulations, and interviews with law. The petitioner must establish that any other individuals or review of any its offer of employment as stated in the other records that USCIS may lawfully petition is based on a valid employer- obtain and that it considers pertinent employee relationship that exists or to verify facts related to the adjudica- will exist. In considering whether the tion of the H–1B petition, such as facts petitioner has established that a valid relating to the petitioner’s and bene- ‘‘employer-employee relationship’’ ex- ficiary’s H–1B eligibility and compli- ists or will exist, USCIS will assess and ance. An inspection may be conducted weigh all relevant aspects of the rela- at locations including the petitioning tionship with no one factor being de- organization’s headquarters, satellite terminative. locations, or the location where the (1) In cases where the H–1B bene- beneficiary works or will work, includ- ficiary does not possess an ownership ing third-party worksites, as applica- interest in the petitioning organization ble. or entity, the factors that USCIS may (ii) USCIS may conduct on-site in- consider to determine if a valid em- spections or other compliance reviews ployment relationship will exist or as described in paragraph continue to exist include, but are not (h)(4)(i)(B)(7)(i) of this section at any limited to: time after the filing of an H–1B peti- (i) Whether the petitioner supervises tion. If USCIS decides to conduct a pre- the beneficiary and, if so, where such approval inspection, satisfactory com- supervision takes place;

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(ii) Where the supervision is not at (vi) Whether the beneficiary shares in the petitioner’s worksite, how the peti- the profits, losses, and liabilities of the tioner maintains such supervision; organization or entity. (iii) Whether the petitioner has the Prominence means a high level of right to control the work of the bene- achievement in the field of fashion ficiary on a day-to-day basis and to as- modeling evidenced by a degree of skill sign projects; and recognition substantially above (iv) Whether the petitioner provides that ordinarily encountered to the ex- the tools or instrumentalities needed tent that a person described as promi- for the beneficiary to perform the du- nent is renowned, leading, or well- ties of employment; known in the field of fashion modeling. (v) Whether the petitioner hires, Regonized authority means a person or pays, and has the ability to fire the an organization with expertise in a par- beneficiary; ticular field, special skills or knowl- (vi) Whether the petitioner evaluates edge in that field, and the expertise to the work-product of the beneficiary; render the type of opinion requested. (vii) Whether the petitioner claims Such an opinion must state: the beneficiary as an employee for tax (1) The writer’s qualifications as an purposes; expert; (viii) Whether the petitioner provides (2) The writer’s experience giving the beneficiary any type of employee such opinions, citing specific instances benefits; where past opinions have been accepted as authoritative and by whom; (ix) Whether the beneficiary uses pro- (3) How the conclusions were reached; prietary information of the petitioner and in order to perform the duties of em- (4) The basis for the conclusions sup- ployment; ported by copies or citations of any re- (x) Whether the beneficiary produces search material used. an end-product that is directly linked Specialty occupation means an occupa- to the petitioner’s line of business; and tion that requires: (xi) Whether the petitioner has the (1) The theoretical and practical ap- ability to control the manner and plication of a body of highly special- means in which the work product of ized knowledge in fields of human en- the beneficiary is accomplished. deavor, such as architecture, engineer- (2) In cases where the H–1B bene- ing, mathematics, physical sciences, ficiary possesses an ownership interest social sciences, medicine and health, in the petitioning organization or enti- education, business specialties, ac- ty, additional factors that USCIS may counting, law, theology, or the arts; consider to determine if a valid em- and ployment relationship will exist or (2) The attainment of a U.S. bach- continue to exist include, but are not elor’s degree or higher in a directly re- limited to: lated specific specialty, or its equiva- (i) Whether the petitioning entity lent, as a minimum for entry into the can hire or fire the beneficiary or set occupation in the United States. The the rules and parameters of the bene- required specialized studies must be di- ficiary’s work; rectly related to the position. A posi- (ii) Whether and, if so, to what extent tion is not a specialty occupation if at- the petitioner supervises the bene- tainment of a general degree, such as ficiary’s work; business administration or liberal arts, (iii) Whether the beneficiary reports without further specialization, is suffi- to someone higher in the petitioning cient to qualify for the position. While entity; a position may allow a range of degrees (iv) Whether and, if so, to what ex- or apply multiple bodies of highly spe- tent the beneficiary is able to influence cialized knowledge, each of those quali- the petitioning entity; fying degree fields must be directly re- (v) Whether the parties intended that lated to the proffered position. the beneficiary be an employee, as ex- Third-party worksite means a work- pressed in written agreements or con- site, other than the beneficiary’s resi- tracts; and dence in the United States, that is not

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owned or leased, and not operated, by (B) Petitioner requirements. The peti- the petitioner. tioner shall submit the following with United States employer means a per- an H–1B petition involving a specialty son, firm, corporation, company, or occupation: other association or organization in (1) A certification from the Secretary the United States which: of Labor that the petitioner has filed a (1) Engages the beneficiary to work labor condition application with the within the United States, and has a Secretary, bona fide, non-speculative job offer for (2) A statement that it will comply the beneficiary; with the terms of the labor condition (2) Has an employer-employee rela- application for the duration of the tionship with respect to employees alien’s authorized period of stay, under this part; and (3) Evidence that the alien qualifies (3) Has an Internal Revenue Service to perform services in the specialty oc- Tax identification number. cupation as described in paragraph Worksite means the physical location (h)(4)(iii)(A) of this section, and where the work actually is performed (C) Beneficiary qualifications. To qual- by the H–1B nonimmigrant. A ‘‘work- ify to perform services in a specialty site’’ will not include any location that occupation, the alien must meet one of would not be considered a ‘‘worksite’’ the following criteria: for Labor Condition Application (LCA) (1) Hold a United States bacca- purposes. laureate or higher degree required by (iii) Criteria for H–1B petitions involv- the specialty occupation from an ac- ing a specialty occupation—(A) Criteria credited college or university; for specialty occupation position. A prof- (2) Hold a foreign degree determined fered position does not meet the defini- to be equivalent to a United States tion of specialty occupation in para- baccalaureate or higher degree re- graph (h)(4)(ii) of this section unless it quired by the specialty occupation also satisfies at least one of the fol- from an accredited college or univer- lowing criteria: sity; (1) A U.S. baccalaureate or higher de- (3) Hold an unrestricted State li- gree in a directly related specific spe- cense, registration or certification cialty, or its equivalent, is the min- which authorizes him or her to fully imum requirement for entry into the practice the specialty occupation and particular occupation in which the ben- be immediately engaged in that spe- eficiary will be employed; cialty in the state of intended employ- (2) A U.S. baccalaureate or higher de- ment; or gree in a directly related specific spe- (4) Have education, specialized train- cialty, or its equivalent, is the mining, and/or progressively responsible imum requirement for entry into par- experience that is equivalent to com- allel positions at similar organizations pletion of a United States bacca- in the employer’s United States indus- laureate or higher degree in the spe- try; cialty occupation, and have recogni- (3) The employer has an established tion of expertise in the specialty practice of requiring a U.S. bacca- through progressively responsible posi- laureate or higher degree in a directly tions directly related to the specialty. related specific specialty, or its equiva- (D) Equivalence to completion of a col- lent, for the position. The petitioner lege degree. For purposes of paragraph must also establish that the proffered (h)(4)(iii)(C)(4) of this section, equiva- position requires such a directly re- lence to completion of a United States lated specialty degree, or its equiva- baccalaureate or higher degree shall lent, to perform its duties; or mean achievement of a level of knowl- (4) The specific duties of the prof- edge, competence, and practice in the fered position are so specialized, com- specialty occupation that has been de- plex, or unique that they can only be termined to be equal to that of an indi- performed by an individual with a U.S. vidual who has a baccalaureate or baccalaureate or higher degree in a di- higher degree in the specialty and shall rectly related specific specialty, or its be determined by one or more of the equivalent. following:

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

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beneficiary is to perform are in a spe- approval of the petition to be found cialty occupation. The evidence shall qualified to enter the United States conform to the following: and immediately engage in employ- (1) School records, diplomas, degrees, ment in the occupation. affidavits, declarations, contracts, and (B) Temporary licensure. If a tem- similar documentation submitted must porary license is available and the reflect periods of attendance, courses alien is allowed to perform the duties of study, and similar pertinent data, be of the occupation without a permanent executed by the person in charge of the license, the director shall examine the records of the educational or other in- nature of the duties, the level at which stitution, firm, or establishment where the duties are performed, the degree of education or training was acquired. supervision received, and any limita- (2) Affidavits or declarations made tions placed on the alien. If an analysis under penalty of perjury submitted by of the facts demonstrates that the present or former employers or recog- alien under supervision is authorized to nized authorities certifying as to the fully perform the duties of the occupa- recognition and expertise of the bene- tion, H classification may be granted. ficiary shall specifically describe the (C) Duties without licensure. (1) In cer- beneficiary’s recognition and ability in tain occupations which generally re- factual terms and must set forth the quire licensure, a state may allow an expertise of the affiant and the manner individual without licensure to fully in which the affiant acquired such in- practice the occupation under the su- formation. pervision of licensed senior or super- (B) Copies of any written contracts visory personnel in that occupation. In between the petitioner and beneficiary, such cases, USCIS shall examine the or a summary of the terms of the oral nature of the duties and the level at agreement under which the beneficiary which they are performed, as well as will be employed, if there is no written evidence provided by the petitioner as contract. to the identity, physical location, and (C) The petitioner must establish, at credentials of the individual(s) who the time of filing, that it has actual will supervise the alien, and evidence work in a specialty occupation avail- that the petitioner is complying with able for the beneficiary as of the start state requirements. If the facts dem- date of the validity period as requested onstrate that the alien under super- on the petition. When a beneficiary vision will fully perform the duties of will be placed at one or more third- the occupation, H classification may be party worksites, the petitioner must submit evidence such as contracts, granted. work orders, or other similar corrobo- (2) An H–1B petition filed on behalf of rating evidence showing that the bene- an alien who does not have a valid ficiary will perform services in a spe- state or local license, where a license is cialty occupation at the third-party otherwise required to fully perform the worksite(s), and that the petitioner duties in that occupation, may be ap- will have an employer-employee rela- proved for a period of up to 1 year if: tionship with the beneficiary. In ac- (i) The license would otherwise be cordance with 8 CFR 103.2(b) and para- issued provided the alien was in posses- graph (h)(9) of this section, USCIS may sion of a valid Social Security number, request copies of contracts, work or- was authorized for employment in the ders, or other similar corroborating United States, or met a similar tech- evidence on a case-by-case basis in all nical requirement; and cases, regardless of where the bene- (ii) The petitioner demonstrates, ficiary will be placed. through evidence from the state or (v) Licensure for H classification—(A) local licensing authority, that the only General. If an occupation requires a obstacle to the issuance of a license to state or local license for an individual the beneficiary is the lack of a Social to fully perform the duties of the occu- Security number, a lack of employ- pation, an alien (except an H–1C nurse) ment authorization in the United seeking H classification in that occu- States, or a failure to meet a similar pation must have that license prior to technical requirement that precludes

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the issuance of the license to an indi- fication, services of an exceptional na- vidual who is not yet in H–1B status. ture relating to DOD cooperative re- The petitioner must demonstrate that search and development projects or co- the alien is fully qualified to receive production projects shall be those serv- the state or local license in all other ices which require a baccalaureate or respects, meaning that all educational, higher degree, or its equivalent, to per- training, experience, and other sub- form the duties. The existence of this stantive requirements have been met. special program does not preclude the The alien must have filed an applica- DOD from utilizing the regular H–1B tion for the license in accordance with provisions provided the required guide- applicable state and local rules and lines are met. procedures, provided that state or local (2) The requirements relating to a rules or procedures do not prohibit the labor condition application from the alien from filing the license applica- Department of Labor shall not apply to tion without provision of a Social Se- petitions involving DOD cooperative curity number or proof of employment research and development projects or authorization or without meeting a coproduction projects. similar technical requirement. (B) Petitioner requirements. (1) The pe- (3) An H–1B petition filed on behalf of tition must be accompanied by a an alien who has been previously ac- verification letter from the DOD corded H–1B classification under para- project manager for the particular graph (h)(4)(v)(C)(2) of this section may project stating that the alien will be not be approved unless the petitioner working on a cooperative research and demonstrates that the alien has ob- development project or a coproduction tained the required license, is seeking project under a reciprocal Government- to employ the alien in a position re- to-Government agreement adminis- quiring a different license, or the alien tered by DOD. Details about the spe- will be employed in that occupation in cific project are not required. a different location which does not re- (2) The petitioner shall provide a gen- quire a state or local license to fully eral description of the alien’s duties on perform the duties of the occupation. the particular project and indicate the (D) H–1C nurses. For purposes of li- actual dates of the alien’s employment censure, H–1C nurses must provide the on the project. evidence required in paragraph (3) The petitioner shall submit a (h)(3)(iii) of this section. statement indicating the names of (E) Limitation on approval of petition. aliens currently employed on the Where licensure is required in any oc- project in the United States and their cupation, including registered nursing, dates of employment. The petitioner the H petition may only be approved shall also indicate the names of aliens for a period of one year or for the pe- whose employment on the project riod that the temporary license is ended within the past year. valid, whichever is longer, unless the (C) Beneficiary requirement. The peti- alien already has a permanent license tion shall be accompanied by evidence to practice the occupation. An alien that the beneficiary has a bacca- who is accorded H classification in an laureate or higher degree or its equiva- occupation which requires licensure lent in the occupational field in which may not be granted an extension of he or she will be performing services in stay or accorded a new H classification accordance with paragraph (h)(4)(iii)(C) after the one year unless he or she has and/or (h)(4)(iii)(D) of this section. obtained a permanent license in the (vii) Criteria and documentary require- state of intended employment or con- ments for H–1B petitions for aliens of dis- tinues to hold a temporary license tinguished merit and ability in the field of valid in the same state for the period of fashion modeling—(A) General. Promi- the requested extension. nence in the field of fashion modeling (vi) Criteria and documentary require- may be established in the case of an in- ments for H–1B petitions involving DOD dividual fashion model. The work cooperative research and development which a prominent alien is coming to projects or coproduction projects—(A) perform in the United States must re- General. (1) For purposes of H–1B classi- quire the services of a prominent alien.

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A petition for an H–1B alien of distin- (4) Commands a high salary or other guished merit and ability in the field of substantial remuneration for services fashion modeling shall be accompanied evidenced by contracts or other reli- by: able evidence. (1) Documentation, certifications, af- (viii) Criteria and documentary require- fidavits, writings, reviews, or any other ments for H–1B petitions for physicians— required evidence sufficient to estab- (A) Beneficiary’s requirements. An H–1B lish that the beneficiary is a fashion petition for a physician shall be accom- model of distinguished merit and abil- panied by evidence that the physician: ity. Affidavits submitted by present or (1) Has a license or other authoriza- former employers or recognized experts tion required by the state of intended certifying to the recognition and dis- employment to practice medicine, or is tinguished ability of the beneficiary exempt by law therefrom, if the physi- shall specifically describe the bene- cian will perform direct patient care ficiary’s recognition and ability in fac- and the state requires the license or tual terms and must set forth the ex- authorization, and pertise of the affiant and the manner in (2) Has a full and unrestricted license which the affiant acquired such infor- to practice medicine in a foreign state mation. or has graduated from a medical school (2) Copies of any written contracts in the United States or in a foreign between the petitioner and beneficiary, state. or a summary of the terms of the oral (B) Petitioner’s requirements. The peti- agreement under which the beneficiary tioner must establish that the alien will be employed, if there is no written physician: contract. (1) Is coming to the United States (B) Petitioner’s requirements. To estab- primarily to teach or conduct research, lish that a position requires promi- or both, at or for a public or nonprofit nence, the petitioner must establish private educational or research institu- that the position meets one of the fol- tion or agency, and that no patient lowing criteria: care will be performed, except that (1) The services to be performed in- which is incidental to the physician’s volve events or productions which have teaching or research; or a distinguished reputation; (2) The alien has passed the Federa- (2) The services are to be performed tion Licensing Examination (or an for an organization or establishment equivalent examination as determined that has a distinguished reputation for, by the Secretary of Health and Human or record of, employing prominent per- Services) or is a graduate of a United sons. States medical school; and (C) Beneficiary’s requirements. A peti- (i) Has competency in oral and writ- tioner may establish that a beneficiary ten English which shall be dem- is a fashion model of distinguished onstrated by the passage of the English merit and ability by the submission of language proficiency test given by the two of the following forms of docu- Educational Commission for Foreign mentation showing that the alien: Medical Graduates; or (1) Has achieved national or inter- (ii) Is a graduate of a school of medi- national recognition and acclaim for cine accredited by a body or bodies ap- outstanding achievement in his or her proved for that purpose by the Sec- field as evidenced by reviews in major retary of Education. newspapers, trade journals, magazines, (C) Exception for physicians of national or other published material; or international renown. A physician (2) Has performed and will perform who is a graduate of a medical school services as a fashion model for employ- in a foreign state and who is of na- ers with a distinguished reputation; tional or international renown in the (3) Has received recognition for sig- field of medicine is exempt from the re- nificant achievements from organiza- quirements of paragraph (h)(4)(viii)(B) tions, critics, fashion houses, modeling of this section. agencies, or other recognized experts in (5) Petition for alien to perform agricul- the field; or tural labor or services of a temporary or

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seasonal nature (H–2A)—(i) Filing a peti- for citizens, subjects, nationals and tion—(A) General. An H–2A petition residents of that country who are sub- must be filed on the form prescribed by ject to a final order of removal; USCIS with a single valid temporary (B) The number of final and agricultural labor certification. The unexecuted orders of removal against petition may be filed by either the em- citizens, subjects, nationals and resi- ployer listed on the temporary labor dents of that country; certification, the employer’s agent, or (C) The number of orders of removal the association of United States agri- executed against citizens, subjects, na- cultural producers named as a joint tionals and residents of that country; employer on the temporary labor cer- and tification. (D) Such other factors as may serve (B) Multiple beneficiaries. The total the U.S. interest. number of beneficiaries of a petition or (ii) A national from a country not on series of petitions based on the same the list described in paragraph temporary labor certification may not (h)(5)(i)(F)(1)(i) of this section may be a exceed the number of workers indi- beneficiary of an approved H–2A peti- cated on that document. A single petition upon the request of a petitioner or tion can include more than one named potential H–2A petitioner, if the Sec- beneficiary if the total number is 25 or retary of Homeland Security, in his less and does not exceed the number of sole and unreviewable discretion, de- positions indicated on the relating termines that it is in the U.S. interest temporary labor certification. for that alien to be a beneficiary of (C) [Reserved] such petition. Determination of such a (D) Evidence. An H–2A petitioner U.S. interest will take into account must show that the proposed employ- factors, including but not limited to: ment qualifies as a basis for H–2A sta- (A) Evidence from the petitioner tus, and that any named beneficiary demonstrating that a worker with the qualifies for that employment. A peti- required skills is not available either tion will be automatically denied if from among U.S. workers or from filed without the certification evidence among foreign workers from a country required in paragraph (h)(5)(i)(A) of currently on the list described in para- this section and, for each named bene- graph (h)(5)(i)(F)(1)(i) of this section; ficiary, the initial evidence required in (B) Evidence that the beneficiary has paragraph (h)(5)(v) of this section. been admitted to the United States (E) Special filing requirements. Where a previously in H–2A status; certification shows joint employers, a (C) The potential for abuse, fraud, or petition must be filed with an attach- other harm to the integrity of the H–2A ment showing that each employer has visa program through the potential ad- agreed to the conditions of H–2A eligi- mission of a beneficiary from a country bility. A petition filed by an agent not currently on the list; and must be filed with an attachment in (D) Such other factors as may serve which the employer has authorized the the U.S. interest. agent to act on its behalf, has assumed (2) Once published, any designation of full responsibility for all representa- participating countries pursuant to tions made by the agent on its behalf, paragraph (h)(5)(i)(F)(1)(i) of this sec- and has agreed to the conditions of H– tion shall be effective for one year 2A eligibility. after the date of publication in the (F) Eligible Countries. (1)(i) H–2A peti- FEDERAL REGISTER and shall be with- tions may only be approved for nation- out effect at the end of that one-year als of countries that the Secretary of period. Homeland Security has designated as (ii) Effect of the labor certification participating countries, with the con- process. The temporary agricultural currence of the Secretary of State, in a labor certification process determines notice published in the FEDERAL REG- whether employment is as an agricul- ISTER, taking into account factors, in- tural worker, whether it is open to U.S. cluding but not limited to: workers, if qualified U.S. workers are (A) The country’s cooperation with available, the adverse impact of em- respect to issuance of travel documents ployment of a qualified alien, and

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

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labor certification application as of onstrates with such notification that date of the filing of the labor certifi- good cause existed for the untimely no- cation application. For petitions with tification, and DHS, in its discretion, unnamed beneficiaries, such evidence waives the liquidated damages amount. must be submitted at the time of a visa (C) Process. If DHS has determined application or, if a visa is not required, that the petitioner has violated the no- at the time the applicant seeks admis- tification requirements in paragraph sion to the United States. Evidence (h)(5)(vi)(B)(1) of this section and has must be in the form of documents, not received the required notification, issued by the relevant institution(s) or the petitioner will be given written no- organization(s), that show periods of tice and 30 days to reply before being attendance, majors and degrees or cer- given written notice of the assessment tificates accorded. of liquidated damages. (vi) Petitioner consent and notification (D) Failure to pay liquidated damages. requirements—(A) Consent. In filing an If liquidated damages are not paid H–2A petition, a petitioner and each within 10 days of assessment, an H–2A employer consents to allow access to petition may not be processed for that the site by DHS officers where the petitioner or any joint employer shown labor is being performed for the pur- on the petition until such damages are pose of determining compliance with paid. H–2A requirements. (E) Abscondment. An H–2A worker has (B) Agreements. The petitioner agrees absconded if he or she has not reported to the following requirements: for work for a period of 5 consecutive (1) To notify DHS, within 2 workdays, workdays without the consent of the and beginning on a date and in a man- employer. ner specified in a notice published in (vii) Validity. An approved H–2A peti- the FEDERAL REGISTER if: tion is valid through the expiration of (i) An H–2A worker fails to report to the relating certification for the pur- work within 5 workdays of the employ- pose of allowing a beneficiary to seek ment start date on the H–2A petition or issuance of an H–2A nonimmigrant within 5 workdays of the start date es- visa, admission or an extension of stay tablished by his or her employer, for the purpose of engaging in the spe- whichever is later; cific certified employment. (ii) The agricultural labor or services (viii) Admission—(A) Effect of viola- for which H–2A workers were hired is tions of status. An alien may not be ac- completed more than 30 days earlier corded H–2A status who, at any time than the employment end date stated during the past 5 years, USCIS finds to on the H–2A petition; or have violated, other than through no (iii) The H–2A worker absconds from fault of his or her own (e.g., due to an the worksite or is terminated prior to employer’s illegal or inappropriate the completion of agricultural labor or conduct), any of the terms or condi- services for which he or she was hired. tions of admission into the United (2) To retain evidence of such notifi- States as an H–2A nonimmigrant, in- cation and make it available for including remaining beyond the specific spection by DHS officers for a 1-year period of authorized stay or engaging period beginning on the date of the no- in unauthorized employment. tification. To retain evidence of a dif- (B) Period of admission. An alien ad- ferent employment start date if it is missible as an H–2A nonimmigrant changed from that on the petition by shall be admitted for the period of the the employer and make it available for approved petition. Such alien will be inspection by DHS officers for the 1- admitted for an additional period of up year period beginning on the newly-es- to one week before the beginning of the tablished employment start date. approved period for the purpose of trav- (3) To pay $10 in liquidated damages el to the worksite, and a 30-day period for each instance where the employer following the expiration of the H–2A cannot demonstrate that it has competition for the purpose of departure or plied with the notification require- to seek an extension based on a subse- ments, unless, in the case of an un- quent offer of employment. Unless au- timely notification, the employer dem- thorized under 8 CFR 274a.12 or section

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214(n) of the Act, the beneficiary may USCIS was notified that the alien was not work except during the validity pe- terminated or absconded, if applicable. riod of the petition. A petition for a replacement will not (C) Limits on an individual’s stay. Ex- be approved where the requirements of cept as provided in paragraph paragraph (h)(5)(vi) of this section have (h)(5)(viii)(B) of this section, an alien’s not been met. A petition for replace- stay as an H–2A nonimmigrant is lim- ments does not constitute the notifica- ited by the term of an approved petition required by paragraph tion. An alien may remain longer to (h)(5)(vi)(B)(1) of this section. engage in other qualifying temporary (x) Extensions in emergent cir- agricultural employment by obtaining cumstances. In emergent circumstances, an extension of stay. However, an indi- as determined by USCIS, a single H–2A vidual who has held H–2A status for a petition may be extended for a period total of 3 years may not again be not to exceed 2 weeks without an addi- granted H–2A status until such time as tional approved labor certification if he or she remains outside the United filed on behalf of one or more bene- States for an uninterrupted period of 3 ficiaries who will continue to be em- months. An absence from the United ployed by the same employer that pre- States can interrupt the accrual of viously obtained an approved petition time spent as an H–2A nonimmigrant on the beneficiary’s behalf, so long as against the 3-year limit. If the accumu- the employee continues to perform the lated stay is 18 months or less, an ab- same duties and will be employed for sence is interruptive if it lasts for at no longer than 2 weeks after the expi- least 45 days. If the accumulated stay ration of previously-approved H–2A pe- is greater than 18 months, an absence tition. The previously approved H–2A is interruptive if it lasts for at least 2 petition must have been based on an months. Eligibility under paragraph approved temporary labor certifi- (h)(5)(viii)(C) of this section will be de- cation, which shall be considered to be termined in admission, change of sta- extended upon the approval of the ex- tus or extension proceedings. An alien tension of H–2A status. found eligible for a shorter period of H– (xi) Treatment of petitions and alien 2A status than that indicated by the beneficiaries upon a determination that petition due to the application of this fees were collected from alien bene- paragraph (h)(5)(viii)(C) of this section ficiaries—(A) Denial or revocation of peti- shall only be admitted for that abbre- tion. As a condition to approval of an viated period. H–2A petition, no job placement fee or (ix) Substitution of beneficiaries after other compensation (either direct or admission. An H–2A petition may be indirect) may be collected at any time, filed to replace H–2A workers whose including before or after the filing or employment was terminated earlier approval of the petition, from a bene- than the end date stated on the H–2A ficiary of an H–2A petition by a peti- petition and before the completion of tioner, agent, facilitator, recruiter, or work; who fail to report to work within similar employment service as a condi- five days of the employment start date tion of H–2A employment (other than on the H–2A petition or within five the lesser of the fair market value or days of the start date established by actual costs of transportation and any his or her employer, whichever is later; government-mandated passport, visa, or who abscond from the worksite. The or inspection fees, to the extent that petition must be filed with a copy of the payment of such costs and fees by the certification document, a copy of the beneficiary is not prohibited by the approval notice covering the work- statute or Department of Labor regula- ers for which replacements are sought, tions, unless the employer agent, and other evidence required by para- facilitator, recruiter, or employment graph (h)(5)(i)(D) of this section. It service has agreed with the alien to must also be filed with a statement pay such costs and fees). giving each terminated or absconded (1) If USCIS determines that the peti- worker’s name, date and country of tioner has collected, or entered into an birth, termination date, and the reason agreement to collect, such prohibited for termination, and the date that fee or compensation, the H–2A petition

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will be denied or revoked on notice un- presence under section 212(a)(9) of the less the petitioner demonstrates that, Act (8 U.S.C. 1182(a)(9)) for a 30-day pe- prior to the filing of the petition, the riod following the date of the revoca- petitioner has reimbursed the alien in tion for the purpose of departure or ex- full for such fees or compensation, or, tension of stay based upon a subse- where such fee or compensation has quent offer of employment. not yet been paid by the alien worker, (C) Reimbursement as condition to ap- that the agreement has been termi- proval of future H–2A petitions—(1) Filing nated. subsequent H–2A petitions within 1 year (2) If USCIS determines that the peti- of denial or revocation of previous H–2A tioner knew or should have known at petition. A petitioner filing an H–2A pe- the time of filing the petition that the tition within 1 year after the decision beneficiary has paid or agreed to pay denying or revoking on notice an H–2A any facilitator, recruiter, or similar petition filed by the same petitioner on employment service such fees or com- the basis of paragraph (h)(5)(xi)(A) of pensation as a condition of obtaining this section must demonstrate to the the H–2A employment, the H–2A peti- satisfaction of USCIS, as a condition of tion will be denied or revoked on notice approval of such petition, that the pe- unless the petitioner demonstrates titioner or agent, facilitator, recruiter, that, prior to the filing of the petition, or similar employment service has re- the petitioner or the facilitator, reimbursed the beneficiary in full or that cruiter, or similar employment service the petitioner has failed to locate the has reimbursed the alien in full for beneficiary. If the petitioner dem- such fees or compensation or, where onstrates to the satisfaction of USCIS such fee or compensation has not yet that the beneficiary was reimbursed in been paid by the alien worker, that the full, such condition of approval shall be agreement has been terminated. satisfied with respect to any subse- (3) If USCIS determines that the ben- quently filed H–2A petitions, except as eficiary paid the petitioner such fees or provided in paragraph (h)(5)(xi)(C)(2). If compensation as a condition of obtain- the petitioner demonstrates to the sat- ing the H–2A employment after the fil- isfaction of USCIS that it has made ing of the H–2A petition, the petition reasonable efforts to locate the bene- will be denied or revoked on notice. ficiary with respect to each H–2A peti- (4) If USCIS determines that the ben- tion filed within 1 year after the deci- eficiary paid or agreed to pay the sion denying or revoking the previous agent, facilitator, recruiter, or similar H–2A petition on the basis of paragraph employment service such fees or com- (h)(5)(xi)(A) of this section but has pensation as a condition of obtaining failed to do so, such condition of ap- the H–2A employment after the filing proval shall be deemed satisfied with of the H–2A petition and with the respect to any H–2A petition filed 1 knowledge of the petitioner, the peti- year or more after the denial or revocation will be denied or revoked unless tion. Such reasonable efforts shall in- the petitioner demonstrates that the clude contacting any of the bene- petitioner or facilitator, recruiter, or ficiary’s known addresses. similar employment service has reim- (2) Effect of subsequent denied or re- bursed the beneficiary in full or where voked petitions. An H–2A petition filed such fee or compensation has not yet by the same petitioner subsequent to a been paid by the alien worker, that the denial under paragraph (h)(5)(xi)(A) of agreement has been terminated, or no- this section shall be subject to the con- tifies DHS within 2 workdays of obtain- dition of approval described in para- ing knowledge in a manner specified in graph (h)(5)(xi)(C)(1) of this section, re- a notice published in the FEDERAL REG- gardless of prior satisfaction of such ISTER. condition of approval with respect to a (B) Effect of petition revocation. Upon previously denied or revoked petition. revocation of an employer’s H–2A peti- (xii) Treatment of alien beneficiaries tion based upon paragraph (h)(5)(xi)(A) upon revocation of labor certification. of this section, the alien beneficiary’s The approval of an employer’s H–2A pe- stay will be authorized and the alien tition is immediately and automati- will not accrue any period of unlawful cally revoked if the Department of

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Labor revokes the labor certification full for such fees or compensation or upon which the petition is based. Upon the agreement to collect such fee or revocation of an H–2A petition based compensation was terminated before upon revocation of labor certification, the fee or compensation was paid by the alien beneficiary’s stay will be au- the beneficiary. thorized and the alien will not accrue (2) If USCIS determines that the peti- any period of unlawful presence under tioner knew or should have known at section 212(a)(9) of the Act for a 30-day the time of filing the petition that the period following the date of the revoca- beneficiary has paid or agreed to pay tion for the purpose of departure or ex- any agent, facilitator, recruiter, or tension of stay based upon a subse- similar employment service as a condi- quent offer of employment. tion of an offer of the H–2B employ- (6) Petition for alien to perform tem- ment, the H–2B petition will be denied porary nonagricultural services or labor or revoked on notice unless the peti- (H–2B)—(i) Petition—(A) H–2B non- tioner demonstrates that, prior to fil- agricultural temporary worker. An H–2B ing the petition, either the petitioner nonagricultural temporary worker is or the agent, facilitator, recruiter, or an alien who is coming temporarily to similar employment service reim- the United States to perform tem- bursed the beneficiary in full for such porary services or labor without dis- fees or compensation or the agreement placing qualified United States work- to collect such fee or compensation was ers available to perform such services terminated before the fee or compensa- or labor and whose employment is not tion was paid by the beneficiary. adversely affecting the wages and (3) If USCIS determines that the ben- working conditions of United States eficiary paid the petitioner such fees or workers. compensation as a condition of an offer (B) Denial or revocation of petition of H–2B employment after the filing of upon a determination that fees were col- the H–2B petition, the petition will be lected from alien beneficiaries. As a con- denied or revoked on notice. dition of approval of an H–2B petition, no job placement fee or other com- (4) If USCIS determines that the ben- pensation (either direct or indirect) eficiary paid or agreed to pay the may be collected at any time, includ- agent, facilitator, recruiter, or similar ing before or after the filing or ap- employment service such fees or com- proval of the petition, from a bene- pensation after the filing of the H–2B ficiary of an H–2B petition by a peti- petition and that the petitioner knew tioner, agent, facilitator, recruiter, or or had reason to know of the payment similar employment service as a condi- or agreement to pay, the petition will tion of an offer or condition of H–2B be denied or revoked unless the peti- employment (other than the lower of tioner demonstrates that the peti- the actual cost or fair market value of tioner or agent, facilitator, recruiter, transportation to such employment or similar employment service reim- and any government-mandated pass- bursed the beneficiary in full, that the port, visa, or inspection fees, to the ex- parties terminated any agreement to tent that the passing of such costs to pay before the beneficiary paid the fees the beneficiary is not prohibited by or compensation, or that the petitioner statute, unless the employer, agent, has notified DHS within 2 work days of facilitator, recruiter, or similar em- obtaining knowledge, in a manner spec- ployment service has agreed with the ified in a notice published in the FED- beneficiary that it will pay such costs ERAL REGISTER. and fees). (C) Effect of petition revocation. Upon (1) If USCIS determines that the peti- revocation of an employer’s H–2B petitioner has collected or entered into an tion based upon paragraph (h)(6)(i)(B) agreement to collect such fee or com- of this section, the alien beneficiary’s pensation, the H–2B petition will be de- stay will be authorized and the bene- nied or revoked on notice, unless the ficiary will not accrue any period of petitioner demonstrates that, prior to unlawful presence under section the filing of the petition, either the pe- 212(a)(9) of the Act (8 U.S.C. 1182(a)(9)) titioner reimbursed the beneficiary in for a 30-day period following the date of

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the revocation for the purpose of depar- gardless of prior satisfaction of such ture or extension of stay based upon a condition of approval with respect to a subsequent offer of employment. The previously denied or revoked petition. employer shall be liable for the alien (E) Eligible countries. (1) H–2B peti- beneficiary’s reasonable costs of return tions may be approved for nationals of transportation to his or her last place countries that the Secretary of Home- of foreign residence abroad, unless such land Security has designated as par- alien obtains an extension of stay ticipating countries, with the concur- based on an approved H–2B petition rence of the Secretary of State, in a filed by a different employer. notice published in the FEDERAL REG- (D) Reimbursement as condition to ap- ISTER, taking into account factors, in- proval of future H–2B petitions—(1) Filing cluding but not limited to: subsequent H–2B petitions within 1 year (i) The country’s cooperation with re- of denial or revocation of previous H–2B spect to issuance of travel documents petition. A petitioner filing an H–2B pe- for citizens, subjects, nationals and tition within 1 year after a decision de- residents of that country who are sub- nying or revoking on notice an H–2B ject to a final order of removal; petition filed by the same petitioner on (ii) The number of final and the basis of paragraph (h)(6)(i)(B) of unexecuted orders of removal against this section must demonstrate to the citizens, subjects, nationals, and resi- satisfaction of USCIS, as a condition of dents of that country; the approval of the later petition, that (iii) The number of orders of removal the petitioner or agent, facilitator, re- executed against citizens, subjects, na- cruiter, or similar employment service tionals and residents of that country; reimbursed in full each beneficiary of and the denied or revoked petition from (iv) Such other factors as may serve whom a prohibited fee was collected or the U.S. interest. that the petitioner has failed to locate (2) A national from a country not on each such beneficiary despite the peti- the list described in paragraph tioner’s reasonable efforts to locate (h)(6)(i)(E)(1) of this section may be a them. If the petitioner demonstrates to beneficiary of an approved H–2B peti- the satisfaction of USCIS that each tion upon the request of a petitioner or such beneficiary was reimbursed in potential H–2B petitioner, if the Sec- full, such condition of approval shall be retary of Homeland Security, in his satisfied with respect to any subse- sole and unreviewable discretion, de- quently filed H–2B petitions, except as termines that it is in the U.S. interest provided in paragraph (h)(6)(i)(D)(2) of for that alien to be a beneficiary of this section. If the petitioner dem- such petition. Determination of such a onstrates to the satisfaction of USCIS U.S. interest will take into account that it has made reasonable efforts to factors, including but not limited to: locate but has failed to locate each (i) Evidence from the petitioner dem- such beneficiary within 1 year after the onstrating that a worker with the re- decision denying or revoking the pre- quired skills is not available from vious H–2B petition on the basis of among foreign workers from a country paragraph (h)(6)(i)(B) of this section, currently on the list described in para- such condition of approval shall be graph (h)(6)(i)(E)(1) of this section; deemed satisfied with respect to any H– (ii) Evidence that the beneficiary has 2B petition filed 1 year or more after been admitted to the United States the denial or revocation. Such reason- previously in H–2B status; able efforts shall include contacting all (iii) The potential for abuse, fraud, or of each such beneficiary’s known ad- other harm to the integrity of the H–2B dresses. visa program through the potential ad- (2) Effect of subsequent denied or re- mission of a beneficiary from a country voked petitions. An H–2B petition filed not currently on the list; and by the same petitioner subsequent to a (iv) Such other factors as may serve denial under paragraph (h)(6)(i)(B) of the U.S. interest. this section shall be subject to the con- (3) Once published, any designation of dition of approval described in para- participating countries pursuant to graph (h)(6)(i)(D)(1) of this section, re- paragraph (h)(6)(i)(E)(1) of this section

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shall be effective for one year after the employment situation that is other- date of publication in the FEDERAL wise permanent, but a temporary event REGISTER and shall be without effect at of short duration has created the need the end of that one-year period. for a temporary worker. (F) Petitioner agreements and notifica- (2) Seasonal need. The petitioner must tion requirements—(1) Agreements. The establish that the services or labor is petitioner agrees to notify DHS, within traditionally tied to a season of the 2 work days, and beginning on a date year by an event or pattern and is of a and in a manner specified in a notice recurring nature. The petitioner shall published in the FEDERAL REGISTER if: specify the period(s) of time during An H–2B worker fails to report for each year in which it does not need the work within 5 work days after the em- services or labor. The employment is ployment start date stated on the peti- not seasonal if the period during which tion; the nonagricultural labor or serv- the services or labor is not needed is ices for which H–2B workers were hired unpredictable or subject to change or is were completed more than 30 days considered a vacation period for the pe- early; or an H–2B worker absconds titioner’s permanent employees. from the worksite or is terminated (3) Peakload need. The petitoner must prior to the completion of the non- establish that it regularly employs per- agricultural labor or services for which manent workers to perform the serv- he or she was hired. The petitioner also ices or labor at the place of employ- agrees to retain evidence of such noti- ment and that it needs to supplement fication and make it available for in- its permanent staff at the place of em- spection by DHS officers for a one-year ployment on a temporary basis due to period beginning on the date of the no- a seasonal or short-term demand and tification. that the temporary additions to staff ( ) An H–2B worker has 2 Abscondment. will not become a part of the peti- absconded if he or she has not reported tioner’s regular operation. for work for a period of 5 consecutive (4) Intermittent need. The petitioner work days without the consent of the employer. must establish that it has not em- (ii) Temporary services or labor—(A) ployed permanent or full-time workers Definition. Temporary services or labor to perform the services or labor, but under the H–2B classification refers to occasionally or intermittently needs any job in which the petitioner’s need temporary workers to perform services for the duties to be performed by the or labor for short periods. employee(s) is temporary, whether or (iii) Procedures. (A) Prior to filing a not the underlying job can be described petition with the director to classify as permanent or temporary. an alien as an H–2B worker, the peti- (B) Nature of petitioner’s need. Em- tioner shall apply for a temporary ployment is of a temporary nature labor certification with the Secretary when the employer needs a worker for of Labor for all areas of the United a limited period of time. The employer States, except the Territory of Guam. must establish that the need for the In the Territory of Guam, the peti- employee will end in the near, defin- tioning employer shall apply for a tem- able future. Generally, that period of porary labor certification with the time will be limited to one year or less, Governor of Guam. The labor certifi- but in the case of a one-time event cation shall be advice to the director could last up to 3 years. The peti- on whether or not United States work- tioner’s need for the services or labor ers capable of performing the tem- shall be a one-time occurrence, a sea- porary services or labor are available sonal need, a peak load need, or an and whether or not the alien’s employ- intermittent need. ment will adversely affect the wages (1) One-time occurance. The petitioner and working conditions of similarly must establish that it has not em- employed United States workers. ployed workers to perform the services (B) An H–2B petitioner shall be a or labor in the past and that it will not United States employer, a United need workers to perform the services or States agent, or a foreign employer fil- labor in the future, or that it has an ing through a United States agent. For

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purposes of paragraph (h) of this sec- (iv) Labor certifications, except Guam— tion, a foreign employer is any em- (A) Secretary of Labor’s determination. ployer who is not amenable to service An H–2B petition for temporary em- of process in the United States. A for- ployment in the United States, except eign employer may not directly peti- for temporary employment on Guam, tion for an H–2B nonimmigrant but shall be accompanied by an approved must use the services of a United temporary labor certification from the States agent to file a petition for an H– Secretary of Labor stating that quali- 2B nonimmigrant. A United States fied workers in the United States are agent petitioning on behalf of a foreign not available and that the alien’s em- employer must be authorized to file the ployment will not adversely affect petition, and to accept service of proc- wages and working conditions of simi- ess in the United States in proceedings larly employed United States workers. under section 274A of the Act, on behalf (B) Validity of the labor certification. of the employer. The petitioning em- The Secretary of Labor may issue a ployer shall consider available United temporary labor certification for a pe- States workers for the temporary serv- riod of up to one year. ices or labor, and shall offer terms and (C) U.S. Virgin Islands. Temporary conditions of employment which are labor certifications filed under section consistent with the nature of the occu- 101(a)(15)(H)(ii)(b) of the Act for em- pation, activity, and industry in the ployment in the United States Virgin United States. Islands may be approved only for entertainers and athletes and only for peri- (C) The petitioner may not file an H– ods not to exceed 45 days. 2B petition unless the United States (D) Employment start date. Beginning petitioner has applied for a labor cer- with petitions filed for workers for fis- tification with the Secretary of Labor cal year 2010, an H–2B petition must or the Governor of Guam within the state an employment start date that is time limits prescribed or accepted by the same as the date of need stated on each, and has obtained a favorable the approved temporary labor certifi- labor certification determination as re- cation. A petitioner filing an amended quired by paragraph (h)(6)(iv) or H–2B petition due to the unavailability (h)(6)(v) of this section. of originally requested workers may (D) The Governor of Guam shall sepa- state an employment start date later rately establish procedures for admin- than the date of need stated on the pre- istering the temporary labor program viously approved temporary labor cer- under his or her jurisdiction. The Sec- tification accompanying the amended retary of Labor shall separately estab- H–2B petition. lish for the temporary labor program (v) Labor certification for Guam—(A) under his or her jurisdiction, by regula- Governor of Guam’s determination. An H– tion at 20 CFR 655, procedures for ad- 2B petition for temporary employment ministering that temporary labor pro- on Guam shall be accompanied by an gram under his or her jurisdiction, and approved temporary labor certification shall determine the prevailing wage ap- issued by the Governor of Guam stat- plicable to an application for tem- ing that qualified workers in the porary labor certification for that tem- United States are not available to per- porary labor program in accordance form the required services, and that with the Secretary of Labor’s regula- the alien’s employment will not ad- tion at 20 CFR 655.10. versely affect the wages and working (E) After obtaining a favorable deter- conditions of United States resident mination from the Secretary of Labor workers who are similarly employed on or the Governor of Guam, as appro- Guam. priate, the petitioner shall file a peti- (B) Validity of labor certification. The tion on the form prescribed by USCIS, Governor of Guam may issue a tem- accompanied by the labor certification porary labor certification for a period determination and supporting docu- up to one year. ments, with the director having juris- (C)–(D) [Reserved] diction in the area of intended employ- (E) Criteria for Guam labor certifi- ment. cations. The Governor of Guam shall, in

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consultation with the Service, estab- (v) Offer all special considerations, lish systematic methods for deter- such as housing and transportation ex- mining the prevailing wage rates and penses, to all United States resident working conditions for individual occu- workers who applied for the position, pations on Guam and for making deter- indicating those hired and the job-re- minations as to availability of quali- lated reasons for not hiring; fied United States residents. (vi) Meet the prevailing wage rates (1) Prevailing wage and working condi- and working conditions determined tions. The system to determine wages under the wages and working condi- and working conditions must provide tions system by the Governor; and for consideration of wage rates and em- (vii) Agree to meet all Federal and ployment conditions for occupations in Territorial requirements relating to both the private and public sectors, in employment, such as nondiscrimina- Guam and/or in the United States (as tion, occupational safety, and min- defined in section 101(a)(38) of the Act), imum wage requirements. and may not consider wages and work- (F) Approval and publication of em- ing conditions outside of the United ployment systems on Guam—(1) Systems. States. If the system includes The Commissioner of Immigration and utilitzation of advisory opinions and Naturalization must approve the sys- consultations, the opinions must be tem to determine prevailing wages and provided by officially sanctioned working conditions and the system to groups which reflect a balance of the determine availability of United States interests of the private and public sec- resident workers and any future modi- tors, government, unions and manage- fications of the systems prior to imple- ment. mentation. If the Commissioner, in (2) Availability of United States work- consultation with the Secretary of Labor, finds that the systems or modi- ers. The system for determining avail- fied systems meet the requirements of ability of qualified United States work- this section, the Commissioner shall ers must require the prospective em- publish them as a notice in the FED- ployer to: ERAL REGISTER and the Governor shall (i) Advertise the availability of the publish them as a public record in position for a minimum of three con- Guam. secutive days in the newspaper with (2) Approval of construction wage rates. the largest daily circulation on Guam; The Commissioner must approve spe- (ii) Place a job offer with an appro- cific wage data and rates used for con- priate agency of the Territorial Gov- struction occupations on Guam prior ernment which operates as a job refer- to implementation of new rates. The ral service at least 30 days in advance Governor shall submit new wage sur- of the need for the services to com- vey data and proposed rates to the mence, except that for applications Commissioner for approval at least from the armed forces of the United eight weeks before authority to use ex- States and those in the entertainment isting rates expires. Surveys shall be industry, the 30-day period may be re- conducted at least every two years, un- duced by the Governor to 10 days; less the Commissioner prescribes a (iii) Conduct appropriate recruitment lesser period. in other areas of the United States and (G) Reporting. The Governor shall its territories if sufficient qualified provide the Commissioner statistical United States construction workers are data on temporary labor certification not available on Guam to fill a job. The workload and determinations. This in- Governor of Guam may require a job formation shall be submitted quarterly order to be placed more than 30 days in no later than 30 days after the quarter advance of need to accommodate such ends. recruitment; (H) Invalidation of temporary labor cer- (iv) Report to the appropriate agency tification issued by the Governor of the names of all United States resident Guam—(1) General. A temporary labor workers who applied for the position, certification issued by the Governor of indicating those hired and the job-re- Guam may be invalidated by a director lated reasons for not hiring; if it is determined by the director or a

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court of law that the certification re- the period of authorized admission pur- quest involved fraud or willful mis- suant to section 214(c)(5) of the Act. If representation. A temporary labor cer- the beneficiary voluntarily terminates tification may also be invalidated if his or her employment prior to the ex- the director determines that the cer- piration of the validity of the petition, tification involved gross error. the alien has not been dismissed. If the (2) Notice of intent to invalidate. If the beneficiary believes that the employer director intends to invalidate a tem- has not complied with this provision, porary labor certification, a notice of the beneficiary shall advise the Service intent shall be served upon the em- Center which adjudicated the petition ployer, detailing the reasons for the in- in writing. The complaint will be re- tended invalidation. The employer tained in the file relating to the peti- shall have 30 days in which to file a tion. Within the context of this para- written response in rebuttal to the no- graph, the term ‘‘abroad’’ means the tice of intent. The director shall con- alien’s last place of foreign residence. sider all evidence submitted upon re- This provision applies to any employer buttal in reaching a decision. whose offer of employment became the (3) Appeal of invalidation. An em- basis for the alien obtaining or con- ployer may appeal the invalidation of a tinuing H–2B status. temporary labor certification in ac- (vii) Traded professional H–2B athletes. cordance with part 103 of this chapter. In the case of a professional H–2B ath- (vi) Evidence for H–2B petitions. An H– lete who is traded from one organiza- 2B petition shall be accompanied by: tion to another organization, employ- (A) Labor certification. An approved ment authorization for the player will temporary labor certification issued by automatically continue for a period of the Secretary of Labor or the Governor 30 days after the player’s acquisition of Guam, as appropriate; by the new organization, within which (B) [Reserved] time the new organization is expected (C) Alien’s qualifications. In petitions to file a new application or petition for where the temporary labor certifi- H–2B nonimmigrant classification. If a cation application requires certain new application or petition is not filed education, training, experience, or spe- within 30 days, employment authoriza- cial requirements of the beneficiary tion will cease. If a new application or who is present in the United States, petition is filed within 30 days, the pro- documentation that the alien qualifies fessional athlete shall be deemed to be for the job offer as specified in the ap- in valid H–2B status, and employment plication for such temporary labor cer- shall continue to be authorized, until tification. This requirement also ap- the petition is adjudicated. If the new plies to the named beneficiary who is petition is denied, employment author- abroad on the basis of special provi- ization will cease. sions stated in paragraph (h)(2)(iii) of (viii) Substitution of beneficiaries. this section; Beneficiaries of H–2B petitions that are (D) Statement of need. A statement de- approved for named or unnamed bene- scribing in detail the temporary situa- ficiaries who have not been admitted tion or conditions which make it nec- may be substituted only if the em- essary to bring the alien to the United ployer can demonstrate that the total States and whether the need is a one- number of beneficiaries will not exceed time occurrence, seasonal, peakload, or the number of beneficiaries certified in intermittent. If the need is seasonal, the original temporary labor certifi- peakload, or intermittent, the state- cation. Beneficiaries who were admit- ment shall indicate whether the situated to the United States may not be tion or conditions are expected to be substituted without a new petition ac- recurrent; or companied by a newly approved tem- (E) Liability for transportation costs. porary labor certification. The employer will be liable for the rea- (A) To substitute beneficiaries who sonable costs of return transportation were previously approved for consular of the alien abroad, if the alien is dis- processing but have not been admitted missed from employment for any rea- with aliens who are outside of the son by the employer before the end of United States, the petitioner shall, by

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letter and a copy of the petition ap- to physicians, who are statutorily in- proval notice, notify the consular of- eligible to use H–3 classification in fice at which the alien will apply for a order to receive any type of graduate visa or the port of entry where the medical education or training. alien will apply for admission. The pe- (A) Externs. A hospital approved by titioner shall also submit evidence of the American Medical Association or the qualifications of beneficiaries to the American Osteopathic Association the consular office or port of entry for either an internship or residency prior to issuance of a visa or admis- program may petition to classify as an sion, if applicable. H–3 trainee a medical student attend- (B) To substitute beneficiaries who ing a medical school abroad, if the were previously approved for consular alien will engage in employment as an processing but have not been admitted extern during his/her medical school with aliens who are currently in the vacation. United States, the petitioner shall file an amended petition with fees at the (B) Nurses. A petitioner may seek H– USCIS Service Center where the origi- 3 classification for a nurse who is not nal petition was filed, with a copy of H–1 if it can be established that there the original petition approval notice, a is a genuine need for the nurse to re- statement explaining why the substi- ceive a brief period of training that is tution is necessary, evidence of the unavailable in the alien’s native coun- qualifications of beneficiaries, if appli- try and such training is designed to cable, evidence of the beneficiaries’ benefit the nurse and the overseas em- current status in the United States, ployer upon the nurse’s return to the and evidence that the number of bene- country of origin, if: ficiaries will not exceed the number al- (1) The beneficiary has obtained a located on the approved temporary full and unrestricted license to prac- labor certification, such as employ- tice professional nursing in the coun- ment records or other documentary try where the beneficiary obtained a evidence to establish that the number nursing education, or such education of visas sought in the amended petition was obtained in the United States or were not already issued. The amended Canada; and petition must retain a period of em- (2) The petitioner provides a state- ployment within the same half of the ment certifying that the beneficiary is same fiscal year as the original peti- fully qualified under the laws gov- tion. Otherwise, a new temporary labor erning the place where the training certification issued by DOL or the Gov- will be received to engage in such ernor of Guam and subsequent H–2B pe- training, and that under those laws the tition are required. petitioner is authorized to give the (ix) Enforcement. The Secretary of beneficiary the desired training. Labor may investigate employers to (ii) Evidence required for petition in- enforce compliance with the conditions volving alien trainee—(A) Conditions. of a petition and Department of Labor- The petitioner is required to dem- approved temporary labor certification onstrate that: to admit or otherwise provide status to (1) The proposed training is not avail- an H–2B worker. able in the alien’s own country; (7) Petition for alien trainee or participant in a special education exchange vis- (2) The beneficiary will not be placed itor program (H–3)—(i) Alien trainee. The in a position which is in the normal op- H–3 trainee is a nonimmigrant who eration of the business and in which seeks to enter the United States at the citizens and resident workers are regu- invitation of an organization or indi- larly employed; vidual for the purpose of receiving (3) The beneficiary will not engage in training in any field of endeavor, such productive employment unless such as agriculture, commerce, communica- employment is incidental and nec- tions, finance, government, transpor- essary to the training; and tation, or the professions, as well as (4) The training will benefit the bene- training in a purely industrial estab- ficiary in pursuing a career outside the lishment. This category shall not apply United States.

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(B) Description of training program. program must be coming to the United Each petition for a trainee must in- States to participate in a structured clude a statement which: program which provides for practical (1) Describes the type of training and training and experience in the edu- supervision to be given, and the struc- cation of children with physical, men- ture of the training program; tal, or emotional disabilities. (2) Sets forth the proportion of time (2) The petition must be filed by a fa- that will be devoted to productive em- cility which has professionally trained ployment; staff and a structured program for pro- (3) Shows the number of hours that viding education to children with dis- will be spent, respectively, in class- abilities, and for providing training room instruction and in on-the-job and hands-on experience to partici- training; pants in the special education ex- (4) Describes the career abroad for change visitor program. which the training will prepare the (3) The requirements in this section alien; for alien trainees shall not apply to pe- (5) Indicates the reasons why such titions for participants in a special training cannot be obtained in the education exchange visitor program. alien’s country and why it is necessary (B) Evidence. An H–3 petition for a for the alien to be trained in the participant in a special education ex- United States; and change visitor program shall be accom- (6) Indicates the source of any remu- panied by: neration received by the trainee and (1) A description of the training pro- any benefit which will accrue to the pe- gram and the facility’s professional titioner for providing the training. staff and details of the alien’s partici- (iii) Restrictions on training program pation in the training program (any for alien trainee. A training program custodial care of children must be inci- may not be approved which: dental to the training), and (A) Deals in generalities with no (2) Evidence that the alien partici- fixed schedule, objectives, or means of pant is nearing completion of a bacca- evaluation; laureate or higher degree in special (B) Is incompatible with the nature education, or already holds such a de- of the petitioner’s business or enter- gree, or has extensive prior training prise; and experience in teaching children (C) Is on behalf of a beneficiary who with physical, mental, or emotional already possesses substantial training disabilities. and expertise in the proposed field of (8) Numerical limits—(i) Limits on af- training; fected categories. During each fiscal (D) Is in a field in which it is un- year, the total number of aliens who likely that the knowledge or skill will can be provided nonimmigrant classi- be used outside the United States; fication is limited as follows: (E) Will result in productive employ- (A) Aliens classified as H–1B non- ment beyond that which is incidental immigrants, excluding those involved and necessary to the training; in Department of Defense research and (F) Is designed to recruit and train development projects or coproduction aliens for the ultimate staffing of do- projects, may not exceed the limits mestic operations in the United States; identified in section 214(g)(1)(A) of the (G) Does not establish that the peti- Act. tioner has the physical plant and suffi- (B) Aliens classified as H–1B non- ciently trained manpower to provide immigrants to work for DOD research the training specified; or and development projects or coproduc- (H) Is designed to extend the total al- tion projects may not exceed 100 at any lowable period of practical training time. previously authorized a nonimmigrant (C) Aliens classified as H–2B non- student. immigrants may not exceed 66,000. (iv) Petition for participant in a special (D) Aliens classified as H–3 non- education exchange visitor program—(A) immigrant participants in a special General Requirements. (1) The H–3 par- education exchange visitor program ticipant in a special education training may not exceed 50.

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(E) Aliens classified as H–1C non- cally through the USCIS website immigrants may not exceed 500 in a fis- (www.uscis.gov). To be eligible to file a cal year. petition for a beneficiary who may be (ii) Procedures. (A) Each alien issued counted against the H–1B regular cap a visa or otherwise provided non- or the H–1B advanced degree exemption immigrant status under sections for a particular fiscal year, a registra- 101(a)(15)(H)(i)(b), 101(a)(15)(H)(i)(c), or tion must be properly submitted in ac- 101(a)(15)(H)(ii) of the Act shall be cordance with 8 CFR 103.2(a)(1), para- counted for purposes of any applicable graph (h)(8)(iii) of this section and the numerical limit, unless otherwise ex- form instructions. A petitioner may empt from such numerical limit. Re- file an H–1B cap-subject petition on be- quests for petition extension or exten- half of a registered beneficiary only sion of an alien’s stay shall not be after the petitioner’s registration for counted for the purpose of the numer- that beneficiary has been selected for ical limit. The spouse and children of that fiscal year. USCIS will notify the principal H aliens are classified as H–4 petitioner of the selection of the peti- nonimmigrants and shall not be count- tioner’s registered beneficiaries. ed against numerical limits applicable (2) Limitation on beneficiaries. A peti- to principals. tioner must electronically submit a (B) When an approved petition is not separate registration to file a petition used because the beneficiary(ies) does for each beneficiary it seeks to reg- not apply for admission to the United ister, and each beneficiary must be States, the petitioner shall notify the named. A petitioner may only submit Service Center Director who approved one registration per beneficiary in any the petition that the number(s) has not fiscal year. If a petitioner submits been used. The petition shall be re- more than one registration per bene- voked pursuant to paragraph (h)(11)(ii) ficiary in the same fiscal year, all reg- of this section and USCIS will take istrations filed by that petitioner re- into account the unused number during lating to that beneficiary for that fis- the appropriate fiscal year. cal year will be considered invalid. (C) If the total numbers available in (3) Initial registration period. The an- a fiscal year are used, new petitions nual initial registration period will and the accompanying fee shall be re- last a minimum of 14 calendar days and jected and returned with a notice that will start at least 14 calendar days be- numbers are unavailable for the par- fore the earliest date on which H–1B ticular nonimmigrant classification cap-subject petitions may be filed for a until the beginning of the next fiscal particular fiscal year, consistent with year. Petitions received after the total paragraph (h)(2)(i)(I) of this section. numbers available in a fiscal year are USCIS will announce the start and end used stating that the alien bene- dates of the initial registration period ficiaries are exempt from the numer- on the USCIS website at www.uscis.gov ical limitation will be denied and filing for each fiscal year. USCIS will an- fees will not be returned or refunded if nounce the start of the initial registra- USCIS later determines that such tion period at least 30 calendar days in beneficiaries are subject to the numer- advance of such date. ical limitation. (4) Limitation on requested start date. A (iii) H–1B numerical limitations—(A) petitioner may submit a registration Registration—(1) Registration require- during the initial registration period ment. Except as provided in paragraph only if the requested start date for the (h)(8)(iv) of this section, before a peti- beneficiary is the first day for the ap- tioner can file an H–1B cap-subject pe- plicable fiscal year. If USCIS keeps the tition for a beneficiary who may be registration period open beyond the counted under section 214(g)(1)(A) of initial registration period, or deter- the Act (‘‘H–1B regular cap’’) or eligi- mines that it is necessary to re-open ble for exemption under section the registration period, a petitioner 214(g)(5)(C) of the Act (‘‘H–1B advanced may submit a registration with a re- degree exemption’’), the petitioner quested start date after the first busi- must register to file a petition on be- ness day for the applicable fiscal year, half of an alien beneficiary electroni- as long as the date of registration is no

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more than 6 months before the re- date. USCIS will randomly select from quested start date. among the registrations properly sub- (5) Regular cap selection. In deter- mitted during the initial registration mining whether there are enough reg- period the number of registrations istrations to meet the H–1B regular deemed necessary to meet the H–1B cap, USCIS will consider all properly regular cap. This random selection will submitted registrations relating to be made via computer-generated selec- beneficiaries that may be counted tion. under section 214(g)(1)(A) of the Act, (6) Advanced degree exemption selec- including those that may also be eligi- tion. After USCIS has determined it ble for exemption under section will no longer accept registrations 214(g)(5)(C) of the Act. under section 214(g)(1)(A) of the Act, (i) Fewer registrations than needed to USCIS will determine whether there is meet the H–1B regular cap. At the end of a sufficient number of remaining reg- the annual initial registration period, istrations to meet the H–1B advanced if USCIS determines that it has re- degree exemption. ceived fewer registrations than needed (i) Fewer registrations than needed to to meet the H–1B regular cap, USCIS meet the H–1B advanced degree exemption will notify all petitioners that have numerical limitation. If USCIS deter- properly registered that their registra- mines that it has received fewer reg- tions have been selected. USCIS will istrations than needed to meet the H– keep the registration period open be- 1B advanced degree exemption numer- yond the initial registration period, ical limitation, USCIS will notify all until it determines that it has received petitioners that have properly reg- a sufficient number of registrations to meet the H–1B regular cap. Once USCIS istered that their registrations have has received a sufficient number of reg- been selected. USCIS will continue to istrations to meet the H–1B regular accept registrations to file petitions cap, USCIS will no longer accept reg- that may be eligible for the H–1B ad- istrations for petitions subject to the vanced degree exemption under section H–1B regular cap under section 214(g)(5)(C) of the Act until USCIS de- 214(g)(1)(A). USCIS will monitor the termines that it has received enough number of registrations received and registrations to meet the H–1B ad- will notify the public of the date that vanced degree exemption numerical USCIS has received the necessary num- limitation. USCIS will monitor the ber of registrations (the ‘‘final reg- number of registrations received and istration date’’). The day the public is will notify the public of the date that notified will not control the applicable USCIS has received the necessary num- final registration date. When necessary ber of registrations (the ‘‘final reg- to ensure the fair and orderly alloca- istration date’’). The day the public is tion of numbers under Section notified will not control the applicable 214(g)(1)(A) of the Act, USCIS may ran- final registration date. When necessary domly select the remaining number of to ensure the fair and orderly alloca- registrations deemed necessary to meet tion of numbers under Section the H–1B regular cap from among the 214(g)(1)(A) of the Act, USCIS may ran- registrations received on the final reg- domly select the remaining number of istration date. This random selection registrations deemed necessary to meet will be made via computer-generated the H–1B advanced degree exemption selection. numerical limitation from among the (ii) Sufficient registrations to meet the registrations properly submitted on H–1B regular cap during initial registra- the final registration date. This ran- tion period. At the end of the initial dom selection will be made via com- registration period, if USCIS deter- puter-generated selection. mines that it has received more than (ii) Sufficient registrations to meet the sufficient registrations to meet the H– H–1B advanced degree exemption numer- 1B regular cap, USCIS will no longer ical limitation. If USCIS determines accept registrations under section that it has received more than enough 214(g)(1)(A) of the Act and will notify registrations to meet the H–1B ad- the public of the final registration vanced degree exemption numerical

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limitation, USCIS will no longer ac- of the re-opened registration period on cept registrations that may be eligible the USCIS website at www.uscis.gov. for exemption under section 214(g)(5)(C) (B) Confirmation. Petitioners will re- of the Act and will notify the public of ceive electronic notification that the final registration date. USCIS will USCIS has accepted a registration for randomly select the number of reg- processing. istrations needed to meet the H–1B ad- (C) Notification to file H–1B cap-subject vanced degree exemption numerical petitions. USCIS will notify all peti- limitation from among the remaining tioners with selected registrations that registrations that may be counted the petitioner is eligible to file an H–1B against the advanced degree exemption cap-subject petition on behalf of the numerical limitation. This random se- beneficiary named in the notice within lection will be made via computer-gen- the filing period indicated on the no- erated selection. tice. (7) Increase to the number of registra- (D) H–1B cap-subject petition filing fol- tions projected to meet the H–1B regular lowing registration—(1) Filing procedures. cap or advanced degree exemption alloca- In addition to any other applicable re- tions in a fiscal year. Unselected reg- quirements, a petitioner may file an H– istrations will remain on reserve for 1B petition for a beneficiary that may the applicable fiscal year. If USCIS de- be counted under section 214(g)(1)(A) or termines that it needs to increase the eligible for exemption under section number of registrations projected to 214(g)(5)(C) of the Act only if the peti- meet the H–1B regular cap or advanced tioner’s registration to file a petition degree exemption allocation, and select on behalf of the beneficiary named in additional registrations, USCIS will se- the petition was selected beforehand by lect from among the registrations that USCIS and only within the filing pe- are on reserve a sufficient number to riod indicated on the notice. A peti- meet the H–1B regular cap or advanced tioner may not substitute the bene- degree exemption numerical limita- ficiary named in the original registration, as applicable. If all of the registrations on reserve are selected and tion or transfer the registration to an- there are still fewer registrations than other petitioner. If a petitioner files an needed to meet the H–1B regular cap or H–1B cap-subject petition based on a advanced degree exemption numerical registration that was not selected be- limitation, as applicable, USCIS may forehand by USCIS, or based on a reg- reopen the applicable registration pe- istration for a different beneficiary riod until USCIS determines that it than the beneficiary named in the peti- has received a sufficient number of reg- tion, the H–1B cap-subject petition will istrations projected as needed to meet be denied or rejected. the H–1B regular cap or advanced de- (2) Filing period. An H–1B cap-subject gree exemption numerical limitation. petition must be properly filed within USCIS will monitor the number of reg- the filing period indicated on the rel- istrations received and will notify the evant selection notice. The filing pe- public of the date that USCIS has re- riod for filing the H–1B cap-subject pe- ceived the necessary number of reg- tition will be at least 90 days. If peti- istrations (the new ‘‘final registration tioners do not meet these require- date’’). The day the public is notified ments, USCIS will deny or reject the will not control the applicable final H–1B cap-subject petition. registration date. When necessary to (E) Calculating the number of registra- ensure the fair and orderly allocation tions needed to meet the H–1B regular cap of numbers, USCIS may randomly se- and H–1B advanced degree exemption al- lect the remaining number of registra- location. When calculating the number tions deemed necessary to meet the H– of registrations needed to meet the H– 1B regular cap or advanced degree ex- 1B regular cap and the H–1B advanced emption numerical limitation from degree exemption numerical limitation among the registrations properly sub- for a given fiscal year, USCIS will take mitted on the final registration date. If into account historical data related to the registration period will be re- approvals, denials, revocations, and opened, USCIS will announce the start other relevant factors. If necessary,

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USCIS may increase those numbers or entity and those job duties directly throughout the fiscal year. and predominately further the essen- (F) Cap exemptions under sections tial purpose, mission, objectives or 214(g)(5)(A) and (B) of the Act. An alien functions of the qualifying institution, is not subject to the numerical limita- organization or entity, namely, either tions identified in section 214(g)(1)(A) higher education, nonprofit research or of the Act if the alien qualifies for an government research. The burden is on exemption under section 214(g)(5) of the the H–1B petitioner to establish that Act. For purposes of section 214(g)(5)(A) there is a nexus between the duties to and (B) of the Act: be performed by the H–1B beneficiary (1) ‘‘Institution of higher education’’ and the essential purpose, mission, ob- has the same definition as described at jectives or functions of the qualifying section 101(a) of the Higher Education institution, organization or entity. Act of 1965 (20 U.S.C. 1001(a)). (5) If cap-exempt employment ceases, (2) A nonprofit entity shall be consid- and if the alien is not the beneficiary ered to be related to or affiliated with of a new cap-exempt petition, then the an institution of higher education if it alien will be subject to the cap if not satisfies any one of the following con- previously counted within the 6-year ditions: period of authorized admission to (i) The nonprofit entity is connected which the cap-exempt employment ap- to or associated with an institution of plied. If cap-exempt employment con- higher education through shared own- verts to cap-subject employment sub- ership or control by the same board or ject to the numerical limitations in federation; section 214(g)(1)(A) of the Act, USCIS (ii) The nonprofit entity is operated may revoke the petition authorizing by an institution of higher education; such employment consistent with para- (iii) The nonprofit entity is attached graph (h)(11)(iii) of this section. to an institution of higher education as (6) Concurrent H–1B employment in a a member, branch, cooperative, or sub- cap-subject position of an alien that sidiary; or qualifies for an exemption under sec- (iv) The nonprofit entity has entered tion 214(g)(5)(A) or (B) of the Act shall into a formal written affiliation agree- not subject the alien to the numerical ment with an institution of higher edu- limitations in section 214(g)(1)(A) of cation that establishes an active work- the Act. When petitioning for concur- ing relationship between the nonprofit rent cap-subject H–1B employment, the entity and the institution of higher petitioner must demonstrate that the education for the purposes of research H–1B beneficiary is employed in valid or education, and a fundamental activ- H–1B status under a cap exemption ity of the nonprofit entity is to di- under section 214(g)(5)(A) or (B) of the rectly contribute to the research or Act, the beneficiary’s employment education mission of the institution of with the cap-exempt employer is ex- higher education. pected to continue after the new cap- (3) An entity is considered a ‘‘non- subject petition is approved, and the profit entity’’ if it meets the definition beneficiary can reasonably and concur- described at paragraph (h)(19)(iv) of rently perform the work described in this section. ‘‘Nonprofit research orga- each employer’s respective positions. nization’’ and ‘‘governmental research (i) Validity of a petition for concur- organization’’ have the same defini- rent cap-subject H–1B employment ap- tions as described at paragraph proved under paragraph (h)(8)(iii)(F)(6) (h)(19)(iii)(C) of this section. of this section cannot extend beyond (4) An H–1B beneficiary who is not di- the period of validity specified for the rectly employed by a qualifying insti- cap-exempt H–1B employment. tution, organization or entity identi- (ii) If H–1B employment subject to a fied in section 214(g)(5)(A) or (B) of the cap exemption under section Act shall qualify for an exemption 214(g)(5)(A) or (B) of the Act is termi- under such section if the H–1B bene- nated by a petitioner, or otherwise ficiary will spend the majority of his or ends before the end of the validity pe- her work time performing job duties at riod listed on the approved petition a qualifying institution, organization filed on the alien’s behalf, the alien

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who is concurrently employed in a cap- ance with 8 CFR 103.2 relating to bene- subject position becomes subject to the ficiaries that may be counted under numerical limitations in section section 214(g)(1)(A) of the Act, includ- 214(g)(1)(A) of the Act, unless the alien ing those that may be eligible for ex- was previously counted with respect to emption under section 214(g)(5)(C) of the 6-year period of authorized H–1B the Act. When calculating the number admission to which the petition applies of petitions needed to meet the H–1B or another exemption applies. If such regular cap USCIS will take into ac- an alien becomes subject to the numer- count historical data related to approv- ical limitations in section 214(g)(1)(A) als, denials, revocations, and other rel- of the Act, USCIS may revoke the cap- evant factors. USCIS will monitor the subject petition described in paragraph number of petitions received and will (h)(8)(iii)(F)(6) of this section con- announce on its website the date that sistent with paragraph (h)(11)(iii) of it receives the number of petitions pro- this section. jected as needed to meet the H–1B reg- (iv) Suspension of registration require- ular cap (the ‘‘final receipt date’’). The ment—(A) Determination to suspend reg- date the announcement is posted will istration requirement. USCIS may sus- not control the final receipt date. pend the H–1B registration require- When necessary to ensure the fair and ment, in its discretion, if it determines orderly allocation of numbers under that the registration process is inoper- the H–1B regular cap, USCIS may ran- able for any reason. If USCIS suspends domly select via computer-generated the registration requirement, USCIS selection the remaining number of pe- will make an announcement of the sus- titions deemed necessary to meet the pension on its website (http:// H–1B regular cap from among the peti- www.uscis.gov) along with the opening tions properly submitted on the final date of the applicable H–1B cap-subject receipt date. If the final receipt date is petition-filing period. any of the first five business days on (B) Petition-based cap-subject selections which petitions subject to the H–1B in event of suspended registration process. regular cap may be received (i.e., if the In any year in which USCIS suspends cap is reached on any one of the first the H–1B registration process for cap- five business days that filings can be subject petitions, USCIS will allow for made), USCIS will randomly select the submission of H–1B petitions not- from among all the petitions properly withstanding paragraph (h)(8)(iii) of submitted during the first five business this section and conduct a cap-subject days the number of petitions deemed selection process based on the petitions necessary to meet the H–1B regular that are received. USCIS will deny pe- cap. After any random selection under titions indicating that they are exempt this paragraph (h)(8)(iv)(B)(1), petitions from the H–1B regular cap and the H– that are subject to the H–1B regular 1B advanced degree exemption if cap and that do not qualify for the H– USCIS determines, after the final re- 1B advanced degree exemption will be ceipt date, that they are not eligible rejected if they are not randomly se- for the exemption sought. If USCIS de- lected or were received after the final termines, on or before the final receipt receipt date. date, that the petition is not eligible (2) Advanced degree exemption selection for the exemption sought, USCIS may in event of suspended registration process. consider the petition under the applica- After USCIS has received a sufficient ble numerical allocation and proceed number of petitions to meet the H–1B with processing of the petition. If a pe- regular cap and, as applicable, com- tition is denied under this paragraph pleted the random selection process of (h)(8)(iv)(B), USCIS will not return or petitions for the H–1B regular cap, refund filing fees. USCIS will determine whether there is (1) H–1B regular cap selection in event a sufficient number of remaining peti- of suspended registration process. In de- tions to meet the H–1B advanced determining whether there are enough H– gree exemption numerical limitation. 1B cap-subject petitions to meet the H– When calculating the number of peti- 1B regular cap, USCIS will consider all tions needed to meet the H–1B ad- petitions properly submitted in accord- vanced degree exemption numerical

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limitation USCIS will take into ac- fiscal year shall be allocated in the fol- count historical data related to approv- lowing manner: als, denials, revocations, and other rel- (A) For each fiscal year, the number evant factors. USCIS will monitor the of visas issued to the states of Cali- number of petitions received and will fornia, Florida, Illinois, Michigan, New announce on its website the date that York, Ohio, Pennsylvania, and Texas it receives the number of petitions pro- shall not exceed 50 each (except as projected as needed to meet the H–1B ad- vided for in paragraph (h)(8)(vi)(C) of vanced degree exemption numerical this section). limitation (the ‘‘final receipt date’’). (B) For each fiscal year, the number The date the announcement is posted of visas issued to the states not listed will not control the final receipt date. in paragraph (h)(8)(vi)(A) of this sec- When necessary to ensure the fair and tion shall not exceed 25 each (except as orderly allocation of numbers under provided for in paragraph (h)(8)(vi)(C) the H–1B advanced degree exemption, of this section). USCIS may randomly select via com- (C) If the total number of visas avail- puter-generated selection the remain- able during the first three quarters of a ing number of petitions deemed nec- fiscal year exceeds the number of ap- essary to meet the H–1B advanced de- provable H–1C petitions during those gree exemption numerical limitation quarters, visas may be issued during from among the petitions properly sub- the last quarter of the fiscal year to mitted on the final receipt date. If the nurses who will be working in a state whose cap has already been reached for final receipt date is any of the first five that fiscal year. business days on which petitions sub- (D) When an approved H–1C petition ject to the H–1B advanced degree ex- is not used because the alien(s) does emption may be received (i.e., if the nu- not obtain H–1C classification, e.g., the merical limitation is reached on any alien is never admitted to the United one of the first five business days that States, or the alien never worked for filings can be made), USCIS will ran- the facility, the facility must notify domly select from among all the peti- the Service according to the instructions properly submitted during the tions contained in paragraph (h)(11)(ii) first five business days the number of of this section. The Service will sub- petitions deemed necessary to meet the tract H–1C petitions approved in the H–1B advanced degree exemption nu- current fiscal year that are later re- merical limitation. After any random voked from the total count of approved selection under this paragraph H–1C petitions, provided that the alien (h)(8)(iv)(B)(2), petitions that are not never commenced employment with randomly selected or that were re- the facility. ceived after the final receipt date will (E) If the number of alien nurses in- be rejected. cluded in an H–1C petition exceeds the (v) Severability. The requirement to number available for the remainder of submit a registration for an H–1B cap- a fiscal year, the Service shall approve subject petition and the selection proc- the petition for the beneficiaries to the ess based on properly submitted reg- allowable amount in the order that istrations under paragraphs (h)(8)(iii) they are listed on the petition. The re- of this section are intended to be sever- maining beneficiaries will be consid- able from paragraph (h)(8)(iv) of this ered for approval in the subsequent fis- section. In the event paragraph cal year. (h)(8)(iii) is not implemented, or in the (F) Once the 500 cap has been event that paragraph (h)(8)(iv) is not reached, the Service will reject any implemented, DHS intends that either new petitions subsequently filed re- of those provisions be implemented as questing a work start date prior to the an independent rule, without prejudice first day of the next fiscal year. to petitioners in the United States (vii) H–2B numerical limitations. When under this regulation, as consistent calculating the numerical limitations with law. under section 214(g)(1)(B) and 214(g)(10) (vi) H–1C numerical limitations. The 500 of the Act for a given fiscal year, H–1C nonimmigrant visas issued each USCIS will make numbers available to

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petitions in the order in which the pe- part. The approval notice will cover titions are filed. USCIS will make pro- only those beneficiaries approved for jections of the number of petitions nec- classification under section essary to achieve the numerical limit 101(a)(15)(H) of the Act. of approvals, taking into account his- (B) Where the petition is approved torical data related to approvals, deni- with an earlier validity period end date als, revocations, and other relevant than requested by the petitioner, the factors. USCIS will monitor the num- approval notice will provide or be ac- ber of petitions (including the number companied by a brief explanation for of beneficiaries requested when nec- the validity period granted. essary) received and will notify the (ii) Recording the validity of petitions. public of the date that USCIS has re- Procedures for recording the validity ceived the necessary number of peti- period of petitions are: tions (the ‘‘final receipt date’’). The (A) If a new H petition is approved day the public is notified will not con- before the date the petitioner indicates trol the final receipt date. When nec- that the services or training will begin, essary to ensure the fair and orderly the approved petition and approval no- allocation of numbers subject to the tice shall show the actual dates re- numerical limitations in 214(g)(1)(B) quested by the petitoner as the validity and 214(g)(10) of the Act, USCIS may period, not to exceed the limits speci- randomly select from among the peti- fied by paragraph (h)(9)(iii) of this sections received on the final receipt date tion or other Service policy. the remaining number of petitions deemed necessary to generate the nu- (B) If a new H petition is approved merical limit of approvals. This ran- after the date the petitioner indicates dom selection will be made via com- that the services or training will begin, puter-generated selection. Petitions the aproved petition and approval no- subject to a numerical limitation not tice shall show a validity period com- randomly selected or that were re- mencing with the date of approval and ceived after the final receipt date will ending with the date requested by the be rejected. Petitions indicating that petitioner, as long as that date does they are exempt from the numerical not exceed either the limits specified limitation but that are determined by by paragraph (h)(9)(iii) of this section USCIS after the final receipt date to be or other Service policy. subject to the numerical limit will be (C) If the period of services or train- denied and filing fees will not be re- ing requested by the petitioner exceeds turned or refunded. If the final receipt the limit specified in paragraph date is any of the first five business (h)(9)(iii) of this section, the petition days on which petitions subject to the shall be approved only up to the limit applicable numerical limit may be re- specified in that paragraph. ceived (i.e., if the numerical limit is (iii) Validity. The initial approval pe- reached on any one of the first five riod of an H petition shall conform to business days that filings can be made), the limits prescribed as follows: USCIS will randomly apply all of the (A)(1) H–1B petition in a specialty occu- numbers among the petitions received pation. The maximum validity period on any of those five business days. for an approved petition classified (9) Approval and validity of petition— under section 101(a)(15)(H)(i)(b) of the (i)(A) Approval. USCIS will consider all Act for an alien in a specialty occupa- the evidence submitted and any other tion is 3 years. However, where the evidence independently required to as- beneficiary will be working at a third- sist in adjudication. USCIS will notify party worksite, the maximum validity the petitioner of the approval of the pe- period for an approved petition is 1 tition on a Notice of Action. The ap- year. In all instances, the approved pe- proval notice will include the bene- tition may not exceed the validity pe- ficiary’s (or beneficiaries’) name(s) and riod of the labor condition application. classification and the petition’s period (2) H–1B petition involving a DOD re- of validity. A petition for more than search and development or coproduction one beneficiary and/or multiple serv- project. An approved petition classified ices may be approved in whole or in under section 101(a)(15)(H)(i)(b) of the

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Act for an alien involved in a DOD re- by the 21st Century Department of Jus- search and development project or a tice Appropriations Authorization Act, coproduction project shall be valid for Public Law 107–273 (2002). To request a period of up to five years. employment authorization, an eligible (3) H–1B petition involving an alien of H–4 nonimmigrant spouse must file an distinguished merit and ability in the field Application for Employment Author- of fashion modeling. An approved peti- ization, or a successor form, in accord- tion classified under section ance with 8 CFR 274a.13 and the form 101(a)(15)(H)(i)(b) of the Act for an alien instructions. An Application for Em- of distinguished merit and ability in ployment Authorization must be ac- the field of fashion modeling shall be companied by documentary evidence valid for a period of up to three years. establishing eligibility, including evi- (B) H–2B petition. The approval of the dence of the spousal relationship and petition to accord an alien a classifica- that the principal H–1B is the bene- tion under section 101(a)(15)(H)(ii)(b) of ficiary of an approved Immigrant Peti- the Act shall be valid for the period of tion for Alien Worker or has been pro- the approved temporary labor certifi- vided H–1B status under sections 106(a) cation. (C)(1) H–3 petition for alien trainee. An and (b) of AC21, as amended by the 21st approved petition for an alien trainee Century Department of Justice Appro- classified under section priations Authorization Act, the H–1B 101(a)(15)(H)(iii) of the Act shall be beneficiary is currently in H–1B status, valid for a period of up to two years. and the H–4 nonimmigrant spouse is (2) H–3 petition for alien participant in currently in H–4 status. a special education training program. An (10) Denial of petition—(i) Multiple approved petition for an alien classi- beneficiaries. A petition for multiple fied under section 101(a)(15)(H)(iii) of beneficiaries may be denied in whole or the Act as a participant in a special in part. education exchange visitor program (ii) Notice of denial. The petitioner shall be valid for a period of up to 18 shall be notified of the reasons for the months. denial and of the right to appeal the (D) H–1C petition for a registered nurse. denial of the petition under 8 CFR part An approved petition for an alien clas- 103. The petition will be denied if it is sified under section 101(a)(15)(H)(i)(c) of determined that the statements on the the Act shall be valid for a period of 3 petition were inaccurate, fraudulent, years. or misrepresented a material fact. (iv) H–4 dependents. The spouse and There is no appeal from a decision to children of an H nonimmigrant, if they deny an extension of stay to the alien. are accompanying or following to join (11) Revocation of approval of peti- such H nonimmigrant in the United tion—(i) General. (A) The petitioner States, may be admitted, if otherwise shall immediately notify the Service of admissible, as H–4 nonimmigrants for any changes in the terms and condi- the same period of admission or exten- tions of employment of a beneficiary sion as the principal spouse or parent. H–4 nonimmigrant status does not con- which may affect eligibility under sec- fer eligibility for employment author- tion 101(a)(15)(H) of the Act and para- ization incident to status. An H–4 non- graph (h) of this section. An amended immigrant spouse of an H–1B non- petition on the form prescribed by immigrant may be eligible for employ- USCIS should be filed when the peti- ment authorization only if the H–1B tioner continues to employ the bene- nonimmigrant is the beneficiary of an ficiary. If the petitioner no longer em- approved Immigrant Petition for Alien ploys the beneficiary, the petitioner Worker, or successor form, or the H–1B shall send a letter explaining the nonimmigrant’s period of stay in H–1B change(s) to the director who approved status is authorized in the United the petition. However, H–2A and H–2B States under sections 106(a) and (b) of petitioners must send notification to the American Competitiveness in the DHS pursuant to paragraphs (h)(5)(vi) Twenty-first Century Act of 2000 and (h)(6)(i)(F) of this section respec- (AC21), Public Law 106–313, as amended tively.

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(B) The director may revoke a peti- (13) Admission—(i) General. (A) Except tion at any time, even after the expira- as set forth in 8 CFR 214.1(l) with re- tion of the petition. spect to H–1B beneficiaries and their (ii) Immediate and automatic revoca- dependents and paragraph tion. The approval of any petition is (h)(5)(viii)(B) of this section with re- immediately and automatically respect to H–2A beneficiaries, a bene- voked if the petitioner goes out of busi- ficiary shall be admitted to the United ness, files a written withdrawal of the States for the validity period of the pe- petition, or the Department of Labor tition, plus a period of up to 10 days be- revokes the labor certification upon fore the validity period begins and 10 which the petition is based. days after the validity period ends. The (iii) Revocation on notice—(A) Grounds beneficiary may not work except dur- for revocation. The director shall send ing the validity period of the petition. to the petitioner a notice of intent to (B) When an alien in an H classifica- revoke the petition in relevant part if tion has spent the maximum allowable he or she finds that: period of stay in the United States, a (1) The beneficiary is no longer em- new petition under sections ployed by the petitioner in the capac- 101(a)(15)(H) or (L) of the Act may not ity specified in the petition, or if the be approved unless that alien has re- beneficiary is no longer receiving sided and been physically present out- training as specified in the petition; or side the United States, except for brief (2) The statement of facts contained trips for business or pleasure, for the in the petition or on the application for time limit imposed on the particular H a temporary labor certification was not classification. Brief trips to the United true and correct, inaccurate, fraudu- States for business or pleasure during lent, or misrepresented a material fact; the required time abroad are not or interruptive, but do not count towards (3) The petitioner violated terms and fulfillment of the required time abroad. conditions of the approved petition; or A certain period of absence from the (4) The petitioner violated require- United States of H–2A and H–2B aliens ments of section 101(a)(15)(H) of the Act can interrupt the accrual of time spent or paragraph (h) of this section; or in such status against the 3-year limit (5) The approval of the petition vio- set forth in 8 CFR 214.2(h)(13)(iv). The lated pargraph (h) of this section or in- petitioner shall provide information volved gross error. about the alien’s employment, place of (B) Notice and decision. The notice of residence, and the dates and purposes intent to revoke shall contain a de- of any trips to the United States dur- tailed statement of the grounds for the ing the period that the alien was re- revocation and the time period allowed quired to reside abroad. for the petitioner’s rebuttal. The peti- (ii) H–1C limitation on admission. The tioner may submit evidence in rebuttal maximum period of admission for an within 30 days of receipt of the notice. H–1C nonimmigrant alien is 3 years. The director shall consider all relevant The maximum period of admission for evidence presented in deciding whether an H–1C alien begins on the date the H– to revoke the petition in whole or in 1C alien is admitted to the United and part. If the petition is revoked in part, ends on the third anniversary of the the remainder of the petition shall re- alien’s admission date. Periods of time main approved and a revised approval spent out of the United States for busi- notice shall be sent to the petitioner ness or personal reasons during the va- with the revocation notice. lidity period of the H–1C petition count (12) Appeal of a denial or a revocation towards the alien’s maximum period of of a petition—(i) Denial. A petition de- admission. When an H–1C alien has nied in whole or in part may be ap- reached the 3-year maximum period of pealed under part 103 of this chapter. admission, the H–1C alien is no longer (ii) Revocation. A petition that has eligible for admission to the United been revoked on notice in whole or in States as an H–1C nonimmigrant alien. part may be appealed under part 103 of (iii) H–1B limitation on admission—(A) this chapter. Automatic revocations Alien in a specialty occupation or an may not be appealed. alien of distinguished merit and ability in

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the field of fashion modeling. An H–1B parture Records (Form I–94), or airline alien in a specialty occupation or an tickets, together with a chart, indi- alien of distinguished merit and ability cating the dates spent outside of the who has spent six years in the United United States, and referencing the rel- States under section 101(a)(15)(H) and/ evant independent documentary evi- or (L) of the Act may not seek exten- dence, when seeking to recapture the sion, change status, or be readmitted alien’s time spent outside the United to the United States under section States. Based on the evidence provided, 101(a)(15) (H) or (L) of the Act unless USCIS may grant all, part, or none of the alien has resided and been phys- the recapture period requested. ically present outside the United (2) If the beneficiary was previously States, except for brief trips for busi- counted toward the H–1B numerical ness or pleasure, for the immediate cap under section 214(g)(1) of the Act prior year. with respect to the 6-year maximum (B) Alien involved in a DOD research period of H–1B admission from which and development or coproduction project. recapture is sought, the H–1B petition An H–1B alien involved in a DOD re- seeking to recapture a period of stay as search and development or coproduc- an H–1B nonimmigrant will not subject tion project who has spent 10 years in the beneficiary to the H–1B numerical the United States under section cap, whether or not the alien has been 101(a)(15) (H) and/or (L) of the Act may physically outside the United States not seek extension, change status, or for 1 year or more and would be other- be readmitted to the United States wise eligible for a new period of admis- under section 101(a)(15) (H) or (L) of the sion under such section of the Act. An Act to perform services involving a H–1B petitioner may either seek such DOD research and development project recapture on behalf of the alien or, con- or coproduction project. A new petition sistent with paragraph (h)(13)(iii) of or change of status under section this section, seek a new period of ad- 101(a)(15) (H) or (L) of the Act may not mission on behalf of the alien under be approved for such an alien unless section 214(g)(1) of the Act. the alien has resided and been phys- (D) Lengthy adjudication delay exemp- ically present outside the United tion from 214(g)(4) of the Act. (1) An alien States, except for brief trips for busi- who is in H–1B status or has previously ness or pleasure, for the immediate held H–1B status is eligible for H–1B prior year. status beyond the 6-year limitation (C) Calculating the maximum H–1B ad- under section 214(g)(4) of the Act, if at mission period. Time spent physically outside the United States exceeding 24 least 365 days have elapsed since: hours by an alien during the validity of (i) The filing of a labor certification an H–1B petition that was approved on with the Department of Labor on the the alien’s behalf shall not be consid- alien’s behalf, if such certification is ered for purposes of calculating the required for the alien to obtain status alien’s total period of authorized ad- under section 203(b) of the Act; or mission under section 214(g)(4) of the (ii) The filing of an immigrant visa Act, regardless of whether such time petition with USCIS on the alien’s be- meaningfully interrupts the alien’s half to accord classification under sec- stay in H–1B status and the reason for tion 203(b) of the Act. the alien’s absence. Accordingly, such (2) H–1B approvals under paragraph remaining time may be recaptured in a (h)(13)(iii)(D) of this section may be subsequent H–1B petition on behalf of granted in up to 1-year increments the alien, at any time before the alien until either the approved permanent uses the full period of H–1B admission labor certification expires or a final de- described in section 214(g)(4) of the Act. cision has been made to: (1) It is the H–1B petitioner’s burden (i) Deny the application for perma- to request and demonstrate the specific nent labor certification, or, if ap- amount of time for recapture on behalf proved, to revoke or invalidate such of the beneficiary. The beneficiary may approval; provide appropriate evidence, such as (ii) Deny the immigrant visa petition, copies of passport stamps, Arrival-De- or, if approved, revoke such approval;

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(iii) Deny or approve the alien’s appli- tion. Time remaining to the bene- cation for an immigrant visa or appli- ficiary under the maximum period of cation to adjust status to lawful per- admission described at section 214(g)(4) manent residence; or of the Act may include any request to (iv) Administratively or otherwise recapture unused H–1B, L–1A, or L–1B close the application for permanent time spent outside of the United labor certification, immigrant visa pe- States. tition, or application to adjust status. (6) Petitioners seeking exemption. The (3) No final decision while appeal avail- H–1B petitioner need not be the em- able or pending. A decision to deny or ployer that filed the application for revoke an application for labor certifi- labor certification or immigrant visa cation, or to deny or revoke the ap- petition that is used to qualify for this proval of an immigrant visa petition, exemption. will not be considered final under para- (7) Subsequent exemption approvals graph (h)(13)(iii)(D)(2)(i) or (ii) of this after the 7th year. The qualifying labor section during the period authorized certification or immigrant visa peti- for filing an appeal of the decision, or tion need not be the same as that used while an appeal is pending. to qualify for the initial exemption (4) Substitution of beneficiaries. An under paragraph (h)(13)(iii)(D) of this alien who has been replaced by another section. alien, on or before July 16, 2007, as the (8) Aggregation of time not permitted. A beneficiary of an approved permanent petitioner may not aggregate the num- labor certification may not rely on ber of days that have elapsed since the that permanent labor certification to filing of one labor certification or im- establish eligibility for H–1B status migrant visa petition with the number based on this lengthy adjudication of days that have elapsed since the fil- delay exemption. Except for a substi- ing of another such application or peti- tution of a beneficiary that occurred tion to meet the 365-day requirement. on or before July 16, 2007, an alien es- (9) Exemption eligibility. Only a prin- tablishing eligibility for this lengthy cipal beneficiary of a nonfrivolous adjudication delay exemption based on labor certification application or im- a pending or approved labor certifi- migrant visa petition filed on his or cation must be the named beneficiary her behalf may be eligible under para- listed on the permanent labor certifi- graph (h)(13)(iii)(D) of this section for cation. an exemption to the maximum period (5) Advance filing. A petitioner may of admission under section 214(g)(4) of file an H–1B petition seeking a lengthy the Act. adjudication delay exemption under (10) Limits on future exemptions from paragraph (h)(13)(iii)(D) of this section the lengthy adjudication delay. An alien within 6 months of the requested H–1B is ineligible for the lengthy adjudica- start date. The petition may be filed tion delay exemption under paragraph before 365 days have elapsed since the (h)(13)(iii)(D) of this section if the alien labor certification application or im- is the beneficiary of an approved peti- migrant visa petition was filed with tion under section 203(b) of the Act and the Department of Labor or USCIS, re- fails to file an adjustment of status ap- spectively, provided that the applica- plication or apply for an immigrant tion for labor certification or immi- visa within 1 year of an immigrant visa grant visa petition must have been being authorized for issuance based on filed at least 365 days prior to the date his or her preference category and the period of admission authorized country of chargeability. If the accrual under this exemption will take effect. of such 1-year period is interrupted by The petitioner may request any time the unavailability of an immigrant remaining to the beneficiary under the visa, a new 1-year period shall be af- maximum period of admission de- forded when an immigrant visa again scribed at section 214(g)(4) of the Act becomes immediately available. USCIS along with the exemption request, but may excuse a failure to file in its dis- in no case may the approved H–1B pe- cretion if the alien establishes that the riod of validity exceed the limits speci- failure to apply was due to cir- fied by paragraph (h)(9)(iii) of this sec- cumstances beyond his or her control.

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The limitations described in this para- country limitation exemption under graph apply to any approved immi- paragraph (h)(13)(iii)(E) of this section grant visa petition under section 203(b) within 6 months of the requested H–1B of the Act, including petitions with- start date. The petitioner may request drawn by the petitioner or those filed any time remaining to the beneficiary by a petitioner whose business termi- under the maximum period of admis- nates 180 days or more after approval. sion described in section 214(g)(4) of the (E) Per-country limitation exemption Act along with the exemption request, from section 214(g)(4) of the Act. An alien but in no case may the H–1B approval who currently maintains or previously period exceed the limits specified by held H–1B status, who is the bene- paragraph (h)(9)(iii) of this section. ficiary of an approved immigrant visa (6) Exemption eligibility. Only the prin- petition for classification under section 203(b)(1), (2), or (3) of the Act, and cipal beneficiary of an approved immi- who is eligible to be granted that im- grant visa petition for classification migrant status but for application of under section 203(b)(1), (2), or (3) of the the per country limitation, is eligible Act may be eligible under paragraph for H–1B status beyond the 6-year limi- (h)(13)(iii)(E) of this section for an ex- tation under section 214(g)(4) of the emption to the maximum period of ad- Act. The petitioner must demonstrate mission under section 214(g)(4) of the such visa unavailability as of the date Act. the H–1B petition is filed with USCIS. (iv) H–2B and H–3 limitation on admis- (1) Validity periods. USCIS may grant sion. An H–2B alien who has spent 3 validity periods for petitions approved years in the United States under sec- under this paragraph in increments of tion 101(a)(15)(H) and/or (L) of the Act up to 3 years for as long as the alien re- may not seek extension, change status, mains eligible for this exemption. or be readmitted to the United States (2) H–1B approvals under paragraph under sections 101(a)(15)(H) and/or (L) (h)(13)(iii)(E) of this section may be of the Act unless the alien has resided granted until a final decision has been and been physically present outside the made to: United States for the immediately pre- (i) Revoke the approval of the immi- ceding 3 months. An H–3 alien partici- grant visa petition; or pant in a special education program (ii) Approve or deny the alien’s appli- who has spent 18 months in the United cation for an immigrant visa or appli- States under sections 101(a)(15)(H) and/ cation to adjust status to lawful permanent residence. or (L) of the Act; and an H–3 alien (3) Current H–1B status not required. trainee who has spent 24 months in the An alien who is not in H–1B status at United States under sections the time the H–1B petition on his or 101(a)(15)(H) and/or (L) of the Act may her behalf is filed, including an alien not seek extension, change status, or who is not in the United States, may be readmitted to the United States seek an exemption of the 6-year limita- under sections 101(a)(15)(H) and/or (L) tion under 214(g)(4) of the Act under of the Act unless the alien has resided this clause, if otherwise eligible. and been physically present outside the (4) Subsequent petitioners may seek ex- United States for the immediate prior 6 emptions. The H–1B petitioner need not months. be the employer that filed the immi- (v) Exceptions. The limitations in grant visa petition that is used to qual- paragraphs (h)(13)(iii) through ify for this exemption. An H–1B peti- (h)(13)(iv) of this section shall not tion may be approved under paragraph apply to H–1B, H–2B, and H–3 aliens (h)(13)(iii)(E) of this section with re- who did not reside continually in the spect to any approved immigrant visa United States and whose employment petition, and a subsequent H–1B peti- in the United States was seasonal or tion may be approved with respect to a intermittent or was for an aggregate of different approved immigrant visa peti- 6 months or less per year. In addition, tion on behalf of the same alien. the limitations shall not apply to (5) Advance filing. A petitioner may file an H–1B petition seeking a per- aliens who reside abroad and regularly

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commute to the United States to en- classification has been reached, no fur- gage in part-time employment. An ab- ther extensions may be granted. sence from the United States can inter- (ii) Extension periods—(A) H–1C exten- rupt the accrual of time spent as an H– sion of stay. The maximum period of ad- 2B nonimmigrant against the 3-year mission for an H–1C alien is 3 years. An limit. If the accumulated stay is 18 H–1C alien who was initially admitted months or less, an absence is to the United States for less than 3 interruptive if it lasts for at least 45 years may receive an extension of stay days. If the accumulated stay is great- up to the third anniversary date of his er than 18 months, an absence is or her initial admission. An H–1C non- interruptive if it lasts for at least two immigrant may not receive an exten- months. To qualify for this exception, sion of stay beyond the third anniver- the petitioner and the alien must pro- sary date of his or her initial admission vide clear and convincing proof that to the United States. the alien qualifies for such an excep- (B) H–1B extension of stay—(1) Alien in tion. Such proof shall consist of evi- a specialty occupation or an alien of dis- dence such as arrival and departure tinguished merit and ability in the field of records, copies of tax returns, and fashion modeling. An extension of stay records of employment abroad. may be authorized for a period of up to three years for a beneficiary of an H–1B (14) Extension of visa petition validity. petition in a specialty occupation or an The petitioner shall file a request for a alien of distinguished merit and abil- petition extension on the form pre- ity. The alien’s total period of stay scribed by USCIS to extend the valid- may not exceed six years. The request ity of the original petition under sec- for extension must be accompanied by tion 101(a)(15)(H) of the Act. Sup- either a new or a photocopy of the porting evidence is not required unless prior certification from the Depart- requested by the director. A request for ment of Labor that the petitioner con- a petition extension may be filed only tinues to have on file a labor condition if the validity of the original petition application valid for the period of time has not expired. requested for the occupation. (15) Extension of stay—(i) General. The (2) Alien in a DOD research and devel- petitioner shall apply for extension of opment or coproduction project. An ex- an alien’s stay in the United States by tension of stay may be authorized for a filing a petition extension on the form period up to five years for the bene- prescribed by USCIS accompanied by ficiary of an H–1B petition involving a the documents described for the par- DOD research and development project ticular classification in paragraph or coproduction project. The total pe- (h)(15)(ii) of this section. The peti- riod of stay may not exceed 10 years. tioner must also request a petition ex- (C) H–2A or H–2B extension of stay. An tension. The dates of extension shall be extension of stay for the beneficiary of the same for the petition and the bene- an H–2A or H–2B petition may be au- ficiary’s extension of stay. The bene- thorized for the validity of the labor ficiary must be physically present in certification or for a period of up to the United States at the time of the fil- one year, except as provided for in ing of the extension of stay. Even paragraph (h)(5)(x) of this section. The though the requests to extend the peti- alien’s total period of stay as an H–2A tion and the alien’s stay are combined or H–2B worker may not exceed three on the petition, the director shall years, except that in the Virgin Is- make a separate determination on lands, the alien’s total period of stay each. If the alien is required to leave may not exceed 45 days. the United States for business or per- (D) H–3 extension of stay. An exten- sonal reasons while the extension re- sion of stay may be authorized for the quests are pending, the petitioner may length of the training program for a request the director to cable notifica- total period of stay as an H–3 trainee tion of approval of the petition exten- not to exceed two years, or for a total sion to the consular office abroad period of stay as a participant in a spe- where the alien will apply for a visa. cial education training program not to When the total period of stay in an H exceed 18 months.

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(16) Effect of approval of a permanent States under an approved petition and labor certification or filing of a preference is participating in a strike or other petition on H classification—(i) H–1B or labor dispute involving a work stop- H–1C classification. The approval of a page of workers, whether or not such permanent labor certification or the strike or other labor dispute has been filing of a preference petition for an certified by the Department of Labor, alien shall not be a basis for denying the alien shall not be deemed to be fail- an H–1C or H–1B petition or a request ing to maintain his or her status solely to extend such a petition, or the alien’s on account of past, present, or future admission, change of status, or exten- participation in a strike or other labor sion of stay. The alien may legiti- dispute involving a work stoppage of mately come to the United States for a workers, but is subject to the following temporary period as an H–1C or H–1B terms and conditions: nonimmigrant and depart voluntarily (A) The alien shall remain subject to at the end of his or her authorized stay all applicable provisions of the Immi- and, at the same time, lawfully seek to gration and Nationality Act, and regu- become a permanent resident of the lations promulgated in the same man- United States. ner as all other H nonimmigrants; (ii) H–2A, H–2B, and H–3 classification. (B) The status and authorized period The approval of a permanent labor cer- of stay of such an alien is not modified tification, or the filing of a preference or extended in any way by virtue of his petition for an alien currently em- or her participation in a strike or other ployed by or in a training position with labor dispute involving a work stop- the same petitioner, shall be a reason, page of workers; and by itself, to deny the alien’s extension (C) Although participation by an H of stay. nonimmigrant alien in a strike or (17) Effect of a strike. (i) If the Sec- other labor dispute involving a work retary of Labor certifies to the Com- stoppage of workers will not constitute missioner that a strike or other labor a ground for deportation, any alien dispute involving a work stoppage of who violates his or her status or who workers is in progress in the occupa- remains in the United States after his tion and at the place where the bene- or her authorized period of stay has ex- ficiary is to be employed or trained, pired will be subject to deportation. and that the employment of training of (18) Use of approval notice, Form I–797. the beneficiary would adversely affect The Service shall notify the petitioner the wages and working conditions of on Form I–797 whenever a visa petition, U.S. citizens and lawful resident work- an extension of a visa petition, or an ers: alien’s extension of stay is approved (A) A petition to classify an alien as under the H classification. The bene- a nonimmigrant as defined in section ficiary of an H petition who does not 101(a)(15)(H) of the Act shall be denied. require a nonimmigrant visa may (B) If a petition has already been ap- present a copy of the approval notice proved, but the alien has not yet en- at a port of entry to facilitate entry tered the United States, or has entered into the United States. A beneficiary the United States but has not com- who is required to present a visa for ad- menced the employment, the approval mission and whose visa will have ex- of the petition is automatically sus- pired before the date of his or her in- pended, and the application for admis- tended return may use a copy of Form sion on the basis of the petition shall I–797 to apply for a new or revalidated be denied. visa during the validity period of the (ii) If there is a strike or other labor petition. The copy of Form I–797 shall dispute involving a work stoppage of be retained by the beneficiary and pre- workers in progress, but such strike or sented during the validity of the peti- other labor dispute is not certified tion when reentering the United States under paragraph (h)(17)(i), the Commis- to resume the same employment with sioner shall not deny a petition or sus- the same petitioner. pend an approved petition. (19) Additional fee for filing certain H– (iii) If the alien has already com- 1B petitions. (i) A United States em- menced employment in the United ployer (other than an exempt employer

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defined in paragraph (h)(19)(iii) of this entity and the institution of higher section, or an employer filing a peti- education for the purposes of research tion described in paragraph (h)(19)(v) of or education, and a fundamental activ- this section) who files a petition or ap- ity of the nonprofit entity is to di- plication must include the additional rectly contribute to the research or American Competitiveness and Work- education mission of the institution of force Improvement Act (ACWIA) fee higher education; referenced in 8 CFR 106.2, if the peti- (C) A nonprofit research organization or tion is filed for any of the following governmental research organization. A purposes: nonprofit research organization is an (A) An initial grant of H–1B status organization that is primarily engaged under section 101(a)(15)(H)(i)(b) of the in basic research and/or applied re- Act; search. A governmental research orga- (B) An initial extension of stay, as nization is a federal, state, or local en- provided in paragraph (h)(15)(i) of this tity whose primary mission is the per- section; or formance or promotion of basic re- (C) Authorization for a change in em- search and/or applied research. Basic ployers, as provided in paragraph research is general research to gain (h)(2)(i)(D) of this section. more comprehensive knowledge or un- (ii) A petitioner must submit with derstanding of the subject under study, the petition the ACWIA fee, and any without specific applications in mind. other applicable fees, in accordance Basic research is also research that ad- with § 103.7 of this chapter, and form in- vances scientific knowledge, but does structions. Payment of all applicable not have specific immediate commer- fees must be made at the same time, cial objectives although it may be in but the petitioner may submit separate fields of present or potential commer- checks. USCIS will accept payment of cial interest. It may include research the ACWIA fee only from the United and investigation in the sciences, so- States employer or its representative cial sciences, or humanities. Applied of record, as defined in 8 CFR 103.2(a) research is research to gain knowledge and 8 CFR part 292. or understanding to determine the (iii) The following exempt organiza- means by which a specific, recognized tions are not required to pay the addi- need may be met. Applied research in- tional fee: cludes investigations oriented to dis- (A) An institution of higher education, covering new scientific knowledge that as defined in section 101(a) of the High- has specific commercial objectives er Education Act of 1965; with respect to products, processes, or (B) An affiliated or related nonprofit services. It may include research and entity. A nonprofit entity shall be con- investigation in the sciences, social sidered to be related to or affiliated sciencies, or humanities; with an institution of higher education if it satisfies any one of the following (D) A primary or secondary edu- conditions: cation institution; or (1) The nonprofit entity is connected (E) A nonprofit entity which engages to or associated with an institution of in an established curriculum-related higher education through shared own- clinical training of students registered ership or control by the same board or at an institution of higher education. federation; (iv) Non-profit or tax exempt organiza- (2) The nonprofit entity is operated tions. For purposes of paragraphs by an institution of higher education; (h)(19)(iii) (B) and (C) of this section, a (3) The nonprofit entity is attached nonprofit organization or entity is: to an institution of higher education as (A) Defined as a tax exempt organiza- a member, branch, cooperative, or sub- tion under the Internal Revenue Code sidiary; or of 1986, section 501(c)(3), (c)(4) or (c)(6), (4) The nonprofit entity has entered 26 U.S.C. 501(c)(3), (c)(4) or (c)(6), and into a formal written affiliation agree- (B) Has been approved as a tax ex- ment with an institution of higher edu- empt organization for research or education that establishes an active work- cational purposes by the Internal Rev- ing relationship between the nonprofit enue Service.

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(v) Filing situations where the Amer- mensurate with, ‘‘extraordinary cir- ican Competitiveness and Workforce cumstances’’ as defined by § 214.1(c)(4) Improvement Act of 1998 (ACWIA) fee is and 8 CFR 248.1(c). not required. The ACWIA fee is not re- (21) Change of employers during quired if: COVID–19 National Emergency. (i) If an (A) The petition is an amended H–1B H–2A nonimmigrant who is physically petition that does not contain any represent in the United States seeks to quests for an extension of stay; change employers during the COVID–19 (B) The petition is an H–1B petition National Emergency, the prospective filed for the sole purpose of correcting new H–2A employer may file an H–2A a Service error; or petition on Form I–129 or Form I– (C) The petition is the second or sub- 129H2A, accompanied by a valid tem- sequent request for an extension of porary agricultural labor certification, stay filed by the employer regardless of requesting an extension of the alien’s when the first extension of stay was stay in the United States. To be ap- filed or whether the ACWIA fee was proved under this paragraph (h)(21), an paid on the initial petition or the first H–2A petition must be received on or extension of stay. after August 19, 2020 but no later than (vi) ACWIA fee exemption evidence. (A) December 17, 2020. If the new petition is Employer claiming to be exempt. An approved, the extension of stay may be employer claiming to be exempt from granted for the validity of the approved the ACWIA fee must file the form pre- petition for a period not to exceed the scribed by USCIS, in accordance with validity period of the temporary agri- the form instructions, including supporting evidence establishing that it cultural labor certification. Notwith- meets one of the exemptions described standing paragraph (h)(2)(i)(D) of this at paragraph (h)(19)(iii) of this section. section and 8 CFR 274a.12(b)(21), an A United States employer claiming an alien in valid H–2A nonimmigrant sta- exemption from the ACWIA fee on the tus on August 19, 2020, or lawfully ob- basis that it is a non-profit research or- taining such status thereafter pursuant ganization must submit evidence that to this paragraph (h)(21), is authorized it has tax exempt status under the In- to begin employment with the new pe- ternal Revenue Code of 1986, section titioner after the petition described in 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. this paragraph (h)(21) is received by 501(c)(3), (c)(4) or (c)(6). All other em- USCIS, but no earlier than the start ployers claiming an exemption must date of employment, indicated in the submit a statement describing why the H–2A petition. The H–2A worker is au- organization or entity is exempt. thorized to commence employment (B) Exempt filing situations. Any with the petitioner before the petition non-exempt employer who claims that is approved and subject to the require- the ACWIA fee does not apply with re- ments of 8 CFR 274a.12(b)(26) for a pe- spect to a particular filing for one of riod of up to 45 days beginning on the the reasons described in paragraph Received Date on Form I–797 (Notice of (h)(19)(v) of this section must indicate Action) or, if the start date of employ- why the ACWIA fee is not required. ment occurs after the I–797 Received (20) Retaliatory action claims. If cred- Date, 45 days beginning on the start ible documentary evidence is provided date of employment indicated in the H– in support of a petition seeking an ex- 2A petition. If USCIS adjudicates the tension of H–1B stay in or change of petition prior to the expiration of this status to another classification indi- 45-day period and denies the petition cating that the beneficiary faced retal- for extension of stay, or if the petition iatory action from his or her employer is withdrawn by the petitioner before based on a report regarding a violation the expiration of the 45-day period, the of that employer’s labor condition ap- employment authorization associated plication obligations under section with the filing of that petition under 8 212(n)(2)(C)(iv) of the Act, USCIS may CFR 274a.12(b)(26) will automatically consider a loss or failure to maintain terminate 15 days after the date of the H–1B status by the beneficiary related denial decision or the date on which to such violation as due to, and com- the petition is withdrawn.

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(ii) Authorization to initiate employ- decision or the date on which the peti- ment changes pursuant to this para- tion is withdrawn. graph (h)(21) begins at 12 a.m. on Au- (ii) Authorization to initiate employ- gust 19, 2020, and ends at the end of De- ment changes pursuant to this para- cember 17, 2020. graph (h)(22) begins at 12 a.m. on De- (22) Change of employers during cember 18, 2020, and ends at the end of COVID–19 National Emergency. (i) If an June 16, 2021. H–2A nonimmigrant who is physically (23) Change of employers and extensions present in the United States seeks to beyond 3 years during COVID–19 Na- change employers during the COVID–19 tional Emergency for H–2B aliens essen- National Emergency, the prospective tial to the U.S. food supply chain. (i) new H–2A employer may file an H–2A This paragraph (h)(23) relates to cer- petition on Form I–129, accompanied by tain H–2B workers providing temporary a valid temporary agricultural labor nonagricultural services or labor essen- certification, requesting an extension tial to the U.S. food supply chain. of the alien’s stay in the United States. (ii) A prospective new H–2B employer To be approved under this paragraph or U.S. agent who is seeking to employ (h)(22), an H–2A petition must be re- an H–2B alien to provide temporary nonagricultural services or labor essen- ceived on or after December 18, 2020 but tial to the U.S. food supply chain under no later than June 16, 2021. If the new this paragraph (h)(23) may file an H–2B petition is approved, the extension of petition on Form I–129, accompanied by stay may be granted for the validity of an approved temporary labor certifi- the approved petition for a period not cation and attestation described in to exceed the validity period of the paragraph (h)(23)(v)(A) of this section, temporary agricultural labor certifi- requesting an extension of the alien’s cation. Notwithstanding paragraph stay in the United States. If the new (h)(2)(i)(D) of this section and 8 CFR petition is approved, the extension of 274a.12(b)(21), an alien in valid H–2A stay may be granted for the validity of nonimmigrant status on December 18, the approved petition for a period not 2020, or lawfully obtaining such status to exceed the validity period of the thereafter pursuant to this paragraph temporary labor certification. Not- (h)(22), is authorized to begin employ- withstanding paragraph (h)(2)(i)(D) of ment with the new petitioner after the this section, an alien in valid H–2B petition described in this paragraph nonimmigrant status on or after March (h)(22) is received by USCIS, but no 1, 2020: earlier than the start date of employ- (A) Whose new petitioner files an H– ment, indicated in the H–2A petition. 2B petition on or after May 14, 2020, is The H–2A worker is authorized to com- authorized to begin employment with mence employment with the petitioner the new petitioner to perform work before the petition is approved and sub- that is essential to the U.S. food supply ject to the requirements of 8 CFR chain after the petition described in 274a.12(b)(28) for a period of up to 45 this paragraph (h)(23), including the at- days beginning on the Received Date testation described in paragraph on Form I–797 (Notice of Action) or, if (h)(23)(v)(A) of this section, is received the start date of employment occurs by USCIS and before the H–2B petition after the I–797 Received Date, 45 days is approved, but no earlier than the beginning on the start date of employ- start date of employment indicated in ment indicated in the H–2A petition. If the H–2B petition; or USCIS adjudicates the petition prior to (B) Whose new petitioner filed an H– the expiration of this 45-day period and 2B petition on or after March 1, 2020 denies the petition for extension of and the petition was pending on or stay, or if the petition is withdrawn by after May 14, 2020, is authorized to the petitioner before the expiration of begin employment with the new peti- the 45-day period, the employment au- tioner to perform work that is essen- thorization associated with the filing tial to the U.S. food supply chain after of that petition under 8 CFR the attestation described in paragraph 274a.12(b)(28) will automatically termi- (h)(23)(v)(A) is received by USCIS and nate 15 days after the date of the denial before the H–2B petition is approved.

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(iii)(A) With respect to a petition de- if any of the aliens requested in the H– scribed in paragraph (h)(23)(ii)(A) of 2B petition have otherwise exhausted this section, and subject to the require- the applicable 3-year maximum period ments of 8 CFR 274a.12(b)(27), the new of stay in the United States and have period of employment described in not thereafter been absent from the paragraph (h)(23)(ii) may last for up to United States for an uninterrupted pe- 60 days beginning on the Received Date riod of 3 months, or if any such aliens on Form I–797 (Notice of Action) or, if would exceed the 3-year limit as a con- the start date of employment occurs sequence of the approval of the exten- after the I–797 Received Date, for a pe- sion. riod of up to 60 days beginning on the (v) In addition to meeting all other start date of employment indicated in requirements for the H–2B classifica- the H–2B petition. Employment is not tion, to commence employment and be authorized under this paragraph (h)(23) approved under this paragraph (h)(23): if USCIS does not receive the attesta- (A) The H–2B petitioner must submit tion described in paragraph an attestation indicating that the H–2B (h)(23)(v)(A) of this section. alien will be performing work that is (B) With respect to a petition de- essential to the U.S. food supply chain; scribed in paragraph (h)(23)(ii)(B) of (B) The alien must have been in valid this section, the new period of employ- H–2B nonimmigrant status on or after ment described in paragraph (h)(23)(ii) March 1, 2020; and may last for up to 60 days beginning on (C) The H–2B petition must have the date that USCIS acknowledges in been— writing the receipt of a properly filed (1) Received on or after March 1, 2020, attestation described paragraph and pending as of May 14, 2020, so long (h)(23)(v). Employment under this para- as the H–2B worker did not begin work graph (h)(23) is not authorized if USCIS with the new employer before May 14, does not receive the attestation de- 2020, or scribed in paragraph (h)(23)(v)(A) of (2) Received on or after May 14, 2020, this section. but no later than September 11, 2020. (C) With respect to either type of pe- (vi) Authorization to initiate employ- tition, if USCIS adjudicates the peti- ment changes pursuant to paragraphs tion prior to the expiration of this 60- (h)(23)(ii) and (iii) of this section, or be day period and denies the petition for approved for employment exceeding 3 extension of stay, or if the petition is years in duration pursuant to para- withdrawn by the petitioner before the graph (h)(23)(iv) of this section, begins expiration of the 60-day period, the em- on May 14, 2020, and ends at the end of ployment authorization associated September 11, 2020. with the filing of that petition under 8 (24) Severability. (i) [Reserved] CFR 274a.12(b)(27) will automatically (ii) The following provisions added or terminate 15 days after the date of the revised by the changes made to the H– denial decision or 15 days after the date 1B nonimmigrant visa classification on which the petition is withdrawn. program, as of December 7, 2020, are in- Nothing in this paragraph (h)(23) is intended to be implemented as separate tended to alter the availability of em- and severable from one another: para- ployment authorization related to pro- graphs (h)(2)(i), (h)(4)(i)(B)(7), (h)(4)(ii) fessional H–2B athletes who are traded (definitions of employer-employee, spe- between organizations pursuant to cialty occupation, third-party work- paragraph (h)(6)(vii) of this section and site, U.S. employer, and worksite), 8 CFR 274a.12(b)(9). (h)(4)(iii)(A), (h)(4)(iv)(C), (h)(9)(i)(B), (iv) Notwithstanding paragraphs and (h)(9)(iii)(A)(1) of this section. If (h)(13)(i)(B), (h)(13)(iv) and (v), and one or more of the paragraphs in the (h)(15)(ii)(C) of this section, an H–2B preceding sentence is not implemented, petition seeking an extension of stay DHS intends that the remaining para- for H–2B aliens who are essential to the graphs will remain valid and be imple- U.S. food supply chain to work, and mented to the greatest extent possible. submitted with an approved temporary (i) Representatives of information labor certification, may be approved on media—(1) In general. The admission of the basis of this paragraph (h)(23), even an alien of the class defined in section

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101(a)(15)(I) of the Act constitutes an of stay until the activities or assign- agreement by the alien not to change ments consistent with the I classifica- the information medium or his or her tion are completed, not to exceed 90 employer until he or she obtains per- days. To request a change from a dif- mission to do so from the district di- ferent nonimmigrant status to an I sta- rector having jurisdiction over his or tus described in paragraph (i)(1)(ii), an her residence. An alien classified as an alien must file an application to information media nonimmigrant (I) change his or her status by submitting may be admitted in or otherwise grant- the form designated by USCIS, in ac- ed I nonimmigrant status for: cordance with that form’s instructions, (i) The duration of employment, ex- and with the required fee, including cept as provided in paragraph (i)(1)(ii) any biometrics required by 8 CFR of this section; or 103.16, as appropriate. (ii) In the case of an alien who pre- (4) Transition from duration of status sents a passport issued by the People’s admission to a fixed admission period for Republic of China (other than a Hong aliens with I status who had presented a Kong Special Administrative Region passport issued by the People’s Republic passport or a Macau Special Adminis- of China (that is not a Hong Kong Special trative Region passport), until the ac- Administrative Region passport or a tivities or assignments consistent with Macau Special Administrative Region the I classification are completed, not passport) at the time of admission and are to exceed 90 days. present in the U.S. on May 8, 2020. An (2) Extension of stay. An alien in I sta- alien in I status who is described in tus who is described in paragraph paragraph (i)(1)(ii) of this section who (i)(1)(ii) of this section may be eligible is properly maintaining his or her non- for extensions of stay, each of up to 90 immigrant status under the class de- days or until the activities or assign- fined in section 101(a)(15)(I) of the Act ments consistent with the I classifica- and is present in the United States on tion are completed (whichever date is May 8, 2020 is authorized to remain in earlier). the United States in I status for a pe- (i) Notwithstanding 8 CFR riod necessary to complete the activ- 274a.12(b)(20), an alien in I status who ity, not to exceed 90 days from May 8, is described in paragraph (i)(1)(ii) of 2020. Subsequently, the alien may this section whose status has expired, apply for extensions of stay pursuant but who timely filed an application for to, and subject to the conditions and an extension of stay, is authorized to limitations set forth in paragraph (i)(2) stay in the United States and continue of this section. employment with the same employer (j) Exchange aliens—(1) General—(i) for a period not to exceed 90 days be- Eligibility for admission. A non- ginning on the date of the expiration of immigrant exchange visitor and his or the authorized period of stay. However, her accompanying spouse and minor if USCIS adjudicates the application children may be admitted into the prior to the expiration of the 90-day pe- United States in J–1 and J–2 classifica- riod, and denies the application for an tions under section 101(a)(15)(J) of the extension of stay, the alien must im- Act, if the exchange visitor and his or mediately depart the United States. her accompanying spouse and children (ii) To request an extension of stay, each presents a SEVIS Form DS–2019 an alien in I status must file an appli- issued in his or her own name by a pro- cation to extend his or her stay by sub- gram approved by the Department of mitting the form designated by USCIS, State for participation by J–1 exchange in accordance with that form’s instruc- visitors. Prior to August 1, 2003, if exi- tions, and with the required fee, includ- gent circumstances are demonstrated, ing any biometrics required by 8 CFR the Service will allow the dependent of 103.16, as appropriate. an exchange visitor possessing a SEVIS (3) Change of status. An alien seeking Form DS–2019 to enter the United to change from a different non- States using a copy of the exchange immigrant status to, if eligible, an I visitor’s SEVIS Form DS–2019. How- status described in paragraph (i)(1)(ii) ever, where the exchange visitor pre- of this section, may be granted a period sents a properly completed Form DS–

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2019, Certificate of Eligibility for Ex- for each dependent, and a list con- change Visitor (J–1) Status, which was taining the names of the applicants, issued to the J–1 exchange visitor by a dates and places of birth, passport program approved by the Department numbers, issuing countries, and expira- of State for participation by exchange tion dates. An accompanying spouse or visitors and which remains valid for child may not be granted an extension the admission of the exchange visitor, of stay for longer than the principal ex- the accompanying spouse and children change alien. may be admitted on the basis of the J– (v) Employment. (A) The accom- 1’s non-SEVIS Form DS–2019. panying spouse and minor children of a (ii) Admission period. An exchange J–1 exchange visitor may accept em- alien, and J–2 spouse and children, may ployment only with authorization by be admitted for a period up to 30 days the Immigration and Naturalization before the report date or start of the Service. A request for employment au- approved program listed on Form DS– thorization must be made on Form I– 2019. The initial admission of an ex- 765, Application for Employment Au- change visitor, spouse and children thorization, with fee, as required by may not exceed the period specified on the Service, to the district director Form DS–2019, plus a period of 30 days having jurisdiction over the J–1 ex- for the purposes of travel or for the pe- change visitor’s temporary residence in riod designated by the Commissioner the United States. Income from the as provided in paragraph (j)(1)(vi) of spouse’s or dependent’s employment this section. Regulations of the Depart- may be used to support the family’s ment of State published at 22 CFR part customary recreational and cultural 62 give general limitations on the stay activities and related travel, among of the various classes of exchange visi- other things. Employment will not be tors. A spouse or child may not be ad- authorized if this income is needed to mitted for longer than the principal ex- support the J–1 principal alien. change visitor. (B) J–2 employment may be author- (iii) Readmission. An exchange alien ized for the duration of the J–1 prin- may be readmitted to the United cipal alien’s authorized stay as indi- States for the remainder of the time cated on Form I–94 or a period of four authorized on Form I–94, without pre- years, whichever is shorter. The em- senting Form IAP–66, if the alien is re- ployment authorization is valid only if turning from a visit solely to foreign the J–1 is maintaining status. Where a contiguous territory or adjacent is- J–2 spouse or dependent child has filed lands after an absence of less than 30 a timely application for extension of days and if the original Form I–94 is stay, only upon approval of the request presented. All other exchange aliens for extension of stay may he or she must present a valid Form IAP–66. An apply for a renewal of the employment original Form IAP–66 or copy three authorization on a Form I–765 with the (the pink copy) of a previously issued required fee. form presented by an exchange alien (vi) Extension of duration of status. returning from a temporary absence The Commissioner may, by notice in shall be retained by the exchange alien the FEDERAL REGISTER, at any time she for re-entries during the balance of the determines that the H–1B numerical alien’s stay. limitation as described in section (iv) Extensions of Stay. If an exchange 214(g)(1)(A) of the Act will likely be alien requires an extension beyond the reached prior to the end of a current initial admission period, the alien shall fiscal year, extend for such a period of apply by submitting a new Form DS– time as the Commissioner deems nec- 2019 which indicates the date to which essary to complete the adjudication of the alien’s program is extended. The the H–1B application, the duration of extension may not exceed the period status of any J–1 alien on behalf of specified on Form DS–2019, plus a pe- whom an employer has timely filed an riod of 30 days for the purpose of trav- application for change of status to H– el. Extensions of stay for the alien’s 1B. The alien, in accordance with 8 spouse and children require, as an at- CFR part 248, must not have violated tachment to Form DS–2019, Form I–94 the terms of his or her nonimmigrant

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stay and is not subject to the 2-year mentary Statement for Graduate Med- foreign residence requirement at 212(e) ical Trainees) annually with the Serv- of the Act. Any J–1 student whose du- ice attesting to the conditions as speci- ration of status has been extended fied on the form. The exchange alien shall be considered to be maintaining shall also submit Form I–644 as an at- lawful nonimmigrant status for all pur- tachment to a completed Form DS–2019 poses under the Act, provided that the when applying for an extension of stay. alien does not violate the terms and (3) Alien in cancelled programs. When conditions of his or her J non- the approval of an exchange visitor immigrant stay. An extension made program is withdrawn by the Director under this paragraph also applies to of the United States Information Agen- the J–2 dependent aliens. cy, the district director shall send a (vii) Use of SEVIS. At a date to be es- notice of the withdrawal to each par- tablished by the Department of State, ticipant in the program and a copy of the use of the Student and Exchange each such notice shall be sent to the Visitor Information System (SEVIS) program sponsor. If the exchange vis- will become mandatory for designated itor is currently engaged in activities program sponsors. After that date, authorized by the cancelled program, which will be announced by publication the participant is authorized to remain in the FEDERAL REGISTER, all des- in the United States to engage in those ignated program sponsors must begin activities until expiration of the period issuance of the SEVIS Form DS–2019. of stay previously authorized. The dis- (viii) Current name and address. A J–1 trict director shall notify participants exchange visitor must inform the Serv- in cancelled programs that permission ice and the responsible officer of the to remain in the United States as an exchange visitor program of any legal exchange visitor, or extension of stay changes to his or her name or of any may be obtained if the participant is change of address, within 10 days of the accepted in another approved program change, in a manner prescribed by the and a Form DS–2019, executed by the program sponsor. A J–1 exchange vis- new program sponsor, is submitted. In itor enrolled in a SEVIS program can this case, a release from the sponsor of satisfy the requirement in 8 CFR 265.1 the cancelled program will not be re- of notifying the Service by providing a quired. notice of a change of address within 10 (4) Eligibility requirements for section days to the responsible officer, who in 101(a)(15)(J) classification for aliens desir- turn shall enter the information in ing to participate in programs under SEVIS within 21 days of notification by which they will receive graduate medical the exchange visitor. A J–1 exchange education or training—(i) Requirements. visitor enrolled at a non-SEVIS pro- Any alien coming to the United States gram must submit a change of address as an exchange visitor to participate in to the Service, as provided in 8 CFR a program under which the alien will 265.1, within 10 days of the change. Ex- receive graduate medical education or cept in the case of an exchange visitor training, or any alien seeking to who cannot receive mail where he or change nonimmigrant status to that of she resides, the address provided by the an exchange visitor on Form I–506 for exchange visitor must be the actual that purpose, must have passed parts of physical location where the exchange I and II of the National Board of Med- visitor resides rather than a mailing ical Examiners Examination (or an address. In cases where an exchange equivalent examination as determined visitor provides a mailing address, the by the Secretary of Health and Human exchange visitor program must main- Services), and must be competent in tain a record of, and must provide upon oral and written English, and shall sub- request from the Service, the actual mit a completely executed and valid physical location where the exchange Form DS–2019. visitor resides. (ii) Exemptions. From January 10, 1978 (2) Special reporting requirement. Each until December 31, 1983, any alien who exchange alien participating in a pro- has come to or seeks to come to the gram of graduate medical education or United States as an exchange visitor to training shall file Form I–644 (Supple- participate in an accredited program of

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graduate medical education or train- tracting parties and the prospective ing, or any alien who seeks to change bride and groom are prohibited from nonimmigrant status for that purpose, meeting subsequent to the arrange- may be admitted to participate in such ment and prior to the wedding day. In program without regard to the require- addition to establishing that the re- ments stated in subparagraphs (A) and quired meeting would be a violation of (B)(ii)(I) of section 212(j)(1) of the Act if custom or practice, the petitioner must a substantial disruption in the health also establish that any and all other services provided by such program aspects of the traditional arrange- would result from not permitting the ments have been or will be met in ac- alien to participate in the program: cordance with the custom or practice. Provided that the exemption will not Failure to establish that the petitioner increase the total number of aliens and K–1 beneficiary have met within then participating in such programs to a level greater than that participating the required period or that compliance on January 10, 1978. with the requirement should be waived (5) Remittance of the fee. An alien who shall result in the denial of the peti- applies for J–1 nonimmigrant status in tion. Such denial shall be without prej- order to commence participation in a udice to the filing of a new petition Department of State-designated ex- once the petitioner and K–1 beneficiary change visitor program is required to have met in person. pay the SEVIS fee to DHS, pursuant to (3) Children of beneficiary. Without 8 CFR 214.13, except as otherwise pro- the approval of a separate petition on vided in that section. his or her behalf, a child of the bene- (k) Spouses, Fiance´es, and Fiance´s of ficiary (as defined in section United States Citizens—(1) Petition and 101(b)(1)(A), (B), (C), (D), or (E) of the supporting documents. To be classified Act) may be accorded the same non- as a fiance or fiancee as defined in sec- immigrant classification as the bene- tion 101(a)(15)(K)(i) of the Act, an alien ficiary if accompanying or following to must be the beneficiary of an approved join him or her. visa petition filed on Form I–129F. A (4) Notification. The petitioner shall copy of a document submitted in sup- be notified of the decision and, if the port of a visa petition filed pursuant to petition is denied, of the reasons there- section 214(d) of the Act and this para- for and of the right to appeal in accord- graph may be accepted, though unac- ance with the provisions of part 103 of companied by the original, if the copy bears a certification by an attorney, this chapter. typed or rubber-stamped, in the lan- (5) Validity. The approval of a peti- guage set forth in § 204.2(j) of this chap- tion under this paragraph shall be valid ter. However, the original document for a period of four months. A petition shall be submitted if requested by the which has expired due to the passage of Service. time may be revalidated by a director (2) Requirement that petitioner and K– or a consular officer for a period of four 1 beneficiary have met. The petitioner months from the date of revalidation shall establish to the satisfaction of upon a finding that the petitioner and the director that the petitioner and K– K–1 beneficiary are free to marry and 1 beneficiary have met in person within intend to marry each other within 90 the two years immediately preceding days of the beneficiary’s entry into the the filing of the petition. As a matter United States. The approval of any pe- of discretion, the director may exempt tition is automatically terminated the petitioner from this requirement when the petitioner dies or files a writ- only if it is established that compli- ten withdrawal of the petition before ance would result in extreme hardship the beneficiary arrives in the United to the petitioner or that compliance States. would violate strict and long-estab- (6) Adjustment of status from non- lished customs of the K–1 beneficiary’s immigrant to immigrant. foreign culture or social practice, as where marriages are traditionally ar- (i) [Reserved] ranged by the parents of the con-

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(ii) Nonimmigrant visa issued on or 539, Application to Extend/Change Non- after November 10, 1986. Upon con- immigrant Status, 120 days prior to the tracting a valid marriage to the peti- expiration of his or her authorized tioner within 90 days of his or her ad- stay. Extensions for K–4 status must be mission as a nonimmigrant pursuant to filed concurrently with the alien’s par- a valid K–1 visa issued on or after No- ent’s K–3 status extension application. vember 10, 1986, the K–1 beneficiary and In addition, the citizen parent of a K– his or her minor children may apply for 4 alien filing for extension of K status adjustment of status to lawful perma- should file Form I–130 on their behalf. nent resident under section 245 of the Extension will be granted in 2-year in- Act. Upon approval of the application tervals upon a showing of eligibility the director shall record their lawful pursuant to section 101(a)(15)(K)(ii) or admission for permanent residence in (iii) of the Act. Aliens wishing to ex- accordance with that section and sub- tend their period of stay as a K–3 or K– ject to the conditions prescribed in sec- 4 alien pursuant to § 214.1(c)(2) must tion 216 of the Act. show that one of the following has been (7) Eligibility, petition and supporting filed with the Service or the Depart- documents for K–3/K–4 classification. To ment of State, as applicable, and is be classified as a K–3 spouse as defined awaiting approval: in section 101(a)(15)(k)(ii) of the Act, or (A) The Form I–130, Petition for the K–4 child of such alien defined in Alien Relative, filed by the K–3’s U.S. section 101(a)(15)(K)(iii) of the Act, the citizen spouse who filed the Form I– alien spouse must be the beneficiary of 129F; an immigrant visa petition filed by a (B) An application for an immigrant U.S. citizen on Form I–130, Petition for visa based on a Form I–130 described in Alien Relative, and the beneficiary of § 214.2(K)(10)(i); an approved petition for a K–3 non- (C) A Form I–485, Application for Ad- immigrant visa filed on Form I–129F. justment to that of Permanent Resi- (8) Period of admission for K3/K–4 sta- dence, based on a Form I–130 described tus. Aliens entering the United States as a K–3 shall be admitted for a period in § 214.2(k)(10)(i); of 2 years. Aliens entering the United (ii) ‘‘Good Cause’’ showing. Aliens States as a K–4 shall be admitted for a may file for an extension of stay as a period of 2 years or until that alien’s K–3/K–4 nonimmigrant after a Form I– 21st birthday, whichever is shorter. 130 filed on their behalf has been ap- (9) Employment authorization. An alien proved, without filing either an appli- admitted to the United States as a cation for adjustment of status or an nonimmigrant under section immigrant visa upon a showing of 101(a)(15)(K) of the Act shall be author- ‘‘good cause.’’ A showing of ‘‘good ized to work incident to status for the cause’’ may include an illness, a job period of authorized stay. K–1/K–2 loss, or some other catastrophic event aliens seeking work authorization that has prevented the filing of an ad- must apply, with fee, to the Service for justment of status application by the work authorization pursuant to K–3/K–4 alien. The event or events § 274a.12(a)(6) of this chapter. K–3/K–4 must have taken place since the alien aliens must apply to the Service for a entered the United States as a K–3/K–4 document evidencing employment au- nonimmigrant. The burden of estab- thorization pursuant to § 274a.12(a)(9) of lishing ‘‘good cause’’ rests solely with this chapter. Employment authoriza- the applicant. Whether the applicant tion documents issued to K–3/K–4 aliens has shown ‘‘good cause’’ is a purely dis- may be renewed only upon a showing cretionary decision by the Service that the applicant has an application from which there is no appeal. or petition awaiting approval, equiva- (11) Termination of K–3/K–4 status. The lent to the showing required for an ex- status of an alien admitted to the tension of stay pursuant to United States as a K–3/K–4 under sec- § 214.2(k)(10). tion 101(a)(15)(K)(ii) or (iii) of the Act, (10) Extension of stay for K–3/K–4 sta- shall be automatically terminated 30 tus—(i) General. A K–3/K–4 alien may days following the occurrence of any of apply for extension of stay, on Form I– the following:

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(i) The denial or revocation of the sponsible for determining the classi- Form I–130 filed on behalf of that alien; fication of the alien. (ii) The denial or revocation of the (ii) Definitions—(A) Intracompany immigrant visa application filed by transferee means an alien who, within that alien; three years preceding the time of his or (iii) The denial or revocation of the her application for admission into the alien’s application for adjustment of United States, has been employed status to that of lawful permanent res- abroad continuously for one year by a idence; firm or corporation or other legal enti- (iv) The K–3 spouse’s divorce from ty or parent, branch, affiliate, or sub- the U.S. citizen becomes final; sidiary thereof, and who seeks to enter (v) The marriage of an alien in K–4 the United States temporarily in order status. to render his or her services to a (vi) The denial of any of these peti- branch of the same employer or a par- tions or applications to a K–3 also re- ent, affiliate, or subsidiary thereof in a sults in termination of a dependent K– capacity that is managerial, executive, 4’s status. For purposes of this section, or involves specialized knowledge. Pe- there is no denial or revocation of a periods spent in the United States in law- tition or application until the adminis- ful status for a branch of the same em- trative appeal applicable to that appli- ployer or a parent, affiliate, or sub- cation or petition has been exhausted. sidiary thereof and brief trips to the (l) Intracompany transferees—(1) Ad- United States for business or pleasure mission of intracompany transferees—(i) shall not be interruptive of the one General. Under section 101(a)(15)(L) of year of continuous employment abroad the Act, an alien who within the pre- but such periods shall not be counted ceding three years has been employed toward fulfillment of that requirement. abroad for one continuous year by a (B) Managerial capacity means an as- qualifying organization may be admit- signment within an organization in ted temporarily to the United States to which the employee primarily: be employed by a parent, branch, affil- (1) Manages the organization, or a de- iate, or subsidiary of that employer in partment, subdivision, function, or a managerial or executive capacity, or component of the organization; in a position requiring specialized (2) Supervises and controls the work knowledge. An alien transferred to the of other supervisory, professional, or United States under this non- managerial employees, or manages an immigrant classification is referred to essential function within the organiza- as an intracompany transferee and the tion, or a department or subdivision of organization which seeks the classi- the organization; fication of an alien as an intracompany (3) Has the authority to hire and fire transferee is referred to as the peti- or recommend those as well as other tioner. The Service has responsibility personnel actions (such as promotion for determining whether the alien is el- and leave authorization) if another em- igible for admission and whether the ployee or other employees are directly petitioner is a qualifying organization. supervised; if no other employee is di- These regulations set forth the stand- rectly supervised, functions at a senior ards applicable to these classifications. level within the organizational hier- They also set forth procedures for ad- archy or with respect to the function mission of intracompany transferees managed; and and appeal of adverse decisions. Cer- (4) Exercises discretion over the day- tain petitioners seeking the classifica- to-day operations of the activity or tion of aliens as intracompany trans- function for which the employee has ferees may file blanket petitions with authority. A first-line supervisor is not the Service. Under the blanket petition considered to be acting in a managerial process, the Service is responsible for capacity merely by virtue of the super- determining whether the petitioner visor’s supervisory duties unless the and its parent, branches, affiliates, or employees supervised are professional. subsidiaries specified are qualifying or- (C) Executive capacity means an as- ganizations. The Department of State signment within an organization in or, in certain cases, the Service is re- which the employee primarily:

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(1) Directs the management of the or- (I) Parent means a firm, corporation, ganization or a major component or or other legal entity which has subsidi- function of the organization; aries. (2) Establishes the goals and policies (J) Branch means an operating divi- of the organization, component, or sion or office of the same organization function; housed in a different location. (3) Exercises wide latitude in discre- (K) Subsidiary means a firm, corpora- tionary decision-making; and tion, or other legal entity of which a (4) Receives only general supervision parent owns, directly or indirectly, or direction from higher level execu- more than half of the entity and con- tives, the board of directors, or stock- trols the entity; or owns, directly or holders of the organization. indirectly, half of the entity and con- (D) Specialized knowledge means spe- trols the entity; or owns, directly or cial knowledge possessed by an indi- indirectly, 50 percent of a 50–50 joint vidual of the petitioning organization’s venture and has equal control and veto product, service, research, equipment, power over the entity; or owns, di- techniques, management, or other in- rectly or indirectly, less than half of terests and its application in inter- the entity, but in fact controls the en- national markets, or an advanced level tity. of knowledge or expertise in the orga- (L) Affiliate means (1) One of two sub- nization’s processes and procedures. sidiaries both of which are owned and (E) Specialized knowledge professional controlled by the same parent or indi- means an individual who has special- vidual, or ized knowledge as defined in paragraph (2) One of two legal entities owned (l)(1)(ii)(D) of this section and is a and controlled by the same group of in- member of the professions as defined in dividuals, each individual owning and section 101(a)(32) of the Immigration controlling approximately the same and Nationality Act. share or proportion of each entity, or (F) New office means an organization (3) In the case of a partnership that is which has been doing business in the organized in the United States to pro- United States through a parent, vide accounting services along with branch, affiliate, or subsidiary for less managerial and/or consulting services than one year. and that markets its accounting serv- (G) Qualifying organization means a ices under an internationally recog- United States or foreign firm, corpora- nized name under an agreement with a tion, or other legal entity which: worldwide coordinating organization (1) Meets exactly one of the quali- that is owned and controlled by the fying relationships specified in the member accounting firms, a partner- definitions of a parent, branch, affil- ship (or similar organization) that is iate or subsidiary specified in para- organized outside the United States to graph (l)(1)(ii) of this section; provide accounting services shall be (2) Is or will be doing business (en- considered to be an affiliate of the gaging in international trade is not re- United States partnership if it markets quired) as an employer in the United its accounting services under the same States and in at least one other coun- internationally recognized name under try directly or through a parent, the agreement with the worldwide co- branch, affiliate, or subsidiary for the ordinating organization of which the duration of the alien’s stay in the United States partnership is also a United States as an intracompany member. transferee; and (M) Director means a Service Center (3) Otherwise meets the requirements director with delegated authority at 8 of section 101(a)(15)(L) of the Act. CFR 103.1. (H) Doing business means the regular, (2) Filing of petitions. (i) Except as systematic, and continuous provision provided in paragraph (l)(2)(ii) and of goods and/or services by a qualifying (l)(17) of this section, a petitioner seek- organization and does not include the ing to classify an alien as an mere presence of an agent or office of intracompany transferee must file a the qualifying organization in the petition on the form prescribed by United States and abroad. USCIS. The petitioner shall advise

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USCIS whether a previous petition for States as a manager or executive to the same beneficiary has been filed, open or to be employed in a new office and certify that another petition for in the United States, the petitioner the same beneficiary will not be filed shall submit evidence that: unless the circumstances and condi- (A) Sufficient physical premises to tions in the initial petition have house the new office have been secured; changed. Failure to make a full disclo- (B) The beneficiary has been em- sure of previous petitions filed may re- ployed for one continuous year in the sult in a denial of the petition. three year period preceding the filing (ii) A United States petitioner which of the petition in an executive or man- meets the requirements of paragraph agerial capacity and that the proposed (l)(4) of this section and seeks con- employment involved executive or tinuing approval of itself and its par- managerial authority over the new op- ent, branches, specified subsidiaries eration; and and affiliates as qualifying organiza- (C) The intended United States oper- tions and, later, classification under ation, within one year of the approval section 101(a)(15)(L) of the Act multiple numbers of aliens employed by itself, of the petition, will support an execu- its parent, or those branches, subsidi- tive or managerial position as defined aries, or affiliates may file a blanket in paragraphs (l)(1)(ii) (B) or (C) of this petition on the form prescribed by section, supported by information re- USCIS. The blanket petition shall be garding: maintained at the adjudicating office. (1) The proposed nature of the office The petitioner shall be the single rep- describing the scope of the entity, its resentative for the qualifying organiza- organizational structure, and its finan- tions with which USCIS will deal re- cial goals; garding the blanket petition. (2) The size of the United States in- (3) Evidence for individual petitions. An vestment and the financial ability of individual petition filed on the form the foreign entity to remunerate the prescribed by USCIS shall be accom- beneficiary and to commence doing panied by: business in the United States; and (i) Evidence that the petitioner and (3) The organizational structure of the organization which employed or the foreign entity. will employ the alien are qualifying or- (vi) If the petition indicates that the ganizations as defined in paragraph beneficiary is coming to the United (l)(1)(ii)(G) of this section. States in a specialized knowledge ca- (ii) Evidence that the alien will be pacity to open or to be employed in a employed in an executive, managerial, new office, the petitioner shall submit or specialized knowledge capacity, in- evidence that: cluding a detailed description of the (A) Sufficient physical premises to services to be performed. house the new office have been secured; (iii) Evidence that the alien has at (B) The business entity in the United least one continuous year of full-time States is or will be a qualifying organi- employment abroad with a qualifying zation as defined in paragraph organization within the three years preceding the filing of the petition. (l)(1)(ii)(G) of this section; and (iv) Evidence that the alien’s prior (C) The petitioner has the financial year of employment abroad was in a ability to remunerate the beneficiary position that was managerial, execu- and to commence doing business in the tive, or involved specialized knowledge United States. and that the alien’s prior education, (vii) If the beneficiary is an owner or training, and employment qualifies major stockholder of the company, the him/her to perform the intended serv- petition must be accompanied by evi- ices in the United States; however, the dence that the beneficiary’s services work in the United States need not be are to be used for a temporary period the same work which the alien per- and evidence that the beneficiary will formed abroad. be transferred to an assignment abroad (v) If the petition indicates that the upon the completion of the temporary beneficiary is coming to the United services in the United States.

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(viii) Such other evidence as the di- L approval and certify that the bene- rector, in his or her discretion, may ficiary has not and will not apply to a deem necessary. consular officer for L classification (4) Blanket petitions. (i) A petitioner under the approved blanket petition. which meets the following require- (iv) Evidence. A blanket petition filed ments may file a blanket petition seek- on the form prescribed by USCIS shall ing continuing approval of itself and be accompanied by: some or all of its parent, branches, sub- (A) Evidence that the petitioner sidiaries, and affiliates as qualifying meets the requirements of paragraph organizations if: (l)(4)(i) of this section. (A) The petitioner and each of those (B) Evidence that all entities for entities are engaged in commercial which approval is sought are qualifying trade or services; organizations as defined in subpara- (B) The petitioner has an office in the graph (l)(1)(ii)(G) of this section. United States that has been doing busi- (C) Such other evidence as the direc- ness for one year or more; tor, in his or her discretion, deems nec- (C) The petitioner has three or more essary in a particular case. domestic and foreign branches, subsidiaries, or affiliates; and (5) Certification and admission proce- (D) The petitioner and the other dures for beneficiaries under blanket peti- qualifying organizations have obtained tion—(i) Jurisdiction. United States con- approval of petitions for at least ten sular officers shall have authority to ‘‘L’’ managers, executives, or special- determine eligibility of individual ized knowledge professionals during beneficiaries outside the United States the previous 12 months; or have U.S. seeking L classification under blanket subsidiaries or affiliates with combined petitions, except for visa-exempt non- annual sales of at least $25 million; or immigrants. An application for a visa- have a United States work force of at exempt nonimmigrant seeking L clas- least 1,000 employees. sification under a blanket petition or (ii) Managers, executives, and spe- by an alien in the United States apply- cialized knowledge professionals em- ing for change of status to L classifica- ployed by firms, corporations, or other tion under a blanket petition shall be entities which have been found to be filed with the Service office at which qualifying organizations pursuant to the blanket petition was filed. an approved blanket petition may be (ii) Procedures. (A) When one quali- classified as intracompany transferees fying organization listed in an ap- and admitted to the United States as proved blanket petition wishes to provided in paragraphs (l) (5) and (11) of transfer an alien outside the United this section. States to a qualifying organization in (iii) When applying for a blanket pe- the United States and the alien re- tition, the petitioner shall include in quires a visa to enter the United the blanket petition all of its branches, States, that organization shall com- subsidiaries, and affiliates which plan plete Form I–129S, Certificate of Eligi- to seek to transfer aliens to the United bility for Intracompany Transferee States under the blanket petition. An under a Blanket Petition, in an origi- individual petition may be filed by the nal and three copies. The qualifying or- petitioner or organizations in lieu of ganization shall retain one copy for its using the blanket petition procedure. records and send the original and two However, the petitioner and other copies to the alien. A copy of the ap- qualifying organizations may not seek proved Form I–797 must be attached to L classification for the same alien the original and each copy of Form I– under both procedures, unless a con- 129S. sular officer first denies eligibility. (B) After receipt of Form I–797 and Whenever a petitioner which has blan- Form I–129S, a qualified employee who ket L approval files an individual peti- is being transferred to the United tion to seek L classification for a man- States may use these documents to ager, executive, or specialized knowl- apply for visa issuance with the con- edge professional, the petitioner shall sular officer within six months of the advise the Service that it has blanket date on Form I–129S.

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(C) When the alien is a visa-exempt consular officer’s decision shall be nonimmigrant seeking L classification final. The consular officer shall record under a blanket petition, or when the the reasons for the denial on Form I– alien is in the United States and is 129S, retain one copy, return the origi- seeking a change of status from an- nal of I–129S to the USCIS office which other nonimmigrant classification to L approved the blanket petition, and pro- classification under a blanket petition, vide a copy to the alien. In such a case, the petitioner shall submit Form I– an individual petition may be filed for 129S, Certificate of Eligibility, and a the alien on the form prescribed by copy of the approval notice, Form I– USCIS. The petition shall state the 797, to the USCIS office with which the reason the alien was denied L classi- blanket petition was filed. fication and specify the consular office (D) The consular or Service officer which made the determination and the shall determine whether the position in date of the determination. which the alien will be employed in the (G) An alien admitted under an ap- United States is with an organization proved blanket petition may be reas- named in the approved petition and signed to any organization listed in the whether the specific job is for a man- approved petition without referral to ager, executive, or specialized knowl- the Service during his/her authorized edge professional. The consular or stay if the alien will be performing vir- Service officer shall determine further tually the same job duties. If the alien whether the alien’s immediate prior will be performing different job duties, year of continuous employment abroad the petitioner shall complete a new was with an organization named in the Certificate of Eligibility and send it for petition and was in a position as man- approval to the director who approved ager, executive, or specialized knowl- the blanket petition. edge professional. (6) Copies of supporting documents. The (E) Consular officers may grant ‘‘L’’ petitioner may submit a legible photo- classification only in clearly approv- copy of a document in support of the able applications. If the consular offi- visa petition, in lieu of the original cer determines that the alien is eligible document. However, the original docu- for L classification, the consular offi- ment shall be submitted if requested by cer may issue a nonimmigrant visa, the Service. noting the visa classification ‘‘Blanket L–1’’ for the principal alien and ‘‘Blan- (7) Approval of petition—(i) General. ket L–2’’ for any accompanying or fol- The director shall notify the petitioner lowing to join spouse and children. The of the approval of an individual or a consular officer shall also endorse all blanket petition within 30 days after copies of the alien’s Form I–129S with the date a completed petition has been the blanket L–1 visa classification and filed. If additional information is re- return the original and one copy to the quired from the petitioner, the 30 day alien. When the alien is inspected for processing period shall begin again entry into the United States, both cop- upon receipt of the information. The ies of the Form I–129S shall be stamped original Form I–797 received from the to show a validity period not to exceed USCIS with respect to an approved in- three years and the second copy col- dividual or blanket petition may be du- lected and sent to the appropriate Re- plicated by the petitioner for the bene- gional Service Center for control pur- ficiary’s use as described in paragraph poses. Service officers who determine (l)(13) of this section. eligibility of aliens for L–1 classifica- (A) Individual petition—(1) Form I–797 tion under blanket petitions shall en- shall include the beneficiary’s name dorse both copies of Form I–129S with and classification and the petition’s pe- the blanket L–1 classification and the riod of validity. validity period not to exceed three (2) An individual petition approved years and retain the second copy for under this paragraph shall be valid for Service records. the period of established need for the (F) If the consular officer determines beneficiary’s services, not to exceed that the alien is ineligible for L classi- three years, except where the bene- fication under a blanket petition, the ficiary is coming to the United States

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to open or to be employed in a new of- petitioner shall be notified within 30 fice. days after the date a completed peti- (3) If the beneficiary is coming to the tion has been filed of the denial, the United States to open or be employed reasons for the denial, and the right to in a new office, the petition may be ap- appeal the denial. If the petition is de- proved for a period not to exceed one nied in part, the USCIS office issuing year, after which the petitioner shall the denial shall forward to the peti- demonstrate as required by paragraph tioner, along with the denial, a Form I– (l)(14)(ii) of this section that it is doing 797 listing those organizations which business as defined in paragraph (l) were found to quality. If the decision (1)(ii)(H) of this section to extend the to deny is reversed on appeal, a new validity of the petition. Form I–797 shall be sent to the peti- (B) Blanket petition. (1) Form I–797 tioner to reflect the changes made as a shall identify the approved organiza- result of the appeal. tions included in the petition and the (9) Revocation of approval of individual petition’s period of validity. and blanket petitions—(i) General. The (2) A blanket petition approved under director may revoke a petition at any this paragraph shall be valid initially time, even after the expiration of the for a period of three years and may be petition. extended indefinitely thereafter if the (ii) Automatic revocation. The ap- qualifying organizations have complied proval of any individual or blanket pe- with these regulations. tition is automatically revoked if the (3) A blanket petition may be ap- petitioner withdraws the petition or proved in whole or in part and shall the petitioner fails to request indefi- cover only qualifying organizations. nite validity of a blanket petition. (C) Amendments. The petitioner must (iii) Revocation on notice. (A) The di- file an amended petition, with fee, at rector shall send to the petitioner a no- the USCIS office where the original pe- tice of intent to revoke the petition in tition was filed to reflect changes in relevant part if he/she finds that: approved relationships, additional (1) One or more entities are no longer qualifying organizations under a blan- qualifying organizations; ket petition, change in capacity of em- ( ) The alien is no longer eligible ployment (i.e., from a specialized 2 knowledge position to a managerial po- under section 101(a)(15)(L) of the Act; sition), or any information which (3) A qualifying organization(s) vio- would affect the beneficiary’s eligi- lated requirements of section bility under section 101(a)(15)(L) of the 101(a)(15)(L) and these regulations; Act. (4) The statement of facts contained (ii) Spouse and dependents. The spouse in the petition was not true and cor- and unmarried minor children of the rect; or beneficiary are entitled to L non- (5) Approval of the petition involved immigrant classification, subject to gross error; or the same period of admission and lim- (6) None of the qualifying organiza- its as the beneficiary, if the spouse and tions in a blanket petition have used unmarried minor children are accom- the blanket petition procedure for panying or following to join the bene- three consecutive years. ficiary in the United States. Neither (B) The notice of intent to revoke the spouse nor any child may accept shall contain a detailed statement of employment unless he or she has been the grounds for the revocation and the granted employment authorization. time period allowed for the petitioner’s (8) Denial of petition—(i) Individual pe- rebuttal. Upon receipt of this notice, tition. If an individual is denied, the pe- the petitioner may submit evidence in titioner shall be notified within 30 days rebuttal within 30 days of the notice. after the date a completed petition has The director shall consider all relevant been filed of the denial, the reasons for evidence presented in deciding whether the denial, and the right to appeal the to revoke the petition in whole or in denial. part. If a blanket petition is revoked in (ii) Blanket petition. If a blanket peti- part, the remainder of the petition tion is denied in whole or in part, the shall remain approved, and a revised

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Form I–797 shall be sent to the peti- years in the United States in a special- tioner with the revocation notice. ized knowledge capacity or seven years (iv) Status of beneficiaries. If an indi- in the United States in a managerial or vidual petition is revoked, the bene- executive capacity under section ficiary shall be required to leave the 101(a)(15) (L) and/or (H) of the Act may United States, unless the beneficiary not be readmitted to the United States has obtained other work authorization under section 101(a)(15) (L) or (H) of the from the Service. If a blanket petition Act unless the alien has resided and is revoked and the petitioner and bene- been physically present outside the ficiaries already in the United States United States, except for brief visits are otherwise eligible for L classifica- for business or pleasure, for the imme- tion, the director shall extend the blan- diate prior year. Such visits do not in- ket petition for a period necessary to terrupt the one year abroad, but do not support the stay of those blanket L count towards fulfillment of that re- beneficiaries. The approval notice, quirement. In view of this restriction, Form I–171C, shall include only the names of qualifying organizations and a new individual petition may not be covered beneficiaries. No new bene- approved for an alien who has spent the ficiaries may be classified or admitted maximum time period in the United under this limited extension. States under section 101(a)(15) (L) and/ (10) Appeal of denial or revocation of or (H) of the Act, unless the alien has individual or blanket petition. (i) A peti- resided and been physically present tion denied in whole or in part may be outside the United States, except for appealed under 8 CFR part 103. Since brief visits for business or pleasure, for the determination on the Certificate of the immediate prior year. The peti- Eligibility, Form I–129S, is part of the tioner shall provide information about petition process, a denial or revocation the alien’s employment, place of resi- of approval of an I–129S is appealable in dence, and the dates and purpose of any the same manner as the petition. trips to the United States for the pre- (ii) A petition that has been revoked vious year. A consular or Service offi- on notice in whole or in part may be cer may not grant L classification appealed under part 103 of this chapter. under a blanket petition to an alien Automatic revocations may not be ap- who has spent five years in the United pealed. States as a professional with special- (11) Admission. A beneficiary may ized knowledge or seven years in the apply for admission to the United United States as a manager or execu- States only while the individual or tive, unless the alien has met the re- blanket petition is valid. The bene- quirements contained in this para- ficiary of an individual petition shall graph. not be admitted for a date past the va- (ii) Exceptions. The limitations of lidity period of the petition. The bene- paragraph (l)(12)(i) of this section shall ficiary of a blanket petition may be ad- not apply to aliens who do not reside mitted for three years even though the continually in the United States and initial validity period of the blanket whose employment in the United petition may expire before the end of the three-year period. If the blanket States is seasonal, intermittent, or petition will expire while the alien is consists of an aggregate of six months in the United States, the burden is on or less per year. In addition, the limi- the petitioner to file for indefinite va- tations will not apply to aliens who re- lidity of the blanket petition or to file side abroad and regularly commute to an individual petition in the alien’s be- the United States to engage in part- half to support the alien’s status in the time employment. The petitioner and United States. The admission period the alien must provide clear and con- for any alien under section 101(a)(15)(L) vincing proof that the alien qualifies shall not exceed three years unless an for an exception. Clear and convincing extension of stay is granted pursuant proof shall consist of evidence such as to paragraph (l)(15) of this section. arrival and departure records, copies of (12) L–1 limitation on period of stay—(i) tax returns, and records of employment Limits. An alien who has spent five abroad.

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(13) Beneficiary’s use of Form I–797 and director. A petition extension may be Form I–129S—(i) Beneficiary of an indi- filed only if the validity of the original vidual petition. The beneficiary of an in- petition has not expired. dividual petition who does not require (ii) New offices. A visa petition under a nonimmigrant visa may present a section 101(a)(15)(L) which involved the copy of Form I–797 at a port of entry to opening of a new office may be ex- facilitate entry into the United States. tended by filing a new application or The copy of Form I–797 shall be re- petition, accompanied by the fol- tained by the beneficiary and presented lowing: during the validity of the petition (pro- (A) Evidence that the United States vided that the beneficiary is entering and foreign entities are still qualifying or reentering the United States) for organizations as defined in paragraph entry and reentry to resume the same (l)(1)(ii)(G) of this section; employment with the same petitioner (B) Evidence that the United States (within the validity period of the peti- entity has been doing business as de- tion) and to apply for an extension of fined in paragraph (l)(1)(ii)(H) of this stay. A beneficiary who is required to section for the previous year; present a visa for admission and whose (C) A statement of the duties per- visa will have expired before the date formed by the beneficiary for the pre- of his or her intended return may use vious year and the duties the bene- an original Form I–797 to apply for a ficiary will perform under the extended new or revalidated visa during the va- petition; lidity period of the petition and to (D) A statement describing the staff- apply for an extension of stay. ing of the new operation, including the (ii) Beneficiary of a blanket petition. number of employees and types of posi- Each alien seeking L classification and tions held accompanied by evidence of admission under a blanket petition wages paid to employees when the ben- shall present a copy of Form I–797 and eficiary will be employed in a manage- a Form I–129S from the petitioner rial or executive capacity; and which identifies the position and orga- (E) Evidence of the financial status nization from which the employee is of the United States operation. transferring, the new organization and (iii) Blanket petitions—(A) Extension position to which the employee is des- procedure. A blanket petition may only tined, a description of the employee’s be extended indefinitely by filing a new actual duties for both the new and Form I–129 with a copy of the previous former positions, and the positions, approval notice and a report of admis- dates, and locations of previous L stays sions during the preceding three years. in the United States. A current copy of The report of admissions shall include Form I–797 and Form I–129S should be a list of the aliens admitted under the retained by the beneficiary and used blanket petition during the preceding for leaving and reentering the United three years, including positions held States to resume employment with a during that period, the employing enti- qualifying organization during his/her ty, and the dates of initial admission authorized period of stay, for applying and final departure of each alien. The for a new or revalidated visa, and for petitioner shall state whether it still applying for readmission at a port of meets the criteria for filing a blanket entry. The alien may be readmitted petition and shall document any even though reassigned to a different changes in approved relationships and organization named on the Form I–797 additional qualifying organizations. than the one shown on Form I–129S if (B) Other conditions. If the petitioner the job duties are virtually the same. in an approved blanket petition fails to (14) Extension of visa petition validity— request indefinite validity or if indefi- (i) Individual petition. The petitioner nite validity is denied, the petitioner shall file a petition extension on Form and its other qualifying organizations I–129 to extend an individual petition shall seek L classification by filing in- under section 101(a)(15)(L) of the Act. dividual petitions until another three Except in those petitions involving new years have expired; after which the pe- offices, supporting documentation is titioner may seek approval of a new not required, unless requested by the blanket petition.

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(15) Extension of stay. (i) In individual temporary period as an L–1 non- petitions, the petitioner must apply for immigrant and, at the same time, law- the petition extension and the alien’s fully seek to become a permanent resi- extension of stay concurrently on dent of the United States provided he Form I–129. When the alien is a bene- or she intends to depart voluntarily at ficiary under a blanket petition, a new the end of his or her authorized stay. certificate of eligibility, accompanied The filing of an application for or ap- by a copy of the previous approved cer- proval of a permanent labor certifi- tificate of eligibility, shall be filed by cation, an immigrant visa preference the petitioner to request an extension petition, or the filing of an application of the alien’s stay. The petitioner must of readjustment of status for an L–1 also request a petition extension. The nonimmigrant shall not be the basis dates of extension shall be the same for for denying: the petition and the beneficiary’s ex- (i) An L–1 petition filed on behalf of tension of stay. The beneficiary must the alien, be physically present in the United (ii) A request to extend an L–1 peti- States at the time the extension of tion which had previously been filed on stay is filed. Even though the requests behalf of the alien; to extend the visa petition and the (iii) An application for admission as alien’s stay are combined on the peti- an L–1 nonimmigrant by the alien, or tion, the director shall make a sepa- as an L–2 nonimmigrant by the spouse rate determination on each. If the alien or child of such alien; is required to leave the United States for business or personal reasons while (iv) An application for change of sta- the extension requests are pending, the tus to H–1 or L–2 nonimmigrant filed petitioner may request the director to by the alien, or to H–1, H–4, or L–1 sta- cable notification of approval of the pe- tus filed by the L–2 spouse or child of tition extension to the consular office such alien; abroad where the alien will apply for a (v) An application for change of sta- visa. tus to H–4 nonimmigrant filed by the (ii) An extension of stay may be au- L–1 nonimmigrant, if his or her spouse thorized in increments of up to two has been approved for classification as years for beneficiaries of individual an H–1; or and blanket petitions. The total period (vi) An application for extension of of stay may not exceed five years for stay filed by the alien, or by the L–2 aliens employed in a specialized knowl- spouse or child of such alien. edge capacity. The total period of stay (17) Filing of individual petitions and for an alien employed in a managerial certifications under blanket petitions for or executive capacity may not exceed citizens of Canada under the North Amer- seven years. No further extensions may ican Free Trade Agreement (NAFTA)—(i) be granted. When an alien was initially Individual petitions. Except as provided admitted to the United States in a spe- in paragraph (1)(2)(ii) of this section cialized knowledge capacity and is (filing of blanket petitions), a United later promoted to a managerial or ex- States or foreign employer seeking to ecutive position, he or she must have classify a citizen of Canada as an been employed in the managerial or ex- intracompany transferee may file an ecutive position for at least six months individual petition in duplicate on the to be eligible for the total period of form prescribed by USCIS in conjunc- stay of seven years. The change to tion with an application for admission managerial or executive capacity must of the citizen of Canada. Such filing have been approved by the Service in may be made with an immigration offi- an amended, new, or extended petition cer at a Class A port of entry located at the time that the change occurred. on the United States-Canada land bor- (16) Effect of filing an application for or der or at a United States pre-clearance/ approval of a permanent labor certifi- pre-flight station in Canada. The peti- cation, preference petition, or filing of an tioning employer need not appear, but application for adjustment of status on L– the form prescribed by USCIS must 1 classification. An alien may legiti- bear the authorized signature of the pe- mately come to the United States for a titioner.

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(ii) Certification of eligibility for the same limits as the principal alien. intracompany transferree under the blan- They shall not be required to present ket petition. An immigration officer at visas, and they shall be admitted under a location identified in paragraph the classification symbol L–2. (1)(17)(i) of this section may determine (B) A non-Canadian citizen spouse or eligibility of individual citizens of Can- non-Canadian citizen unmarried minor ada seeking L classification under ap- child shall be entitled to the same non- proved blanket petitions. At these lo- immigrant classification and the same cations, such citizens of Canada shall length of stay subject to the same lim- present the original and two copies of its as the principal, but shall be re- Form I–129S, Intracompany Transferee quired to present a visa upon applica- Certificate of Eligibility, prepared by tion for admission as an L–2 unless oth- the approved organization, as well as erwise exempt under § 212.1 of this three copies of Form I–797, Notice of chapter. Approval of Nonimmigrant Visa Peti- (C) The spouse and dependent minor tion. children shall not accept employment (iii) Nothing in this section shall pre- in the United States unless otherwise clude or discourage the advance filing authorized under the Act. of petitions and certificates of eligi- (18) Denial of intracompany transferee bility in accordance with paragraph status to citizens of Canada or Mexico in (l)(2) of this section. the case of certain labor disputes. (i) If (iv) Deficient or deniable petitions or the Secretary of Labor certifies to or certificates of eligibility. If a petition or otherwise informs the Commissioner certificate of eligibility submitted con- that a strike or other labor dispute in- currently with an application for ad- volving a work stoppage of workers is mission is lacking necessary sup- in progress where the beneficiary is to porting documentation or is otherwise be employed, and the temporary entry deficient, the inspecting immigration of the beneficiary may affect adversely officer shall return it to the applicant the settlement of such labor dispute or for admission in order to obtain the the employment of any person who is necessary documentation from the pe- involved in such dispute, a petition to titioner or for the deficiency to be classify a citizen of Mexico or Canada overcome. The fee to file the petition as an L–1 intracompany transferee may will be remitted at such time as the be denied. If a petition has already documentary or other deficiency is been approved, but the alien has not overcome. If the petition or certificate yet entered the United States, or has of eligibility is clearly deniable, the entered the United States but not yet immigration officer will accept the pe- commenced employment, the approval tition (with fee) and the petitioner of the petition may be suspended, and shall be notified of the denial, the rea- an application for admission on the sons for denial, and the right of appeal. basis of the petition may be denied. If a formal denial order cannot be (ii) If there is a strike or other labor issued by the port of entry, the peti- dispute involving a work stoppage of tion with a recommendation for denial workers in progress, but such strike or shall be forwarded to the appropriate other labor dispute is not certified Service Center for final action. For the under paragraph (l)(18)(i) of this sec- purposes of this provision, the appro- tion, or the Service has not otherwise priate Service Center will be the one been informed by the Secretary that within the same Service region as the such a strike or labor dispute is in location where the application for ad- progress, the Commissioner shall not mission is made. deny a petition or suspend an approved (v) Spouse and dependent minor chil- petition. dren accompanying or following to join. (iii) If the alien has already com- (A) The Canadian citizen spouse and mended employment in the United Canadian citizen unmarried minor chil- States under an approved petition and dren of a Canadian citizen admitted is participating in a strike or other under this paragraph shall be entitled labor dispute involving a work stop- to the same nonimmigrant classifica- page of workers, whether or not such tion and same length of stay subject to strike or other labor dispute has been

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certified by the Department of Labor, (ii) Disposition of Form I–20M–N. When the alien shall not be deemed to be fail- a student is admitted to the United ing to maintain his or her status solely States, the inspecting officer shall for- on account of past, present, or future ward Form I–20M–N to the Service’s participation in a strike or other labor processing center. The processing cen- dispute involving a work stoppage of ter shall forward Form I–20N to the workers, but is subject to the following school which issued the form to notify terms and conditions. the school of the student’s admission. (A) The alien shall remain subject to (iii) Use of SEVIS. On January 30, all applicable provisions of the Immi- 2003, the use of the Student and Ex- gration and Nationality Act, and regu- change Visitor Information System lations promulgated in the same man- (SEVIS) will become mandatory for the ner as all other L nonimmigrants; issuance of any new Form I–20. A stu- (B) The status and authorized period dent or dependent who presents a non- of stay of such an alien is not modified SEVIS Form I–20 issued on or after or extended in any way by virtue of his January 30, 2003, will not be accepted or her participation in a strike or other for admission to the United States. labor dispute involving work stoppage Non-SEVIS Forms I–20 issued prior to of workers; and January 30, 2003, will continue to be ac- (C) Although participation by an L cepted for admission to the United nonimmigrant alien in a strike or States until August 1, 2003. However, other labor dispute involving a work schools must issue a SEVIS Form I–20 stoppage of workers will not constitute to any current student requiring a re- a ground for deportation, any alien portable action (e.g., extension of sta- who violates his or her status or who tus, practical training, and requests for remains in the United States after his employment authorization) or a new or her authorized period of stay has ex- Form I–20, or for any aliens who must pired will be subject to deportation. obtain a new nonimmigrant student (m) Students in established vocational visa. As of August 1, 2003, the records of or other recognized nonacademic institu- all current or continuing students tions, other than in language training must be entered in SEVIS. programs—(1) Admission of student—(i) Eligibility for admission. A non- (2) Form I–20 ID copy. The first time immigrant student may be admitted an M–1 student comes into contact into the United States in non- with the Service for any reason, the immigrant status under section student must present to the Service a 101(a)(15)(M) of the Act, if: Form I–20M–N properly and completely (A) The student presents a SEVIS filled out by the student and by the Form I–20 issued in his or her own designated official of the school the name by a school approved by the Serv- student is attending or intends to at- ice for attendance by M–1 foreign stu- tend. The student will be issued a Form dents. (In the alternative, for a student I–20 ID copy with his or her admission seeking admission prior to August 1, number. The student must have the 2003, the student may present a cur- Form I–20 ID copy with him or her at rently-valid Form I–20M–N/I–20ID, if all times. If the student loses the Form that form was issued by the school I–20 ID copy, the student must request prior to January 30, 2003); a new Form I–20 ID copy on Form I–102 (B) The student has documentary evi- from the Service office having jurisdic- dence of financial support in the tion over the school the student was amount indicated on the SEVIS Form last authorized to attend. I–20 (or the Form I–20M–N/I–20ID); and (3) Admission of the spouse and minor (C) For students seeking initial ad- children of an M–1 student. The spouse mission only, the student intends to and minor children accompanying an attend the school specified in the stu- M–1 student are eligible for admission dent’s visa (or, where the student is ex- in M–2 status if the student is admitted empt from the requirement for a visa, in M–1 status. The spouse and minor the school indicated on the SEVIS children following-to-join an M–1 stu- Form I–20 (or the Form I–20M–N/I– dent are eligible for admission to the 20ID)). United States in M–2 status if they are

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able to demonstrate that the M–1 stu- thorized to transfer between schools dent has been admitted and is, or will and is returning to the United States be within 30 days, enrolled in a full from a temporary absence in order to course of study, or engaged in approved attend the school to which transfer was practical training following completion authorized as indicated on the stu- of studies. In either case, at the time dent’s Form I–20 ID copy, the name of they seek admission, the eligible the school to which the student is des- spouse and minor children of an M–1 tined does not need to be specified in student with a SEVIS Form I–20 must the student’s visa. individually present an original SEVIS (5) Period of stay. A student in M non- Form I–20 issued in the name of each immigrant status is admitted for a M–2 dependent issued by a school au- fixed time period, which is the period thorized by the Service for attendance necessary to complete the course of by M–1 foreign students. Prior to Au- study indicated on the Form I–20, plus gust 1, 2003, if exigent circumstances practical training following completion are demonstrated, the Service will of the course of study, plus an addi- allow the dependent of an M–1 student tional 30 days to depart the United in possession of a SEVIS Form I–20 to States, but not to exceed a total period enter the United States using a copy of of one year. An M–1 student may be ad- the M–1 student’s SEVIS Form I–20. (In mitted for a period up to 30 days before the alternative, for dependents seeking the report date or start date of the admission to the United States prior to course of study listed on the Form I–20. August 1, 2003, a copy of the M–1 stu- An M–1 student who fails to maintain a dent’s current Form I–20ID issued prior full course of study or otherwise fails to January 30, 2003, with proper en- to maintain status is not eligible for dorsement by the DSO will satisfy this the additional 30-day period of stay. requirement.) A new SEVIS Form I–20 (6)–(8) [Reserved] (or Form I–20M–N) is required for a de- (9) Full course of study. Successful pendent where there has been any sub- completion of the course of study must stantive change in the M–1 student’s current information. lead to the attainment of a specific (i) A properly endorsed page 4 of educational or vocational objective. A Form I–20M–N if there has been no sub- ‘‘full course of study’’ as required by stantive change in the information on section 101(a)(15)(M)(i) of the Act the student’s most recent Form I–20M means— since the form was initially issued; or (i) Study at a community college or (ii) A new Form I–20M–N if there has junior college, certified by a school of- been any substantive change in the in- ficial to consist of at least twelve se- formation on the student’s most recent mester or quarter hours of instruction Form I–20M since the form was ini- per academic term in those institu- tially issued. tions using standard semester, tri- (4) Temporary absence—(i) General. An mester, or quarter-hour systems, where M–1 student returning to the United all students enrolled for a minimum of States from a temporary absence to at- twelve semester or quarter hours are tend the school which the student was charged full-time tuition or considered previously authorized to attend must full-time for other administrative pur- present either— poses, or its equivalent (as determined (A) A properly endorsed page 4 of by the district director) except when Form I–20M–N if there has been no sub- the student needs a lesser course load stantive change in the information on to complete the course of study during the student’s most recent Form I–20M the current term; since the form was initially issued; or (ii) Study at a postsecondary voca- (B) A new Form I–20M–N if there has tional or business school, other than in been any substantive change in the in- a language training program except as formation on the student’s most recent provided in § 214.3(a)(2)(iv), which con- Form I–20M since the form was ini- fers upon its graduates recognized asso- tially issued. ciate or other degrees or has estab- (ii) Student who transferred between lished that its credits have been and schools. If an M–1 student has been au- are accepted unconditionally by at

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least three institutions of higher learn- load for more than an aggregate of 5 ing which are either: (1) A school (or months per course of study. An M–1 school system) owned and operated as a student previously authorized to drop public educational institution by the below a full course of study due to ill- United States or a State or political ness or medical condition for an aggre- subdivision thereof; or (2) a school ac- gate of 5 months, may not be author- credited by a nationally recognized ac- ized by the DSO to reduce his or her crediting body; and which has been cer- course load on subsequent occasions tified by a designated school official to during his or her particular course of consist of at least twelve hours of in- study. struction a week, or its equivalent as (A) Non-SEVIS schools. A DSO must determined by the district director; report any student who has been au- (iii) Study in a vocational or other thorized by the DSO to carry a reduced nonacademic curriculum, other than in course load. Within 21 days of the au- a language training program except as thorization, the DSO must send a pho- provided in § 214.3(a)(2)(iv), certified by tocopy of the student’s Form I–20 to a designated school official to consist the Service’s data processing center in- of at least eighteen clock hours of at- dicating the date that authorization tendance a week if the dominant part was granted. The DSO must also report of the course of study consists of class- to the Service’s data processing center room instruction, or at least twenty- when the student has resumed a full two clock hours a week if the dominant course of study, no more than 21 days part of the course of study consists of from the date the student resumed a shop or laboratory work; or full course of study. In this case, the (iv) Study in a vocational or other DSO must submit a photocopy of the nonacademic high school curriculum, student’s Form I–20 indicating the date certified by a designated school official that a full course of study was re- to consist of class attendance for not sumed, with a new program end date. less than the minimum number of (B) SEVIS reporting. In order for a hours a week prescribed by the school student to be authorized to drop below for normal progress towards gradua- a full course of study, the DSO must tion. update SEVIS prior to the student re- (v) On-line courses/distance education ducing his or her course load. The DSO programs. No on-line or distance edu- must update SEVIS with the date, rea- cation classes may be considered to son for authorization, and the start count toward an M–1 student’s full date of the next term or session. The course of study requirement if such DSO must also notify SEVIS within 21 classes do not require the student’s days of the student’s commencement of physical attendance for classes, exam- a full course of study. ination or other purposes integral to (10) Extension of stay—(i) Eligibility. completion of the class. An on-line or The cumulative time of extensions that distance education course is a course can be granted to an M–1 student is that is offered principally through the limited to a period of 3 years from the use of television, audio, or computer M–1 student’s original start date, plus transmission including open broadcast, 30 days. No extension can be granted to closed circuit, cable, microwave, or an M–1 student if the M–1 student is satellite, audio conferencing, or com- unable to complete the course of study puter conferencing. within 3 years of the original program (vi) Reduced course load. The des- start date. This limit includes exten- ignated school official may authorize sions that have been granted due to a an M–1 student to engage in less than a drop below full course of study, a full course of study only where the stu- transfer of schools, or reinstatement. dent has been compelled by illness or a An M–1 student may be granted an ex- medical condition that has been docu- tension of stay if it is established that: mented by a licensed medical doctor, (A) He or she is a bona fide non- doctor of osteopathy, or licensed clin- immigrant currently maintaining stu- ical psychologist, to interrupt or re- dent status; duce his or her course of study. A DSO (B) Compelling educational or med- may not authorize a reduced course ical reasons have resulted in a delay to

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his or her course of study. Delays transfer to another school if the stu- caused by academic probation or sus- dent— pension are not acceptable reasons for (A) Is a bona fide nonimmigrant; program extension; and (B) Has been pursuing a full course of (C) He or she is able to, and in good study at the school the student was faith intends to, continue to maintain last authorized to attend; that status for the period for which the (C) Intends to pursue a full course of extension is granted. study at the school to which the stu- (ii) Application. A student must apply dent intends to transfer; and to the Service for an extension on (D) Is financially able to attend the Form I–539, Application to Extend/ school to which the student intends to Change Nonimmigrant Status. A stu- transfer. dent’s M–2 spouse and children seeking (ii) Procedure. A student must apply an extension of stay must be included to the Service on Form I–539 for per- in the application. The student must mission to transfer between schools. submit the application to the service Upon application for school transfer, a center having jurisdiction over the student may effect the transfer subject school the student is currently author- to approval of the application. A stu- ized to attend, at least 15 days but not dent who transfers without complying more than 60 days before the program with this requirement or whose appli- end date on the student’s Form I–20. cation is denied after transfer pursuant The application must also be accom- to this regulation is considered to be panied by the student’s Form I–20 and out of status. If the application is ap- the Forms I–94 of the student’s spouse proved, the approval of the transfer and children, if applicable. will be determined to be the program (iii) Period of stay. If an application start date listed on the Form I–20, and for extension is granted, the student the student will be granted an exten- and the student’s spouse and children, sion of stay for the period of time nec- if applicable, are to be given an exten- essary to complete the new course of sion of stay for the period of time nec- study plus 30 days, or for a total period essary to complete the course of study, of one year, whichever is less. plus 30 days within which to depart (A) Non-SEVIS school. The application from the United States, or for a total must be accompanied by the Form I– period of one year, whichever is less. A 20ID copy and the Form I–94 of the stu- student’s M–2 spouse and children are dent’s spouse and children, if applica- not eligible for an extension unless the ble. The Form I–539 must also be ac- M–1 student is granted an extension of companied by Form I–20M–N properly stay, or for a longer period than is and completely filled out by the stu- granted to the M–1 student. dent and by the designated official of (iv) SEVIS update. A DSO must up- the school which the student wishes to date SEVIS to recommend that a stu- attend. Upon approval, the adjudi- dent be approved for an extension of cating officer will endorse the name of stay. The SEVIS Form I–20 must be the school to which the transfer is au- printed with the recommendation and thorized on the student’s Form I–20ID new program end date for submission copy and return it to the student. The by mail to the service center, with officer will also endorse Form I–20M–N Form I–539, and Forms I–94 if applica- to indicate that a school transfer has ble. been authorized and forward it to the (11) School transfer—(i) Eligibility. An Service’s processing center for updat- M–1 student may not transfer to an- ing. The processing center will forward other school after six months from the Form I–20M–N to the school to which date the student is first admitted as, or the transfer has been authorized to no- changes nonimmigrant classification tify the school of the action taken. to that of, an M–1 student unless the (B) SEVIS school. The student must student is unable to remain at the first notify his or her current school of school to which the student was ini- the intent to transfer and indicate the tially admitted due to circumstances school to which the student intends to beyond the student’s control. An M–1 transfer. Upon notification by the stu- student may be otherwise eligible to dent, the current school must update

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SEVIS to show the student as a (12) Change in educational objective. ‘‘transfer out’’ and input the ‘‘release An M–1 student may not change edu- date’’ for transfer. Once updated as a cational objective. ‘‘transfer out’’ the transfer school is (13) Employment. Except as provided permitted to generate a SEVIS Form I– in paragraph (m)(14) of this section, a 20 for transfer but will not gain access student may not accept employment. to the student’s SEVIS record until the (14) Practical training—(i) When prac- release date is reached. Upon receipt of tical training may be authorized. Tem- the SEVIS Form I–20 from the transfer porary employment for practical train- school, the student must submit Form ing may be authorized only after com- I–539 in accordance with § 214.2(m)(11). pletion of the student’s course of The student may enroll in the transfer study. school at the next available term or (A) The proposed employment is rec- session and is required to notify the ommended for the purpose of practical DSO of the transfer school imme- training; diately upon beginning attendance. (B) The proposed employment is re- The transfer school must update the lated to the student’s course of study; student’s registration record in SEVIS and in accordance with § 214.3(g)(3). Upon (C) Upon the designated school offi- approval of the transfer application, cial’s information and belief, employ- the Service officer will endorse the ment comparable to the proposed em- name of the school to which the trans- ployment is not available to the stu- fer is authorized on the student’s dent in the country of the student’s SEVIS Form I–20 and return it to the foreign residence. student. (ii) Application. A M–1 student must (C) Transition process. Once SEVIS is apply for permission to accept employ- fully operational and interfaced with ment for practical training on Form I– the service center benefit processing 765, with fee as contained in 8 CFR part system, the Service officer will trans- 106, accompanied by a properly en- mit the approval of the transfer to dorsed Form I–20 by the designated SEVIS and endorse the name of the school official for practical training. school to which transfer is authorized The application must be submitted be- on the student’s SEVIS Form I–20 and fore the program end date listed on the return it to the student. As part of a student’s Form I–20 but not more than transitional process until that time, 90 days before the program end date. the student is required to notify the The designated school official must DSO at the transfer school of the deci- certify on Form I–538 that— sion of the Service within 15 days of (A) The proposed employment is rec- the receipt of the adjudication by the ommended for the purpose of practical Service. Upon notification by the stu- training; dent of the approval of the Service, the (B) The proposed employment is re- DSO must immediately update SEVIS lated to the student’s course of study; to show that approval of the transfer and has been granted. The DSO must then (C) Upon the designated school offi- print an updated SEVIS Form I–20 for cial’s information and belief, employ- the student indicating that the trans- ment comparable to the proposed em- fer has been completed. If the applica- ployment is not available to the stu- tion for transfer is denied, the student dent in the country of the student’s is out of status and the DSO must ter- foreign residence. minate the student’s record in SEVIS. (iii) Duration of practical training. (iii) Student who has not been pursuing When the student is authorized to en- a full course of study. If an M–1 student gage in employment for practical who has not been pursuing a full course training, he or she will be issued an of study at the school the student was employment authorization document. last authorized to attend desires to at- The M–1 student may not begin em- tend a different school, the student ployment until he or she has been must apply for reinstatement to stu- issued an employment authorization dent status under paragraph (m)(16) of document by the Service. One month of this section. employment authorization will be

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granted for each four months of full- a request for reinstatement on Form I– time study that the M–1 student has 539, Application to Extend/Change Non- completed. However, an M–1 student immigrant Status, accompanied by a may not engage in more than six properly completed SEVIS Form I–20 months of practical training in the ag- indicating the DSO’s recommendation gregate. The student will not be grant- for reinstatement (or a properly com- ed employment authorization if he or pleted Form I–20M–N issued prior to she cannot complete the requested January 30, 2003, from the school the practical training within six months. student is attending or intends to at- (iv) Temporary absence of M–1 student tend prior to August 1, 2003). The dis- granted practical training. An M–1 stu- trict director may consider granting dent who has been granted permission the request only if the student: to accept employment for practical (A) Has not been out of status for training and who temporarily departs more than 5 months at the time of fil- from the United States, may be re- ing the request for reinstatement (or admitted for the remainder of the authorized period indicated on the stu- demonstrates that the failure to file dent’s Form I–20 ID copy. The student within the 5 month period was the re- must be returning to the United States sult of exceptional circumstances and to perform the authorized practical that the student filed the request for training. A student may not be re- reinstatement as promptly as possible admitted to begin practical training under these exceptional cir- which was not authorized prior to the cumstances); student’s departure from the United (B) Does not have a record of re- States. peated or willful violations of the Serv- (v) Effect of strike or other labor dis- ice regulations; pute. Authorization for all employment (C) Is currently pursuing, or intends for practical training is automatically to pursue, a full course of study at the suspended upon certification by the school which issued the Form I–20M–N Secretary of Labor or the Secretary’s or SEVIS Form I–20; designee to the Commissioner of Immi- (D) Has not engaged in unlawful em- gration and Naturalization or the Com- ployment; missioner’s designee that a strike or (E) Is not deportable on any ground other labor dispute involving a work other than section 237(a)(1)(B) or (C)(i) stoppage of workers is in progress in of the Act; and the occupation at the place of employ- (F) Establishes to the satisfaction of ment. As used in this paragraph, ‘‘place the Service, by a detailed showing, ei- of employment’’ means wherever the ther that: employer or joint employer does busi- (1) The violation of status resulted ness. from circumstances beyond the stu- (vi) SEVIS process. The DSO must up- dent’s control. Such circumstances date the student’s record in SEVIS to might include serious injury or illness, recommend that the Service approve closure of the institution, a natural the student for practical training, and print SEVIS Form I–20 with the rec- disaster, or inadvertence, oversight or ommendation, for the student to sub- neglect on the part of the DSO, but do mit to the Service with Form I–765 as not include instances where a pattern provided in this paragraph (m)(14). of repeated violations or where a will- (15) Decision on application for exten- ful failure on the part of the student sion, permission to transfer to another resulted in the need for reinstatement; school, or permission to accept employ- or ment for practical training. The Service (2) The violation relates to a reduc- shall notify the applicant of the deci- tion in the student’s course load that sion and, if the application is denied, of would have been within a DSO’s power the reason(s) for the denial. The appli- to authorize, and that failure to ap- cant may not appeal the decision. prove reinstatement would result in ex- (16) Reinstatement to student status—(i) treme hardship to the student. General. A district director may con- (ii) Decision. If the Service reinstates sider reinstating a student who makes the student, the Service shall endorse

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the student’s copy of Form I–20 to indi- (B) M–2 elementary or secondary study. cate that the student has been rein- An M–2 child may engage in full-time stated and return the form to the stu- study, including any full course of dent. If the Form I–20 is from a non- study, in any elementary or secondary SEVIS school, the school copy will be school (kindergarten through twelfth forwarded to the school. If the Form I– grade). 20 is from a SEVIS school, the adjudi- (C) An M–2 spouse or child violates cating officer will update SEVIS to re- his or her nonimmigrant status by en- flect the Service’s decision. In either rolling in any study except as provided case, if the Service does not reinstate in paragraph (m)(17)(ii)(A) or (B) of this the student, the student may not ap- section. peal the decision. The district director (18) Current name and address. A stu- will send notification to the school of dent must inform the Service and the the decision. DSO of any legal changes to his or her (17) Spouse and children of M–1 stu- name or of any change of address, with- dent. The M–2 spouse and minor chil- in 10 days of the change, in a manner dren of an M–1 student shall each be prescribed by the school. A student en- issued an individual SEVIS Form I–20 rolled at a SEVIS school can satisfy in accordance with the provisions of the requirement in 8 CFR 265.1 of noti- § 214.3(k). fying the Service by providing a notice (i) Employment. The M–2 spouse and of a change of address within 10 days to children may not accept employment. the DSO, and the DSO in turn shall (ii) Study—(A) M–2 post-secondary/vo- enter the information in SEVIS within cational study—(1) Authorized study at 21 days of notification by the student. SEVP-certified schools. An M–2 spouse or A nonimmigrant student enrolled at a M–2 child may enroll in less than a full non-SEVIS institution must submit a course of study, as defined in para- notice of change of address to the Serv- graphs (f)(6)(i)(A) through (D) or ice, as provided in 8 CFR 265.1, within (m)(9)(i) through (v), in any course of 10 days of the change. Except in the study described in paragraphs case of a student who cannot receive (f)(6)(i)(A) through (D) or (m)(9)(i) mail where he or she resides, the ad- through (v) of this section at an SEVP- dress provided by the student must be certified school. Notwithstanding para- the actual physical location where the graphs (f)(6)(i)(B) and (m)(9)(i) of this student resides rather than a mailing section, study at an undergraduate col- address. In cases where a student pro- lege or university or at a community vides a mailing address, the school college or junior college is not a full must maintain a record of, and must course of study solely because the M–2 provide upon request from the Service, nonimmigrant is engaging in a lesser the actual physical location where the course load to complete a course of student resides. study during the current term. An M–2 (19) Special rules for certain border com- spouse or M–2 child enrolled in less muter students—(i) Applicability. For than a full course of study is not eligi- purposes of the special rules in this ble to engage in employment pursuant paragraph (m)(19), the term ‘‘border to paragraph (m)(14) of this section or commuter student’’ means a national pursuant to paragraphs (f)(9) through of Canada or Mexico who is admitted to (10) of this section. the United States as an M–1 student to (2) Full course of study. Subject to enroll in a full course of study, albeit paragraph (m)(17)(ii)(B) of this section, on a part-time basis, in an approved an M–2 spouse and child may engage in school located within 75 miles of a a full course of study only by applying United States land border. The border for and obtaining a change of status to commuter student must maintain ac- F–1, M–1, or J–1 status, as appropriate, tual residence and place of abode in the before beginning a full course of study. student’s country of nationality, and An M–2 spouse and M–2 child may en- seek admission to the United States at gage in study that is avocational or a land border port-of-entry. These spe- recreational in nature, up to and in- cial rules do not apply to a national of cluding on a full-time basis. Canada or Mexico who is:

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(A) Residing in the United States may be granted status under section while attending an approved school as 101(a)(15)(N)(ii) of the Act for such time an M–1 student, or as each remains a child as defined in (B) Enrolled in a full course of study section 101(b)(1) of the Act. as defined in paragraph (m)(9) of this (3) Admission and extension of stay. A section. nonimmigrant granted (N) status shall (ii) Full course of study. The border be admitted for not to exceed three commuter student must be enrolled in years with extensions in increments up a full course of study at the school that to but not to exceed three years. Sta- leads to the attainment of a specific tus as an (N) nonimmigrant shall ter- educational or vocational objective, al- minate on the date the child described beit on a part-time basis. A designated in paragraph (n)(1) or (n)(2) of this sec- school official at the school may au- tion no longer qualifies as a child as thorize an eligible border commuter defined in section 101(b)(1) of the Act. student to enroll in a course load below (4) Employment. A nonimmigrant ad- that otherwise required for a full mitted in or granted (N) status is au- course of study under paragraph (m)(9) thorized employment incident to (N) of this section, provided that the re- status without restrictions as to loca- duced course load is consistent with tion or type of employment. the border commuter student’s ap- (o) Aliens of extraordinary ability or proved course of study. achievement—(1) Classifications—(i) Gen- (iii) Period of stay. An M–1 border eral. Under section 101(a)(15)(O) of the commuter student is not entitled to an Act, a qualified alien may be author- additional 30-day period of stay other- ized to come to the United States to wise available under paragraph (m)(5) perform services relating to an event of this section. or events if petitioned for by an em- (iv) Employment. A border commuter ployer. Under this nonimmigrant cat- student may not be authorized to ac- egory, the alien may be classified cept any employment in connection under section 101(a)(15)(O)(i) of the Act with his or her M–1 student status, ex- as an alien who has extraordinary abil- cept for practical training as provided ity in the sciences, arts, education, in paragraph (m)(14) of this section. business, or athletics, or who has a (20) Remittance of the fee. An alien demonstrated record of extraordinary who applies for M–1 or M–3 non- achievement in the motion picture or immigrant status in order to enroll in television industry. Under section a program of study at a DHS-approved 101(a)(15)(O)(ii) of the Act, an alien vocational educational institution is having a residence in a foreign country required to pay the SEVIS fee to DHS, which he or she has no intention of pursuant to 8 CFR 214.13, except as oth- abandoning may be classified as an ac- erwise provided in that section. companying alien who is coming to as- (n) Certain parents and children of sec- sist in the artistic or athletic perform- tion 101(a)(27)(I) special immigrants—(1) ance of an alien admitted under section Parent of special immigrant. Upon appli- 101(a)(15)(O)(i) of the Act. The spouse or cation, a parent of a child accorded child of an alien described in section special immigrant status under section 101(a)(15)(O)(i) or (ii) of the Act who is 101(a)(27)(I)(i) of the Act may be grant- accompanying or following to join the ed status under section 101(a)(15)(N)(i) alien is entitled to classification pursu- of the Act as long as the permanent ant to section 101(a)(15)(O)(iii) of the resident child through whom eligibility Act. These classifications are called is derived remains a child as defined in the O–1, O–2, and O–3 categories, re- section 101(b)(1) of the Act. spectively. The petitioner must file a (2) Child of section 101(a)(27)(I) special petition with the Service for a deter- immigrants and section 101(a)(15)(N)(i) mination of the alien’s eligibility for nonimmigrants. Children of parents O–1 or O–2 classification before the granted nonimmigrant status under alien may apply for a visa or seek ad- section 101(a)(15)(N)(i) of the Act, or of mission to the United States. This parents who have been granted special paragraph sets forth the standards and immigrant status under section procedures applicable to these classi- 101(a)(27)(I) (ii), (iii) or (iv) of the Act fications.

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(ii) Description of classifications. (A) United States employer, a United An O–1 classification applies to: States agent, or a foreign employer (1) An individual alien who has ex- through a United States agent. For traordinary ability in the sciences, purposes of paragraph (o) of this sec- arts, education, business, or athletics tion, a foreign employer is any em- which has been demonstrated by sus- ployer who is not amenable to service tained national or international ac- of process in the United States. A for- claim and who is coming temporarily eign employer may not directly peti- to the United States to continue work tion for an O nonimmigrant alien but in the area of extraordinary ability; or instead must use the services of a (2) An alien who has a demonstrated United States agent to file a petition record of extraordinary achievement in for an O nonimmigrant alien. A United motion picture and/or television pro- States agent petitioning on behalf of a ductions and who is coming tempo- foreign employer must be authorized to rarily to the United States to continue file the petition, and to accept services work in the area of extraordinary of process in the United States in pro- achievement. ceedings under section 274A of the Act, (B) An O–2 classification applies to on behalf of the foreign employer. An O an accompanying alien who is coming alien may not petition for himself or temporarily to the United States solely herself. to assist in the artistic or athletic per- (ii) Evidence required to accompany a formance by an O–1. The O–2 alien petition. Petitions for O aliens shall be must: accompanied by the following: (1) Be an integral part of the actual (A) The evidence specified in the par- performances or events and possess ticular section for the classification; critical skills and experience with the (B) Copies of any written contracts O–1 alien that are not of a general na- between the petitioner and the alien ture and which are not possessed by beneficiary or, if there is no written others; or contract, a summary of the terms of (2) In the case of a motion picture or the oral agreement under which the television production, have skills and alien will be employed; experience with the O–1 alien which are (C) An explanation of the nature of not of a general nature and which are the events or activities, the beginning critical, either based on a pre-existing and ending dates for the events or ac- and longstanding working relationship tivities, and a copy of any itinerary for or, if in connection with a specific pro- the events or activities; and duction only, because significant pro- (D) A written advisory opinion(s) duction (including pre- and post-pro- from the appropriate consulting entity duction) will take place both inside and or entities. outside the United States and the con- (iii) Form of documentation. The evi- tinuing participation of the alien is es- dence submitted with an O petition sential to the successful completion of shall conform to the following: the production. (A) Affidavits, contracts, awards, and (2) Filing of petitions—(i) General. Ex- similar documentation must reflect cept as provided for in paragraph the nature of the alien’s achievement (o)(2)(iv)(A) of this section, a petitioner and be executed by an officer or respon- seeking to classify an alien as an O–1 sible person employed by the institu- or O–2 nonimmigrant shall file a petition, firm, establishment, or organization on the form prescribed by USCIS. tion where the work was performed. The petition may not be filed more (B) Affidavits written by present or than one year before the actual need former employers or recognized experts for the alien’s services. An O–1 or O–2 certifying to the recognition and ex- petition shall be adjudicated at the ap- traordinary ability, or in the case of a propriate Service Center, even in emer- motion picture or television produc- gency situations. Only one beneficiary tion, the extraordinary achievement of may be included on an O–1 petition. O– the alien, shall specifically describe 2 aliens must be filed for on a separate the alien’s recognition and ability or petition from the O–1 alien. An O–1 or achievement in factual terms and set O–2 petition may only be filed by a forth the expertise of the affiant and

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the manner in which the affiant ac- or, a person or entity authorized by the quired such information. employer to act for, or in place of, the (C) A legible photocopy of a docu- employer as its agent. A petition filed ment in support of the petition may be by an agent is subject to the following submitted in lieu of the original. How- conditions: ever, the original document shall be (1) An agent performing the function submitted if requested by the Director. of an employer must provide the con- (iv) Other filing situations—(A) Services tractual agreement between the agent in more than one location. A petition and the beneficiary which specifies the which requires the alien to work in wage offered and the other terms and more than one location must include conditions of employment of the bene- an itinerary with the dates and loca- ficiary. tions of work. (2) A person or company in business (B) Services for more than one em- as an agent may file the petition in- ployer. If the beneficiary will work con- volving multiple employers as the rep- currently for more than one employer resentative of both the employers and within the same time period, each em- the beneficiary, if the supporting docu- ployer must file a separate petition un- mentation includes a complete less an established agent files the peti- itinerary of the event or events. The tion. itinerary must specify the dates of (C) Change of employer. If an O–1 or O– each service or engagement, the names 2 alien in the United States seeks to and addresses of the actual employers, change employers, the new employer and the names and addresses of the es- must file a petition and a request to tablishments, venues, or locations extend the alien’s stay. An O–2 alien where the services will be performed. A may change employers only in conjunc- contract between the employers and tion with a change of employers by the the beneficiary is required. The burden principal O–1 alien. If the O–1 or O–2 pe- is on the agent to explain the terms tition was filed by an agent, an amend- and conditions of the employment and ed petition must be filed with evidence to provide any required documenta- relating to the new employer and a re- tion. quest for an extension of stay. (3) A foreign employer who, through (D) Amended petition. The petitioner a United States agent, files a petition shall file an amended petition on the for an O nonimmigrant alien is respon- form prescribed by USCIS, with fee, to sible for complying with all of the em- reflect any material changes in the ployer sanctions provisions of section terms and conditions of employment or 274A of the Act and 8 CFR part 274a. the beneficiary’s eligibility as specified (F) Multiple beneficiaries. More than in the original approved petition. In one O–2 accompanying alien may be in- the case of a petition filed for an artist cluded on a petition if they are assist- or entertainer, a petitioner may add ing the same O–1 alien for the same additional performances or engage- events or performances, during the ments during the validity period of the same period, and in the same location. petition without filing an amended pe- Up to 25 named beneficiaries may be in- tition, provided the additional per- cluded per petition. formances or engagements require an (G) Traded professional O–1 athletes. In alien of O–1 caliber. the case of a professional O–1 athlete (E) Agents as petitioners. A United who is traded from one organization to States agent may file a petition in another organization, employment au- cases involving workers who are tradi- thorization for the player will auto- tionally self-employed or workers who matically continue for a period of 30 use agents to arrange short-term em- days after acquisition by the new orga- ployment on their behalf with numer- nization, within which time the new ous employers, and in cases where a organization is expected to file a new foreign employer authorizes the agent application or petition. If a new appli- to act in its behalf. A United States cation or petition is not filed within 30 agent may be: The actual employer of days, employment authorization will the beneficiary, the representative of cease. If a new application or petition both the employer and the beneficiary; is filed within 30 days, the professional

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athlete shall be deemed to be in valid Extraordinary ability in the field of O–1 status, and employment shall con- science, education, business, or athletics tinue to be authorized, until the peti- means a level of expertise indicating tion is adjudicated. If the new petition that the person is one of the small per- is denied, employment authorization centage who have arisen to the very will cease. top of the field of endeavor. (3) Petition for alien of extraordinary Extraordinary achievement with re- ability or achievement (O–1)—(i) General. spect to motion picture and television Extraordinary ability in the sciences, productions, as commonly defined in arts, education, business, or athletics, the industry, means a very high level or extraordinary achievement in the of accomplishment in the motion pic- case of an alien in the motion picture ture or television industry evidenced or television industry, must be estab- by a degree of skill and recognition sig- lished for an individual alien. An O–1 nificantly above that ordinarily en- petition must be accompanied by evi- countered to the extent that the person dence that the work which the alien is coming to the United States to con- is recognized as outstanding, notable, tinue is in the area of extraordinary or leading in the motion picture or tel- ability, and that the alien meets the evision field. criteria in paragraph (o)(3)(iii) or (iv) Peer group means a group or organi- of this section. zation which is comprised of practi- (ii) Definitions. As used in this para- tioners of the alien’s occupation. If graph, the term: there is a collective bargaining rep- Arts includes any field of creative ac- resentative of an employer’s employees tivity or endeavor such as, but not lim- in the occupational classification for ited to, fine arts, visual arts, culinary which the alien is being sought, such a arts, and performing arts. Aliens en- representative may be considered the gaged in the field of arts include not appropriate peer group for purposes of only the principal creators and per- consultation. formers but other essential persons (iii) Evidentiary criteria for an O–1 such as, but not limited to, directors, alien of extraordinary ability in the fields set designers, lighting designers, sound of science, education, business, or ath- designers, choreographers, letics. An alien of extraordinary ability choreologists, conductors, orchestra- in the fields of science, education, busi- tors, coaches, arrangers, musical super- ness, or athletics must demonstrate visors, costume designers, makeup art- sustained national or international ac- ists, flight masters, stage technicians, claim and recognition for achieve- and animal trainers. ments in the field of expertise by pro- Event means an activity such as, but viding evidence of: not limited to, a scientific project, con- (A) Receipt of a major, internation- ference, convention, lecture series, ally recognized award, such as the tour, exhibit, business project, aca- Nobel Prize; or demic year, or engagement. Such ac- (B) At least three of the following tivity may include short vacations, forms of documentation: promotional appearances, and stopovers which are incidental and/or re- (1) Documentation of the alien’s related to the event. A group of related ceipt of nationally or internationally activities may also be considered to be recognized prizes or awards for excel- an event. In the case of an O–1 athlete, lence in the field of endeavor; the event could be the alien’s contract. (2) Documentation of the alien’s Extraordinary ability in the field of arts membership in associations in the field means distinction. Distinction means a for which classification is sought, high level of achievement in the field which require outstanding achieve- of arts evidenced by a degree of skill ments of their members, as judged by and recognition substantially above recognized national or international that ordinarily encountered to the ex- experts in their disciplines or fields; tent that a person described as promi- (3) Published material in professional nent is renowned, leading, or well- or major trade publications or major known in the field of arts. media about the alien, relating to the

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alien’s work in the field for which clas- (2) Evidence that the alien has sification is sought, which shall in- achieved national or international rec- clude the title, date, and author of ognition for achievements evidenced by such published material, and any nec- critical reviews or other published ma- essary translation; terials by or about the individual in (4) Evidence of the alien’s participa- major newspapers, trade journals, mag- tion on a panel, or individually, as a azines, or other publications; judge of the work of others in the same (3) Evidence that the alien has per- or in an allied field of specialization to formed, and will perform, in a lead, that for which classification is sought; starring, or critical role for organiza- (5) Evidence of the alien’s original tions and establishments that have a scientific, scholarly, or business-re- distinguished reputation evidenced by lated contributions of major signifi- articles in newspapers, trade journals, cance in the field; publications, or testimonials; (6) Evidence of the alien’s authorship (4) Evidence that the alien has a of scholarly articles in the field, in pro- record of major commercial or criti- fessional journals, or other major cally acclaimed successes as evidenced media; by such indicators as title, rating, (7) Evidence that the alien has been standing in the field, box office re- employed in a critical or essential ca- ceipts, motion pictures or television pacity for organizations and establish- ratings, and other occupational ments that have a distinguished rep- achievements reported in trade jour- utation; nals, major newspapers, or other publi- (8) Evidence that the alien has either cations; commanded a high salary or will command a high salary or other remunera- (5) Evidence that the alien has re- tion for services, evidenced by con- ceived significant recognition for tracts or other reliable evidence. achievements from organizations, crit- (C) If the criteria in paragraph ics, government agencies, or other rec- (o)(3)(iii) of this section do not readily ognized experts in the field in which apply to the beneficiary’s occupation, the alien is engaged. Such testimonials the petitioner may submit comparable must be in a form which clearly indi- evidence in order to establish the bene- cates the author’s authority, expertise, ficiary’s eligibility. and knowledge of the alien’s achieve- (iv) Evidentiary criteria for an O–1 ments; or alien of extraordinary ability in the arts. (6) Evidence that the alien has either To qualify as an alien of extraordinary commanded a high salary or will com- ability in the field of arts, the alien mand a high salary or other substan- must be recognized as being prominent tial remuneration for services in rela- in his or her field of endeavor as dem- tion to others in the field, as evidenced onstrated by the following: by contracts or other reliable evidence; (A) Evidence that the alien has been or nominated for, or has been the recipi- (C) If the criteria in paragraph ent of, significant national or inter- (o)(3)(iv) of this section do not readily national awards or prizes in the par- apply to the beneficiary’s occupation, ticular field such as an Academy the petitioner may submit comparable Award, an Emmy, a Grammy, or a Di- evidence in order to establish the bene- rector’s Guild Award; or ficiary’s eligibility. (B) At least three of the following (v) Evidentiary criteria for an alien of forms of documentation: extraordinary achievement in the motion ( ) Evidence that the alien has per- 1 picture or television industry. To qualify formed, and will perform, services as a as an alien of extraordinary achieve- lead or starring participant in produc- ment in the motion picture or tele- tions or events which have a distinguished reputation as evidenced by vision industry, the alien must be rec- critical reviews, advertisements, pub- ognized as having a demonstrated licity releases, publications contracts, record of extraordinary achievement as or endorsements; evidenced by the following:

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(A) Evidence that the alien has been panying alien provides essential sup- nominated for, or has been the recipi- port to an O–1 artist or athlete. Such ent of, significant national or inter- aliens may not accompany O–1 aliens national awards or prizes in the par- in the fields of science, business, or ticular field such as an Academy education. Although the O–2 alien must Award, an Emmy, a Grammy, or a Di- obtain his or her own classification, rector’s Guild Award; or this classification does not entitle him (B) At least three of the following or her to work separate and apart from forms of documentation: the O–1 alien to whom he or she pro- (1) Evidence that the alien has per- vides support. An O–2 alien must be pe- formed, and will perform, services as a titioned for in conjunction with the lead or starring participant in produc- services of the O–1 alien. tions or events which have a distin- (ii) Evidentiary criteria for qualifying guished reputation as evidenced by as an O–2 accompanying alien—(A) Alien critical reviews, advertisements, pub- accompanying an O–1 artist or athlete of licity releases, publications contracts, extraordinary ability. To qualify as an or endorsements; O–2 accompanying alien, the alien (2) Evidence that the alien has must be coming to the United States to achieved national or international rec- assist in the performance of the O–1 ognition for achievements evidenced by alien, be an integral part of the actual critical reviews or other published ma- performance, and have critical skills terials by or about the individual in and experience with the O–1 alien major newspapers, trade journals, mag- which are not of a general nature and azines, or other publications; which are not possessed by a U.S. (3) Evidence that the alien has per- worker. formed, and will perform, in a lead, (B) Alien accompanying an O–1 alien of starring, or critical role for organiza- extraordinary achievement. To qualify as tions and establishments that have a an O–2 alien accompanying and O–1 distinguished reputation evidenced by alien involved in a motion picture or articles in newspapers, trade journals, television production, the alien must publications, or testimonials; have skills and experience with the O– (4) Evidence that the alien has a 1 alien which are not of a general na- record of major commercial or criti- ture and which are critical based on a cally acclaimed successes as evidenced pre-existing longstanding working re- by such indicators as title, rating, lationship or, with respect to the spe- standing in the field, box office re- cific production, because significant ceipts, motion picture or television production (including pre- and post- ratings, and other occupational production work) will take place both achievements reported in trade jour- inside and outside the United States nals, major newspapers, or other publi- and the continuing participation of the cations; alien is essential to the successful com- (5) Evidence that the alien has re- pletion of the production. ceived significant recognition for (C) The evidence shall establish the achievements from organizations, crit- current essentiality, critical skills, and ics, government agencies, or other rec- experience of the O–2 alien with the O– ognized experts in the field in which 1 alien and that the alien has substan- the alien is engaged. Such testimonials tial experience performing the critical must be in a form which clearly indi- skills and essential support services for cates the author’s authority, expertise, the O–1 alien. In the case of a specific and knowledge of the alien’s achieve- motion picture or television produc- ments; or tion, the evidence shall establish that (6) Evidence that the alien has either significant production has taken place commanded a high salary or will com- outside the United States, and will mand a high salary or other substan- take place inside the United States, tial remuneration for services in rela- and that the continuing participation tion to other in the field, as evidenced of the alien is essential to the success- by contracts or other reliable evidence. ful completion of the production. (4) Petition for an O–2 accompanying (5) Consultation—(i) General. (A) Con- alien—(i) General. An O–2 accom- sultation with an appropriate U.S. peer

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

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achievements in the field of endeavor, quired for an O–2 alien accompanying describe the nature of the duties to be an O–1 alien of extraordinary ability. performed, and state whether the posi- In the case of an O–2 alien seeking tion requires the services of an alien of entry for a motion picture or television extraordinary ability. A consulting or- production, consultation with a labor ganization may also submit a letter of organization and a management orga- no objection in lieu of the above if it nization in the area of the alien’s abil- has no objection to the approval of the ity is required. If an advisory opinion petition. is not favorable to the petitioner, the (B) Waiver of consultation of certain advisory opinion must set forth a spe- aliens of extraordinary ability in the field cific statement of facts which supports of arts. Consultation for an alien of ex- the conclusion reached in the opinion. traordinary ability in the field of arts If the advisory opinion is favorable to shall be waived by the Director in the petitioner, the opinion provided by those instances where the alien seeks the labor and/or management organiza- readmission to the United States to tion should describe the alien’s essen- perform similar services within 2 years tiality to, and working relationship of the date of a previous consultation. with, the O–1 artist or athlete and The director shall, within 5 days of state whether there are available U.S. granting the waiver, forward a copy of workers who can perform the support the petition and supporting docu- services. If the alien will accompany an mentation to the national office of an O–1 alien involved in a motion picture appropriate labor organization. Peti- or television production, the advisory tioners desiring to avail themselves of opinion should address the alien’s the waiver should submit a copy of the skills and experience wit the O–1 alien prior consultation with the petition and whether the alien has a pre-exist- and advise the Director of the waiver ing longstanding working relationship request. with the O–1 alien, or whether signifi- (iii) Consultation requirements for an cant production will take place in the O–1 alien of extraordinary achievement. United States and abroad and if the In the case of an alien of extraordinary continuing participation of the alien is achievement who will be working on a essential to the successful completion motion picture or television produc- of the production. A consulting organi- tion, consultation shall be made with zation may also submit a letter of no the appropriate union representing the objection in lieu of the above if it has alien’s occupational peers and a man- no objection to the approval of the pe- agement organization in the area of tition. the alien’s ability. If an advisory opin- (v) Organizations agreeing to provide ion is not favorable to the petitioner, advisory opinions. The Service will list the advisory opinion must set forth a in its Operations Instructions for O specific statement of facts which sup- classification those peer groups, labor ports the conclusion reached in the organizations, and/or management or- opinion. If the advisory opinion is fa- ganizations which have agreed to pro- vorable to the petitioner, the written vide advisory opinions to the Service advisory opinion from the labor and and/or petitioners. The list will not be management organizations should de- an exclusive or exhaustive list. The scribe the alien’s achievements in the Service and petitioners may use other motion picture or television field and sources, such as publications, to iden- state whether the position requires the tify appropriate peer groups, labor or- services of an alien of extraordinary ganizations, and management organi- achievement. If a consulting organiza- zations. Additionally, the Service will tion has no objection to the approval of list in its Operations Instructions the petition, the organization may sub- those occupations or fields of endeavor mit a letter of no objection in lieu of where the nonexistence of an appro- the above. priate consulting entity has been (iv) Consultation requirements for an verified. O–2 accompanying alien. Consultation (6) Approval and validity of petition— with a labor organization with exper- (1) Approval. The Director shall con- tise in the skill area involved is re- sider all of the evidence submitted and

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such other evidence as may be inde- the spouse nor a child of the alien ben- pendently required to assist in the ad- eficiary may accept employment un- judication. The Director shall notify less he or she has been granted employ- the petitioner of the approval of the pe- ment authorization. tition on Form I–797, Notice of Action. (7) The petitioner shall be notified of The approval notice shall include the the decision, the reasons for the denial, alien beneficiary name, the classifica- and the right to appeal the denial tion, and the petition’s period of valid- under 8 CFR part 103. ity. (8) Revocation of approval of petition— (ii) Recording the validity of petitions. (i) General. (A) The petitioner shall im- Procedures for recording the validity mediately notify the Service of any period of petitions are as follows; changes in the terms and conditions of (A) If a new O petition is approved employment of a beneficiary which before the date the petitioner indicates may affect eligibility under section the services will begin, the approved 101(a)(15)(O) of the Act and paragraph petition and approval notice shall show (o) of this section. An amended petition the actual dates requested by the peti- should be filed when the petitioner con- tioner, not to exceed the limit specified tinues to employ the beneficiary. If the by paragraph (o)(6)(iii) of this section petitioner no longer employs the bene- or other Service policy. ficiary, the petitioner shall send a let- (B) If a new 0 petition is approved ter explaining the change(s) to the Di- after the date the petitioner indicates rector who approved the petition. the services will begin, the approved (B) The Director may revoke a peti- petition and approval notice shall gen- tion at any time, even after the valid- erally show a validity period com- ity of the petition has expired. mencing with the date of approval and (ii) Automatic revocation. The ap- ending with the date requested by the proval of an unexpired petition is auto- petitioner, not to exceed the limit matically revoked if the petitioner, or specified by paragraph (o)(6)(iii) of this the named employer in a petition filed section or other Service policy. by an agent, goes out of business, files (C) If the period of services requested a written withdrawal of the petition, or by the petitioner exceeds the limit notifies the Service that the bene- specified in paragraph (o)(6)(iii) of this ficiary is no longer employed by the pe- section, the petition shall be approved titioner. only up to the limit specified in that (iii) Revocation on notice—(A) Grounds paragraph. for revocation. The Director shall send (iii) Validity—(A) O–1 petition. An ap- to the petitioner a notice of intent to proved petition for an alien classified revoke the petition in relevant part if under section 101(a)(15)(O)(i) of the Act is determined that: shall be valid for a period of time determined by the Director to be nec- (1) The beneficiary is no longer em- essary to accomplish the event or ac- ployed by the petitioner in the capac- tivity, not to exceed 3 years. ity specified in the petition; (B) O–2 petition. An approved petition (2) The statement of facts contained for an alien classified under section in the petition was not true and cor- 101(a)(15)(O)(ii) of the Act shall be valid rect; for a period of time determined to be (3) The petitioner violated the terms necessary to assist the O–1 alien to ac- or conditions of the approved petition; complish the event or activity, not to (4) The petitioner violated the re- exceed 3 years. quirements of section 101(a)(15)(O) of (iv) Spouse and dependents. The the Act or paragraph (o) of this sec- spouse and unmarried minor children tion; or of the O–1 or O–2 alien beneficiary are (5) The approval of the petition vio- entitled to O–3 nonimmigrant classi- lated paragraph (o) of this section or fication, subject to the same period of involved gross error. admission and limitations as the alien (B) Notice and decision. The notice of beneficiary, if they are accompanying intent to revoke shall contain a de- or following to join the alien bene- tailed statement of the grounds for the ficiary in the United States. Neither revocation and the time period allowed

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for the petitioner’s rebuttal. The peti- sion to the consular office abroad tioner may submit evidence in rebuttal where the alien will apply for a visa. within 30 days of the date of the notice. (ii) Extension period. An extension of The Director shall consider all relevant stay may be authorized in increments evidence presented in deciding whether of up to 1 year for an O–1 or O–2 bene- to revoke the petition. ficiary to continue or complete the (9) Appeal of a denial or a revocation of same event or activity for which he or a petition—(i) Denial. A denied petition she was admitted plus an additional 10 may be appealed under 8 CFR part 103. days to allow the beneficiary to get his (ii) Revocation. A petition that has or her personal affairs in order. been revoked on notice may be ap- (iii) Denial of an extension of stay. The pealed under 8 CFR part 103. Automatic denial of the request for the alien’s ex- revocations may not be appealed. tension of temporary stay may not be (10) Admission. A beneficiary may be appealed. admitted to the United States for the (13) Effect of approval of a permanent validity period of the petition, plus a labor certification or filing of a preference period of up to 10 days before the valid- petition on O classification. The approval ity period begins and 10 days after the of a permanent labor certification or validity period ends. The beneficiary the filing of a preference petition for may only engage in employment dur- an alien shall not be a basis for denying the validity period of the petition. ing an O–1 petition, a request to extend (11) Extention of visa petition validity. such a petition, or the alien’s applica- The petitioner shall file a request to tion for admission, change of status, or extend the validity of the original peti- extension of stay. The alien may legiti- tion under section 101(a)(15)(O) of the mately come to the United States for a Act on the form prescribed by USCIS, temporary period as an O–1 non- in order to continue or complete the immigrant and depart voluntarily at same activities or events specified in the end of his or her authorized stay the original petition. Supporting docu- and, at the same time, lawfully seek to ments are not required unless re- become a permanent resident of the quested by the Director. A petition ex- United States. tension may be filed only if the valid- (14) Effect of a strike. (i) If the Sec- ity of the original petition has not ex- retary of Labor certifies to the Com- pired. missioner that a strike or other labor (12) Extension of stay—(i) Extension dispute involving a work stoppage of procedure. The petitioner shall request workers is in progress in the occupa- extension of the alien’s stay to con- tion at the place where the beneficiary tinue or complete the same event or is to be employed, and that the em- activity by filing an application or pe- ployment of the beneficiary would ad- tition, accompanied by a statement ex- versely affect the wages and working plaining the reasons for the extension. conditions of U.S. citizens and lawful The petitioner must also request a pe- resident workers: tition extension. The dates of exten- (A) A petition to classify an alien as sion shall be the same for the petition a nonimmigrant as defined in section and the beneficiary’s extension of stay. 101(a)(15)(O) of the Act shall be denied; The alien beneficiary must be phys- or ically present in the United States at (B) If a petition has been approved, the time of filing of the extension of but the alien has not yet entered the stay. Even though the request to ex- United States, or has entered the tend the petition and the alien’s stay United States but has not commenced are combined on the petition, the Di- employment, the approval of the peti- rector shall make a separate deter- tion is automatically suspended, and mination on each. If the alien leaves the application for admission on the the United States for business or per- basis of the petition shall be denied. sonal reasons while the extension re- (ii) If there is a strike or other labor quests are pending, the petitioner may dispute involving a work stoppage of request the Director to cable notifica- workers in progress, but such strike or tion of approval of the petition exten- other labor dispute is not certified

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under paragraph (o)(14)(i) of this sec- tering the United States to resume the tion, the Commissioner shall not deny same employment with the same peti- a petition or suspend an approved petitioner. tion. (16) Return transportation requirement. (iii) If the alien has already com- In the case of an alien who enters the menced employment in the United United States under section 101(a)(15(O) States under an approved petition and of the Act and whose employment ter- is participating in a strike or labor dis- minates for reasons other than vol- pute involving a work stoppage of untary resignation, the employer workers, whether or not such strike or whose offer of employment formed the other labor dispute has been certified basis of such nonimmigrant status and by the Secretary of Labor, the alien the petitioner are jointly and severally shall not be deemed to be failing to liable for the reasonable cost of return maintain his or her status solely on ac- transportation of the alien abroad. For count of past, present, or future par- the purposes of this paragraph, the ticipation in a strike or other labor term ‘‘abroad’’ means the alien’s last dispute involving a work stoppage of place of residence prior to his or her workers but is subject to the following entry into the United States. terms and conditions: (p) Artists, athletes, and entertainers— (A) The alien shall remain subject to (1) Classifications—(i) General. Under all applicable provisions of the Immi- section 101(a)(15)(P) of the Act, an alien gration and Nationality Act and regu- having a residence in a foreign country lations promulgated thereunder in the which he or she has not intention or same manner as are all other O non- abandoning may be authorized to come immigrants; to the United States temporarily to (B) The status and authorized period perform services for an employer or a of stay of such an alien is not modified sponsor. Under the nonimmigrant cat- or extended in any way by virtue of his egory, the alien may be classified or her participation in a strike or other under section 101(a)(15)(P)(i) of the Act labor dispute involving a work stop- as an alien who is coming to the United page of workers; and States to perform services as an inter- (C) Although participation by an O nationally recognized athlete, individ- nonimmigrant alien in a strike or ually or as part of a group or team, or other labor dispute involving a work member of an internationally recog- stoppage of workers will not constitute nized entertainment group; under sec- a ground for deportation, and alien who tion 101(a)(15)(P)(ii) of the Act, who is violates his or her status or who re- coming to perform as an artist or en- mains in the United States after his or tertainer under a reciprocal exchange her authorized period of stay has ex- program; under section 101(a)(15)(P)(iii) pired will be subject to deportation. of the Act, as an alien who is coming (15) Use of approval notice, Form I–797. solely to perform, teach, or coach The Service shall notify the petitioner under a program that is culturally of Form I–797 whenever a visa petition unique; or under section or an extension of a visa petition is ap- 101(a)(15)(P)(iv) of the Act, as the proved under the O classification. The spouse or child of an alien described in beneficiary of an O petition who does section 101(a)(15)(P) (i), (ii), or (iii) of not require a nonimmigrant visa may the Act who is accompanying or fol- present a copy of the approval notice lowing to join the alien. These classi- at a Port-of-Entry to facilitate entry fications are called P–1, P–2, P–3, and into the United States. A beneficiary P–4 respectively. The employer or who is required to present a visa for ad- sponsor must file a petition with the mission, and who visa will have expired Service for review of the services to be before the date of his or her intended performed and for determination of the return, may use Form I–797 to apply for alien’s eligibility for P–1, P–2, or P–3 a new or revalidated visa during the classification before the alien may validity period of the petition. A copy apply for a visa or seek admission to of Form I–797 shall be retained by the the United States. This paragraph sets beneficiary and presented during the forth the standards and procedures ap- validity of the petition when reen- plicable to these classifications.

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(ii) Description of classification. (A) A foreign employer must be authorized to P–1 classification applies to an alien file the petition, and to accept service who is coming temporarily to the of process in the United States in pro- United States: ceedings under section 274A of the Act, (1) To perform at specific athletic on behalf of the foreign employer. A P– competition as an athlete, individually 2 petition for an artist or entertainer or as part of a group or team, at an in a reciprocal exchange program shall internationally recognized level or per- be filed by the United States labor or- formance, or ganization which negotiated the recip- (2) To perform with, or as an integral rocal exchange agreement, the spon- and essential part of the performance soring organization, or a United States of, and entertainment group that has employer. A P–3 petition for an artist been recognized internationally as or entertainer in a culturally unique being outstanding in the discipline for program shall be filed by the spon- a sustained and substantial period of soring organization or a United States time, and who has had a sustained and employer. Essential support personnel substantial relationship with the group may not be included on the petition (ordinarily for at least 1 year) and pro- filed for the principal alien(s). These vides functions integral to the perform- aliens require a separate petition. The ance of the group. petitioner must file a P petition on the (B) A P–2 classification applies to an form prescribed by USCIS. The petition alien who is coming temporarily to the may not be filed more than one year United States to perform as an artist before the actual need for the alien’s or entertainer, individually or as part services. A P–1, P–2, or P–3 petition of a group, or to perform as an integral shall be adjudicated at the appropriate part of the performance of such a Service Center, even in emergency sit- group, and who seeks to perform under uations. a reciprocal exchange program which is (ii) Evidence required to accompany a between an organization or organiza- petition for a P nonimmigrant. Petitions tions in the United States and an orga- for P nonimmigrant aliens shall be ac- nization or organizations in one or companied by the following: more foreign states, and which pro- (A) The evidence specified in the spe- vides for the temporary exchange of cific section of this part for the classi- artists and entertainers, or groups of fication; artists and entertainers. (B) Copies of any written contracts (C) A P–3 classification applies to an between the petitioner and the alien alien artist or entertainer who is com- beneficiary or, if there is no written ing temporarily to the United States, contract, a summary of the terms of either individually or as part of a the oral agreement under which the group, or as an integral part of the per- alien(s) will be employed; formance of the group, to perform, (C) An explanation of the nature of teach, or coach under a commercial or the events or activities, the beginning noncommercial program that is cul- and ending dates for the events or ac- turally unique. tivities, and a copy of any itinerary for (2) Filing of petitions—(i) General. A P– the events or activities; and 1 petition for an athlete or entertain- (D) A written consultation from a ment group shall be filed by a United labor organization. States employer, a United States spon- (iii) Form of documentation. The evi- soring organization, a United States dence submitted with an P petition agent, or a foreign employer through a should conform to the following: United States agent. For purposes of (A) Affidavits, contracts, awards, and paragraph (p) of this section, a foreign similar documentation must reflect employer is any employer who is not the nature of the alien’s achievement amenable to service of process in the and be executed by an officer or respon- United States. Foreign employers seek- sible person employed by the institu- ing to employ a P–1 alien may not dition, establishment, or organization rectly petition for the alien but must where the work has performed. use a United States agent. A United (B) Affidavits written by present or States agent petitioning on behalf of a former employers or recognized experts

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

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required. The burden is on the agent to formances A group of related activities explain the terms and conditions of the will also be considered an event. In the employment and to provide any re- case of a P–2 petition, the event may be quired documentation. the duration of the reciprocal exchange (3) A foreign employer who, through agreement. In the case of a P–1 athlete, a United States agent, files a petition the event may be the duration of the for a P nonimmigrant alien is respon- alien’s contract. sible for complying with all of the em- Contract means the written agree- ployer sanctions provisions of section ment between the petitioner and the 274A of the Act and 8 CFR part 274a. beneficiary(ies) that explains the terms (F) Multiple beneficiaries. More than and conditions of employment. The one beneficiary may be included in a P contract shall describe the services to petition if they are members of a team be performed, and specify the wages, or group, or if they will provide essen- hours of work, working conditions, and tial support to P–1, P–2, or P–3 bene- any fringe benefits. ficiaries performing in the same loca- Culturally unique means a style of ar- tion and in the same occupation. Up to tistic expression, methodology, or me- 25 named beneficiaries may be included dium which is unique to a particular per petition. country, nation, society, class, eth- (G) Named beneficiaries. Petitions for nicity, religion, tribe, or other group of P classification must include the persons. names of beneficiaries and other re- Essential support alien means a highly quired information at the time of fil- skilled, essential person determined by ing. the Director to be an integral part of (H) Substitution of beneficiaries. A pe- the performance of a P–1, P–2, or P–3 titioner may request substitution of alien because he or she performs sup- beneficiaries in approved P–1, P–2, and port services which cannot be readily P–3 petitions for groups. To request performed by a United States worker substitution, the petitioner shall sub- and which are essential to the success- mit a letter requesting such substi- ful performance of services by the P–1, tution, along with a copy of the peti- P–2, alien. Such alien must have appro- tioner’s approval notice, to the con- priate qualifications to perform the sular office at which the alien will services, critical knowledge of the spe- apply for a visa or the Port-of-Entry cific services to be performed, and ex- where the alien will apply for admis- perience in providing such support to sion. Essential support personnel may the P–1, P–2, or P–3 alien. not be substituted at consular offices Group means two or more persons es- or at Ports-of-entry. In order to add ad- tablished as one entity or unit to per- ditional new essential support perform or to provide a service. sonnel, a new petition must be filed. Internationally recognized means hav- (3) Definitions. As used in this para- ing a high level of achievement in a graph, the term: field evidenced by a degree of skill and Arts includes fields of creative activ- recognition substantially above that ity or endeavor such as, but not lim- ordinarily encountered, to the extent ited to, fine arts, visual arts, and per- that such achievement is renowned, forming arts. leading, or well-known in more than Competition, event, or performance one country. means an activity such as an athletic Member of a group means a person competition, athletic season, tour- who is actually performing the enter- nament, tour, exhibit, project, entertainment services. tainment event, or engagement. Such Sponsor means an established organi- activity could include short vacations, zation in the United States which will promotional appearances for the peti- not directly employ a P–1, P–2, or P–3 tioning employer relating to the com- alien but will assume responsibility for petition, event, or performance, and the accuracy of the terms and condi- stopovers which are incidental and/or tions specified in the petition. related to the activity. An athletic Team means two or more persons or- competition or entertainment event ganized to perform together as a com- could include an entire season of per- petitive unit in a competitive event.

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

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

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

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

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

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Service that no appropriate labor orga- tertainment group classified under sec- nization exists. tion 101(a)(15)(P)(i) of the Act shall be (8) Approval and validity of petition— valid for a period of time determined (i) Approval. The Director shall con- by the Director to be necessary to com- sider all the evidence submitted and plete the performance or event for such other evidence as he or she may which the group is being admitted, not independently require to assist in his to exceed 1 year. or her adjudication. The Director shall (C) P–2 and P–3 petitions for artists or notify the petitioner of the approval of entertainers. An approved petition for the petition on Form I–797, Notice of an artist or entertainer under section Action. The approval notice shall in- 101(a)(15)(P)(ii) or (iii) of the Act shall clude the alien beneficiary’s name and be valid for a period of time deter- classification and the petition’s period mined by the Director to be necessary of validity. to complete the event, activity, or per- (ii) Recording the validity of petitions. formance for which the P–2 or P–3 alien Procedures for recording the validity is admitted, not to exceed 1 year. period of petitions are: (D) Spouse and dependents. The spouse (A) If a new P petition is approved and unmarried minor children of a P–1, before the date the petitioner indicates P–2, or P–3 alien beneficiary are enti- the services will begin, the approved tled to P–4 nonimmigrant classifica- petition and approval notice shall show tion, subject to the same period of ad- the actual dates requested by the peti- mission and limitations as the alien tioner as the validity period, not to ex- beneficiary, if they are accompanying ceed the limit specified in paragraph or following to join the alien bene- (p)(8)(iii) of this section or other Serv- ficiary in the United States. Neither ice policy. the spouse nor a child of the alien ben- (B) If a new P petition is approved eficiary may accept employment un- after the date the petitioner indicates less he or she has been granted employ- the services will begin, the approved ment authorization. petition and approval notice shall gen- (E) Essential support aliens. Petitions erally show a validity period com- for essential support personnel to P–1, mencing with the date of approval and P–2, and P–3 aliens shall be valid for a ending with the date requested by the period of time determined by the Di- petitioner, not to exceed the limit rector to be necessary to complete the specified in paragraph (p)(8)(iii) of this event, activity, or performance for section or other Service policy. which the P–1, P–2, or P–3 alien is ad- (C) If the period of services requested mitted, not to exceed 1 year. by the petitioner exceeds the limit (9) The petitioner shall be notified of specified in paragraph (p)(8)(iii) of this the decision, the reasons for the denial, section, the petition shall be approved and the right to appeal the denial only up to the limit specified in that under 8 CFR part 103. There is no ap- paragraph. peal from a decision to deny an exten- (iii) Validity. The approval period of a sion of stay to the alien or a change of P petition shall conform to the limits nonimmigrant status. prescribed as follows: (10) Revocation of approval of peti- (A) P–1 petition for athletes. An ap- tion—(i) General. (A) The petitioner proved petition for an individual ath- shall immediately notify the Service of lete classified under section any changes in the terms and condi- 101(a)(15)(P)(i) of the Act shall be valid tions of employment of a beneficiary for a period up to 5 years. An approved which may affect eligibility under sec- petition for an athletic team classified tion 101(a)(15)(P) of the Act and para- under section 101(a)(15)(P)(i) of the Act graph (p) of this section. An amended shall be valid for a period of time de- petition should be filed when the peti- termined by the Director to complete tioner continues to employ the bene- the competition or event for which the ficiary. If the petitioner no longer em- alien team is being admitted, not to ex- ploys the beneficiary, the petitioner ceed 1 year. shall send a letter explaining the (B) P–1 petition for an entertainment change(s) to the Director who approved group. An approved petition for an en- the petition.

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(B) The Director may revoke a petition under section 101(a)(15)(P) of the tion at any time, even after the valid- Act on the form prescribed by USCIS in ity of the petition has expired. order to continue or complete the same (ii) Automatic revocation. The ap- activity or event specified in the origi- proval of an unexpired petition is auto- nal petition. Supporting documents are matically revoked if the petitioner, or not required unless requested by the the employer in a petition filed by an Director. A petition extension may be agent, goes out of business, files a writ- filed only if the validity of the original ten withdrawal of the petition, or noti- petition has not expired. fies the Service that the beneficiary is (14) Extension of stay—(i) Extension no longer employed by the petitioner. procedure. The petitioner shall request (iii) Revocation on notice—(A) Grounds extension of the alien’s stay to con- for revocation. The Director shall send tinue or complete the same event or to the petitioner a notice of intent to activity by filing the form prescribed revoke the petition in relevant part if by USCIS, accompanied by a statement he or she finds that: explaining the reasons for the exten- (1) The beneficiary is no longer em- sion. The petitioner must also request ployed by the petitioner in the capac- a petition extension. The extension ity specified in the petition; dates shall be the same for the petition (2) The statement of facts contained and the beneficiary’s stay. The bene- in the petition were not true and cor- ficiary must be physically present in rect; the United States at the time the ex- (3) The petitioner violated the terms tension of stay is filed. Even though or conditions of the approved petition; the requests to extend the petition and (4) The petitioner violated require- the alien’s stay are combined on the ments of section 101(a)(15)(P) of the Act petition, the Director shall make a sep- or paragraph (p) of this section; or arate determination on each. If the (5) The approval of the petition vio- alien leaves the United States for busi- lated paragraph (p) of this section or ness or personal reasons while the ex- involved gross error. tension requests are pending, the peti- (B) Notice and decision. The notice of tioner may request the Director to intent to revoke shall contain a de- cable notification of approval of the pe- tailed statement of the grounds for the tition extension to the consular office revocation and the time period allowed abroad where the alien will apply for a for the petitioner’s rebuttal. The peti- visa. tioner may submit evidence in rebuttal within 30 days of the date of the notice. (ii) Extension periods—(A) P–1 indi- The Director shall consider all relevant vidual athlete. An extension of stay for evidence presented in deciding whether a P–1 individual athlete and his or her to revoke the petition. essential support personnel may be au- (11) Appeal of a denial or a revocation thorized for a period up to 5 years for a of a petition—(i) Denial. A denied peti- total period of stay not to exceed 10 tion may be appealed under 8 CFR part years. 103. (B) Other P–1, P–2, and P–3 aliens. An (ii) Revocation. A petition that has extension of stay may be authorized in been revoked on notice may be ap- increments of 1 year for P–1 athletic pealed under 8 CFR part 103. Automatic teams, entertainment groups, aliens in revocations may not be appealed. reciprocal exchange programs, aliens (12) Admission. A beneficiary may be in culturally unique programs, and admitted to the United States for the their essential support personnel to validity period of the petition, plus a continue or complete the same event or period of up to 10 days before the valid- activity for which they were admitted. ity period begins and 10 days after the (15) Effect of approval of a permanent validity period ends. The beneficiary labor certification or filing of a preference may not work except during the valid- petition on P classification. The approval ity period of the petition. of a permanent labor certification or (13) Extension of visa petition validity. the filing of a preference petition for The petitioner shall file a request to an alien shall not be a basis for deny- extend the validity of the original peti- ing a P petition, a request to extend

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

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(q) Cultural visitors—(1)(i) Inter- Qualified employer means a United national cultural exchange visitors pro- States or foreign firm, corporation, gram. Paragraphs (q)(2) through (q)(11) non-profit organization, or other legal of this section provide the rules gov- entity (including its U.S. branches, erning nonimmigrant aliens who are subsidiaries, affiliates, and franchises) visiting the United States temporarily which administers an international in an international cultural exchange cultural exchange program designated visitors program (Q–1). by the Attorney General in accordance (ii) Irish peace process cultural and with the provisions of section training program. Paragraph (q)(15) of 101(a)(15)(Q)(i) of the Act. this section provides the rules gov- (2) Admission of international cultural erning nonimmigrant aliens who are exchange visitor—(i) General. A non- visiting the United States temporarily immigrant alien may be authorized to under the Irish peace process cultural enter the United States as a partici- and training program (Q–2) and their pant in an international cultural ex- dependents (Q–3). change program approved by the Attor- (iii) Definitions. As used in this sec- ney General for the purpose of pro- tion: viding practical training, employment, Country of nationality means the and the sharing of the history, culture, country of which the participant was a and traditions of the country of the alien’s nationality. The period of ad- national at the time of the petition mission is the duration of the approved seeking international cultural ex- international cultural exchange pro- change visitor status for him or her. gram or fifteen (15) months, whichever Doing business means the regular, is shorter. A nonimmigrant alien ad- systematic, and continuous provision mitted under this provision is classifi- of goods and/or services (including lec- able as an international cultural ex- tures, seminars and other types of cul- change visitor in Q–1 status. tural programs) by a qualified em- (ii) Limitation on admission. Any alien ployer which has employees, and does who has been admitted into the United not include the mere presence of an States as an international cultural ex- agent or office of the qualifying em- change visitor under section ployer. 101(a)(15)(Q)(i) of the Act shall not be Duration of program means the time readmitted in Q–1 status unless the in which a qualified employer is con- alien has resided and been physically ducting an approved international cul- present outside the United States for tural exchange program in the manner the immediate prior year. Brief trips to as established by the employer’s peti- the United States for pleasure or busi- tion for program approval, provided ness during the immediate prior year that the period of time does not exceed do not break the continuity of the one- 15 months. year foreign residency. International cultural exchange visitor (3) International cultural exchange pro- means an alien who has a residence in gram—(i) General. A United States em- a foreign country which he or she has ployer shall petition the Attorney Gen- no intention of abandoning, and who is eral on the form prescribed by USCIS, coming temporarily to the United for approval of an international cul- States to take part in an international tural exchange program which is de- cultural exchange program approved by signed to provide an opportunity for the Attorney General. the American public to learn about for- Petitioner means the employer or its eign cultures. The United States em- designated agent who has been employer must simultaneously petition ployed by the qualified employer on a on the same application or petition for permanent basis in an executive or the authorization for one or more indi- managerial capacity. The designated vidually identified nonimmigrant agent must be a United States citizen, aliens to be admitted in Q–1 status. an alien lawfully admitted for perma- These aliens are to be admitted to en- nent residence, or an alien provided gage in employment or training of temporary residence status under sec- which the essential element is the tions 210 or 245A of the Act. sharing with the American public, or a

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segment of the public sharing a com- courses, lecture series, or language mon cultural interest, of the culture of camps. the alien’s country of nationality. The (C) Work component. The inter- international cultural exchange visi- national cultural exchange visitor’s tor’s eligibility for admission will be employment or training in the United considered only if the international States may not be independent of the cultural exchange program is approved. cultural component of the inter- (ii) Program validity. Each petition for national cultural exchange program. an international cultural exchange pro- The work component must serve as the gram will be approved for the duration vehicle to achieve the objectives of the of the program, which may not exceed cultural component. The sharing of the 15 months, plus 30 days to allow time culture of the international cultural for the participants to make travel ar- exchange visitor’s country of nation- rangements. Subsequent to the ap- ality must result from his or her em- proval of the initial petition, a new pe- ployment or training with the qualified tition must be filed each time the employer in the United States. qualified employer wishes to bring in (iv) Requirements for international cul- additional cultural visitors. A qualified tural exchange visitors. To be eligible for employer may replace or substitute a international cultural exchange visitor participant named on a previously ap- status, an alien must be a bona fide proved petition for the remainder of nonimmigrant who: the program in accordance with para- (A) Is at least 18 years of age at the graph (q)(6) of this section. The re- time the petition is filed; placement or substituting alien may be (B) Is qualified to perform the service admitted in Q–1 status until the expira- or labor or receive the type of training tion date of the approved petition. stated in the petition; (iii) Requirements for program ap- (C) Has the ability to communicate proval. An international cultural ex- effectively about the cultural at- change program must meet all of the tributes of his or her country of na- following requirements: tionality to the American public; and (A) Accessibility to the public. The (D) Has resided and been physically international cultural exchange pro- present outside of the United States for gram must take place in a school, mu- the immediate prior year, if he or she seum, business or other establishment was previously admitted as an inter- where the American public, or a seg- national cultural exchange visitor. ment of the public sharing a common (4) Supporting documentation—(i) Doc- cultural interest, is exposed to aspects umentation by the employer. To establish of a foreign culture as part of a struc- eligibility as a qualified employer, the tured program. Activities that take petitioner must submit with the com- place in a private home or an isolated pleted application or petition appro- business setting to which the American priate evidence that the employer: public, or a segment of the public shar- (A) Maintains an established inter- ing a common cultural interest, does national cultural exchange program in not have direct access do not qualify. accordance with the requirements set (B) Cultural component. The inter- forth in paragraph (q)(3) of this section; national cultural exchange program (B) Has designated a qualified em- must have a cultural component which ployee as a representative who will be is an essential and integral part of the responsible for administering the inter- international cultural exchange visi- national cultural exchange program tor’s employment or training. The cul- and who will serve as liaison with the tural component must be designed, on Immigration and Naturalization Serv- the whole, to exhibit or explain the at- ice; titude, customs, history, heritage, phi- (C) Is actively doing business in the losophy, or traditions of the inter- United States; national cultural exchange visitor’s (D) Will offer the alien(s) wages and country of nationality. A cultural com- working conditions comparable to ponent may include structured instruc- those accorded local domestic workers tional activities such as seminars, similarly employed; and

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(E) Has the financial ability to remu- (ii) Petition for multiple participants. nerate the participant(s). The petitioner may include more than (ii) Certification by petitioner. (A) The one participant on the petition. The pe- petitioner must give the date of birth, titioner shall include the name, date of country of nationality, level of edu- birth, nationality, and other identi- cation, position title, and a brief job fying information required on the peti- description for each international cul- tion for each participant. The peti- tural exchange visitor included in the tioner must also indicate the United petition. The petitioner must verify States consulate at which each partici- and certify that the prospective par- pant will apply for a Q–1 visa. For participants are qualified to perform the ticipants who are visa-exempt under 8 service or labor, or receive the type of CFR 212.1(a), the petitioner must indi- training, described in the petition. cate the port of entry at which each (B) The petitioner must report the participant will apply for admission to international cultural exchange visi- the United States. tors’ wages and certify that such cul- (iii) Service, labor, or training in more tural exchange visitors are offered than one location. A petition which re- wages and working conditions com- quires the international cultural ex- parable to those accorded to local do- change visitor to engage in employ- mestic workers similarly employed. ment or training (with the same em- (iii) Supporting documentation as ployer) in more than one location must prescribed in paragraphs (q)(4)(i) and include an itinerary with the dates and (q)(4)(ii) of this section must accom- locations of the services, labor, or pany a petition filed on the form pre- training. scribed by USCIS in all cases except (iv) Services, labor, or training for more where the employer files multiple peti- than one employer. If the international tions in the same calendar year. When cultural exchange visitor will perform petitioning to repeat a previously ap- services or labor for, or receive train- proved international cultural exchange ing from, more than one employer, program, a copy of the initial program each employer must file a separate pe- approval notice may be submitted in tition. The international cultural ex- lieu of the documentation required change visitor may work part-time for under paragraph (q)(4)(i) of this sec- multiple employers provided that each tion. The Service will request addi- employer has an approved petition for tional documentation only when clari- the alien. fication is needed. (v) Change of employers. If an inter- (5) Filing of petitions for international national cultural exchange visitor is in cultural exchange visitor program—(i) the United States under section General. A United States employer 101(a)(15)(Q)(i) of the Act and decides to seeking to bring in international cul- change employers, the new employer tural exchange visitors must file a pe- must file a petition. However, the total tition on the form prescribed by period of time the international cul- USCIS, with the applicable fee, along tural exchange visitor may stay in the with appropriate documentation. A United States remains limited to fif- new petition on the form prescribed by teen (15) months. USCIS, with the applicable fee, must be (6) Substitution or replacements of par- filed with the appropriate service cen- ticipants in an international cultural ex- ter each time a qualified employer change visitor program. The petitioner wants to bring in additional inter- may substitute for or replace a person national cultural exchange visitors. named on a previously approved peti- Each person named on an approved pe- tion for the remainder of the program tition will be admitted only for the du- without filing a new application or pe- ration of the approved program. Re- tition. The substituting international placement or substitution may be cultural exchange visitor must meet made for any person named on an ap- the qualification requirements pre- proved petition as provided in para- scribed in paragraph (q)(3)(iv) of this graph (q)(6) of this section, but only for section. To request substitution or re- the remainder of the approved pro- placement, the petitioner shall, by let- gram. ter, notify the consular office at which

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the alien will apply for a visa or, in the (ii) Multiple participants. A petition case of visa-exempt aliens, the Service for multiple international cultural ex- office at the port of entry where the change visitors may be denied in whole alien will apply for admission. A copy or in part. of the petition’s approval notice must (9) Revocation of approval of petition— be included with the letter. The peti- (i) General. The petitioner shall imme- tioner must state the date of birth, diately notify the appropriate Service country of nationality, level of edu- center of any changes in the employ- cation, and position title of each pro- ment of a participant which would af- spective international cultural ex- fect eligibility under section change visitor and must certify that 101(a)(15)(Q)(i) of the Act. each is qualified to perform the service (ii) Automatic revocation. The ap- or labor or receive the type of training proval of any petition is automatically described in the approved petition. The revoked if the qualifying employer petitioner must also indicate each goes out of business, files a written international cultural exchange visi- withdrawal of the petition, or termi- tor’s wages and certify that the inter- nates the approved international cul- national cultural exchange visitor is tural exchange program prior to its ex- offered wages and working conditions piration date. No further action or no- comparable to those accorded to local tice by the Service is necessary in the domestic workers in accordance with case of automatic revocation. In any paragraph (q)(11)(ii) of this section. other case, the Service shall follow the (7) Approval of petition for inter- revocation procedures in paragraphs national cultural exchange visitor pro- (q)(9) (iii) through (v) of this section. gram. (i) The director shall consider all (iii) Revocation on notice. The director the evidence submitted and request shall send the petitioner a notice of in- other evidence as he or she may deem tent to revoke the petition in whole or necessary. in part if he or she finds that: (ii) The director shall notify the peti- (A) The international cultural ex- tioner and the appropriate United change visitor is no longer employed States consulate(s) of the approval of a by the petitioner in the capacity speci- petition. For participants who are visa- fied in the petition, or if the inter- exempt under 8 CFR 212.1(a), the direc- national cultural exchange visitor is no tor shall give notice of the approval to longer receiving training as specified the director of the port of entry at in the petition; which each such participant will apply (B) The statement of facts contained for admission to the United States. The in the petition was not true and cor- notice of approval shall include the rect; name of the international cultural ex- (C) The petitioner violated the terms change visitors, their classification, and conditions of the approved peti- and the petition’s period of validity. tion; or (iii) An approved petition for an alien (D) The Service approved the petition classified under section 101(a)(15)(Q)(i) in error. of the Act is valid for the length of the (iv) Notice and decision. The notice of approved program or fifteen (15) intent to revoke shall contain a de- months, whichever is shorter. tailed statement of the grounds for the (iv) A petition shall not be approved revocation and the period of time al- for an alien who has an aggregate of lowed for the petitioner’s rebuttal. The fifteen (15) months in the United States petitioner may submit evidence in re- under section 101(a)(15)(Q)(i) of the Act, buttal within 30 days of receipt of the unless the alien has resided and been notice. The director shall consider all physically present outside the United relevant evidence presented in deciding States for the immediate prior year. whether to revoke the petition in (8) Denial of the petition—(i) Notice of whole or in part. If the petition is re- denial. The petitioner shall be notified voked in part, the remainder of the pe- of the denial of a petition, the reasons tition shall remain approved and a re- for the denial, and the right to appeal vised approval notice shall be sent to the denial under part 103 of this chap- the petitioner with the revocation no- ter. tice.

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(v) Appeal of a revocation of a petition. (ii) What are the requirements for par- Revocation with notice of a petition in ticipation? (A) The principal alien must whole or in part may be appealed to have been physically resident in either the Associate Commissioner for Exami- Northern Ireland or the counties of nations under part 103 of this chapter. Louth, Monaghan, Cavan, Leitrim, Automatic revocation may not be ap- Sligo, and Donegal in the Republic of pealed. Ireland, for at least 3 months imme- (10) Extension of stay. An alien’s total diately preceding application to the period of stay in the United States program and must show that he or she under section 101(a)(15)(Q)(i) of the Act has no intention of abandoning this cannot exceed fifteen (15) months. The residence. authorized stay of an international cul- (B) The principal alien must be be- tural exchange visitor may be extended tween the ages of 18 and 35. within the 15-month limit if he or she (C) The principal alien must: is the beneficiary of a new petition (1) Be unemployed for at least 3 filed in accordance with paragraph months, or have completed or cur- (q)(3) of this section. The new petition, rently be enrolled in a training/em- if filed by the same employer, should ployment program sponsored by the include a copy of the previous peti- Training and Employment Agency of tion’s approval notice and a letter from Northern Ireland (T&EA) or by the the petitioner indicating any terms Training and Employment Authority and conditions of the previous petition of Ireland (FAS), or by other such pub- that have changed. licly funded programs, or have been (11) Employment provisions—(i) Gen- made redundant from employment (i.e., eral. An alien classified under section lost their job), or have received a no- 101(a)(15)(Q)(i) of the Act may be em- tice of redundancy (termination of employed only by the qualified employer ployment); or through which the alien attained Q–1 (2) Be a currently employed person nonimmigrant status. An alien in this whose employer has nominated him/her class is not required to apply for an to participate in this program for addi- employment authorization document. tional training or job experience that Employment outside the specific pro- is to benefit both the participant and gram violates the terms of the alien’s his/her employer upon returning home. Q–1 nonimmigrant status within the (D) The principal alien must intend meaning of section 237(a)(1)(C)(i) of the to come to the United States tempo- Act. rarily, for a period not to exceed 36 (ii) Wages and working conditions. The months, in order to obtain training, wages and working conditions of an employment, and the experience of co- international cultural exchange visitor existence and conflict resolution in a must be comparable to those accorded diverse society. to domestic workers similarly em- (iii) Are there any limitations on admis- ployed in the geographical area of the sions? (A) No more than 4,000 partici- alien’s employment. The employer pants, including spouses and any minor must certify on the petition that such children of principal aliens, may be ad- conditions are met as in accordance mitted annually for 3 consecutive pro- with paragraph (q)(4)(iii)(B) of this sec- gram years, beginning with FY 2000 tion. (October 1, 1999, through September 30, (12)–(14) [Reserved] 2000). (15) Irish peace process cultural and (B) For each alien admitted under training program visitors (Q–2) and their section 101(a)(15)(Q)(ii) of the Act, the dependents (Q–3)—(i) General. An Irish number of aliens admitted under sec- Peace Process Cultural and Training tion 101(a)(15)(H)(ii)(b) of the Act is re- Program (IPPCTP) visitor is a non- duced by one for that fiscal year or the immigrant alien coming to the United subsequent fiscal year. States temporarily to gain or upgrade (C) This program expires on October work skills through training and tem- 1, 2005. porary employment and to experience (iv) What are the requirements for ini- living in a diverse and peaceful envi- tial admission to the United States? (A) ronment. Principal aliens, their spouses, and

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minor children of principal aliens must their period of stay through the Serv- present valid passports and either a Q– ice so that their total period of stay is 2 or Q–3 visa at the time of inspection. 36 months, provided the extension of (B) Initial admission for those prin- stay is related to employment or train- cipal and dependent aliens in this pro- ing certified by the DOS’ Program Ad- gram who received their visas at either ministrator. the U.S. Embassy in Dublin or the U.S. (vii) How is employment authorized Consulate in Belfast must take place at under this program? (A) Following en- the Service’s Pre-Flight Inspection fa- dorsement of his/her Form I–94, Ar- cilities at either the Shannon or Dub- rival-Departure Record, by a Service lin airports in the Republic of Ireland. officer, any principal alien admitted (C) The principal alien will be re- under section 101(a)(15)(Q)(ii) of the Act quired to present a Certification Letter is permitted to work for an employer issued by the Department of State’s or employers listed on the Certifi- (DOS’) Program Administrator docu- cation Letter issued by the DOS’ Pro- menting him or her as an individual se- gram Administrator. lected for participation in the IPPCTP. (B) The accompanying spouse and Eligible dependents may be requested minor children of the principal alien to present written documentation cer- may not accept employment, unless tifying their relationship to the prin- the spouse has also been designated as cipal. a principal alien (Q–2) in this program (v) May the principal alien and depend- and has been issued a Certification Let- ents make brief visits outside the United ter by the DOS’ Program Adminis- States? (A) The principal alien, spouse, trator. and any minor children of the principal (viii) May the principal alien change alien may make brief departures, for employers? Principal aliens wishing to periods not to exceed 3 consecutive change employers must request such a months, and may be readmitted with- change through the DOS’ Program Ad- out having to obtain a new visa. How- ministrator to the Service. Following ever, such periods of time spent outside review and consideration of the request the United States will not be added to by the Service, the Service will inform the end of stay, which is not to exceed the participant of the decision. The a total of 3 years from the initial date Service will grant such approval of em- of entry of the principal alien. ployers only if the new employer has (B) Those participants or dependents been approved by DOS in accordance who remain outside the United States with its regulations and such approval in excess of 3 consecutive months will is communicated to the Service not be readmitted by the Service on through the DOS’ Program Adminis- their initial Q–2 or Q–3 visa. Instead, trator. If approved, the participant’s any such individual and eligible de- Form I–94 will be annotated to show pendents wishing to rejoin the program the new employer. If denied, there is no will be required to reapply to the pro- appeal under this section. gram and be in receipt of a new Q–2 or (ix) May the principal alien hold other Q–3 visa and a Certification Letter jobs during his/her U.S. visit? No; any issued by the DOS’ Program Adminis- principal alien classified as an Irish trator, prior to any subsequent admis- peace process cultural and training sion to the United States. program visitor may only engage in (vi) How long may a Q–2 or Q–3 visa employment that has been certified by holder remain in the United States under the DOS’ Program Administrator and this program? (A) The principal alien approved by the DOS or the Service as and any accompanying, or following- endorsed on the Form I–94. An alien to-join, spouse or minor children of the who engages in unauthorized employ- principal alien are admitted for the du- ment violates the terms of the Q-2 visa ration of the principal alien’s planned and will be considered to have violated cultural and training program or 36 section 237(a)(1)(C)(i) of the Act. months, whichever is shorter. (x) What happens if a principal alien (B) Those participants and eligible loses his/her job? A principal alien, who dependents admitted for specific peri- loses his or her job, will have 30 days ods less than 36 months may extend from his/her last date of employment

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to locate appropriate employment or Bona fide organization which is affili- training, to have the job offer certified ated with the religious denomination by the DOS’ Program Administrator in means an organization which is closely accordance with the DOS’ regulations associated with the religious denomi- and to have it approved by the Service. nation and which is exempt from tax- If appropriate employment or training ation as described in section 501(c)(3) of cannot be found within this 30-day-pe- the Internal Revenue Code of 1986, or riod, the principal alien and any ac- subsequent amendment or equivalent company family members will be re- sections of prior enactments of the In- quired to depart the United States. ternal Revenue Code, and possessing a (r) Religious workers. This paragraph currently valid determination letter governs classification of an alien as a from the IRS confirming such exemp- nonimmigrant religious worker (R–1). tion. (1) To be approved for temporary ad- Denominational membership means mission to the United States, or exten- membership during at least the two- sion and maintenance of status, for the year period immediately preceding the purpose of conducting the activities of filing date of the petition, in the same a religious worker for a period not to type of religious denomination as the exceed five years, an alien must: United States religious organization (i) Be a member of a religious de- where the alien will work. nomination having a bona fide non- Minister means an individual who: profit religious organization in the (A) Is fully authorized by a religious United States for at least two years denomination, and fully trained ac- immediately preceding the time of ap- cording to the denomination’s stand- plication for admission; ards, to conduct religious worship and (ii) Be coming to the United States perform other duties usually performed to work at least in a part time position by authorized members of the clergy of (average of at least 20 hours per week); that denomination; (iii) Be coming solely as a minister (B) Is not a lay preacher or a person or to perform a religious vocation or not authorized to perform duties usu- occupation as defined in paragraph ally performed by clergy; (r)(3) of this section (in either a profes- (C) Performs activities with a ration- sional or nonprofessional capacity); al relationship to the religious calling (iv) Be coming to or remaining in the of the minister; and United States at the request of the pe- (D) Works solely as a minister in the titioner to work for the petitioner; and United States which may include ad- (v) Not work in the United States in ministrative duties incidental to the any other capacity, except as provided duties of a minister. in paragraph (r)(2) of this section. Petition means the form or as may be (2) An alien may work for more than prescribed by USCIS, a supplement one qualifying employer as long as containing attestations required by each qualifying employer submits a pe- this section, and the supporting evi- tition plus all additional required documentation as prescribed by USCIS dence required by this part. regulations. Religious denomination means a reli- (3) Definitions. As used in this sec- gious group or community of believers tion, the term: that is governed or administered under a common type of ecclesiastical gov- Bona fide non-profit religious organization in the United States means a reli- ernment and includes one or more of gious organization exempt from tax- the following: ation as described in section 501(c)(3) of (A) A recognized common creed or the Internal Revenue Code of 1986, sub- statement of faith shared among the sequent amendment or equivalent sec- denomination’s members; tions of prior enactments of the Inter- (B) A common form of worship; nal Revenue Code, and possessing a (C) A common formal code of doc- currently valid determination letter trine and discipline; from the Internal Revenue Service (D) Common religious services and (IRS) confirming such exemption. ceremonies;

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(E) Common established places of re- cant (R–1 nonimmigrant). If otherwise ligious worship or religious congrega- admissible, an alien who meets the re- tions; or quirements of section 101(a)(15)(R) of (F) Comparable indicia of a bona fide the Act may be admitted as an R–1 religious denomination. alien or changed to R–1 status for an Religious occupation means an occupa- initial period of up to 30 months from tion that meets all of the following re- date of initial admission. If visa-ex- quirements: empt, the alien must present original (A) The duties must primarily relate documentation of the petition ap- to a traditional religious function and proval. be recognized as a religious occupation (ii) Spouse and children (R–2 status). within the denomination; The spouse and unmarried children (B) The duties must be primarily re- under the age of 21 of an R–1 alien may lated to, and must clearly involve, in- be accompanying or following to join culcating or carrying out the religious the R–1 alien, subject to the following creed and beliefs of the denomination; conditions: (C) The duties do not include posi- (A) R–2 status is granted for the same tions which are primarily administra- period of time and subject to the same tive or support such as janitors, main- limits as the principal, regardless of tenance workers, clerical employees, the time such spouse and children may fund raisers, persons solely involved in have spent in the United States in R–2 the solicitation of donations, or similar status; positions, although limited administra- (B) Neither the spouse nor children tive duties that are only incidental to may accept employment while in the religious functions are permissible; and United States in R–2 status; and (D) Religious study or training for religious work does not constitute a reli- (C) The primary purpose of the gious occupation, but a religious work- spouse or children coming to the er may pursue study or training inci- United States must be to join or ac- dent to status. company the principal R–1 alien. Religious vocation means a formal (5) Extension of stay or readmission. An lifetime commitment, through vows, R–1 alien who is maintaining status or investitures, ceremonies, or similar in- is seeking readmission and who satis- dicia, to a religious way of life. The re- fies the eligibility requirements of this ligious denomination must have a class section may be granted an extension of of individuals whose lives are dedicated R–1 stay or readmission in R–1 status to religious practices and functions, as for the validity period of the petition, distinguished from the secular mem- up to 30 months, provided the total pe- bers of the religion. Examples of voca- riod of time spent in R–1 status does tions include nuns, monks, and reli- not exceed a maximum of five years. A gious brothers and sisters. Petition for a Nonimmigrant Worker Religious worker means an individual to request an extension of R–1 status engaged in and, according to the de- must be filed by the employer with a nomination’s standards, qualified for a supplement prescribed by USCIS con- religious occupation or vocation, taining attestations required by this whether or not in a professional capac- section, the fee specified in 8 CFR part ity, or as a minister. 106, and the supporting evidence, in ac- Tax-exempt organization means an or- cordance with the applicable form in- ganization that has received a deter- structions. mination letter from the IRS estab- (6) Limitation on total stay. An alien lishing that it, or a group it belongs to, who has spent five years in the United is exempt from taxation in accordance States in R–1 status may not be re- with sections 501(c)(3) of the Internal admitted to or receive an extension of Revenue Code of 1986, or subsequent stay in the United States under the R amendments or equivalent sections of visa classification unless the alien has prior enactments of the Internal Rev- resided abroad and has been physically enue Code. present outside the United States for (4) Requirements for admission/change the immediate prior year. The limita- of status; time limits—(i) Principal appli- tions in this paragraph shall not apply

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to R–1 aliens who did not reside contin- ligious worker petitions and applica- ually in the United States and whose tions filed by or on behalf of any aliens employment in the United States was for employment by the prospective em- seasonal or intermittent or was for an ployer in the past five years; aggregate of six months or less per (vii) The title of the position offered year. In addition, the limitations shall to the alien and a detailed description not apply to aliens who reside abroad of the alien’s proposed daily duties; and regularly commute to the United (viii) Whether the alien will receive States to engage in part-time employ- salaried or non-salaried compensation ment. To qualify for this exception, the and the details of such compensation; petitioner and the alien must provide (ix) That the alien will be employed clear and convincing proof that the at least 20 hours per week; alien qualifies for such an exception. (x) The specific location(s) of the pro- Such proof shall consist of evidence posed employment; and such as arrival and departure records, (xi) That the alien will not be en- transcripts of processed income tax re- gaged in secular employment. turns, and records of employment (9) Evidence relating to the petitioning abroad. organization. A petition shall include (7) Jurisdiction and procedures for ob- the following initial evidence relating taining R–1 status. An employer in the to the petitioning organization: United States seeking to employ a reli- (i) A currently valid determination gious worker, by initial petition or by letter from the IRS showing that the change of status, shall file a petition in organization is a tax-exempt organiza- accordance with the applicable form tion; or instructions. (8) Attestation. An authorized official (ii) For a religious organization that of the prospective employer of an R–1 is recognized as tax-exempt under a alien must complete, sign and date an group tax-exemption, a currently valid attestation prescribed by USCIS and determination letter from the IRS es- submit it along with the petition. The tablishing that the group is tax-ex- prospective employer must specifically empt; or attest to all of the following: (iii) For a bona fide organization that (i) That the prospective employer is a is affiliated with the religious denomi- bona fide non-profit religious organiza- nation, if the organization was granted tion or a bona fide organization which tax-exempt status under section is affiliated with the religious denomi- 501(c)(3), or subsequent amendment or nation and is exempt from taxation; equivalent sections of prior enact- (ii) That the alien has been a member ments, of the Internal Revenue Code, of the denomination for at least two as something other than a religious or- years and that the alien is otherwise ganization: qualified for the position offered; (A) A currently valid determination (iii) The number of members of the letter from the IRS establishing that prospective employer’s organization; the organization is a tax-exempt orga- (iv) The number of employees who nization; work at the same location where the (B) Documentation that establishes beneficiary will be employed and a the religious nature and purpose of the summary of the type of responsibilities organization, such as a copy of the or- of those employees. USCIS may request ganizing instrument of the organiza- a list of all employees, their titles, and tion that specifies the purposes of the a brief description of their duties at its organization; discretion; (C) Organizational literature, such as (v) The number of aliens holding spe- books, articles, brochures, calendars, cial immigrant or nonimmigrant reli- flyers, and other literature describing gious worker status currently em- the religious purpose and nature of the ployed or employed within the past five activities of the organization; and years by the prospective employer’s or- (D) A religious denomination certifi- ganization; cation. The religious organization (vi) The number of special immigrant must complete, sign and date a state- religious worker and nonimmigrant re- ment certifying that the petitioning

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organization is affiliated with the reli- submitted, if available. If IRS docu- gious denomination. The statement mentation is unavailable, the peti- must be submitted by the petitioner tioner must submit an explanation for along with the petition. the absence of IRS documentation, (10) Evidence relating to the qualifica- along with comparable, verifiable docu- tions of a minister. If the alien is a min- mentation. ister, the petitioner must submit the (ii) Self support. (A) If the alien will following: be self-supporting, the petitioner must (i) A copy of the alien’s certificate of submit documentation establishing ordination or similar documents re- that the position the alien will hold is flecting acceptance of the alien’s quali- part of an established program for tem- fications as a minister in the religious porary, uncompensated missionary denomination; and work, which is part of a broader inter- (ii) Documents reflecting acceptance national program of missionary work of the alien’s qualifications as a min- sponsored by the denomination. ister in the religious denomination, as (B) An established program for tem- well as evidence that the alien has porary, uncompensated work is defined completed any course of prescribed to be a missionary program in which: theological education at an accredited (1) Foreign workers, whether com- theological institution normally re- pensated or uncompensated, have pre- quired or recognized by that religious viously participated in R–1 status; denomination, including transcripts, (2) Missionary workers are tradition- curriculum, and documentation that ally uncompensated; establishes that the theological edu- (3) The organization provides formal cation is accredited by the denomina- training for missionaries; and tion, or (4) Participation in such missionary (iii) For denominations that do not work is an established element of reli- require a prescribed theological edu- gious development in that denomina- cation, evidence of: tion. (A) The denomination’s requirements (C) The petitioner must submit evi- for ordination to minister; dence demonstrating: (B) The duties allowed to be per- (1) That the organization has an es- formed by virtue of ordination; tablished program for temporary, un- (C) The denomination’s levels of ordi- compensated missionary work; nation, if any; and (2) That the denomination maintains (D) The alien’s completion of the de- missionary programs both in the nomination’s requirements for ordina- United states and abroad; tion. (3) The religious worker’s acceptance (11) Evidence relating to compensation. into the missionary program; Initial evidence must state how the pe- (4) The religious duties and respon- titioner intends to compensate the sibilities associated with the tradition- alien, including specific monetary or ally uncompensated missionary work; in-kind compensation, or whether the and alien intends to be self-supporting. In (5) Copies of the alien’s bank records, either case, the petitioner must submit budgets documenting the sources of verifiable evidence explaining how the self-support (including personal or fam- petitioner will compensate the alien or ily savings, room and board with host how the alien will be self-supporting. families in the United States, dona- Compensation may include: tions from the denomination’s church- (i) Salaried or non-salaried compensa- es), or other verifiable evidence accept- tion. Evidence of compensation may in- able to USCIS. clude past evidence of compensation (12) Evidence of previous R–1 employ- for similar positions; budgets showing ment. Any request for an extension of monies set aside for salaries, leases, stay as an R–1 must include initial evi- etc.; verifiable documentation that dence of the previous R–1 employment. room and board will be provided; or If the beneficiary: other evidence acceptable to USCIS. (i) Received salaried compensation, IRS documentation, such as IRS Form the petitioner must submit IRS docu- W–2 or certified tax returns, must be mentation that the alien received a

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salary, such as an IRS Form W–2 or tion, application for initial admission, certified copies of filed income tax re- change of status, or extension of stay turns, reflecting such work and com- in R classification may not be denied pensation for the preceding two years. solely on the basis of a filed or an ap- (ii) Received non-salaried compensa- proved request for permanent labor tion, the petitioner must submit IRS certification or a filed or approved im- documentation of the non-salaried migrant visa preference petition. compensation if available. If IRS docu- (16) Inspections, evaluations, mentation is unavailable, an expla- verifications, and compliance reviews. nation for the absence of IRS docu- The supporting evidence submitted mentation must be provided, and the may be verified by USCIS through any petitioner must provide verifiable evi- means determined appropriate by dence of all financial support, includ- USCIS, up to and including an on-site ing stipends, room and board, or other inspection of the petitioning organiza- support for the beneficiary by submit- tion. The inspection may include a ting a description of the location where tour of the organization’s facilities, an the beneficiary lived, a lease to estab- interview with the organization’s offi- lish where the beneficiary lived, or cials, a review of selected organization other evidence acceptable to USCIS. records relating to compliance with (iii) Received no salary but provided immigration laws and regulations, and for his or her own support, and that of an interview with any other individ- any dependents, the petitioner must uals or review of any other records show how support was maintained by that the USCIS considers pertinent to submitting with the petition verifiable the integrity of the organization. An documents such as audited financial inspection may include the organiza- statements, financial institution tion headquarters, or satellite loca- records, brokerage account statements, tions, or the work locations planned trust documents signed by an attorney, for the applicable employee. If USCIS or other evidence acceptable to USCIS. decides to conduct a pre-approval in- (13) Change or addition of employers. spection, satisfactory completion of An R–1 alien may not be compensated such inspection will be a condition for for work for any religious organization approval of any petition. other than the one for which a petition (17) Denial and appeal of petition. has been approved or the alien will be USCIS will provide written notifica- out of status. A different or additional tion of the reasons for the denial under employer seeking to employ the alien 8 CFR 103.3(a)(1). The petitioner may may obtain prior approval of such em- appeal the denial under 8 CFR 103.3. ployment through the filing of a sepa- (18) Revocation of approved petitions— rate petition and appropriate supple- (i) Director discretion. The director may ment, supporting documents, and fee revoke a petition at any time, even prescribed in 8 CFR 106.2. after the expiration of the petition. (14) Employer obligations. When an R– (ii) Automatic revocation. The ap- 1 alien is working less than the re- proval of any petition is automatically quired number of hours or has been re- revoked if the petitioner ceases to leased from or has otherwise termi- exist or files a written withdrawal of nated employment before the expira- the petition. tion of a period of authorized R–1 stay, (iii) Revocation on notice—(A) Grounds the R–1 alien’s approved employer for revocation. The director shall send must notify DHS within 14 days using to the petitioner a notice of intent to procedures set forth in the instructions revoke the petition in relevant part if to the petition or otherwise prescribed he or she finds that: by USCIS on the USCIS Internet Web (1) The beneficiary is no longer em- site at www.uscis.gov. ployed by the petitioner in the capac- (15) Nonimmigrant intent. An alien ity specified in the petition; classified under section 101(a)(15)(R) of (2) The statement of facts contained the Act shall maintain an intention to in the petition was not true and cor- depart the United States upon the expi- rect; ration or termination of R–1 or R–2 sta- (3) The petitioner violated terms and tus. However, a nonimmigrant peti- conditions of the approved petition;

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(4) The petitioner violated require- (2) NATO–2—Other representatives of ments of section 101(a)(15)(R) of the Act Member States to NATO (including any or paragraph (r) of this section; or of its subsidiary bodies) including rep- (5) The approval of the petition vio- resentatives, advisers and technical ex- lated paragraph (r) of this section or perts of delegations, and the members involved gross error. of the immediate family of such per- (B) Notice and decision. The notice of sons; dependents of members of a force intent to revoke shall contain a de- entering in accordance with the provi- tailed statement of the grounds for the sions of the NATO Status of Forces revocation and the time period allowed Agreement or in accordance with the for the petitioner’s rebuttal. The peti- provisions of the Paris Protocol; mem- tioner may submit evidence in rebuttal bers of such a force, if issued visas. within 30 days of receipt of the notice. (3) NATO–3—Official clerical staff ac- The director shall consider all relevant companying a representative of a Mem- evidence presented in deciding whether ber State to NATO (including any of its to revoke the petition. subsidiary bodies) and the members of (19) Appeal of a revocation of a petition. the immediate family of such persons. A petition that has been revoked on (4) NATO–4—Officials of NATO (other notice in whole or in part may be ap- than those classifiable under NATO–1) pealed under 8 CFR 103.3. Automatic and the members of their immediate revocations may not be appealed. family (s) NATO nonimmigrant aliens—(1) (5) NATO–5—Experts, other than General—(i) Background. The North At- NATO officials classifiable under lantic Treaty Organization (NATO) is NATO–4, employed on missions on be- constituted of nations signatory to the half of NATO and their dependents. North Atlantic Treaty. The Agreement (B) Nonimmigrant aliens classified as Between the Parties to the North At- NATO–6 are civilians, and members of lantic Treaty Regarding the Status of their immediate families, who may Their Forces, signed in London, June enter the United States as employees 1951 (NATO Status of Forces Agree- of a force entering in accordance with ment), is the agreement between those the NATO Status of Forces Agreement, nations that defines the terms of the or as members of a civilian component status of their armed forces while serv- attached to or employed by NATO ing abroad. Headquarters, Supreme Allied Com- (A) Nonimmigrant aliens classified as mander, Atlantic (SACLANT), set up NATO–1 through NATO–5 are officials, pursuant to the Paris Protocol. employees, or persons associated with (C) Nonimmigrant aliens classified as NATO, and members of their imme- NATO–7 are attendants, servants, or diate families, who may enter the personal employees of nonimmigrant United States in accordance with the aliens classified as NATO–1, NATO–2, NATO Status of Forces Agreement or NATO–3, NATO–4, NATO–5, and NATO– the Protocol on the Status of Inter- 6, who are authorized to work only for national Military Headquarters set up the NATO–1 through NATO–6 non- pursuant to the North Atlantic Treaty immigrant from whom they derive sta- (Paris Protocol). The following specific tus, and members of their immediate classifications shall be assigned to such families. NATO nonimmigrants: (ii) Admission and extension of stay. (1) NATO–1—A principal permanent NATO–1, NATO–2, NATO–3, NATO–4, representative of a Member State to and NATO–5 aliens are normally ex- NATO (including any of its subsidiary empt from inspection under 8 CFR bodies) resident in the United States 235.1(c). NATO–6 aliens may be author- and resident members of permanent ized admission for duration of status. representative’s official staff; Sec- NATO–7 aliens may be admitted for not retary General, Deputy Secretary Gen- more than 3 years and may be granted eral, Assistant Secretaries General and extensions of temporary stay in incre- Executive Secretary of NATO; other ments of not more than 2 years. In ad- permanent NATO officials of similar dition, an application for extension of rank; and the members of the imme- temporary stay for a NATO–7 alien diate family of such persons. must be accompanied by a statement

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signed by the employing official stat- sonnel. A dependent of a NATO–1, ing that he or she intends to continue NATO–2, NATO–3, NATO–4, NATO–5, or to employ the NATO–7 applicant, de- NATO–6 principal alien assigned to of- scribing the work the applicant will ficial duty in the United States may perform, and acknowledging that this accept, or continue in, unrestricted is, and will be, the sole employment of employment based on such formal bi- the NATO–7 applicant. lateral agreement upon favorable rec- (2) Definition of a dependent of a ommendation by SACLANT, pursuant NATO–1, NATO–2, NATO–3, NATO–4, to paragraph (s)(5) of this section, and NATO–5, or NATO–6. For purposes of issuance of employment authorization employment in the United States, the documentation by the Service in ac- term dependent of a NATO–1, NATO–2, cordance with 8 CFR part 274a. The ap- NATO–3, NATO–4, NATO–5, or NATO–6 plication procedures are set forth in principal alien, as used in this section, paragraph (s)(5) of this section. means any of the following immediate (ii) Informal de facto reciprocal ar- members of the family habitually re- rangements. For purposes of this sec- siding in the same household as the tion, an informal de facto reciprocal NATO–1, NATO–2, NATO–3, NATO–4, arrangement exists when the Office of NATO–5, or NATO–6 principal alien as- the Secretary of Defense, Foreign Mili- signed to official duty in the United tary Rights Affairs (OSD/FMRA), cer- States: tifies, with State Department concur- (i) Spouse; rence, that a NATO Member State al- (ii) Unmarried children under the age lows appropriate employment in the of 21; local economy for dependents of mem- (iii) Unmarried sons or daughters bers of the force and members of the ci- under the age of 23 who are in full-time vilian component of the United States attendance as students at post-sec- assigned to duty in the NATO Member ondary educational institutions; State. OSD/FMRA and State’s FLO (iv) Unmarried sons or daughters shall maintain a listing of countries under the age of 25 who are in full-time with which such reciprocity exists. De- attendance as students at post-sec- pendents of a NATO–1, NATO–2, NATO– ondary educational institutions if a 3, NATO–4, NATO–5, or NATO–6 prin- formal bilateral employment agree- cipal alien assigned to official duty in ment permitting their employment in the United States may be authorized to the United States was signed prior to accept, or continue in, employment November 21, 1988, and such bilateral based upon informal de facto arrange- employment agreements do not specify ments upon favorable recommendation under the age of 23 as the maximum by SACLANT, pursuant to paragraph age for employment of such sons and (s)(5) of this section, and issuance of daughters; employment authorization by the Serv- (v) Unmarried sons or daughters who ice in accordance with 8 CFR part 274a. are physically or mentally disabled to Additionally, the application proce- the extent that they cannot adequately dures set forth in paragraph (s)(5) of care for themselves or cannot estab- this section must be complied with, lish, maintain, or re-establish their and the following conditions must be own households. The Service may re- met: quire medical certification(s) as it (A) Both the principal alien and the deems necessary to document such dependent requesting employment are mental or physical disability. maintaining NATO–1, NATO–2, NATO– (3) Dependent employment requirements 3, NATO–4, NATO–5, or NATO–6 status, based on formal bilateral employment as appropriate; agreements and informal de facto recip- (B) The principal alien’s total length rocal arrangements—(i) Formal bilateral of assignment in the United States is employment agreements. The Depart- expected to last more than 6 months; ment of State’s Family Liaison office (C) Employment of a similar nature (FLO) shall maintain all listing of for dependents of members of the force NATO Member States which have en- and members of the civilian component tered into formal bilateral employment of the United States assigned to offi- agreements that include NATO per- cial duty in the NATO Member State

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employing the principal alien is not agreement or de facto arrangement prohibited by the NATO Member State; employment privileges as appropriate (D) The proposed employment is not based upon the nationality of the in an occupation listed in the Depart- SACLANT employee (principal alien). ment of Labor’s Schedule B (20 CFR (5) Application procedures. The fol- part 656), or otherwise determined by lowing procedures are required for de- the Department of Labor to be one for pendent employment applications which there is an oversupply of quali- under bilateral agreements and de fied United States workers in the area facto arrangements: of proposed employment. This Sched- (i) The dependent of a NATO alien ule B restriction does not apply to a shall submit a complete application for dependent son or daughter who is a employment authorization, including full-time student if the employment is Form I–765 and Form I–566, completed part-time, consisting of not more than in accordance with the instructions on, 20 hours per week, of if it is temporary or attached to, those forms. The com- employment of not more than 12 weeks plete application shall be submitted to during school holiday periods; and SACLANT for certification of the Form (E) The proposed employment is not I–566 and forwarding to the Service. contrary to the interest of the United (ii) In a case where a bilateral de- States. Employment contrary to the pendent employment agreement con- interest of the United States includes, taining a numerical limitation on the but is not limited to, the employment number of dependents authorized to of NATO–1, NATO–2, NATO–3, NATO–4, work is applicable, the certifying offi- NATO–5, or NATO–6 dependents who cer of SACLANT shall not forward the have criminal records; who have vio- application for employment authoriza- lated United States immigration laws tion to the Service unless, following or regulations, or visa laws or regula- consultation with State’s Office of Pro- tions; who have worked illegally in the tocol, the certifying officer has con- United States; or who cannot establish firmed that this numerical limitation that they have paid taxes and social se- has not been reached. The countries curity on income from current or pre- with such limitations are indicated on vious United States employment. the bilateral/de facto dependent em- (iii) State’s FLO shall inform the ployment listing issued by State’s Service, by contacting Headquarters, FLO. Adjudications, Attention: Chief, Busi- (iii) SACLANT shall keep copies of ness and Trade Services Branch, 425 I each application and certified Form I– Street, NW., Washington, DC 20536, of 566 for 3 years from the date of the cer- any additions or changes to the formal tification. bilateral employment agreements and (iv) A dependent applying under the informal de facto reciprocal arrange- terms of a de facto arrangement must ments. also attach a statement from the pro- (4) Applicability of a formal bilateral spective employer which includes the agreement or an informal de facto ar- dependent’s name, a description of the rangement for NATO–1, NATO–2, NATO– position offered, the duties to be per- 3, NATO–4, NATO–5, or NATO–6 depend- formed, the hours to be worked, the ents. The applicability of a formal bi- salary offered, and verification that lateral agreement shall be based on the the dependent possesses the qualifica- NATO Member State which employs tions for the position. the principal alien and not on the na- (v) A dependent applying under para- tionality of the principal alien or de- graph (s)(2) (iii) or (iv) of this section pendent. The applicability of an infor- must also submit a certified statement mal de facto arrangement shall be from the post-secondary educational based on the NATO Member State institution confirming that he or she is which employs the principal alien, and pursuing studies on a full-time basis. the principal alien also must be a na- (vi) A dependent applying under para- tional of the NATO Member State graph (s)(2)(v) of this section must also which employs him or her in the submit medical certification regarding United States. Dependents of his or her condition. The certification SACLANT employees receive bilateral should identify both the dependent and

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the certifying physician, give the phy- (ii) Is willing to supply, or has sup- sician’s phone number, identify the plied, such information to federal or condition, describe the symptoms, pro- state LEA; and vide a clear prognosis, and certify that (iii) Is essential to the success of an the dependent is unable to maintain a authorized criminal investigation or home of his or her own. the successful prosecution of an indi- (vii) The Service may require addi- vidual involved in the criminal organi- tional supporting documentation, but zation or enterprise. only after consultation with (2) Alien witness or informant in SACLANT. counterterrorism matter. An alien may be classified as an S–6 alien counterter- (6) Period of time for which employment rorism witness or informant under the may be authorized. If approved, an appli- provisions of section 101(a)(15)(S)(ii) of cation to accept or continue employ- the Act if it is determined by the Sec- ment under this paragraph shall be retary of State and the Commissioner granted in increments of not more than acting jointly, in the exercise of their 3 years. discretion, pursuant to an application (7) Income tax and Social Security li- on Form I–854 by an interested federal ability. Dependents who are granted LEA, that the alien: employment authorization under this (i) Possesses critical reliable infor- paragraph are responsible for payment mation concerning a terrorist organi- of all Federal, state, and local income zation, enterprise, or operation; taxes, employment and related taxes (ii) Is willing to supply or has sup- and Social Security contributions on plied such information to a federal any remuneration received. LEA; (8) No appeal. There shall be no ap- (iii) Is in danger or has been placed in peal from a denial of permission to ac- danger as a result of providing such in- cept or continue employment under formation; and this paragraph. (iv) Is eligible to receive a reward (9) Unauthorized employment. An alien under section 36(a) of the State Depart- classified as a NATO–1, NATO–2, ment Basic Authorities Act of 1956, 22 NATO–3, NATO–4, NATO–5, NATO–6, or U.S.C. 2708(a). NATO–7 who is not a NATO principal (3) Spouse, married and unmarried sons alien and who engages in employment and daughters, and parents of alien wit- outside the scope of, or in a manner ness or informant in criminal or counter- contrary to, this paragraph may be terrorism matter. An alien spouse, mar- considered in violation of status pursu- ried or unmarried son or daughter, or ant to section 237(a)(1)(C)(i) of the Act. parent of an alien witness or informant may be granted derivative S classifica- A NATO principal alien in those classi- tion (S–7) when accompanying, or fol- fications who engages in employment lowing to join, the alien witness or in- outside the scope of his or her official formant if, in the exercise of discretion position may be considered in violation by, with respect to paragraph (t)(1) of of status pursuant to section this section, the Commissioner, or, 237(a)(1)(C)(i) of the Act. with respect to paragraph (t)(2) of this (t) Alien witnesses and informants—(1) section, the Secretary of State and the Alien witness or informant in criminal Commissioner acting jointly, consider matter. An alien may be classified as an it to be appropriate. A nonimmigrant S–5 alien witness or informant under in such derivative S–7 classification the provisions of section 101(a)(15)(S)(i) shall be subject to the same period of of the Act if, in the exercise of discre- admission, limitations, and restriction pursuant to an application on tions as the alien witness or informant Form I–854 by an interested federal or and must be identified by the request- state law enforcement authority ing LEA on the application Form I–854 (‘‘LEA’’), it is determined by the Com- in order to qualify for S nonimmigrant missioner that the alien: classification. Family members not (i) Possesses critical reliable infor- identified on the Form I–854 applica- mation concerning a criminal organi- tion will not be eligible for S non- zation or enterprise; immigrant classification.

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(4) Request for S nonimmigrant classification shall be referred to the Com- fication. An application on Form I–854, missioner. requesting S nonimmigrant classifica- (B) United States Attorney certification. tion for a witness or informant, may The United States Attorney with juris- only be filed by a federal or state LEA diction over a prosecution or investiga- (which shall include a federal or state tion that forms the basis for a request court or a United States Attorney’s Of- for S nonimmigrant classification fice) directly in need of the informa- must certify and endorse the application to be provided by the alien witness tion on Form I–854 and agree that no or informant. The completed applica- promises may be, have been, or will be tion is filed with the Assistant Attor- made that the alien will or may remain ney General, Criminal Division, De- in the United States in S or any other partment of Justice, who will forward nonimmigrant classification or parole, only properly certified applications adjust status to lawful permanent resi- that fall within the numerical limita- dent, or attempt to remain beyond the tion to the Commissioner, Immigration authorized period of admission. and Naturalization Service, for ap- (C) LEA certification. LEA certifi- proval, pursuant to the following proc- cations on Form I–854 must be made at ess. the seat-of-government level, if federal, (i) Filing request. For an alien to qual- or the highest level of the state LEA ify for status as an S nonimmigrant, S involved in the matter. With respect to nonimmigrant classification must be the alien for whom S nonimmigrant requested by an LEA. The LEA shall classification is sought, the LEA shall recommend an alien for S non- provide evidence in the form of attach- immigrant classification by: Com- ments establishing the nature of the pleting Form I–854, with all necessary alien’s cooperation with the govern- endorsements and attachments, in ac- ment, the need for the alien’s presence cordance with the instructions on, or in the United States, all conduct or attached to, that form, and agreeing, conditions which may constitute a as a condition of status, that no prom- ground or grounds of excludability, and ises may be, have been, or will be made all factors and considerations war- by the LEA that the alien will or may ranting a favorable exercise of discre- remain in the United States in S or tionary waiver authority by the Attor- any other nonimmigrant classification ney General on the alien’s behalf. The or parole, adjust status to that of law- attachments submitted with a request ful permanent resident, or otherwise for S nonimmigrant classification may attempt to remain beyond a 3-year pe- be in the form of affidavits, state- riod other than by the means author- ments, memoranda, or similar docu- ized by section 101(a)(15)(S) of the Act. mentation. The LEA shall review Form The alien, including any derivative I–854 for accuracy and ensure the alien beneficiary who is 18 years or older, understands the certifications made on shall sign a statement, that is part of Form I–854. or affixed to Form I–854, acknowl- (D) Filing procedure. Upon completion edging awareness that he or she is re- of Form I–854, the LEA shall forward stricted by the terms of S non- the form and all required attachments immigrant classification to the specific to the Assistant Attorney General, terms of section 101(a)(15)(S) of the Act Criminal Division, United States De- as the exclusive means by which he or partment of Justice, at the address she may remain permanently in the listed on the form. United States. (ii) Assistant Attorney General, Crimi- (A) District director referral. Any dis- nal Division review—(A) Review of infor- trict director or Service officer who re- mation. Upon receipt of a complete ap- ceives a request by an alien, an eligible plication for S nonimmigrant classi- LEA, or other entity seeking S non- fication on Form I–854, with all re- immigrant classification shall advise quired attachments, the Assistant At- the requestor of the process and the re- torney General, Criminal Division, quirements for applying for S non- shall ensure that all information relat- immigrant classification. Eligible ing to the basis of the application, the LEAs seeking S nonimmigrant classi- need for the witness or informant, and

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grounds of excludability under section (7) The purpose of the proposed stay; 212 of the Act has been provided to the and Service on Form I–854, and shall con- (8) A statement that the application sider the negative and favorable factors falls within the statutorily specified warranting an exercise of discretion on numerical limitation. the alien’s behalf. No application may (D) Submission of certified requests for be acted on by the Assistant Attorney S nonimmigrant classification to Service. General unless the eligible LEA mak- (1) The Assistant Attorney General, ing the request has proceeded in ac- Criminal Division, shall forward to the cordance with the instructions on, or Commissioner only qualified applica- attached to, Form I–854 and agreed to tions for S–5 nonimmigrant classifica- all provisions therein. tion that have been certified in accord- (B) Advisory panel. Where necessary ance with the provisions of this para- according to procedures established by graph and that fall within the annual the Assistant Attorney General, Crimi- numerical limitation. nal Division, an advisory panel, com- (2) The Assistant Attorney General posed of representatives of the Service, Criminal Division, shall forward to the Marshals Service, Federal Bureau of Commissioner applications for S–6 non- Investigation, Drug Enforcement Ad- immigrant classification that have ministration, Criminal Division, and been certified in accordance with the the Department of State, and those provisions of this paragraph, certified representatives of other LEAs, includ- by the Secretary of State or eligibility ing state and federal courts designated for S–6 classification, and that fall by the Attorney General, will review within the annual numerical limita- the completed application and submit tion. a recommendation to the Assistant At- (5) Decision on application. (i) The At- torney General, Criminal Division, re- torney General’s authority to waive garding requests for S nonimmigrant grounds of excludability pursuant to classification. The function of this ad- section 212 of the Act is delegated to visory panel is to prioritize cases in the Commissioner and shall be exer- light of the numerical limitation in cised with regard to S nonimmigrant order to determine which cases will be classification only upon the certifi- forwarded to the Commissioner. cation of the Assistant Attorney Gen- (C) Assistant Attorney General certifi- eral, Criminal Division. Such certification. The certification of the Assist- cation is nonreviewable as to the mat- ant Attorney General, Criminal Divi- ter’s significance, importance, and/or sion, to the Commissioner recom- worthwhileness to law enforcement. mending approval of the application The Commissioner shall make the final for S nonimmigrant classification shall decision to approve or deny a request contain the following: for S nonimmigrant classification cer- (1) All information and attachments tified by the Assistant Attorney Gen- that may constitute, or relate to, a eral, Criminal Division. ground or grounds of excludability (ii) Decision to approve application. under section 212(a) of the Act; Upon approval of the application on (2) Each section of law under which Form I–854, the Commissioner shall no- the alien appears to be inadmissible; tify the Assistant Attorney General, (3) The reasons that waiver(s) of in- Criminal Division, the Secretary of admissibility are considered to be jus- State, and Service officers as appro- tifiable and in the national interest; priate. Admission shall be authorized (4) A detailed statement that the for a period not to exceed 3 years. alien is eligible for S nonimmigrant (iii) Decision to deny application. In classification, explaining the nature of the event the Commissioner decides to the alien’s cooperation with the gov- deny an application for S non- ernment and the government’s need for immigrant classification on Form I– the alien’s presence in the United 854, the Assistant Attorney General, States; Criminal Division, and the relevant (5) The intended date of arrival; LEA shall be notified in writing to that (6) The length of the proposed stay in effect. The Assistant Attorney General, the United States; Criminal Division, shall concur in or

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object to that decision. Unless the As- (D) Refrain from criminal activity sistant Attorney General, Criminal Di- that may render the alien deportable, vision, objects within 7 days, he or she which information shall also be for- shall be deemed to have concurred in warded to the Assistant Attorney Gen- the decision. In the event of an objec- eral, Criminal Division; and tion by the Assistant Attorney Gen- (iv) Report annually to the Assistant eral, Criminal Division, the matter will Attorney General, Criminal Division, be expeditiously referred to the Deputy on whether the alien’s S nonimmigrant Attorney General for a final resolution. classification and cooperation resulted In no circumstances shall the alien or in either: the relevant LEA have a right of ap- (A) A successful criminal prosecution peal from any decision to deny. or investigation or the failure to (6) Submission of requests for S non- produce a successful resolution of the immigrant visa classification to Secretary matter; or of State. No request for S non- (B) The prevention or frustration of immigrant visa classification may be terrorist acts or the failure to prevent presented to the Secretary of State un- such acts. less it is approved and forwarded by the (v) Assist the alien in his or her ap- Commissioner. plication to the Service for employ- (7) Conditions of status. An alien wit- ment authorization. ness or informant is responsible for (8) Annual report. The Assistant At- certifying and fulfilling the terms and torney General, Criminal Division, in conditions specified on Form I–854 as a consultation with the Commissioner, condition of status. The LEA that as- shall compile the statutorily mandated sumes responsibility for the S non- annual report to the Committee on the immigrant must: Judiciary of the House of Representa- (i) Ensure that the alien: tives and the Committee on the Judici- (A) Reports quarterly to the LEA on ary of the Senate. his or her whereabouts and activities, (9) Admission. The responsible LEA and as otherwise specified on Form I– will coordinate the admission of an 854 or pursuant to the terms of his or alien in S nonimmigrant classification her S nonimmigrant classification; with the Commissioner as to the date, time, place, and manner of the alien’s (B) Notifies the LEA of any change of arrival. home or work address and phone num- (10) An alien classified bers or any travel plans; Employment. under section 101(a)(15)(S) of the Act (C) Abides by the law and all speci- may apply for employment authoriza- fied terms, limitations, or restrictions tion by filing Form I–765, Application on the visa, Form I–854, or any waivers for Employment Authorization, with pursuant to classification; and fee, in accordance with the instruc- (D) Cooperates with the responsible tions on, or attached to, that form pur- LEA in accordance with the terms of suant to § 274a.12(c)(21) of this chapter. his or her classification and any re- (11) Failure to maintain status. An strictions on Form I–854; alien classified under section (ii) Provide the Assistant Attorney 101(a)(15)(S) of the Act shall abide by General, Criminal Division, with the all the terms and conditions of his or name of the control agent on an ongo- her S nonimmigrant classification im- ing basis and provide a quarterly re- posed by the Attorney General. If the port indicating the whereabouts, ac- terms and conditions of S non- tivities, and any other control informa- immigrant classification will not be or tion required on Form I–854 or by the have not been met, or have been vio- Assistant Attorney General; lated, the alien is convicted of any (iii) Report immediately to the Serv- criminal offense punishable by a term ice any failure on the alien’s part to: of imprisonment of 1 year or more, is (A) Report quarterly; otherwise rendered deportable, or it is (B) Cooperate with the LEA; otherwise appropriate or in the public (C) Comply with the terms and condi- interest to do so, the Commissioner tions of the specific S nonimmigrant shall proceed to deport an alien pursu- classification; or ant to the terms of 8 CFR 242.26. In the

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event the Commissioner decides to de- porary labor certification determina- port an alien witness or informant in S tion from DOL’s Office of Foreign nonimmigrant classification, the As- Labor Certification (OFLC) Adminis- sistant Attorney General, Criminal Di- trator. vision, and the relevant LEA shall be (ii) Direct Guam transit means travel notified in writing to that effect. The from the CNMI to a foreign place by an Assistant Attorney General, Criminal alien in CW status, or from a foreign Division, shall concur in or object to place to the CNMI by an alien with a that decision. Unless the Assistant At- valid CW visa, on a direct itinerary in- torney General, Criminal Division, ob- volving a flight stopover or connection jects within 7 days, he or she shall be in Guam (and no other place). deemed to have concurred in the deci- (iii) Doing business means the regular, sion. In the event of an objection by systematic, and continuous provision the Assistant Attorney General, Crimi- of goods or services by an employer as nal Division, the matter will be expedi- defined in this paragraph and does not tiously referred to the Deputy Attor- include the mere presence of an agent ney General for a final resolution. In or office of the employer in the CNMI. no circumstances shall the alien or the (iv) Employer means a person, firm, relevant LEA have a right of appeal corporation, contractor, or other asso- from any decision to deport. ciation, or organization which: (12) Change of classification. (i) An (A) Engages a person to work within alien in S nonimmigrant classification the CNMI; and is prohibited from changing to any (B) Has or will have an employer-em- other nonimmigrant classification. ployee relationship with the CW–1 non- (ii) An LEA may request that any immigrant being petitioned for. alien lawfully admitted to the United States and maintaining status in ac- (v) Employer-employee relationship cordance with the provisions of § 248.1 means that the employer will hire, pay, of this chapter, except for those aliens fire, supervise, and control the work of enumerated in 8 CFR 248.2, have his or the employee. her nonimmigrant classification (vi) Lawfully present in the CNMI changed to that of an alien classified means that the alien was lawfully ad- pursuant to section 101(a)(15)(S) of the mitted or paroled into the CNMI under Act as set forth in 8 CFR 248.3(h). the immigration laws on or after the (u) [Reserved] transition program effective date, (v) Certain spouses and children of other than an alien admitted or pa- LPRs. Section 214.15 of this chapter roled as a visitor for business or pleas- provides the procedures and require- ure (B–1 or B–2, under any visa-free ments pertaining to V nonimmigrant travel provision or parole of certain status. visitors from Russia and the People’s (w) CNMI-Only Transitional Worker Republic of China), and remains in a (CW–1)—(1) Definitions. The following lawful immigration status or if paroled definitions apply to petitions for and into the CNMI, the authorized parole maintenance of CW status in the Com- period has not expired. monwealth of the Northern Mariana Is- (vii) Legitimate business, as deter- lands (the CNMI or the Common- mined by DHS, means a real, active, wealth): and operating commercial or entrepre- (i) CW–1 Application for Temporary neurial undertaking that: Employment Certification means the Of- (A) Produces services or goods for fice of Management and Budget (OMB)- profit, or is a governmental, charitable approved Form ETA–9142C (or suc- or other validly recognized nonprofit cessor form) and the appropriate ap- entity; pendices, a valid prevailing wage deter- (B) Meets applicable legal require- mination (Form ETA–9141C, or suc- ments for doing business in the CNMI; cessor form), and all supporting docu- (C) Has substantially complied with mentation submitted by an employer, wage and hour laws, occupational safe- as set forth in the U.S. Department of ty and health requirements, non- Labor’s (DOL) regulations at 20 CFR discrimination, and all other Federal, 655.420 through 655.422, to secure a tem- CNMI, and local requirements relating

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to employment during the five-year pe- (11) 6,000 for fiscal year 2028; riod immediately preceding the date of (12) 5,000 for fiscal year 2029; and filing the petition, and continues to be (13) 1,000 for the first quarter of fiscal in substantial compliance with such re- year 2030. quirements; (B) A long-term worker granted CW– (D) Does not directly or indirectly 1 nonimmigrant status for a period ex- engage in, or knowingly benefit from, ceeding one year shall be counted to- prostitution, human trafficking, or any ward the numerical limitation, and to- other activity that is illegal under Fed- ward any reservation of CW–1 numbers, eral, CNMI, or local law; as described in paragraph (E) Is a participant in good standing (w)(1)(x)(D)(1) of this section, if appli- in the E-Verify program; cable, for each fiscal year within the (F) Does not have, as an owner, in- period of petition validity. vestor, manager, operator, or person (C) For each petition revoked en- meaningfully involved with the under- tirely or in part in a fiscal year, the taking, any individual who has been an numerical limitation for the next fiscal owner, investor, manager, operator, or year shall be increased by the number person otherwise meaningfully in- of beneficiaries of such petitions sub- volved with an undertaking that was ject to such revocation before the end not in compliance with paragraph of the validity period of the petition. (w)(1)(vii)(C) of this section at the time (D)(1) Within the numerical limita- of the individual’s involvement and tions described in paragraph within the five years immediately pre- (w)(1)(x)(A) of this section, the fol- ceding the date of filing the petition; lowing reservations of CW–1 numbers or that was not in compliance with for specified occupational categories clause paragraph (w)(1)(vii)(D) of this shall apply: section at any time during which the (i) 200 for occupational categories 29– individual was involved with the under- 0000 (Healthcare Practitioners and taking, or is an agent of such indi- Technical Occupations) and 31–0000 vidual; and (Healthcare Support Occupations); and (G) Is not a successor in interest to (ii) 60 for occupational categories re- an undertaking that has not complied lated to the operations of the CNMI with paragraphs (C) or (D). public utilities services, including, but (viii) Long-term worker means an not limited to, 17–2081 (Water/Waste alien who was admitted to the CNMI, Water Engineers), 17–2071 (Electrical or otherwise granted status, as a CW–1 Engineers), 17–2141 (Mechanical Engi- nonimmigrant during fiscal year 2015, neers), and Trades Technicians. and during each of fiscal years 2016 (2) Reserved CW–1 numbers described through 2018. in paragraph (w)(1)(x)(D)(1) of this sec- (ix) Minor child means a child as de- tion will be made available to eligible fined in section 101(b)(1) of the Act who petitioners requesting such numbers is under 18 years of age. for a fiscal year in order of filing, sepa- (x) Numerical limitation means the rately under either paragraph maximum number of persons who may (w)(1)(x)(D)(1)(i) or (ii) of this section, be granted CW–1 status in a given fiscal until exhausted. Unused reserved num- year, as follows: bers under either paragraph (A) For fiscal years 2018 through the (w)(1)(x)(D)(1)(i) or (ii) of this section first quarter of fiscal year 2030, the nu- will not be available to other peti- merical limitations are: tioners. (1) 9,998 for fiscal year 2018; (3) DHS may adjust the reservation (2) 13,000 for fiscal year 2019; of numbers for specified occupational (3) 12,500 for fiscal year 2020; categories for a fiscal year or other pe- (4) 12,000 for fiscal year 2021; riod via publication of a notice in the (5) 11,500 for fiscal year 2022; FEDERAL REGISTER, as long as such ad- (6) 11,000 for fiscal year 2023; justment is consistent with paragraph (7) 10,000 for fiscal year 2024; (w)(1)(x)(A) of this section. DHS will (8) 9,000 for fiscal year 2025; base any such adjustment on factors (9) 8,000 for fiscal year 2026; including: The level of past demand for (10) 7,000 for fiscal year 2027; reserved numbers compared to supply;

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whether a reservation of numbers has tional evidence as may be prescribed or resulted in unused numbers; reserva- requested by USCIS. tion of numbers compared to overall (xiv) Successor in interest means an numerical limitation in a fiscal year; employer that is controlling and car- and any recommendation received from rying on the business of a previous em- the Governor of the CNMI regarding ployer. The following factors may be the adjustment of the reservation of considered in determining whether an numbers. employer is a successor in interest; no (E) If the numerical limitation is not one factor is dispositive, but all of the reached for a specified fiscal year, un- circumstances will be considered as a used numbers do not carry over to the whole: next fiscal year. (A) Substantial continuity of the (F) If USCIS receives a sufficient same business operations; number of petitions to meet the nu- (B) Use of the same facilities; merical limitation in paragraph (C) Continuity of the work force; (w)(1)(x)(A) of this section in a fiscal (D) Similarity of jobs and working year, USCIS will cease processing fur- conditions; ther cap-subject petitions in that fiscal year, and DOL may cease processing (E) Similarity of supervisory per- cap-subject applications for temporary sonnel; labor certification for that fiscal year. (F) Whether the former management (xi) Occupational category means or owner retains a direct or indirect in- those employment activities that DHS terest in the new enterprise; has determined require alien workers (G) Similarity in machinery, equip- to supplement the resident workforce ment, and production methods; and includes: (H) Similarity of products and serv- (A) Professional, technical, or man- ices; and agement occupations; (I) The ability of the predecessor to (B) Clerical and sales occupations; provide relief. (C) Service occupations; (xv) Temporary Labor Certification or (D) Agricultural, fisheries, forestry, TLC means the certification made by and related occupations; the DOL OFLC Administrator, based (E) Processing occupations; on the CW–1 Application for Temporary (F) Machine trade occupations; Employment Certification, and all sup- (G) Benchwork occupations; porting documentation, with respect to (H) Structural work occupations; and an employer seeking to file with a CW– (I) Miscellaneous occupations. 1 petition. (xii) Participant in good standing in the (xvi) Transition period means the pe- E-Verify program means an employer, as riod beginning on the transition pro- defined in paragraph (w)(1)(iv) of this gram effective date and ending on De- section, that has enrolled in E-Verify cember 31, 2029. with respect to all hiring sites in the (xvii) United States worker means a United States as of the time of filing a citizen or national of the United petition; is in compliance with all re- States, an alien lawfully admitted for quirements of the E-Verify program, permanent residence, or a citizen of the including but not limited to verifying Federated States of Micronesia, the the employment eligibility of newly Republic of the Marshall Islands, or the hired employees in the United States; Republic of Palau who is eligible for and continues to be a participant in nonimmigrant admission and is em- good standing in E-Verify at any time ployment-authorized under the Com- during which the employer employs pacts of Free Association between the any CW–1 nonimmigrant. United States and those nations. (xiii) Petition means USCIS Form I– (2) Eligible aliens. Subject to the nu- 129CW, Petition for a CNMI–Only Non- merical limitation, an alien may be immigrant Transitional Worker, a suc- classified as a CW–1 nonimmigrant if, cessor form, other form, or electronic during the transition period, the alien: equivalent, any supplemental informa- (i) Will enter or remain in the CNMI tion requested by USCIS, and addi- for the purpose of employment within

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the transition period in an occupa- fee plus the CNMI education funding tional category that DHS has des- fee and the fraud prevention and detec- ignated as requiring alien workers to tion fee as prescribed in the form in- supplement the resident workforce; structions and 8 CFR part 106. If the (ii) Is petitioned for by an employer; beneficiary will perform services for (iii) Is not present in the United more than one employer, each em- States, other than the CNMI; ployer must file a separate petition (iv) If present in the CNMI, is law- with fees with USCIS. fully present in the CNMI; (6) Appropriate documents. Documen- (v) Is not inadmissible to the United tary evidence establishing eligibility States as a nonimmigrant or has been for CW status is required. A petition granted a waiver of each applicable must be accompanied by: ground of inadmissibility; (vi) Is ineligible for status in a non- (i) Evidence demonstrating the peti- immigrant worker classification under tioner meets the definition of eligible section 101(a)(15) of the Act; and employer in this section; (vii) Will not be employed in a Con- (ii) An attestation by the petitioner struction and Extraction Occupation certified as true and accurate by an ap- (as defined by the U.S. Department of propriate official of the petitioner, of Labor as Standard Occupational Classi- the following: fication Group 47–0000 or successor pro- (A) The employer has not displaced vision) unless the alien is a long-term and will not displace a United States worker. worker in order to employ the bene- (3) Derivative beneficiaries—CW–2 non- ficiary as agreed to in the CW–1 Appli- immigrant classification. The spouse or cation for Temporary Employment Certifi- minor child of a CW–1 nonimmigrant cation; may accompany or follow the alien as (B) The employer is doing business as a CW–2 nonimmigrant if the alien: defined in paragraph (w)(1)(iii) of this (i) Is not present in the United section; States, other than the CNMI; (C) The employer is a legitimate (ii) If present in the CNMI, is law- business as defined in paragraph fully present in the CNMI; and (iii) Is not inadmissible to the United (w)(1)(vii) of this section; States as a nonimmigrant or has been (D) The employer is an eligible em- granted a waiver of each applicable ployer as described in paragraph (w)(4) ground of inadmissibility. of this section and will continue to (4) Eligible employers. To be eligible to comply with the requirements for an petition for a CW–1 nonimmigrant eligible employer until such time as worker, an employer must: the employer no longer employs the (i) Be engaged in legitimate business; CW–1 nonimmigrant worker; (ii) Obtain a TLC from DOL and con- (E) The beneficiary meets the quali- sider all available United States work- fications for the position; ers for the position being filled by the (F) The beneficiary, if present in the CW–1 worker; CNMI, is lawfully present in the CNMI; (iii) Offer terms and conditions of (G) The position is not temporary or employment which are consistent with seasonal employment, and the peti- the nature of the petitioner’s business tioner does not reasonably believe it to and the nature of the occupation, ac- qualify as eligible for any other non- tivity, and industry in the CNMI; and immigrant worker classification, in- (iv) Comply with all Federal and cluding H–2A or H–2B; Commonwealth requirements relating to employment, including but not lim- (H) The position falls within the list ited to nondiscrimination, occupa- of occupational categories designated tional safety, and minimum wage re- by DHS; quirements. (I) The petitioner will pay the bene- (5) Petition requirements. An employer ficiary a wage that is not less than the who seeks to classify an alien as a CW– greater of— 1 worker must file a petition with (1) The CNMI minimum wage; USCIS and pay the requisite petition (2) The Federal minimum wage; or

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(3) The prevailing wage in the CNMI training, experience, or special require- for the occupation in which the bene- ments of the beneficiary, the petition ficiary will be employed as established must also be accompanied by docu- by the U.S. Department of Labor; and mentation that the CW–1 non- (J) The petitioner will comply with immigrant worker qualifies for the job the reporting and retention require- offer as specified in the TLC. ments in paragraph 26. (7) Change of employers. A change of (iii) Evidence of licensure if an occu- employment to a new employer incon- pation requires a Commonwealth or sistent with paragraphs (w)(7)(i) and local license for an individual to fully (ii) of this section will constitute a perform the duties of the occupation. failure to maintain status within the Categories of valid licensure for CW–1 meaning of section 237(a)(1)(C)(i) of the classification are: Act. A CW–1 nonimmigrant may (A) Licensure. An alien seeking CW–1 change employers if: classification in that occupation must (i) The prospective new employer have that license prior to approval of files a petition to classify the alien as the petition to be found qualified to a CW–1 worker in accordance with enter the CNMI and immediately en- paragraph (w)(5) of this section, and gage in employment in the occupation. (ii) An extension of the alien’s stay is (B) If a tem- Temporary licensure. requested if necessary for the validity porary license is available and allowed period of the petition. for the occupation with a temporary li- (iii) A CW–1 worker may work for a cense, USCIS may grant the petition at its discretion after considering the du- prospective new employer after the ties performed, the degree of super- prospective new employer files a Form vision received, and any limitations I–129CW petition on the employee’s be- placed on the alien by the employer half if: and/or pursuant to the temporary li- (A) The prospective employer has cense. filed a nonfrivolous petition for new (C) Duties without licensure. If the employment before the date of expira- CNMI allows an individual to fully tion of the CW–1 worker’s authorized practice the occupation that usually period of stay; and requires a license without a license (B) Subsequent to his or her lawful under the supervision of licensed senior admission, the CW–1 worker has not or supervisory personnel in that occu- been employed without authorization pation, USCIS may grant CW–1 status in the United States. at its discretion after considering the (iv) Employment authorization shall duties performed, the degree of super- continue for such alien until the new vision received, and any limitations petition is adjudicated. If the new peti- placed on the alien if the facts dem- tion is denied, such authorization shall onstrate that the alien under super- cease. vision could fully perform the duties of (v) If a CW–1 worker’s employment the occupation. has been terminated prior to the filing (iv) For any petition requesting an of a petition by a prospective new em- employment start date on or after Oc- ployer consistent with paragraphs tober 1, 2019, including both new peti- (w)(7)(i) and (ii), or if the CW–1’s cur- tions and petitions for renewal of an rent petition has been revoked (other existing permit, a TLC approved by than for the reason described in para- DOL, confirming that there are not graph (w)(27)(iii)(A)(7) of this section) sufficient United States workers in the the CW–1 worker will not be considered CNMI who are able, willing, qualified, to be in violation of his or her CW–1 and available at the time and place status during the 30-day period imme- needed to perform the services or labor diately following the date on which the involved in the petition, and that the CW–1 worker’s employment terminated employment of the CW–1 non- if a nonfrivolous petition for new em- immigrant will not adversely affect the ployment is filed consistent with this wages and working conditions of simi- paragraph within that 30-day period larly employed United States workers. and the CW–1 worker does not other- If the TLC accepts certain education, wise violate the terms and conditions

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of his or her status during that 30-day may not approve future petitions dur- period. ing the debarment period. (8) Amended or new petition. If there (13) Petition validity. An approved pe- are any material changes in the terms tition will be valid for a period of up to and conditions of employment, the pe- one year, unless the beneficiary is a titioner must file an amended or new long-term worker in which case an ap- petition to reflect the changes. An proved petition will be valid for a pe- amended or new petition must be sub- riod of up to three years. mitted with a new TLC approved by (14) Validity of the labor certification. A DOL. TLC is valid only for the period of em- (9) Multiple beneficiaries. A peti- ployment as approved on the CW–1 Ap- tioning employer may include more plication for Temporary Employment Cer- than one beneficiary in a CW–1 petition tification. The TLC expires on the last if the beneficiaries will be working in day of authorized employment. the same occupational category, under (15) How to apply for CW–1 or CW–2 the same terms and conditions, for the status. (i) Upon approval of the peti- same period of time, and in the same tion, a beneficiary, his or her eligible location. spouse, and his or her minor child(ren) (10) Named beneficiaries. The petition outside the CNMI will be informed in must include the name of the bene- the approval notice of where they may apply for a visa authorizing admission ficiary and other required information, in CW–1 or CW–2 status. as indicated in the form instructions, (ii) If the beneficiary is present in the at the time of filing. Unnamed bene- CNMI, the petition also serves as the ficiaries are not permitted. application for a grant of status as a (11) Early termination. The petitioning CW–1. employer must pay the reasonable cost (iii) If the eligible spouse and/or of return transportation of the alien to minor child(ren) are present in the the alien’s last place of foreign resi- CNMI, the spouse or child(ren) may dence if the alien is dismissed from em- apply for CW–2 dependent status on ployment for any reason by the em- Form I–539 (or such alternative form as ployer before the end of the period of USCIS may designate) in accordance authorized admission. with the form instructions. The CW–2 (12) Approval. USCIS will consider all status may not be approved until ap- the evidence submitted and such other proval of the CW–1 petition. evidence required in the form instruc- (16) Biometrics and other information. tions to adjudicate the petition. USCIS The beneficiary of a CW–1 petition or will notify the petitioner of the ap- the spouse or child applying for a grant proval of the petition on Form I–797, or, extension of CW–2 status, or a Notice of Action, or in another form as change of status to CW–2 status, must USCIS may prescribe. submit biometric information as re- (i) The approval notice will include quested by USCIS. the CW–1 classification and name of (17) Period of admission. (i) A CW–1 the beneficiary or beneficiaries and the nonimmigrant will be admitted for the petition’s period of validity. A petition period of petition validity, plus up to 10 for more than one beneficiary may be days before the validity period begins approved in whole or in part. and 10 days after the validity period (ii) The application for a TLC may ends. The CW–1 nonimmigrant may not not be filed with DOL earlier than 120 work except during the validity period days before the date of actual need for of the petition. A CW–2 spouse will be the beneficiary’s services for an initial admitted for the same period as the petition for CW–1 status, or 180 days principal alien. A CW–2 minor child before the date of expiration of CW–1 will be admitted for the same period as status in the case of an extension peti- the principal alien, but such admission tion described in paragraph (w)(18) of will not extend beyond the child’s 18th this section. The petition may then be birthday. filed with USCIS after the TLC is ap- (ii) The temporary departure from proved. If DOL debars an employer the CNMI of the CW–1 nonimmigrant from obtaining a CW–1 TLC, USCIS will not affect the derivative status of

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the CW–2 spouse and minor children, (20) Effect of filing an application for or provided the familial relationship con- approval of a permanent labor certifi- tinues to exist and the principal re- cation, preference petition, or filing of an mains eligible for admission as a CW–1 application for adjustment of status on nonimmigrant. CW–1 or CW–2 classification. An alien (18) Extension of petition validity and may be granted, be admitted in and extension of stay. (i) The petitioner may maintain lawful CW–1 or CW–2 non- request an extension of an employee’s immigrant status while, at the same CW–1 nonimmigrant status by filing a time, lawfully seeking to become a new petition. lawful permanent resident of the (ii) A request for a petition extension United States, provided he or she in- may be filed only if the validity of the tends to depart the CNMI voluntarily original petition has not expired. at the end of the period of authorized (iii) Extensions of CW–1 status may stay. The filing of an application for or be granted for a period of up to 1 year approval of a permanent labor certifi- (or a period of up to 3 years if the bene- cation or an immigrant visa preference ficiary is a long-term worker) until the petition, the filing of an application for end of the transition period, subject to adjustment of status, or the lack of any numerical limitation. residence abroad will not be the basis (iv) To qualify for an extension of for denying: stay, the petitioner must demonstrate (i) A CW–1 petition filed on behalf of that the beneficiary or beneficiaries: the alien; (A) Continuously maintained the (ii) A request to extend a CW–1 status terms and conditions of CW–1 status; pursuant to a petition previously filed (B) Remains admissible to the United on behalf of the alien; States; and (iii) An application for CW–2 classi- (C) Remains eligible for CW–1 classification filed by an alien; fication. (iv) A request to extend CW–2 status (v) A beneficiary (other than a long- pursuant to the extension of a related term worker) may not be granted CW– CW–1 alien’s extension; or 1 status beyond three consecutive peti- (v) An application for admission as a tion validity periods unless the bene- CW–1 or CW–2 nonimmigrant. ficiary has departed and remained out- (21) Rejection. USCIS may reject an side of the United States for a contin- employer’s petition for new or ex- uous period of at least 30 days after the tended CW–1 status if any numerical expiration of the third petition validity limitation has been met. In that case, period and before the filing of any new the petition and accompanying fee will petition on behalf of the beneficiary. be rejected and returned with the no- (vi) The derivative CW–2 non- tice that numbers are unavailable for immigrant may file an application for the CW nonimmigrant classification. extension of nonimmigrant stay on The beneficiary’s application for ad- Form I–539 (or such alternative form as mission based upon an approved peti- USCIS may designate) in accordance tion will not be rejected based upon the with the form instructions. The CW–2 numerical limitation. status extension may not be approved (22) Denial. The ultimate decision to until approval of the CW–1 extension grant or deny CW–1 or CW–2 classifica- petition. tion or status is a discretionary deter- (19) Change or adjustment of status. A mination, and the petition or the appli- CW–1 or CW–2 nonimmigrant can apply cation may be denied for failure of the to change nonimmigrant status under petitioner or the applicant to dem- section 248 of the Act or apply for ad- onstrate eligibility or for other good justment of status under section 245 of cause. The denial of a petition to clas- the Act, if otherwise eligible. During sify an alien as a CW–1 may be ap- the transition period, CW–1 or CW–2 pealed to the USCIS Administrative nonimmigrants may be the beneficiary Appeals Office or any successor body. of a petition for or may apply for any The denial of CW–1 or CW–2 status nonimmigrant or immigrant visa clas- within the CNMI, or of an application sification for which they may qualify. for change or extension of status filed

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under this section, may not be ap- transitional worker program, which- pealed. ever is earlier. CW–2 nonimmigrant (23) Terms and conditions of CW Non- status expires when the status of the immigrant status—(i) Geographical limita- related CW–1 alien expires, on a CW–2 tions. CW–1 and CW–2 statuses are only minor child’s 18th birthday, when the applicable in the CNMI. Entry, employ- alien violates his or her status, or at ment and residence in the rest of the the end of the transitional worker pro- United States (including Guam) require gram, whichever is earlier. No alien the appropriate visa or visa waiver and will be eligible for admission to the nonimmigrant classification. Except as CNMI in CW–1 or CW–2 status, and no provided in paragraph (w)(23)(iii) of CW–1 or CW–2 visa will be valid for this section, an alien with CW–1 or CW– travel to the CNMI, after the transi- 2 status who enters or attempts to tional worker program ends. enter, or travels or attempts to travel (25) Waivers of inadmissibility for appli- to any other part of the United States cants lawfully present in the CNMI. An without an appropriate visa or visa applicant for CW–1 or CW–2 non- waiver, or who violates conditions of immigrant status, who is otherwise eli- nonimmigrant stay applicable to any gible for such status and otherwise ad- such authorized status in any other missible to the United States, and who part of the United States, will be possesses appropriate documents dem- deemed to have violated CW–1 or CW–2 onstrating that the applicant is law- status. fully present in the CNMI, may be (ii) Re-entry. An alien with CW–1 or granted a waiver of inadmissibility CW–2 status who travels abroad from under section 212(d)(3)(A)(ii) of the Act, the CNMI will require a CW–1 or CW–2 including the grounds of inadmis- or other appropriate visa to be re-ad- sibility described in sections mitted to the CNMI. 212(a)(6)(A)(i) and 212(a)(7)(B)(i)(II) of (iii) Travel outside the CNMI—(A) Di- the Act, as a matter of discretion for rect Guam transit from the CNMI. An the purpose of granting the CW–1 or alien with CW–1 or CW–2 status may CW–2 nonimmigrant status. Such waiv- travel to a foreign place via a direct er may be granted without additional Guam transit without being deemed to form or fee. Appropriate documents re- violate that status. quired for such a waiver include a valid (B) Travel from a foreign place to the unexpired passport and other documen- CNMI. An alien with a valid CW–1 or tary evidence demonstrating that the CW–2 visa, who is admissible to the applicant is lawfully present in the CNMI in such status, may be admitted CNMI, such as a DHS-issued Form I–94. to the United States in CW–1 or CW–2 Evidence that the applicant possesses status in Guam for the purpose of a di- appropriate documents may be pro- rect Guam transit to the CNMI. An vided by an employer to accompany a alien who violates the terms of direct petition, by an eligible spouse or minor Guam transit violates his or her CW–1 child to accompany the Form I–539 (or or CW–2 status. such alternative form as USCIS may (iv) Employment authorization. An designate), or in such other manner as alien with CW–1 nonimmigrant status USCIS may designate. is only authorized employment in the (26) Semiannual report—(i) Filing. Dur- CNMI for the petitioning employer. An ing the validity period of the petition, alien with CW–2 status is not author- an employer whose petition has been ized to be employed. approved for an employment start date (24) Expiration of status. CW–1 status on or after October 1, 2019 and for a va- expires when the alien violates his or lidity period of six months or more, her CW–1 status (or in the case of a shall file a semiannual report, every CW–1 status violation caused solely by six months after the petition validity termination of the alien’s employment, start date up to and including the sixth at the end of the 30 day period de- month preceding the petition’s validity scribed in paragraph (w)(7)(v) of this end date. The semiannual report must section), 10 days after the end of the be filed within a 60 day window sur- petition’s validity period, when the pe- rounding the six month anniversary of tition is revoked, or at the end of the the petition validity start date, with

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the filing window opening 30 days be- graph (w). To notify USCIS of such fore and closing 30 days after the six changes, an amended petition shall be month anniversary of the petition va- filed when the petitioner continues to lidity start date. The semiannual re- employ the beneficiary. If the peti- port must be filed with USCIS in the tioner no longer employs the bene- form and containing such evidence as ficiary, the petitioner shall send a let- USCIS may direct, to verify the con- ter to the office at which the CW–1 pe- tinuing employment and payment of tition was filed explaining the basis on the beneficiary under the terms and which the specific CW–1 nonimmigrant conditions of the approved petition. is no longer employed. (ii) Use. DHS may provide such semi- (B) USCIS may revoke a petition at annual reports to other federal part- any time, even after the expiration of ners, including DOL for investigative the petition. or other use as the DOL may deem ap- (ii) Immediate and automatic revoca- propriate. Failure to comply with the tion. The approval of any petition is requirements of paragraph (w)(26) of immediately and automatically re- this section may be a basis for revoca- voked if the petitioner ceases oper- tion of an approved petition as pro- ations, files a written withdrawal of vided in paragraph (w)(27) of this sec- the petition, or the U.S. Department of tion, or for denial of subsequent peti- Labor revokes the temporary labor cer- tions filed by the employer. tification upon which the petition is (iii) Document retention. (A) An em- based. ployer must retain all documents and (iii) Revocation on notice—(A) Grounds records in support of an approved peti- for revocation. USCIS may in its discretion, and any semiannual report. An tion send to the petitioner a notice of employer must retain evidence that intent to revoke the petition in rel- supports the semiannual report includ- evant part, for good cause, including, if ing, but not limited to: it finds that: (1) Personnel records for each CW–1 (1) The beneficiary is no longer em- worker including the name, address of ployed by the petitioner in the capac- current residence in the Common- ity specified in the petition; wealth, age, domicile, citizenship, point of hire, and approved employ- (2) The facts contained in the peti- ment contract termination date; tion or on the application for a temporary labor certification was not true (2) Payroll records for each CW–1 worker including the O*NET job classi- and correct, inaccurate, fraudulent, or fication; wage rate or salary, number misrepresented a material fact; of hours worked each week, gross com- (3) The petitioner violated terms and pensation, itemized deductions, and conditions of the approved petition; evidence of net payments made and re- (4) The petitioner violated a require- ceived biweekly; and ment of paragraph (w) of this section; (3) Direct evidence of payment of (5) The approval of the petition vio- wages and overtime, such as receipts lated paragraph (w) this section or infor cash payments, cancelled checks or volved gross error; deposit records. Petitioners must pro- (6) The petitioner failed to maintain vide such documents and records to the continuous employment of the CW– DHS and DOL at any time, during the 1 nonimmigrant, failed to pay the non- retention period specified in paragraph immigrant, failed to timely file a semi- (w)(26)(iii)(B) of this section. annual report described in paragraph (B) An employer must retain docu- (w)(26) of this section, committed any ments and records until the date that other violation of the terms and condi- is three years after the ending date of tions of employment, or otherwise the petition validity period. ceased to operate as a legitimate busi- (27) Revocation of approval of peti- ness; tion—(i) General. (A) The petitioner (7) The beneficiary did not apply for shall immediately notify USCIS of any admission to the CNMI within 10 days changes in the terms and conditions of after the beginning of the petition va- employment of a beneficiary which lidity period if the petition has been may affect eligibility under this para- approved for consular processing; or

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(8) The employer failed to provide a § 214.3 Approval of schools for enroll- former, current, or prospective CW–1 ment of F and M nonimmigrants. nonimmigrant, not later than 21 busi- (a) Filing petition—(1) General. A ness days after a written request from school or school system seeking initial such individual, with the original (or a or continued authorization for attend- certified copy of the original) of all pe- ance by nonimmigrant students under titions, notices, and other written com- sections 101(a)(15)(F)(i) or munication related to the worker 101(a)(15)(M)(i) of the Act, or both, (other than sensitive financial or pro- must file a petition for certification or prietary information of the employer recertification with SEVP, using the which may be redacted) that has been Student and Exchange Visitor Informa- exchanged between the employer and tion System (SEVIS), in accordance the Department of Labor, the Depart- with the procedures at paragraph (h) of ment of Homeland Security, or any this section. The petition must state other Federal agency or department. whether the school or school system is (B) Notice and decision. The notice of seeking certification or recertification intent to revoke shall state the for attendance of nonimmigrant stu- grounds for the revocation. The peti- dents under section 101(a)(15)(F)(i) or tioner may submit evidence in rebuttal 101(a)(15)(M)(i) of the Act or both. The within 30 days of receipt of the notice. petition must identify by name and ad- USCIS shall consider all relevant evi- dress each location of the school that dence presented in deciding whether to is included in the petition for certifi- revoke the petition in whole or in part. cation or recertification, specifically If the petition is revoked in part, the including any physical location in remainder of the petition shall remain which a nonimmigrant can attend approved and a revised approval notice classes through the school (i.e., cam- shall be sent to the petitioner with the pus, extension campuses, satellite cam- revocation notice. puses, etc.). (28) Appeal of a revocation of a petition. (i) School systems. A school system, as A petition that has been revoked on used in this section, means public notice in whole or in part may be ap- school (grades 9–12) or private school pealed under part 103 of this chapter. (grades kindergarten–12). A petition by Automatic revocations may not be ap- a school system must include a list of pealed. the names and addresses of those schools included in the petition with (29) Notice to DOL. USCIS will provide the supporting documents. notice to DOL of CW–1 petition revoca- (ii) Submission requirements. Certifi- tions. cation and recertification petitions re- (Title VI of the Health Professions Edu- quire that a complete Form I–17, Peti- cational Assistance Act of 1976 (Pub. L. 94– tion for Approval of School for Attend- 484; 90 Stat. 2303); secs. 103 and 214, Immigra- ance by Nonimmigrant Student, in- tion and Nationality Act (8 U.S.C. 1103 and cluding supplements A and B and bear- 1184)) ing original signatures, be included [38 FR 35425, Dec. 28, 1973] with the school’s submission of supporting documentation. In submitting EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 214.2, see the List of CFR the Form I–17, a school certifies that Sections Affected, which appears in the the designated school officials (DSOs) Finding Aids section of the printed volume signing the form have read and under- and at www.govinfo.gov. stand DHS regulations relating to: Nonimmigrant students at 8 CFR 214.1, EFFECTIVE DATE NOTES: 1. At 85 FR 28850, May 14, 2020, § 214.2 was amended by adding 214.2(f), and/or 214.2(m); change of non- paragraph (h)(23), effective May 14, 2020, immigrant classification for students through May 15, 2023. at 8 CFR 248; school certification and 2. At 85 FR 51311, Aug. 20, 2020, § 214.2 was recertification under this section; amended by adding paragraph (h)(21), effec- withdrawal of school certification tive Aug. 19, 2020, through Aug. 19, 2023. under this section and 8 CFR 214.4; that 3. At 85 FR 82298, Dec. 18, 2020, § 214.2 was both the school and its DSOs intend to amended by adding paragraph (h)(22), effec- comply with these regulations at all tive Dec. 18, 2020, through Dec. 18, 2023. times; and that, to the best of its

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knowledge, the school is eligible for under section 101(a)(15)(M)(i) of the SEVP certification. Willful Act. misstatements may constitute perjury (iv) English language training for a vo- (18 U.S.C. 1621). cational student. A student whose pri- (2) Approval for F–1 or M–1 classifica- mary intent is to pursue vocational or tion, or both—(i) F–1 classification. The technical training who takes English following schools may be approved for language training at the same school attendance by nonimmigrant students solely for the purpose of being able to under section 101(a)(15)(F)(i) of the Act: understand the vocational or technical (A) A college or university, i.e., an in- course of study is classified as a non- stitution of higher learning which immigrant under section awards recognized bachelor’s, master’s 101(a)(15)(M)(i) of the Act. doctor’s or professional degrees. (v) The following may not be ap- (B) A community college or junior proved for attendance by foreign stu- college which provides instruction in dents: the liberal arts or in the professions (A) A home school, and which awards recognized associate (B) A public elementary school, or degrees. (C) An adult education program, as (C) A seminary. defined by section 203(l) of the Adult (D) A conservatory. Education and Family Literacy Act, (E) An academic high school. Public Law 105–220, as amended, 20 (F) A private elementary school. U.S.C. 9202(l), if the adult education (G) An institution which provides program is funded in whole or in part language training, instruction in the by a grant under the Adult Education liberal arts or fine arts, instruction in and Family Literacy Act, or by any the professions, or instruction or train- other Federal, State, county or munic- ing in more than one of these dis- ipal funding. ciplines. (3) Eligibility. (i) The petitioner, to be (ii) M–1 classification. The following eligible for certification, must estab- schools are considered to be vocational lish at the time of filing that it: or nonacademic institutions and may (A) Is a bona fide school; be approved for attendance by non- (B) Is an established institution of immigrant students under section learning or other recognized place of 101(a)(15)(M)(i) of the Act: study; (A) A community college or junior (C) Possesses the necessary facilities, college which provides vocational or personnel, and finances to conduct in- technical training and which awards struction in recognized courses; and recognized associate degrees. (D) Is, in fact, engaged in instruction (B) A vocational high school. in those courses. (C) A school which provides voca- (ii) The petitioner, to be eligible for tional or nonacademic training other recertification, must establish at the than language training. time of filing that it: (iii) Both F–1 and M–1 classification. A (A) Remains eligible for certification school may be approved for attendance in accordance with paragraph (a)(3)(i) by nonimmigrant students under both of this section; sections 101(a)(15)(F)(i) and (B) Has complied during its previous 101(a)(15)(M)(i) of the Act if it has both period of certification or recertifi- instruction in the liberal arts, fine cation with recordkeeping, retention, arts, language, religion, or the profes- and reporting requirements and all sions and vocational or technical train- other requirements of paragraphs (g), ing. In that case, a student whose pri- (j), (k), and (l) of this section. mary intent is to pursue studies in lib- (b) Supporting documents. Institutions eral arts, fine arts, language, religion, petitioning for certification or recer- or the professions at the school is clas- tification must submit certain sup- sified as a nonimmigrant under section porting documents as follows, pursuant 101(a)(15)(F)(i) of the Act. A student to sections 101(a)(15)(F) and (M) of the whose primary intent is to pursue vo- Act. A petitioning school or school sys- cational or technical training at the tem owned and operated as a public school is classified as a nonimmigrant educational institution or system by

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the United States or a State or a polit- (3) A secondary school operated by or ical subdivision thereof shall submit a as part of a school so accredited. certification to that effect signed by (c) Other evidence. If the petitioner is the appropriate public official who a vocational, business, or language shall certify that he or she is author- school, or American institution of re- ized to do so. A petitioning private or search recognized as such by the Sec- parochial elementary or secondary retary of Homeland Security, it must school system shall submit a certifi- submit evidence that its courses of cation signed by the appropriate public study are accepted as fulfilling the re- official who shall certify that he or she quirements for the attainment of an is authorized to do so to the effect that educational, professional, or vocational it meets the requirements of the State objective, and are not avocational or or local public educational system. recreational in character. If the peti- Any other petitioning school shall sub- tioner is a vocational, business, or lan- mit a certification by the appropriate guage school, or American institution licensing, approving, or accrediting of- of research recognized as such by the ficial who shall certify that he or she is Attorney General, it must submit evi- authorized to do so to the effect that it dence that its courses of study are ac- is licensed, approved, or accredited. In cepted as fulfilling the requirements lieu of such certification a school for the attainment of an educational, which offers courses recognized by a professional, or vocational objective, State-approving agency as appropriate and are not avocational or recreational in character. If the petitioner is an infor study for veterans under the provi- stitution of higher education and is not sions of 38 U.S.C. 3675 and 3676 may sub- within the category described in para- mit a statement of recognition signed graph (b) (1) or (2) of this section, it by the appropriate official of the State must submit evidence that it confers approving agency who shall certify upon its graduates recognized bachelor, that he or she is authorized to do so. A master, doctor, professional, or divin- charter shall not be considered a li- ity degrees, or if it does not confer cense, approval, or accreditation. A such degrees that its credits have been school catalogue, if one is issued, shall and are accepted unconditionally by at also be submitted with each petition. If least three such institutions of higher not included in the catalogue, or if a learning. If the petitioner is an elemen- catalogue is not issued, the school tary or secondary school and is not shall furnish a written statement con- within the category described in para- taining information concerning the graph (b) (1) or (3) of this section, it size of its physical plant, nature of its must submit evidence that attendance facilities for study and training, edu- at the petitioning institution satisfies cational, vocational or professional the compulsory attendance require- qualifications of the teaching staff, sal- ments of the State in which it is lo- aries of the teachers, attendance and cated and that the petitioning school scholastic grading policy, amount and qualifies graduates for acceptance by character of supervisory and consult- schools of a higher educational level ative services available to students and within the category described in para- trainees, and finances (including a cer- graph (b) (1), (2), or (3) of this section. tified copy of the accountant’s last (d) Interview of petitioner. The peti- statement of school’s net worth, in- tioner or an authorized representative come, and expenses). Neither a cata- of the petitioner may be required to ap- logue nor such a written statement pear in person before or be interviewed need be included with a petition sub- by telephone by a DHS representative mitted by: prior to the adjudication of a petition (1) A school or school system owned for certification or recertification. The and operated as a public educational interview will be conducted under oath. institution or system by the United (e) Notices to schools related to certifi- States or a State or a political subdivi- cation or recertification petitions or to sion thereof; out-of-cycle review—(1) General. All no- (2) A school accredited by a nation- tices from SEVP to schools or school ally recognized accrediting body; or systems related to school certification,

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recertification, or out-of-cycle review paragraphs (f)(1), (g)(2) and (h)(3)(i) of (including, but not limited to, notices this section. related to the collection of evidence, (4) Notice of Intent to Withdraw testimony, and appearance pertaining (NOIW) SEVP certification—(i) Automatic to petitions for recertification encom- withdrawal. SEVP will serve the school passing compliance with the record- with an NOIW 30 days prior to a keeping, retention and reporting, and school’s SEVP certification expiration other requirements of paragraphs (f), date if the school has not submitted to (g), (j), (k), and (l) of this section, as SEVP a completed recertification peti- well as to eligibility) will be served in tion, in accordance with paragraph accordance with the procedures at 8 (h)(2) of this section. The school will be CFR 103.2(b)(1), (4)–(16), (18) and (19), automatically withdrawn immediately, with the exception that all procedures in accordance with 8 CFR 214.4(a)(3), if will be conducted by SEVP, the SEVP it has not submitted a completed recer- Director, and the Assistant Secretary, tification petition by the school’s cer- ICE, as appropriate, and except as pro- tification expiration date. vided in this section. All such notices (ii) Withdrawal on notice. SEVP will will be served (i.e., generated and serve a Withdrawal on Notice, in ac- transmitted) through SEVIS and/or by cordance with 8 CFR 214.4(b), if SEVP e-mail. The date of service is the date determines that a school reviewed out- of transmission of the e-mail notice. of-cycle has failed to sustain eligibility DSOs must maintain current contact or has failed to comply with the recordkeeping, retention, reporting and information, including current e-mail other requirements of paragraphs (f), addresses, at all times. Failure of a (g), (j), (k), and (l) of this section. When school to receive SEVP notices due to a school fails to file an answer to an inaccurate DSO e-mail addresses in NOIW within the 30-day period, SEVP SEVIS or blockages of the school’s e- will withdraw the school’s certification mail system caused by spam filters is and notify the DSOs of the decision, in not grounds for appeal of a denial or accordance with 8 CFR 214.4(d). Such withdrawal. The term ‘‘in writing’’ withdrawal of certification may not be means either a paper copy bearing appealed. original signatures or an electronic (5) Notice of Denial. A Notice of De- copy bearing electronic signatures. nial will be served to a school when (2) SEVP approval notification and SEVP denies a petition for initial cer- SEVIS updating by certified schools. tification or recertification. The notice SEVP will notify the petitioner by up- will address appeals options. Schools dating SEVIS to reflect approval of the denied recertification must comply petition and by e-mail upon approval of with 8 CFR 214.4(i). a certification or recertification peti- (6) Notice of Automatic Withdrawal. tion. The certification or recertifi- Schools that relinquish SEVP certification is valid only for the type of pro- cation for any of the reasons cited in 8 gram and nonimmigrant classification CFR 214.4(a)(3) will be served a Notice specified in the certification or recer- of Automatic Withdrawal. tification approval notice. The certifi- (7) Notice of Withdrawal. A school cation must be recertified every two found to be ineligible for continued years and may be subject to out-of- SEVP certification as a result of an cycle review at any time. Approval out-of-cycle review will receive a No- may be withdrawn in accordance with 8 tice of Withdrawal. Schools withdrawn CFR 214.4. must comply with 8 CFR 214.4(i). (3) Modifications to Form I–17 while a (8) Notice of SEVIS Access Termination school is SEVP-certified. Any modifica- Date. The Notice of SEVIS Access Ter- tion made by an SEVP-certified school mination Date gives the official date on the Form I–17 at any time after cer- for the school’s denial or withdrawal to tification and for the duration of a be final and SEVIS access to be termi- school’s authorization to enroll F and/ nated. In most situations, SEVP will or M students must be reported to not determine a SEVIS access termi- SEVP and will be processed by SEVP nation date for that school until the in accordance with the provisions of appeals process has concluded and the

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initial denial or withdrawal has been statement is denied. The DSO must upheld, in accordance with 8 CFR make the information and documents 214.4(i)(3). The school will no longer be required by this paragraph available, able to access SEVIS and SEVP will including academic transcripts, and automatically terminate any remain- must furnish them to DHS representa- ing Active SEVIS records for that tives upon request. Schools must main- school on that date. tain and be able to provide an academic (f) Adjudication of a petition for SEVP transcript or other routinely main- certification or recertification—(1) Ap- tained student records that reflect the proval. The school is required to imme- total, unabridged academic history of diately report through SEVIS any the student at the institution, in ac- change to its school information upon cordance with paragraph (g)(1)(iv) of approval of a petition for SEVP certifi- this section. All courses must be re- cation or recertification. Modification corded in the academic period in which to school information listed in para- the course was taken and graded. The graph (h)(3) of this section will require information and documents that the a determination of continued eligi- school must keep on each student are bility for certification. The certification or recertification is valid only as follows: for the type of program and student (i) Identification of the school, to in- specified in the approval notice. The clude name and full address. certification may be withdrawn in ac- (ii) Identification of the student, to cordance with the provisions of 8 CFR include name while in attendance 214.4, is subject to review at any time, (record any legal name change), date and will be reviewed every two years. and place of birth, country of citizen- (2) Denial. The petitioner will be noti- ship, and school’s student identifica- fied of the reasons for the denial and tion number. appeal rights, in accordance with the (iii) Current address where the stu- provisions of 8 CFR part 103 and 8 CFR dent and his or her dependents phys- 214.4, if SEVP denies a petition for cer- ically reside. In the event the student tification or recertification. or his or her dependents cannot receive (g) Recordkeeping and reporting re- mail at such physical residence, the quirements—(1) Student records. An school must provide a mailing address SEVP-certified school must keep in SEVIS. If the mailing address and records containing certain specific in- the physical address are not the same, formation and documents relating to the school must maintain a record of each F–1 or M–1 student to whom it has both mailing and physical addresses issued a Form I–20, while the student is and provide the physical location of attending the school and until the residence of the student and his or her school notifies SEVP, in accordance dependents to DHS upon request. with the requirements of paragraphs (iv) Record of coursework. Identify (g)(1) and (2) of this section, that the student is not pursuing a full course of the student’s degree program and field study. Student information not re- of study. For each course, give the pe- quired for entry in SEVIS may be kept riods of enrollment, course identifica- in the school’s student system of tion code and course title; the number records, but must be accessible to of credits or contact hours, and the DSOs. The school must keep a record of grade; the number of credits or clock having complied with the reporting re- hours, and for credit hour courses the quirements for at least three years credit unit; the term unit (semester after the student is no longer pursuing hour, quarter hour, etc.). Include the a full course of study. The school must date of withdrawal if the student with- maintain records on the student in ac- drew from a course. Show the grade cordance with paragraphs (g)(1) and (2) point average for each session or term. of this section if a school recommends Show the cumulative credits or clock reinstatement for a student who is out hours and cumulative grade point aver- of status. The school must maintain age. Narrative evaluation will be ac- records on the student for three years cepted in lieu of grades when the from the date of the denial if the rein- school uses no other type of grading.

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(v) Record of transfer credit or clock (E) Any other notification request hours accepted. Type of hours, course not covered by paragraph (g)(1) of this identification, grades. section made by DHS with respect to (vi) Academic status. Include the ef- the current status of the student. fective date or period if suspended, dis- (F) For F–1 students authorized by missed, placed on probation, or with- USCIS to engage in a 24-month exten- drawn. sion of OPT under 8 CFR (vii) Whether the student has been 214.2(f)(10)(ii)(C): certified for practical training, and the (1) Any change that the student re- beginning and end dates of certifi- ports to the school concerning legal cation. name, residential or mailing address, (viii) Statement of graduation (if ap- employer name, or employer address; plicable). Title of degree or credential and received, date conferred, program of (2) The end date of the student’s em- study or major. ployment reported by a former em- (ix) Termination date and reason. ployer in accordance with 8 CFR (x) The documents referred to in 214.2(f)(10)(ii)(C)(6). paragraph (k) of this section. (iii) Each term or session and no later than 30 days after the deadline for NOTE TO PARAGRAPH (g)(1): A DHS officer may request any or all of the data in para- registering for classes, schools are re- graphs (g)(1)(i) through (x) of this section on quired to report the following registra- any individual student or class of students tion information: upon notice. This notice will be in writing if (A) Whether the student has enrolled requested by the school. The school will have at the school, dropped below a full three work days to respond to any request course of study without prior author- for information concerning an individual ization by the DSO, or failed to enroll; student, and ten work days to respond to any (B) The current address of each en- request for information concerning a class of students. The school will respond orally on rolled student; and the same day the request for information is (C) The start date of the student’s next made if DHS requests information on a stu- session, term, semester, trimester, or quar- dent who is being held in custody, and DHS ter. For initial students, the start date will provide a written notification that the is the ‘‘program start date’’ or ‘‘report request was made after the fact, if the school date.’’ (These terms are used inter- so desires. DHS will first attempt to gain in- changeably.) The DSO may choose a formation concerning a class of students reasonable date to accommodate a stu- from DHS record systems. dent’s need to be in attendance for re- (2) Reporting changes in student and quired activities at the school prior to school information. (i) Schools must up- the actual start of classes when deter- date SEVIS with the current informa- mining the report date on the Form I– tion within 21 days of a change in any 20. Such required activities may in- of the information contained in para- clude, but are not limited to, research graphs (f)(1) and (h)(3) of this section. projects and orientation sessions. The (ii) Schools are also required to re- DSO may not, however, indicate a report within 21 days any change of the port date more than 30 days prior to information contained in paragraph the start of classes. The next session (g)(1) or the occurrence of the following start date is the start of classes for events: continuing students. (A) Any student who has failed to (D) Adjustment to the program comple- maintain status or complete his or her tion date. Any factors that influence program; the student’s progress toward program (B) A change of the student’s or de- completion (e.g., deferred attendance, pendent’s legal name or U.S. address; authorized drop below, program exten- (C) Any student who has graduated sion) must be reflected by making an early or prior to the program end date adjustment updating the program com- listed on SEVIS Form I–20; pletion date. (D) Any disciplinary action taken by (3) Administrative correction of a stu- the school against the student as a re- dent’s record. In instances where tech- sult of the student being convicted of a nological or computer problems on the crime; and part of SEVIS cause an error in the

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student’s record, the DSO may request school’s certification expiration date, the SEVIS system administrator, with- which is 2 years from the date of their out fee, to administratively correct the previous SEVP certification or recer- student’s record. tification expiration date. The school (h) SEVP certification, recertification, must submit the proper nonrefundable out-of-cycle review, and oversight of recertification petition fee as provided schools—(1) Certification. A school seek- in 8 CFR 103.7(d)(2). SEVP will review a ing SEVP certification for attendance petitioning school’s compliance with by nonimmigrants under section the recordkeeping, retention, and re- 101(a)(15)(F)(i) or 101(a)(15)(m)(i) of the porting, and other requirements of Act must use SEVIS to file an elec- paragraphs (f), (g), (j), (k), and (l) of tronic petition (which compiles the this section, as well as continued eligi- data for the Form I–17) and must sub- bility for certification, pursuant to mit the nonrefundable certification pe- paragraph (a)(3) of this section. tition fee on-line. (i) Filing of petition for recertification. (i) Filing a petition. The school must Schools must submit a completed access the SEVP Web site at http:// Form I–17 (including supplements A www.ice.gov/sevis to file a certification and B) using SEVIS, and submit a petition in SEVIS. The school will be paper copy of the Form I–17 bearing issued a temporary ID and password in original signatures of all officials. order to access SEVIS to complete and SEVP will notify all DSOs of a pre- submit an electronic Form I–17. The viously certified school 180 days prior school must submit the proper non- to the school’s certification expiration refundable certification petition fee as date that the school may submit a pe- provided in 8 CFR 106.2. tition for recertification. A school may (ii) Site visit, petition adjudication and file its recertification petition at any school notification. SEVP will conduct a time after receipt of this notification. site visit for each petitioning school A school must submit a complete re- and its additional schools or campuses. certification petition package, as out- SEVP will contact the school to ar- lined in the submission guidelines, by range the site visit. The school must its certification expiration date. SEVP comply with and complete the visit will send a notice of confirmation of within 30 days after the date SEVP complete filing or rejection to the contacts the school to arrange the school upon receipt of any filing of a visit, or the petition for certification petition for recertification. will be denied as abandoned. DSOs and (A) Notice of confirmation assures a school officials that have signed the school of uninterrupted access to school’s Form I–17 petition must be SEVIS while SEVP adjudicates the able to demonstrate to DHS represent- school’s petition for recertification. A atives how they obtain access to the school that has complied with the peti- regulations cited in the certification as tion submission requirements will con- part of the site visit. Paper or elec- tinue to have SEVIS access after its tronic access is acceptable. DSOs must certification expiration date while the be able to extract pertinent citations adjudication for recertification is pend- within the regulations related to their ing. The school is required to comply requirements and responsibilities. with all regulatory recordkeeping, re- SEVP will serve a notice of approval tention and reporting, and other re- and SEVIS will be updated to reflect quirements of paragraphs (f), (g), (j), the school’s certification if SEVP ap- (k), and (l) of this section during the proves the school’s certification peti- period the petition is pending. tion. (B) Notice of rejection informs a (iii) Certification denial. SEVP will school that it must take prompt cor- serve a notice of denial in accordance rective action in regard to its recertifi- with paragraph (f)(2) of this section if a cation petition prior to its certifi- school’s petition for certification is de- cation expiration date to ensure that nied. its SEVIS access will not be termi- (2) Recertification. Schools are re- nated and its petition for recertifi- quired to file a completed petition for cation will be accepted for adjudica- SEVP recertification before the tion.

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(ii) Consequence of failure to petition. tition for recertification is denied, in SEVP will serve an NOIW to the school accordance with 8 CFR 103.3(a)(1)(i). 30 days prior to a school’s certification (vi) Adjustment of certification expira- expiration date. SEVP will no longer tion date. Schools eligible for recertifi- accept a petition for recertification cation before March 25, 2009 will, at a from the school and will immediately minimum, have their certification ex- withdraw the school’s certification if piration date extended to March 25, the school does not petition for recer- 2009. SEVP may extend the certifi- tification, abandons its petition, or cation expiration date beyond this date does not submit a complete recertifi- during the first cycle of recertification. cation petition package by the certifi- (3) Out-of-cycle review and oversight of cation expiration date, in accordance SEVP-certified schools. (i) SEVP will de- with the automatic withdrawal criteria termine if out-of-cycle review is rein 8 CFR 214.4(a)(3). The school must quired upon receipt in SEVIS of any comply with 8 CFR 214.4(i) upon with- changes from an SEVP-certified school drawal. to its Form I–17 information. The Form (iii) School recertification process—(A) I–17 information that requires out-of- General. School recertification reaf- cycle review when changed includes: firms the petitioning school’s eligi- (A) Approval for attendance of stu- bility for SEVP certification and the dents (F/M/both); school’s compliance with record- (B) Name of school system; name of keeping, retention, reporting and other main campus; requirements of paragraphs (f), (g), (j), (C) Mailing address of the school; (k), and (l) of this section since its pre- (D) Location of the school; vious certification. (E) School type; (B) Compliance. Assessment by SEVP (F) Public/private school indicator; of a school petitioning for recertifi- (G) Private school owner name; cation will focus primarily on overall (H) The school is engaged in; school compliance, but may also in- (I) The school operates under the fol- clude examination of individual DSO lowing Federal, State, Local or other compliance as data and circumstances authorization; warrant. Past performance of these in- (J) The school has been approved by dividuals, whether or not they con- the following national, regional, or tinue to serve as principal designated state accrediting association or agen- school officials (PDSOs) or DSOs, will cy; be considered in any petition for recer- (K) Areas of study; tification of the school. (L) Degrees available from the (C) On-site review for recertification. school; All schools are subject to on-site re- (M) If the school is engaged in ele- view, at the discretion of SEVP, in con- mentary or secondary education; junction with recertification. The (N) If the school is engaged in higher school must comply with and complete education; an on-site review within 30 days of the (O) If the school is engaged in voca- notification by a DHS representative of tional or technical education; a school that it has been selected for (P) If the school is engaged in an on-site review for recertification, or English language training; the petition for recertification will be (Q) Adding or deleting campuses; denied as abandoned, resulting in the (R) Campus name; school’s withdrawal from SEVIS. (S) Campus mailing address; and (iv) Recertification approval. SEVP (T) Campus location address. will serve a notice of approval if a (ii) SEVP may request a school to school’s petition for recertification is electronically update all Form I–17 approved. The date of the subsequent fields in SEVIS and provide SEVP with recertification review will be two years documentation supporting the update. after the school’s certification expira- The school must complete such updates tion date from this petition cycle. in SEVIS and submit the supporting (v) Recertification denial. SEVP will documentation to SEVP within 10 busi- serve a notice of denial if a school’s pe- ness days of the request from SEVP.

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(iii) SEVP may review a school’s cer- with DHS regulations pertaining to tification at any time to verify the them, including the requirement that school’s compliance with the record- each maintains a valid passport. DHS keeping, retention, reporting and other officers will take appropriate action re- requirements of paragraphs (f), (g), (j), garding violations of the regulations (k), and (l) of this section to verify the by nonimmigrant students. school’s continued eligibility for SEVP (j) Advertising. In any advertisement, certification pursuant to paragraph catalogue, brochure, pamphlet, lit- (a)(3) of this section. SEVP may ini- erature, or other material hereafter tiate remedial action with the school, printed or reprinted by or for an ap- as appropriate, and may initiate with- proved school, any statement which drawal proceedings against the school may appear in such material con- pursuant to 8 CFR 214.4(b) if non- cerning approval for attendance by compliance or ineligibility of a school nonimmigrant students shall be lim- is identified. ited solely to the following: This school (iv) On-site review. SEVP-certified is authorized under Federal law to en- schools are subject to on-site review at roll nonimmigrant alien students. any time. SEVP will initiate with- (k) Issuance of Certificate of Eligibility. drawal proceedings against a certified A DSO of an SEVP-certified school school, pursuant to 8 CFR 214.4(b), if must sign any completed Form I–20 the certified school selected for on-site issued for either a prospective or con- review prior to its certification expira- tinuing student or a dependent. A tion date fails to comply with and com- Form I–20 issued by a certified school plete the review within 30 days of the system must state which school within date SEVP contacted the school to ar- the system the student will attend. range the review. Only a DSO of an SEVP-certified (v) Notice of Continued Eligibility. school may issue a Form I–20 to a pro- SEVP will serve the school a notice of spective student and his or her depend- continued eligibility if, upon comple- ents, and only after the following con- tion of an out-of-cycle review, SEVP ditions are met: determines that the school remains eli- (1) The prospective student has made gible for certification. Such notice will a written application to the school. not change the school’s previously-de- (2) The written application, the stu- termined certification expiration date dent’s transcripts or other records of unless specifically notified by SEVP. courses taken, proof of financial re- (vi) Withdrawal of certification. SEVP sponsibility for the student, and other will institute withdrawal proceedings supporting documents have been rein accordance with 8 CFR 214.4(b) if, ceived, reviewed, and evaluated at the upon completion of an out-of-cycle re- school’s location in the United States. view, SEVP determines that a school (3) The appropriate school authority or its programs are no longer eligible has determined that the prospective for certification. student’s qualifications meet all stand- (vii) Voluntary withdrawal. A school ards for admission. can voluntarily withdraw from SEVP (4) The official responsible for admis- certification at any time or in lieu of sion at the school has accepted the pro- complying with an out-of-cycle review spective student for enrollment in a or request. Failure of a school to com- full course of study. ply with an out-of-cycle review or re- (l) Designated Official. (1) Meaning of quest by SEVP will be treated as a vol- term Designated Official. As used in untary withdrawal. A school must ini- §§ 214.1(b), 214.2(b), 214.2(f), 214.2(m), and tiate voluntary withdrawal by sending 214.4, a Designated Official, Designated a request for withdrawal on official School Official (DSO), or Principal Des- school letterhead to SEVP. ignated School Official (PDSO), means a (i) Administration of student regula- regularly employed member of the tions. DHS officials may conduct out- school administration whose office is of-cycle, on-site reviews on the cam- located at the school and whose com- puses of SEVP-certified schools to de- pensation does not come from commis- termine whether nonimmigrant stu- sions for recruitment of foreign students on those campuses are complying dents. An individual whose principal

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obligation to the school is to recruit official certifying that the official is foreign students for compensation does familiar with the Service regulations not qualify as a designated official. relating to the requirements for admis- The PDSO and any other DSO must be sion and maintenance of status of non- named by the president, owner, or head immigrant students, change of non- of a school or school system. The PDSO immigrant status under part 248 of this and DSO may not delegate this des- chapter, and school approval under ignation to any other person. §§ 214.3 and 214.4, and affirming the offi- (i) A PDSO and DSO must be either a cial’s intent to comply with these regu- citizen or lawful permanent resident of lations. At the time a new designated the United States. official is added, the designated official (ii) Each campus must have one must make the same certification. PDSO. The PDSO is responsible for up- [30 FR 919, Jan. 29, 1965] dating SEVIS to reflect the addition or deletion of any DSO on his or her asso- EDITORIAL NOTE: For FEDERAL REGISTER ci- ciated campus. SEVP will use the tations affecting § 214.3, see the List of CFR Sections Affected, which appears in the PDSO as the point of contact on any Finding Aids section of the printed volume issues that relate to the school’s com- and at www.govinfo.gov. pliance with the regulations, as well as any system alerts generated by SEVIS. § 214.4 Denial of certification, denial of SEVP may also designate certain func- recertification, or withdrawal of tions in SEVIS for use by the PDSO SEVP certification. only. The PDSO of the main campus is (a) General—(1) Denial of certification. the only DSO authorized to submit a The petitioning school will be notified Form I–17 for recertification. The of the reasons and its appeal rights if a PDSO and DSO will share the same re- petition for certification is denied, in sponsibilities in all other respects. accordance with the provisions of 8 (iii) School officials may nominate as CFR 103.3(a)(1)(iii). A petitioning many DSOs in addition to PDSOs as school denied certification may file a they determine necessary to ade- new petition for certification at any quately provide recommendations to F time. and/or M students enrolled at the (2) Denial of recertification or with- school regarding maintenance of non- drawal on notice. The school must wait immigrant status and to support time- at least one calendar year from the ly and complete recordkeeping and re- date of denial of recertification or porting to DHS, as required by this sec- withdrawal on notice before being eli- tion. School officials must not permit a gible to petition again for SEVP cer- DSO or PDSO nominee access to SEVIS tification if a school’s petition for re- until DHS approves the nomination. certification is denied by SEVP pursu- (2) Name, title, and sample signature. ant to 8 CFR 214.3(h)(3)(v), or its cer- Petitions for SEVP certification, re- tification is withdrawn on notice pur- view and recertification must include suant to paragraph (b) of this section. the names, titles, and sample signa- Eligibility to re-petition will be at the tures of designated officials. An SEVP- discretion of the Director of SEVP. certified school must update SEVIS SEVP certification of a school or upon any changes to the persons who school system for the attendance of are principal or designated officials, nonimmigrant students, pursuant to and furnish the name, title and e-mail sections 101(a)(15)(F)(i) and/or address of any new official within 21 101(a)(15)(M)(i) of the Immigration and days of the change. Any changes to the Nationality Act, will be withdrawn on PDSO or DSO must be made by the notice subsequent to out-of-cycle re- PDSO within 21 days of the change. view, or recertification denied, if the DHS may, at its discretion, reject the school or school system is determined submission of any individual as a DSO to no longer be entitled to certification or withdraw a previous submission by a for any valid and substantive reason school of an individual. including, but not limited to, the fol- (3) Statement of designated officials. A lowing: petition for school approval must in- (i) Failure to comply with 8 CFR clude a statement by each designated 214.3(g)(1) without a subpoena.

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(ii) Failure to comply with 8 CFR or curricular changes that represent 214.3(g)(2). material change to the scope of institu- (iii) Failure of a DSO to notify SEVP tion offerings (e.g., addition of a proof the attendance of an F–1 transfer gram, class or course for which the student as required by 8 CFR school is issuing Forms I–20, but which 214.2(f)(8)(ii). does not have Form I–17 approval), as (iv) Failure of a DSO to identify on required by 8 CFR 214.3(f)(1). the Form I–20 which school within the (3) Automatic withdrawal. A school system the student must attend, in that is automatically withdrawn and compliance with 8 CFR 214.3(k). subsequently wishes to enroll non- (v) Willful issuance by a DSO of a immigrant students in the future may false statement, including wrongful file a new petition for SEVP certifi- certification of a statement by signa- cation at any time. The school must ture, in connection with a student’s use the certification petition proce- school transfer or application for em- dures described in 8 CFR 214.3(h)(1) to ployment or practical training. gain access to SEVIS for submitting its (vi) Conduct on the part of a DSO petition. Past compliance with the rec- that does not comply with the regula- ordkeeping, retention, reporting and tions. other requirements of 8 CFR 214.3(f), (vii) The designation as a DSO of an (g), (j), (k), and (l), and with the re- individual who does not meet the requirements for transition of students quirements of 8 CFR 214.3(l)(1). under paragraph (i) of this section will (viii) Failure to provide SEVP paper be considered in the evaluation of a copies of the school’s Form I–17 bearing school’s subsequent petition for certifi- the names, titles, and signatures of cation. SEVP certification will be DSOs as required by 8 CFR 214.3(l)(2). automatically withdrawn: (ix) Failure to submit statements of (i) As of the date of termination of DSOs as required by 8 CFR 214.3(l)(3). operations, if an SEVP-certified school (x) Issuance of Forms I–20 to students terminates its operations. without receipt of proof that the students have met scholastic, language, or (ii) As of a school’s certification expi- financial requirements as required by 8 ration date, if an SEVP-certified CFR 214.3(k)(2). school does not submit a completed re- (xi) Issuance of Forms I–20 to aliens certification petition in the manner re- who will not be enrolled in or carry full quired by 8 CFR 214.3(h)(2). courses of study, as defined in 8 CFR (iii) Sixty days after the change of 214.2(f)(6) or 214.2(m)(9). ownership if an SEVP-certified school (xii) Failure to operate as a bona fide changes ownership, unless the school institution of learning. files a new petition for SEVP certifi- (xiii) Failure to employ adequate cation, in accordance with the proce- qualified professional personnel. dures at 8 CFR 214.3(h)(1), within 60 (xiv) Failure to limit advertising in days of the change of ownership. SEVP the manner prescribed in 8 CFR 214.3(j). will review the petition if the school (xv) Failure to maintain proper fa- properly files such petition to deter- cilities for instruction. mine whether the school still meets (xvi) Failure to maintain accredita- the eligibility requirements of 8 CFR tion or licensing necessary to qualify 214.3(a)(3) and is still in compliance graduates as represented in the with the recordkeeping, retention, re- school’s Form I–17. porting and other requirements of 8 (xvii) Failure to maintain the phys- CFR 214.3(f), (g), (j), (k), and (l). SEVP ical plant, curriculum, and teaching will institute withdrawal proceedings staff in the manner represented in the in accordance with paragraph (b) of Form I–17. this section if, upon completion of the (xviii) Failure to comply with the review, SEVP finds that the school is procedures for issuance of Forms I–20 no longer eligible for certification, or as set forth in 8 CFR 214.3(k). is not in compliance with the record- (xix) Failure of a DSO to notify keeping, retention, reporting and other SEVP of material changes, such as requirements of 8 CFR 214.3(f), (g), (j), changes to the school’s name, address, (k), and (l).

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(iv) If an SEVP-certified school vol- fied under part 292 of this chapter, at untarily withdraws from its certifi- no expense to the Government, in prep- cation. aration of its answer or in connection (4) Automatic withdrawal as of SEVIS with the interview. mandatory compliance date. The present (d) Allegations admitted or no answer approval of any school that has not filed. If the school or school system ad- filed for enrollment in SEVIS by the mits all of the allegations in the notice mandatory compliance date for attend- of intent to withdraw approval, or if ance of nonimmigrant students under the school or school system fails to file section 101(a)(15)(F)(i) or an answer within the 30-day period, the 101(a)(15)(M)(i) of the Act is automati- district director shall withdraw the ap- cally withdrawn as of the day following proval previously granted and he/she the mandatory compliance date for shall notify the designated school offi- SEVIS. Given the time necessary to cial of the decision. No appeal shall lie conduct a review of each school, the from the district director’s decision if Service will review and adjudicate all allegations are admitted or no an- Form I–17 petitions for approval in swer is filed within the 30-day period. SEVIS prior to the SEVIS mandatory (e) Allegations denied. If the school or compliance date only for Form I–17 pe- school system denies the allegations in titions filed at least 75 days prior to the notice of intent to withdraw ap- this mandatory date. If a Form I–17 pe- proval, then the school or school sys- tition is filed less than 75 days prior to tem shall, in its answer, provide all in- the mandatory compliance date and is formation or evidence on which the an- not adjudicated prior to the mandatory swer is based. compliance date, the school will not be (f) Interview requested. (1) If in its an- authorized to access SEVIS and will be swer to the notice of intent to with- unable to issue any SEVIS Forms I–20 draw approval the school or school sys- until the adjudication is complete. tem requests an interview, the school (b) Withdrawal on notice. SEVP will or school system shall be given notice initiate an out-of-cycle review and of the date set for the interview. serve the school with an NOIW if SEVP (2) A summary of the information has information that a school or school provided by the school or school sys- system may no longer be entitled to tem at the interview shall be prepared SEVP certification prior to the school and included in the record. In the dis- being due for its two-year recertifi- cretion of the district director, the cation. The NOIW will inform the interview may be recorded. school of: (g) Decision. The decision of SEVP (1) The grounds for withdrawing will be in accordance with 8 CFR SEVP certification. 103.3(a)(1). (2) The 30-day deadline from the date (h) Appeals. A school may file an ap- of the service of the NOIW for the peal of a denial or withdrawal no later school to submit sworn statements, than 15 days after the service of the de- and documentary or other evidence, to cision by ICE. The appeal must state rebut the grounds for withdrawal of the reasons and grounds for contesting certification in the NOIW. An NOIW is the denial or withdrawal of the ap- not a means for the school to submit proval. The appeal must be accom- evidence that it should have previously panied by the fee as provided in 8 CFR submitted as a part of its established 103.7(b)(1)(ii)(O). reporting requirements. (i) Operations at a school when SEVP (3) The school’s right to submit a certification is relinquished or withdrawn, written request (including e-mail) or whose recertification is denied and on within 30 days of the date of service of the SEVIS access termination date—(1) the NOIW for a telephonic interview in General. A school whose certification is support of its response to the NOIW. relinquished or withdrawn, or whose (c) Assistance of counsel. The school or recertification is denied may, at SEVP school system shall also be informed in discretion, no longer be able to create the notice of intent to withdraw ap- Initial student records or issue new proval that it may be assisted or rep- Forms I–20, Certificate of Eligibility resented by counsel of its choice quali- for Nonimmigrant Student, for initial

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attendance. Schools must comply with U.S. government during any previous the instructions given in the notice of period of SEVP certification. withdrawal or denial with regard to [37 FR 17463, Aug. 29, 1972, as amended at 48 management of status for their Initial FR 14592, Apr. 5, 1983; 48 FR 19867, May 3, and continuing F and/or M students. 1983; 48 FR 22131, May 17, 1983; 49 FR 41015, All other SEVIS functionality, includ- Oct. 19, 1984; 50 FR 9991, Mar. 13, 1985; 54 FR ing event reporting for students, will 19544, May 8, 1989; 55 FR 41988, Oct. 17, 1990; remain unchanged until the school’s 67 FR 60112, Sept. 25, 2002; 73 FR 55702, Sept. 26, 2008; 84 FR 23979, May 23, 2019] SEVIS access termination date. The school must continue to comply with § 214.5 Libyan and third country na- the recordkeeping, retention, reporting tionals acting on behalf of Libyan and other requirements of 8 CFR entities. 214.3(f), (g), (j), (k), and (l) until its (a) Notwithstanding any other provi- SEVIS access termination date. sion of this title, the nonimmigrant (2) SEVIS access termination. In deter- status of any Libyan national, or of mining the SEVIS access termination any other foreign national acting on date, SEVP will consider the impact behalf of a Libyan entity, who is en- that such date will have upon SEVP, gaging in aviation maintenance, flight the school, and the school’s non- operations, or nuclear-related studies immigrant students in determining the or training is terminated. SEVIS access termination date. In (b) Notwithstanding any other provi- most situations, SEVP will not deter- sion of this chapter, the following ben- mine a SEVIS access termination date efits will not be available to any Liby- for that school until the appeals proc- an national or any other foreign national acting on behalf of a Libyan en- ess has concluded and the initial denial tity where the purpose is to engage in, or withdrawal has been upheld unless a or seek to obtain aviation mainte- school whose certification is with- nance, flight operations or nuclear-re- drawn or whose recertification is de- lated studies or training: nied is suspected of criminal activity (1) Application for school transfer. or poses a potential national security (2) Application for extension of stay. threat. The school will no longer be (3) Employment authorization or able to access SEVIS, and SEVP will practical training. automatically terminate any remain- (4) Request for reinstatement of stu- ing Active SEVIS records for that dent status. school on the SEVIS access termi- (5) Application for change of non- nation date. immigrant status. (3) Legal obligations and ramifications (Secs. 103, 212, 214, 248; 8 U.S.C. 1103, 1182, for a school and its DSOs when a school 1184, 1258) is having SEVP certification denied or [48 FR 10297, Mar. 3, 1983] withdrawn. Schools are obligated to their students to provide the programs § 214.6 Citizens of Canada or Mexico of study to which they have committed seeking temporary entry under themselves in the students’ application NAFTA to engage in business activi- for enrollment and acceptance process. ties at a professional level. Schools are obligated to the U.S. gov- (a) General. Under section 214(e) of ernment to comply with the record- the Act, a citizen of Canada or Mexico keeping, retention, reporting and other who seeks temporary entry as a busi- requirements contained in 8 CFR 214.3. ness person to engage in business ac- With any new petition for SEVP cer- tivities at a professional level may be tification, SEVP will consider the ex- admitted to the United States in ac- tent to which a school has fulfilled cordance with the North American these obligations to students and the 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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the individual has a least a bacca- —Architect—Baccalaureate or Licenciatura laureate degree or appropriate creden- Degree; or state/provincial license. 2 tials demonstrating status as a profes- —Computer Systems Analyst—Bacca- sional in a profession set forth in Ap- laureate or Licenciatura Degree; or Post- Secondary Diploma 3 or Post Secondary pendix 1603.D.1 of the NAFTA. Certificate 4 and three years’ experience. Business person, as defined in the —Disaster relief insurance claims adjuster NAFTA, means a citizen of Canada or (claims adjuster employed by an insur- Mexico who is engaged in the trade of ance company located in the territory of goods, the provision of services, or the a Party, or an independent claims ad- conduct of investment activities. juster)—Baccalaureate or Licenciatura Engage in business activities at a pro- Degree and successful completion of fessional level means the performance of training in the appropriate areas of in- prearranged business activities for a surance adjustment pertaining to disaster relief claims; or three years experi- United States entity, including an indi- ence in claims adjustment and successful vidual. It does not authorize the estab- completion of training in the appropriate lishment of a business or practice in areas of insurance adjustment pertaining the United States in which the profes- to disaster relief claims. sional will be, in substance, self-em- —Economist—Baccalaureate or Licenciatura ployed. A professional will be deemed Degree. to be self-employed if he or she will be —Engineer—Baccalaureate or Licenciatura rendering services to a corporation or Degree; or state/provincial license. entity of which the professional is the —Forester—Baccalaureate or Licenciatura Degree; or state/provincial license. sole or controlling shareholder or —Graphic Designer—Baccalaureate or owner. Licenciatura Degree; or Post-Secondary Temporary entry, as defined in the Diploma or Post-Secondary Certificate NAFTA, means entry without the in- and three years experience. tent to establish permanent residence. —Hotel Manager—Baccalaureate or The alien must satisfy the inspecting Licenciatura Degree in hotel/restaurant immigration officer that the proposed management; or Post-Secondary Di- stay is temporary. A temporary period ploma or Post Secondary Certificate in has a reasonable, finite end that does hotel/restaurant management and three years experience in hotel/restaurant not equate to permanent residence. In management. order to establish that the alien’s —Industrial Designer—Baccalaureate or entry will be temporary, the alien Licenciatura Degree; or Post-Secondary must demonstrate to the satisfaction Diploma or Post Secondary Certificate, of the inspecting immigration officer and three years experience. that his or her work assignment in the —Interior Designer—Baccalaureate or United States will end at a predictable Licenciatura Degree or Post-Secondary time and that he or she will depart Diploma or Post-Secondary Certificate, upon completion of the assignment. and three years experience. (c) Appendix 1603.D.1 to Annex 1603 of the NAFTA. Pursuant to the NAFTA, 2 The terms ‘‘state/provincial license’’ and an applicant seeking admission under ‘‘state/provincial/federal license’’ mean any document issued by a state, provincial, or this section shall demonstrate business federal government, as the case may be, or activity at a professional level in one under its authority, but not by a local gov- of the professions set forth in Appendix ernment, that permits a person to engage in 1603.D.1 to Annex 1603. The professions a regulated activity or profession. in Appendix 1603.D.1 and the minimum 3 ‘‘Post Secondary Diploma’’ means a cre- requirements for qualification for each dential issued, on completion of two or more are as follows: 1 years of post secondary education, by an accredited academic institution in Canada or APPENDIX 1603.D.1 (ANNOTATED) the United States. 4 ‘‘Post Secondary Certificate’’ means a —Accountant—Baccalaureate or certificate issued, on completion of two or Licenciatura Degree; or C.P.A., C.A., more years of post secondary education at an C.G.A., or C.M.A. academic institution, by the federal government of Mexico or a state government in 1 A business person seeking temporary em- Mexico, an academic institution recognized ployment under this Appendix may also per- by the federal government or a state govern- form training functions relating to the pro- ment, or an academic institution created by fession, including conducting seminars. federal or state law.

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—Land Surveyor—Baccalaureate or Medical/Allied Professionals Licenciatura Degree or state/provincial/ —Dentist—D.D.S., D.M.D., Doctor en federal license. Odontologia or Doctor en Cirugia Dental —Landscape Architect—Baccalaureate or Licenciatura Degree. or state/provincial license. —Lawyer (including Notary in the province —Dietitian—Baccalaureate or Licenciatura of Quebec)—L.L.B., J.D., L.L.L., B.C.L., Degree; or state/provincial license. or Licenciatura degree (five years); or —Medical Laboratory Technologist (Canada)/ membership in a state/provincial bar. Medical Technologist (Mexico and the 7 —Librarian—M.L.S., or B.L.S. (for which an- United States) —Baccalaureate or other Baccalaureate or Licenciatura De- Licenciatura Degree; or Post-Secondary gree was a prerequisite). Diploma or Post-Secondary Certificate, —Management Consultant—Baccalaureate and three years experience. or Licenciatura Degree; or equivalent —Nutritionist—Baccalaureate or professional experience as established by Licenciatura Degree. statement or professional credential at- —Occupational Therapist—Baccalaureate or testing to five years experience as a man- Licenciatura Degree; or state/provincial agement consultant, or five years experi- license. ence in a field of specialty related to the —Pharmacist—Baccalaureate or consulting agreement. Licenciatura Degree; or state/provincial —Mathematician (including Statistician)— license. Baccalaureate or Licenciatura Degree. 5 —Physician (teaching or research only)— —Range Manager/Range Conservationist— M.D. Doctor en Medicina; or state/pro- Baccalaureate or Licenciatura Degree. vincial license. —Research Assistant (working in a post-sec- —Physiotherapist/Physical Therapist—Bac- ondary educational institution)—Bacca- calaureate or Licenciatura Degree; or laureate or Licenciatura Degree. state/provincial license. —Scientific Technician/Technologist 6—Pos- —Psychologist—state/provincial license; or session of (a) theoretical knowledge of Licenciatura Degree. any of the following disciplines: agricul- —Recreational Therapist-Baccalaureate or tural sciences, astronomy, biology, Licenciatura Degree. chemistry, engineering, forestry, geol- —Registered nurse—state/provincial license ogy, geophysics, meteorology, or physics; or Licenciatura Degree. and (b) the ability to solve practical —Veterinarian—D.V.M., D.M.V., or Doctor problems in any of those disciplines, or en Veterinaria; or state/provincial li- the ability to apply principles of any of cense. those disciplines to basic or applied re- —SCIENTIST search. —Social Worker—Baccalaureate or —Agriculturist (including Agronomist)— Licenciatura Degree. Baccalaureate or Licenciatura Degree. —Sylviculturist (including Forestry Spe- —Animal Breeder—Baccalaureate or cialist)—Baccalaureate or Licenciatura Licenciatura Degree. Degree. —Animal Scientist—Baccalaureate or —Technical Publications Writer—Bacca- Licenciatura Degree. laureate or Licenciatura Degree, or Post- —Apiculturist—Baccalaureate or Secondary Diploma or Post-Secondary Licenciatura Degree. Certificate, and three years experience. —Astronomer—Baccalaureate or —Urban Planner (including Geographer)— Licenciatura Degree. Baccalaureate or Licenciatura Degree. —Biochemist—Baccalaureate or —Vocational Counselor—Baccalaureate or Licenciatura Degree. Licenciatura Degree. —Biologist—Baccalaureate or Licenciatura Degree. 8 —Chemist—Baccalaureate or Licenciatura 5 The term ‘‘Mathematician’’ includes the Degree. profession of Actuary. An Actuary must sat- —Dairy Scientist—Baccalaureate or isfy the necessary requirements to be recog- Licenciatura Degree. nized as an actuary by a professional actu- —Entomologist—Baccalaureate or arial association or society. A professional Licenciatura Degree. actuarial association or society means a professional actuarial association or society operating in the territory of at least one of the 7 A business person in this category must Parties. be seeking temporary entry to perform in a 6 A business person in this category must laboratory chemical, biological, be seeking temporary entry for work in di- hematological, immunologic, microscopic or rect support of professionals in agricultural bacteriological tests and analyses for diag- sciences, astronomy, biology, chemistry, en- nosis, treatment, or prevention of diseases. gineering, forestry, geology, geophysics, me- 8 The term ‘‘Biologist’’ includes the profes- teorology or physics. sion of Plant Pathologist.

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—Epidemiologist—Baccalaureate or Canada making application for admis- Licenciatura Degree. sion at a port-of-entry, an applicant —Geneticist—Baccalaureate or Licenciatura under this section shall present the fol- Degree. lowing: —Geochemist—Baccalaureate or Licenciatura Degree. (i) Proof of citizenship. A Mexican cit- —Geologist—Baccalaureate or Licenciatura izen applying for admission as a TN Degree. nonimmigrant must establish such —Geophysicist (including Oceanographer in citizenship by presenting a valid pass- Mexico and the United States)—Bacca- port. Canadian citizens, while not re- laureate or Licenciatura Degree. quired to present a valid passport for —Horticulturist—Baccalaureate or admission unless traveling from out- Licenciatura Degree. side the Western hemisphere, must es- —Meteorologist—Baccalaureate or Licenciatura Degree. tablish Canadian citizenship. —Pharmacologist—Baccalaureate or (ii) Documentation demonstrating en- Licenciatura Degree. gagement in business activities at a pro- —Physicist (including Oceanographer in fessional level and demonstrating profes- Canada—Baccalaureate or Licenciatura sional qualifications. The applicant Degree. must present documentation sufficient —Plant Breeder—Baccalaureate or to satisfy the consular officer (in the Licenciatura Degree. case of a Mexican citizen) or the De- —Poultry Scientist—Baccalaureate or Licenciatura Degree. partment officer (in the case of a Cana- —Soil Scientist—Baccalaureate or dian citizen) that the applicant is seek- Licenciatura Degree. ing entry to the United States to en- —Zoologist—Baccalaureate or Licenciatura gage in business activities for a United Degree. States employer(s) or entity(ies) at a —TEACHER professional level, and that the appli- —College—Baccalaureate or Licenciatura cant meets the criteria to perform at Degree. such a professional level. This docu- —Seminary—Baccalaureate or Licenciatura mentation may be in the form of a let- Degree. ter from the prospective employer(s) in —University—Baccalaureate or Licenciatura the United States or from the foreign Degree. employer, and must be supported by di- (d) Classification of citizens of Canada plomas, degrees or membership in a or Mexico as TN professionals under the professional organization. Degrees re- NAFTA—(1) Citizens of Mexico. A citizen ceived by the applicant from an edu- of Mexico who seeks temporary entry cational institution not located within as a business person to engage in busi- Canada, Mexico, or the United States ness activities at a professional level must be accompanied by an evaluation may be admitted to the United States by a reliable credentials evaluation in accordance with NAFTA upon pres- service which specializes in evaluating entation of a valid passport and valid foreign educational credentials. The TN nonimmigrant visa at a United documentation shall fully affirm: States Class A port-of-entry, at a (A) The Appendix 1603.D.1 profession United States airport handling inter- of the applicant; national traffic, or at a United States (B) A description of the professional pre-clearance/pre-flight station. activities, including a brief summary (2) Citizens of Canada. A citizen of of daily job duties, if appropriate, in Canada seeking temporary entry as a which the applicant will engage in for business person to engage in business the United States employer/entity; activities at a professional level shall (C) The anticipated length of stay; make application for admission with a (D The educational qualifications or Department officer at the United appropriate credentials which dem- States Class A port-of-entry, at a onstrate that the Canadian or Mexican United States airport handling inter- citizen has professional level status; national traffic, or at a United States and pre-clearance/pre-flight station. (E) The arrangements for remunera- (3) Documentation. Upon application tion for services to be rendered. for a visa at a United States consular (e) Procedures for admission. A citizen office, or, in the case of a citizen of of Canada or Mexico who qualifies for

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admission under this section shall be status, or a United States entity (in provided confirming documentation the case of a citizen of Canada or Mex- and shall be admitted under the classi- ico who is currently maintaining valid fication symbol TN for a period not to TN nonimmigrant status and is em- exceed three years. The conforming ployed by a foreign employer), may re- document provided shall bear the leg- quest an extension of stay, subject to end ‘‘multiple entry.’’ The fee pre- the following conditions: scribed under 8 CFR 103.7(b)(1) shall be (i) An extension of stay must be re- remitted by Canadian Citizens upon ad- quested by filing the appropriate form mission to the United States pursuant with the fee provided at 8 CFR 106.2, in to the terms and conditions of the accordance with the form instructions NAFTA. Upon remittance of the pre- with USCIS. scribed fee, the TN applicant for admis- (ii) The beneficiary must be phys- sion shall be provided a DHS-issued re- ically present in the United States at ceipt on the appropriate form. the time of the filing of the appropriate (f) [Reserved] form requesting an extension of stay as (g) Readmission—(1) With a Form I–94. a TN nonimmigrant. If the alien is re- An alien may be readmitted to the quired to leave the United States for United States in TN classification for any reason while the petition is pend- the remainder of the authorized period ing, the petitioner may request that of TN admission on Form I–94 (see USCIS notify the consular office where § 1.4), without presentation of the letter the beneficiary is required to apply for or supporting documentation described a visa or, if visa exempt, a DHS-des- in paragraph (d)(3) of this section, and ignated port-of-entry where the bene- without the prescribed fee set forth in ficiary will apply for admission to the 8 CFR 106.2, provided that the original United States, of the approval. intended professional activities and (iii) An extension of stay in TN sta- employer(s) have not changed, and the tus may be approved by USCIS for a Form I–94 has not expired. maximum period of three years. (2) Without a valid I–94. If the alien (iv) There is no specific limit on the seeking readmission to the United total period of time an alien may be in States in TN classification is no longer TN status provided the alien continues in possession of a valid, unexpired to be engaged in TN business activities Form I–94, and the period of initial ad- for a U.S. employer or entity at a pro- mission in TN classification has not fessional level, and otherwise continues lapsed, then a new Form I–94 may be to properly maintain TN non- issued for the period of validity that immigrant status. remains on the TN nonimmigrant’s (2) Readmission at the border. Nothing original Form I–94 with the legend in paragraph (h)(1) of this section shall ‘‘multiple entry’’ and the alien can preclude a citizen of Canada or Mexico then be readmitted in TN status if the who has previously been admitted to alien presents alternate evidence as the United States in TN status, and follows: who has not violated such status while (i) For Canadian citizens, alternate in the United States, from applying at evidence may include, but is not lim- a DHS-designated port-of-entry, prior ited to, a fee receipt for admission as a to the expiration date of the previous TN or a previously issued admission period of admission, for a new three- stamp as TN in a passport, and a con- year period of admission. The applica- firming letter from the United States tion for a new period of admission must employer(s). be supported by a new letter from the (ii) For Mexican citizens seeking re- United States employer or the foreign admission as TN nonimmigrants, alter- employer, in the case of a citizen of nate evidence shall consist of presen- Canada who is providing prearranged tation of a valid unexpired TN visa and services to a United States entity, evidence of a previous admission. which meets the requirements of para- (h) Extension of stay—(1) Filing. A graph (d) of this section, together with United States employer of a citizen of the appropriate filing fee as noted in 8 Canada or Mexico who is currently CFR 106.2. Citizens of Mexico must maintaining valid TN nonimmigrant present a valid passport and a valid,

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unexpired TN nonimmigrant visa when change of nonimmigrant status or an applying for readmission, as outlined extension of his or her period of stay in paragraph (d)(1) of this section. for the same period of time granted to (i) Request for change or addition of the TN nonimmigrant. Such spouse or United States employers—(1) Filing at the unmarried minor children shall, upon service center. A citizen of Canada or approval of an application for admis- Mexico admitted into the United sion, readmission, change of status or States as a TN nonimmigrant who extension of stay be classified as TD seeks to change or add a United States nonimmigrants. A request for a change employer during the period of admis- of status to TD or an extension of stay sion must have the new employer file a of a TD nonimmigrant may be made on Form I–129 with appropriate supporting the appropriate form together with ap- documentation, including a letter from propriate filing fees and evidence of the the new employer describing the serv- principal alien’s current TN status. ices to be performed, the time needed (2) The spouse or unmarried minor to render such services, and the terms children of a citizen of Canada or Mex- of remuneration for services. Employ- ico admitted in TN nonimmigrant sta- ment with a different or with an addi- tus shall be required to present a valid, tional employer is not authorized prior unexpired TD nonimmigrant visa un- to Department approval of the request. less otherwise exempt under 8 CFR (2) Readmission at the border. Nothing 212.1. in paragraph (i)(1) of those section pre- (3) The spouse and unmarried minor cludes a citizen of Canada or Mexico children of a citizen of Canada or Mex- from applying for readmission to the ico admitted in TN nonimmigrant sta- United States for the purpose of pre- tus shall be issued confirming docu- senting documentation from a different mentation bearing the legend ‘‘mul- or additional United States or foreign tiple entry.’’ There shall be no fee re- employer. Such documentation shall quired for admission of the spouse and meet the requirements prescribed in unmarried minor children. paragraph (d) of this section. The fee (4) The spouse and unmarried minor prescribed under 8 CFR 106.2 shall be children of a citizen of Canada or Mex- remitted by Canadian citizens upon ad- ico admitted in TN nonimmigrant sta- mission to the United States pursuant tus shall not accept employment in the to the terms and conditions of the United States unless otherwise author- NAFTA. Citizens of Mexico may ized under the Act. present documentation from a different (k) Effect of a strike. (1) If the Sec- or additional United States or foreign retary of Labor certifies or otherwise employer to a consular officer as evi- informs the Director of USCIS that a dence in support of a new non- strike or other labor dispute involving immigrant TN visa application. a work stoppage of workers is in (3) No action shall be required on the progress, and the temporary entry of a part of a citizen of Canada or Mexico in citizen of Mexico or Canada in TN non- TN status who is transferred to an- immigrant status may adversely affect other location by the same United the settlement of any labor dispute or States employer to perform the same the employment of any person who is services. Such an acceptable transfer involved in such dispute, the United would be to a branch or office of the States may refuse to issue an immigra- employer. In a case of a transfer to a tion document authorizing the entry or separately incorporated subsidiary or employment of such an alien. affiliate, the requirements of para- (2) If the alien has already com- graphs (i)(1) and (i)(2) of this section menced employment in the United will apply. States and is participating in a strike (j) Spouse and unmarried minor chil- or other labor dispute involving a work dren accompanying or following to join. stoppage of workers, whether or not (1) The spouse or unmarried minor chil- such strike or other labor dispute has dren of a citizen of Canada or Mexico been certified by the Department of admitted in TN nonimmigrant status, Labor, or whether USCIS has been oth- if otherwise admissible, may be admit- erwise informed that such a strike or ted initially, readmitted, or granted a labor dispute is in progress, the alien

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shall not be deemed to be failing to Public Law 99–658, with respect to maintain his or her status solely on ac- Palau. count of past, present, or future par- (2) Freely associated states (FAS) ticipation in a strike or other labor means the following parts of the dispute involving a work stoppage of former Trust Territories of the Pacific workers, but is subject to the following Islands, namely, the Republic of the terms and conditions: Marshall Islands, the Federated States (i) The alien shall remain subject to of Micronesia, and Palau. all applicable provisions of the Immi- (3) Territories and possessions of the gration and Nationality Act and regu- United States means all territories and lations promulgated in the same man- possessions of the United States to ner as all other TN nonimmigrants; which the Act applies, including those (ii) The status and authorized period commonwealths of the United States of stay of such an alien is not modified that are not States. It does not include or extended in any way by virtue of his American Samoa, as long as the Act or her participation in a strike or other does not apply to it. labor dispute involving a work stop- (4)(i) Habitual resident means a citizen page of workers; and of the FAS who has been admitted to a (iii) Although participation by a TN territory or possession of the United nonimmigrant alien in a strike or States (other than American Samoa, as other labor dispute involving a work long as the Act is not applicable to it) stoppage of workers will not constitute pursuant to section 141(a) of the Com- a ground for removal, any alien who pacts and who occupies in such terri- violates his or her status or who re- tory or possession a habitual residence mains in the United States after his or as that term is defined in section 461 of her authorized period of stay has ex- the Compacts, namely a place of gen- pired will be subject to removal. eral abode or a principal, actual dwell- (3) If there is a strike or other labor ing place of a continuing or lasting na- dispute involving a work stoppage of ture. The term ‘‘habitual resident’’ workers in progress but such strike or does not apply to: other labor dispute is not certified (A) A person who has established a under paragraph (k)(1) of this section, continuing residence in a territory or or USCIS has not otherwise been in- possession of the United States, but formed by the Secretary that such a whose cumulative physical presence in strike or labor dispute is in progress, the United States amounts to less than Director of USCIS shall not deny a pe- 365 days; or tition or deny entry to an applicant for (B) A dependent of a resident rep- TN status based upon such strike or resentative described in section 152 of other labor dispute. the Compacts; or (C) A person who entered the United [58 FR 69212, Dec. 30, 1993, as amended at 63 States for the purpose of full-time FR 1335, Jan. 9, 1998; 69 FR 11289, Mar. 10, 2004; 69 FR 60941, Oct. 13, 2004; 73 FR 61334, studies as long as such person main- Oct. 16, 2008; 78 FR 18472, Mar. 27, 2013; 85 FR tains that status. 46925, Aug. 3, 2020] (ii) Since the term ‘‘habitual’’ resident requires that the person have en- § 214.7 Habitual residence in the terri- tered the United States pursuant to tories and possessions of the United section 141(a) of the Compacts, the States and consequences thereof. term does not apply to FAS citizens (a) Definitions. As used in this sec- whose presence in the territories or tion, the term: possessions is based on an authority (1) Compacts means the agreements of other than section 141(a), such as: free association between the United (A) Members of the Armed Forces of States and the governments of the Re- the United States described in 8 CFR public of the Marshall Islands, the Fed- § 235.1(c); erated States of Micronesia, and Palau, (B) Persons lawfully admitted for approved by Public Law 99–239 with re- permanent residence in the United spect to the governments of the Repub- States; or lic of the Marshall Islands and the Fed- (C) Persons having nonimmigrant erated States of Micronesia, and by status whose entry into the United

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States is based on provisions of the do not apply to habitual residents liv- Compacts or the Act other than section ing in American Samoa as long as the 141(a) of the Compacts. Act does not extend to it. These rules (5) Dependent means a citizen of the are not applicable to habitual residents FAS, as defined in section 141(a) of the living in the fifty States or the District Compacts, who: of Columbia. (i) Is a habitual resident; (c) When is an arriving FAS citizen pre- (ii) Resides with a principal habitual sumed to be a habitual resident? (1) An resident; arriving FAS citizen will be subject to (iii) Relies for financial support on the rebuttable presumption that he or that principal habitual resident; and she is a habitual resident if the Service (iv) Is either the parent, spouse, or has reason to believe that the arriving unmarried child under the age of 21 of FAS citizen was previously admitted to the principal habitual resident or the the territory or possession more than parent or child of the spouse of the one year ago; and principal habitual resident. (2) That the arriving FAS citizen ei- (6) Principal habitual resident means a ther; habitual resident with whom one or (i) Failed to turn in his or her Form more dependents reside and on whom I–94 (see § 1.4) when he or she previously dependent(s) rely for financial support. departed from the United States; or (7) Self-supporting means: (ii) Failed to apply for a replacement (i) Having a lawful occupation of a Form I–94. current and continuing nature that (d) What rights do habitual residents provides 40 hours of gainful employ- have? Habitual residents have the right ment each week. A part-time student to enter, reside, study, and work in the attending an accredited college or in- United States, its territories or posses- stitution of higher learning in a terri- sions, in nonimmigrant status without tory or possession of the United States regard to the requirements of sections receives for each college or graduate 212(a)(5)(A) and 212(a)(7)(A) and (B) of credit-hour of study a three-hour credit the Act. toward the 40-hour requirement; or (e) What are the limitations on the (ii) If the person cannot meet the 40- rights of habitual residents? (1) A habit- hour employment requirement, having ual resident who is not a dependent is lawfully derived funds that meet or ex- subject to removal if he or she: ceed 100 percent of the official poverty guidelines for Hawaii for a family unit (i) Is not and has not been self-sup- of the appropriate size as published an- porting for a period exceeding 60 con- nually by the Department of Health secutive days for reasons other than a and Human Services. lawful strike or other labor dispute in- (8) Receipt of unauthorized public bene- volving work stoppage; or fits means the acceptance of public ben- (ii) Has received unauthorized public efits by fraud or willful misrepresenta- benefits by fraud or willful misrepre- tion in violation of section 401 or 411 of sentation; or the Personal Responsibility and Work (iii) Is subject to removal pursuant to Opportunity Reconciliation Act of 1996, section 237 of the Act, or any other pro- Public Law 104–193, 110 Stat. 2261, 2268, vision of the Act. as amended by sections 5561 and 5565 of (2) Any dependent is removable from the Balanced Budget Act of 1997, Public a territory or possession of the United Law 105–33, 111 Stat. 638. 639. States if: (b) Where do these rules regarding ha- (i) The principal habitual resident bitual residence apply? The rules in this who financially supports him or her section apply to habitual residents liv- and with whom he or she resides, being in a territory or possession of the comes subject to removal unless the United States to which the Act applies. dependent establishes that he or she Those territories and possessions are at has become a dependent of another ha- present Guam, the Commonwealth of bitual resident or becomes self-sup- Puerto Rico, the American Virgin Is- porting; or lands, and the Commonwealth of the (ii) The dependent, as an individual, Northern Mariana Islands. These rules receives unauthorized public benefits

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by fraud or willful misrepresentation; Debt bondage means the status or or condition of a debtor arising from a (iii) The dependent, as an individual, pledge by the debtor of his or her per- is subject to removal pursuant to sec- sonal services or of those of a person tion 237 of the Act, or any other provi- under his or her control as a security sion of the Act. for debt, if the value of those services as reasonably assessed is not applied [65 FR 56465, Sept. 19, 2000, as amended at 74 FR 55738, Oct. 28, 2009; 78 FR 18472, Mar. 27, toward the liquidation of the debt or 2013] the length and nature of those services are not respectively limited and de- §§ 214.8–214.10 [Reserved] fined. Derivative T nonimmigrant means an § 214.11 Alien victims of severe forms eligible family member who has been of trafficking in persons. granted T–2, T–3, T–4, T–5, or T–6 deriv- (a) Definitions. Where applicable, ative status. A family member outside USCIS will apply the definitions proof the United States is not a derivative vided in section 103 and 107(e) of the T nonimmigrant until he or she is Trafficking Victims Protection Act granted a T–2, T–3, T–4, T–5, or T–6 visa (TVPA) with due regard for the defini- by the Department of State and is ad- tions and application of these terms in mitted to the United States in deriva- 28 CFR part 1100 and the provisions of tive T nonimmigrant status. 18 U.S.C. 77. As used in this section the Eligible family member means a family term: member who may be eligible for deriva- Application for derivative T non- tive T nonimmigrant status based on immigrant status means a request by a his or her relationship to an alien vic- principal alien on behalf of an eligible tim and, if required, upon a showing of family member for derivative T–2, T–3, a present danger or retaliation; and: T–4, T–5, or T–6 nonimmigrant status (1) In the case of an alien victim who on the form designated by USCIS for is 21 years of age or older, means the that purpose. spouse and children of such alien; Application for T nonimmigrant status (2) In the case of an alien victim means a request by a principal alien for under 21 years of age, means the T–1 nonimmigrant status on the form spouse, children, unmarried siblings designated by USCIS for that purpose. under 18 years of age, and parents of Bona fide determination means a such alien; and USCIS determination that an applica- (3) Regardless of the age of an alien tion for T–1 nonimmigrant status has victim, means any parent or unmarried been initially reviewed and determined sibling under 18 years of age, or adult that the application does not appear to or minor child of a derivative of such be fraudulent, is complete and properly alien where the family member faces a filed, includes completed fingerprint present danger of retaliation as a re- and background checks, and presents sult of the alien victim’s escape from a prima facie evidence of eligibility for severe form of trafficking or coopera- T–1 nonimmigrant status including ad- tion with law enforcement. missibility. Involuntary servitude means a condi- Child means a person described in tion of servitude induced by means of section 101(b)(1) of the Act. any scheme, plan, or pattern intended Coercion means threats of serious to cause a person to believe that, if the harm to or physical restraint against person did not enter into or continue in any person; any scheme, plan, or pat- such condition, that person or another tern intended to cause a person to be- person would suffer serious harm or lieve that failure to perform an act physical restraint; or a condition of would result in serious harm to or servitude induced by the abuse or physical restraint against any person; threatened abuse of legal process. In- or the abuse or threatened abuse of the voluntary servitude includes a condi- legal process. tion of servitude in which the victim is Commercial sex act means any sex act forced to work for the defendant by the on account of which anything of value use or threat of physical restraint or is given to or received by any person. physical injury, or by the use or threat

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of coercion through the law or the whether the information could be ob- legal process. This definition encom- tained without the victim’s compli- passes those cases in which the defend- ance; whether an interpreter or attor- ant holds the victim in servitude by ney was present to help the victim un- placing the victim in fear of such phys- derstand the request; cultural, reli- ical restraint or injury or legal coer- gious, or moral objections to the re- cion. quest; the time the victim had to com- Law Enforcement Agency (LEA) means ply with the request; and the age and a Federal, State, or local law enforce- maturity of the victim. ment agency, prosecutor, judge, labor Severe form of trafficking in persons agency, children’s protective services means sex trafficking in which a com- agency, or other authority that has the mercial sex act is induced by force, responsibility and authority for the de- fraud, or coercion, or in which the per- tection, investigation, and/or prosecu- son induced to perform such act is tion of severe forms of trafficking in under the age of 18 years; or the re- persons. Federal LEAs include but are cruitment, harboring, transportation, not limited to the following: U.S. At- provision, or obtaining of a person for torneys’ Offices, Civil Rights Division, labor or services through the use of Criminal Division, U.S. Marshals Serv- force, fraud, or coercion for the purpose ice, Federal Bureau of Investigation of subjection to involuntary servitude, (Department of Justice); U.S. Immigra- peonage, debt bondage, or slavery. tion and Customs Enforcement (ICE), Sex trafficking means the recruit- U.S. Customs and Border Protection ment, harboring, transportation, provi- (CBP); Diplomatic Security Service sion, obtaining, patronizing, or solic- (Department of State); and Department iting of a person for the purpose of a of Labor. commercial sex act. Law Enforcement Agency (LEA) en- United States means the fifty States dorsement means an official LEA en- of the United States, the District of dorsement on the form designated by Columbia, the Commonwealth of Puer- USCIS for such purpose. to Rico, the U.S. Virgin Islands, Guam, Peonage means a status or condition of involuntary servitude based upon and the Commonwealth of the North- real or alleged indebtedness. ern Mariana Islands. Principal T nonimmigrant means the Victim of a severe form of trafficking in victim of a severe form of trafficking persons (victim) means an alien who is in persons who has been granted T–1 or has been subject to a severe form of nonimmigrant status. trafficking in persons. Reasonable request for assistance (b) Eligibility for T–1 status. An alien means a request made by an LEA to a is eligible for T–1 nonimmigrant status victim to assist in the investigation or under section 101(a)(15)(T)(i) of the Act prosecution of the acts of trafficking in if he or she demonstrates all of the fol- persons or the investigation of crime lowing, subject to section 214(o) of the where acts of trafficking are at least Act: one central reason for the commission (1) Victim. The alien is or has been a of that crime. The ‘‘reasonableness’’ of victim of a severe form of trafficking the request depends on the totality of in persons. the circumstances. Factors to consider (2) Physical presence. The alien is include, but are not limited to: General physically present in the United States law enforcement and prosecutorial or at a port-of-entry thereto, according practices; the nature of the victimiza- to paragraph (g) of this section. tion; the specific circumstances of the (3) Compliance with any reasonable re- victim; severe trauma (both mental quest for assistance. The alien has com- and physical); access to support serv- plied with any reasonable request for ices; whether the request would cause assistance in a Federal, State, or local further trauma: The safety of the vic- investigation or prosecution of acts of tim or the victim’s family; compliance trafficking in persons, or the investiga- with other requests and the extent of tion of a crime where acts of traf- such compliance; whether the request ficking in persons are at least one cen- would yield essential information; tral reason for the commission of that

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crime, or meets one of the conditions (1) Filing an application. An alien described below. seeking T–1 nonimmigrant status must (i) Exemption for minor victims. An submit an application for T non- alien under 18 years of age is not re- immigrant status on the form des- quired to comply with any reasonable ignated by USCIS in accordance with 8 request. CFR 103.2 and with the evidence de- (ii) Exception for trauma. An alien scribed in paragraph (d) of this section. who, due to physical or psychological (i) Applicants in pending immigration trauma, is unable to cooperate with a proceedings. An alien in removal pro- reasonable request for assistance in the ceedings under section 240 of the Act, Federal, State, or local investigation or in exclusion or deportation pro- or prosecution of acts of trafficking in ceedings under former sections 236 or persons, or the investigation of a crime 242 of the Act (as in effect prior to where acts of trafficking in persons are April 1, 1997), and who wishes to apply at least one central reason for the com- for T–1 nonimmigrant status must file mission of that crime, is not required to comply with such reasonable re- an application for T nonimmigrant sta- quest. tus directly with USCIS. In its discre- (4) Hardship. The alien would suffer tion, DHS may agree to the alien’s re- extreme hardship involving unusual quest to file with the immigration and severe harm upon removal. judge or the Board a joint motion to (5) Prohibition against traffickers in administratively close or terminate persons. No alien will be eligible to re- proceedings without prejudice, which- ceive T nonimmigrant status under ever is appropriate, while an applica- section 101(a)(15)(T) of the Act if there tion for T nonimmigrant status is adju- is substantial reason to believe that dicated by USCIS. the alien has committed an act of a se- (ii) Applicants with final orders of re- vere form of trafficking in persons. moval, deportation, or exclusion. An alien (c) Period of admission—(1) T–1 Prin- subject to a final order of removal, de- cipal. T–1 nonimmigrant status may be portation, or exclusion may file an ap- approved for a period not to exceed 4 plication for T–1 nonimmigrant status years, except as provided in section directly with USCIS. The filing of an 214(o)(7) of the Act. application for T nonimmigrant status (2) Derivative family members. A deriv- has no effect on DHS authority or dis- ative family member who is otherwise cretion to execute a final order of re- eligible for admission may be granted moval, although the alien may request T–2, T–3, T–4, T–5, or T–6 nonimmigrant an administrative stay of removal pur- status for an initial period that does suant to 8 CFR 241.6(a). If the alien is not exceed the expiration date of the in detention pending execution of the initial period approved for the T–1 prin- final order, the period of detention cipal alien, except as provided in sec- (under the standards of 8 CFR 241.4) tion 214(o)(7) of the Act. reasonably necessary to bring about (3) Notice. At the time an alien is ap- the applicant’s removal will be ex- proved for T nonimmigrant status or tended during the period the stay is in receives an extension of T non- effect. If USCIS subsequently deter- immigrant status, USCIS will notify the alien when his or her T non- mines under the procedures in para- immigrant status will expire. USCIS graph (e) of this section that the appli- also will notify the alien that the fail- cation is bona fide, DHS will automati- ure to apply for adjustment of status cally grant an administrative stay of to lawful permanent resident, as set the final order of removal, deportation, forth in 8 CFR 245.23, will result in ter- or exclusion, and the stay will remain mination of the alien’s T non- in effect until a final decision is made immigrant status in the United States on the application for T nonimmigrant at the end of the 4-year period or any status. extension. (iii) Minor applicants. When USCIS re- (d) Application. USCIS has sole juris- ceives an application from a minor diction over all applications for T non- principal alien under the age of 18, immigrant status. USCIS will notify the Department of

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Health and Human Services to facili- the LEA, will determine if the appli- tate the provision of interim assist- cant was or is a victim of a severe form ance. of trafficking in persons, and otherwise (2) Initial evidence. An application for meets the eligibility requirements for T nonimmigrant status must include: T nonimmigrant status. The decision (i) The applicant’s signed statement whether to complete an LEA endorse- describing the facts of the victimiza- ment is at the discretion of the LEA. A tion and compliance with any reason- formal investigation or prosecution is able law enforcement request (or a not required to complete an LEA en- basis for why he or she has not com- dorsement. plied) and any other eligibility require- (ii) Disavowed or revoked LEA endorsements in his or her own words; ment. An LEA may revoke or disavow (ii) Any credible evidence that the the contents of a previously submitted applicant would like USCIS to consider endorsement in writing. After revoca- supporting any of the eligibility re- tion or disavowal, the LEA endorse- quirements set out in paragraphs (f), ment will no longer be considered as (g), (h) and (i) of this section; and evidence. (iii) Inadmissible applicants. If an ap- (iii) Continued Presence. An applicant plicant is inadmissible based on a granted Continued Presence under 28 ground that may be waived, he or she CFR 110.35 should submit documenta- must also submit a request for a waiver tion of the grant of Continued Pres- of inadmissibility on the form des- ence. If Continued Presence has been ignated by USCIS with the fee pre- revoked, it will no longer be considered scribed by 8 CFR 106.2, in accordance as evidence. with form instructions and 8 CFR (iv) Other evidence. An applicant may 212.16, and accompanied by supporting also submit any evidence regarding evidence. entry or admission into the United (3) Evidence from law enforcement. An States or permission to remain in the applicant may wish to submit evidence United States or note that such evi- from an LEA to help establish certain dence is contained in an applicant’s eligibility requirements for T non- immigration file. immigrant status. Evidence from an (4) Biometric services. All applicants LEA is optional and is not given any for T–1 nonimmigrant status must sub- special evidentiary weight. mit biometrics in accordance with 8 (i) Law Enforcement Agency (LEA) en- CFR 103.16. dorsement. An LEA endorsement is op- (5) Evidentiary standards and burden of tional evidence that can be submitted proof. The burden is on the applicant to to help demonstrate victimization and/ demonstrate eligibility for T–1 non- or compliance with reasonable re- immigrant status. The applicant may quests. An LEA endorsement is not submit any credible evidence relating mandatory and is not given any special to a T nonimmigrant application for evidentiary weight. An LEA endorse- consideration by USCIS. USCIS will ment itself does not grant a benefit and conduct a de novo review of all evi- is one form of possible evidence but it dence and may investigate any aspect does not lead to automatic approval of of the application. Evidence previously the application for T nonimmigrant submitted by the applicant for any im- status by USCIS. If provided, the LEA migration benefit or relief may be used endorsement must be submitted on the by USCIS in evaluating the eligibility form designated by USCIS in accord- of an applicant for T–1 nonimmigrant ance with the form instructions and status. USCIS will not be bound by pre- must be signed by a supervising official vious factual determinations made in responsible for the detection, inves- connection with a prior application or tigation or prosecution of severe forms petition for any immigration benefit or of trafficking in persons. The LEA en- relief. USCIS will determine, in its sole dorsement must attach the results of discretion, the evidentiary value of any name or database inquiries per- previously or concurrently submitted formed and describe the victimization evidence. (including dates where known) and the (6) Interview. USCIS may require an cooperation of the victim. USCIS, not applicant for T nonimmigrant status to

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participate in a personal interview. (10) Denial. Upon denial of an applica- The necessity and location of the inter- tion, USCIS will notify the applicant in view is determined solely by USCIS in accordance with 8 CFR 103.3. USCIS accordance with 8 CFR part 103. Every may also notify any LEA providing an effort will be made to schedule the LEA endorsement and the Department interview in a location convenient to of Health and Human Service’s Office the applicant. of Refugee Resettlement. If an appli- (7) Bona fide determination. Once an cant appeals a denial in accordance alien submits an application for T–1 with 8 CFR 103.3, the denial will not be- nonimmigrant status, USCIS will con- come final until the administrative ap- duct an initial review to determine if peal is decided. the application is a bona fide applica- (i) Effect on bona fide determination. tion for T–1 nonimmigrant status Upon denial of an application, any ben- under the provisions of paragraph (e) of efits derived from a bona fide deter- this section. mination will automatically be re- (8) Decision. After completing its de voked when the denial becomes final. novo review of the application and evi- (ii) Applicants previously in removal dence, USCIS will issue a decision ap- proceedings. In the case of an applicant proving or denying the application in who was previously in removal pro- accordance with 8 CFR 103.3. ceedings that were terminated on the basis of a pending application for T (9) Approval. If USCIS determines nonimmigrant status, once a denial be- that the applicant is eligible for T–1 comes final, DHS may file a new Notice nonimmigrant status, USCIS will ap- to Appear to place the individual in re- prove the application and grant T–1 moval proceedings again. nonimmigrant status, subject to the (iii) Applicants subject to an order of annual limitation as provided in para- removal, deportation or exclusion. In the graph (j) of this section. USCIS will case of an applicant who is subject to provide the applicant with evidence of an order of removal, deportation or ex- T–1 nonimmigrant status. USCIS may clusion that had been stayed due to the also notify other parties and entities of pending application for T non- the approval as it determines appro- immigrant status, the stay will be priate, including any LEA providing an automatically lifted as of the date the LEA endorsement and the Department denial becomes final. of Health and Human Service’s Office (11) Employment authorization. An of Refugee Resettlement, consistent alien granted T–1 nonimmigrant status with 8 U.S.C. 1367. is authorized to work incident to sta- (i) Applicants with an outstanding tus. There is no need for an alien to file order of removal, deportation or exclusion a separate form to be granted employ- issued by DHS. For an applicant who is ment authorization. USCIS will issue the subject of an order of removal, de- an initial Employment Authorization portation or exclusion issued by DHS, Document (EAD) to such aliens, which the order will be deemed cancelled by will be valid for the duration of the operation of law as of the date of the alien’s T–1 nonimmigrant status. An USCIS approval of the application. alien granted T–1 nonimmigrant status (ii) Applicants with an outstanding seeking to replace an EAD that was order of removal, deportation or exclusion lost, stolen, or destroyed must file an issued by the Department of Justice. An application on the form designated by applicant who is the subject of an order USCIS in accordance with form in- of removal, deportation or exclusion structions. issued by an immigration judge or the (e) Bona fide determination. Once an Board may seek cancellation of such alien submits an application for T–1 order by filing a motion to reopen and nonimmigrant status, USCIS will con- terminate removal proceedings with duct an initial review to determine if the immigration judge or the Board. the application is a bona fide applica- ICE may agree, as a matter of discretion for T–1 nonimmigrant status. tion, to join such motion to overcome (1) Criteria. After initial review, an any applicable time and numerical lim- application will be determined to be itations of 8 CFR 1003.2 and 1003.23. bona fide if:

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(i) The application is properly filed status does not automatically stay the and is complete; execution of a final order unless USCIS (ii) The application does not appear has determined that the application is to be fraudulent; bona fide. Neither an immigration (iii) The application presents prima judge nor the Board has jurisdiction to facie evidence of each eligibility re- adjudicate an application for a stay of quirement for T–1 nonimmigrant sta- removal, deportation, or exclusion on tus; the basis of the filing of an application (iv) Biometrics and background for T nonimmigrant status. checks are complete; and (f) Victim of a severe form of trafficking (v) The applicant is: in persons. To be eligible for T–1 non- (A) Admissible to the United States; immigrant status an applicant must or meet the definition of a victim of a se- (B) Inadmissible to the United States vere form of trafficking in persons de- based on a ground that may be waived scribed in paragraph (a) of this section. (other than section 212(a)(4) of the (1) Evidence. The applicant must sub- Act); and either the applicant has filed mit evidence that demonstrates that a waiver of a ground of inadmissibility he or she is or has been a victim of a described in section 212(d)(13) of the severe form of trafficking in persons. Act concurrently with the application Except in instances of sex trafficking for T nonimmigrant status, or USCIS involving victims under 18 years of age, has already granted a waiver with re- severe forms of trafficking in persons spect to any ground of inadmissibility must involve both a particular means that applies to the applicant. USCIS (force, fraud, or coercion) and a par- may request further evidence from the ticular end or a particular intended end applicant. All waivers are discre- (sex trafficking, involuntary servitude, tionary and require a request for waiv- peonage, debt bondage, or slavery). If a er, on the form designated by USCIS. victim has not performed labor or serv- (2) USCIS determination. An applica- ices, or a commercial sex act, the vic- tion will not be treated as bona fide tim must establish that he or she was until USCIS provides notice to the ap- recruited, transported, harbored, pro- plicant. vided, or obtained for the purposes of (i) Incomplete or insufficient applica- subjection to sex trafficking, involun- tion. If an application is incomplete or tary servitude, peonage, debt bondage, if an application is complete but does or slavery, or patronized or solicited not present sufficient evidence to es- for the purposes of subjection to sex tablish prima facie eligibility for each eligibility requirement for T–1 non- trafficking. The applicant may satisfy immigrant status, USCIS may request this requirement by submitting: additional information, issue a notice (i) An LEA endorsement as described of intent to deny as provided in 8 CFR in paragraph (d)(3) of this section; 103.2(b)(8), or may adjudicate the appli- (ii) Documentation of a grant of Con- cation on the basis of the evidence pre- tinued Presence under 28 CFR 1100.35; sented under the procedures of this sec- or tion. (iii) Any other evidence, including (ii) Notice. Once USCIS determines an but not limited to, trial transcripts, application is bona fide, USCIS will no- court documents, police reports, news tify the applicant. An application will articles, copies of reimbursement be treated as a bona fide application as forms for travel to and from court, and/ of the date of the notice. or affidavits. In the victim’s statement (3) Stay of final order of removal, depor- prescribed by paragraph (d)(2) of this tation, or exclusion. If USCIS deter- section, the applicant should describe mines that an application is bona fide what the alien has done to report the it automatically stays the execution of crime to an LEA and indicate whether any final order of removal, deporta- criminal records relating to the traf- tion, or exclusion. This administrative ficking crime are available. stay will remain in effect until any ad- (2) If the Continued Presence has verse decision becomes final. The filing been revoked or the contents of the of an application for T nonimmigrant LEA endorsement have been disavowed

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based on a determination that the ap- (3) Presence for participation in inves- plicant is not or was not a victim of a tigative or judicial processes. An alien severe form of trafficking in persons, it who was allowed initial entry or re- will no longer be considered as evi- entry into the United States for par- dence. ticipation in investigative or judicial (g) Physical presence. To be eligible processes associated with an act or per- for T–1 nonimmigrant status an appli- petrator of trafficking will be deemed cant must be physically present in the to be physically present in the United United States, American Samoa, or at States on account of trafficking in per- a port-of-entry thereto on account of sons, regardless of where such traf- such trafficking. ficking occurred. To satisfy this sec- (1) Applicability. The physical pres- tion, an alien must submit documenta- ence requirement requires USCIS to tion to show valid entry into the consider the alien’s presence in the United States and evidence that this United States at the time of applica- valid entry is for participation in in- tion. The requirement reaches an alien vestigative or judicial processes associ- who: ated with an act or perpetrator of traf- (i) Is present because he or she is cur- ficking. rently being subjected to a severe form (4) Evidence. The applicant must sub- of trafficking in persons; mit evidence that demonstrates that (ii) Was liberated from a severe form his or her physical presence in the of trafficking in persons by an LEA; United States or at a port-of-entry thereto, is on account of trafficking in (iii) Escaped a severe form of traf- persons, including physical presence on ficking in persons before an LEA was account of the alien having been al- involved, subject to paragraph (g)(2) of lowed entry into the United States for this section; participation in investigative or judi- (iv) Was subject to a severe form of cial processes associated with an act or trafficking in persons at some point in a perpetrator of trafficking. USCIS will the past and whose continuing presence consider all evidence presented to de- in the United States is directly related termine the physical presence require- to the original trafficking in persons; ment, including the alien’s responses or to questions on the application for T (v) Is present on account of the alien nonimmigrant status about when he or having been allowed entry into the she escaped from the trafficker, what United States for participation in in- activities he or she has undertaken vestigative or judicial processes associ- since that time including the steps he ated with an act or perpetrator of traf- or she may have taken to deal with the ficking. consequences of having been trafficked, (2) Departure from the United States. and the applicant’s ability to leave the An alien who has voluntarily departed United States. The applicant may sat- from (or has been removed from) the isfy this requirement by submitting: United States at any time after the act (i) An LEA endorsement, described in of a severe form of trafficking in per- paragraph (d)(3) of this section; sons is deemed not to be present in the (ii) Documentation of a grant of Con- United States as a result of such traf- tinued Presence under 28 CFR 1100.35; ficking in persons unless: (iii) Any other documentation of (i) The alien’s reentry into the entry into the United States or permis- United States was the result of the sion to remain in the United States, continued victimization of the alien; such as parole under section 212(d)(5) of (ii) The alien is a victim of a new in- the Act, or a notation that such evi- cident of a severe form of trafficking in dence is contained in the applicant’s persons; or immigration file; or (iii) The alien has been allowed re- (iv) Any other credible evidence, in- entry into the United States for par- cluding a personal statement from the ticipation in investigative or judicial applicant, stating the date and place (if processes associated with an act or per- known) and the manner and purpose (if petrator of trafficking, described in known) for which the applicant entered paragraph (g)(4) of this section. the United States and demonstrating

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that the applicant is now present on (xii) The time the victim had to com- account of the trafficking. ply with the request; and (h) Compliance with any reasonable re- (xiii) The age and maturity of the quest for assistance in an investigation or victim. prosecution. To be eligible for T–1 non- (3) Evidence. An applicant must sub- immigrant status, an applicant must mit evidence that demonstrates that have complied with any reasonable re- he or she has complied with any rea- quest for assistance from an LEA in an sonable request for assistance in a Fed- investigation or prosecution of acts of eral, State, or local investigation or trafficking or the investigation of a prosecution of trafficking in persons, crime where acts of trafficking are at or a crime where trafficking in persons least one central reason for the com- is at least one central reason for the mission of that crime, unless the appli- commission of that crime. In the alter- cant meets an exemption described in native, an applicant can submit evi- paragraph (h)(4) of this section. dence to demonstrate that he or she (1) Applicability. An applicant must should be exempt under paragraph have had, at a minimum, contact with (h)(4) of this section. If USCIS has any an LEA regarding the acts of a severe question about whether the applicant form of trafficking in persons. An ap- has complied with a reasonable request plicant who has never had contact with for assistance, USCIS may contact the an LEA regarding the acts of a severe LEA. The applicant may satisfy this form of trafficking in persons will not requirement by submitting any of the be eligible for T–1 nonimmigrant sta- following: tus, unless he or she meets an exemp- (i) An LEA endorsement as described tion described in paragraph (h)(4) of in paragraph (d)(3) of this section; this section. (ii) Documentation of a grant of Con- (2) Unreasonable requests. An appli- tinued Presence under 28 CFR 1100.35; cant need only show compliance with or reasonable requests made by an LEA (iii) Any other evidence, including af- for assistance in the investigation or fidavits of witnesses. In the victim’s prosecution of the acts of trafficking in statement prescribed by paragraph persons. The reasonableness of the re- (d)(2) of this section, the applicant quest depends on the totality of the should show that an LEA that has re- circumstances. Factors to consider in- sponsibility and authority for the de- clude, but are not limited to: tection, investigation, or prosecution (i) General law enforcement and pros- of severe forms of trafficking in per- ecutorial practices; sons has information about such traf- (ii) The nature of the victimization; ficking in persons, that the victim has (iii) The specific circumstances of the complied with any reasonable request victim; for assistance in the investigation or (iv) Severity of trauma suffered (both prosecution of such acts of trafficking, mental and physical) or whether the and, if the victim did not report the request would cause further trauma; crime, why the crime was not pre- (v) Access to support services; viously reported. (vi) The safety of the victim or the (4) An applicant who has not had con- victim’s family; tact with an LEA or who has not com- (vii) Compliance with previous re- plied with any reasonable request may quests and the extent of such compli- be exempt from the requirement to ance; comply with any reasonable request for (viii) Whether the request would assistance in an investigation or pros- yield essential information; ecution if either of the following two (ix) Whether the information could circumstances applies: be obtained without the victim’s com- (i) Trauma. The applicant is unable to pliance; cooperate with a reasonable request for (x) Whether an interpreter or attor- assistance in the Federal, State, or ney was present to help the victim un- local investigation or prosecution of derstand the request; acts of trafficking in persons due to (xi) Cultural, religious, or moral ob- physical or psychological trauma. An jections to the request; applicant must submit evidence of the

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trauma. An applicant may satisfy this (ii) Any physical or psychological by submitting an affirmative state- issues the applicant has which neces- ment describing the trauma and any sitates medical or psychological care other credible evidence. ‘‘Any other not reasonably available in the foreign credible evidence’’ includes, for in- country; stance, a signed statement from a (iii) The nature and extent of the qualified professional, such as a med- physical and psychological con- ical professional, social worker, or vic- sequences of having been a victim of a tim advocate, who attests to the vic- severe form of trafficking in persons; tim’s mental state, and medical, psy- (iv) The impact of the loss of access chological, or other records which are to the United States courts and the relevant to the trauma. USCIS reserves criminal justice system for purposes the authority and discretion to contact relating to the incident of a severe the LEA involved in the case, if appro- form of trafficking in persons or other priate; or crimes perpetrated against the appli- (ii) Age. The applicant is under 18 cant, including criminal and civil re- years of age. An applicant under 18 dress for acts of trafficking in persons, years of age is exempt from the re- criminal prosecution, restitution, and quirement to comply with any reason- protection; able request for assistance in an inves- (v) The reasonable expectation that tigation or prosecution, but he or she the existence of laws, social practices, must submit evidence of age. Appli- or customs in the foreign country to cants should include, where available, which the applicant would be returned an official copy of the alien’s birth cer- would penalize the applicant severely tificate, a passport, or a certified med- for having been the victim of a severe ical opinion. Other evidence regarding form of trafficking in persons; the age of the applicant may be submitted in accordance with 8 CFR (vi) The likelihood of re-victimiza- 103.2(b)(2)(i). tion and the need, ability, and willing- (i) Extreme hardship involving unusual ness of foreign authorities to protect and severe harm. To be eligible for T–1 the applicant; nonimmigrant status, an applicant (vii) The likelihood of harm that the must demonstrate that removal from trafficker in persons or others acting the United States would subject the ap- on behalf of the trafficker in the for- plicant to extreme hardship involving eign country would cause the appli- unusual and severe harm. cant; or (1) Standard. Extreme hardship in- (viii) The likelihood that the appli- volving unusual and severe harm is a cant’s individual safety would be higher standard than extreme hardship threatened by the existence of civil un- as described in 8 CFR 240.58. A finding rest or armed conflict. of extreme hardship involving unusual (3) Evidence. An applicant must sub- and severe harm may not be based sole- mit evidence that demonstrates he or ly upon current or future economic she would suffer extreme hardship in- detriment, or the lack of, or disruption volving unusual and severe harm if re- to, social or economic opportunities. moved from the United States. An ap- The determination of extreme hardship plicant is encouraged to describe and is made solely by USCIS. document all factors that may be rel- (2) Factors. Factors that may be con- evant to the case, as there is no guar- sidered in evaluating whether removal antee that a particular reason(s) will would result in extreme hardship in- satisfy the requirement. Hardship to volving unusual and severe harm persons other than the alien victim should include both traditional ex- cannot be considered in determining treme hardship factors and factors as- whether an applicant would suffer the sociated with having been a victim of a requisite hardship. The applicant may severe form of trafficking in persons. satisfy this requirement by submitting These factors include, but are not lim- any credible evidence regarding the na- ited to: ture and scope of the hardship if the (i) The age, maturity, and personal applicant was removed from the United circumstances of the applicant; States, including evidence of hardship

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arising from circumstances sur- (k) Application for eligible family mem- rounding the victimization and any bers—(1) Eligibility. Subject to section other circumstances. An applicant may 214(o) of the Act, an alien who has ap- submit a personal statement or other plied for or has been granted T–1 non- evidence, including evidence from rel- immigrant status (principal alien) may evant country condition reports and apply for the admission of an eligible any other public or private sources of family member, who is otherwise ad- information. missible to the United States, in deriv- (j) Annual cap. In accordance with ative T nonimmigrant status if accom- section 214(o)(2) of the Act, DHS may panying or following to join the prin- not grant T–1 nonimmigrant status to cipal alien. more than 5,000 aliens in any fiscal (i) Principal alien 21 years of age or year. older. For a principal alien who is 21 (1) Waiting list. All eligible applicants years of age or over, eligible family who, due solely to the cap, are not member means a T–2 (spouse) or T–3 granted T–1 nonimmigrant status will (child). be placed on a waiting list and will re- (ii) Principal alien under 21 years of ceive written notice of such placement. age. For a principal alien who is under Priority on the waiting list will be de- 21 years of age, eligible family member termined by the date the application means a T–2 (spouse), T–3 (child), T–4 was properly filed, with the oldest ap- (parent), or T–5 (unmarried sibling plications receiving the highest pri- under the age of 18). ority. In the next fiscal year, USCIS (iii) Family member facing danger of re- will issue a number to each application taliation. Regardless of the age of the on the waiting list, in the order of the principal alien, if the eligible family highest priority, providing the appli- member faces a present danger of retal- cant remains admissible and eligible iation as a result of the principal for T nonimmigrant status. After T–1 alien’s escape from the severe form of nonimmigrant status has been issued trafficking or cooperation with law en- to qualifying applicants on the waiting forcement, in consultation with the list, any remaining T–1 nonimmigrant law enforcement officer investigating a numbers for that fiscal year will be severe form of trafficking, eligible fam- issued to new qualifying applicants in ily member means a T–4 (parent), T–5 the order that the applications were (unmarried sibling under the age of 18), properly filed. or T–6 (adult or minor child of a deriva- (2) Unlawful presence. While an appli- tive of the principal alien). cant for T nonimmigrant status who (iv) Admission requirements. The prin- was granted deferred action or parole is cipal applicant must demonstrate that on the waiting list, the applicant will the alien for whom derivative T non- not accrue unlawful presence under immigrant status is being sought is an section 212(a)(9)(B) of the Act while eligible family member of the T–1 prin- maintaining parole or deferred action. cipal alien, as defined in paragraph (a) (3) Removal from the waiting list. An of this section, and is otherwise eligi- applicant may be removed from the ble for that status. waiting list and the deferred action or (2) Application. A T–1 principal alien parole may be terminated consistent may submit an application for deriva- with law and policy. Applicants on the tive T nonimmigrant status on the waiting list must remain admissible to form designated by USCIS in accord- the United States and otherwise eligi- ance with the form instructions. The ble for T nonimmigrant status. If at application for derivative T non- any time prior to final adjudication immigrant status for an eligible family USCIS receives information that an ap- member may be filed with the T–1 applicant is no longer eligible for non- plication, or separately. Derivative T immigrant status, the applicant may nonimmigrant status is dependent on be removed from the waiting list and the principal alien having been granted the deferred action or parole may be T–1 nonimmigrant status and the prin- terminated. USCIS will provide notice cipal alien maintaining T–1 non- to the applicant of that decision. immigrant status. If a principal alien

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granted T–1 nonimmigrant status can- provided in paragraph (k)(6) of this sec- not maintain status due to his or her tion. death, the provisions of section 204(l) of (iv) Inadmissible applicants. If an eligi- the Act may apply. ble family member is inadmissible (i) Eligible family members in pending based on a ground that may be waived, immigration proceedings. If an eligible a request for a waiver of inadmis- family member is in removal pro- sibility under section 212(d)(13) or sec- ceedings under section 240 of the Act, tion 212(d)(3) of the Act must be filed in or in exclusion or deportation pro- accordance with 8 CFR 212.16 and sub- ceedings under former sections 236 or mitted with the completed application 242 of the Act (as in effect prior to package. April 1, 1997), the principal alien must (4) Relationship. Except as described file an application for derivative T in paragraphs (k)(5) of this section, the nonimmigrant status directly with family relationship must exist at the USCIS. In its discretion and at the re- time: quest of the eligible family member, (i) The application for the T–1 non- ICE may agree to file a joint motion to immigrant status is filed; administratively close or terminate (ii) The application for the T–1 non- proceedings without prejudice with the immigrant status is adjudicated; immigration judge or the Board, (iii) The application for derivative T whichever is appropriate, while USCIS nonimmigrant status is filed; adjudicates an application for deriva- (iv) The application for derivative T tive T nonimmigrant status. nonimmigrant status is adjudicated; (ii) Eligible family members with final and orders of removal, deportation, or exclu- (v) The eligible family member is ad- sion. If an eligible family member is mitted to the United States if residing the subject of a final order of removal, abroad. deportation, or exclusion, the principal (5) Relationship and age-out protec- alien may file an application for deriv- tions—(i) Protection for new child of a ative T nonimmigrant status directly principal alien. If the T–1 principal alien with USCIS. The filing of an applica- proves that he or she had a child after tion for derivative T nonimmigrant filing the application for T–1 non- status has no effect on ICE’s authority immigrant status, the child will be or discretion to execute a final order, deemed to be an eligible family mem- although the alien may file a request ber eligible to accompany or follow to for an administrative stay of removal join the T–1 principal alien. pursuant to 8 CFR 241.6(a). If the eligi- (ii) Age-out protection for eligible fam- ble family member is in detention ily members of a principal alien under 21 pending execution of the final order, years of age. If the T–1 principal alien the period of detention (under the was under 21 years of age when he or standards of 8 CFR 241.4) will be ex- she filed for T–1 nonimmigrant status, tended while a stay is in effect for the USCIS will continue to consider a par- period reasonably necessary to bring ent or unmarried sibling as an eligible about the applicant’s removal. family member. A parent or unmarried (3) Required supporting evidence. In ad- sibling will remain eligible even if the dition to the form, an application for principal alien turns 21 years of age be- derivative T nonimmigrant status fore adjudication of the T–1 applica- must include the following: tion. An unmarried sibling will remain (i) Biometrics submitted in accord- eligible even if the unmarried sibling is ance with 8 CFR 103.16; over 18 years of age at the time of adju- (ii) Evidence demonstrating the rela- dication of the T–1 application, so long tionship of an eligible family member, as the unmarried sibling was under 18 as provided in paragraph (k)(4) of this years of age at the time of the T–1 ap- section; plication. The age of an unmarried sib- (iii) In the case of an alien seeking ling when USCIS adjudicates the T–1 derivative T nonimmigrant status on application, when the unmarried sib- the basis of danger of retaliation, evi- ling files the derivative application, dence demonstrating this danger as when USCIS adjudicates the derivative

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application, or when the unmarried sib- dinarily an applicant’s statement alone ling is admitted to the United States is not sufficient to prove present dan- does not affect eligibility. ger); and/or (iii) Age-out protection for child of a (iv) Any other credible evidence, in- principal alien 21 years of age or older. If cluding trial transcripts, court docu- a T–1 principal alien was 21 years of ments, police reports, news articles, age or older when he or she filed for T– copies of reimbursement forms for 1 nonimmigrant status, USCIS will travel to and from court, and affidavits continue to consider a child as an eligi- from other witnesses. ble family member if the child was (7) Biometric collection; evidentiary under 21 years of age at the time the standards. The provisions for biometric principal filed for T–1 nonimmigrant capture and evidentiary standards de- status. The child will remain eligible scribed in paragraph (d)(2) and (d)(4) of even if the child is over 21 years of age this section apply to an eligible family at the time of adjudication of the T–1 member’s application for derivative T application. The age of the child when nonimmigrant status. USCIS adjudicates the T–1 application, (8) Review and decision. USCIS will re- when the child files the derivative ap- view the application and issue a deci- plication, when USCIS adjudicates the sion in accordance with paragraph (d) derivative application, or when the of this section. child is admitted to the United States (9) Derivative approvals. Aliens whose does not affect eligibility. applications for derivative T non- (iv) Marriage of an eligible family mem- immigrant status are approved are not ber. An eligible family member seeking subject to the annual cap described in T–3 or T–5 status must be unmarried paragraph (j) of this section. USCIS when the principal files an application will not approve applications for deriv- for T–1 status, when USCIS adjudicates ative T nonimmigrant status until the T–1 application, when the eligible USCIS has approved T–1 nonimmigrant family member files for T–3 or T–5 sta- status to the related principal alien. tus, when USCIS adjudicates the T–3 or (i) Approvals for eligible family members T–5 application, and when the family in the United States. When USCIS ap- member is admitted to the United proves an application for derivative T States. If a T–1 marries subsequent to nonimmigrant status for an eligible filing the application for T–1 status, family member in the United States, USCIS will not consider the spouse eli- USCIS will concurrently approve deriv- gible as a T–2 eligible family member. ative T nonimmigrant status. USCIS (6) Evidence demonstrating a present will notify the T–1 principal alien of danger of retaliation. An alien seeking such approval and provide evidence of derivative T nonimmigrant status on derivative T nonimmigrant status to the basis of facing a present danger of the derivative. retaliation as a result of the T–1 vic- (ii) Approvals for eligible family mem- tim’s escape from a severe form of traf- bers outside the United States. When ficking or cooperation with law en- USCIS approves an application for an forcement, must demonstrate the basis eligible family member outside the of this danger. USCIS may contact the United States, USCIS will notify the LEA involved, if appropriate. An appli- T–1 principal alien of such approval cant may satisfy this requirement by and provide the necessary documenta- submitting: tion to the Department of State for (i) Documentation of a previous consideration of visa issuance. grant of advance parole to an eligible (10) Employment authorization. An family member; alien granted derivative T non- (ii) A signed statement from a law immigrant status may apply for em- enforcement official describing the ployment authorization by filing an ap- danger of retaliation; plication on the form designated by (iii) An affirmative statement from USCIS with the fee prescribed in 8 CFR the applicant describing the danger the 106.2 in accordance with form instruc- family member faces and how the dan- tions. For derivatives in the United ger is linked to the victim’s escape or States, the application may be filed cooperation with law enforcement (or- concurrently with the application for

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derivative T nonimmigrant status or at immigrant status. The nonimmigrant any later time. For derivatives outside bears the burden of establishing eligi- the United States, an application for bility for an extension of status. employment authorization may only be (5) Evidence of law enforcement need. filed after admission to the United An applicant may demonstrate law en- States in T nonimmigrant status. If forcement need by submitting evidence the application for employment au- that comes directly from an LEA, in- thorization is approved, the derivative cluding: alien will be granted employment au- (i) A new LEA endorsement; thorization pursuant to 8 CFR (ii) Evidence from a law enforcement 274a.12(c)(25) for the period remaining official, prosecutor, judge, or other au- in derivative T nonimmigrant status. thority who can investigate or pros- (l) Extension of T nonimmigrant sta- ecute human trafficking activity, such tus—(1) Eligibility. USCIS may grant ex- as a letter on the agency’s letterhead, tensions of T–1 nonimmigrant status email, or fax; or beyond 4 years from the date of approval in 1-year periods from the date (iii) Any other credible evidence. the T–1 nonimmigrant status ends if: (6) Evidence of exceptional cir- (i) An LEA investigating or pros- cumstances. An applicant may dem- ecuting activity related to human traf- onstrate exceptional circumstances by ficking certifies that the presence of submitting: the alien in the United States is nec- (i) The applicant’s affirmative state- essary to assist in the investigation or ment; or prosecution of such activity; (ii) Any other credible evidence, in- (ii) The Secretary of Homeland Secu- cluding medical records, police or rity determines that an extension is court records, news articles, cor- warranted due to exceptional cir- respondence with an embassy or con- cumstances; or sulate, and affidavits of witnesses. (iii) The alien has a pending applica- (7) Mandatory extensions of status for tion for adjustment of status to that of adjustment of status applicants. USCIS a lawful permanent resident. will automatically extend T–1 non- (2) Application for a discretionary ex- immigrant status when a T non- tension of status. Upon application, immigrant properly files an applica- USCIS may extend T–1 nonimmigrant tion for adjustment of status in accord- status based on law enforcement need ance with 8 CFR 245.23. No separate ap- or exceptional circumstances. A T–1 plication for extension of T non- nonimmigrant may apply for an exten- immigrant status, or supporting evision by submitting the form designated dence, is required. by USCIS with the prescribed fee and (m) Revocation of approved T non- in accordance with form instructions. immigrant status—(1) Automatic revoca- A T–1 nonimmigrant should indicate on tion of derivative status. An approved ap- the application whether USCIS should plication for derivative T non- apply the extension to any family immigrant status will be revoked auto- member holding derivative T non- matically if the beneficiary of the ap- immigrant status. (3) Timely filing. An alien should file proved derivative application notifies the application to extend non- USCIS that he or she will not apply for immigrant status before the expiration admission to the United States. of T–1 nonimmigrant status. If T–1 (2) Revocation on notice/grounds for nonimmigrant status has expired, the revocation. USCIS may revoke an ap- applicant must explain in writing the proved application for T nonimmigrant reason for the untimely filing. USCIS status following issuance of a notice of may exercise its discretion to approve intent to revoke. USCIS may revoke an an untimely filed application for exten- approved application for T non- sion of T nonimmigrant status. immigrant status based on one or more (4) Evidence. In addition to the appli- of the following reasons: cation, a T–1 nonimmigrant must in- (i) The approval of the application clude evidence to support why USCIS violated the requirements of section should grant an extension of T non- 101(a)(15)(T) of the Act or 8 CFR 214.11

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or involved error in preparation, proce- nonimmigrant status, or after revoca- dure, or adjudication that affects the tion of T nonimmigrant status. outcome; (o) USCIS employee referral. Any (ii) In the case of a T–2 spouse, the USCIS employee who, while carrying alien’s divorce from the T–1 principal out his or her official duties, comes alien has become final; into contact with an alien believed to (iii) In the case of a T–1 principal be a victim of a severe form of traf- alien, an LEA with jurisdiction to de- ficking in persons and is not already tect or investigate the acts of severe working with an LEA should consult, forms of trafficking in persons notifies as necessary, with the ICE officials re- USCIS that the alien has refused to sponsible for victim protection, traf- comply with reasonable requests to as- ficking investigations and prevention, sist with the investigation or prosecu- and deterrence. The ICE office may, in tion of the trafficking in persons and turn, refer the victim to another LEA provides USCIS with a detailed expla- with responsibility for investigating or nation in writing; or (iv) The LEA that signed the LEA en- prosecuting severe forms of trafficking dorsement withdraws it or disavows its in persons. If the alien has a credible contents and notifies USCIS and pro- claim to victimization, USCIS may ad- vides a detailed explanation of its rea- vise the alien that he or she can submit soning in writing. an application for T nonimmigrant sta- (3) Procedures. Procedures for revoca- tus and seek any other benefit or pro- tion and appeal follow 8 CFR 103.3. If tection for which he or she may be eli- USCIS revokes approval of the pre- gible, provided doing so would not com- viously granted T nonimmigrant status promise the alien’s safety. application, USCIS may notify the (p) Restrictions on use and disclosure of LEA who signed the LEA endorsement, information relating to applicants for T any consular officer having jurisdic- nonimmigrant classification. (1) The use tion over the applicant, or the Office of or disclosure (other than to a sworn of- Refugee Resettlement of the Depart- ficer or employee of DHS, the Depart- ment of Health and Human Services. ment of Justice, the Department of (4) Effect of revocation. Revocation of State, or a bureau or agency of any of a principal alien’s application for T–1 those departments, for legitimate de- nonimmigrant status will result in ter- partment, bureau, or agency purposes) mination of T–1 status for the principal of any information relating to the ben- alien and, consequently, the automatic eficiary of a pending or approved appli- termination of the derivative T non- cation for T nonimmigrant status is immigrant status for all derivatives. If prohibited unless the disclosure is a derivative application is pending at made in accordance with an exception the time of revocation, it will be de- described in 8 U.S.C. 1367(b). nied. Revocation of an approved appli- (2) Information protected under 8 cation for T–1 nonimmigrant status or U.S.C. 1367(a)(2) may be disclosed to an application for derivative T non- federal prosecutors to comply with immigrant status also revokes any waiver of inadmissibility granted in constitutional obligations to provide conjunction with such application. The statements by witnesses and certain revocation of an alien’s T–1 status will other documents to defendants in pend- have no effect on the annual cap de- ing federal criminal proceedings. scribed in paragraph (j) of this section. (3) Agencies receiving information (n) Removal proceedings. Nothing in under this section, whether govern- this section prohibits DHS from insti- mental or non-governmental, are tuting removal proceedings for conduct bound by the confidentiality provisions committed after admission, or for con- and other restrictions set out in 8 duct or a condition that was not dis- U.S.C. 1367. closed prior to the granting of T non- (4) DHS officials are prohibited from immigrant status, including misrepre- making adverse determinations of ad- sentations of material facts in the ap- missibility or deportability based on plication for T–1 nonimmigrant status information obtained solely from the or in an application for derivative T trafficker, unless the alien has been

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convicted of a crime or crimes listed in which will be forwarded to the e-mail section 237(a)(2) of the Act. address listed. When the contact person [81 FR 92304, Dec. 19, 2016, as amended at 85 receives this temporary ID and pass- FR 46925, Aug. 3, 2020; 85 FR 49941, Aug. 17, word, the school will again access the 2020] Internet site and will electronically enter the school’s information for its § 214.12 Preliminary enrollment of Form I–17. schools in the Student and Ex- (c) The Service will review the infor- change Visitor Information System mation by a school submitted as pro- (SEVIS). vided in paragraph (b) of this section, (a) Private elementary and private and will preliminarily enroll a school secondary schools, public high schools, in SEVIS, if it is determined to be eli- post-secondary schools, language gible under the standards of paragraph schools, and vocational schools are eli- (a) of this section. If the officer deter- gible for preliminary enrollment in mines that the school is eligible for Student and Exchange Visitor Informa- preliminary enrollment, the officer tion System (SEVIS), beginning on or will update SEVIS and enroll the after July 1, 2002, but only if the school school and permanent user IDs and is accredited by an accrediting agency passwords will be automatically gen- recognized by the United States De- erated via e-mail to the DSOs listed on partment of Education, CAPE, or the Form I–17. Schools that are not ap- AACS, or in the case of a public high proved by the Service for preliminary school, the school provides certifi- enrollment will be notified that they cation from the appropriate public offi- must apply for certification in accord- cial that the school meets the require- ance with the Interim Certification ments of the state or local public edu- Rule. A school that is granted prelimi- cational system and has been continu- nary enrollment will have to use ously approved by the Service for a SEVIS for the issuance of any new minimum of three years, as of July 1, Form I–20 to a new or continuing stu- 2002, for the admission of F or M non- dent. immigrant students. A school may establish that it is accredited by showing (d) Schools granted preliminary en- that it has been designated as an eligi- rollment in SEVIS will not have to ble school under Title IV of the Higher apply for certification at this time. Education Act of 1965. However, all such schools will be re- (b) Preliminary enrollment in SEVIS quired to apply for certification, and is optional for eligible schools. The pay the certification fee, prior to May preliminary enrollment period will be 14, 2004. open from July 1, 2002, through August (e) Eligible schools that meet the 16, 2002, or, if later, until the Service standards of paragraph (a) of this sec- begins the SEVIS full scale certifi- tion, but do not apply for preliminary cation process. The process for eligible enrollment in SEVIS prior to the close schools to apply for preliminary enroll- of the preliminary enrollment period ment through the Internet is as fol- will have to apply for certification re- lows: view under the Interim Certification (1) Eligible institutions must access Rule and pay the certification fee be- the Internet site, http:// fore enrolling in SEVIS. However, once www.ins.usdoj.gov/sevis. Upon accessing a school meeting the standards of para- the site, the president, owner, head of graph (a) of this section applies for cer- the school or designated school official tification review, the Service will have will be asked to enter the following in- the discretion, after a review of the formation: the school’s name; the first, school’s application, to allow the middle, and last name of the contact school to enroll in SEVIS without re- person for the school; and the e-mail quiring an on-site visit prior to enroll- address and phone number of the con- ment. If the Service permits such a tact person. school to enroll in SEVIS prior to com- (2) Once this information has been pletion of the on-site visit, the on-site submitted, the Service will issue the visit must be completed prior to May school a temporary ID and password, 14, 2004.

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(f) Schools that are not eligible to (2) Dependents of F, M, or J non- apply for preliminary enrollment in immigrants. The principal alien must SEVIS under this section—including pay the fee, when required under this flight schools—will have to apply for section, in order for his/her qualifying certification under the Interim Certifi- dependents to obtain F–2, J–2, or M–2 cation Rule, pay the certification fee, status. However, an F–2, J–2, or M–2 de- and undergo a full certification review pendent is not required to pay a sepa- including an on-site visit, prior to rate fee under this section in order to being allowed to enroll in SEVIS. obtain that status or during the time he/she remains in that status. [67 FR 44346, July 1, 2002] (3) A nonimmigrant described in § 214.13 SEVIS fee for certain F, J, and paragraph (a) of this section whose M nonimmigrants. Form I–20 or Form DS–2019 for initial attendance was issued on or before Au- (a) Applicability. The aliens in paragraphs (a)(1) through (3) of this section gust 31, 2004. are required to submit a payment in (c) Special Fee for Certain J–1 Non- the amount indicated for their status immigrants. A J–1 exchange visitor com- to the Student and Exchange Visitor ing to the United States as an au pair, Program (SEVP) in advance of obtain- camp counselor, or participant in a ing nonimmigrant status as an F or M summer work/travel program is subject student or J exchange visitor, in addi- to a fee of $35. tion to any other applicable fees, ex- (d) Time for payment of SEVIS fee. An cept as otherwise provided for in this alien who is subject to payment of the section: SEVIS fee must remit the fee directly (1) An alien who applies for F–1 or F– to DHS as follows: 3 status in order to enroll in a program (1) An alien seeking an F–1, F–3, J–1, of study at an SEVP-certified institu- M–1, or M–3 visa from a consular officer tion of higher education, as defined in abroad for initial attendance at a DHS- section 101(a) of the Higher Education approved school or to commence par- Act of 1965, as amended, or in a pro- ticipation in a Department of State- gram of study at any other SEVP-cer- designated exchange visitor program, tified academic or language training must pay the fee to DHS before institution, including private elemen- issuance of the visa. tary and secondary schools and public (2) An alien who is exempt from the secondary schools, the amount of $350; visa requirement described in section (2) An alien who applies for J–1 sta- 212(d)(4) of the Act must pay the fee to tus in order to commence participation DHS before the alien applies for admis- in an exchange visitor program des- sion at a U.S. port-of-entry to begin ignated by the Department of State, initial attendance at a DHS-approved the amount of $220, with a reduced fee school or initial participation in a De- for certain exchange visitor categories partment of State-designated exchange as provided in paragraphs (b)(1) and (c) visitor program. of this section; and (3) A nonimmigrant alien in the (3) An alien who applies for M–1 or United States seeking a change of sta- M–3 status in order to enroll in a pro- tus to F–1, F–3, J–1, M–1, or M–3 must gram of study at an SEVP-certified vo- pay the fee to DHS before the alien is cational educational institution, in- granted the change of nonimmigrant cluding a flight school, in the amount status, except as provided in paragraph of $350. (e)(4) of this section. (b) Aliens not subject to a fee. No (4) A J–1 nonimmigrant who is apply- SEVIS fee is required with respect to: ing for a change of program category (1) A J–1 exchange visitor who is within the United Status, in accord- coming to the United States as a par- ance with 22 CFR 62.42, must pay the ticipant in an exchange visitor pro- fee associated with that new category, gram sponsored by the Federal govern- if any, prior to being granted such a ment, identified by a program identi- change. fier designation prefix of G–1, G–2, G–3, (5) A J–1 nonimmigrant initially or G–7; granted J–1 status to participate in a

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program sponsored by the Federal gov- (i) An application for an extension of ernment, as defined in paragraph (b)(1) program, as provided in 22 CFR 62.43; or of this section, and transferring in ac- (ii) An application for transfer of pro- cordance with 22 CFR 62.42 to a program, as provided in 22 CFR 62.42. gram that is not similarly sponsored, (3) Visa issuance for a continuation must pay the fee associated with the of study. An F–1, F–3, J–1, M–1, or M–3 new program prior to completing the nonimmigrant who has previously paid transfer. the fee is not required to pay a new fee (6) A J–1 nonimmigrant who is apply- in order to be granted a visa to return ing for reinstatement after a sub- to the United States as a continuing stantive violation of status, or who has student or exchange visitor in a single been out of program status for longer course of study, so long as the non- than 120 days but less than 270 days immigrant is not otherwise required to during the course of his/her program pay a new fee in accordance with the must pay a new fee to DHS, if applica- other provisions in this section. ble, prior to being granted a reinstate- (4) Certain changes in student classi- ment to valid J–1 status. fication. (7) An F or M student who is applying (i) No fee is required for changes be- for reinstatement of student status between the F–1 and F–3 classifications, cause of a violation of status, and who and no fee is required for changes be- has been out of status for a period of tween the M–1 and M–3 classifications. time that exceeds the presumptive in- (ii) Institutional reclassification. eligibility deadline set forth in 8 CFR DHS retains the discretionary author- 214.2(f)(16)(i)(A) or (m)(16)(i)(A), must ity to waive the additional fee require- pay a new fee to DHS prior to being ment when a nonimmigrant changes granted a return to valid status. classification between F and M, if the change of status is due solely to insti- (8) An F–1, F–3, M–1, or M–3 non- tutional reclassification by the Stu- immigrant who has been absent from dent and Exchange Visitor Program the United States for a period that ex- during that nonimmigrant’s course of ceeds 5 months in duration, and wishes study. to reenter the United States to engage (5) Re-application following denial of in further study in the same course of application by consular officer. An study, with the exception of students alien who fully paid a SEVIS fee in who have been working toward comple- connection with an initial application tion of a U.S. course of study in au- for an F–1, F–3, M–1, or M–3 visa, or a thorized overseas study, must pay a J–1 visa in a particular program cat- new fee to DHS prior to being granted egory, whose initial application was de- student status. nied, and who is reapplying for the (e) Circumstances where no new fee is same status, or the same J–1 exchange (1) Extension of stay, transfer, required. visitor category, within 12 months fol- or optional practical training for stu- lowing the initial notice of denial is dents. An F–1, F–3, M–1, or M–3 non- not required to repay the SEVIS fee. immigrant is not required to pay a new (6) Re-application following denial of fee in connection with: an application for a change of status. A (i) An application for an extension of nonimmigrant who fully paid a SEVIS stay, as provided in 8 CFR 214.2(f)(7) or fee in connection with an initial appli- (m)(10); cation for a change of status within in (ii) An application for transfer, as the United States to F–1, F–3, M–1, or provided in 8 CFR 214.2(f)(8) or (m)(11); M–3 classification, or for a change of (iii) A change in educational level, as status to a particular J–1 exchange vis- provided in 8 CFR 214.2(f)(5)(ii); or itor category, whose initial application (iv) An application for post-comple- was denied, and who is granted a motion practical training, as provided in 8 tion to reopen the denied case is not re- CFR 214.2(f)(10)(ii) or (m)(14). quired to repay the SEVIS fee if the (2) Extension of program or transfer motion to reopen is granted within 12 for exchange visitors. A J–1 non- months of receipt of initial notice of immigrant is not required to pay a new denial. fee in connection with: (f) [Reserved]

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(g) Procedures for payment of the sor, or from another source, in accord- SEVIS fee—(1) Options for payment. An ance with procedures approved by DHS. alien subject to payment of a fee under (h) Failure to pay the fee. The failure this section may pay the fee by any to pay the required fee is grounds for procedure approved by DHS, including: denial of F, M, or J nonimmigrant sta- (i) Submission of Form I–901, to DHS tus or status-related benefits. Payment by mail, along with the proper fee paid of the fee does not preserve the lawful by check, money order, or foreign draft status of any F, J, or M nonimmigrant drawn on a financial institution in the that has violated his or her status in United States and payable in United some other manner. States currency, as provided by 8 CFR (1) For purposes of reinstatement to 103.7(a)(1); F or M status, failure to pay the re- (ii) Electronic submission of Form I– quired fee will be considered a ‘‘willful 901 to DHS using a credit card or other violation’’ under 8 CFR 214.2(f)(16) or electronic means of payment accepted (m)(16), unless DHS determines that by DHS; or, there are sufficient extenuating circumstances (as determined at the dis- (iii) A designated payment service cretion of the Student and Exchange and receipt mechanism approved and Visitor Program). set forth in future guidance by DHS. (2) For purposes of reinstatement to (2) Receipts. DHS will provide a re- valid J program status, failure to pay ceipt for each fee payment under para- the required fee will not be considered graph (g)(1) of this section until such a ‘‘minor or technical infraction’’ time as DHS issues a notice in the FED- under 22 CFR 62.45. ERAL REGISTER that paper receipts will no longer be necessary. Further receipt [69 FR 39825, July 1, 2004; 69 FR 41388, July 9, provisions include: 2004, as amended at 73 FR 55704, Sept. 26, 2008; 84 FR 23979, May 23, 2019] (i) DHS will provide for an expedited delivery of the receipt, upon request § 214.14 Alien victims of certain quali- and receipt of an additional fee; fying criminal activity. (ii) If payment was made electroni- (a) Definitions. As used in this sec- cally, both DHS and the Department of tion, the term: State will accept a properly completed (1) BIWPA means Battered Immi- receipt that is printed-out electroni- grant Women Protection Act of 2000 of cally, in lieu of the receipt generated the Victims of Trafficking and Vio- by DHS; lence Protection Act of 2000, div. B, Vi- (iii) If payment was made through an olence Against Women Act of 2000, tit. approved payment service, DHS and V, Pub. L. 106–386, 114 Stat. 1464, (2000), the Department of State will accept a amended by Violence Against Women properly completed receipt issued by and Department of Justice Reauthor- the payment service, in lieu of the re- ization Act of 2005, tit. VIII, Pub. L. ceipt generated by DHS. 109–162, 119 Stat. 2960 (2006), amended by (3) Electronic record of fee payment. Violence Against Women and Depart- DHS will maintain an electronic record ment of Justice Reauthorization Act— of payment for the alien as verification Technical Corrections, Pub. L. 109–271, of receipt of the required fee under this 120 Stat. 750 (2006). section. If DHS records indicate that (2) Certifying agency means a Federal, the fee has been paid, an alien who has State, or local law enforcement agen- lost or did not receive a receipt for a cy, prosecutor, judge, or other author- fee payment under this section will not ity, that has responsibility for the in- be denied an immigration benefit, investigation or prosecution of a quali- cluding visa issuance or admission to fying crime or criminal activity. This the United States, solely because of a definition includes agencies that have failure to present a paper receipt of fee criminal investigative jurisdiction in payment. their respective areas of expertise, in- (4) Third-party payments. DHS will ac- cluding, but not limited to, child pro- cept payment of the required fee for an tective services, the Equal Employ- alien from an approved school or a des- ment Opportunity Commission, and the ignated exchange visitor program spon- Department of Labor.

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(3) Certifying official means: Rape; torture; trafficking; incest; do- (i) The head of the certifying agency, mestic violence; sexual assault; abu- or any person(s) in a supervisory role sive sexual contact; prostitution; sex- who has been specifically designated by ual exploitation; female genital muti- the head of the certifying agency to lation; being held hostage; peonage; in- issue U nonimmigrant status certifi- voluntary servitude; slave trade; kid- cations on behalf of that agency; or napping; abduction; unlawful criminal (ii) A Federal, State, or local judge. restraint; false imprisonment; black- (4) Indian Country is defined as: mail; extortion; manslaughter; murder; (i) All land within the limits of any felonious assault; witness tampering; Indian reservation under the jurisdic- obstruction of justice; perjury; or at- tion of the United States Government, tempt, conspiracy, or solicitation to notwithstanding the issuance of any commit any of the above mentioned patent, and including rights-of-way crimes. The term ‘‘any similar activ- running through the reservation; ity’’ refers to criminal offenses in (ii) All dependent Indian commu- which the nature and elements of the nities within the borders of the United offenses are substantially similar to States whether within the original or the statutorily enumerated list of subsequently acquired territory there- criminal activities. of, and whether within or without the (10) Qualifying family member means, limits of a state; and in the case of an alien victim 21 years (iii) All Indian allotments, the Indian of age or older who is eligible for U titles to which have not been extin- nonimmigrant status as described in guished, including rights-of-way run- section 101(a)(15)(U) of the Act, 8 U.S.C. ning through such allotments. 1101(a)(15)(U), the spouse or child(ren) (5) Investigation or prosecution refers of such alien; and, in the case of an to the detection or investigation of a alien victim under the age of 21 who is qualifying crime or criminal activity, eligible for U nonimmigrant status as as well as to the prosecution, convic- described in section 101(a)(15)(U) of the tion, or sentencing of the perpetrator Act, qualifying family member means the of the qualifying crime or criminal ac- spouse, child(ren), parents, or unmar- tivity. ried siblings under the age of 18 of such (6) Military Installation means any fa- an alien. cility, base, camp, post, encampment, station, yard, center, port, aircraft, ve- (11) Territories and Possessions of the hicle, or vessel under the jurisdiction United States means American Samoa, of the Department of Defense, includ- Swains Island, Bajo Nuevo (the Petrel ing any leased facility, or any other lo- Islands), Baker Island, Howland Island, cation under military control. Jarvis Island, Johnston Atoll, Kingman (7) Next friend means a person who ap- Reef, Midway Atoll, Navassa Island, pears in a lawsuit to act for the benefit Palmyra Atoll, Serranilla Bank, and of an alien under the age of 16 or inca- Wake Atoll. pacitated or incompetent, who has suf- (12) U nonimmigrant status certification fered substantial physical or mental means Form I–918, Supplement B, ‘‘U abuse as a result of being a victim of Nonimmigrant Status Certification,’’ qualifying criminal activity. The next which confirms that the petitioner has friend is not a party to the legal pro- been helpful, is being helpful, or is ceeding and is not appointed as a likely to be helpful in the investigation guardian. or prosecution of the qualifying crimi- (8) Physical or mental abuse means in- nal activity of which he or she is a vic- jury or harm to the victim’s physical tim. person, or harm to or impairment of (13) U interim relief refers to the in- the emotional or psychological sound- terim benefits that were provided by ness of the victim. USCIS to petitioners for U non- (9) Qualifying crime or qualifying crimi- immigrant status, who requested such nal activity includes one or more of the benefits and who were deemed prima following or any similar activities in facie eligible for U nonimmigrant sta- violation of Federal, State or local tus prior to the publication of the im- criminal law of the United States: plementing regulations.

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(14) Victim of qualifying criminal activ- substantial is based on a number of fac- ity generally means an alien who has tors, including but not limited to: The suffered direct and proximate harm as nature of the injury inflicted or suf- a result of the commission of quali- fered; the severity of the perpetrator’s fying criminal activity. conduct; the severity of the harm suf- (i) The alien spouse, children under 21 fered; the duration of the infliction of years of age and, if the direct victim is the harm; and the extent to which under 21 years of age, parents and un- there is permanent or serious harm to married siblings under 18 years of age, the appearance, health, or physical or will be considered victims of qualifying mental soundness of the victim, includ- criminal activity where the direct vic- ing aggravation of pre-existing condi- tim is deceased due to murder or man- tions. No single factor is a prerequisite slaughter, or is incompetent or inca- to establish that the abuse suffered was pacitated, and therefore unable to pro- substantial. Also, the existence of one vide information concerning the crimi- or more of the factors automatically nal activity or be helpful in the inves- does not create a presumption that the tigation or prosecution of the criminal abuse suffered was substantial. A series activity. For purposes of determining of acts taken together may be consid- eligibility under this definition, USCIS ered to constitute substantial physical will consider the age of the victim at or mental abuse even where no single the time the qualifying criminal activ- act alone rises to that level; ity occurred. (2) The alien possesses credible and (ii) A petitioner may be considered a reliable information establishing that victim of witness tampering, obstruc- he or she has knowledge of the details tion of justice, or perjury, including concerning the qualifying criminal ac- any attempt, solicitation, or con- tivity upon which his or her petition is spiracy to commit one or more of those based. The alien must possess specific offenses, if: facts regarding the criminal activity (A) The petitioner has been directly leading a certifying official to deter- and proximately harmed by the perpe- mine that the petitioner has, is, or is trator of the witness tampering, ob- likely to provide assistance to the instruction of justice, or perjury; and vestigation or prosecution of the quali- (B) There are reasonable grounds to fying criminal activity. In the event conclude that the perpetrator com- that the alien has not yet reached 16 mitted the witness tampering, obstruc- years of age on the date on which an tion of justice, or perjury offense, at act constituting an element of the least in principal part, as a means: qualifying criminal activity first oc- (1) To avoid or frustrate efforts to in- curred, a parent, guardian or next vestigate, arrest, prosecute, or other- friend of the alien may possess the in- wise bring to justice the perpetrator formation regarding a qualifying for other criminal activity; or crime. In addition, if the alien is inca- (2) To further the perpetrator’s abuse pacitated or incompetent, a parent, or exploitation of or undue control guardian, or next friend may possess over the petitioner through manipula- the information regarding the quali- tion of the legal system. fying crime; (iii) A person who is culpable for the (3) The alien has been helpful, is qualifying criminal activity being in- being helpful, or is likely to be helpful vestigated or prosecuted is excluded to a certifying agency in the investiga- from being recognized as a victim of tion or prosecution of the qualifying qualifying criminal activity. criminal activity upon which his or her (b) Eligibility. An alien is eligible for petition is based, and since the initi- U–1 nonimmigrant status if he or she ation of cooperation, has not refused or demonstrates all of the following in ac- failed to provide information and as- cordance with paragraph (c) of this sec- sistance reasonably requested. In the tion: event that the alien has not yet (1) The alien has suffered substantial reached 16 years of age on the date on physical or mental abuse as a result of which an act constituting an element having been a victim of qualifying of the qualifying criminal activity first criminal activity. Whether abuse is occurred, a parent, guardian or next

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friend of the alien may provide the re- 1 nonimmigrant status directly with quired assistance. In addition, if the USCIS. The filing of a petition for U–1 petitioner is incapacitated or incom- nonimmigrant status has no effect on petent and, therefore, unable to be ICE’s authority to execute a final helpful in the investigation or prosecu- order, although the alien may file a re- tion of the qualifying criminal activ- quest for a stay of removal pursuant to ity, a parent, guardian, or next friend 8 CFR 241.6(a) and 8 CFR 1241.6(a). If may provide the required assistance; the alien is in detention pending execu- and tion of the final order, the time during (4) The qualifying criminal activity which a stay is in effect will extend the occurred in the United States (includ- period of detention (under the standing Indian country and U.S. military ards of 8 CFR 241.4) reasonably nec- installations) or in the territories or essary to bring about the petitioner’s possessions of the United States, or removal. violated a U.S. federal law that pro- (2) Initial evidence. Form I–918 must vides for extraterritorial jurisdiction include the following initial evidence: to prosecute the offense in a U.S. fed- (i) Form I–918, Supplement B, ‘‘U eral court. Nonimmigrant Status Certification,’’ (c) Application procedures for U non- signed by a certifying official within immigrant status—(1) Filing a petition. the six months immediately preceding USCIS has sole jurisdiction over all pe- the filing of Form I–918. The certifi- titions for U nonimmigrant status. An cation must state that: the person alien seeking U–1 nonimmigrant status signing the certificate is the head of must submit, Form I–918, Petition for the certifying agency, or any person(s) U Nonimmigrant Status, and initial in a supervisory role who has been spe- evidence to USCIS in accordance with cifically designated by the head of the this paragraph and the instructions to certifying agency to issue U non- Form I–918. A petitioner who received immigrant status certifications on be- interim relief is not required to submit half of that agency, or is a Federal, initial evidence with Form I–918 if he State, or local judge; the agency is a or she wishes to rely on the law en- Federal, State, or local law enforce- forcement certification and other evi- ment agency, or prosecutor, judge or dence that was submitted with the re- other authority, that has responsi- quest for interim relief. bility for the detection, investigation, (i) Petitioners in pending immigration prosecution, conviction, or sentencing proceedings. An alien who is in removal of qualifying criminal activity; the ap- proceedings under section 240 of the plicant has been a victim of qualifying Act, 8 U.S.C. 1229a, or in exclusion or criminal activity that the certifying deportation proceedings initiated official’s agency is investigating or under former sections 236 or 242 of the prosecuting; the petitioner possesses Act, 8 U.S.C. 1226 and 1252 (as in effect information concerning the qualifying prior to April 1, 1997), and who would criminal activity of which he or she like to apply for U nonimmigrant sta- has been a victim; the petitioner has tus must file a Form I–918 directly with been, is being, or is likely to be helpful USCIS. U.S. Immigration and Customs to an investigation or prosecution of Enforcement (ICE) counsel may agree, that qualifying criminal activity; and as a matter of discretion, to file, at the the qualifying criminal activity vio- request of the alien petitioner, a joint lated U.S. law, or occurred in the motion to terminate proceedings with- United States, its territories, its pos- out prejudice with the immigration sessions, Indian country, or at military judge or Board of Immigration Appeals, installations abroad. whichever is appropriate, while a peti- (ii) Any additional evidence that the tion for U nonimmigrant status is petitioner wants USCIS to consider to being adjudicated by USCIS. establish that: the petitioner is a vic- (ii) Petitioners with final orders of re- tim of qualifying criminal activity; the moval, deportation, or exclusion. An alien petitioner has suffered substantial who is the subject of a final order of re- physical or mental abuse as a result of moval, deportation, or exclusion is not being a victim of qualifying criminal precluded from filing a petition for U– activity; the petitioner (or, in the case

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of a child under the age of 16 or peti- sideration by USCIS. USCIS shall con- tioner who is incompetent or incapaci- duct a de novo review of all evidence tated, a parent, guardian or next friend submitted in connection with Form I– of the petitioner) possesses information 918 and may investigate any aspect of establishing that he or she has knowl- the petition. Evidence previously sub- edge of the details concerning the mitted for this or other immigration qualifying criminal activity of which benefit or relief may be used by USCIS he or she was a victim and upon which in evaluating the eligibility of a peti- his or her application is based; the pe- tioner for U–1 nonimmigrant status. titioner (or, in the case of a child under However, USCIS will not be bound by the age of 16 or petitioner who is in- its previous factual determinations. competent or incapacitated, a parent, USCIS will determine, in its sole dis- guardian or next friend of the peti- cretion, the evidentiary value of pre- tioner) has been helpful, is being help- viously or concurrently submitted evi- ful, or is likely to be helpful to a Fed- dence, including Form I–918, Supple- eral, State, or local law enforcement ment B, ‘‘U Nonimmigrant Status Cer- agency, prosecutor, or authority, or tification.’’ Federal or State judge, investigating (5) Decision. After completing its de or prosecuting the criminal activity of novo review of the petition and evi- which the petitioner is a victim; or the dence, USCIS will issue a written deci- criminal activity is qualifying and oc- sion approving or denying Form I–918 curred in the United States (including and notify the petitioner of this deci- Indian country and U.S. military in- sion. USCIS will include in a decision stallations) or in the territories or pos- approving Form I–918 a list of non- sessions of the United States, or vio- governmental organizations to which lates a U.S. federal law that provides the petitioner can refer regarding his for extraterritorial jurisdiction to or her options while in the United prosecute the offense in a U.S. federal States and available resources. court; (i) Approval of Form I–918, generally. If (iii) A signed statement by the peti- USCIS determines that the petitioner tioner describing the facts of the vic- has met the requirements for U–1 non- timization. The statement also may in- immigrant status, USCIS will approve clude information supporting any of Form I–918. For a petitioner who is the eligibility requirements set out in within the United States, USCIS also paragraph (b) of this section. When the will concurrently grant U–1 non- petitioner is under the age of 16, inca- immigrant status, subject to the an- pacitated, or incompetent, a parent, nual limitation as provided in para- guardian, or next friend may submit a graph (d) of this section. For a peti- statement on behalf of the petitioner; tioner who is subject to an order of ex- and clusion, deportation, or removal issued (iv) If the petitioner is inadmissible, by the Secretary, the order will be Form I–192, ‘‘Application for Advance deemed canceled by operation of law as Permission to Enter as Non-Immi- of the date of USCIS’ approval of Form grant,’’ in accordance with 8 CFR I–918. A petitioner who is subject to an 212.17. order of exclusion, deportation, or re- (3) Biometric capture. All petitioners moval issued by an immigration judge for U–1 nonimmigrant status must sub- or the Board may seek cancellation of mit to biometric capture and pay a bio- such order by filing, with the immigra- metric capture fee. USCIS will notify tion judge or the Board, a motion to re- the petitioner of the proper time and open and terminate removal pro- location to appear for biometric cap- ceedings. ICE counsel may agree, as a ture after the petitioner files Form I– matter of discretion, to join such a mo- 918. tion to overcome any applicable time (4) Evidentiary standards and burden of and numerical limitations of 8 CFR proof. The burden shall be on the peti- 1003.2 and 1003.23. tioner to demonstrate eligibility for U– (A) Notice of Approval of Form I–918 for 1 nonimmigrant status. The petitioner U–1 petitioners within the United States. may submit any credible evidence re- After USCIS approves Form I–918 for lating to his or her Form I–918 for con- an alien who filed his or her petition

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from within the United States, USCIS are in the United States. For principal will notify the alien of such approval aliens who applied from outside the on Form I–797, ‘‘Notice of Action,’’ and United States, the initial EAD will not include Form I–94 (see § 1.4), ‘‘Arrival- be issued until the petitioner has been Departure Record,’’ indicating U–1 non- admitted to the United States in U immigrant status. nonimmigrant status. After admission, (B) Notice of Approval of Form I–918 for the alien may receive an initial EAD, U–1 petitioners outside the United States. upon request and submission of a copy After USCIS approves Form I–918 for of his or her Form I–94, ‘‘Arrival-De- an alien who filed his or her petition parture Record,’’ to the USCIS office from outside the United States, USCIS having jurisdiction over the adjudica- will notify the alien of such approval tion of petitions for U nonimmigrant on Form I–797, ‘‘Notice of Action,’’ and status. No additional fee is required. will forward notice to the Department An alien granted U–1 nonimmigrant of State for delivery to the U.S. Em- status seeking to renew his or her ex- bassy or Consulate having jurisdiction piring EAD or replace an EAD that was over the area in which the alien is lo- lost, stolen, or destroyed, must file cated, or, for a visa exempt alien, to Form I–765 in accordance with the in- the appropriate port of entry. structions to the form. (ii) Denial of Form I–918. USCIS will (d) Annual cap on U–1 nonimmigrant provide written notification to the pe- status—(1) General. In accordance with titioner of the reasons for the denial. section 214(p)(2) of the Act, 8 U.S.C. The petitioner may appeal a denial of 1184(p)(2), the total number of aliens Form I–918 to the Administrative Ap- who may be issued a U–1 nonimmigrant peals Office (AAO) in accordance with visa or granted U–1 nonimmigrant sta- the provisions of 8 CFR 103.3. For peti- tus may not exceed 10,000 in any fiscal tioners who appeal a denial of their year. Form I–918 to the AAO, the denial will (2) Waiting list. All eligible peti- not be deemed administratively final tioners who, due solely to the cap, are until the AAO issues a decision affirm- not granted U–1 nonimmigrant status ing the denial. Upon USCIS’ final de- must be placed on a waiting list and re- nial of a petition for a petitioner who ceive written notice of such placement. was in removal proceedings that were Priority on the waiting list will be de- terminated pursuant to 8 CFR termined by the date the petition was 214.14(c)(1)(i), DHS may file a new No- filed with the oldest petitions receiving tice to Appear (see section 239 of the the highest priority. In the next fiscal Act, 8 U.S.C. 1229) to place the indi- year, USCIS will issue a number to vidual in proceedings again. For peti- each petition on the waiting list, in the tioners who are subject to an order of order of highest priority, providing the removal, deportation, or exclusion and petitioner remains admissible and eli- whose order has been stayed, USCIS’ gible for U nonimmigrant status. After denial of the petition will result in the U–1 nonimmigrant status has been stay being lifted automatically as of issued to qualifying petitioners on the the date the denial becomes adminis- waiting list, any remaining U–1 non- tratively final. immigrant numbers for that fiscal year (6) Petitioners granted U interim relief. will be issued to new qualifying peti- Petitioners who were granted U in- tioners in the order that the petitions terim relief as defined in paragraph were properly filed. USCIS will grant (a)(13) of this section and whose Form deferred action or parole to U–1 peti- I–918 is approved will be accorded U–1 tioners and qualifying family members nonimmigrant status as of the date while the U–1 petitioners are on the that a request for U interim relief was waiting list. USCIS, in its discretion, initially approved. may authorize employment for such (7) Employment authorization. An alien petitioners and qualifying family mem- granted U–1 nonimmigrant status is bers. employment authorized incident to (3) Unlawful presence. During the time status. USCIS automatically will issue a petitioner for U nonimmigrant status an initial Employment Authorization who was granted deferred action or pa- Document (EAD) to such aliens who role is on the waiting list, no accrual of

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unlawful presence under section cluding locational information about 212(a)(9)(B) of the INA, 8 U.S.C. individuals); 1182(a)(9)(B), will result. However, a pe- (viii) With prior written consent from titioner may be removed from the the petitioner or derivative family waiting list, and the deferred action or members, to nonprofit, nongovern- parole may be terminated at the dis- mental victims’ service providers for cretion of USCIS. the sole purpose of assisting the victim (e) Restrictions on use and disclosure of in obtaining victim services from pro- information relating to petitioners for U grams with expertise working with im- nonimmigrant classification—(1) General. migrant victims; or The use or disclosure (other than to a (ix) To federal prosecutors to comply sworn officer or employee of DHS, the with constitutional obligations to pro- Department of Justice, the Department vide statements by witnesses and cer- of State, or a bureau or agency of any tain other documents to defendants in of those departments, for legitimate pending federal criminal proceedings. department, bureau, or agency pur- (2) Agencies receiving information poses) of any information relating to under this section, whether govern- the beneficiary of a pending or ap- mental or non-governmental, are proved petition for U nonimmigrant bound by the confidentiality provisions status is prohibited unless the disclo- and other restrictions set out in 8 sure is made: U.S.C. 1367. (i) By the Secretary of Homeland Se- (3) Officials of the Department of curity, at his discretion, in the same Homeland Security are prohibited from manner and circumstances as census making adverse determinations of ad- information may be disclosed by the missibility or deportability based on Secretary of Commerce under 13 U.S.C. information obtained solely from the 8; perpetrator of substantial physical or (ii) By the Secretary of Homeland Se- mental abuse and the criminal activ- curity, at his discretion, to law en- ity. forcement officials to be used solely for (f) Admission of qualifying family mem- a legitimate law enforcement purpose; bers—(1) Eligibility. An alien who has (iii) In conjunction with judicial re- petitioned for or has been granted U–1 view of a determination in a manner nonimmigrant status (i.e., principal that protects the confidentiality of alien) may petition for the admission such information; of a qualifying family member in a U– (iv) After adult petitioners for U non- 2 (spouse), U–3 (child), U–4 (parent of a immigrant status or U nonimmigrant U–1 alien who is a child under 21 years status holders have provided written of age), or U–5 (unmarried sibling under consent to waive the restrictions pro- the age of 18) derivative status, if ac- hibiting the release of information; companying or following to join such (v) To Federal, State, and local pub- principal alien. A qualifying family lic and private agencies providing ben- member who committed the qualifying efits, to be used solely in making deter- criminal activity in a family violence minations of eligibility for benefits or trafficking context which estab- pursuant to 8 U.S.C. 1641(c); lished the principal alien’s eligibility (vi) After a petition for U non- for U nonimmigrant status shall not be immigrant status has been denied in a granted U–2, U–3, U–4, or U–5 non- final decision; immigrant status. To be eligible for U– (vii) To the chairmen and ranking 2, U–3, U–4, or U–5 nonimmigrant sta- members of the Committee on the Ju- tus, it must be demonstrated that: diciary of the Senate or the Committee (i) The alien for whom U–2, U–3, U–4, on the Judiciary of the House of Rep- or U–5 status is being sought is a quali- resentatives, for the exercise of con- fying family member, as defined in gressional oversight authority, pro- paragraph (a)(10) of this section; and vided the disclosure relates to informa- (ii) The qualifying family member is tion about a closed case and is made in admissible to the United States. a manner that protects the confiden- (2) Filing procedures. A petitioner for tiality of the information and omits U–1 nonimmigrant status may apply personally identifying information (infor derivative U nonimmigrant status

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on behalf of qualifying family members pending execution of the final order, by submitting a Form I–918, Supple- the time during which a stay is in ef- ment A, ‘‘Petition for Qualifying Fam- fect will extend the period of detention ily Member of U–1 Recipient,’’ for each (under the standards of 8 CFR 241.4) family member either at the same time reasonably necessary to bring about the petition for U–1 nonimmigrant sta- the alien’s removal. tus is filed, or at a later date. An alien (3) Initial evidence. Form I–918, Sup- who has been granted U–1 non- plement A, must include the following immigrant status may apply for deriv- initial evidence: ative U nonimmigrant status on behalf (i) Evidence demonstrating the rela- of qualifying family members by sub- tionship of a qualifying family mem- mitting Form I–918, Supplement A for ber, as provided in paragraph (f)(4) of each family member. All Forms I–918, this section; Supplement A must be accompanied by (ii) If the qualifying family member initial evidence and the required fees is inadmissible, Form I–192, ‘‘Applica- specified in the instructions to the tion for Advance Permission to Enter form. Forms I–918, Supplement A that as a Non-Immigrant,’’ in accordance are not filed at the same time as Form with 8 CFR 212.17. I–918 but are filed at a later date must (4) Relationship. Except as set forth in be accompanied by a copy of the Form paragraphs (f)(4)(i) and (ii) of this sec- I–918 that was filed by the principal pe- tion, the relationship between the U–1 titioner or a copy of his or her Form I– principal alien and the qualifying fam- 94 demonstrating proof of U–1 non- ily member must exist at the time immigrant status, as applicable. Form I–918 was filed, and the relation- (i) Qualifying family members in ship must continue to exist at the time pending immigration proceedings. The Form I–918, Supplement A is adju- principal alien of a qualifying family dicated, and at the time of the quali- member who is in removal proceedings fying family member’s subsequent ad- under section 240 of the Act, 8 U.S.C. mission to the United States. 1229a, or in exclusion or deportation (i) If the U–1 principal alien proves proceedings initiated under former sec- that he or she has become the parent of tions 236 or 242 of the Act, 8 U.S.C. 1226 a child after Form I–918 was filed, the and 1252 (as in effect prior to April 1, child shall be eligible to accompany or 1997), and who is seeking U non- follow to join the U–1 principal alien. immigrant status, must file a Form I– (ii) If the principal alien was under 21 918, Supplement A directly with years of age at the time he or she filed USCIS. ICE counsel may agree to file, Form I–918, and filed Form I–918, Sup- at the request of the qualifying family plement A for an unmarried sibling member, a joint motion to terminate under the age of 18, USCIS will con- proceedings without prejudice with the tinue to consider such sibling as a immigration judge or Board of Immi- qualifying family member for purposes gration Appeals, whichever is appro- of U nonimmigrant status even if the priate, while the petition for U non- principal alien is no longer under 21 immigrant status is being adjudicated years of age at the time of adjudica- by USCIS. tion, and even if the sibling is no (ii) Qualifying family members with longer under 18 years of age at the time final orders of removal, deportation, or of adjudication. exclusion. An alien who is the subject (5) Biometric capture and evidentiary of a final order of removal, deporta- standards. The provisions for biometric tion, or exclusion is not precluded from capture and evidentiary standards in filing a petition for U–2, U–3, U–4, or U– paragraphs (c)(3) and (c)(4) of this sec- 5 nonimmigrant status directly with tion also are applicable to petitions for USCIS. The filing of a petition for U–2, qualifying family members. U–3, U–4, or U–5 nonimmigrant status (6) Decision. USCIS will issue a writ- has no effect on ICE’s authority to exe- ten decision approving or denying cute a final order, although the alien Form I–918, Supplement A and send no- may file a request for a stay of removal tice of this decision to the U–1 prin- pursuant to 8 CFR 241.6(a) and 8 CFR cipal petitioner. USCIS will include in 1241.6(a). If the alien is in detention a decision approving Form I–918 a list

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of nongovernmental organizations to empt alien, to the appropriate port of which the qualifying family member entry. can refer regarding his or her options (iii) Denial of the Form I–918, Supple- while in the United States and avail- ment A. In accordance with 8 CFR able resources. For a qualifying family 103.3(a)(1), USCIS will provide written member who is subject to an order of notification of the reasons for the de- exclusion, deportation, or removal nial. The principal alien may appeal issued by the Secretary, the order will the denial of Form I–918, Supplement A be deemed canceled by operation of law to the Administrative Appeals Office in as of the date of USCIS’ approval of accordance with the provisions of 8 Form I–918, Supplement A. A quali- CFR 103.3. Upon USCIS’ final denial of fying family member who is subject to Form I–918, Supplement A for a quali- an order of exclusion, deportation, or fying family member who was in re- removal issued by an immigration moval proceedings that were termi- judge or the Board may seek cancella- nated pursuant to 8 CFR 214.14(f)(2)(i), tion of such order by filing, with the DHS may file a new Notice to Appear immigration judge or the Board, a mo- (see section 239 of the INA, 8 U.S.C. tion to reopen and terminate removal 1229) to place the individual in pro- proceedings. ICE counsel may agree, as ceedings again. For qualifying family a matter of discretion, to join such a members who are subject to an order of motion to overcome any applicable removal, deportation, or exclusion and time and numerical limitations of 8 whose order has been stayed, USCIS’ CFR 1003.2 and 1003.23. denial of the petition will result in the (i) Approvals for qualifying family mem- stay being lifted automatically as of bers within the United States. When the date the denial becomes adminis- USCIS approves a Form I–918, Supple- tratively final. ment A for a qualifying family member (7) Employment authorization. An alien who is within the United States, it will granted U–2, U–3, U–4, or U–5 non- concurrently grant that alien U–2, U–3, immigrant status is employment au- U–4, or U–5 nonimmigrant status. thorized incident to status. To obtain USCIS will notify the principal of such an Employment Authorization Docu- approval on Form I–797, ‘‘Notice of Ac- tion,’’ with Form I–94, ‘‘Arrival-Depar- ment (EAD), such alien must file Form ture Record,’’ indicating U–2, U–3, U–4, I–765, ‘‘Application for Employment or U–5 nonimmigrant status. Aliens Authorization,’’ with the appropriate who were previously granted U interim fee or a request for a fee waiver, in ac- relief as defined in paragraph (a)(13) of cordance with the instructions to the this section will be accorded U non- form. For qualifying family members immigrant status as of the date that within the United States, the Form I– the request for U interim relief was ap- 765 may be filed concurrently with proved. Aliens who are granted U–2, U– Form I–918, Supplement A, or at any 3, U–4, or U–5 nonimmigrant status are time thereafter. For qualifying family not subject to an annual numerical members who are outside the United limit. USCIS may not approve Form I– States, Form I–765 only may be filed 918, Supplement A unless it has ap- after admission to the United States in proved the principal alien’s Form I–918. U nonimmigrant status. (ii) Approvals for qualifying family (g) Duration of U nonimmigrant sta- members outside the United States. When tus—(1) In general. U nonimmigrant USCIS approves Form I–918, Supple- status may be approved for a period ment A for a qualifying family member not to exceed 4 years in the aggregate. who is outside the United States, A qualifying family member granted USCIS will notify the principal alien of U–2, U–3, U–4, and U–5 nonimmigrant such approval on Form I–797. USCIS status will be approved for an initial will forward the approved Form I–918, period that does not exceed the expira- Supplement A to the Department of tion date of the initial period approved State for delivery to the U.S. Embassy for the principal alien. or Consulate having jurisdiction over (2) Extension of status. (i) Where a U the area in which the qualifying family nonimmigrant’s approved period of member is located, or, for a visa ex- stay on Form I–94 is less than 4 years,

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he or she may file Form I–539, ‘‘Appli- (D) In the case of a U–2, U–3, U–4, or cation to Extend/Change Non- U–5 nonimmigrant, the relationship to immigrant Status,’’ to request an ex- the principal petitioner has termi- tension of U nonimmigrant status for nated; or an aggregate period not to exceed 4 (E) In the case of a U–2, U–3, U–4, or years. USCIS may approve an exten- U–5 nonimmigrant, the principal U–1’s sion of status for a qualifying family nonimmigrant status is revoked. member beyond the date when the U–1 (ii) The notice of intent to revoke nonimmigrant’s status expires when must be in writing and contain a state- the qualifying family member is unable ment of the grounds for the revocation to enter the United States timely due and the time period allowed for the U to delays in consular processing, and nonimmigrant’s rebuttal. The alien an extension of status is necessary to may submit evidence in rebuttal with- ensure that the qualifying family in 30 days of the date of the notice. member is able to attain at least 3 USCIS shall consider all relevant evi- years in nonimmigrant status for pur- dence presented in deciding whether to poses of adjusting status under section revoke the approved petition for U non- 245(m) of the Act, 8 U.S.C. 1255. immigrant status. The determination (ii) Extensions of U nonimmigrant of what is relevant evidence and the status beyond the 4-year period are weight to be given to that evidence will available upon attestation by the certi- be within the sole discretion of USCIS. fying official that the alien’s presence If USCIS revokes approval of a petition in the United States continues to be and thereby terminates U non- necessary to assist in the investigation immigrant status, USCIS will provide or prosecution of qualifying criminal the alien with a written notice of rev- activity. In order to obtain an exten- ocation that explains the specific rea- sion of U nonimmigrant status based sons for the revocation. upon such an attestation, the alien (3) Appeal of a revocation of approval. must file Form I–539 and a newly exe- A revocation on notice may be ap- cuted Form I–918, Supplement B in ac- pealed to the Administrative Appeals cordance with the instructions to Form Office in accordance with 8 CFR 103.3 I–539. within 30 days after the date of the no- (h) Revocation of approved petitions for tice of revocation. Automatic revoca- U nonimmigrant status—(1) Automatic tions may not be appealed. revocation. An approved petition for U– (4) Effects of revocation of approval. 1 nonimmigrant status will be revoked Revocation of a principal alien’s ap- automatically if, pursuant to 8 CFR proved Form I–918 will result in termi- 214.14(d)(1), the beneficiary of the ap- nation of status for the principal alien, proved petition notifies the USCIS of- as well as in the denial of any pending fice that approved the petition that he Form I–918, Supplement A filed for or she will not apply for admission to qualifying family members seeking U– the United States and, therefore, the 2, U–3, U–4, or U–5 nonimmigrant sta- petition will not be used. tus. Revocation of a qualifying family (2) Revocation on notice. (i) USCIS member’s approved Form I–918, Supple- may revoke an approved petition for U ment A will result in termination of nonimmigrant status following a no- status for the qualifying family mem- tice of intent to revoke. USCIS may re- ber. Revocation of an approved Form I– voke an approved petition for U non- 918 or Form I–918, Supplement A also immigrant status based on one or more revokes any waiver of inadmissibility of the following reasons: granted in conjunction with such peti- (A) The certifying official withdraws tion. the U nonimmigrant status certifi- (i) Removal proceedings. Nothing in cation referred to in 8 CFR this section prohibits USCIS from in- 214.14(c)(2)(i) or disavows the contents stituting removal proceedings under in writing; section 240 of the Act, 8 U.S.C. 1229(a), (B) Approval of the petition was in for conduct committed after admis- error; sion, for conduct or a condition that (C) Where there was fraud in the peti- was not disclosed to USCIS prior to the tion; granting of U nonimmigrant status, for

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misrepresentations of material facts in of a waiting list of applicants for visas Form I–918 or Form I–918, Supplement under section 203(a)(2)(A) of the Act; or A and supporting documentation, or (ii) The alien’s application for an im- after revocation of U nonimmigrant migrant visa, or the alien’s application status. for adjustment of status under section [72 FR 53036, Sept. 17, 2007, as amended at 72 245 of the Act, pursuant to the approval FR 54813, Sept. 27, 2007; 74 FR 55738, Oct. 28, of such petition, remains pending. 2009; 78 FR 18472, Mar. 27, 2013; 85 FR 46925, (d) The definition of ‘‘pending peti- Aug. 3, 2020] tion.’’ For purposes of this section, a pending petition is defined as a peti- § 214.15 Certain spouses and children tion to accord a status under section of lawful permanent residents. 203(a)(2)(A) of the Act that was filed (a) Aliens abroad. Under section with USCIS under section 204 of the 101(a)(15)(v) of the Act, certain eligible Act on or before December 21, 2000, and spouses and children of lawful perma- has not been adjudicated. In addition, nent residents may apply for a V non- the petition must have been properly immigrant visa at a consular office filed according to 8 CFR 103.2(a), and if, abroad and be admitted to the United subsequent to filing, USCIS returns the States in V–1 (spouse), V–2 (child), or petition to the applicant for any reason V–3 (dependent child of the spouse or or makes a request for evidence or child who is accompanying or following issues a notice of intent to deny under to join the principal beneficiary) non- 8 CFR 103.2(b), the petitioner must immigrant status to await the ap- comply with the request within the proval of: time period set by USCIS. If USCIS de- (1) A relative visa petition; nies a petition but the petitioner ap- (2) The availability of an immigrant peals that decision, the petition will be visa number; or considered pending until the adminis- (3) Lawful permanent resident (LPR) trative appeal is decided by USCIS. A status through adjustment of status or petition rejected by USCIS as not prop- an immigrant visa. erly filed is not considered to be pend- (b) Aliens already in the United States. ing. Eligible aliens already in the United (e) Classification process for aliens out- States may apply to the Service to ob- side the United States—(1) V non- tain V nonimmigrant status for the same purpose. Aliens in the United immigrant visa. An eligible alien may States in V nonimmigrant status are obtain a V nonimmigrant visa from the entitled to reside in the United States Department of State at a consular of- as V nonimmigrants and obtain em- fice abroad pursuant to the procedures ployment authorization. set forth in 22 CFR 41.86. (c) Eligibility. Subject to section (2) Aliens applying for admission to the 214(o) of the Act, an alien who is the United States as a V nonimmigrant at a beneficiary (including a child of the port-of-entry. Aliens applying under principal alien, if eligible to receive a section 235 of the Act for admission to visa under section 203(d) of the Act) of the United States at a port-of-entry as an immigrant visa petition to accord a a V nonimmigrant must have a visa in status under section 203(a)(2)(A) of the the appropriate category. Such aliens Act that was filed with the Service are exempt from the ground of inad- under section 204 of the Act on or be- missibility under section 212(a)(9)(B) of fore December 21, 2000, may apply for V the Act. nonimmigrant status if: (f) Application by aliens in the United (1) Such immigrant visa petition has States. An alien described in paragraph been pending for 3 years or more; or (c) of this section who is in the United (2) Such petition has been approved, States may apply to the Service to ob- and 3 or more years have passed since tain V nonimmigrant status pursuant such filing date, in either of the fol- to the procedures set forth in this sec- lowing circumstances: tion and 8 CFR part 248. The alien must (i) An immigrant visa is not imme- be admissible to the United States, ex- diately available to the alien because cept that, in determining the alien’s

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admissibility in V nonimmigrant sta- (3) Extension of status. An alien may tus, sections 212(a)(6)(A), (a)(7), and apply to the Service for an extension of (a)(9)(B) of the Act do not apply. V nonimmigrant status pursuant to (1) Contents of application. To apply this part and 8 CFR part 248. Aliens for V nonimmigrant status, an eligible may apply for the extension of V non- alien must submit: immigrant status, submitting Form I– (i) Form I–539, Application to Extend/ 539, and the associated filing fee, on or Change Nonimmigrant Status, with the before 120 days before the expiration of fee required by § 103.7(b)(1) of this chap- their status. If approved, the Service ter; will grant an extension of status to (ii) The fingerprint fee as required by aliens in V nonimmigrant status who § 103.2(e)(4) of this chapter; remain eligible for V nonimmigrant (iii) Form I–693, Medical Examina- status for a period not to exceed 2 tion of Aliens Seeking Adjustment of years, or in the case of a child in V–2 or Status, without the vaccination sup- V–3 status, the day before the alien’s plement; and 21st birthday, whichever comes first. (iv) Evidence of eligibility as de- (4) Special rules. The following special scribed by Supplement A to Form I–539 rules apply with respect to aliens who and in paragraph (f)(2) of this section. have a current priority date in the (2) Evidence. Supplement A to Form United States, but do not have a pend- I–539 provides instructions regarding ing application for an immigrant visa the submission of evidence. An alien abroad or an application to adjust sta- applying for V nonimmigrant status tus. with the Service should submit proof of (i) For an otherwise eligible alien filing of the immigrant petition that who applies for admission to the qualifies the alien for V status. Proof United States in a V nonimmigrant of filing may include Form I–797, No- category at a designated Port-of-Entry tice of Action, which serves as a re- and has a current priority date but ceipt of the petition or as a notice of does not have a pending immigrant approval, or a receipt for a filed peti- visa abroad or application for adjust- tion or notice of approval issued by a ment of status in the United States, local district office. If the alien does the Service will admit the alien for a 6- not have such proof, the Service will month period (or to the date of the day review other forms of evidence, such as before the alien’s 21st birthday, as ap- correspondence to or from the Service propriate). regarding a pending petition. If the (ii) For such an alien in the United alien does not have any of the items States who applies for extension of V previously mentioned in this para- nonimmigrant status, the Service will graph, but believes he or she is eligible grant a one-time extension not to ex- for V nonimmigrant status, he or she ceed 6 months. should state where and when the peti- (iii) If the alien has not filed an ap- tion was filed, the name and alien num- plication, either for adjustment of sta- ber of the petitioner, and the names of tus or for an immigrant visa within all beneficiaries (if known). that 6-month period, the alien cannot (g) Period of admission—(1) Spouse of extend or be admitted or readmitted to an LPR. An alien admitted to the V nonimmigrant status. If the alien United States in V–1 nonimmigrant does file an application, either for ad- status (or whose status in the United justment of status or for an immigrant States is changed to V–1) will be grant- visa within the time allowed, the alien ed a period of admission not to exceed will continue to be eligible for further 2 years. extensions of V nonimmigrant status (2) Child of an LPR or derivative child. as provided in this section while that An alien admitted to the United States application remains pending. in V–2 or V–3 nonimmigrant status (or (h) Employment authorization. An whose status in the United States is alien in V nonimmigrant status may changed to V–2 or V–3) will be granted apply to the Service for employment a period of admission not to exceed 2 authorization pursuant to this section years or the day before the alien’s 21st and § 274a.12(a)(15) of this chapter. An birthday, whichever comes first. alien must file Form I–765, Application

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for Employment Authorization, with migrant, unless he or she has obtained the fee required by 8 CFR 103.7. The a waiver under section 212(a)(9)(B)(v) of Service will grant employment author- the Act or falls within one of the ex- ization to aliens in V nonimmigrant ceptions in section 212(a)(9)(B)(iii) of status who remain eligible for V non- the Act. immigrant status valid for a period (j) Termination of status—(1) General. equal to the alien’s authorized admis- The status of an alien admitted to the sion as a V nonimmigrant. United States as a V nonimmigrant (i) Travel abroad; unlawful presence— under section 101(a)(15)(V) of the Act (1) V nonimmigrant status in the United shall be automatically terminated 30 States. An alien who applies for and ob- days following the occurrence of any of tains V nonimmigrant status in the the following: United States will be issued Form I– (i) The denial, withdrawal, or revoca- 797, Notice of Action, indicating the tion of the Form I–130, Petition for Im- alien’s V status in the United States. mediate Relative, filed on behalf of Form I–797 does not serve as a travel document. If such an alien departs the that alien; United States, he or she must obtain a (ii) The denial or withdrawal of the V visa from a consular office abroad in immigrant visa application filed by order to be readmitted to the United that alien; States as a V nonimmigrant. This visa (iii) The denial or withdrawal of the requirement, however, does not apply if alien’s application for adjustment of the alien traveled to contiguous terri- status to that of lawful permanent res- tory or adjacent islands, possesses an- idence; other valid visa, and is eligible for (iv) The V–1 spouse’s divorce from automatic revalidation. the LPR becomes final; or (2) V nonimmigrants with a pending (v) The marriage of an alien in V–2 or Form I–485. An alien in V non- V–3 status. immigrant status with a pending Form (2) Dependents. When a principal I–485 (Application to Register Perma- alien’s V nonimmigrant status is ter- nent Residence or Adjust Status) that minated, the V nonimmigrant status of was properly filed with the Service any alien listed as a V–3 dependent or does not have to obtain advance parole who is seeking derivative benefits is in order to prevent the abandonment of also terminated. that application when the alien departs (3) Appeals. If the denial of the immi- the United States. grant visa petition is appealed, the (3) Unlawful presence—(i) Non- alien’s V nonimmigrant status does not immigrant admission. An alien otherwise terminate until 30 days after the ad- eligible for admission as a V non- ministrative appeal is dismissed. immigrant is not subject to the ground (4) Violations of status. Nothing in this of inadmissibility under section section precludes the Service from im- 212(a)(9)(B) of the Act. This is true even if the alien had accrued more than 180 mediately initiating removal pro- days of unlawful presence in the United ceedings for other violations of an States and is applying for admission as alien’s V nonimmigrant status. a nonimmigrant after travel abroad. (k) Naturalization of the petitioner. If (ii) Permanent resident status. A V the lawful permanent resident who nonimmigrant alien is subject to the filed the qualifying Form I–130 immi- ground of inadmissibility under section grant visa petition subsequently natu- 212(a)(9)(B) of the Act when applying ralizes, the V nonimmigrant status of for an immigrant visa or for adjust- the spouse and any children will termi- ment of status to that of a lawful per- nate after his or her current period of manent resident. Therefore, a depar- admission ends. However, in such a ture from the United States at any case, the alien spouse or child will be time after having accrued more than considered an immediate relative of a 180 days of unlawful presence will U.S. citizen as defined in section 201(b) render the alien inadmissible under of the Act and will immediately be eli- that section for the purpose of adjust- gible to apply for adjustment of status ment of status or admission as an im- and related employment authorization.

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If the V–1 spouse or V–2 child had al- 215.8 Requirements for biometric identifiers ready filed an application for adjust- from aliens on departure from the United ment of status by the time the LPR States. naturalized, a new application for ad- 215.9 Temporary Worker Visa Exit Pro- gram. justment will not be required. (l) Aliens in proceedings. An alien who Subpart B—Electronic Visa Update System is already in immigration proceedings and believes that he or she may have 215.21 Purpose. become eligible to apply for V non- 215.22 Applicability. immigrant status should request before 215.23 Definitions. the immigration judge or the Board, as 215.24 Electronic Visa Update System (EVUS) requirements. appropriate, that the proceedings be administratively closed (or before the AUTHORITY: 6 U.S.C. 202(4), 236; 8 U.S.C. Board that a previously-filed motion 1101, 1103, 1104, 1184, 1185 (pursuant to Execu- for reopening or reconsideration be in- tive Order 13323 (Dec. 30, 2003)), 1365a note, 1379, 1731–32; and 8 CFR part 2. definitely continued) in order to allow the alien to pursue an application for V SOURCE: 45 FR 65516, Oct. 3, 1980, unless nonimmigrant status with the Service. otherwise noted. If the alien appears eligible for V nonimmigrant status, the immigration Subpart A—Controls of Aliens judge or the Board, whichever has ju- Departing from the United States risdiction, shall administratively close the proceeding or continue the motion § 215.1 Definitions. indefinitely. In the event that the For the purpose of this subpart: Service finds an alien eligible for V (a) The term alien means any person nonimmigrant status, the Service can who is not a citizen or national of the adjudicate the change of status under United States. this section. In the event that the (b) The term Commissioner means the Service finds an alien ineligible for V Commissioner of Immigration and Nat- nonimmigrant status, the Service shall uralization. recommence proceedings by filing a (c) The term regional commissioner motion to re-calendar. means an officer of the Immigration [66 FR 46702, Sept. 7, 2001, as amended at 72 and Naturalization Service duly ap- FR 19107, Apr. 17, 2007] pointed or designated as a regional commissioner, or an officer who has PART 215—CONTROLS OF ALIENS been designated to act as a regional DEPARTING FROM THE UNITED commissioner. STATES; ELECTRONIC VISA UP- (d) The term district director means an officer of the Immigration and Natu- DATE SYSTEM ralization Service duly appointed or designated as a district director, or an Subpart A—Controls of Aliens Departing officer who has been designated to act from the United States as a district director. Sec. (e) The term United States means the 215.1 Definitions. several States, the District of Colum- 215.2 Authority of departure-control officer bia, Puerto Rico, the Virgin Islands, to prevent alien’s departure from the Guam, American Samoa, Swains Is- United States. land, the Commonwealth of the North- 215.3 Alien whose departure is deemed prej- udicial to the interests of the United ern Mariana Islands (beginning Novem- States. ber 28, 2009), and all other territory and 215.4 Procedure in case of alien prevented waters, continental and insular, sub- from departing from the United States. ject to the jurisdiction of the United 215.5 Hearing procedure before special in- States. quiry officer. (f) The term continental United States 215.6 Departure from the Canal Zone, the means the District of Columbia and the Trust Territory of the Pacific Islands, or outlying possessions of the United several States, except Alaska and Ha- States. waii. 215.7 Instructions from the Administrator (g) The term geographical part of the required in certain cases. United States means:

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