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(H-1B)
Professionals [ 8 C.F.R. §
214.2(h)] [ 8 C.F.R. §
214.2(h)(1)] (h) Temporary employees (1) Admission of temporary
employees (i) General. Under section 101(a)(15)(H) of the Act, an
alien may be authorized to come to the United States temporarily to perform
services or labor for, or to receive training from, an employer, if petitioned
for by that employer. Under this nonimmigrant category, the alien may be
classified as follows: under section 101(a)(15)(H)(i)(a) of the Act as a
registered nurse; under section 101 (a)(15)(H)(i)(b) of the Act as an alien who
is coming to perform services in a specialty occupation, services relating to a
Department of Defense (DOD) cooperative research and development project or co-production
project, or services as a fashion model who is of distinguished merit and
ability; under section 101(a)(15)(H)(ii)(a) of the Act as an alien who is coming
to perform agricultural labor or services of a temporary or seasonal nature;
under section 101(a)(15)(H)(ii)(b) of the Act as an alien coming to perform
other temporary services or labor; or under section 101(a)(15)(H)(iii) of the
Act as an alien who is coming as a trainee or participant in a special education
exchange visitor program. These classifications are commonly called H-1A, H-1B,
H-2A, H-2B, and H-3, respectively. The employer must file a petition with the
Service for review of the services or training and for determination of the
alien's eligibility for classification as a temporary employee or trainee,
before the alien may apply for a visa or seek admission to the United States.
This paragraph sets forth the standards and procedures applicable to these
classifications. (ii) Description of classification. (A) An H-1A classification applies
to an alien who is coming temporarily to the United States to perform services
as a registered nurse, meets the requirements of section 212(m)(1) of the Act,
and will perform services at a facility for which the Secretary of Labor has
determined and certified to the Attorney General that an un-expired attestation
is on file and in effect under section 212(m)(2) of the Act. This classification
expired on September 1, 1995, but certain aliens previously accorded H-1A
classification are eligible to obtain and extension of stay until September 30,
1997, pursuant to Public Law 104-302. (B) An H-1B classification applies
to an alien who is coming temporarily to the United States: (1) To perform services in a
specialty occupation (except agricultural workers, and aliens described in
section 101(a)(15) (0) and (P) of the Act) described in section 214(i)(1) of the
Act, that meets the requirements of section 214(i)(2) of the Act, and for whom
the Secretary of Labor has determined and certified to the Attorney General that
the prospective employer has filed a labor condition application under section
212(n)(1) of the Act; (2) To perform services of an
exceptional nature requiring exceptional merit and ability relating to a
cooperative research and development project or a co-production project provided
for under a Government to Government agreement administered by the Secretary of
Defense; (3) To perform services as a
fashion model of distinguished merit and ability and for whom the Secretary of
Labor has determined and certified to the Attorney General that the prospective
employer has filed a labor condition application under section 212(n)(1) of the
Act. (C) An H-2A classification applies
to an alien who is coming temporarily to the United States to perform
agricultural work of a temporary or seasonal nature. (D) An H-2B classification applies
to an alien who is coming temporarily to the United States to perform
nonagricultural work of a temporary or seasonal nature, if unemployed persons
capable of performing such service or labor cannot be found in this country,
This classification does not apply to graduates of medical schools coming to the
United States to perform services as members of the medical profession. The
temporary or permanent nature of the services or labor to be performed must be
determined by the service. This classification requires a temporary labor
certification issued by the Secretary of Labor or the Governor of Guam, or a
notice from one of these individuals that such a certification cannot be made,
prior to the filing of a petition with the Service. (E) An H-3 classification applies
to an alien who is coming temporarily to the United States: (1) As a trainee, other than to
receive graduate medical education or training, or training provided primarily
at or by an academic or vocational institution, or (2) As a participant in a special
education exchange visitor program which provides for practical training and
experience in the education of children with physical, mental, or emotional
disabilities. [ 8 C.F.R. §
214.2(h)(2)] (2) Petitions (i) Filing of petitions (A) General. A United States
employer seeking to classify an alien as an H-1B, , H-2A, H-2B, or H-3 temporary
employee shall file a petition on Form I-129, Petition for Nonimmigrant Worker,
only with the Service Center which has jurisdiction in the area where the alien
will perform services, or receive training, even in emergent situations, except
as provided in this section. Petitions in Guam and the Virgin Islands, and
petitions involving special filing situations as determined by Service
Headquarters, shall be filed with the local Service office or a designated
Service office. The petitioner may submit a legible photocopy of a document in
support of the visa petition in lieu of the original document. However, the
original document shall be submitted if requested by the Service. (B) Service or training in more
than one location. A petition which requires services to be performed or
training to be received in more than one location must include an itinerary with
the dates and locations of the services or training and must be filed with the
Service office which has jurisdiction over I-129H petitions in the area where
the petitioner is located. The address which the petitioner specifies as its
location on the I-129H petition shall be where the petitioner is located for
purposes of this paragraph. (C) Services or training for more
than one employer. If the beneficiary will perform nonagricultural services for,
or receive training from, more than one employer, each employer must file a
separate petition with the Service Center that has jurisdiction over the area
where the alien will perform services or receive training, unless an established
agent files the petition. (D) Change of employers. If the
alien is in the United States and seeks to change employers, the prospective new
employer must file a petition on Form I-129 requesting classification and
extension of the alien's stay in the United States. If the new petition is
approved, the extension of stay may be granted for tile validity of the approved
petition. The validity of the petition and the alien's extension of stay shall
conform to the limits on the alien's temporary stay that are prescribed in
paragraph (h)(13) of this section. The alien is not authorized to begin the
employment with the new petitioner until the petition is approved. An H-1A
nonimmigrant alien may not change employers. (E) Amended or new petition. The
petitioner shall file an amended or new petition, with fee, with the Service
Center where the original petition was filed to reflect any material changes in
the terms and conditions of employment or training or the beneficiary's
eligibility as specified in the original approved petition. An amended or new H-1A,
H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department
of Labor determination. In the case of an H-1B petition, this requirement
includes a new labor condition application. (F) Agents as petitioners. A
United States agent may file a petition in cases involving workers who are
traditionally self-employed or workers who use agents to arrange short-term
employment on their behalf with numerous employers, and in cases where a foreign
employer authorizes the agent to act on its behalf. A United States agent may
be: the actual employer of the beneficiary, tile representative of both the
employer and the beneficiary, or, a person or entity authorized by the employer
to act for, or in place of, the employer as it agent. A petition filed by a
United States agent is subject to the following conditions; (1) An agent performing the
function of an employer of
employment by contractual agreement with the beneficiary or beneficiaries of the
petition. The agent/employer must also provide an itinerary of definite
employment and information on any other services planned for the period of time
requested. (2) A person or company in
business as an agent may file the H petition involving multiple employers as the
representative of both the employers and the beneficiary or beneficiaries if the
supporting documentation includes a complete itinerary of services or
engagements. The itinerary shall specify the dates of each service or
engagement, the names and addresses of the actual employers, and the names and
addresses of the establishment, venues, or locations where the services will be
performed. In questionable cases, a contract between the employers and the
beneficiary or beneficiaries may be required. The burden is on the agent to
explain the terms and conditions of the employment and to provide any required
documentation. (3) A foreign employer who,
through a United States agent, files a petition for an H non-immigrant alien is
responsible for complying with all of the employer sanctions provisions of
section 274A of the Act and 8 CFR part 274a. (ii) Multiple beneficiaries. More than one beneficiary may
be included in an H-2A, H-2B or H-3 petition if the beneficiaries will be
performing the same service, or receiving the same training, for the same period
of time, and in the same location. (iii) Named beneficiaries. Nonagricultural petitions
must include the names of beneficiaries and other required information at the
time of filing. Under the H-2B classification, exceptions may be granted in
emergent situations involving multiple beneficiaries at the discretion of the
director and in special filing situations as determined by the Service's
Headquarters. If all of the beneficiaries covered by an H-2A or, H-2B labor
certification have not been identified at the time a petition is filed, multiple
petitions naming subsequent beneficiaries may be filed at different times with a
copy of the same labor certification. Each petition must reference all
previously filed petitions for that labor certification. (iv) Substitution of beneficiaries. Beneficiaries may
be substituted in H-2B petitions that are approved for a group, or H-2B
petitions that are approved for unnamed beneficiaries, or approved H-2B
petitions where the job offered to the alien(s) does not require any education,
training, and/or experience. To request a substitution, the petitioner shall, by
letter and a copy of the petition's approval notice, notify the consular office
at which the alien will apply for a visa or the port of entry where the alien
will apply for admission. Where evidence of the qualifications of beneficiaries
is required in petitions for unnamed beneficiaries, the petitioner shall also
submit such evidence to the consular office or port of entry prior to issuance
of a visa or admission. (v) H-2A Petitions. Special criteria for admission,
extension, and maintenance of status apply to H-2A petitions and are specified
in paragraph (h)(5) of this section. The other provisions of § 214.2(h) apply
to H-2A only to the extent that they do not conflict with the special
agricultural provisions in paragraph (h)(5) of this section. [ 8 C.F.R. §
214.2(h)(3)] (3) Petition for registered nurse (H-1A). (Not Included) [ 8 C.F.R. §
214.2(h)(4)] (4) Petition for alien to perform services in a specialty
occupation, services relating to a DOD cooperative research and development
project or co-production project, or services of distinguished merit and ability
in the fields of fashion modeling (H-lB)— (i)
(A) Types of H-1B classification. An H-1B classification may be granted
to an alien who: (1) Will perform services in a
specialty occupation which requires theoretical and practical application of a
body of highly specialized knowledge and attainment of a baccalaureate or higher
degree or its equivalent as a minimum requirement for entry into the occupation
in the United States, and who is qualified to perform services in the specialty
occupation because he or she has attained a baccalaureate or higher degree or
its equivalent in the specialty occupation; (2) Based on reciprocity, will
perform services of an exceptional nature requiring exceptional merit and
ability relating to a DOD cooperative research and development project or a co-production
project provided for under a Government to Government agreement administered by
the Secretary of Defense; (3) Will perform services in the
field of fashion modeling and who is of distinguished merit and ability. (B) General requirements for
petitions involving a specialty occupation. (I) Before filing a petition for H-1B
classification in a specialty occupation, the petitioner shall obtain a
certification from the Department of Labor that it has filed a labor condition
application in the occupational specialty in which the alien(s) will be
employed. (2) Certification by the
Department of Labor of a labor condition application in an occupational
classification does not constitute a determination by that agency that the
occupation in question is a specialty occupation. The director shall determine
if the application involves a specialty occupation as defined in section
214(i)(1) of the Act. The director shall also determine whether the particular
alien for whom H-1B classification is sought qualifies to perform services in
the specialty occupation as prescribed in section 214(i)(2) of the Act. (3) If all of the beneficiaries
covered by an H-1B labor condition application have not been identified at the
time a petition is filed, petitions for newly identified beneficiaries may be
filed at any time during the validity of the labor condition application using
photocopies of the same application. Each petition must refer by file number to
all previously approved petitions for that labor condition application. (4) When petitions have been
approved for the total number of workers specified in the labor condition
application, substitution of aliens against previously approved openings shall
not be made. A new labor condition application shall be required. (5) If the Secretary of Labor
notifies the Service that the petitioning employer has failed to meet a
condition of paragraph (B) of section 212(n)(1) of the Act, has substantially
failed to meet a condition of paragraphs (C) or (D) of section 212(n)(1) of the
Act, has willfully failed to meet a condition of paragraph (A) of section
212(n)(1) of the Act, or has misrepresented any material fact in the
application, the Service shall not approve petitions filed with respect to that
employer under section 204 or 214(c) of the Act for a period of at least one
year from the date of receipt of such notice. (6) If the employer's labor
condition application is suspended or invalidated by the Department of Labor,
the Service will not suspend or revoke the employer's approved petitions for
aliens already employed in specialty occupations if the employer has certified
to the Department of Labor that it will comply with the terms of the labor
condition application for the duration of' the authorized stay of' aliens it
employs. (C) General requirements for
petitions involving an alien of distinguished merit and ability in the held of
fashion modeling. H-1B classification may be granted to an alien who
is of distinguished merit and ability in the field of fashion modeling. An alien
of distinguished merit and ability in the field of fashion modeling is one who
is prominent in the field of fashion modeling. The alien must also be coming to
the United States to perform services which require a fashion model of
prominence. (ii) Definitions: Prominence means a high level of achievement in the field
of fashion modeling evidenced by a degree of skill and recognition substantially
above that ordinarily encountered to the extent that a person described as
prominent is renowned, leading, or well-known in the field of fashion modeling. Recognized authority means a person or an organization with
expertise in a particular field, special skills or knowledge in that field, and
the expertise to render the type of opinion requested. Such an opinion must
state: (1) The writer's qualifications as
an expert; (2) The writer's experience giving
such opinions, citing specific instances where past opinions have been accepted
as authoritative and by whom; (3) How the conclusions were
reached; and (4) The basis for the conclusions
supported by copies or citations of any research material used. Specialty occupation means an occupation which requires
theoretical and practical application of a body of highly specialized knowledge
in fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine and
health, education, business specialties, accounting, law, theology, and the
arts, and which requires the attainment of a bachelor's degree or higher in a
specific specialty, or its equivalent, as a minimum for entry into the
occupation in the United States. United States employer means a person, firm, corporation,
contractor, or other association, or organization in the United States which: (1) Engages a person to work
within the United States; (2) Has an employer-employee
relationship with respect to employees under this part, as indicated by the fact
that it may hire, pay, fire, supervise, or otherwise control the work of any
such employee; and (3) Has an Internal Revenue
Service Tax identification number. (iii) Criteria for H-1B petitions involving a
specialty occupation. (A) Standards for specialty
occupation position. To qualify as a specialty occupation, the position must
meet one of the following criteria: (1) A baccalaureate or higher
degree or its equivalent is normally the minimum requirement for entry into the
particular position; (2) The degree requirement is
common to the industry in parallel positions among similar organizations or, in
the alternative, an employer may show that its particular position is so complex
or unique that it can be performed only by an individual with a degree; (3) The employer normally requires
a degree or its equivalent for the position; or (4) The nature of the specific
duties are so specialized and complex that knowledge required to perform the
duties is usually associated with the attainment of a baccalaureate or higher
degree. (B) Petitioner requirements. The
petitioner shall submit the following with an H-1B petition involving a
specialty occupation: (1) A certification from the
Secretary of Labor that the petitioner has filed a labor condition application
with the Secretary, (2) A statement that it will
comply with the terms of the labor condition application for the duration of the
alien's authorized period of stay, (3) Evidence that the alien
qualifies to perform services in the specialty occupation as described in
paragraph (h)(4)(iii)(A) of this section, and (C) Beneficiary qualifications. To
qualify to perform services in a specialty occupation, the alien must meet one
of the following criteria: (1) Hold a United States
baccalaureate or higher degree required by the specialty occupation from an
accredited college or university; (2) Hold a foreign degree
determined to be equivalent to a United States baccalaureate or higher degree
required by the specialty occupation from an accredited college or university; (3) Hold an unrestricted State
license registration or certification which authorizes him or her to fully
practice the specialty occupation and be immediately engaged in that specialty
in the state of intended employment; or (4) Have education, specialized
training, and/or progressively responsible experience that is equivalent to
completion of a United States baccalaureate or higher degree in the specialty
occupation, and have recognition of expertise in the specialty through
progressively responsible positions directly related to the specialty. (D) Equivalence to completion of a
college degree. For purposes of paragraph (h)(4)(iii)(C)(4) of this section,
equivalence to completion of a United States baccalaureate or higher degree
shall mean achievement of a level of knowledge, competence, and practice in the
specialty occupation that has been determined to be equal to that of an
individual who has a baccalaureate or higher degree in the specialty and shall
be determined by one or more of the following: (1) An evaluation from an official
who has authority to grant college‑level credit for training and/or
experience in the specialty at an accredited college or university which has a
program for granting such credit based on an individual's training and/or work
experience; (2) The results of recognized
college-level equivalency examinations or special credit programs, such as the
College Level Examination Program (CLEP), or Program on Non-collegiate Sponsored
Instruction (PONSI); (3) An evaluation of education by
a reliable credentials evaluation service which specializes in evaluating
foreign educational credentials; (4) Evidence of certification or
registration from a nationally-recognized professional association or society
for the specialty that is known to grant certification or registration to
persons in the occupational specialty who have achieved a certain level of
competence in the specialty; (5) A determination by the Service
that the equivalent of the degree required by the specialty occupation has been
acquired through a combination of education, specialized training, and/or work
experience in areas related to the specialty and that the alien has achieved
recognition of expertise in the specialty occupation as a result of such
training and experience. For purposes of determining equivalency to a
baccalaureate degree in the specialty, three years of specialized training
and/or work experience must be demonstrated for each year of college-level
training the alien lacks. For equivalence to an advanced (or Masters) degree,
the alien must have a baccalaureate degree followed by at least five years of
experience in the specialty. If required by a specialty, the alien must hold a
Doctorate degree or its foreign equivalent. It must be clearly demonstrated that
the alien's training and/or work experience included the theoretical and
practical application of specialized knowledge required by the specialty
occupation; that the alien's experience was gained while working with peers,
supervisors, or subordinates who have a degree or its equivalent in the
specialty occupation; and that the alien has recognition of expertise in the
specialty evidenced by at least one type of documentation such as: (i) Recognition of expertise in
the specialty occupation by at least two recognized authorities in the same
specialty occupation; (ii) Membership in a recognized
foreign or United States association or society in the specialty occupation; (iii) Published material by or
about the alien in professional publications, trade journals, books, or major
newspapers; (iv) Licensure or registration to
practice the specialty occupation in a foreign country; or (v) Achievements which a
recognized authority has determined to be significant contributions to the field
of the specialty occupation. (E) Liability for transportation
costs. The employer will be liable for the reasonable costs of return
transportation of the alien abroad if the alien is dismissed from employment by
the employer before the end of the period of authorized admission pursuant to
section 214(c)(5) of the Act. If the beneficiary voluntarily terminates his or
her employment prior to the expiration of the validity of the petition, the
alien has not been dismissed. If the beneficiary believes that the employer has not
complied with this provision, the beneficiary shall advise the Service Center
which adjudicated the petition in writing. The complaint will be retained in the
file relating to the petition. Within the context of this paragraph, the term
"abroad" refers to the alien's last place of foreign residence. This
provision applies to any employer whose offer of employment became the basis for
an alien obtaining or continuing H-1B status. (iv) General documentary requirements for H-1B
classification in a specialty occupation. An H-1B petition involving a specialty
occupation shall be accompanied by: (A) Documentation, certifications,
affidavits, declarations, degrees, diplomas, writings, reviews, or any other
required evidence sufficient to establish that the beneficiary is qualified to
perform services in a specialty occupation as described in paragraph (h)(4)(i)
of this section and that the services the beneficiary is to perform are in a
specialty occupation. The evidence shall conform to the following: (1) School records, diplomas,
degrees, affidavits, declarations, contracts, and similar documentation
submitted must reflect periods of attendance, courses of study, and similar
pertinent data, be executed by the person in charge of the records of the
educational or other institution, firm, or establishment where education or
training was acquired. (2) Affidavits or declarations
made under penalty of perjury submitted by present or former employers or
recognized authorities certifying as to the recognition and expertise of the
beneficiary shall specifically describe the beneficiary's recognition and
ability in factual terms and must set forth the expertise of the affiant and the
manner in which the affiant acquired such information. (B) Copies of any written
contracts between the petitioner and beneficiary, or a summary of the terms of
the oral agreement under which the beneficiary will be employed, if there is no
written contract. (v) Licensure for H classification (A) General. If an occupation
requires a state or local license for an individual to fully perform the duties
of the occupation, an alien (except an H-1A nurse) seeking H classification in
that occupation must have that license prior to approval of the petition to be
found qualified to enter the United States and immediately engage in employment
in the occupation. (B) Temporary licensure. If a
temporary license is available and the alien is allowed to perform the duties of
the occupation without a permanent license, the director shall examine the
nature of the duties, the level at which the duties are performed, the degree of
supervision received, and any limitations placed on the alien. If an analysis of
the facts demonstrates that the alien under supervision is authorized to fully
perform the duties of the occupation, H classification may be granted. (C) Duties without licensure. In
certain occupations which generally require licensure, a state may allow an
individual to fully practice the occupation under the supervision of licensed
senior or supervisory personnel in that occupation. In such cases, the director
shall examine the nature of the duties and the level at which they are
performed. If the facts demonstrate that the alien under supervision could fully
perform the duties of the occupation, H classification may be granted. (D) H-1A nurses. For purposes of
licensure, H-1A nurses must provide the evidence required in paragraph
(h)(3)(iii) of this section. (E) Limitation on approval of
petition. Where licensure is required in any occupation, including registered
nursing, the H petition may only be approved for a period of one year or for the
period that the temporary license is valid, whichever is longer, unless the
alien already has a permanent license to practice the occupation. An alien who
is accorded H classification in an occupation which requires licensure may not
be granted an extension of stay or accorded a new H classification after the one
year unless he or she has obtained a permanent license in the state of intended
employment or continues to hold a temporary license valid in the same state for
the period of the requested extension. (vi) Criteria and documentary requirements for H-1B
petitions involving DOD cooperative research and development projects or co-production
projects. (A)
General. (1) For
purposes of H-1B classification, services of an exceptional nature relating to
DOD cooperative research and development projects or co-production projects
shall be those services which require a baccalaureate or higher degree, or its
equivalent, to perform the duties. The existence of this special program does
not preclude the DOD from utilizing the regular H-1B provisions provided the
required guidelines are met. (2) The
requirement relating to a labor condition application from the Department of
Labor shall not apply to petitions involving DOD cooperative research and
development projects or co-production projects. (B)
Petitioner requirements. (1)The petition must be
accompanied by a verification letter from the DOD project manager for the
particular project stating that the alien will be working on a cooperative
research and development project or a co-production project under a reciprocal
Government to Government agreement administered by DOD. Details about the
specific project are not required. (2) The petitioner shall provide
a general description of the alien's duties on the particular project and
indicate the actual dates of the alien's employment on the project. (3) The
petitioner shall submit a statement indicating the names of aliens currently
employed on the project in the United States and their dates of employment. The
petitioner shall also indicate the names of aliens whose employment on the
project ended within the past year. (C) Beneficiary requirement. The
petition shall be accompanied by evidence that the beneficiary has a
baccalaureate or higher degree or its equivalent in the occupational field in
which he or she will be performing services in accordance with paragraph (h)(4)(iii)(C)
and/or (h)(4)(iii)(D) of this section. (vii) Criteria and documentary requirements for H-1B
petitions for aliens of distinguished merit and ability in the field of fashion
modeling. (A) General. Prominence in the
field of fashion modeling may be established in the case of an individual
fashion model. The work which a prominent alien is coming to perform in the
United States must require the services of a prominent alien. A petition for an
H-1B alien of distinguished merit and ability in the field of fashion modeling
shall be accompanied by: (1) Documentation, certifications,
affidavits, writings, reviews, or any other required evidence sufficient to
establish that the beneficiary is a fashion model of distinguished merit and
ability. Affidavits submitted by present or former employers or recognized
experts certifying to the recognition and distinguished ability of the
beneficiary shall specifically describe the beneficiary's recognition and
ability in factual terms and must set forth the expertise of the affiant and the
manner in which the affiant acquired such information. (2) Copies of any written
contracts between the petitioner and beneficiary, or a summary of the terms of
the oral agreement under which the beneficiary will be employed, if there is no
written contract. (B) Petitioner's requirements. To
establish that a position requires prominence, the petitioner must establish
that the position meets one of the following criteria: (1) The services to be performed
involve events or productions which have a distinguished reputation; (2) The services are to be
performed for an organization or establishment that has a distinguished
reputation for, or record of, employing prominent persons. (C) Beneficiary's requirements. A
petitioner may establish that a beneficiary is a fashion model of distinguished
merit and ability by the submission of two of the following forms of
documentation showing that the alien: (1)Has achieved national or
international recognition and acclaim for outstanding achievement in his or her
field as evidenced by reviews in major newspapers, trade journals, magazines, or
other published material; (2) Has performed and will perform
services as a fashion model for employers with a distinguished reputation; (3) Has received recognition for
significant achievements from organizations, critics, fashion houses, modeling
agencies, or other recognized experts in the field; or (4) Commands a high salary or
other substantial remuneration for services evidenced by contracts or other
reliable evidence. (viii) Criteria and documentary requirements for H-1B
petitions for physicians. (A) Beneficiary's requirements. An
H-1B petition for a physician shall be accompanied by evidence that the
physician: (1) Has a license or other
authorization required by the state of intended employment to practice medicine,
or is exempt by law there from, if the physician will perform direct patient
care and the state requires the license or authorization, and (2) Has a full and unrestricted
license to practice medicine in a foreign state or has graduated from a medical
school in the United States or in a foreign state. (B) Petitioner's requirements. The
petitioner must establish that the alien physician: (1) Is coming to the United States
primarily to teach or conduct research, or both, at or for a public or nonprofit
private educational or research institution or agency, and that no patient care
will be performed, except that which is incidental to the physician's teaching
or research; or (2) The alien has passed the
Federation Licensing Examination (or an equivalent examination as determined by
the Secretary of Health and Human Services) or is a graduate of a United States
medical school; and (i) Has competency in oral and
written English which shall be demonstrated by the passage of the English
language proficiency test given by the Educational Commission for Foreign
Medical Graduates; or (ii) Is a graduate of a school of
medicine accredited by a body or bodies approved for that purpose by the
Secretary of Education. (C) Exception for physicians of
national or international renown. A physician who is a graduate of a medical
school in a foreign state and who is of national or international renown in the
field of medicine is exempt from the requirements of paragraph (h)(4)(viii)(B)
of this section. [ 8 CAR. §
214.2(h)(5)] (5) Petition for alien to perform agricultural labor or
services of a temporary or seasonal nature (H-2A) – (Not Included) [ 8 C.F.R. §
2141.2(h)(6)] (6) Petition for alien to perform temporary nonagricultural
services or labor (H-2B) (Not Included) [
8 C.F.R. § 214.2(h)(7)] Petition for alien trainee or participant in a special
education exchange visitor program (H-3) (Not Included) [ 8 C.F.R. §
214.2(h)(8)] Numerical limits (i) Limits on affected categories. During each fiscal year,
the total number of aliens who can be provided nonimmigrant classification is
limited as follows: (A) Aliens classified as H1-B non-immigrants,
excluding those involved in DOD research and development projects or co-production
projects, may not exceed 65,000. (B) Aliens classified as H-1B non-immigrants
to work for DOD research and development projects or co-production projects may
not exceed 100 at any time. (C) Aliens classified as H-2B non-immigrants
may not exceed 66,000. (D) Aliens classified as H-3
nonimmigrant participants in a special education exchange visitor program may
not exceed 50. (ii) Procedures. (A) Each alien' issued a visa or
otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of the
Act shall be counted for purposes of the numerical limit. Requests for petition
extension or extension of an alien's stay shall not be counted for the purpose
of the numerical limit. The spouse and children of principal aliens classified
as H-4 non-immigrants shall not be counted against the numerical limit. (B) Numbers will be assigned
temporarily to each alien (or job opening(s) for aliens in petitions with
unnamed beneficiaries) included in a new petition in the order that petitions
are filed. If a petition is denied, the number(s) originally assigned to the
petition shall be returned to the system which maintains and assigns numbers. (C) For purposes of assigning
numbers to aliens on petitions filed in Guam and the Virgin Islands, Service
Headquarters Adjudications shall
assign numbers to these locations from the central system which controls and
assigns numbers to petitions filed in other locations of the United States. (D) When an approved petition is
not used because the beneficiary(ies) does not apply for admission to the United
States, the petitioner shall notify the Service Center Director who approved the
petition that the number(s) has not been used. The petition shall be revoked
pursuant to paragraph (h)(11)(ii) of this section and the unused number(s) shall
be returned to the system which maintains and assigns numbers. (E) If the total numbers available
in a fiscal year are used, new petitions and tile accompanying fee shall be
rejected and returned with a notice that numbers are unavailable for the
particular nonimmigrant classification until the beginning of the next fiscal
year. [ 8 C.F.R. §
214.2(h)(9)(i)] Approval and validity of petition (i) Approval. The director shall consider all the evidence
submitted and such other evidence as he or she may independently require to
assist his or her adjudication. The director shall notify the petitioner of the
approval of tile petition oil Form I-797, Notice of Action. The approval shall
be as follows: (A) The approval notice shall
include the beneficary's(ies') name(s) and classification and the petition's
period of validity. A petition for more than one beneficiary and/or multiple
services may be approved in whole or in part. The approval notice shall cover
only those beneficiaries approved for classification under section 101(a)(15)(H)
of the Act. (B) The petition may not be filed
or approved earlier than six months before the date of actual need for the
beneficiary's services or training. (ii)
Recording the validity of petitions. Procedures for recording the validity
period of petitions are: (A) If a new H petition is
approved before the date the petitioner indicates that the services or training
will begin, the approved petition and approval notice shall show the actual
dates requested by the petitioner as the validity period, not to exceed the
limits specified by paragraph (h)(9)(iii) of this section or other Service
policy. (B) If a new If petition is
approved after the date the petitioner indicates that the services or training
will begin, the approved petition and approval notice shall show a validity
period commencing with the date of approval and ending with the date requested
by the petitioner, as long as that date does not exceed either the limits
specified by paragraph (h)(9)(iii) of this section or other Service policy. (C) If the period of services or
training requested by the petitioner exceeds the limit specified in paragraph
(h)(9)(iii) of this section, the petition shall be approved only up to the limit
specified in that paragraph. (iii) Validity. The initial approval period of an H
petition shall conform to the limits prescribed as follows: (A)
(I) H-1B petition in a specialty occupation. An approved petition
classified under section 101(a)(15)(H)(i)(b) of the Act for an alien in a
specialty occupation shall be valid for a period of up to three years but may
not exceed the validity period of the labor condition application. (2) H-1B petition involving a DOD
research and development or co-production project. An approved petition
classified under section 101. (a)(15)(H)(i)(b) of the Act for an alien involved
in a DOD research and development project or a co-production project shall be valid for a period of up to five
years. (3) H-1B petition involving an
alien of distinguished merit and ability in the field of fashion modeling. An
approved petition classified under section 101 (a)(15)(H)(i)(b) of the Act for
an alien of distinguished merit and ability in (the field of fashion modeling
shall be valid for a period of up to three years. (B)
H-2B petition (1) Labor
certification attached. If a certification by the Secretary of Labor or the
Governor of Guam is attached to a petition to accord an alien a classification
under section 101(a)(15)(H)(ii)(b) of the Act, the approval of the petition
shall be valid for a period of up to one year. (2) Notice that
certification cannot be made attached (i) Countervailing evidence. If a
petition is submitted containing a notice from the Secretary of Labor or the
Governor of Guam that certification cannot be made, and is not accompanied by
countervailing evidence, the petitioner shall be informed that he or she may
submit the countervailing evidence in accordance with paragraphs (h)(6)(iii)(E)
and (h)(6)(iv)(D) of (his section.
(ii) Approval. In any case where the director decides that approval of the H-2B
petition is (C)
(1) H-3 petition for alien trainee. An approved petition for an alien
trainee classified under section 101(a)(15)(H)(iii) of the Act shall be valid
for a period of up to two years. (2) H-3 petition for alien
participant in a special education training program. An approved petition for an
alien classified under section 101(a)(15)(H)(iii) of the Act as a participant in
a special education exchange visitor program shall be valid for a period of up
to 18 months. (iv) Spouse and dependents. The spouse and unmarried minor
children of the beneficiary are entitled to H nonimmigrant classification,
subject to the same period of admission and limitations as the beneficiary, if
they are accompanying or following to join the beneficiary in the United States.
Neither the spouse nor a child of the beneficiary may accept employment unless
he or she is the beneficiary of an approved petition filed in his or her behalf
and has been granted a nonimmigrant classification authorizing his or her
employment. [ 8 C.F.R. §
214.2(h)(10)] (10) Denial of petition (i) Multiple beneficiaries. A petition for multiple
beneficiaries may be denied in whole or in part. (ii) Notice of intent to deny. When an adverse decision is
proposed on the basis of derogatory information of which the petitioner is
unaware, the director shall notify the petitioner of the intent to deny the
petition and the basis for the denial. The petitioner may inspect and rebut the
evidence and will be granted a period of 30 days from the date of the notice in
which to do so. All relevant rebuttal material will be considered in making a
final decision. (iii) Notice of denial. The petitioner shall be
notified of the reasons for the denial, and of his or her right to appeal the
denial of the petition under 8 CFR part 103. There is no appeal from a decision
to deny an extension of stay to the alien. [ 8 C.F.R. §
214.2(h)(11)] (11) Revocation of approval of petition (i) General. (A) The petitioner shall
immediately notify the Service of any changes in the terms and conditions of
employment of a beneficiary which may affect eligibility under section
101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition
on Form I-129 should be filed when the petitioner continues to employ the
beneficiary. If the petitioner no longer employs the beneficiary, (lie
petitioner shall send a letter explaining the change(s) to the director who
approved the petition. (B) The director may revoke a
petition at any time, even after the expiration of the petition. (ii) Automatic revocation. The approval of any
petition is automatically revoked if the petitioner goes out of business or
files a written withdrawal of the petition. (iii) Revocation on notice (A) Grounds for revocation. The
director shall send to the petitioner a notice of intent to revoke the petition
in relevant part if he or she finds that: (1) The beneficiary is no longer employed by the petitioner in
the capacity specified in the petition, or if the beneficiary is no longer
receiving training as specified in the petition; or (2) The statement of facts
contained in the petition was not true and correct; or (3) The petitioner violated terms
and conditions of the approved petition; or (4) The petitioner violated
requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this
section; or (5) The approval of petition
violated paragraph (4) of this section or involved gross error. (B) Notice and decision. The
notice of intent to revoke shall contain a detailed statement of the grounds for
the revocation and the time period allowed for the petitioner's rebuttal. The
petitioner may submit evidence in rebuttal within 30 days of receipt of the
notice. The director shall consider all relevant evidence presented in deciding
whether to revoke the petition in whole or in part. If the petition is revoked
in part, the remainder of the petition shall remain approved and a revised
approval notice shall be sent to the petitioner with the revocation notice. [ 8 C.F.R. §
214.2(h)(12)] (12) Appeal of a denial or a revocation of a petition (i) Denial. A petition denied in whole or in part may be
appealed under Part 103 of this chapter. (ii) Revocation. A petition that has been revoked on
notice in whole or in part may be appealed under Part 183 of this chapter.
Automatic revocations may not be appealed. [ 8 C.F.R. §
214.2(h)(13)] (13) Admission (i) General. (A) A beneficiary shall be
admitted to the United States for the validity period of the petition, plus a
period of up to 10 days before the validity period begins and 10 days after the
validity period ends. The beneficiary may not work except during the validity
period of the petition. (B) When an alien in an H
classification has spent the maximum allowable period of stay in the United
States, a new petition under sections 101(a)(15) (H) or (L) of the Act may not
be approved unless that alien has resided and been physically present outside
the United States, except for brief trips for business or pleasure, for the time
limit imposed on the particular 11 classification. Brief trips to the United
States for business or pleasure during the required time abroad are not
interruptive, but do not count towards fulfillment of the required time abroad.
The petitioner shall provide information about the alien's employment, place of
residence, and the dates and purposes of any trips to the United States during
the period that the alien was required to spend time abroad. (ii) H-1A limitation on admission. An alien who was
previously accorded H-1A nonimmigrant status, which expired on or before October
11, 1996, may not be admitted to the United States after October 11, 1996, in
order to apply for an extension of authorized stay as provided in Public Law 104-302.
Except as provided in paragraph (15)(ii)(A) of this subsection, and H-1A alien
who has spent 5 years in the United States under section 101(a)(15)(H) of the
Act may not change status, or be readmitted to the United States in any H
classification unless the alien has resided and been physically present outside
the United States, except for brief trips for pleasure or business, for the
immediate prior year. (iii) H-1B limitation on admission. (A) Alien in a specialty
occupation or an alien of distinguished merit and ability in the field of
fashion modeling. An H-1B alien in a specialty occupation or an alien of
distinguished merit and ability who has spent six years in tile United States
under section 101(a)(15) (H) and/or (L) of the Act may not seek extension,
change status, or be readmitted to the United States under section 101(a)(15)(H)
or (L) of the Act unless the alien has resided and been physically present
outside the United States, except for brief trips for business or pleasure, for
the immediate prior year. (B) Alien involved in a DOD
research and development or co-production project. An H-IB alien involved in a
DOD research and development or co-production project who has spent 10 years in
the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek
extension, change status, or be readmitted to the United States under section
101(a)(15)(H) or (L) of the Act to perform services involving a DOD research and
development project or co-production project. A new petition or change of status
under section 101(a)(15)(H) or (L) of the Act may not be approved for such an
alien unless the alien has resided and been physically present outside the
United States, except for brief trips for business or pleasure, for the
immediate prior year. (iv) H-2B and H-3 limitation on admission. An H-2B
alien who has spent 3 years in the United States under section 101(a)(15)(H)
and/or (L) of the Act; an H-3 alien participant in a special education program
who has spent 18 months in the United States under section 101(a)(15)(H) and/or
(L) of the Act; and an H-3 alien trainee who has spent 24 months in the United
States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension,
change status, or be readmitted to the United States under section 101(a)(15)(H)
and/or (L) of the Act unless the alien has resided and been physically present
outside the United States for the immediate prior 6 months. (v) Exceptions. The limitations in paragraph
(h)(13)(ii) through (h)(13)(iv) of this section shall not apply to H-1A H-1B, H-2B,
and H-3 aliens who did not reside continually in the United States and whose
employment in the United States was seasonal or intermittent or was for an
aggregate of six months or less per year. In addition, the limitations shall not
apply to aliens who reside abroad and regularly commute to the United States to
engage in part-time employment. To qualify for this exception, the petitioner
and the alien must provide clear and convincing proof that the alien qualifies
for such an exception. Such proof shall consist of evidence such as arrival and
departure records, copies of tax returns, and records of employment abroad. [ 8 C.F.R. §
214.2(h)(14)] (14) Extension of visa petition validity. The petitioner
shall file a request for a petition extension on Form 1‑129 to extend the
validity of the original petition under section 101(a)(15)(H) of the Act.
Supporting evidence is not required unless requested by the director. A request
for a petition extension may be filed only if the validity of the original
petition has not expired. [ 8 C.F.R. §
214.2(h)(15)] (15) Extension of stay
(i) General. The petitioner shall apply for extension of an
alien's stay in the United States by filing a petition extension on Form I-129
accompanied by the documents described for the particular classification in
paragraph (h)(15)(ii) of this section. The petitioner must also request a
petition extension. The dates of extension shall be the same for the petition
and the beneficiary's extension of stay. The beneficiary must be physically
present in the United States at the time of the filing of the extension of stay.
Even though the requests to extend the petition and the alien's stay are
combined on the petition, the director shall make a separate determination on
each. If the alien is required to leave the United States for business or
personal reasons while the extension requests are pending, the petitioner may
request the director to cable notification of approval of the petition extension
to the consular office abroad where the alien will apply for a visa. When the
total period of stay in an H classification has been reached, no further
extensions may be granted. (ii) Extension periods (A) H-1A extension of stay. An
alien who previously entered the United States pursuant to an H-1A visa may
receive an extension of H-1A temporary stay until September 30, 1997, provided
that the alien was within the United States in valid H-1A classification on or
after September 1, 1995, regardless of whether the alien continued to work as a
registered nurse after September 1, 1995; that the alien's period of H-1A
temporary stay has expired or would expire before September 30, 1997; and, if
the alien was not in valid H-1A nonimmigrant status on October 11, 1996, that
the alien was within the United States on October 11, 1996. An extension of stay
may not be granted to an H-1A nonimmigrant alien beyond September 30, 1997. An H-1A
alien granted an extension of stay, and the spouse and child of such non-immigrant,
shall be considered to have maintained nonimmigrant status through September 30,
1997, for all purposes under the Immigration and Nationality Act, as amended.
Public Law 104-302 does not apply to an H-1A alien who otherwise failed to
maintain his or her valid H-1A nonimmigrant status or has changed from H-1I A to
another non-immigrant status. A request for an extension of stay for an H-1A nonimmigrant
must be filed on Form I-129, Petition for Nonimmigrant Worker, at the
appropriate Service Center with the following: (I) Evidence that the alien was
employed as a registered nurse on September 1, 1995: (2) Evidence that the beneficiary
is licensed to practice as a registered nurse in the state of intended
employment; (3) Evidence that the alien was
within the United States on or after September 1, 1995. For purposes of this
provision, an alien will be deemed to have been within the United States on
September 1, 1995, who, although not physically present in the United States on
that date, was subsequently admitted to the United States in H-1A classification
pursuant to an un-expired H1-A visa; and (4) If the alien was not in valid
H-1A nonimmigrant status on October 11, 1996, evidence that the alien was within
the United States on October 11, 1996. For purposes of this provision, an alien
will be deemed to have been within the United States on October It, 1996, who,
although not physically present in the United States on that date, was
subsequently admitted to the United States in H-1A classification pursuant to in
un-expired H-1A visa. (B) H-1B extension of stay (1)Alien in a specially
occupation, or an alien of distinguished merit and ability in the field of
fashion modeling. An extension of stay may be authorized for a period of up to
three years for a beneficiary of an H-1B petition in a specialty occupation or
an alien of distinguished merit and ability. The alien's total period of stay
may not exceed six years. The request for extension must be accompanied by
either a new or a photocopy of the prior certification from die Department of
Labor that the petitioner continues to have on file a labor condition
application valid for the period of time requested for the occupation. (2) Alien in a DOD research and
development or co-production project. An extension of stay may be authorized for
a period up to five years for the beneficiary of an H-1B petition involving a
DOD research and development project or co-production project. The total period
of stay may not exceed 10 years. (C) H-2A or H-2B extension of
stay. An extension of stay for the beneficiary of an H-2A or H-2B petition may
be authorized for the validity of the labor certification or for a period of up
to one year, except as provided for in paragraph (h)(5)(x) of this section. The
alien's total period of stay as an H-2A or H-2B worker may not exceed three
years, except that in the Virgin Islands, the alien's total period of stay may
not exceed 45 days. (D) H-3 extension of stay. An
extension of stay may be authorized for the length of the training program for a
total period of stay as an H-3 trainee not to exceed two years, or for a total
period of stay as a participant in a special education training program not to
exceed 18 months. [ 8 C.F.R. §
214.2(h)(16)] (16) Effect of approval of a permanent labor certification
or filing of a preference petition on H classification (i) H-1A or H-1B classification. The approval of a
permanent labor certification or the filing of a preference petition for an
alien shall not be a basis for denying an H-1A or H-1B petition or a request to
extend such a petition, or the alien's admission, change of status, or extension
of stay. The alien may legitimately come to the United States for a temporary
period as all H-1A or H-1B nonimmigrant and depart voluntarily at tile end of
his or her authorized stay and, at the same time, lawfully seek to become a
permanent resident of the United States. (ii) H-2A, H-2B, and H-3 classification. The approval
of a permanent labor certification, or the filing of a preference petition for
an alien currently employed by or in a training position with the same
petitioner, shall be a reason, by itself, to deny the alien's extension of stay. [ 8 C.F.R. §
214.2(h)(17)] (17) Effect of a strike. (i) If the Secretary of Labor certifies to the Commissioner
that a strike or other labor dispute involving a work stoppage of workers is in
progress in the occupation at the place where the beneficiary is to be employed
or trained, and that the employment or training of the beneficiary would
adversely affect tile wages and working conditions of U.S. citizens and lawful
resident workers: (A) A petition to classify an
alien as a nonimmigrant as defined in section 101(a)(15)(H) of the Act shall be
denied. (B) If a petition has been
approved, but the alien has not yet entered the United States, or has entered
the United States but has not commenced tile employment, the approval of tile
petition is automatically suspended, and the application for admission on the
basis of the petition shall be denied. (ii) If there is a strike or other labor dispute
involving a work stoppage of workers in progress, but such strike or other labor
dispute is not certified under paragraph (h)(17)(i), the Commissioner shall not
deny a petition or suspend an approved petition. (iii) If the alien has already commenced employment
in the United States under an approved petition and is participating in a strike
or labor dispute involving a work stoppage of workers, whether or not such
strike or other labor dispute has been certified by the Department of Labor, the
alien shall not be deemed to be failing to maintain his or her status solely on
account of past, present, or future participation in a strike or other labor
dispute involving a work stoppage of workers, but is subject to the following
terms and conditions. (A) The alien shall remain subject
to all applicable provisions of the Immigration and Nationality Act, and
regulations promulgated there-under in the same manner as all other 14 non-immigrants; (B) The status and authorized
period of stay of such an alien is not modified or extended in any way by virtue
of his or her participation in a strike or other labor dispute involving a work
stoppage of workers; and (C) Although participation by an H
non-immigration alien in a strike or labor dispute involving a work stoppage of
workers will not constitute a ground for deportation, any alien who violates his
or her status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation. [ 8 C.F.R. §
214.2(h)(18)] (18) Use of approval notice, Form I-797. The Service shall
notify the petitioner on Form I-797 whenever a visa petition, an extension of a
visa petition, or an alien's extension of stay is approved under the H
classification. The beneficiary of an H petition who does not require a
nonimmigrant visa may present a copy of the approval notice at a port of entry
to facilitate entry into the United States. A beneficiary who is required to
present a visa for admission an whose visa will have expired before the date of
his or her intended return may use a copy of Form I-797 to apply for a new or
revalidated visa during the validity period of the petition. The copy of Form I-797
shall be retained by the beneficiary and presented during the validity of the
petition when reentering the United States to resume the same employment with
the same petitioner.
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