[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR214.2]



[Page 235-348]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 214_NONIMMIGRANT CLASSES--Table of Contents

 

Sec. 214.2  Special requirements for admission, extension, and 

maintenance of status.



    The general requirements in Sec. 214.1 are modified for the 

following nonimmigrant classes:

    (a) Foreign government officials--(1) General. The determination by 

a consular officer prior to admission and the recognition by the 

Secretary of State subsequent to admission is evidence of the proper 

classification of a nonimmigrant under section 101(a)(15)(A) of the Act. 

An alien who has a nonimmigrant status under section 101(a)(15)(A)(i) or 

(ii) of the Act is to be admitted for the duration of the period for 

which the alien continues to be recognized by the Secretary of State as 

being entitled to that status. An alien defined in section 

(101)(a)(15)(A)(iii) of the Act is to be admitted for an initial period 

of not more than three years, and may be granted extensions of temporary 

stay in increments of not more than two years. In addition, the 

application for extension of temporary stay must be accompanied by a 

statement signed by the employing official stating that he/she intends 

to continue to employ the applicant and describing the type of work the 

applicant will perform.

    (2) Definition of A-1 or A-2 dependent. For purposes of employment 

in the United States, the term dependent of an A-1 or A-2 principal 

alien, as used in Sec. 214.2(a), means any of the following immediate 

members of the family habitually residing in the same household as the 

principal alien who is an officer or employee assigned to a diplomatic 

or consular office in the United States:

    (i) Spouse;

    (ii) Unmarried children under the age of 21;

    (iii) Unmarried sons or daughters under the age of 23 who are in 

full-time attendance as students at post-secondary educational 

institutions;

    (iv) Unmarried sons or daughters under the age of 25 who are in 

full-time attendance as students at post-secondary educational 

institutions if a formal bilateral employment agreement permitting their 

employment in the United States was signed prior to November 21, 1988, 

and such bilateral employment agreement does not specify 23 as the 

maximum age for employment of such sons and daughters. The Office of 

Protocol of the Department of State shall maintain a listing of foreign 

states with which the United States has such bilateral employment 

agreements;

    (v) Unmarried sons or daughters who are physically or mentally 

disabled to the extent that they cannot adequately care for themselves 

or cannot establish, maintain or re-establish their own households. The 

Department of State or the Service may require certification(s) as it 

deems sufficient to document such mental or physical disability.

    (3) Applicability of a formal bilateral agreement or an informal de 

facto arrangement for A-1 or A-2 dependents. The applicability of a 

formal bilateral agreement shall be based on the foreign



[[Page 236]]



state which employs the principal alien and not on the nationality of 

the principal alien or dependent. The applicability of an informal de 

facto arrangement shall be based on the foreign state which employs the 

principal alien, but under a de facto arrangement the principal alien 

also must be a national of the foreign state which employs him/her in 

the United States.

    (4) Income tax, Social Security liability; non-applicability of 

certain immunities. Dependents who are granted employment authorization 

under this section are responsible for payment of all federal, state and 

local income, employment and related taxes and Social Security 

contributions on any remuneration received. In addition, immunity from 

civil or administrative jurisdiction in accordance with Article 37 of 

the Vienna Convention on Diplomatic Relations or other international 

agreements does not apply to these dependents with respect to matters 

arising out of their employment.

    (5) Dependent employment pursuant to formal bilateral employment 

agreements and informal de facto reciprocal arrangements. (i) The Office 

of Protocol shall maintain a listing of foreign states which have 

entered into formal bilateral employment agreements. Dependents of an A-

1 or A-2 principal alien assigned to official duty in the United States 

may accept or continue in unrestricted employment based on such formal 

bilateral agreements upon favorable recommendation by the Department of 

State and issuance of employment authorization documentation by the 

Service in accordance with 8 CFR part 274a. The application procedures 

are set forth in paragraph (a)(6) of this section.

    (ii) For purposes of this section, an informal de facto reciprocal 

arrangement exists when the Department of State determines that a 

foreign state allows appropriate employment on the local economy for 

dependents of certain United States officials assigned to duty in that 

foreign state. The Office of Protocol shall maintain a listing of 

countries with which such reciprocity exists. Dependents of an A-1 or A-

2 principal alien assigned to official duty in the United States may be 

authorized to accept or continue in employment based upon informal de 

facto arrangements upon favorable recommendation by the Department of 

State and issuance of employment authorization by the Service in 

accordance with 8 CFR part 274a. Additionally, the procedures set forth 

in paragraph (a)(6) of this section must be complied with, and the 

following conditions must be met:

    (A) Both the principal alien and the dependent desiring employment 

are maintaining A-1 or A-2 status as appropriate;

    (B) The principal's assignment in the United States is expected to 

last more than six months;

    (C) Employment of a similar nature for dependents of United States 

Government officials assigned to official duty in the foreign state 

employing the principal alien is not prohibited by that foreign state's 

government;

    (D) The proposed employment is not in an occupation listed in the 

Department of Labor Schedule B (20 CFR part 656), or otherwise 

determined by the Department of Labor to be one for which there is an 

oversupply of qualified U.S. workers in the area of proposed employment. 

This Schedule B restriction does not apply to a dependent son or 

daughter who is a full-time student if the employment is part-time, 

consisting of not more than 20 hours per week, and/or if it is temporary 

employment of not more than 12 weeks during school holiday periods; and

    (E) The proposed employment is not contrary to the interest of the 

United States. Employment contrary to the interest of the United States 

includes, but is not limited to, the employment of A-1 or A-2 

dependents: who have criminal records; who have violated United States 

immigration laws or regulations, or visa laws or regulations; who have 

worked illegally in the United States; and/or who cannot establish that 

they have paid taxes and social security on income from current or 

previous United States employment.

    (6) Application procedures. The following procedures are applicable 

to dependent employment applications under bilateral agreements and de 

facto arrangements:



[[Page 237]]



    (i) The dependent must submit a completed Form I-566 to the 

Department of State through the office, mission, or organization which 

employs his/her principal alien. A dependent applying under paragraph 

(a)(2)(iii) or (iv) of this section must submit a certified statement 

from the post-secondary educational institution confirming that he/she 

is pursuing studies on a full-time basis. A dependent applying under 

paragraph (a)(2)(v) of this section must submit medical certification 

regarding his/her condition. The certification should identify the 

dependent and the certifying physician and give the physician's phone 

number; identify the condition, describe the symptoms and provide a 

prognosis; and certify that the dependent is unable to maintain a home 

of his or her own. Additionally, a dependent applying under the terms of 

a de facto arrangement must attach a statement from the prospective 

employer which includes the dependent's name; a description of the 

position offered and the duties to be performed; the salary offered; and 

verification that the dependent possesses the qualifications for the 

position.

    (ii) The Department of State reviews and verifies the information 

provided, makes its determination, and endorses the Form I-566.

    (iii) If the Department of State's endorsement is favorable, the 

dependent may apply to the Service. A dependent whose principal alien is 

stationed at a post in Washington, DC, or New York City shall apply to 

the District Director, Washington, DC, or New York City, respectively. A 

dependent whose principal alien is stationed elsewhere shall apply to 

the District Director, Washington, DC, unless the Service, through the 

Department of State, directs the dependent to apply to the district 

director having jurisdiction over his or her place of residence. 

Directors of the regional service centers may have concurrent 

adjudicative authority for applications filed within their respective 

regions. When applying to the Service, the dependent must present his or 

her Form I-566 with a favorable endorsement from the Department of State 

and any additional documentation as may be required by the Attorney 

General.

    (7) Period of time for which employment may be authorized. If 

approved, an application to accept or continue employment under this 

section shall be granted in increments of not more than three years 

each.

    (8) No appeal. There shall be no appeal from a denial of permission 

to accept or continue employment under this section.

    (9) Dependents or family members of principal aliens classified A-3. 

A dependent or family member of a principal alien classified A-3 may not 

be employed in the United States under this section.

    (10) Unauthorized employment. An alien classified under section 

101(a)(15)(A) of the Act who is not a principal alien and who engages in 

employment outside the scope of, or in a manner contrary to this 

section, may be considered in violation of section 241(a)(1)(C)(i) of 

the Act. An alien who is classified under section 101(a)(15)(A) of the 

Act who is a principal alien and who engages in employment outside the 

scope of his/her official position may be considered in violation of 

section 241(a)(1)(C)(i) of the Act.

    (b) Visitors--(1) General. Any B-1 visitor for business or B-2 

visitor for pleasure may be admitted for not more than one year and may 

be granted extensions of temporary stay in increments of not more than 

six months each, except that alien members of a religious denomination 

coming temporarily and solely to do missionary work in behalf of a 

religious denomination may be granted extensions of not more than one 

year each, provided that such work does not involve the selling of 

articles or the solicitation or acceptance of donations. Those B-1 and 

B-2 visitors admitted pursuant to the waiver provided at Sec. 212.1(e) 

of this chapter may be admitted to and stay on Guam for period not to 

exceed fifteen days and are not eligible for extensions of stay.

    (2) Minimum six month admissions. Any B-2 visitor who is found 

otherwise admissible and is issued a Form I-94, will be admitted for a 

minimum period of six months, regardless of whether less time is 

requested, provided, that any



[[Page 238]]



required passport is valid as specified in section 212(a)(26) of the 

Act. Exceptions to the minimum six month admission may be made only in 

individual cases upon the specific approval of the district director for 

good cause.

    (3) Visa Waiver Pilot Program. Special requirements for admission 

and maintenance of status for visitors admitted to the United States 

under the Visa Waiver Pilot Program are set forth in section 217 of the 

Act and part 217 of this chapter.

    (4) Admission of aliens pursuant to the North American Free Trade 

Agreement (NAFTA). A citizen of Canada or Mexico seeking temporary entry 

for purposes set forth in paragraph (b)(4)(i) of this section, who 

otherwise meets existing requirements under section 101(a)(15)(B) of the 

Act, including but not limited to requirements regarding the source of 

remuneration, shall be admitted upon presentation of proof of such 

citizenship in the case of Canadian applicants, and valid, unexpired 

entry documents such as a passport and visa, or a passport and BCC in 

the case of Mexican applicants, a description of the purpose for which 

the alien is seeking admission, and evidence demonstrating that he or 

she is engaged in one of the occupations or professions set forth in 

paragraph (b)(4)(i) of this section. Existing requirements, with respect 

to Canada, are those requirements which were in effect at the time of 

entry into force of the Canada/U.S. Free Trade Agreement and, with 

respect to Mexico, are those requirements which were in effect at the 

time of entry into force of the NAFTA. Additionally, nothing shall 

preclude the admission of a citizen of Mexico or Canada who meets the 

requirements of paragraph (b)(4)(ii) of this section.

    (i) Occupations and professions set forth in Appendix 1603.A.1 to 

Annex 1603 of the NAFTA--(A) Research and design. Technical scientific 

and statistical researchers conducting independent research or research 

for an enterprise located in the territory of another Party.

    (B) Growth, manufacture and production (1) Harvester owner 

supervising a harvesting crew admitted under applicable law. (Applies 

only to harvesting of agricultural crops: Grain, fiber, fruit and 

vegetables.)

    (2) Purchasing and production management personnel conducting 

commercial transactions for an enterprise located in the territory of 

another Party.

    (C) Marketing. (1) Market researchers and analyst conducting 

independent research or analysis, or research or analysis for an 

enterprise located in the territory of another Party.

    (2) Trade fair and promotional personnel attending a trade 

convention.

    (D) Sales. (1) Sales representatives and agents taking orders or 

negotiating contracts for goods or services for an enterprise located in 

the territory of another Party but not delivering goods or providing 

services.

    (2) Buyers purchasing for an enterprise located in the territory of 

another Party.

    (E) Distribution. (1) Transportation operators transporting goods or 

passengers to the United States from the territory of another Party or 

loading and transporting goods or passengers from the United States to 

the territory of another Party, with no unloading in the United States, 

to the territory of another Party. (These operators may make deliveries 

in the United States if all goods or passengers to be delivered were 

loaded in the territory of another Party. Furthermore, they may load 

from locations in the United States if all goods or passengers to be 

loaded will be delivered in the territory of another Party. Purely 

domestic service or solicitation, in competition with the United States 

operators, is not permitted.)

    (2) Customs brokers performing brokerage duties associated with the 

export of goods from the United States to or through Canada.

    (F) After-sales service. Installers, repair and maintenance 

personnel, and supervisors, possessing specialized knowledge essential 

to the seller's contractual obligation, performing services or training 

workers to perform services, pursuant to a warranty or other service 

contract incidental to the sale of commercial or industrial equipment or 

machinery, including computer software, purchased from an enterprise 

located outside the United States, during the life of the warranty or 

service agreement. (For the purposes



[[Page 239]]



of this provision, the commercial or industrial equipment or machinery, 

including computer software, must have been manufactured outside the 

United States.)

    (G) General service. (1) Professionals engaging in a business 

activity at a professional level in a profession set out in Appendix 

1603.D.1 to Annex 1603 of the NAFTA, but receiving no salary or other 

remuneration from a United States source (other than an expense 

allowance or other reimbursement for expenses incidental to the 

temporary stay) and otherwise satisfying the requirements of Section A 

to Annex 1063 of the NAFTA.

    (2) Management and supervisory personnel engaging in commercial 

transactions for an enterprise located in the territory of another 

Party.

    (3) Financial services personnel (insurers, bankers or investment 

brokers) engaging in commercial transactions for an enterprise located 

in the territory of another Party.

    (4) Public relations and advertising personnel consulting with 

business associates, or attending or participating in conventions.

    (5) Tourism personnel (tour and travel agents, tour guides or tour 

operators) attending or participating in conventions or conducting a 

tour that has begun in the territory of another Party. (The tour may 

begin in the United States; but must terminate in foreign territory, and 

a significant portion of the tour must be conducted in foreign 

territory. In such a case, an operator may enter the United States with 

an empty conveyance and a tour guide may enter on his or her own and 

join the conveyance.)

    (6) Tour bus operators entering the United States:

    (i) With a group of passengers on a bus tour that has begun in, and 

will return to, the territory of another Party.

    (ii) To meet a group of passengers on a bus tour that will end, and 

the predominant portion of which will take place, in the territory of 

another Party.

    (iii) With a group of passengers on a bus tour to be unloaded in the 

United States and returning with no passengers or reloading with the 

group for transportation to the territory of another Party.

    (7) Translators or interpreters performing services as employees of 

an enterprise located in the territory of another Party.

    (ii) Occupations and professions not listed in Appendix 1603.A.1 to 

Annex 1603 of the NAFTA. Nothing in this paragraph shall preclude a 

business person engaged in an occupation or profession other than those 

listed in Appendix 1603.A.1 to Annex 1603 of the NAFTA from temporary 

entry under section 101(a)(15)(B) of the Act, if such person otherwise 

meets the existing requirements for admission as prescribed by the 

Attorney General.

    (5) Construction workers not admissible. Aliens seeking to enter the 

country to perform building or construction work, whether on-site or in-

plant, are not eligible for classification or admission as B-1 

nonimmigrants under section 101(a)(15)(B) of the Act. However, alien 

nonimmigrants otherwise qualified as B-1 nonimmigrants may be issued 

visas and may enter for the purpose of supervision or training of others 

engaged in building or construction work, but not for the purpose of 

actually performing any such building or construction work themselves.

    (6) [Reserved]

    (7) Enrollment in a course of study prohibited. An alien who is 

admitted as, or changes status to, a B-1 or B-2 nonimmigrant on or after 

April 12, 2002, or who files a request to extend the period of 

authorized stay in B-1 or B-2 nonimmigrant status on or after such date, 

violates the conditions of his or her B-1 or B-2 status if the alien 

enrolls in a course of study. Such an alien who desires to enroll in a 

course of study must either obtain an F-1 or M-1 nonimmigrant visa from 

a consular officer abroad and seek readmission to the United States, or 

apply for and obtain a change of status under section 248 of the Act and 

8 CFR part 248. The alien may not enroll in the course of study until 

the Service has admitted the alien as an F-1 or M-1 nonimmigrant or has 

approved the alien's application under part 248 of this chapter and 

changed the alien's status to that of an F-1 or M-1 nonimmigrant.

    (c) Transits.



[[Page 240]]



    (1) [Reserved]

    (2) United Nations Headquarters District. An alien of the class 

defined in section 101(a)(15)(C) of the Act, whose visa is limited to 

transit to and from the United Nations Headquarters District, if 

otherwise admissible, shall be admitted on the additional conditions 

that he proceed directly to the immediate vicinity of the United Nations 

Headquarters District, and remain there continuously, departing 

therefrom only if required in connection with his departure from the 

United States, and that he have a document establishing his ability to 

enter some country other than the United States following his sojourn in 

the United Nations Headquarters District. The immediate vicinity of the 

United Nations Headquarters District is that area lying within a twenty-

five mile radius of Columbus Circle, New York, NY.

    (3) Others. The period of admission of an alien admitted under 

section 101(a)(15)(C) of the Act shall not exceed 29 days.

    (d) Crewmen. (1) The provisions of parts 251, 252, 253, and 258 of 

this chapter shall govern the landing of crewmen as nonimmigrants of the 

class defined in section 101(a)(15)(D) of the Act. An alien in this 

status may be employed only in a crewman capacity on the vessel or 

aircraft of arrival, or on a vessel or aircraft of the same 

transportation company, and may not be employed in connection with 

domestic flights or movements of a vessel or aircraft. However, 

nonimmigrant crewmen may perform crewmember duties through stopovers on 

an international flight for any United States carrier where such flight 

uses a single aircraft and has an origination or destination point 

outside the United States.

    (2) Denial of crewman status in the case of certain labor disputes 

(D nonimmigrants). (i) An alien shall be denied D crewman status as 

described in section 101(a)(15)(D) of the Act if:

    (A) The alien intends to land for the purpose of performing service 

on a vessel of the United States (as defined in 46 U.S.C. 2101(46)) or 

an aircraft of an air carrier (as defined in section 101(3) of the 

Federal Aviation Act of 1958); and

    (B) A labor dispute consisting of a strike or lockout exists in the 

bargaining unit of the employer in which the alien intends to perform 

such service; and

    (C) The alien is not already an employee of the company (as 

described in paragraph (d)(2)(iv) of this section).

    (ii) Refusal to land. Any alien (except a qualified current employee 

as described in paragraph (d)(2)(iv) of this section) who the examining 

immigration officer determines has arrived in the United States for the 

purpose of performing service on board a vessel or an aircraft of the 

United States when a strike or lockout is under way in the bargaining 

unit of the employer, shall be refused a conditional landing permit 

under section 252 of the Act.

    (iii) Ineligibility for parole. An alien described in paragraph 

(d)(2)(i) of this section may not be paroled into the United States 

under section 212(d)(5) of the Act for the purpose of performing 

crewmember duties unless the Attorney General determines that the parole 

of such alien is necessary to protect the national security of the 

United States. This paragraph does not prohibit the granting of parole 

for other purposes, such as medical emergencies.

    (iv) Qualified current employees. (A) Paragraphs (d)(2)(i), 

(d)(2)(ii), and (d)(2)(iii) of this section do not apply to an alien who 

is already an employee of the owner or operator of the vessel or air 

carrier and who at the time of inspection presents true copies of 

employer work records which satisfy the examining immigration officer 

that the alien:

    (1) Has been an employee of such employer for a period of not less 

than one year preceding the date that a strike or lawful lockout 

commenced;

    (2) Has served as a qualified crewman for such employer at least 

once in three different months during the 12-month period preceding the 

date that the strike or lockout commenced; and

    (3) Shall continue to provide the same crewman services that he or 

she previously provided to the employer.

    (B) An alien crewman who qualifies as a current employee under this 

paragraph remains subject to the restrictions on his or her employment 

in the



[[Page 241]]



United States contained in paragraph (d)(1) of this section.

    (v) Strike or lockout determination. These provisions will take 

effect if the Attorney General, through the Commissioner of the 

Immigration and Naturalization Service or his or her designee, after 

consultation with the National Mediation Board, determines that a 

strike, lockout, or labor dispute involving a work stoppage is in 

progress in the bargaining unit of the employer for whom the alien 

intends to perform such service.

    (e) Treaty traders and investors--(1) Treaty trader. An alien, if 

otherwise admissible, may be classified as a nonimmigrant treaty trader 

(E-1) under the provisions of section 101(a)(15)(E)(i) of the Act if the 

alien:

    (i) Will be in the United States solely to carry on trade of a 

substantial nature, which is international in scope, either on the 

alien's behalf or as an employee of a foreign person or organization 

engaged in trade principally between the United States and the treaty 

country of which the alien is a national, taking into consideration any 

conditions in the country of which the alien is a national which may 

affect the alien's ability to carry on such substantial trade; and

    (ii) Intends to depart the United States upon the expiration or 

termination of treaty trader (E-1) status.

    (2) Treaty investor. An alien, if otherwise admissible, may be 

classified as a nonimmigrant treaty investor (E-2) under the provision 

of section 101(a)(15)(E)(ii) of the Act if the alien:

    (i) Has invested or is actively in the process of investing a 

substantial amount of capital in a bona fide enterprise in the United 

States, as distinct from a relatively small amount of capital in a 

marginal enterprise solely for the purpose of earning a living;

    (ii) Is seeking entry solely to develop and direct the enterprise; 

and

    (iii) Intends to depart the United States upon the expiration or 

termination of treaty investor (E-2) status.

    (3) Employee of treaty trader or treaty investor. An alien employee 

of a treaty trader, if otherwise admissible, may be classified as E-1, 

and an alien employee of a treaty investor, if otherwise admissible, may 

be classified as E-2 if the employee is in or is coming to the United 

States to engage in duties of an executive or supervisory character, or, 

if employed in a lesser capacity, the employee has special 

qualifications that make the alien's services essential to the efficient 

operation of the enterprise. The employee must have the same nationality 

as the principal alien employer. In addition, the employee must intend 

to depart the United States upon the expiration or termination of E-1 or 

E-2 status. The principal alien employer must be:

    (i) A person in the United States having the nationality of the 

treaty country and maintaining nonimmigrant treaty trader or treaty 

investor status or, if not in the United States, would be classifiable 

as a treaty trader or treaty investor; or

    (ii) An enterprise or organization at least 50 percent owned by 

persons in the United States having the nationality of the treaty 

country and maintaining nonimmigrant treaty trader or treaty investor 

status or who, if not in the United States, would be classifiable as 

treaty traders or treaty investors.

    (4) Spouse and children of treaty trader or treaty investor. The 

spouse and child of a treaty trader or treaty investor accompanying or 

following to join the principal alien, if otherwise admissible, may 

receive the same classification as the principal alien. The nationality 

of a spouse or child of a treaty trader or treaty investor is not 

material to the classification of the spouse or child under the 

provisions of section 101(a)(15)(E) of the Act.

    (5) Nonimmigrant intent. An alien classified under section 

101(a)(15)(E) of the Act shall maintain an intention to depart the 

United States upon the expiration or termination of E-1 or E-2 status. 

However, an application for initial admission, change of status, or 

extension of stay in E classification may not be denied solely on the 

basis of an approved request for permanent labor certification or a 

filed or approved immigrant visa preference petition.

    (6) Treaty country. A treaty country is, for purposes of this 

section, a foreign state with which a qualifying Treaty of Friendship, 

Commerce, or Navigation or its equivalent exists



[[Page 242]]



with the United States. A treaty country includes a foreign state that 

is accorded treaty visa privileges under section 101(a)(15)(E) of the 

Act by specific legislation.

    (7) Treaty country nationality. The nationality of an individual 

treaty trader or treaty investor is determined by the authorities of the 

foreign state of which the alien is a national. In the case of an 

enterprise or organization, ownership must be traced as best as is 

practicable to the individuals who are ultimately its owners.

    (8) Terms and conditions of E treaty status--(i) Limitations on 

employment. The Service determines the terms and conditions of E treaty 

status at the time of admission or approval of a request to change 

nonimmigrant status to E classification. A treaty trader, treaty 

investor, or treaty employee may engage only in employment which is 

consistent with the terms and conditions of his or her status and the 

activity forming the basis for the E treaty status.

    (ii) Subsidiary employment. Treaty employees may perform work for 

the parent treaty organization or enterprise, or any subsidiary of the 

parent organization or enterprise. Performing work for subsidiaries of a 

common parent enterprise or organization will not be deemed to 

constitute a substantive change in the terms and conditions of the 

underlying E treaty employment if, at the time the E treaty status was 

determined, the applicant presented evidence establishing:

    (A) The enterprise or organization, and any subsidiaries thereof, 

where the work will be performed; the requisite parent-subsidiary 

relationship; and that the subsidiary independently qualifies as a 

treaty organization or enterprise under this paragraph;

    (B) In the case of an employee of a treaty trader or treaty 

investor, the work to be performed requires executive, supervisory, or 

essential skills; and

    (C) The work is consistent with the terms and conditions of the 

activity forming the basis of the classification.

    (iii) Substantive changes. Prior Service approval must be obtained 

where there will be a substantive change in the terms or conditions of E 

status. In such cases, a treaty alien must file a new application on 

Form I-129 and E supplement, in accordance with the instructions on that 

form, requesting extension of stay in the United States. In support of 

an alien's Form I-129 application, the treaty alien must submit evidence 

of continued eligibility for E classification in the new capacity. 

Alternatively, the alien must obtain from a consular officer a visa 

reflecting the new terms and conditions and subsequently apply for 

admission at a port-of-entry. The Service will deem there to have been a 

substantive change necessitating the filing of a new Form I-129 

application in cases where there has been a fundamental change in the 

employing entity's basic characteristics, such as a merger, acquisition, 

or sale of the division where the alien is employed.

    (iv) Non-substantive changes. Prior approval is not required, and 

there is no need to file a new Form I-129, if there is no substantive, 

or fundamental, change in the terms or conditions of the alien's 

employment which would affect the alien's eligibility for E 

classification. Further, prior approval is not required if corporate 

changes occur which do not affect the previously approved employment 

relationship, or are otherwise non-substantive. To facilitate admission, 

the alien may:

    (A) Present a letter from the treaty-qualifying company through 

which the alien attained E classification explaining the nature of the 

change;

    (B) Request a new Form I-797, Approval Notice, reflecting the non-

substantive change by filing with the appropriate Service Center Form I-

129, with fee, and a complete description of the change, or;

    (C) Apply directly to State for a new E visa reflecting the change. 

An alien who does not elect one of the three options contained in 

paragraph (e)(8)(iv) (A) through (C) of this section, is not precluded 

from demonstrating to the satisfaction of the immigration officer at the 

port-of-entry in some other manner, his or her admissibility under 

section 101(a)(15)(E) of the Act.

    (v) Advice. To ascertain whether a change is substantive, an alien 

may file with the Service Center Form I-129, with fee, and a complete 

description of



[[Page 243]]



the change, to request appropriate advice. In cases involving multiple 

employees, an alien may request that a Service Center determine if a 

merger or other corporate restructuring requires the filing of separate 

applications by filing a single Form I-129, with fee, and attaching a 

list of the related receipt numbers for the employees involved and an 

explanation of the change or changes. Where employees are located within 

multiple jurisdictions, such a request for advice must be filed with the 

Service Center in Lincoln, Nebraska.

    (vi) Approval. If an application to change the terms and conditions 

of E status or employment is approved, the Service shall notify the 

applicant on Form I-797. An extension of stay in nonimmigrant E 

classification may be granted for the validity of the approved 

application. The alien is not authorized to begin the new employment 

until the application is approved. Employment is authorized only for the 

period of time the alien remains in the United States. If the alien 

subsequently departs from the United States, readmission in E 

classification may be authorized where the alien presents his or her 

unexpired E visa together with the Form I-797, Approval Notice, 

indicating Service approval of a change of employer or of a change in 

the substantive terms or conditions of treaty status or employment in E 

classification, or, in accordance with 22 CFR 41.112(d), where the alien 

is applying for readmission after an absence not exceeding 30 days 

solely in contiguous territory.

    (vii) An unauthorized change of employment to a new employer will 

constitute a failure to maintain status within the meaning of section 

237(a)(1)(C)(i) of the Act. In all cases where the treaty employee will 

be providing services to a subsidiary under this paragraph, the 

subsidiary is required to comply with the terms of 8 CFR part 274a.

    (9) Trade--definitions. For purposes of this paragraph: Items of 

trade include but are not limited to goods, services, international 

banking, insurance, monies, transportation, communications, data 

processing, advertising, accounting, design and engineering, management 

consulting, tourism, technology and its transfer, and some news-

gathering activities. For purposes of this paragraph, goods are tangible 

commodities or merchandise having extrinsic value. Further, as used in 

this paragraph, services are legitimate economic activities which 

provide other than tangible goods.

    Trade is the existing international exchange of items of trade for 

consideration between the United States and the treaty country. Existing 

trade includes successfully negotiated contracts binding upon the 

parties which call for the immediate exchange of items of trade. 

Domestic trade or the development of domestic markets without 

international exchange does not constitute trade for purposes of section 

101(a)(15)(E) of the Act. This exchange must be traceable and 

identifiable. Title to the trade item must pass from one treaty party to 

the other.

    (10) Substantial trade. Substantial trade is an amount of trade 

sufficient to ensure a continuous flow of international trade items 

between the United States and the treaty country. This continuous flow 

contemplates numerous transactions over time. Treaty trader status may 

not be established or maintained on the basis of a single transaction, 

regardless of how protracted or monetarily valuable the transaction. 

Although the monetary value of the trade item being exchanged is a 

relevant consideration, greater weight will be given to more numerous 

exchanges of larger value. There is no minimum requirement with respect 

to the monetary value or volume of each individual transaction. In the 

case of smaller businesses, an income derived from the value of numerous 

transactions which is sufficient to support the treaty trader and his or 

her family constitutes a favorable factor in assessing the existence of 

substantial trade.

    (11) Principal trade. Principal trade between the United States and 

the treaty country exists when over 50 percent of the volume of 

international trade of the treaty trader is conducted between the United 

States and the treaty country of the treaty trader's nationality.



[[Page 244]]



    (12) Investment. An investment is the treaty investor's placing of 

capital, including funds and other assets (which have not been obtained, 

directly or indirectly, through criminal activity), at risk in the 

commercial sense with the objective of generating a profit. The treaty 

investor must be in possession of and have control over the capital 

invested or being invested. The capital must be subject to partial or 

total loss if investment fortunes reverse. Such investment capital must 

be the investor's unsecured personal business capital or capital secured 

by personal assets. Capital in the process of being invested or that has 

been invested must be irrevocably committed to the enterprise. The alien 

has the burden of establishing such irrevocable commitment. The alien 

may use any legal mechanism available, such as the placement of invested 

funds in escrow pending admission in, or approval of, E classification, 

that would not only irrevocably commit funds to the enterprise, but 

might also extend personal liability protection to the treaty investor 

in the event the application for E classification is denied.

    (13) Bona fide enterprise. The enterprise must be a real, active, 

and operating commercial or entrepreneurial undertaking which produces 

services or goods for profit. The enterprise must meet applicable legal 

requirements for doing business in the particular jurisdiction in the 

United States.

    (14) Substantial amount of capital. A substantial amount of capital 

constitutes an amount which is:

    (i) Substantial in relationship to the total cost of either 

purchasing an established enterprise or creating the type of enterprise 

under consideration;

    (ii) Sufficient to ensure the treaty investor's financial commitment 

to the successful operation of the enterprise; and

    (iii) Of a magnitude to support the likelihood that the treaty 

investor will successfully develop and direct the enterprise. Generally, 

the lower the cost of the enterprise, the higher, proportionately, the 

investment must be to be considered a substantial amount of capital.

    (15) Marginal enterprise. For purposes of this section, an 

enterprise may not be marginal. A marginal enterprise is an enterprise 

that does not have the present or future capacity to generate more than 

enough income to provide a minimal living for the treaty investor and 

his or her family. An enterprise that does not have the capacity to 

generate such income, but that has a present or future capacity to make 

a significant economic contribution is not a marginal enterprise. The 

projected future income-generating capacity should generally be 

realizable within 5 years from the date the alien commences the normal 

business activity of the enterprise.

    (16) Solely to develop and direct. An alien seeking classification 

as a treaty investor (or, in the case of an employee of a treaty 

investor, the owner of the treaty enterprise) must demonstrate that he 

or she does or will develop and direct the investment enterprise. Such 

an applicant must establish that he or she controls the enterprise by 

demonstrating ownership of at least 50 percent of the enterprise, by 

possessing operational control through a managerial position or other 

corporate device, or by other means.

    (17) Executive and supervisory character. The applicant's position 

must be principally and primarily, as opposed to incidentally or 

collaterally, executive or supervisory in nature. Executive and 

supervisory duties are those which provide the employee ultimate control 

and responsibility for the enterprise's overall operation or a major 

component thereof. In determining whether the applicant has established 

possession of the requisite control and responsibility, a Service 

officer shall consider, where applicable:

    (i) That an executive position is one which provides the employee 

with great authority to determine the policy of, and the direction for, 

the enterprise;

    (ii) That a position primarily of supervisory character provides the 

employee supervisory responsibility for a significant proportion of an 

enterprise's operations and does not generally involve the direct 

supervision of low-level employees, and;

    (iii) Whether the applicant possesses executive and supervisory 

skills and experience; a salary and position title



[[Page 245]]



commensurate with executive or supervisory employment; recognition or 

indicia of the position as one of authority and responsibility in the 

overall organizational structure; responsibility for making 

discretionary decisions, setting policies, directing and managing 

business operations, supervising other professional and supervisory 

personnel; and that, if the position requires some routine work usually 

performed by a staff employee, such functions may only be of an 

incidental nature.

    (18) Special qualifications. Special qualifications are those skills 

and/or aptitudes that an employee in a lesser capacity brings to a 

position or role that are essential to the successful or efficient 

operation of the treaty enterprise. In determining whether the skills 

possessed by the alien are essential to the operation of the employing 

treaty enterprise, a Service officer must consider, where applicable:

    (i) The degree of proven expertise of the alien in the area of 

operations involved; whether others possess the applicant's specific 

skill or aptitude; the length of the applicant's experience and/or 

training with the treaty enterprise; the period of training or other 

experience necessary to perform effectively the projected duties; the 

relationship of the skill or knowledge to the enterprise's specific 

processes or applications, and the salary the special qualifications can 

command; that knowledge of a foreign language and culture does not, by 

itself, meet the special qualifications requirement, and;

    (ii) Whether the skills and qualifications are readily available in 

the United States. In all cases, in determining whether the applicant 

possesses special qualifications which are essential to the treaty 

enterprise, a Service officer must take into account all the particular 

facts presented. A skill that is essential at one point in time may 

become commonplace at a later date. Skills that are needed to start up 

an enterprise may no longer be essential after initial operations are 

complete and running smoothly. Some skills are essential only in the 

short-term for the training of locally hired employees. Under certain 

circumstances, an applicant may be able to establish his or her 

essentiality to the treaty enterprise for a longer period of time, such 

as, in connection with activities in the areas of product improvement, 

quality control, or the provision of a service not yet generally 

available in the United States. Where the treaty enterprise's need for 

the applicant's special qualifications, and therefore, the applicant's 

essentiality, is time-limited, Service officers may request that the 

applicant provide evidence of the period for which skills will be needed 

and a reasonable projected date for completion of start-up or 

replacement of the essential skilled workers.

    (19) Period of admission. Periods of admission are as follows:

    (i) A treaty trader or treaty investor may be admitted for an 

initial period of not more than 2 years.

    (ii) The spouse and minor children accompanying or following to join 

a treaty trader or treaty investor shall be admitted for the period 

during which the principal alien is in valid treaty trader or investor 

status. The temporary departure from the United States of the principal 

trader or investor shall not affect the derivative status of the 

dependent spouse and minor unmarried children, provided the familial 

relationship continues to exist and the principal remains eligible for 

admission as an E nonimmigrant to perform the activity.

    (iii) Unless otherwise provided for in this chapter, an alien shall 

not be admitted in E classification for a period of time extending more 

than 6 months beyond the expiration date of the alien's passport.

    (20) Extensions of stay. Requests for extensions of stay may be 

granted in increments of not more than 2 years. A treaty trader or 

treaty investor in valid E status may apply for an extension of stay by 

filing an application for extension of stay on Form I-129 and E 

Supplement, with required accompanying documents, in accordance with 

Sec. 214.1 and the instructions on that form.

    (i) For purposes of eligibility for an extension of stay, the alien 

must prove that he or she:



[[Page 246]]



    (A) Has at all times maintained the terms and conditions of his or 

her E nonimmigrant classification;

    (B) Was physically present in the United States at the time of 

filing the application for extension of stay; and

    (C) Has not abandoned his or her extension request.

    (ii) With limited exceptions, it is presumed that employees of 

treaty enterprises with special qualifications who are responsible for 

start-up operations should be able to complete their objectives within 2 

years. Absent special circumstances, therefore, such employees will not 

be eligible to obtain an extension of stay.

    (iii) Subject to paragraph (e)(5) of this section and the 

presumption noted in paragraph (e)(22)(ii) of this section, there is no 

specified number of extensions of stay that a treaty trader or treaty 

investor may be granted.

    (21) Change of nonimigrant status. (i) An alien in another valid 

nonimmigrant status may apply for change of status to E classification 

by filing an application for change of status on Form I-129 and E 

Supplement, with required accompanying documents establishing 

eligibility for a change of status and E classification, in accordance 

with 8 CFR part 248 and the instructions on Form I-129 and E Supplement.

    (ii) The spouse or minor children of an applicant seeking a change 

of status to that of treaty trader or treaty investor alien shall file 

concurrent applications for change of status to derivative treaty 

classification on the appropriate Service form. Applications for 

derivative treaty status shall:

    (A) Be approved only if the principal treaty alien is granted treaty 

alien status and continues to maintain that status;

    (B) Be approved for the period of admission authorized in paragraph 

(e)(20) of this section.

    (22) Denial of treaty trader or treaty investor status to citizens 

of Canada or Mexico in the case of certain labor disputes. (i) A citizen 

of Canada or Mexico may be denied E treaty trader or treaty investor 

status as described in section 101(a)(15)(E) of the Act and section B of 

Annex 1603 of the NAFTA if:

    (A) The Secretary of Labor certifies to or otherwise informs the 

Commissioner that a strike or other labor dispute involving a work 

stoppage of workers in the alien's occupational classification is in 

progress at the place where the alien is or intends to be employed; and

    (B) Temporary entry of that alien may affect adversely either:

    (1) The settlement of any labor dispute that is in progress at the 

place or intended place of employment, or

    (2) The employment of any person who is involved in such dispute.

    (ii) If the alien has already commenced employment in the United 

States and is participating in a strike or other labor dispute involving 

a work stoppage of workers, whether or not such strike or other labor 

dispute has been certified by the Secretary of Labor, or whether the 

Service has been otherwise informed that such a strike or labor dispute 

is in progress, the alien shall not be deemed to be failing to maintain 

his or her status solely on account of past, present, or future 

participation in a strike or other labor dispute involving a work 

stoppage of workers, but is subject to the following terms and 

conditions:

    (A) The alien shall remain subject to all applicable provisions of 

the Immigration and Nationality Act, and regulations promulgated in the 

same manner as all other E nonimmigrants; and

    (B) The status and authorized period of stay of such an alien is not 

modified or extended in any way by virtue of his or her participation in 

a strike or other labor dispute involving a work stoppage of workers.

    (iii) Although participation by an E nonimmigrant alien in a strike 

or other labor dispute involving a work stoppage of workers will not 

constitute a ground for deportation, any alien who violates his or her 

status or who remains in the United States after his or her authorized 

period of stay has expired will be subject to deportation.

    (iv) If there is a strike or other labor dispute involving a work 

stoppage of workers in progress, but such strike or other labor dispute 

is not certified under paragraph (e)(22)(i) of this section, or the 

Service has not otherwise been informed by the Secretary that



[[Page 247]]



such a strike or labor dispute is in progress, the Commissioner shall 

not deny entry to an applicant for E status.

    (f) Students in colleges, universities, seminaries, conservatories, 

academic high schools, elementary schools, other academic institutions, 

and in language training programs--(1) Admission of student--(i) 

Eligibility for admission. A nonimmigrant student may be admitted into 

the United States in nonimmigrant status under section 101(a)(15)(F) of 

the Act, if:

    (A) The student presents a SEVIS Form I-20 issued in his or her own 

name by a school approved by the Service for attendance by F-1 foreign 

students. (In the alternative, for a student seeking admission prior to 

August 1, 2003, the student may present a currently-valid Form I-20A-B/

I-20ID, if that form was issued by the school prior to January 30, 

2003);

    (B) The student has documentary evidence of financial support in the 

amount indicated on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID);

    (C) For students seeking initial admission only, the student intends 

to attend the school specified in the student's visa (or, where the 

student is exempt from the requirement for a visa, the school indicated 

on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID)); and

    (D) In the case of a student who intends to study at a public 

secondary school, the student has demonstrated that he or she has 

reimbursed the local educational agency that administers the school for 

the full, unsubsidized per capita cost of providing education at the 

school for the period of the student's attendance.

    (ii) Disposition of Form I-20 A-B/I-20 ID. Form I-20 A-B/I-20 ID 

contains two copies, the I-20 School Copy and the I-20 ID (Student) 

Copy. For purposes of clarity, the entire Form I-20 A-B/I-20 ID shall be 

referred to as Form I-20 A-B and the I-20 ID (Student) Copy shall be 

referred to as the I-20 ID. When an F-1 student applies for admission 

with a complete Form I-20 A-B, the inspecting officer shall:

    (A) Transcribe the student's admission number from Form I-94 onto 

his or her Form I-20 A-B (for students seeking initial admission only);

    (B) Endorse all copies of the Form I-20 A-B;

    (C) Return the I-20 ID to the student; and

    (D) Forward the I-20 School Copy to the Service's processing center 

for data entry. (The school copy of Form I-20 A-B will be sent back to 

the school as a notice of the student's admission after data entry.)

    (iii) Use of SEVIS. On January 30, 2003, the use of the Student and 

Exchange Visitor Information System (SEVIS) will become mandatory for 

the issuance of any new Form I-20. A student or dependent who presents a 

non-SEVIS Form I-20 issued on or after January 30, 2003, will not be 

accepted for admission to the United States. Non-SEVIS Forms I-20 issued 

prior to January 30, 2003, will continue to be acceptable until August 

1, 2003. However, schools must issue a SEVIS Form I-20 to any current 

student requiring a reportable action (e.g., extension of status, 

practical training, and requests for employment authorization) or a new 

Form I-20, or for any aliens who must obtain a new nonimmigrant student 

visa. As of August 1, 2003, the records of all current or continuing 

students must be entered in SEVIS.

    (2) I-20 ID. An F-1 student is expected to safekeep the initial I-20 

ID bearing the admission number and any subsequent copies which have 

been issued to him or her. Should the student lose his or her current I-

20 ID, a replacement copy bearing the same information as the lost copy, 

including any endorsement for employment and notations, may be issued by 

the designated school official (DSO) as defined in 8 CFR 214.3(l)(1)(i).

    (3) Admission of the spouse and minor children of an F-1 student. 

The spouse and minor children accompanying an F-1 student are eligible 

for admission in F-2 status if the student is admitted in F-1 status. 

The spouse and minor children following-to-join an F-1 student are 

eligible for admission to the United States in F-2 status if they are 

able to demonstrate that the F-1 student has been admitted and is, or 

will be within 30 days, enrolled in a full course of study, or engaged 

in approved practical training following completion of studies. In 

either case, at the time



[[Page 248]]



they seek admission, the eligible spouse and minor children of an F-1 

student with a SEVIS Form I-20 must individually present an original 

SEVIS Form I-20 issued in the name of each F-2 dependent issued by a 

school authorized by the Service for attendance by F-1 foreign students. 

Prior to August 1, 2003, if exigent circumstances are demonstrated, the 

Service will allow the dependent of an F-1 student in possession of a 

SEVIS Form I-20 to enter the United States using a copy of the F-1 

student's SEVIS Form I-20. (In the alternative, for dependents seeking 

admission to the United States prior to August 1, 2003, a copy of the F-

1 student's current Form I-20ID issued prior to January 30, 2003, with 

proper endorsement by the DSO will satisfy this requirement.) A new 

SEVIS Form I-20 (or Form I-20A-B) is required for a dependent where 

there has been any substantive change in the F-1 student's current 

information.

    (4) Temporary absence. An F-1 student returning to the United States 

from a temporary absence of five months or less may be readmitted for 

attendance at a Service-approved educational institution, if the student 

presents:

    (i) A current SEVIS Form I-20 (or, for readmission prior to August 

1, 2003, a current Form I-20ID which was issued prior to January 30, 

2003), properly endorsed by the DSO for reentry if there has been no 

substantive change to the most recent Form I-20 information; or

    (ii) A new SEVIS Form I-20 (or, for readmission prior to August 1, 

2003, a new Form I-20ID which was issued prior to January 30, 2003), if 

there has been a substantive change in the information on the student's 

most recent Form I-20 information, such as in the case of a student who 

has changed the major area of study, who intends to transfer to another 

Service approved institution or who has advanced to a higher level of 

study.

    (5) Duration of status--(i) General. Except for border commuter 

students covered by the provisions of paragraph (f)(18) of this section, 

an F-1 student is admitted for duration of status. Duration of status is 

defined as the time during which an F-1 student is pursuing a full 

course of study at an educational institution approved by the Service 

for attendance by foreign students, or engaging in authorized practical 

training following completion of studies, except that an F-1 student who 

is admitted to attend a public high school is restricted to an aggregate 

of 12 months of study at any public high school(s). An F-1 student may 

be admitted for a period up to 30 days before the indicated report date 

or program start date listed on Form I-20. The student is considered to 

be maintaining status if he or she is making normal progress toward 

completing a course of study.

    (ii) Change in educational levels. An F-1 student who continues from 

one educational level to another is considered to be maintaining status, 

provided that the transition to the new educational level is 

accomplished according to transfer procedures outlined in paragraph 

(f)(8) of this section.

    (iii) Annual vacation. An F-1 student at an academic institution is 

considered to be in status during the annual (or summer) vacation if the 

student is eligible and intends to register for the next term. A student 

attending a school on a quarter or trimester calendar who takes only one 

vacation a year during any one of the quarters or trimesters instead of 

during the summer is considered to be in status during that vacation, if 

the student has completed the equivalent of an academic year prior to 

taking the vacation.

    (iv) Preparation for departure. An F-1 student who has completed a 

course of study and any authorized practical training following 

completion of studies will be allowed an additional 60-day period to 

prepare for departure from the United States or to transfer in 

accordance with paragraph (f)(8) of this section. An F-1 student 

authorized by the DSO to withdraw from classes will be allowed a 15-day 

period for departure from the United States. However, an F-1 student who 

fails to maintain a full course of study without the approval of the DSO 

or otherwise fails to maintain status is not eligible for an additional 

period for departure.

    (v) Emergent circumstances as determined by the Commissioner. Where 

the



[[Page 249]]



Commissioner has suspended the applicability of any or all of the 

requirements for on-campus or off-campus employment authorization for 

specified students pursuant to paragraphs (f)(9)(i) or (f)(9)(ii) of 

this section by notice in the Federal Register, an affected student who 

needs to reduce his or her full course of study as a result of accepting 

employment authorized by such notice in the Federal Register will be 

considered to be in status during the authorized employment, subject to 

any other conditions specified in the notice, provided that, for the 

duration of the authorized employment, the student is registered for the 

number of semester or quarter hours of instruction per academic term 

specified in the notice, which in no event shall be less than 6 semester 

or quarter hours of instruction per academic term if the student is at 

the undergraduate level or less than 3 semester or quarter hours of 

instruction per academic term if the student is at the graduate level, 

and is continuing to make progress toward completing the course of 

study.

    (vi) Extension of duration of status. The Commissioner may, by 

notice in the Federal Register, at any time she determines that the H-1B 

numerical limitation as described in section 214(g)(1)(A) of the Act 

will likely be reached prior to the end of a current fiscal year, extend 

for such a period of time as the Commissioner deems necessary to 

complete the adjudication of the H-1B application, the duration of 

status of any F-1 student on behalf of whom an employer has timely filed 

an application for change of status to H-1B. The alien, according to 8 

CFR part 248, must not have violated the terms of his or her 

nonimmigrant stay in order to obtain this extension of stay. An F-1 

student whose duration of status has been so extended shall be 

considered to be maintaining lawful nonimmigrant status for all purposes 

under the Act, provided that the alien does not violate the terms and 

conditions of his or her F nonimmigrant stay. An extension made under 

this paragraph applies to the F-2 dependent aliens.

    (6) Full course of study--(i) General. Successful completion of the 

full course of study must lead to the attainment of a specific 

educational or professional objective. A course of study at an 

institution not approved for attendance by foreign students as provided 

in Sec. 214.3(a)(3) does not satisfy this requirement. A ``full course 

of study'' as required by section 101(a)(15)(F)(i) of the Act means:

    (A) Postgraduate study or postdoctoral study at a college or 

university, or undergraduate or postgraduate study at a conservatory or 

religious seminary, certified by a DSO as a full course of study;

    (B) Undergraduate study at a college or university, certified by a 

school official to consist of at least twelve semester or quarter hours 

of instruction per academic term in those institutions using standard 

semester, trimester, or quarter hour systems, where all undergraduate 

students who are enrolled for a minimum of twelve semester or quarter 

hours are charged full-time tuition or are considered full-time for 

other administrative purposes, or its equivalent (as determined by the 

district director in the school approval process), except when the 

student needs a lesser course load to complete the course of study 

during the current term;

    (C) Study in a postsecondary language, liberal arts, fine arts, or 

other non-vocational program at a school which confers upon its 

graduates recognized associate or other degrees or has established that 

its credits have been and are accepted unconditionally by at least three 

institutions of higher learning which are either: (1) A school (or 

school system) owned and operated as a public educational institution by 

the United States or a State or political subdivision thereof; or (2) a 

school accredited by a nationally recognized accrediting body; and which 

has been certified by a designated school official to consist of at 

least twelve clock hours of instruction a week, or its equivalent as 

determined by the district director in the school approval process;

    (D) Study in any other language, liberal arts, fine arts, or other 

nonvocational training program, certified by a designated school 

official to consist of at least eighteen clock hours of attendance a 

week if the dominant part of the course of study consists of classroom 

instruction, or to consist of at least



[[Page 250]]



twenty-two clock hours a week if the dominant part of the course of 

study consists of laboratory work; or

    (E) Study in a curriculum at an approved private elementary or 

middle school or public or private academic high school which is 

certified by a designated school official to consist of class attendance 

for not less than the minimum number of hours a week prescribed by the 

school for normal progress toward graduation.

    (F) Notwithstanding paragraphs (f)(6)(i)(A) and (f)(6)(i)(B) of this 

section, an alien who has been granted employment authorization pursuant 

to the terms of a document issued by the Commissioner under paragraphs 

(f)(9)(i) or (f)(9)(ii) of this section and published in the Federal 

Register shall be deemed to be engaged in a ``full course of study'' if 

he or she remains registered for no less than the number of semester or 

quarter hours of instruction per academic term specified by the 

Commissioner in the notice for the validity period of such employment 

authorization.

    (G) For F-1 students enrolled in classes for credit or classroom 

hours, no more than the equivalent of one class or three credits per 

session, term, semester, trimester, or quarter may be counted toward the 

full course of study requirement if the class is taken on-line or 

through distance education and does not require the student's physical 

attendance for classes, examination or other purposes integral to 

completion of the class. An on-line or distance education course is a 

course that is offered principally through the use of television, audio, 

or computer transmission including open broadcast, closed circuit, 

cable, microwave, or satellite, audio conferencing, or computer 

conferencing. If the F-1 student's course of study is in a language 

study program, no on-line or distance education classes may be 

considered to count toward a student's full course of study requirement.

    (H) On-campus employment pursuant to the terms of a scholarship, 

fellowship, or assistantship is deemed to be part of the academic 

program of a student otherwise taking a full course of study.

    (ii) Institution of higher learning. For purposes of this paragraph, 

a college or university is an institution of higher learning which 

awards recognized associate, bachelor's, master's, doctorate, or 

professional degrees. Schools which devote themselves exclusively or 

primarily to vocational, business, or language instruction are not 

included in the category of colleges or universities. Vocational or 

business schools which are classifiable as M-1 schools are provided for 

by regulations under 8 CFR 214.2(m).

    (iii) Reduced course load. The designated school official may allow 

an F-1 student to engage in less than a full course of study as provided 

in this paragraph (f)(6)(iii). Except as otherwise noted, a reduced 

course load must consist of at least six semester or quarter hours, or 

half the clock hours required for a full course of study. A student who 

drops below a full course of study without the prior approval of the DSO 

will be considered out of status. On-campus employment pursuant to the 

terms of a scholarship, fellowship, or assistantship is deemed to be 

part of the academic program of a student otherwise taking a full course 

of study.

    (A) Academic difficulties. The DSO may authorize a reduced course 

load on account of a student's initial difficulty with the English 

language or reading requirements, unfamiliarity with U.S. teaching 

methods, or improper course level placement. The student must resume a 

full course of study at the next available term, session, or semester, 

excluding a summer session, in order to maintain student status. A 

student previously authorized to drop below a full course of study due 

to academic difficulties is not eligible for a second authorization by 

the DSO due to academic difficulties while pursuing a course of study at 

that program level. A student authorized to drop below a full course of 

study for academic difficulties while pursuing a course of study at a 

particular program level may still be authorized for a reduced course 

load due to an illness medical condition as provided for in paragraph 

(B) of this section.

    (B) Medical conditions. The DSO may authorize a reduced course load 

(or, if



[[Page 251]]



necessary, no course load) due to a student's temporary illness or 

medical condition for a period of time not to exceed an aggregate of 12 

months while the student is pursuing a course of study at a particular 

program level. In order to authorize a reduced course load based upon a 

medical condition, the student must provide medical documentation from a 

licensed medical doctor, doctor of osteopathy, or licensed clinical 

psychologist, to the DSO to substantiate the illness or medical 

condition. The student must provide current medical documentation and 

the DSO must reauthorize the drop below full course of study each new 

term, session, or semester. A student previously authorized to drop 

below a full course of study due to illness or medical condition for an 

aggregate of 12 months may not be authorized by a DSO to reduce his or 

her course load on subsequent occasions while pursuing a course of study 

at the same program level. A student may be authorized to reduce course 

load for a reason of illness or medical condition on more than one 

occasion while pursuing a course of study, so long as the aggregate 

period of that authorization does not exceed 12 months.

    (C) Completion of course of study. The DSO may authorize a reduced 

course load in the student's final term, semester, or session if fewer 

courses are needed to complete the course of study. If the student is 

not required to take any additional courses to satisfy the requirements 

for completion, but continues to be enrolled for administrative 

purposes, the student is considered to have completed the course of 

study and must take action to maintain status. Such action may include 

application for change of status or departure from the U.S.

    (D) Reporting requirements for non-SEVIS schools. A DSO must report 

to the Service any student who is authorized to reduce his or her course 

load. Within 21 days of the authorization, the DSO must send a photocopy 

of the student's current Form I-20ID along with Form I-538 to Service's 

data processing center indicating the date and reason that the student 

was authorized to drop below full time status. Similarly, the DSO will 

report to the Service no more than 21 days after the student has resumed 

a full course of study by submitting a current copy of the students' 

Form I-20ID to the Service's data processing center indicating the date 

a full course of study was resumed and the new program end date with 

Form I-538, if applicable.

    (E) SEVIS reporting requirements. In order for a student to be 

authorized to drop below a full course of study, the DSO must update 

SEVIS prior to the student reducing his or her course load. The DSO must 

update SEVIS with the date, reason for authorization, and the start date 

of the next term or session. The DSO must also notify SEVIS within 21 

days of the student's commencement of a full course of study. If an 

extension of the program end date is required due to the drop below a 

full course of study, the DSO must update SEVIS by completing a new 

SEVIS Form I-20 with the new program end date in accordance with 

paragraph (f)(7) of this section.

    (iv) Concurrent enrollment. An F-1 student may be enrolled in two 

different Service-approved schools at one time as long as the combined 

enrollment amounts to a full time course of study. In cases where a 

student is concurrently enrolled, the school from which the student will 

earn his or her degree or certification should issue the Form I-20, and 

conduct subsequent certifications and updates to the Form I-20. The DSO 

from this school is also responsible for all of the reporting 

requirements to the Service. In instances where a student is enrolled in 

programs with different full course of study requirements (e.g., clock 

hours vs. credit hours), the DSO is permitted to determine what 

constitutes a full time course of study.

    (7) Extension of stay--(i) General. An F-1 student who is admitted 

for duration of status is not required to apply for extension of stay as 

long as the student is maintaining status and making normal progress 

toward completion of his or her educational objective. An F-1 student 

who is currently maintaining status and making normal progress toward 

completing his or her educational objective, but who is unable to 

complete his or her course of study by the program end date on the Form 

I-20,



[[Page 252]]



must apply prior to the program end date for a program extension 

pursuant to paragraph (f)(7)(iii) of this section.

    (ii) Report date and program completion date on Form I-20. When 

determining the report date on the Form I-20, the DSO may choose a 

reasonable date to accommodate a student's need to be in attendance for 

required activities at the school prior to the actual start of classes. 

Such required activities may include, but are not limited to, research 

projects and orientation sessions. However, for purposes of employment, 

the DSO may not indicate a report date more than 30 days prior to the 

start of classes. When determining the program completion date on Form 

I-20, the DSO should make a reasonable estimate based upon the time an 

average student would need to complete a similar program in the same 

discipline.

    (iii) Program extension for students in lawful status. An F-1 

student who is unable to meet the program completion date on the Form I-

20 may be granted an extension by the DSO if the DSO certifies that the 

student has continually maintained status and that the delays are caused 

by compelling academic or medical reasons, such as changes of major or 

research topics, unexpected research problems, or documented illnesses. 

Delays caused by academic probation or suspension are not acceptable 

reasons for program extensions. A DSO may not grant an extension if the 

student did not apply for an extension until after the program end date 

noted on the Form I-20. An F-1 student who is unable to complete the 

educational program within the time listed on Form I-20 and who is 

ineligible for program extension pursuant to this paragraph (f)(7) is 

considered out of status. If eligible, the student may apply for 

reinstatement under the provisions of paragraph (f)(16) of this section.

    (iv) Notification. Upon granting a program extension, a DSO at a 

non-SEVIS school must immediately submit notification to the Service's 

data processing center using Form I-538 and the top page of Form I-20A-B 

showing the new program completion date. For a school enrolled in SEVIS, 

a DSO may grant a program extension only by updating SEVIS and issuing a 

new Form I-20 reflecting the current program end date. A DSO may grant 

an extension any time prior to the program end date listed on the 

student's original Form I-20.

    (8) School transfer.(i) A student who is maintaining status may 

transfer to another Service approved school by following the 

notification procedure prescribed in paragraph (f)(8)(ii) of this 

section. However, an F-1 student is not permitted to remain in the 

United States when transferring between schools or programs unless the 

student will begin classes at the transfer school or program within 5 

months of transferring out of the current school or within 5 months of 

the program completion date on his or her current Form I-20, whichever 

is earlier. In the case of an F-1 student authorized to engage in post-

completion optional practical training (OPT), the student must be able 

resume classes within 5 months of transferring out of the school that 

recommended OPT or the date the OPT authorization ends, whichever is 

earlier. An F-1 student who was not pursuing a full course of study at 

the school he or she was last authorized to attend is ineligible for 

school transfer and must apply for reinstatement under the provisions of 

paragraph (f)(16) of this section, or, in the alternative, may depart 

the country and return as an initial entry in a new F-1 nonimmigrant 

status.

    (ii) Transfer procedure. To transfer schools, an F-1 student must 

first notify the school he or she is attending of the intent to 

transfer, then obtain a Form I-20 A-B, issued in accordance with the 

provisions of 8 CFR 214.3(k), from the school to which he or she intends 

to transfer. The transfer will be effected only if the F-1 student 

completes the Student Certification portion of the Form I-20 A-B and 

returns the form to a designated school official on campus within 15 

days of beginning attendance at the new school.

    (A) Non-SEVIS School to Non-SEVIS school. To transfer from one non-

SEVIS school to a different non-SEVIS school, the student must first 

notify the school he or she is attending of the intent to transfer, then 

obtain a Form I-20 issued in accordance with the provisions of 8 CFR 

214.3(k) from the school



[[Page 253]]



to which he or she intends to transfer. Prior to issuance of any Form I-

20, the DSO at the transfer school is responsible for determining that 

the student has been maintaining status at his or her current school and 

is eligible for transfer to the new school. The transfer will be 

effected only if the student completes the Student Certification portion 

of the Form I-20 and returns the form to a DSO of the transfer school 

within 15 days of the program start date listed on Form I-20. Upon 

receipt of the student's Form I-20 the DSO must note ``transfer 

completed on (date)'' in the space provided for the DSO's remarks, 

thereby acknowledging the student's attendance at the transfer school; 

return the Form I-20 to the student; submit the School copy of the Form 

I-20 to Service's Data Processing Center within 30 days of receipt from 

the student; and forward a photocopy of the school copy to the school 

from which the student transferred.

    (B) Non-SEVIS school to SEVIS school. To transfer from a non-SEVIS 

school to a SEVIS school, the student must first notify the school he or 

she is attending of the intent to transfer, then obtain a SEVIS Form I-

20 issued in accordance with the provisions of 8 CFR 214.3(k) from the 

school to which he or she intends to transfer. Prior to issuance of any 

Form I-20, the DSO at the transfer school is responsible for determining 

that the student has been maintaining status at his or her current 

school and is eligible for transfer to the new school. Once the transfer 

school has issued the SEVIS Form I-20 to the student indicating a 

transfer, the transfer school becomes responsible for updating and 

maintaining the student's record in SEVIS. The student is then required 

to notify the DSO at the transfer school within 15 days of the program 

start date listed on SEVIS Form I-20. Upon notification that the student 

is enrolled in classes, the DSO of the transfer school must update SEVIS 

to reflect the student's registration and current address, thereby 

acknowledging that the student has completed the transfer process. In 

the remarks section of the student's SEVIS Form I-20, the DSO must note 

that the transfer has been completed, including the date, and return the 

form to the student. The transfer is effected when the transfer school 

updates SEVIS indicating that the student has registered in classes 

within the 30 days required by Sec. 214.3(g)(3)(iii).

    (C) SEVIS school to SEVIS school. To transfer from a SEVIS school to 

a SEVIS school the student must first notify his or her current school 

of the intent to transfer and must indicate the school to which he or 

she intends to transfer. Upon notification by the student, the current 

school will update the student's record in SEVIS as a ``transfer out'' 

and indicate the school to which the student intends to transfer, and a 

release date. The release date will be the current semester or session 

completion date, or the date of expected transfer if earlier than the 

established academic cycle. The current school will retain control over 

the student's record in SEVIS until the student completes the current 

term or reaches the release date. At the request of the student, the DSO 

of the current school may cancel the transfer request at any time prior 

to the release date. As of the release date specified by the current 

DSO, the transfer school will be granted full access to the student's 

SEVIS record and then becomes responsible for that student. The current 

school conveys authority and responsibility over that student to the 

transfer school, and will no longer have full SEVIS access to that 

student's record. As such, a transfer request may not be cancelled by 

the current DSO after the release date has been reached. After the 

release date, the transfer DSO must complete the transfer of the 

student's record in SEVIS and may issue a SEVIS Form I-20. The student 

is then required to contact the DSO at the transfer school within 15 

days of the program start date listed on the SEVIS Form I-20. Upon 

notification that the student is enrolled in classes, the DSO of the 

transfer school must update SEVIS to reflect the student's registration 

and current address, thereby acknowledging that the student has 

completed the transfer process. In the remarks section of the student's 

SEVIS Form I-20, the DSO must note that the transfer has been completed, 

including the date, and return the form to the student. The transfer is 

effected when



[[Page 254]]



the transfer school notifies SEVIS that the student has enrolled in 

classes in accordance with the 30 days required by Sec. 

214.3(g)(3)(iii).

    (D) SEVIS school to non-SEVIS school. To transfer from a SEVIS 

school to a non-SEVIS school, the student must first notify his or her 

current school of the intent to transfer and must indicate the school to 

which he or she intends to transfer. Upon notification by the student, 

the current school will update the student's status in SEVIS as ``a 

transfer out'', enter a ``release'' or expected transfer date, and 

update the transfer school as ``non-SEVIS.'' The student must then 

notify the school to which the he or she intends to transfer of his or 

her intent to enroll. After the student has completed his or her current 

term or session, or has reached the expected transfer date, the DSO at 

the current school will no longer have full access to the student's 

SEVIS record. At this point, if the student has notified the transfer 

school of his or her intent to transfer, and the transfer school has 

determined that the student has been maintaining status at his or her 

current school, the transfer school may issue the student a Form I-20. 

The transfer will be effected only if the student completes the Student 

Certification portion of the Form I-20 and returns the form to a 

designated school official of the transfer school within 15 days of the 

program start date listed on Form I-20. Upon receipt of the student's 

Form I-20 the DSO must do as follows: note ``transfer completed on 

(date)'' in the space provided for the DSO's remarks, thereby 

acknowledging the student's attendance; return the Form I-20 to the 

student; submit the school copy of the Form I-20 to the Service's data 

processing center within 30 days of receipt from the student; and 

forward a photocopy of the school copy to the school from which the 

student transferred.

    (iii) Notification. Upon receipt of the student's Form I-20 A-B, the 

DSO must:

    (A) Note ``transfer completed on (date)'' on the student's I-20 ID 

in the space provided for the DSO's remarks, thereby acknowledging the 

student's attendance;

    (B) Return the I-20 ID to the student;

    (C) Submit the I-20 School copy to the Service's Data Processing 

Center within 30 days of receipt from the student; and

    (D) Forward a photocopy of the Form I-20 A-B School Copy to the 

school from which the student transferred.

    (9) Employment--(i) On-campus employment. On-campus employment must 

either be performed on the school's premises, (including on-location 

commercial firms which provide services for students on campus, such as 

the school bookstore or cafeteria), or at an off-campus location which 

is educationally affiliated with the school. Employment with on-site 

commercial firms, such as a construction company building a school 

building, which do not provide direct student services is not deemed on-

campus employment for the purposes of this paragraph. In the case of 

off-campus locations, the educational affiliation must be associated 

with the school's established curriculum or related to contractually 

funded research projects at the post-graduate level. In any event, the 

employment must be an integral part of the student's educational 

program. Employment authorized under this paragraph must not exceed 20 

hours a week while school is in session, unless the Commissioner 

suspends the applicability of this limitation due to emergent 

circumstances, as determined by the Commissioner, by means of notice in 

the Federal Register, the student demonstrates to the DSO that the 

employment is necessary to avoid severe economic hardship resulting from 

the emergent circumstances, and the DSO notates the Form I-20 in 

accordance with the Federal Register document. An F-1 student may, 

however, work on campus full-time when school is not in session or 

during the annual vacation. A student who has been issued a Form I-20 A-

B to begin a new program in accordance with the provision of 8 CFR 

214.3(k) and who intends to enroll for the next regular academic year, 

term, or session at the institution which issued the Form I-20 A-B may 

continue on-campus employment incident to status. Otherwise, an F-1 

student may not engage in on-campus employment after completing a course 

of study, except employment for practical training



[[Page 255]]



as authorized under paragraph (f)(10) of this section. An F-I student 

may engage in any on-campus employment authorized under this paragraph 

which will not displace United States residents. In the case of a 

transfer in SEVIS, the student may only engage in on-campus employment 

at the school having jurisdiction over the student's SEVIS record. Upon 

initial entry to begin a new course of study, an F-1 student may not 

begin on-campus employment more than 30 days prior to the actual start 

of classes.

    (ii) Off-campus work authorization--(A) General. An F-1 student may 

be authorized to work off-campus on a part-time basis in accordance with 

paragraph (f)(9)(ii) (B) or (C) of this section after having been in F-1 

status for one full academic year provided that the student is in good 

academic standing as determined by the DSO. Part-time off-campus 

employment authorized under this section is limited to no more than 

twenty hours a week when school is in session. A student who is granted 

off-campus employment authorization may work full-time during holidays 

or school vacation. The employment authorization is automatically 

terminated whenever the student fails to maintain status. In emergent 

circumstances as determined by the Commissioner, the Commissioner may 

suspend the applicability of any or all of the requirements of paragraph 

(f)(9)(ii) of this section by notice in the Federal Register.

    (B) [Reserved]

    (C) Severe economic hardship. If other employment opportunities are 

not available or are otherwise insufficient, an eligible F-1 student may 

request off-campus employment work authorization based upon severe 

economic hardship caused by unforeseen circumstances beyond the 

student's control. These circumstances may include loss of financial aid 

or on-campus employment without fault on the part of the student, 

substantial fluctuations in the value of currency or exchange rate, 

inordinate increases in tuition and/or living costs, unexpected changes 

in the financial condition of the student's source of support, medical 

bills, or other substantial and unexpected expenses.

    (D) Procedure for off-campus employment authorization due to severe 

economic hardship. The student must request a recommendation from the 

DSO for off-campus employment. The DSO at a non-SEVIS school must make 

such a certification on Form I-538, Certification by Designated School 

Official. The DSO of a SEVIS school must complete such certification in 

SEVIS. The DSO may recommend the student for work off-campus for one 

year intervals by certifying that:

    (1) The student has been in F-1 status for one full academic year;

    (2) The student is in good standing as a student and is carrying a 

full course of study as defined in paragraph (f)(6) of this section;

    (3) The student has demonstrated that acceptance of employment will 

not interfere with the student's carrying a full course of study; and

    (4) The student has demonstrated that the employment is necessary to 

avoid severe economic hardship due to unforeseen circumstances beyond 

the student's control pursuant to paragraph (f)(9)(ii)(C) of this 

section and has demonstrated that employment under paragraph (f)(9)(i) 

of this section is unavailable or otherwise insufficient to meet the 

needs that have arisen as a result of the unforeseen circumstances.

    (E) [Reserved]

    (F) Severe economic hardship application. (1) The applicant should 

submit the economic hardship application for employment authorization on 

Form I-765, with the fee required by 8 CFR 103.7(b)(1), to the service 

center having jurisdiction over his or her place of residence. 

Applicants at a non-SEVIS school should submit Form I-20, Form I-538, 

and any other supporting materials such as affidavits which further 

detail the unforeseen circumstances that require the student to seek 

employment authorization and the unavailability or insufficiency of 

employment under paragraph (f)(9)(i) of this section. Students enrolled 

in a SEVIS school should submit the SEVIS Form I-20 with the employment 

page demonstrating the DSO's comments and certification.

    (2) The Service shall adjudicate the application for work 

authorization based upon severe economic hardship



[[Page 256]]



on the basis of Form I-20 ID, Form I-538, and Form I-765, and any 

additional supporting materials. If employment is authorized, the 

adjudicating officer shall issue an EAD. The Service director shall 

notify the student of the decision, and, if the application is denied, 

of the reason or reasons for the denial. No appeal shall lie from a 

decision to deny a request for employment authorization under this 

section. The employment authorization may be granted in one year 

intervals up to the expected date of completion of the student's current 

course of study. A student has permission to engage in off-campus 

employment only if the student receives the EAD endorsed to that effect. 

Off-campus employment authorization may be renewed by the Service only 

if the student is maintaining status and good academic standing. The 

employment authorization is automatically terminated whenever the 

student fails to maintain status.

    (iii) Internship with an international organization. A bona fide F-1 

student who has been offered employment by a recognized international 

organization within the meaning of the International Organization 

Immunities Act (59 Stat. 669) must apply for employment authorization to 

the service center having jurisdiction over his or her place of 

residence. A student seeking employment authorization under this 

provision is required to present a written certification from the 

international organization that the proposed employment is within the 

scope of the organization's sponsorship, Form I-20 ID or SEVIS Form I-20 

with employment page completed by DSO certifying eligibility for 

employment, and a completed Form I-765, with required fee as contained 

in Sec. 103.7(b)(1) of this chapter.

    (10) Practical training. Practical training may be authorized to an 

F-1 student who has been lawfully enrolled on a full time basis, in a 

Service-approved college, university, conservatory, or seminary for one 

full academic year. This provision also includes students who, during 

their course of study, were enrolled in a study abroad program, if the 

student had spent at least one full academic term enrolled in a full 

course of study in the United States prior to studying abroad. A student 

may be authorized 12 months of practical training, and becomes eligible 

for another 12 months of practical training when he or she changes to a 

higher educational level. Students in English language training programs 

are ineligible for practical training. An eligible student may request 

employment authorization for practical training in a position that is 

directly related to his or her major area of study. There are two types 

of practical training available:

    (i) Curricular practical training. An F-1 student may be authorized 

by the DSO to participate in a curricular practical training program 

that is an integral part of an established curriculum. Curricular 

practical training is defined to be alternative work/study, internship, 

cooperative education, or any other type of required internship or 

practicum that is offered by sponsoring employers through cooperative 

agreements with the school. Students who have received one year or more 

of full time curricular practical training are ineligible for post-

completion academic training. Exceptions to the one academic year 

requirement are provided for students enrolled in graduate studies that 

require immediate participation in curricular practical training. A 

request for authorization for curricular practical training must be made 

to the DSO. A student may begin curricular practical training only after 

receiving his or her Form I-20 with the DSO endorsement.

    (A) Non-SEVIS process. A student must request authorization for 

curricular practical training using Form I-538. Upon approving the 

request for authorization, the DSO shall: certify Form I-538 and send 

the form to the Service's data processing center; endorse the student's 

Form I-20 ID with ``full-time (or part-time) curricular practical 

training authorized for (employer) at (location) from (date) to 

(date)''; and sign and date the Form I-20ID before returning it to the 

student.

    (B) SEVIS process. To grant authorization for a student to engage in 

curricular practical training, a DSO at a SEVIS school will update the 

student's record in SEVIS as being authorized for curricular practical 

training that is directly related to the student's major



[[Page 257]]



area of study. The DSO will indicate whether the training is full-time 

or part-time, the employer and location, and the employment start and 

end date. The DSO will then print a copy of the employment page of the 

SEVIS Form I-20 indicating that curricular practical training has been 

approved. The DSO must sign, date, and return the SEVIS Form I-20 to the 

student prior to the student's commencement of employment.

    (ii) Optional practical training--(A) General. A student may apply 

to the Service for authorization for temporary employment for optional 

practical training directly related to the student's major area of 

study. The student may not begin optional practical training until the 

date indicated on his or her employment authorization document, Form I-

766 or Form 688B. A student may submit an application for authorization 

to engage in optional practical training up to 90 days prior to being 

enrolled for one full academic year, provided that the period of 

employment will not begin until after the completion of the full 

academic year as indicated by the DSO. A student may be granted 

authorization to engage in temporary employment for optional practical 

training:

    (1) During the student's annual vacation and at other times when 

school is not in session, if the student is currently enrolled, and is 

eligible for registration and intends to register for the next term or 

session;

    (2) While school is in session, provided that practical training 

does not exceed 20 hours a week while school is in session; or

    (3) After completion of the course of study, or, for a student in a 

bachelor's, master's, or doctoral degree program, after completion of 

all course requirements for the degree (excluding thesis or equivalent). 

Continued enrollment, for the school's administrative purposes, after 

all requirements for the degree have been met does not preclude 

eligibility for optional practical training. However, optional practical 

training must be requested prior to the completion of all course 

requirements for the degree or prior to the completion of the course of 

study. A student must complete all practical training within a 14-month 

period following the completion of study.

    (B) Termination of practical training. Authorization to engage in 

optional practical training employment is automatically terminated when 

the student transfers to another school or begins study at another 

educational level.

    (C) Request for authorization for practical training. A request for 

authorization to accept practical training must be made to the 

designated school official (DSO) of the school the student is authorized 

to attend on Form I-538, accompanied by his or her current Form I-20 ID.

    (D) Action of the DSO-Non SEVIS schools. In making a recommendation 

for practical training, a designated school official must:

    (1) Certify on Form I-538 that the proposed employment is directly 

related to the student's major area of study and commensurate with the 

student's educational level;

    (2) Endorse and date the student's Form I-20 ID to show that 

practical training in the student's major field of study is recommended 

``full-time (or part-time) from (date) to (date)''; and

    (3) Return to the student the Form I-20 ID and send to the Service 

data processing center the school certification on Form I-538.

    (E) SEVIS process. In making a recommendation for optional practical 

training under SEVIS, the DSO will update the student's record in SEVIS 

as having been recommended for optional practical training. A DSO who 

recommends a student for optional practical training is responsible for 

maintaining the record of the student for the duration of the time that 

training is authorized. The DSO will indicate in SEVIS whether the 

employment is to be full-time or part-time, and note in SEVIS the start 

and end date of employment. The DSO will then print the employment page 

of the student's SEVIS Form I-20, and sign and date the form to indicate 

that optional practical training has been recommended. The student must 

file with the service center for an Employment Authorization Document, 

on Form I-765, with fee and the SEVIS Form I-20



[[Page 258]]



employment page indicating that optional practical training has been 

recommended by the DSO.

    (11) Employment authorization. The total periods of authorization 

for optional practical training under paragraph (f)(10) of this section 

shall not exceed a maximum of twelve months. Part-time practical 

training, 20 hours per week or less, shall be deducted from the 

available practical training at one-half the full-time rate. As required 

by the regulations at 8 CFR part 274a, an F-1 student seeking practical 

training (excluding curricular practical training) under paragraph 

(f)(10) of this section may not accept employment until he or she has 

been issued an Employment Authorization Document (EAD) by the Service. 

An F-1 student must apply to the INS for the EAD by filing the Form 1-

765. The application for employment authorization must include the 

following documents:

    (i) A completed Form I-765, with the fee required by Sec. 

103.7(b)(1); and

    (ii) A DSO's recommendation for optional practical training on Form 

I-20ID, or, for a SEVIS school, on an updated SEVIS Form I-20.

    (12) Decision on application for employment authorization. The 

Service shall adjudicate the Form I-765 and issue an EAD on the basis of 

the DSO's recommendation unless the student is found otherwise 

ineligible. The Service shall notify the applicant of the decision and, 

if the application is denied, of the reason or reasons for the denial. 

The applicant may not appeal the decision. An F-1 student authorized by 

the Service to engage in practical training is required to report any 

change of name or address, or interruption of such employment to the DSO 

for the duration of the authorized training. A DSO who recommends a 

student for optional practical training is responsible for updating the 

student's record to reflect these reported changes for the duration of 

the time that training is authorized.

    (13) Temporary absence from the United States of F-1 student granted 

employment authorization. (i) A student returning from a temporary trip 

abroad with an unexpired off-campus employment authorization on his or 

her I-20 ID may resume employment only if the student is readmitted to 

attend the same school which granted the employment authorization.

    (ii) An F-1 student who has an unexpired EAD issued for post-

completion practical training and who is otherwise admissible may return 

to the United States to resume employment after a period of temporary 

absence. The EAD must be used in combination with an I-20 ID endorsed 

for reentry by the DSO within the last six months.

    (14) Effect of strike or other labor dispute. Any employment 

authorization, whether or not part of an academic program, is 

automatically suspended upon certification by the Secretary of Labor or 

the Secretary's designee to the Commissioner of the Immigration and 

Naturalization Service or the Commissioner's designee, that a strike or 

other labor dispute involving a work stoppage of workers is in progress 

in the occupation at the place of employment. As used in this paragraph, 

``place of employment'' means the facility or facilities where a labor 

dispute exists. The employer is prohibited from transferring F-1 

students working at other facilities to the facility where the work 

stoppage is occurring.

    (15) Spouse and children of F-1 student. The F-2 spouse and minor 

children of an F-1 student shall each be issued an individual SEVIS Form 

I-20 in accordance with the provisions of Sec. 214.3(k).

    (i) Employment. The F-2 spouse and children of an F-1 student may 

not accept employment.

    (ii) Study. (A) The F-2 spouse of an F-1 student may not engage in 

full time study, and the F-2 child may only engage in full time study if 

the study is in an elementary or secondary school (kindergarten through 

twelfth grade). The F-2 spouse and child may engage in study that is 

avocational or recreational in nature.

    (B) An F-2 spouse or F-2 child desiring to engage in full time 

study, other than that allowed for a child in paragraph (f)(15)(ii)(A) 

of this section, must apply for and obtain a change of nonimmigrant 

classification to F-1, J-1, or M-1 status. An F-2 spouse or child who 

was enrolled on a full time basis prior to January 1, 2003, will be 

allowed to continue study but must file for a change of nonimmigrant 

classification



[[Page 259]]



to F-1, J-1, or M-1 status on or before March 11, 2003.

    (C) An F-2 spouse or F-2 child violates his or her nonimmigrant 

status by engaging in full time study except as provided in paragraph 

(f)(15)(ii)(A) or (B) of this section.

    (16) Reinstatement to student status--(i) General. The district 

director may consider reinstating a student who makes a request for 

reinstatement on Form I-539, Application to Extend/Change Nonimmigrant 

Status, accompanied by a properly completed SEVIS Form I-20 indicating 

the DSO's recommendation for reinstatement (or a properly completed Form 

I-20A-B issued prior to January 30, 2003, from the school the student is 

attending or intends to attend prior to August 1, 2003). The district 

director may consider granting the request if the student:

    (A) Has not been out of status for more than 5 months at the time of 

filing the request for reinstatement (or demonstrates that the failure 

to file within the 5 month period was the result of exceptional 

circumstances and that the student filed the request for reinstatement 

as promptly as possible under these exceptional circumstances);

    (B) Does not have a record of repeated or willful violations of 

Service regulations;

    (C) Is currently pursuing, or intending to pursue, a full course of 

study in the immediate future at the school which issued the Form I-20;

    (D) Has not engaged in unauthorized employment;

    (E) Is not deportable on any ground other than section 237(a)(1)(B) 

or (C)(i) of the Act; and

    (F) Establishes to the satisfaction of the Service, by a detailed 

showing, either that:

    (1) The violation of status resulted from circumstances beyond the 

student's control. Such circumstances might include serious injury or 

illness, closure of the institution, a natural disaster, or 

inadvertence, oversight, or neglect on the part of the DSO, but do not 

include instances where a pattern of repeated violations or where a 

willful failure on the part of the student resulted in the need for 

reinstatement; or

    (2) The violation relates to a reduction in the student's course 

load that would have been within a DSO's power to authorize, and that 

failure to approve reinstatement would result in extreme hardship to the 

student.

    (ii) Decision. If the Service reinstates the student, the Service 

shall endorse the student's copy of Form I-20 to indicate the student 

has been reinstated and return the form to the student. If the Form I-20 

is from a non-SEVIS school, the school copy will be forwarded to the 

school. If the Form I-20 is from a SEVIS school, the adjudicating 

officer will update SEVIS to reflect the Service's decision. In either 

case, if the Service does not reinstate the student, the student may not 

appeal that decision.

    (17) Current name and address. A student must inform the DSO and the 

Service of any legal changes to his or her name or of any change of 

address, within 10 days of the change, in a manner prescribed by the 

school. A student enrolled at a SEVIS school can satisfy the requirement 

in 8 CFR 265.1 of notifying the Service by providing a notice of a 

change of address within 10 days to the DSO, who in turn shall enter the 

information in SEVIS within 21 days of notification by the student. A 

student enrolled at a non-SEVIS school must submit a notice of change of 

address to the Service, as provided in 8 CFR 265.1, within 10 days of 

the change. Except in the case of a student who cannot receive mail 

where he or she resides, the address provided by the student must be the 

actual physical location where the student resides rather than a mailing 

address. In cases where a student provides a mailing address, the school 

must maintain a record of, and must provide upon request from the 

Service, the actual physical location where the student resides.

    (18) Special rules for certain border commuter students--(i) 

Applicability. For purposes of the special rules in this paragraph 

(f)(18), the term ``border commuter student'' means a national of Canada 

or Mexico who is admitted to the United States as an F-1 nonimmigrant 

student to enroll in a full course of study, albeit on a part-time 

basis, in an approved school located within 75 miles of a United States 

land



[[Page 260]]



border. A border commuter student must maintain actual residence and 

place of abode in the student's country of nationality, and seek 

admission to the United States at a land border port-of-entry. These 

special rules do not apply to a national of Canada or Mexico who is:

    (A) Residing in the United States while attending an approved school 

as an F-1 student, or

    (B) Enrolled in a full course of study as defined in paragraph 

(f)(6) of this section.

    (ii) Full course of study. The border commuter student must be 

enrolled in a full course of study at the school that leads to the 

attainment of a specific educational or professional objective, albeit 

on a part-time basis. A designated school official at the school may 

authorize an eligible border commuter student to enroll in a course load 

below that otherwise required for a full course of study under paragraph 

(f)(6) of this section, provided that the reduced course load is 

consistent with the border commuter student's approved course of study.

    (iii) Period of admission. An F-1 nonimmigrant student who is 

admitted as a border commuter student under this paragraph (f)(18) will 

be admitted until a date certain. The DSO is required to specify a 

completion date on the Form I-20 that reflects the actual semester or 

term dates for the commuter student's current term of study. A new Form 

I-20 will be required for each new semester or term that the border 

commuter student attends at the school. The provisions of paragraphs 

(f)(5) and (f)(7) of this section, relating to duration of status and 

extension of stay, are not applicable to a border commuter student.

    (iv) Employment. A border commuter student may not be authorized to 

accept any employment in connection with his or her F-1 student status, 

except for curricular practical training as provided in paragraph 

(f)(10)(i) of this section or post-completion optional practical 

training as provided in paragraph (f)(10)(ii)(A)(3) of this section.

    (19) Remittance of the fee. An alien who applies for F-1 or F-3 

nonimmigrant status in order to enroll in a program of study at a 

Department of Homeland Security (DHS)-approved educational institution 

is required to pay the Student and Exchange Visitor Information System 

(SEVIS) fee to DHS, pursuant to 8 CFR 214.13, except as otherwise 

provided in that section.

    (g) Representatives to international organizations--(1) General. The 

determination by a consular officer prior to admission and the 

recognition by the Secretary of State subsequent to admission is 

evidence of the proper classification of a nonimmigrant under section 

101(a)(15)(G) of the Act. An alien who has a nonimmigrant status under 

section 101(a)(15)(G) (i), (ii), (iii) or (iv) of the Act is to be 

admitted for the duration of the period for which the alien continues to 

be recognized by the Secretary of State as being entitled to that 

status. An alien defined in section (101)(a)(15)(G)(v) of the Act is to 

be admitted for an initial period of not more than three years, and may 

be granted extensions of temporary stay in increments of not more than 

two years. In addition, the application for extension of temporary stay 

must be accompanied by a statement signed by the employing official 

stating that he or she intends to continue to employ the applicant and 

describing the type of work the applicant will perform.

    (2) Definition of G-1, G-3, or G-4 dependent. For purposes of 

employment in the United States, the term dependent of a G-1, G-3, or G-

4 principal alien, as used in Sec. 214.2(g), means any of the following 

immediate members of the family habitually residing in the same 

household as the principal alien who is an officer or employee assigned 

to a mission, to an international organization, or is employed by an 

international organization in the United States:

    (i) Spouse;

    (ii) Unmarried children under the age of 21;

    (iii) Unmarried sons or daughters under the age of 23 who are in 

full-time attendance as students at post-secondary educational 

institutions;

    (iv) Unmarried sons or daughters under the age of 25 who are in 

full-time attendance as students at post-secondary educational 

institutions if a formal bilateral employment agreement permitting their 

employment in



[[Page 261]]



the United States was signed prior to November 21, 1988, and such 

bilateral employment agreement does not specify 23 as the maximum age 

for employment of such sons and daughters. The Office of Protocol of the 

Department of State shall maintain a listing of foreign states which the 

United States has such bilateral employment agreements. The provisions 

of this paragraph apply only to G-1 and G-3 dependents under certain 

bilateral agreements and are not applicable to G-4 dependents; and

    (v) Unmarried sons or daughters who are physically or mentally 

disabled to the extent that they cannot adequately care for themselves 

or cannot establish, maintain, or re-establish their own households. The 

Department of State or the Service may require certification(s) as it 

deems sufficient to document such mental or physical disability.

    (3) Applicability of a formal bilateral agreement or an informal de 

facto arrangement for G-1 and G-3 dependents. The applicability of a 

formal bilateral agreement shall be based on the foreign state which 

employs the principal alien and not on the nationality of the principal 

alien or dependent. The applicability of an informal de facto 

arrangement shall be based on the foreign state which employs the 

principal alien, but under a de facto arrangement the principal alien 

also must be a national of the foreign state which employs him or her in 

the United States.

    (4) Income tax, Social Security liability; non-applicability of 

certain immunities. Dependents who are granted employment authorization 

under this section are responsible for payment of all federal, state and 

local income, employment and related taxes and Social Security 

contributions on any remuneration received. In addition, immunity from 

civil or administrative jurisdiction in accordance with Article 37 of 

the Vienna Convention on Diplomatic Relations or other international 

agreements does not apply to these dependents with respect to matters 

arising out of their employment.

    (5) G-1 and G-3 dependent employment pursuant to formal bilateral 

employment agreements and informal de facto reciprocal arrangements, and 

G-4 dependent employment. (i) The Office of Protocol shall maintain a 

listing of foreign states which have entered into formal bilateral 

employment agreements. Dependents of a G-1 or G-3 principal alien 

assigned to official duty in the United States may accept or continue in 

unrestricted employment based on such formal bilateral agreements, if 

the applicable agreement includes persons in G-1 or G-3 visa status, 

upon favorable recommendation by the Department of State and issuance of 

employment authorization documentation by the Service in accordance with 

8 CFR part 274a. The application procedures are set forth in paragrpah 

(g)(6) of this section.

    (ii) For purposes of this section, an informal de facto reciprocal 

arrangement exists when the Department of State determines that a 

foreign state allows appropriate employment on the local economy for 

dependents of certain United States officials assigned to duty in that 

foreign state. The Office of Protocol shall maintain a listing of 

countries with which such reciprocity exists. Dependents of a G-1 or G-3 

principal alien assigned to official duty in the United States may be 

authorized to accept or continue in employment based upon informal de 

facto arrangements, and dependents of a G-4 principal alien assigned to 

official duty in the United States may be authorized to accept or 

continue in employment upon favorable recommendation by the Department 

of State and issuance of employment authorization by the Service in 

accordance with 8 CFR part 274a. Additionally, the procedures set forth 

in paragraph (g)(6) of this section must be complied with, and the 

following conditions must be met:

    (A) Both the principal alien and the dependent desiring employment 

are maintaining G-1, G-3, or G-4 status as appropriate;

    (B) The principal's assignment in the United States is expected to 

last more than six months;

    (C) Employment of a similar nature for dependents of United States 

Government officials assigned to official duty in the foreign state 

employing the principal alien is not prohibited by



[[Page 262]]



that foreign government. The provisions of this paragraph apply only to 

G-1 and G-3 dependents;

    (D) The proposed employment is not in an occupation listed in the 

Department of Labor Schedule B (20 CFR part 656), or otherwise 

determined by the Department of Labor to be one for which there is an 

oversupply of qualified U.S. workers in the area of proposed employment. 

This Schedule B restriction does not apply to a dependent son or 

daughter who is a full-time student if the employment is part-time, 

consisting of not more than 20 hours per week, and/or if it is temporary 

employment of not more than 12 weeks during school holiday periods; and

    (E) The proposed employment is not contrary to the interest of the 

United States. Employment contrary to the interest of the United States 

includes, but is not limited to, the employment of G-1, G-3, or G-4 

dependents: who have criminal records; who have violated United States 

immigration laws or regulations, or visa laws or regulations; who have 

worked illegally in the United States; and/or who cannot establish that 

they have paid taxes and social security on income from current or 

previous United States employment. Additionally, the Department of State 

may determine a G-4 dependent's employment is contrary to the interest 

of the United States when the principal alien's country of nationality 

has one or more components of an international organization or 

international organizations within its borders and does not allow the 

employment of dependents of United States citizens employed by such 

component(s) or organization(s).

    (6) Application procedures. The following procedures are applicable 

to G-1 and G-3 dependent employment applications under bilateral 

agreements and de facto arrangements, as well as to G-4 dependent 

employment applications:

    (i) The dependent must submit a completed Form I-566 to the 

Department of State through the office, mission, or organization which 

employs his or her principal alien. If the principal is assigned to or 

employed by the United Nations, the Form I-566 must be submitted to the 

U.S. Mission to the United Nations. All other applications must be 

submitted to the Office of Protocol of the Department of State. A 

dependent applying under paragraph (g)(2) (iii) or (iv) of this section 

must submit a certified statement from the post-secondary educational 

institution confirming that he or she is pursuing studies on a full-time 

basis. A dependent applying under paragraph (g)(2)(v) of this section 

must submit medical certification regarding his or her condition. The 

certification should identify the dependent and the certifying physician 

and give the physician's phone number; identify the condition, describe 

the symptoms and provide a prognosis; certify that the dependent is 

unable to establish, re-establish, and maintain a home or his or her 

own. Additionally, a G-1 or G-3 dependent applying under the terms of a 

de facto arrangement or a G-4 dependent must attach a statement from the 

prospective employer which includes the dependent's name; a description 

of the position offered and the duties to be performed; the salary 

offered; and verification that the dependent possesses the 

qualifications for the position.

    (ii) The Department of State reviews and verifies the information 

provided, makes its determination, and endorses the Form I-566.

    (iii) If the Department of State's endorsement is favorable, the 

dependent may apply to the Service. A dependent whose principal alien is 

stationed at a post in Washington, DC, or New York City shall apply to 

the District Director, Washington, DC, or New York City, respectively. A 

dependent whose principal alien is stationed elsewhere shall apply to 

the District Director, Washington, DC, unless the Service, through the 

Department of State, directs the dependent to apply to the district 

director having jurisdiction over his or her place of residence. 

Directors of the regional service centers may have concurrent 

adjudicative authority for applications filed within their respective 

regions. When applying to the Service, the dependent must present his or 

her Form I-566 with a favorable endorsement from the Department of State 

and any additional documentation as may be required by the Attorney 

General.



[[Page 263]]



    (7) Period of time for which employment may be authorized. If 

approved, an application to accept or continue employment under this 

section shall be granted in increments of not more than three years 

each.

    (8) No appeal. There shall be no appeal from a denial of permission 

to accept or continue employment under this section.

    (9) Dependents or family members of principal aliens classified G-2 

or G-5. A dependent or family member of a principal alien classified G-2 

or G-5 may not be employed in the United States under this section.

    (10) Unauthorized employment. An alien classified under section 

101(a)(15)(G) of the Act who is not a principal alien and who engages in 

employment outside the scope of, or in a manner contrary to this 

section, may be considered in violation of section 241(a)(1)(C)(i) of 

the Act. An alien who is classified under section 101(a)(15)(G) of the 

Act who is a principal alien and who engages in employment outside the 

scope of his/her official position may be considered in violation of 

section 241(a)(1)(C)(i) of the Act.

    (11) Special provision. As of February 16, 1990 no new employment 

authorization will be granted and no pre-existing employment 

authorization will be extended for a G-1 dependent absent an appropriate 

bilateral agreement or de facto arrangement. However, a G-1 dependent 

who has been granted employment authorization by the Department of State 

prior to the effective date of this section and who meets the definition 

of dependent under Sec. 214.2(g)(2) (i), (ii), (iii) or (v) of this 

part but is not covered by the terms of a bilateral agreement or de 

facto arrangement may be allowed to continue in employment until 

whichever of the following occurs first:

    (i) The employment authorization by the Department of State expires; 

or

    (ii) He or she no longer qualifies as a dependent as that term is 

defined in this section; or

    (iii) March 19, 1990.

    (h) Temporary employees--(1) Admission of temporary employees--(i) 

General. Under section 101(a)(15)(H) of the Act, an alien may be 

authorized to come to the United States temporarily to perform services 

or labor for, or to receive training from, an employer, if petitioned 

for by that employer. Under this nonimmigrant category, the alien may be 

classified as follows: under section 101(a)(15)(H)(i)(c) of the Act as a 

registered nurse; under section 101(a)(15)(H)(i)(b) of the Act as an 

alien who is coming to perform services in a specialty occupation, 

services relating to a Department of Defense (DOD) cooperative research 

and development project or coproduction project, or services as a 

fashion model who is of distinguished merit and ability; under section 

101(a)(15)(H)(ii)(a) of the Act as an alien who is coming to perform 

agricultural labor or services of a temporary or seasonal nature; under 

section 101(a)(15)(H)(ii)(b) of the Act as an alien coming to perform 

other temporary services or labor; or under section 101(a)(15)(H)(iii) 

of the Act as an alien who is coming as a trainee or as a participant in 

a special education exchange visitor program. These classifications are 

called H-1C, H-1B, H-2A, H-2B, and H-3, respectively. The employer must 

file a petition with the Service for review of the services or training 

and for determination of the alien's eligibility for classification as a 

temporary employee or trainee, before the alien may apply for a visa or 

seek admission to the United States. This paragraph sets forth the 

standards and procedures applicable to these classifications.

    (ii) Description of classifications. (A) An H-1C classification 

applies to an alien who is coming temporarily to the United States to 

perform services as a registered nurse, meets the requirements of 

section 212(m)(1) of the Act, and will perform services at a facility 

(as defined at section 212(m)(6) of the Act) for which the Secretary of 

Labor has determined and certified to the Attorney General that an 

unexpired attestation is on file and in effect under section 212(m)(2) 

of the Act. This classification will expire 4 years from June 11, 2001.

    (B) An H-1B classification applies to an alien who is coming 

temporarily to the United States:

    (1) To perform services in a specialty occupation (except 

agricultural workers, and aliens described in section



[[Page 264]]



101(a)(15) (O) and (P) of the Act) described in section 214(i)(1) of the 

Act, that meets the requirements of section 214(i)(2) of the Act, and 

for whom the Secretary of Labor has determined and certified to the 

Attorney General that the prospective employer has filed a labor 

condition application under section 212(n)(1) of the Act;

    (2) To perform services of an exceptional nature requiring 

exceptional merit and ability relating to a cooperative research and 

development project or a coproduction project provided for under a 

Government-to-Government agreement administered by the Secretary of 

Defense;

    (3) To perform services as a fashion model of distinguished merit 

and ability and for whom the Secretary of Labor has determined and 

certified to the Attorney General that the prospective employer has 

filed a labor condition application under section 212(n)(1) of the Act.

    (C) An H-2A classification applies to an alien who is coming 

temporarily to the United States to perform agricultural work of a 

temporary or seasonal nature.

    (D) An H-2B classification applies to an alien who is coming 

temporarily to the United States to perform nonagricultural work of a 

temporary or seasonal nature, if 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.

    (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 USCIS 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 or as specifically designated by USCIS via notice in the 

Federal Register.

    (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 the 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



[[Page 265]]



alien is not authorized to begin the employment with the new petitioner 

until the petition is approved. An H-1C nonimmigrant alien may not 

change employers.

    (E) Amended or new petition. The petitioner shall file an amended or 

new petition, with fee, with the Service Center where the original 

petition was filed to reflect any material changes in the terms and 

conditions of employment or training or the alien's eligibility as 

specified in the original approved petition. An amended or new H-1C, H-

1B, H-2A, or H-2B petition must be accompanied by a current or new 

Department of Labor determination. In the case of an H-1B petition, this 

requirement includes a new labor condition application.

    (F) Agents as petitioners. A United States agent may file a petition 

in cases involving workers who are traditionally self-employed or 

workers who use agents to arrange short-term employment on their behalf 

with numerous employers, and in cases where a foreign employer 

authorizes the agent to act on its behalf. A United States agent may be: 

the actual employer of the beneficiary, the representative of both the 

employer and the beneficiary, or, a person or entity authorized by the 

employer to act for, or in place of, the employer as it agent. A 

petition filed by a United States agent is subject to the following 

conditions;

    (1) An agent performing the function of an employer must guarantee 

the wages and other terms and conditions of employment by contractual 

agreement with the beneficiary or beneficiaries of the petition. The 

agent/employer must also provide an itinerary of definite employment and 

information on any other services planned for the period of time 

requested.

    (2) A person or company in business as an agent may file the H 

petition involving multiple employers as the representative of both the 

employers and the beneficiary or beneficiaries if the supporting 

documentation includes a complete itinerary of services or engagements. 

The itinerary shall specify the dates of each service or engagement, the 

names and addresses of the actual employers, and the names and addresses 

of the establishment, venues, or locations where the services will be 

performed. In questionable cases, a contract between the employers and 

the beneficiary or beneficiaries may be required. The burden is on the 

agent to explain the terms and conditions of the employment and to 

provide any required documentation.

    (3) A foreign employer who, through a United States agent, files a 

petition for an H nonimmigrant alien is responsible for complying with 

all of the employer sanctions provisions of section 274A of the Act and 

8 CFR part 274a.

    (ii) Multiple beneficiaries. More than one beneficiary may be 

included in an H-1C, H-2A, H-2B, or H-3 petition if the beneficiaries 

will be performing the same service, or receiving the same training, for 

the same period of time, and in the same location

    (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 and 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



[[Page 266]]



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 Sec. 214.2(h) 

apply to H-2A only to the extent that they do not conflict with the 

special agricultural provisions in paragraph (h)(5) of this section.

    (3) Petition for registered nurse (H-1C)--(i) General. (A) For 

purposes of H-1C classification, the term ``registered nurse'' means a 

person who is or will be authorized by a State Board of Nursing to 

engage in registered nurse practice in a state or U.S. territory or 

possession, and who is or will be practicing at a facility which 

provides health care services.

    (B) A United States employer which provides health care services is 

referred to as a facility. A facility may file an H-1C petition for an 

alien nurse to perform the services of a registered nurse, if the 

facility meets the eligibility standards of 20 CFR 655.1111 and the 

other requirements of the Department of Labor's regulations in 20 CFR 

part 655, subpart L.

    (C) The position must involve nursing practice and require licensure 

or other authorization to practice as a registered nurse from the State 

Board of Nursing in the state of intended employment.

    (D) A petition or application for change of status for an H-1C nurse 

may be filed and adjudicated only at the Vermont Service Center.

    (ii) [Reserved]

    (iii) Beneficiary requirements. An H-1C petition for a nurse shall 

be accompanied by evidence that the nurse:

    (A) Has obtained a full and unrestricted license to practice nursing 

in the country where the alien obtained nursing education, or has 

received nursing education in the United States;

    (B) Has passed the examination given by the Commission on Graduates 

of Foreign Nursing Schools (CGFNS), or has obtained a full and 

unrestricted (permanent) license to practice as a registered nurse in 

the state of intended employment, or has obtained a full and 

unrestricted (permanent) license in any state or territory of the United 

States and received temporary authorization to practice as a registered 

nurse in the state of intended employment; and

    (C) Is fully qualified and eligible under the laws (including such 

temporary or interim licensing requirements which authorize the nurse to 

be employed) governing the place of intended employment to practice as a 

registered nurse immediately upon admission to the United States, and is 

authorized under such laws to be employed by the employer. For purposes 

of this paragraph, the temporary or interim licensing may be obtained 

immediately after the alien enters the United States.

    (iv) Petitioner requirements. The petitioning facility shall submit 

the following with an H-1C petition:

    (A) A current copy of the DOL's notice of acceptance of the filing 

of its attestation on Form ETA 9081;

    (B) A statement describing any limitations which the laws of the 

state or jurisdiction of intended employment place on the alien's 

services; and

    (C) Evidence that the alien(s) named on the petition meets the 

definition of a registered nurse as defined at 8 CFR 214.2(h)(3)(i)(A), 

and satisfies the requirements contained in section 212(m)(1) of the 

Act.

    (v) Licensure requirements. (A) A nurse who is granted H-1C 

classification based on passage of the CGFNS examination must, upon 

admission to the United States, be able to obtain temporary licensure or 

other temporary authorization to practice as a registered nurse from the 

State Board of Nursing in the state of intended employment.

    (B) An alien who was admitted as an H-1C nonimmigrant on the basis 

of a temporary license or authorization to practice as a registered 

nurse must comply with the licensing requirements for registered nurses 

in the state of intended employment. An alien admitted as an H-1C 

nonimmigrant is required to obtain a full and unrestricted license if 

required by the state of intended employment. The Service must be 

notified pursuant to Sec. 214.2(h)(11)



[[Page 267]]



when an H-1C nurse is no longer licensed as a registered nurse in the 

state of intended employment.

    (C) A nurse shall automatically lose his or her eligibility for H-1C 

classification if he or she is no longer performing the duties of a 

registered professional nurse. Such a nurse is not authorized to remain 

in employment unless he or she otherwise receives authorization from the 

Service.

    (vi) Other requirements. (A) If the Secretary of Labor notifies the 

Service that a facility which employs H-1C nonimmigrant nurses has 

failed to meet a condition in its attestation, or that there was a 

misrepresentation of a material fact in the attestation, the Service 

shall not approve petitions for H-1C nonimmigrant nurses to be employed 

by the facility for a period of at least 1 year from the date of receipt 

of such notice. The Secretary of Labor shall make a recommendation with 

respect to the length of debarment. If the Secretary of Labor recommends 

a longer period of debarment, the Service will give considerable weight 

to that recommendation.

    (B) If the facility's attestation expires, or is suspended or 

invalidated by DOL, the Service will not suspend or revoke the 

facility's approved petitions for nurses, if the facility has agreed to 

comply with the terms of the attestation under which the nurses were 

admitted or subsequent attestations accepted by DOL for the duration of 

the nurses' authorized stay.

    (4) Petition for alien to perform services in a specialty 

occupation, services relating to a DOD cooperative research and 

development project or coproduction project, or services of 

distinguished merit and ability in the ield of fashion modeling (H-1B)--

(i)(A) Types of H-1B classification. An H-1B classification may be 

granted to an alien who:

    (1) Will perform services in a specialty occupation which requires 

theoretical and practical application of a body of highly specialized 

knowledge and attainment of a baccalaureate or higher degree or its 

equivalent as a minimum requirement for entry into the occupation in the 

United States, and who is qualified to perform services in the specialty 

occupation because he or she has attained a baccalaureate or higher 

degree or its equivalent in the specialty occupation;

    (2) Based on reciprocity, will perform services of an exceptional 

nature requiring exceptional merit and ability relating to a DOD 

cooperative research and development project or a coproduction project 

provided for under a Government-to-Government agreement administered by 

the Secretary of Defense;

    (3) Will perform services in the field of fashion modeling and who 

is of distinguished merit and ability.

    (B) General requirements for petitions involving a specialty 

occupation. (1) Before filing a petition for H-1B classification in a 

specialty occupation, the petitioner shall obtain a certification from 

the Department of Labor that it has filed a labor condition application 

in the occupational specialty in which the alien(s) will be employed.

    (2) Certification by the Department of Labor of a labor condition 

application in an occupational classification does not constitute a 

determination by that agency that the occupation in question is a 

specialty occupation. The 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



[[Page 268]]



Act, has substantially failed to meet a condition of paragraphs (C) or 

(D) of section 212(n)(1) of the Act, has willfully failed to meet a 

condition of paragraph (A) of section 212(n)(1) of the Act, or has 

misrepresented any material fact in the application, the Service shall 

not approve petitions filed with respect to that employer under section 

204 or 214(c) of the Act for a period of at least one year from the date 

of receipt of such notice.

    (6) If the employer's labor condition application is suspended or 

invalidated by the Department of Labor, the Service will not suspend or 

revoke the employer's approved petitions for aliens already employed in 

specialty occupations if the employer has certified to the Department of 

Labor that it will comply with the terms of the labor condition 

application for the duration of the authorized stay of aliens it 

employs.

    (C) General requirements for petitions involving an alien of 

distinguished merit and ability in the field of fashion modeling. H-1B 

classification may be granted to an alien who is of distinguished merit 

and ability in the field of fashion modeling. An alien of distinguished 

merit and ability in the field of fashion modeling is one who is 

prominent in the field of fashion modeling. The alien must also be 

coming to the United States to perform services which require a fashion 

model of prominence.

    (ii) Definitions.

    Prominence means a high level of achievement in the field of fashion 

modeling evidenced by a degree of skill and recognition substantially 

above that ordinarily encountered to the extent that a person described 

as prominent is renowned, leading, or well-known in the field of fashion 

modeling.

    Regonized authority means a person or an organization with expertise 

in a particular field, special skills or knowledge in that field, and 

the expertise to render the type of opinion requested. Such an opinion 

must state:

    (1) The writer's qualifications as an expert;

    (2) The writer's experience giving such opinions, citing specific 

instances where past opinions have been accepted as authoritative and by 

whom;

    (3) How the conclusions were reached; and

    (4) The basis for the conclusions supported by copies or citations 

of any research material used.

    Specialty occupation means an occupation which requires theoretical 

and practical application of a body of highly specialized knowledge in 

fields of human endeavor including, but not limited to, architecture, 

engineering, mathematics, physical sciences, social sciences, medicine 

and health, education, business specialties, accounting, law, theology, 

and the arts, and which requires the attainment of a bachelor's degree 

or higher in a specific specialty, or its equivalent, as a minimum for 

entry into the occupation in the United States.

    United States employer means a person, firm, corporation, 

contractor, or other association, or organization in the United States 

which:

    (1) Engages a person to work within the United States;

    (2) Has an employer-employee relationship with respect to employees 

under this part, as indicated by the fact that it may hire, pay, fire, 

supervise, or otherwise control the work of any such employee; and

    (3) Has an Internal Revenue Service Tax identification number.

    (iii) Criteria for H-1B petitions involving a specialty occupation--

(A) Standards for specialty occupation position. To qualify as a 

specialty occupation, the position must meet one of the following 

criteria:

    (1) A baccalaureate or higher degree or its equivalent is normally 

the 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



[[Page 269]]



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 Noncollegiate Sponsored Instruction 

(PONSI);

    (3) An evaluation of education by a reliable credentials evaluation 

service which specializes in evaluating foreign educational credentials;

    (4) Evidence of certification or registration from a nationally-

recognized professional association or society for the specialty that is 

known to grant certification or registration to persons in the 

occupational specialty who have achieved a certain level of competence 

in the specialty;

    (5) A determination by the Service that the equivalent of the degree 

required by the specialty occupation has been acquired through a 

combination of education, specialized training, and/or work experience 

in areas related to the specialty and that the alien has achieved 

recognition of expertise in the specialty occupation as a result of such 

training and experience. For purposes of determining equivalency to a 

baccalaureate degree in the specialty, three years of specialized 

training and/or work experience must be demonstrated for each year of 

college-level training the alien lacks. For equivalence to an advanced 

(or Masters) degree, the alien must have a baccalaureate degree followed 

by at least five years of experience in the specialty. If required by a 

specialty, the alien must hold a Doctorate degree or its foreign 

equivalent. It must be clearly demonstrated that the alien's training 

and/or work experience included the theoretical and practical 

application of specialized knowledge required by the specialty 

occupation; that the alien's experience was



[[Page 270]]



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-1C nurse) seeking H 

classification in that occupation must have that license prior to 

approval of the petition to be found qualified to enter the United 

States and immediately engage in employment in the occupation.

    (B) Temporary licensure. If a temporary license is available and the 

alien is allowed to perform the duties of the occupation without a 

permanent license, the director shall examine the nature of the duties, 

the level at which the duties are performed, the degree of supervision 

received, and any limitations placed on the alien. If an analysis of the 

facts demonstrates that the alien under supervision is authorized to 

fully perform the duties of the occupation, H classification may be 

granted.



[[Page 271]]



    (C) Duties without licensure. In certain occupations which generally 

require licensure, a state may allow an individual to fully practice the 

occupation under the supervision of licensed senior or supervisory 

personnel in that occupation. In such cases, the director shall examine 

the nature of the duties and the level at which they are performed. If 

the facts demonstrate that the alien under supervision could fully 

perform the duties of the occupation, H classification may be granted.

    (D) H-1C nurses. For purposes of licensure, H-1C nurses must provide 

the evidence required in paragraph (h)(3)(iii) of this section.

    (E) Limitation on approval of petition. Where licensure is required 

in any occupation, including registered nursing, the H petition may only 

be approved for a period of one year or for the period that the 

temporary license is valid, whichever is longer, unless the alien 

already has a permanent license to practice the occupation. An alien who 

is accorded H classification in an occupation which requires licensure 

may not be granted an extension of stay or accorded a new H 

classification after the one year unless he or she has obtained a 

permanent license in the state of intended employment or continues to 

hold a temporary license valid in the same state for the period of the 

requested extension.

    (vi) Criteria and documentary requirements for H-1B petitions 

involving DOD cooperative research and development projects or 

coproduction projects--(A) General. (1) For purposes of H-1B 

classification, services of an exceptional nature relating to DOD 

cooperative research and development projects or coproduction projects 

shall be those services which require a baccalaureate or higher degree, 

or its equivalent, to perform the duties. The existence of this special 

program does not preclude the DOD from utilizing the regular H-1B 

provisions provided the required guidelines are met.

    (2) The requirements relating to a labor condition application from 

the Department of Labor shall not apply to petitions involving DOD 

cooperative research and development projects or coproduction projects.

    (B) Petitioner requirements. (1) The petition must be accompanied by 

a verification letter from the DOD project manager for the particular 

project stating that the alien will be working on a cooperative research 

and development project or a coproduction project under a reciprocal 

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



[[Page 272]]



which the affiant acquired such information.

    (2) Copies of any written contracts between the petitioner and 

beneficiary, or a summary of the terms of the oral agreement under which 

the beneficiary will be employed, if there is no written contract.

    (B) Petitioner's requirements. To establish that a position requires 

prominence, the petitioner must establish that the position meets one of 

the following criteria:

    (1) The services to be performed involve events or productions which 

have a distinguished reputation;

    (2) The services are to be performed for an organization or 

establishment that has a distinguished reputation for, or record of, 

employing prominent persons.

    (C) Beneficiary's requirements. A petitioner may establish that a 

beneficiary is a fashion model of distinguished merit and ability by the 

submission of two of the following forms of documentation showing that 

the alien:

    (1) Has achieved national or international recognition and acclaim 

for outstanding achievement in his or her field as evidenced by reviews 

in major newspapers, trade journals, magazines, or other published 

material;

    (2) Has performed and will perform services as a fashion model for 

employers with a distinguished reputation;

    (3) Has received recognition for significant achievements from 

organizations, critics, fashion houses, modeling agencies, or other 

recognized experts in the field; or

    (4) Commands a high salary or other substantial remuneration for 

services evidenced by contracts or other reliable evidence.

    (viii) Criteria and documentary requirements for H-1B petitions for 

physicians--(A) Beneficiary's requirements. An H-1B petition for a 

physician shall be accompanied by evidence that the physician:

    (1) Has a license or other authorization required by the state of 

intended employment to practice medicine, or is exempt by law therefrom, 

if the physician will perform direct patient care and the state requires 

the license or authorization, and

    (2) Has a full and unrestricted license to practice medicine in a 

foreign state or has graduated from a medical school in the United 

States or in a foreign state.

    (B) Petitioner's requirements. The petitioner must establish that 

the alien physician:

    (1) Is coming to the United States primarily to teach or conduct 

research, or both, at or for a public or nonprofit private educational 

or research institution or agency, and that no patient care will be 

performed, except that which is incidental to the physician's teaching 

or research; or

    (2) The alien has passed the Federation Licensing Examination (or an 

equivalent examination as determined by the Secretary of Health and 

Human Services) or is a graduate of a United States medical school; and

    (i) Has competency in oral and written English which shall be 

demonstrated by the passage of the English language proficiency test 

given by the Educational Commission for Foreign Medical Graduates; or

    (ii) Is a graduate of a school of medicine accredited by a body or 

bodies approved for that purpose by the Secretary of Education.

    (C) Exception for physicians of national or international renown. A 

physician who is a graduate of a medical school in a foreign state and 

who is of national or international renown in the field of medicine is 

exempt from the requirements of paragraph (h)(4)(viii)(B) of this 

section.

    (5) Petition for alien to perform agricultural labor or services of 

a temporary or seasonal nature (H-2A)--(i) Filing a petition--(A) 

General. An H-2A petition must be filed on Form I-129. The petition must 

be filed with a single valid temporary agricultural labor certification. 

However, if a certification is denied, domestic labor subsequently fails 

to appear at the worksite, and the Department of Labor denies an appeal 

under section 216(e)(2) of the Act, the written denial of appeal shall 

be considered a certification for this purpose if filed with evidence 

which establishes that qualified domestic labor is unavailable. An H-2A 

petition may be filed by either the employer listed on the 

certification, the employer's agent,



[[Page 273]]



or the association of United States agricultural producers named as a 

joint employer on the certification.

    (B) Multiple beneficiaries. The total number of beneficiaries of a 

petition or series of petitions based on the same certification may not 

exceed the number of workers indicated on that document. A single 

petition can include more than one beneficiary if the total number does 

not exceed the number of positions indicated on the relating 

certification, and all beneficiaries will obtain a visa at the same 

consulate or are not required to have a visa and will apply for 

admission at the same port of entry.

    (C) Unnamed beneficiaries. The sole beneficiary of an H-2A petition 

must be named in the petition. In a petition for multiple beneficiaries, 

each must be named unless he or she is not named in the certification 

and is outside the United States. Unnamed beneficiaries must be shown on 

the petition by total number.

    (D) Evidence. An H-2A petitioner must show that the proposed 

employment qualifies as a basis for H-2A status, and that any named 

beneficiary qualifies for that employment. A petition will be 

automatically denied if filed without the certification evidence 

required in paragraph (h)(5)(i)(A) of this section and, for each named 

beneficiary, the initial evidence required in paragraph (h)(5)(v) of 

this section.

    (E) Special filing requirements. Where a certification shows joint 

employers, a petition must be filed with an attachment showing that each 

employer has agreed to the conditions of H-2A eligibility. A petition 

filed by an agent must be filed with an attachment in which the employer 

has authorized the agent to act on its behalf, has assumed full 

responsibility for all representations made by the agent on its behalf, 

and has agreed to the conditions of H-2A eligibility.

    (ii) Effect of the labor certification process. The temporary 

agricultural labor certification process determines whether employment 

is as an agricultural worker, whether it is open to U.S. workers, if 

qualified U.S. workers are available, the adverse impact of employment 

of a qualified alien, and whether employment conditions, including 

housing, meet applicable requirements. In petition proceedings a 

petitioner must establish that the employment and beneficiary meet the 

requirements of paragraph (h)(5) of this section. In a petition filed 

with a certification denial, the petitioner must also overcome the 

Department of Labor's findings regarding the availability of qualified 

domestic labor.

    (iii) Ability and intent to meet a job offer--(A) Eligibility 

requirements. An H-2A petitioner must establish that each beneficiary 

will be employed in accordance with the terms and conditions of the 

certification, which includes that the principal duties to be performed 

are those on the certification, with other duties minor and incidental.

    (B) Intent and prior compliance. Requisite intent cannot be 

established for two years after an employer or joint employer, or a 

parent, subsidiary or affiliate thereof, is found to have violated 

section 274(a) of the Act or to have employed an H-2A worker in a 

position other than that described in the relating petition.

    (C) Initial evidence. Representations required for the purpose of 

labor certification are initial evidence of intent.

    (iv) Temporary and seasonal employment--(A) Eligibility 

requirements. An H-2A petitioner must establish that the employment 

proposed in the certification is of a temporary or seasonal nature. 

Employment is of a seasonal nature where it is tied to a certain time of 

year by an event or pattern, such as a short annual growing cycle or a 

specific aspect of a longer cycle, and requires labor levels far above 

those necessary for ongoing operations. Employment is of a temporary 

nature where the employer's need to fill the position with a temporary 

worker will, except in extraordinary circumstances, last no longer than 

one year.

    (B) Effect of Department of Labor findings. In temporary 

agricultural labor certification proceedings the Department of Labor 

separately tests whether employment qualifies as temporary or seasonal. 

Its finding that employment qualifies is normally sufficient for the 

purpose of an H-2A petition, However, notwithstanding that finding, 

employment will be found not to be temporary or seasonal where an 

application for



[[Page 274]]



permanent labor certification has been filed for the same alien, or for 

another alien to be employed in the same position, by the same employer 

or by its parent, subsidiary or affiliate. This can only be overcome by 

the petitioner's demonstration that there will be at least a six month 

interruption of employment in the United States after H-2A status ends. 

Also, eligibility will not be found, notwithstanding the issuance of a 

temporary agricultural labor certification, where there is substantial 

evidence that the employment is not temporary or seasonal.

    (v) The beneficiary's qualifications--(A) Eligibility requirements. 

An H-2A petitioner must establish that any named beneficiary met the 

stated minimum requirements and was fully able to perform the stated 

duties when the application for certification was filed. It must be 

established at time of application for an H-2A visa, or for admission if 

a visa is not required, that any unnamed beneficiary either met these 

requirements when the certification was applied for or passed any 

certified aptitude test at any time prior to visa issuance, or prior to 

admission if a visa is not required.

    (B) Initial evidence of employment/job training. A petition must be 

filed with evidence that at the required time the beneficiary met the 

certification's minimum employment and job training requirements. 

Initial evidence must be in the form of the past employer's detailed 

statement or actual employment documents, such as company payroll or tax 

records. Alternately, a petitioner must show that such evidence cannot 

be obtained, and submit affidavits from people who worked with the 

beneficiary that demonstrate the claimed employment.

    (C) Initial evidence of education and other training. A petition 

must be filed with evidence that at the required time each beneficiary 

met the certification's minimum post-secondary education and other 

formal training requirements. Initial evidence must be in the form of 

documents, issued by the relevant institution or organization, that show 

periods of attendance, majors and degrees or certificates accorded.

    (vi) Petition agreements--(A) Consent and liabilities. In filing an 

H-2A petition, a petitioner and each employer consents to allow access 

to the site where the labor is being performed for the purpose of 

determining compliance with H-2A requirements. The petitioner further 

agrees to notify the Service in the manner specified within twenty-four 

hours if an H-2A worker absconds or if the authorized employment ends 

more than five days before the relating certification document expires, 

and to pay liquidated damages of ten dollars for each instance where it 

cannot demonstrate compliance with this notification requirement. The 

petitioner also agrees to pay liquidated damages of two hundred dollars 

for each instance where is cannot demonstrate that its H-2A worker 

either departed the United States or obtained authorized status based on 

another petition during the period of admission or within five days of 

early termination, whichever comes first.

    (B) Process. Where evidence indicates noncompliance under paragraph 

(h)(5)(vi)(A) of this section, the petitioner shall be given written 

notice and given ten days to reply. If it does not demonstrate 

compliance, it shall be given written notice of the assessment of 

liquidated damages.

    (C) Failure to pay liquidated damages. If liquidated damages are not 

paid within ten days of assessment, an H-2A petition may not be 

processed for that petitioner or any joint employer shown on the 

petition until such damages are paid.

    (vii) Validity. An approved H-2A petition is valid through the 

expiration of the relating certification for the purpose of allowing a 

beneficiary to seek issuance of an H-2A nonimmigrant visa, admission or 

an extension of stay for the purpose of engaging in the specific 

certified employment.

    (viii) Admission--(A) Effect of violation of status. An alien may 

not be accorded H-2A status who the Service finds to have violated the 

conditions of H-2A status within the prior five years. H-2A status is 

violated by remaining beyond the specific period of authorized stay or 

by engaging in unauthorized employment.



[[Page 275]]



    (B) Period of admission. Notwithstanding paragraph (h)(13) of this 

section, and except as provided in paragraph (h)(5)(ix)(C) of this 

section, an alien admissible as an H-2A shall be admitted for the period 

of the approved petition plus a period of up to one week before the 

beginning of the approved period for the purpose of travel to the 

worksite, and a period following the expiration of the H-2A petition 

equal to the validity period of the petition, but not more than ten 

days, for the purpose of departure or extension based on a subsequent 

offer of employment. However, this extended admission period does not 

affect the beneficiary's employment authorization. Such authorization 

only applies to the specific employment indicated in the relating 

petition, for the specific period of time indicated.

    (C) Limits on an individual's stay. An alien's stay as an H-2A is 

limited by the term of an approved petition. An alien may remain longer 

to engage in other qualifying temporary agricultural employment by 

obtaining an extension of stay. However, an individual who has held H-2A 

status for a total of three years may not again be granted H-2A status, 

or other nonimmigrant status based on agricultural activities, until 

such time as he or she remains outside the United States for an 

uninterrupted period of six months. An absence can interrupt the 

accumulation of time spent as an H-2A. If the accumulated stay is 

eighteen months or less, an absence is interruptive if it lasts for at 

least three months. If more than eighteen months stay has been 

accumulated, an absence is interruptive if it lasts for at least one-

sixth the accumulated stay. Eligibility under this subparagraph will be 

determined in admission, change of status or extension proceedings. An 

alien found eligible for a shorter period of H-2A status than that 

indicated by the petition due to the application of this subparagraph 

shall only be admitted for that abbreviated period.

    (ix) Substitution of beneficiaries after admission. An H-2A petition 

may be filed to replace H-2A workers whose employment was terminated 

early. The petition must be filed with a copy of the certification 

document, a copy of the approval notice covering the workers for which 

replacements are sought, and other evidence required by paragraph 

(h)(5)(i)(D) of this section. It must also be filed with a statement 

giving each terminated worker's name, date and country of birth, 

termination date, and evidence the worker has departed the United 

States. A petition for a replacement may not be approved where the 

requirements of paragraph (h)(5)(vi) of this section have not been met. 

A petition for replacements does not constitute the notice that an H-2A 

worker has absconded or has ended authorized employment more than five 

days before the relating certification expires.

    (x) Extensions without labor certification. A single H-2A petition 

may be extended without a certification if it is based on approval of 

the alien's application for extension of stay for a continuation of the 

employment authorized by the approval of a previous H-2A petition filed 

with a certification (but not a certification extension granted under 20 

CFR 655.106(c)(3)), and the proposed continuation of employment will 

last no longer than the previously authorized employment and also will 

not last longer than two weeks.

    (6) Petition for alien to perform temporary nonagricultural services 

or labor (H-2B)--(i) General. An H-2B nonagricultural temporary worker 

is an alien who is coming temporarily to the United States to perform 

temporary services or labor, is not displacing United States workers 

capable of performing such services or labor, and whose employment is 

not adversely affecting the wages and working conditions of United 

States workers.

    (ii) Temporary services or labor--(A) Definition. Temporary services 

or labor under the H-2B classification refers to any job in which the 

petitioner's need for the duties to be performed by the employee(s) is 

temporary, whether or not the underlying job can be described as 

permanent or temporary.

    (B) Nature of petitioner's need. As a general rule, the period of 

the petitioner's need must be a year or less, although there may be 

extraordinary circumstances where the temporary services or labor might 

last longer than one year. The petitioner's need for the



[[Page 276]]



services or labor shall be a one-time occurrence, a seasonal need, a 

peakload need, or an intermittent need:

    (1) One-time occurence. The petitioner must establish that it has 

not employed workers to perform the services or labor in the past and 

that it will not need workers to perform the services or labor in the 

future, or that it has an employment situation that is otherwise 

permanent, but a temporary event of short duration has created the need 

for a temporary worker.

    (2) Seasonal need. The petitioner must establish that the services 

or labor is traditionally tied to a season of the year by an event or 

pattern and is of a recurring nature. The petitioner shall specify the 

period(s) of time during each year in which it does not need the 

services or labor. The employment is not seasonal if the period during 

which the services or labor is not needed is unpredictable or subject to 

change or is considered a vacation period for the petitioner's permanent 

employees.

    (3) Peakload need. The petitoner must establish that it regularly 

employs permanent workers to perform the services or labor at the place 

of employment and that it needs to supplement its permanent staff at the 

place of employment on a temporary basis due to a seasonal or short-term 

demand and that the temporary additions to staff will not become a part 

of the petitioner's regular operation.

    (4) Intermittent need. The petitioner must establish that it has not 

employed permanent or full-time workers to perform the services or 

labor, but occasionally or intermittently needs temporary workers to 

perform services or labor for short periods.

    (iii) Procedures. (A) Prior to filing a petition with the director 

to classify an alien as an H-2B worker, the petitioner shall apply for a 

temporary labor certification with the Secretary of Labor for all areas 

of the United States, except the Territory of Guam. In the Territory of 

Guam, the petitioning employer shall apply for a temporary labor 

certification with the Governor of Guam. The labor certification shall 

be advice to the director on whether or not United States workers 

capable of performing the temporary services or labor are available and 

whether or not the alien's employment will adversely affect the wages 

and working conditions of similarly employed United States workers.

    (B) An H-2B petitioner shall be a United States employer, a United 

States agent, or a foreign employer filing through a United States 

agent. For purposes of paragraph (h) of this section, a foreign employer 

is any employer who is not amendable to service of process in the United 

States. A foreign employer may not directly petition for an H-2B 

nonimmigrant but must use the services of a United States agent to file 

a petition for an H-2B nonimmigrant. A United States agent petitioning 

on behalf of a foreign employer must be authorized to file the petition, 

and to accept service of process in the United States in proceedings 

under section 274A of the Act, on behalf of the employer. The 

petitioning employer shall consider available United States workers for 

the temporary services or labor, and shall offer terms and conditions of 

employment which are consistent with the nature of the occupation, 

activity, and industry in the United States.

    (C) The petitioner may not file an H-2B petition unless the United 

States petitioner has applied for a labor certification with the 

Secretary of Labor or the Governor of Guam within the time limits 

prescribed or accepted by each, and has obtained a labor certification 

determination as required by paragraph (h)(6)(iv) or (h)(6)(v) of this 

section.

    (D) The Secretary of Labor and the Governor of Guam shall separately 

establish procedures for administering the temporary labor certification 

program under his or her jurisdiction.

    (E) After obtaining a determination from the Secretary of Labor or 

the Governor of Guam, as appropriate, the petitioner shall file a 

petition on I-129, accompanied by the labor certification determination 

and supporting documents, with the director having jurisdiction in the 

area of intended employment.

    (iv) Labor certifications, except Guam--(A) Secretary of Labor's 

determination. An H-2B petition for temporary employment in the United 

States, except for temporary employment on Guam,



[[Page 277]]



shall be accompanied by a labor certification determination that is 

either:

    (1) A certification from the Secretary of Labor stating that 

qualified workers in the United States are not available and that the 

alien's employment will not adversely affect wages and working 

conditions of similary employed United States workers; or

    (2) A notice detailing the reasons why such certification cannot be 

made. Such notice shall address the availability of U.S. workers in the 

occupation and the prevailing wages and working conditions of U.S. 

workers in the occupation.

    (B) Validity of the labor certification. The Secretary of Labor may 

issue a temporary labor certification for a period of up to one year.

    (C) U.S. Virgin Islands. Temporary labor certifications filed under 

section 101(a)(15)(H)(ii)(b) of the Act for employment in the United 

States Virgin Islands may be approved only for entertainers and athletes 

and only for periods not to exceed 45 days.

    (D) Attachment to petition. If the petitioner receives a notice from 

the Secretary of Labor that certification cannot be made, a petition 

containing countervailing evidence may be filed with the director. The 

evidence must show that qualified workers in the United States are not 

available, and that the terms and conditions of employment are 

consistent with the nature of the occupation, activity, and industry in 

the United States. All such evidence submitted will be considered in 

adjudicating the petition.

    (E) Countervailing evidence. The countervailing evidence presented 

by the petitioner shall be in writing and shall address availability of 

U.S. workers, the prevailing wage rate for the occupation of the United 

States, and each of the reasons why the Secretary of Labor could not 

grant a labor certification. The petitioner may also submit other 

appropriate information in support of the petition. The director, at his 

or her discretion, may require additional supporting evidence.

    (v) Labor certification for Guam--(A) Governor of Guam's 

determination. An H-2B petition for temporary employment on Guam shall 

be accompanied by a labor certification determination that is either:

    (1) A certification from the Governor of Guam stating that qualified 

workers in the United States are not available to perform the required 

services, and that the alien's employment will not adversely affect the 

wages and working conditions of United States resident workers who are 

similarly employed on Guam; or

    (2) A notice detailing the reasons why such certification cannot be 

made. Such notice shall address the availability of U.S. workers in the 

occupation and/or the prevailing wages and working conditions of U.S. 

workers in the occupation.

    (B) Validity of labor certification. The Governor of Guam may issue 

a temporary labor certification for a period up to one year.

    (C) Attachments to petition. If the employer receives a notice from 

the Governor of Guam that certification cannot be made, a petition 

containing countervailing evidence may be filed with the director. The 

evidence must show that qualified workers in the United States are not 

available, and that the terms and conditions of employment are 

consistent with the nature of the occupation, activity, and industry in 

the United States. All such evidence submitted will be considered in 

adjudicating the petition.

    (D) Countervailing evidence. The countervailing evidence presented 

by the petitioner shall be in writing and shall address availability of 

United States workers, the prevailing wage rate, and each of the reasons 

why the Governor of Guam could not make the required certification. The 

petitioner may also provide any other appropriate information in support 

of the petition. The director, at his or her discretion, may require 

additional supporting evidence.

    (E) Criteria for Guam labor certifications. The Governor of Guam 

shall, in consultation with the Service, establish systematic methods 

for determining the prevailing wage rates and working conditions for 

individual occupations on Guam and for making determinations as to 

availability of qualified United States residents.

    (1) Prevailing wage and working conditions. The system to determine 

wages



[[Page 278]]



and working conditions must provide for consideration of wage rates and 

employment conditions for occupations in both the private and public 

sectors, in Guam and/or in the United States (as defined in section 

101(a)(38) of the Act), and may not consider wages and working 

conditions outside of the United States. If the system includes 

utilitzation of advisory opinions and consultations, the opinions must 

be provided by officially sanctioned groups which reflect a balance of 

the interests of the private and public sectors, government, unions and 

management.

    (2) Availability of United States workers. The system for 

determining availability of qualified United States workers must require 

the prospective employer to:

    (i) Advertise the availability of the position for a minimum of 

three consecutive days in the newspaper with the largest daily 

circulation on Guam;

    (ii) Place a job offer with an appropriate agency of the Territorial 

Government which operates as a job referral service at least 30 days in 

advance of the need for the services to commence, except that for 

applications from the armed forces of the United States and those in the 

entertainment industry, the 30-day period may be reduced by the Governor 

to 10 days;

    (iii) Conduct appropriate recruitment in other areas of the United 

and its territories if sufficient qualified United States construction 

workers are not available on Guam to fill a job. The Governor of Guam 

may require a job order to be placed more than 30 days in advance of 

need to accommodate such recruitment;

    (iv) Report to the appropriate agency the names of all United States 

resident workers who applied for the position, indicating those hired 

and the job-related reasons for not hiring;

    (v) Offer all special considerations, such as housing and 

transportation expenses, to all United States resident workers who 

applied for the position, indicating those hired and the job-related 

reasons for not hiring;

    (vi) Meet the prevailing wage rates and working conditions 

determined under the wages and working conditions system by the 

Governor; and

    (vii) Agree to meet all Federal and Territorial requirements 

relating to employment, such as nondiscrimination, occupational safety, 

and minimum wage requirements.

    (F) Approval and publication of employment systems on Guam--(1) 

Systems. The Commissioner of Immigration and Naturalization must approve 

the system to determine prevailing wages and working conditions and the 

system to determine availability of United States resident workers and 

any future modifications of the systems prior to implementation. If the 

Commissioner, in consultation with the Secretary of Labor, finds that 

the systems or modified systems meet the requirements of this section, 

the Commissioner shall publish them as a notice in the Federal Register 

and the Governor shall publish them as a public record in Guam.

    (2) Approval of construction wage rates. The Commissioner must 

approve specific wage data and rates used for construction occupations 

on Guam prior to implementation of new rates. The Governor shall submit 

new wage survey data and proposed rates to the Commissioner for approval 

at least eight weeks before authority to use existing rates expires. 

Surveys shall be conducted at least every two years, unless the 

Commissioner prescribes a lesser period.

    (G) Reporting. The Governor shall provide the Commissioner 

statistical data on temporary labor certification workload and 

determinations. This information shall be submitted quarterly no later 

than 30 days after the quarter ends.

    (H) Invalidation of temporary labor certification issued by the 

Governor of Guam--(1) General. A temporary labor certification issued by 

the Governor of Guam may be invalidated by a director if it is 

determined by the director or a court of law that the certification 

request involved fraud or willful misrepresentation. A temporary labor 

certification may also be invalidated if the director determines that 

the certification involved gross error.

    (2) Notice of intent to invalidate. If the director intends to 

invalidate a temporary labor certification, a notice of



[[Page 279]]



intent shall be served upon the employer, detailing the reasons for the 

intended invalidation. The employer shall have 30 days in which to file 

a written response in rebuttal to the notice of intent. The director 

shall consider all evidence submitted upon rebuttal in reaching a 

decision.

    (3) Appeal of invalidation. An employer may appeal the invalidation 

of a temporary labor certification in accordance with part 103 of this 

chapter.

    (vi) Evidence for H-2B petitions. An H-2B petition shall be 

accompanied by:

    (A) Labor certification or notice. A temporary labor certification 

or a notice that certification cannot be made, issued by the Secretary 

of Labor or the Governor of Guam, as appropriate;

    (B) Countervailing evidence. Evidence to rebut the Secretary of 

Labor's or the Governor of Guam's notice that certification cannot be 

made, if appropriate;

    (C) Alien's qualifications. Documentation that the alien qualifies 

for the job offer as specified in the application for labor 

certification, except in petitions where the labor certification 

application requires no education, training, experience, or special 

requirements of the beneficiary; and

    (D) Statement of need. A statement describing in detail the 

temporary situation or conditions which make it necessary to bring the 

alien to the United States and whether the need is a one-time 

occurrence, seasonal, peakload, or intermittent. If the need is 

seasonal, peakload, or intermittent, the statement shall indicate 

whether the situation or conditions are expected to be recurrent.

    (E) Liability for transportation costs. The employer will be liable 

for the reasonable costs of return transportation of the alien abroad, 

if the alien is dismissed from employment for any reason by the employer 

before the end of the period of authorized admission pursuant to section 

214(c)(5) of the Act. If the beneficiary voluntarily terminates his or 

her employment prior to the expiration of the validity of the petition, 

the alien has not been dismissed. If the beneficiary believes that the 

employer has not complied with this provision, the beneficiary shall 

advise the Service Center which adjudicated the petition in writing. The 

complaint will be retained in the file relating to the petition. Within 

the context of this paragraph, the term ``abroad'' means the alien's 

last place of foreign residence. This provision applies to any employer 

whose offer of employment became the basis for the alien obtaining or 

continuing H-2B status.

    (vii) Traded professional H-2B athletes. In the case of a 

professional H-2B athlete who is traded from one organization or another 

organization, employment authorization for the player will automatically 

continue for a period of 30 days after the player's acquisition by the 

new organization, within which time the new organization is expected to 

file a new Form I-129 for H-2B nonimmigrant classification. If a new 

Form I-129 is not filed within 30 days, employment authorization will 

cease. If a new Form I-129 is filed within 30 days, the professional 

athlete shall be deemed to be in valid H-2B status, and employment shall 

continue to be authorized, until the petition is adjudicated. If the new 

petition is denied, employment authorization will cease.

    (7) Petition for alien trainee or participant in a special education 

exchange visitor program (H-3)--(i) Alien trainee. The H-3 trainee is a 

nonimmigrant who seeks to enter the United States at the invitation of 

an organization or individual for the purpose of receiving training in 

any field of endeavor, such as agriculture, commerce, communications, 

finance, government, transportation, or the professions, as well as 

training in a purely industrial establishment. This category shall not 

apply to physicians, who are statutorily ineligible to use H-3 

classification in order to receive any type of graduate medical 

education or training.

    (A) Externs. A hospital approved by the American Medical Association 

or the American Osteopathic Association for either an internship or 

residency program may petition to classify as an H-3 trainee a medical 

student attending a medical school abroad, if the alien will engage in 

employment as an extern during his/her medical school vacation.

    (B) Nurses. A petitioner may seek H-3 classification for a nurse who 

is not H-1 if it can be established that there



[[Page 280]]



is a genuine need for the nurse to receive a brief period of training 

that is unavailable in the alien's native country and such training is 

designed to benefit the nurse and the overseas employer upon the nurse's 

return to the country of origin, if:

    (1) The beneficiary has obtained a full and unrestricted license to 

practice professional nursing in the country where the beneficiary 

obtained a nursing education, or such education was obtained in the 

United States or Canada; and

    (2) The petitioner provides a statement certifying that the 

beneficiary is fully qualified under the laws governing the place where 

the training will be received to engage in such training, and that under 

those laws the petitioner is authorized to give the beneficiary the 

desired training.

    (ii) Evidence required for petition involving alien trainee--(A) 

Conditions. The petitioner is required to demonstrate that:

    (1) The proposed training is not available in the alien's own 

country;

    (2) The beneficiary will not be placed in a position which is in the 

normal operation of the business and in which citizens and resident 

workers are regularly employed;

    (3) The beneficiary will not engage in productive employment unless 

such employment is incidental and necessary to the training; and

    (4) The training will benefit the beneficiary in pursuing a career 

outside the United States.

    (B) Description of training program. Each petition for a trainee 

must include a statement which:

    (1) Describes the type of training and supervision to be given, and 

the structure of the training program;

    (2) Sets forth the proportion of time that will be devoted to 

productive employment;

    (3) Shows the number of hours that will be spent, respectively, in 

classroom instruction and in on-the-job training;

    (4) Describes the career abroad for which the training will prepare 

the alien;

    (5) Indicates the reasons why such training cannot be obtained in 

the alien's country and why it is necessary for the alien to be trained 

in the United States; and

    (6) Indicates the source of any remuneration received by the trainee 

and any benefit which will accrue to the petitioner for providing the 

training.

    (iii) Restrictions on training program for alien trainee. A training 

program may not be approved which:

    (A) Deals in generalities with no fixed schedule, objectives, or 

means of evaluation;

    (B) Is incompatible with the nature of the petitioner's business or 

enterprise;

    (C) Is on behalf of a beneficiary who already possesses substantial 

training and expertise in the proposed field of training;

    (D) Is in a field in which it is unlikely that the knowledge or 

skill will be used outside the United States;

    (E) Will result in productive employment beyond that which is 

incidental and necessary to the training;

    (F) Is designed to recruit and train aliens for the ultimate 

staffing of domestic operations in the United States;

    (G) Does not establish that the petitioner has the physical plant 

and sufficiently trained manpower to provide the training specified; or

    (H) Is designed to extend the total allowable period of practical 

training previously authorized a nonimmigrant student.

    (iv) Petition for participant in a special education exchange 

visitor program--(A) General Requirements. (1) The H-3 participant in a 

special education training program must be coming to the United States 

to participate in a structured program which provides for practical 

training and experience in the education of children with physical, 

mental, or emotional disabilities.

    (2) The petition must be filed by a facility which has 

professionally trained staff and a structured program for providing 

education to children with disabilities, and for providing training and 

hands-on experience to participants in the special education exchange 

visitor program.

    (3) The requirements in this section for alien trainees shall not 

apply to petitions for participants in a special education exchange 

visitor program.



[[Page 281]]



    (B) Evidence. An H-3 petition for a participant in a special 

education exchange visitor program shall be accompanied by:

    (1) A description of the training program and the facility's 

professional staff and details of the alien's participation in the 

training program (any custodial care of children must be incidental to 

the training), and

    (2) Evidence that the alien participant is nearing completion of a 

baccalaureate or higher degree in special education, or already holds 

such a degree, or has extensive prior training and experience in 

teaching children with physical, mental, or emotional disabilities.

    (8) Numerical limits--(i) Limits on affected categories. During each 

fiscal year, the total number of aliens who can be provided nonimmigrant 

classification is limited as follows:

    (A) Aliens classified as H-1B nonimmigrants, excluding those 

involved in Department of Defense research and development projects or 

coproduction projects, may not exceed:

    (1) 115,000 in fiscal year 1999;

    (2) 115,000 in fiscal year 2000;

    (3) 107,500 in fiscal year 2001; and

    (4) 65,000 in each succeeding fiscal year.

    (B) Aliens classified as H-1B nonimmigrants to work for DOD research 

and development projects or coproduction projects may not exceed 100 at 

any time.

    (C) Aliens classified as H-2B nonimmigrants may not exceed 66,000.

    (D) Aliens classified as H-3 nonimmigrant participants in a special 

education exchange visitor program may not exceed 50.

    (E) Aliens classified as H-1C nonimmigrants may not exceed 500 in a 

fiscal year.

    (ii) Procedures. (A) Each alien issued a visa or otherwise provided 

nonimmigrant status under section 101(a)(15)(H)(i)(b), 

101(a)(15)(H)(i)(c), or 101(a)(15)(H)(ii) of the Act shall be counted 

for purposes of 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 nonimmigrants shall not be counted against the numerical limit.

    (B) When calculating the numerical limitations for a given fiscal 

year, USCIS will make numbers available to petitions in the order in 

which the petitions are filed. USCIS will make projections of the number 

of petitions necessary to achieve the numerical limit of approvals, 

taking into account historical data related to approvals, denials, 

revocations, and other relevant factors. USCIS will monitor the number 

of petitions (including the number of beneficiaries requested when 

necessary) received and will notify the public of the date that USCIS 

has received the necessary number of petitions (the ``final receipt 

date''). The date of publication will not control the final receipt 

date. When necessary to ensure the fair and orderly allocation of 

numbers in a particular classification subject to numerical limits, 

USCIS may randomly select from among the petitions received on the final 

receipt date the remaining number of petitions deemed necessary to 

generate the numerical limit of approvals. This random selection will be 

made via computer-generated selection as validated by the Office of 

Immigration Statistics. Petitions not randomly selected, and petitions 

received after the final receipt date, will be rejected. If the final 

receipt date is the same as the first date on which petitions subject to 

the applicable cap may be filed (i.e., if the cap is reached on the 

first day filings can be made), USCIS will randomly apply all of the 

numbers among the petitions filed on the final receipt date and the 

following day.

    (C) When an approved petition is not used because the 

beneficiary(ies) does not apply for admission to the United States, the 

petitioner shall notify the Service Center Director who approved the 

petition that the number(s) has not been used. The petition shall be 

revoked pursuant to paragraph (h)(11)(ii) of this section and USCIS will 

take into account the unused number during the appropriate fiscal year.

    (D) If the total numbers available in a fiscal year are used, new 

petitions and the accompanying fee shall be rejected and returned with a 

notice that



[[Page 282]]



numbers are unavailable for the particular nonimmigrant classification 

until the beginning of the next fiscal year.

    (E) The 500 H-1C nonimmigrant visas issued each fiscal year shall be 

allocated in the following manner:

    (1) For each fiscal year, the number of visas issued to the states 

of California, Florida, Illinois, Michigan, New York, Ohio, 

Pennsylvania, and Texas shall not exceed 50 each (except as provided for 

in paragraph (h)(8)(ii)(F)(3) of this section).

    (2) For each fiscal year, the number of visas issued to the states 

not listed in paragraph (h)(8)(ii)(F)(1) of this section shall not 

exceed 25 each (except as provided for in paragraph (h)(8)(ii)(F)(3) of 

this section).

    (3) If the total number of visas available during the first three 

quarters of a fiscal year exceeds the number of approvable H-1C 

petitions during those quarters, visas may be issued during the last 

quarter of the fiscal year to nurses who will be working in a state 

whose cap has already been reached for that fiscal year.

    (4) When an approved H-1C petition is not used because the alien(s) 

does not obtain H-1C classification, e.g., the alien is never admitted 

to the United States, or the alien never worked for the facility, the 

facility must notify the Service according to the instructions contained 

in paragraph (h)(11)(ii) of this section. The Service will subtract H-1C 

petitions approved in the current fiscal year that are later revoked 

from the total count of approved H-1C petitions, provided that the alien 

never commenced employment with the facility.

    (5) If the number of alien nurses included in an H-1C petition 

exceeds the number available for the remainder of a fiscal year, the 

Service shall approve the petition for the beneficiaries to the 

allowable amount in the order that they are listed on the petition. The 

remaining beneficiaries will be considered for approval in the 

subsequent fiscal year.

    (6) Once the 500 cap has been reached, the Service will reject any 

new petitions subsequently filed requesting a work start date prior to 

the first day of the next fiscal year.

    (9) Approval and validity of petition--(i) Approval. The director 

shall consider all the evidence submitted and such other evidence as he 

or she may independently require to assist his or her adjudication. The 

director shall notify the petitioner of the approval of the petition on 

Form I-797, Notice of Action. The approval shall be as follows:

    (A) The approval notice shall include the beneficiary's(ies') 

name(s) and classification and the petition's period of validity. A 

petition for more than one beneficiary and/or multiple services may be 

approved in whole or in part. The approval notice shall cover only those 

beneficiaries approved for classification under section 101(a)(15)(H) of 

the Act.

    (B) The petition may not be filed or approved earlier than 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 H 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)(1) H-1B petition in a specialty occupation. An approved petition 

classified under section 101(a)(15)(H)(i)(b) of the



[[Page 283]]



Act for an alien in a specialty occupation shall be valid for a period 

of up to three years but may not exceed the validity period of the labor 

condition application.

    (2) H-1B petition involving a DOD research and development or 

coproduction project. An approved petition classified under section 

101(a)(15)(H)(i)(b) of the Act for an alien involved in a DOD research 

and development project or a coproduction project shall be valid for a 

period of up to five years.

    (3) H-1B petition involving an alien of distinguished merit and 

ability in the field of fashion modeling. An approved petition 

classified under section 101(a)(15)(H)(i)(b) of the Act for an alien of 

distinguished merit and ability in the field of fashion modeling shall 

be valid for a period of up to three years.

    (B) H-2B petition--(1) 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 this section.

    (ii) Approval. In any case where the director decides that approval 

of the H-2B petition is warranted despite the issuance of a notice by 

the Secretary of Labor or the Governor of Guam that certification cannot 

be made, the approval shall be certified by the Director to the 

Commissioner pursuant to 8 CFR 103.4. In emergent situations, the 

certification may be presented by telephone to the Director, 

Administrative Appeals Office, Headquarters. If approved, the petition 

is valid for the period of established need not to exceed one year. 

There is no appeal from a decision which has been certified to the 

Commissioner.

    (C)(1) H-3 petition for alien trainee. An approved petition for an 

alien trainee classified under section 101(a)(15)(H)(iii) of the Act 

shall be valid for a period of up to two years.

    (2) H-3 petition for alien participant in a special education 

training program. An approved petition for an alien classified under 

section 101(a)(15)(H)(iii) of the Act as a participant in a special 

education exchange visitor program shall be valid for a period of up to 

18 months.

    (D) H-1C petition for a registered nurse. An approved petition for 

an alien classified under section 101(a)(15)(H)(i)(c) of the Act shall 

be valid for a period of 3 years.

    (iv) Spouse and dependents. The spouse and unmarried minor children 

of the beneficiary are entitled to H nonimmigrant classification, 

subject to the same period of admission and limitations as the 

beneficiary, if they are accompanying or following to join the 

beneficiary in the United States. Neither the spouse nor a child of the 

beneficiary may accept employment unless he or she is the beneficiary of 

an approved petition filed in his or her behalf and has been granted a 

nonimmigrant classification authorizing his or her employment.

    (10) Denial of petition--(i) Multiple beneficiaries. A petition for 

multiple 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 inform U.S. ation 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.

    (11) Revocation of approval of petition--(i) General. (A) The 

petitioner



[[Page 284]]



shall immediately notify the Service of any changes in the terms and 

conditions of employment of a beneficiary which may affect eligibility 

under section 101(a)(15)(H) of the Act and paragraph (h) of this 

section. An amended petition on Form I-129 should be filed when the 

petitioner continues to employ the beneficiary. If the petitioner no 

longer employs the beneficiary, the petitioner shall send a letter 

explaining the change(s) to the director who approved the petition.

    (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 the petition violated pargraph (h) of this 

section or involved gross error.

    (B) Notice and decision. The notice of intent to revoke shall 

contain a detailed statement of the grounds for the revocation and the 

time period allowed for the petitioner's rebuttal. The petitioner may 

submit evidence in rebuttal within 30 days of receipt of the notice. The 

director shall consider all relevant evidence presented in deciding 

whether to revoke the petition in whole or in part. If the petition is 

revoked in part, the remainder of the petition shall remain approved and 

a revised approval notice shall be sent to the petitioner with the 

revocation notice.

    (12) Appeal of a denial or a revocation of a petition--(i) Denial. A 

petition denied in whole or in part may be appealed under part 103 of 

this chapter.

    (ii) Revocation. A petition that has been revoked on notice in whole 

or in part may be appealed under part 103 of this chapter. Automatic 

revocations may not be appealed.

    (13) Admission--(i) General. (A) A beneficiary shall be admitted to 

the United States for the validity period of the petition, plus a period 

of up to 10 days before the validity period begins and 10 days after the 

validity period ends. The beneficiary may not work except during the 

validity period of the petition.

    (B) When an alien in an H classification has spent the maximum 

allowable period of stay in the United States, a new petition under 

sections 101(a)(15) (H) or (L) of the Act may not be approved unless 

that alien has resided and been physically present outside the United 

States, except for brief trips for business or pleasure, for the time 

limit imposed on the particular H classification. Brief trips to the 

United States for business or pleasure during the required time abroad 

are not interruptive, but do not count towards fulfillment of the 

required time abroad. 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-1C limitation on admission. The maximum period of admission 

for an H-1C nonimmigrant alien is 3 years. The maximum period of 

admission for an H-1C alien begins on the date the H-1C alien is 

admitted to the United and ends on the third anniversary of the alien's 

admission date. Periods of time spent out of the United States for 

business or personal reasons during the validity period of the H-1C 

petition count towards the alien's maximum period of admission. When an 

H-1C alien has reached the 3-year maximum period of admission, the H-1C 

alien is no longer eligible for admission to the United States as an H-

1C nonimmigrant alien.

    (iii) H-1B limitation on admission. (A) Alien in a specialty 

occupation or an alien of distinguished merit and ability in the field 

of fashion modeling. An H-1B alien in a specialty occupation or an



[[Page 285]]



alien of distinguished merit and ability who has spent six years in the 

United States under section 101(a)(15)(H) and/or (L) of the Act may not 

seek extension, change status, or be readmitted to the United States 

under section 101(a)(15) (H) or (L) of the Act unless the alien has 

resided and been physically present outside the United States, except 

for brief trips for business or pleasure, for the immediate prior year.

    (B) Alien involved in a DOD research and development or coproduction 

project. An H-1B alien involved in a DOD research and development or 

coproduction project who has spent 10 years in the United States under 

section 101(a)(15) (H) and/or (L) of the Act may not seek extension, 

change status, or be readmitted to the United States under section 

101(a)(15) (H) or (L) of the Act to perform services involving a DOD 

research and development project or coproduction project. A new petition 

or change of status under section 101(a)(15) (H) or (L) of the Act may 

not be approved for such an alien unless the alien has resided and been 

physically present outside the United States, except for brief trips for 

business or pleasure, for the immediate prior year.

    (iv) H-2B and H-3 limitation on admission. An H-2B alien who has 

spent 3 years in the United States under section 101(a)(15)(H) and/or 

(L) of the Act; 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)(iii) through 

(h)(13)(iv) of this section shall not apply to H-1B, H-2B, and H-3 

aliens who did not reside continually in the United States and whose 

employment in the United States was seasonal or intermittent or was for 

an aggregate of 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.

    (14) Extension of visa petition validity. The petitioner shall file 

a request for a petition extension on Form I-129 to extend the validity 

of the original petition under section 101(a)(15)(H) of the Act. 

Supporting evidence is not required unless requested by the director. A 

request for a petition extension may be filed only if the validity of 

the original petition has not expired.

    (15) Extension of stay--(i) General. The petitioner shall apply for 

extension of an alien's stay in the United States by filing a petition 

extension on Form I-129 accompanied by the documents described for the 

particular classification in paragraph (h)(15)(ii) of this section. The 

petitioner must also request a petition extension. The dates of 

extension shall be the same for the petition and the beneficiary's 

extension of stay. The beneficiary must be physically present in the 

United States at the time of the filing of the extension of stay. Even 

though the requests to extend the petition and the alien's stay are 

combined on the petition, the director shall make a separate 

determination on each. If the alien is required to leave the United 

States for business or personal reasons while the extension requests are 

pending, the petitioner may request the director to cable notification 

of approval of the petition extension to the consular office abroad 

where the alien will apply for a visa. When the total period of stay in 

an H classification has been reached, no further extensions may be 

granted.

    (ii) Extension periods--(A) H-1C extension of stay. The maximum 

period of admission for an H-1C alien is 3 years. An H-1C alien who was 

initially admitted to the United States for less than 3 years may 

receive an extension of stay up to the third anniversary date of his



[[Page 286]]



or her initial admission. An H-1C nonimmigrant may not receive an 

extension of stay beyond the third anniversary date of his or her 

initial admission to the United States.

    (B) H-1B extension of stay--(1) Alien in a specialty occupation or 

an alien of distinguished merit and ability in the field of fashion 

modeling. An extension of stay may be authorized for a period of up to 

three years for a beneficiary of an H-1B petition in a specialty 

occupation or an alien of distinguished merit and ability. The alien's 

total period of stay may not exceed six years. The request for extension 

must be accompanied by either a new or a photocopy of the prior 

certification from the Department of Labor that the petitioner continues 

to have on file a labor condition application valid for the period of 

time requested for the occupation.

    (2) Alien in a DOD research and development or coproduction project. 

An extension of stay may be authorized for a period up to five years for 

the beneficiary of an H-1B petition involving a DOD research and 

development project or coproduction project. The total period of stay 

may not exceed 10 years.

    (C) H-2A or H-2B extension of stay. An extension of stay for the 

beneficiary of an H-2A or H-2B petition may be authorized for the 

validity of the labor certification or for a period of up to one year, 

except as provided for in paragraph (h)(5)(x) of this section. The 

alien's total period of stay as an H-2A or H-2B worker may not exceed 

three years, except that in the Virgin Islands, the alien's total period 

of stay may not exceed 45 days.

    (D) H-3 extension of stay. An extension of stay may be authorized 

for the length of the training program for a total period of stay as an 

H-3 trainee not to exceed two years, or for a total period of stay as a 

participant in a special education training program not to exceed 18 

months.

    (16) Effect of approval of a permanent labor certification or filing 

of a preference petition on H classification--(i) H-1B or H-1C 

classification. The approval of a permanent labor certification or the 

filing of a preference petition for an alien shall not be a basis for 

denying an H-1C or H-1B petition or a request to extend such a petition, 

or the alien's admission, change of status, or extension of stay. The 

alien may legitimately come to the United States for a temporary period 

as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his 

or her authorized stay and, at the same time, lawfully seek to become a 

permanent resident of the United States.

    (ii) H-2A, H-2B, and H-3 classification. The approval of a permanent 

labor certification, or the filing of a preference petition for an alien 

currently employed by or in a training position with the same 

petitioner, shall be a reason, by itself, to deny the alien's extension 

of stay.

    (17) Effect of a strike--(i) If the Secretary of Labor certifies to 

the Commissioner that a strike or other labor dispute involving a work 

stoppage of workers is in progress in the occupation and at the place 

where the beneficiary is to be employed or trained, and that the 

employment of training of the beneficiary would adversely affect the 

wages and working conditions of U.S. citizens and lawful resident 

workers:

    (A) A petition to classify an alien as a nonimmigrant as defined in 

section 101(a)(15)(H) of the Act shall be denied.

    (B) If a petition has already been approved, but the alien has not 

yet entered the United States, or has entered the United States but has 

not commenced the employment, the approval of the petition is 

automatically suspended, and the application for admission on the basis 

of the petition shall be denied.

    (ii) If there is a strike or other labor dispute involving a work 

stoppage of workers in progress, but such strike or other labor dispute 

is not certified under paragraph (h)(17)(i), the Commissioner shall not 

deny a petition or suspend an approved petition.

    (iii) If the alien has already commenced employment in the United 

States under an approved petition and is participating in a strike or 

other labor dispute involving a work stoppage of workers, whether or not 

such strike or other labor dispute has been certified by the Department 

of Labor, the alien shall not be deemed to be failing to maintain his or 

her status solely on account of past, present, or future



[[Page 287]]



participation in a strike or other labor dispute involving a work 

stoppage of workers, but is subject to the following terms and 

conditions:

    (A) The alien shall remain subject to all applicable provisions of 

the Immigration and Nationality Act, and regulations promulgated in the 

same manner as all other H nonimmigrants;

    (B) The status and authorized period of stay of such an alien is not 

modified or extended in any way by virtue of his or her participation in 

a strike or other labor dispute involving a work stoppage of workers; 

and

    (C) Although participation by an H nonimmigrant alien in a strike or 

other labor dispute involving a work stoppage of workers will not 

constitute a ground for deportation, any alien who violates his or her 

status or who remains in the United States after his or her authorized 

period of stay has expired will be subject to deportation.

    (18) Use of approval notice, Form I-797. The Service shall notify 

the petitioner on Form I-797 whenever a visa petition, an extension of a 

visa petition, or an alien's extension of stay is approved under the H 

classification. The beneficiary of an H petition who does not require a 

nonimmigrant visa may present a copy of the approval notice at a port of 

entry to facilitate entry into the United States. A beneficiary who is 

required to present a visa for admission and whose visa will have 

expired before the date of his or her intended return may use a copy of 

Form I-797 to apply for a new or revalidated visa during the validity 

period of the petition. The copy of Form I-797 shall be retained by the 

beneficiary and presented during the validity of the petition when 

reentering the United States to resume the same employment with the same 

petitioner.

    (19) Additional fee for filing certain H-1B petitions. (i) A United 

States employer (other than an exempt employer as defined in paragraph 

(h)(19)(iii) of this section) who files a Form I-129, on or after 

December 1, 1998, and before October 1, 2001, must include the 

additional fee required in Sec. 103.7(b)(1) of this chapter, if the 

petition is filed for any of the following purposes:

    (A) An initial grant of H-1B status under section 

101(a)(15)(H)(i)(b) of the Act;

    (B) An initial extension of stay, as provided in paragraph 

(h)(15)(i) of this section; or

    (C) Authorization for a change in employers, as provided in 

paragraph (h)(2)(i)(D) of this section.

    (ii) A petitioner must submit the $110 filing fee and additional 

$500 filing fee in a single remittance totaling $610. Payment of the 

$610 sum ($110 filing fee and additional $500 filing fee) must be made 

at the same time to constitute a single remittance. A petitioner may 

submit two checks, one in the amount of $500 and the other in the amount 

of $110. The Service will accept remittances of the $500 fee only from 

the United States employer or its representative of record, as defined 

under 8 CFR part 292 and 8 CFR 103.2(a).

    (iii) The following exempt organizations are not required to pay the 

additional fee:

    (A) An institution of higher education, as defined in section 101(a) 

of the Higher Education Act of 1965;

    (B) An affiliated or related nonprofit entity. A nonprofit entity 

(including but not limited to hospitals and medical or research 

institutions) that is connected or associated with an institution of 

higher education, through shared ownership or control by the same board 

or federation operated by an institution of higher education, or 

attached to an institution of higher education as a member, branch, 

cooperative, or subsidiary; or

    (C) A nonprofit research organization or governmental research 

organization. A nonprofit research organization is an organization that 

is primarily engaged in basic research and/or applied research. A 

governmental research organization is a United States Government entity 

whose primary mission is the performance or promotion of basic research 

and/or applied research. Basic research is general research to gain more 

comprehensive knowledge or understanding of the subject under study, 

without specific applications in mind. Basic research is also research 

that advances scientific knowledge, but does not have specific immediate 

commercial objectives although it may be in



[[Page 288]]



fields of present or potential commercial interest. It may include 

research and investigation in the sciences, social sciences, or 

humanities. Applied research is research to gain knowledge or 

understanding to determine the means by which a specific, recognized 

need may be met. Applied research includes investigations oriented to 

discovering new scientific knowledge that has specific commercial 

objectives with respect to products, processes, or services. It may 

include research and investigation in the sciences, social sciencies, or 

humanities.

    (iv) Non-profit or tax exempt organizations. For purposes of 

paragraphs (h)(19)(iii) (B) and (C) of this section, a nonprofit 

organization or entity is:

    (A) Defined as a tax exempt organization under the Internal Revenue 

Code of 1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3), 

(c)(4) or (c)(6), and

    (B) Has been approved as a tax exempt organization for research or 

educational purposes by the Internal Revenue Service.

    (v) Filing situations where the $500 filing fee is not required. The 

$500 filing fee is not required:

    (A) If the petition is an amended H-1B petition that does not 

contain any requests for an extension of stay;

    (B) If the petition is an H-1B petition filed for the sole purpose 

of correcting a Service error; or

    (C) If the petition is the second or subsequent request for an 

extension of stay filed by the employer regardless of when the first 

extension of stay was filed or whether the $500 filing fee was paid on 

the initial petition or the first extension of stay.

    (vi) Petitioners required to file Form I-129W. All petitioners must 

submit Form I-129W with the appropriate supporting documentation with 

the petition for an H-1B nonimmigrant alien. Petitioners who do not 

qualify for a fee exemption are required only to fill our Part A of Form 

I-129W.

    (vii) Evidence to be submitted in support of the Form I-129W. (A) 

Employer claiming to be exempt. An employer claiming to be exempt from 

the $500 filing fee must complete both Parts A and B of Form I-129W 

along with Form I-129. The employer must also submit evidence as 

described on Form I-129W establishing that it meets one of the 

exemptions described at paragraph (h)(19)(iii) of this section. A United 

States employer claiming an exemption from the $500 filing fee on the 

basis that it is a non-profit research organization must submit evidence 

that it has tax exempt status under the Internal Revenue Code of 1986, 

section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3), (c)(4) or 

(c)(6). All other employers claiming an exemption must submit a 

statement describing why the organization or entity is exempt.

    (B) Exempt filing situations. Any non-exempt employer who claims 

that the $500 filing fee does not apply with respect to a particular 

filing for one of the reasons described in Sec. 214.2(h)(19)(v), must 

submit a statement describing why the filing fee is not required.

    (i) Representatives of information media. The admission of an alien 

of the class defined in section 101(a)(15)(I) of the Act constitutes an 

agreement by the alien not to change the information medium or his or 

her employer until he or she obtains permission to do so from the 

district director having jurisdiction over his or her residence. An 

alien classified as an information media nonimmigrant (I) may be 

authorized admission for the duration of employment.

    (j) Exchange aliens--(1) General--(i) Eligibility for admission. A 

nonimmigrant exchange visitor and his or her accompanying spouse and 

minor children may be admitted into the United States in J-1 and J-2 

classifications under section 101(a)(15)(J) of the Act, if the exchange 

visitor and his or her accompanying spouse and children each presents a 

SEVIS Form DS-2019 issued in his or her own name by a program approved 

by the Department of State for participation by J-1 exchange visitors. 

Prior to August 1, 2003, if exigent circumstances are demonstrated, the 

Service will allow the dependent of an exchange visitor possessing a 

SEVIS Form DS-2019 to enter the United States using a copy of the 

exchange visitor's SEVIS Form DS-2019. However, where the exchange 

visitor presents a properly completed Form DS-2019, Certificate of 

Eligibility for Exchange Visitor (J-1) Status, which was issued to the 

J-1 exchange visitor by a



[[Page 289]]



program approved by the Department of State for participation by 

exchange visitors and which remains valid for the admission of the 

exchange visitor, the accompanying spouse and children may be admitted 

on the basis of the J-1's non-SEVIS Form DS-2019.

    (ii) Admission period. An exchange alien, and J-2 spouse and 

children, may be admitted for a period up to 30 days before the report 

date or start of the approved program listed on Form DS-2019. The 

initial admission of an exchange visitor, spouse and children may not 

exceed the period specified on Form DS-2019, plus a period of 30 days 

for the purposes of travel or for the period designated by the 

Commissioner as provided in paragraph (j)(1)(vi) of this section. 

Regulations of the Department of State published at 22 CFR part 62 give 

general limitations on the stay of the various classes of exchange 

visitors. A spouse or child may not be admitted for longer than the 

principal exchange visitor.

    (iii) Readmission. An exchange alien may be readmitted to the United 

States for the remainder of the time authorized on Form I-94, without 

presenting Form IAP-66, if the alien is returning from a visit solely to 

foreign contiguous territory or adjacent islands after an absence of 

less than 30 days and if the original Form I-94 is presented. All other 

exchange aliens must present a valid Form IAP-66. An original Form IAP-

66 or copy three (the pink copy) of a previously issued form presented 

by an exchange alien returning from a temporary absence shall be 

retained by the exchange alien for re-entries during the balance of the 

alien's stay.

    (iv) Extensions of Stay. If an exchange alien requires an extension 

beyond the initial admission period, the alien shall apply by submitting 

a new Form DS-2019 which indicates the date to which the alien's program 

is extended. The extension may not exceed the period specified on Form 

DS-2019, plus a period of 30 days for the purpose of travel. Extensions 

of stay for the alien's spouse and children require, as an attachment to 

Form DS-2019, Form I-94 for each dependent, and a list containing the 

names of the applicants, dates and places of birth, passport numbers, 

issuing countries, and expiration dates. An accompanying spouse or child 

may not be granted an extension of stay for longer than the principal 

exchange alien.

    (v) Employment. (A) The accompanying spouse and minor children of a 

J-1 exchange visitor may accept employment only with authorization by 

the Immigration and Naturalization Service. A request for employment 

authorization must be made on Form I-765, Application for Employment 

Authorization, with fee, as required by the Service, to the district 

director having jurisdiction over the J-1 exchange visitor's temporary 

residence in the United States. Income from the spouse's or dependent's 

employment may be used to support the family's customary recreational 

and cultural activities and related travel, among other things. 

Employment will not be authorized if this income is needed to support 

the J-1 principal alien.

    (B) J-2 employment may be authorized for the duration of the J-1 

principal alien's authorized stay as indicated on Form I-94 or a period 

of four years, whichever is shorter. The employment authorization is 

valid only if the J-1 is maintaining status. Where a J-2 spouse or 

dependent child has filed a timely application for extension of stay, 

only upon approval of the request for extension of stay may he or she 

apply for a renewal of the employment authorization on a Form I-765 with 

the required fee.

    (vi) Extension of duration of status. The Commissioner may, by 

notice in the Federal Register, at any time she determines that the H-1B 

numerical limitation as described in section 214(g)(1)(A) of the Act 

will likely be reached prior to the end of a current fiscal year, extend 

for such a period of time as the Commissioner deems necessary to 

complete the adjudication of the H-1B application, the duration of 

status of any J-1 alien on behalf of whom an employer has timely filed 

an application for change of status to H-1B. The alien, in accordance 

with 8 CFR part 248, must not have violated the terms of his or her 

nonimmigrant stay and is not subject to the 2-year foreign residence 

requirement at 212(e)



[[Page 290]]



of the Act. Any J-1 student whose duration of status has been extended 

shall be considered to be maintaining lawful nonimmigrant status for all 

purposes under the Act, provided that the alien does not violate the 

terms and conditions of his or her J nonimmigrant stay. An extension 

made under this paragraph also applies to the J-2 dependent aliens.

    (vii) Use of SEVIS. At a date to be established by the Department of 

State, the use of the Student and Exchange Visitor Information System 

(SEVIS) will become mandatory for designated program sponsors. After 

that date, which will be announced by publication in the Federal 

Register, all designated program sponsors must begin issuance of the 

SEVIS Form DS-2019.

    (viii) Current name and address. A J-1 exchange visitor must inform 

the Service and the responsible officer of the exchange visitor program 

of any legal changes to his or her name or of any change of address, 

within 10 days of the change, in a manner prescribed by the program 

sponsor. A J-1 exchange visitor enrolled in a SEVIS program can satisfy 

the requirement in 8 CFR 265.1 of notifying the Service by providing a 

notice of a change of address within 10 days to the responsible officer, 

who in turn shall enter the information in SEVIS within 21 days of 

notification by the exchange visitor. A J-1 exchange visitor enrolled at 

a non-SEVIS program must submit a change of address to the Service, as 

provided in 8 CFR 265.1, within 10 days of the change. Except in the 

case of an exchange visitor who cannot receive mail where he or she 

resides, the address provided by the exchange visitor must be the actual 

physical location where the exchange visitor resides rather than a 

mailing address. In cases where an exchange visitor provides a mailing 

address, the exchange visitor program must maintain a record of, and 

must provide upon request from the Service, the actual physical location 

where the exchange visitor resides.

    (2) Special reporting requirement. Each exchange alien participating 

in a program of graduate medical education or training shall file Form 

I-644 (Supplementary Statement for Graduate Medical Trainees) annually 

with the Service attesting to the conditions as specified on the form. 

The exchange alien shall also submit Form I-644 as an attachment to a 

completed Form DS-2019 when applying for an extension of stay.

    (3) Alien in cancelled programs. When the approval of an exchange 

visitor program is withdrawn by the Director of the United States 

Information Agency, the district director shall send a notice of the 

withdrawal to each participant in the program and a copy of each such 

notice shall be sent to the program sponsor. If the exchange visitor is 

currently engaged in activities authorized by the cancelled program, the 

participant is authorized to remain in the United States to engage in 

those activities until expiration of the period of stay previously 

authorized. The district director shall notify participants in cancelled 

programs that permission to remain in the United States as an exchange 

visitor, or extension of stay may be obtained if the participant is 

accepted in another approved program and a Form DS-2019, executed by the 

new program sponsor, is submitted. In this case, a release from the 

sponsor of the cancelled program will not be required.

    (4) Eligibility requirements for section 101(a)(15)(J) 

classification for aliens desiring to participate in programs under 

which they will receive graduate medical education or training--(i) 

Requirements. Any alien coming to the United States as an exchange 

visitor to participate in a program under which the alien will receive 

graduate medical education or training, or any alien seeking to change 

nonimmigrant status to that of an exchange visitor on Form I-506 for 

that purpose, must have passed parts of I and II of the National Board 

of Medical Examiners Examination (or an equivalent examination as 

determined by the Secretary of Health and Human Services), and must be 

competent in oral and written English, and shall submit a completely 

executed and valid Form DS-2019.

    (ii) Exemptions. From January 10, 1978 until December 31, 1983, any 

alien who has come to or seeks to come to the United States as an 

exchange visitor to participate in an accredited program of graduate 

medical education or training, or any alien who seeks to change



[[Page 291]]



nonimmigrant status for that purpose, may be admitted to participate in 

such program without regard to the requirements stated in subparagraphs 

(A) and (B)(ii)(I) of section 212(j)(1) of the Act if a substantial 

disruption in the health services provided by such program would result 

from not permitting the alien to participate in the program: Provided 

that the exemption will not increase the total number of aliens then 

participating in such programs to a level greater than that 

participating on January 10, 1978.

    (5) Remittance of the fee. An alien who applies for J-1 nonimmigrant 

status in order to commence participation in a Department of State-

designated exchange visitor program is required to pay the SEVIS fee to 

DHS, pursuant to 8 CFR 214.13, except as otherwise provided in that 

section.

    (k) Spouses, Fianc[eacute]es, and Fianc[eacute]s of United States 

Citizens--(1) Petition and supporting documents. To be classified as a 

fiance or fiancee as defined in section 101(a)(15)(K)(i) of the Act, an 

alien must be the beneficiary of an approved visa petition filed on Form 

I-129F. The petition with supporting documents shall be filed by the 

petitioner with the director having administrative jurisdiction over the 

place where the petitioner is residing in the United States. A copy of a 

document submitted in support of a visa petition filed pursuant to 

section 214(d) of the Act and this paragraph may be accepted, though 

unaccompanied by the original, if the copy bears a certification by an 

attorney, typed or rubber-stamped, in the language set forth in Sec. 

204.2(j) of this chapter. However, the original document shall be 

submitted if requested by the Service.

    (2) Requirement that petitioner and K-1 beneficiary have met. The 

petitioner shall establish to the satisfaction of the director that the 

petitioner and K-1 beneficiary have met in person within the two years 

immediately preceding the filing of the petition. As a matter of 

discretion, the director may exempt the petitioner from this requirement 

only if it is established that compliance would result in extreme 

hardship to the petitioner or that compliance would violate strict and 

long-established customs of the K-1 beneficiary's foreign culture or 

social practice, as where marriages are traditionally arranged by the 

parents of the contracting parties and the prospective bride and groom 

are prohibited from meeting subsequent to the arrangement and prior to 

the wedding day. In addition to establishing that the required meeting 

would be a violation of custom or practice, the petitioner must also 

establish that any and all other aspects of the traditional arrangements 

have been or will be met in accordance with the custom or practice. 

Failure to establish that the petitioner and K-1 beneficiary have met 

within the required period or that compliance with the requirement 

should be waived shall result in the denial of the petition. Such denial 

shall be without prejudice to the filing of a new petition once the 

petitioner and K-1 beneficiary have met in person.

    (3) Children of beneficiary. Without the approval of a separate 

petition on his or her behalf, a child of the beneficiary (as defined in 

section 101(b)(1)(A), (B), (C), (D), or (E) of the Act) may be accorded 

the same nonimmigrant classification as the beneficiary if accompanying 

or following to join him or her.

    (4) Notification. The petitioner shall be notified of the decision 

and, if the petition is denied, of the reasons therefor and of the right 

to appeal in accordance with the provisions of part 103 of this chapter.

    (5) Validity. The approval of a petition under this paragraph shall 

be valid for a period of four months. A petition which has expired due 

to the passage of time may be revalidated by a director or a consular 

officer for a period of four months from the date of revalidation upon a 

finding that the petitioner and K-1 beneficiary are free to marry and 

intend to marry each other within 90 days of the beneficiary's entry 

into the United States. The approval of any petition is automatically 

terminated when the petitioner dies or files a written withdrawal of the 

petition before the beneficiary arrives in the United States.

    (6) Adjustment of status from nonimmigrant to immigrant.

    (i) [Reserved]



[[Page 292]]



    (ii) Nonimmigrant visa issued on or after November 10, 1986. Upon 

contracting a valid marriage to the petitioner within 90 days of his or 

her admission as a nonimmigrant pursuant to a valid K-1 visa issued on 

or after November 10, 1986, the K-1 beneficiary and his or her minor 

children may apply for adjustment of status to lawful permanent resident 

under section 245 of the Act. Upon approval of the application the 

director shall record their lawful admission for permanent residence in 

accordance with that section and subject to the conditions prescribed in 

section 216 of the Act.

    (7) Eligibility, petition and supporting documents for K-3/K-4 

classification. To be classified as a K-3 spouse as defined in section 

101(a)(15)(k)(ii) of the Act, or the K-4 child of such alien defined in 

section 101(a)(15)(K)(iii) of the Act, the alien spouse must be the 

beneficiary of an immigrant visa petition filed by a U.S. citizen on 

Form I-130, Petition for Alien Relative, and the beneficiary of an 

approved petition for a K-3 nonimmigrant visa filed on Form I-129F. The 

petitions with supporting documents shall be filed by the petitioner 

with the director having administrative jurisdiction over the place 

where the petitioner is residing in the United States, or such other 

place as the Commissioner may designate.

    (8) Period of admission for K3/K-4 status. Aliens entering the 

United States as a K-3 shall be admitted for a period of 2 years. Aliens 

entering the United States as a K-4 shall be admitted for a period of 2 

years or until that alien's 21st birthday, whichever is shorter.

    (9) Employment authorization. An alien admitted to the United States 

as a nonimmigrant under section 101(a)(15)(K) of the Act shall be 

authorized to work incident to status for the period of authorized stay. 

K-1/K-2 aliens seeking work authorization must apply, with fee, to the 

Service for work authorization pursuant to Sec. 274a.12(a)(6) of this 

chapter. K-3/K-4 aliens must apply to the Service for a document 

evidencing employment authorization pursuant to Sec. 274a.12(a)(9) of 

this chapter. Employment authorization documents issued to K-3/K-4 

aliens may be renewed only upon a showing that the applicant has an 

application or petition awaiting approval, equivalent to the showing 

required for an extension of stay pursuant to Sec. 214.2(k)(10).

    (10) Extension of stay for K-3/K-4 status--(i) General. A K-3/K-4 

alien may apply for extension of stay, on Form I-539, Application to 

Extend/Change Nonimmigrant Status, 120 days prior to the expiration of 

his or her authorized stay. Extensions for K-4 status must be filed 

concurrently with the alien's parent's K-3 status extension application. 

In addition, the citizen parent of a K-4 alien filing for extension of K 

status should file Form I-130 on their behalf. Extension will be granted 

in 2-year intervals upon a showing of eligibility pursuant to section 

101(a)(15)(K)(ii) or (iii) of the Act. Aliens wishing to extend their 

period of stay as a K-3 or K-4 alien pursuant to Sec. 214.1(c)(2) must 

show that one of the following has been filed with the Service or the 

Department of State, as applicable, and is awaiting approval:

    (A) The Form I-130, Petition for Alien Relative, filed by the K-3's 

U.S. citizen spouse who filed the Form I-129F;

    (B) An application for an immigrant visa based on a Form I-130 

described in Sec. 214.2(K)(10)(i);

    (C) A Form I-485, Application for Adjustment to that of Permanent 

Residence, based on a Form I-130 described in Sec. 214.2(k)(10)(i);

    (ii) ``Good Cause'' showing. Aliens may file for an extension of 

stay as a K-3/K-4 nonimmigrant after a Form I-130 filed on their behalf 

has been approved, without filing either an application for adjustment 

of status or an immigrant visa upon a showing of ``good cause.'' A 

showing of ``good cause'' may include an illness, a job loss, or some 

other catastrophic event that has prevented the filing of an adjustment 

of status application by the K-3/K-4 alien. The event or events must 

have taken place since the alien entered the United States as a K-3/K-4 

nonimmigrant. The burden of establishing ``good cause'' rests solely 

with the applicant. Whether the applicant has shown ``good cause'' is a 

purely discretionary decision by the Service from which there is no 

appeal.



[[Page 293]]



    (iii) Notice of intent to deny. When an adverse decision is proposed 

on the basis of evidence not submitted by the applicant, the Service 

shall notify the applicant of its intent to deny the application for 

extension of stay and the basis for the proposed denial. The applicant 

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 

material will be considered in making a final decision.

    (11) Termination of K-3/K-4 status. The status of an alien admitted 

to the United States as a K-3/K-4 under section 101(a)(15)(K)(ii) or 

(iii) of the Act, shall be automatically terminated 30 days following 

the occurrence of any of the following:

    (i) The denial or revocation of the Form I-130 filed on behalf of 

that alien;

    (ii) The denial or revocation of the immigrant visa application 

filed by that alien;

    (iii) The denial or revocation of the alien's application for 

adjustment of status to that of lawful permanent residence;

    (iv) The K-3 spouse's divorce from the U.S. citizen becomes final;

    (v) The marriage of an alien in K-4 status.

    (vi) The denial of any of these petitions or applications to a K-3 

also results in termination of a dependent K-4's status. For purposes of 

this section, there is no denial or revocation of a petition or 

application until the administrative appeal applicable to that 

application or petition has been exhausted.

    (l) Intracompany transferees--(1) Admission of intracompany 

transferees--(i) General. Under section 101(a)(15)(L) of the Act, an 

alien who within the preceding three years has been employed abroad for 

one continuous year by a qualifying organization may be admitted 

temporarily to the United States to be employed by a parent, branch, 

affiliate, or subsidiary of that employer in a managerial or executive 

capacity, or in a position requiring specialized knowledge. An alien 

transferred to the United States under this nonimmigrant classification 

is referred to as an intracompany transferee and the organization which 

seeks the classification of an alien as an intracompany transferee is 

referred to as the petitioner. The Service has responsibility for 

determining whether the alien is eligible for admission and whether the 

petitioner is a qualifying organization. These regulations set forth the 

standards applicable to these classifications. They also set forth 

procedures for admission of intracompany transferees and appeal of 

adverse decisions. Certain petitioners seeking the classification of 

aliens as intracompany transferees may file blanket petitions with the 

Service. Under the blanket petition process, the Service is responsible 

for determining whether the petitioner and its parent, branches, 

affiliates, or subsidiaries specified are qualifying organizations. The 

Department of State or, in certain cases, the Service is responsible for 

determining the classification of the alien.

    (ii) Definitions--(A) Intracompany transferee means an alien who, 

within three years preceding the time of his or her application for 

admission into the United States, has been employed abroad continuously 

for one year by a firm or corporation or other legal entity or parent, 

branch, affiliate, or subsidiary thereof, and who seeks to enter the 

United States temporarily in order to render his or her services to a 

branch of the same employer or a parent, affiliate, or subsidiary 

thereof in a capacity that is managerial, executive, or involves 

specialized knowledge. Periods spent in the United States in lawful 

status for a branch of the same employer or a parent, affiliate, or 

subsidiary thereof and brief trips to the United States for business or 

pleasure shall not be interruptive of the one year of continuous 

employment abroad but such periods shall not be counted toward 

fulfillment of that requirement.

    (B) Managerial capacity means an assignment within an organization 

in which the employee primarily:

    (1) Manages the organization, or a department, subdivision, 

function, or component of the organization;

    (2) Supervises and controls the work of other supervisory, 

professional, or managerial employees, or manages an essential function 

within the organization, or a department or subdivision of the 

organization;



[[Page 294]]



    (3) Has the authority to hire and fire or recommend those as well as 

other personnel actions (such as promotion and leave authorization) if 

another employee or other employees are directly supervised; if no other 

employee is directly supervised, functions at a senior level within the 

organizational hierarchy or with respect to the function managed; and

    (4) Exercises discretion over the day-to-day operations of the 

activity or function for which the employee has authority. A first-line 

supervisor is not considered to be acting in a managerial capacity 

merely by virtue of the supervisor's supervisory duties unless the 

employees supervised are professional.

    (C) Executive capacity means an assignment within an organization in 

which the employee primarily:

    (1) Directs the management of the organization or a major component 

or function of the organization;

    (2) Establishes the goals and policies of the organization, 

component, or function;

    (3) Exercises wide latitude in discretionary decision-making; and

    (4) Receives only general supervision or direction from higher level 

executives, the board of directors, or stockholders of the organization.

    (D) Specialized knowledge means special knowledge possessed by an 

individual of the petitioning organization's product, service, research, 

equipment, techniques, management, or other interests and its 

application in international markets, or an advanced level of knowledge 

or expertise in the organization's processes and procedures.

    (E) Specialized knowledge professional means an individual who has 

specialized knowledge as defined in paragraph (l)(1)(ii)(D) of this 

section and is a member of the professions as defined in section 

101(a)(32) of the Immigration and Nationality Act.

    (F) New office means an organization which has been doing business 

in the United States through a parent, branch, affiliate, or subsidiary 

for less than one year.

    (G) Qualifying organization means a United States or foreign firm, 

corporation, or other legal entity which:

    (1) Meets exactly one of the qualifying relationships specified in 

the definitions of a parent, branch, affiliate or subsidiary specified 

in paragraph (l)(1)(ii) of this section;

    (2) Is or will be doing business (engaging in international trade is 

not required) as an employer in the United States and in at least one 

other country directly or through a parent, branch, affiliate, or 

subsidiary for the duration of the alien's stay in the United States as 

an intracompany transferee; and

    (3) Otherwise meets the requirements of section 101(a)(15)(L) of the 

Act.

    (H) Doing business means the regular, systematic, and continuous 

provision of goods and/or services by a qualifying organization and does 

not include the mere presence of an agent or office of the qualifying 

organization in the United States and abroad.

    (I) Parent means a firm, corporation, or other legal entity which 

has subsidiaries.

    (J) Branch means an operating division or office of the same 

organization housed in a different location.

    (K) Subsidiary means a firm, corporation, or other legal entity of 

which a parent owns, directly or indirectly, more than half of the 

entity and controls the entity; or owns, directly or indirectly, half of 

the entity and controls the entity; or owns, directly or indirectly, 50 

percent of a 50-50 joint venture and has equal control and veto power 

over the entity; or owns, directly or indirectly, less than half of the 

entity, but in fact controls the entity.

    (L) Affiliate means (1) One of two subsidiaries both of which are 

owned and controlled by the same parent or individual, or

    (2) One of two legal entities owned and controlled by the same group 

of individuals, each individual owning and controlling approximately the 

same share or proportion of each entity, or

    (3) In the case of a partnership that is organized in the United 

States to provide accounting services along with managerial and/or 

consulting services and that markets its accounting services under an 

internationally recognized name under an agreement with a worldwide 

coordinating organization that is owned and controlled by the



[[Page 295]]



member accounting firms, a partnership (or similar organization) that is 

organized outside the United States to provide accounting services shall 

be considered to be an affiliate of the United States partnership if it 

markets its accounting services under the same internationally 

recognized name under the agreement with the worldwide coordinating 

organization of which the United States partnership is also a member.

    (M) Director means a Service Center director with delegated 

authority at 8 CFR 103.1.

    (2) Filing of petitions. (i) Except as provided in paragraph 

(l)(2)(ii) and (l)(17) of this section, a petitioner seeking to classify 

an alien as an intracompany transferee shall file a petition on Form I-

129, Petition for Nonimmigrant Worker, only at the Service Center which 

has jurisdiction over the area where the alien will be employed, even in 

emergent situations. The petitioner shall advise the Service whether it 

has filed a petition for the same beneficiary with another office, and 

certify that it will not file a petition for the same beneficiary with 

another office, unless the circumstances and conditions in the initial 

petition have changed. Failure to make a full disclosure of previous 

petitions filed may result in a denial of the petition.

    (ii) A United States petitioner which meets the requirements of 

paragraph (l)(4) of this section and seeks continuing approval of itself 

and its parent, branches, specified subsidiaries and affiliates as 

qualifying organizations and, later, classification under section 

101(a)(15)(L) of multiple numbers of aliens employed by itself, its 

parent, or those branches, subsidiaries, or affiliates may file a 

blanket petition on Form I-129 with the director having jurisdiction 

over the area where the petitioner is located. The blanket petition 

shall be adjudicated and maintained at the appropriate Service Center. 

Approved blanket petition files shall be maintained indefinitely by that 

Service Center. The petitioner shall be the single representative for 

the qualifying organizations with which the Service will deal regarding 

the blanket petition.

    (3) Evidence for individual petitions. An individual petition filed 

on Form I-129 shall be accompanied by:

    (i) Evidence that the petitioner and the organization which employed 

or will employ the alien are qualifying organizations as defined in 

paragraph (l)(1)(ii)(G) of this section.

    (ii) Evidence that the alien will be employed in an executive, 

managerial, or specialized knowledge capacity, including a detailed 

description of the services to be performed.

    (iii) Evidence that the alien has at least one continuous year of 

full-time employment abroad with a qualifying organization within the 

three years preceding the filing of the petition.

    (iv) Evidence that the alien's prior year of employment abroad was 

in a position that was managerial, executive, or involved specialized 

knowledge and that the alien's prior education, training, and employment 

qualifies him/her to perform the intended services in the United States; 

however, the work in the United States need not be the same work which 

the alien performed abroad.

    (v) If the petition indicates that the beneficiary is coming to the 

United States as a manager or executive to open or to be employed in a 

new office in the United States, the petitioner shall submit evidence 

that:

    (A) Sufficient physical premises to house the new office have been 

secured;

    (B) The beneficiary has been employed for one continuous year in the 

three year period preceding the filing of the petition in an executive 

or managerial capacity and that the proposed employment involved 

executive or managerial authority over the new operation; and

    (C) The intended United States operation, within one year of the 

approval of the petition, will support an executive or managerial 

position as defined in paragraphs (l)(1)(ii) (B) or (C) of this section, 

supported by information regarding:

    (1) The proposed nature of the office describing the scope of the 

entity, its organizational structure, and its financial goals;

    (2) The size of the United States investment and the financial 

ability of the foreign entity to remunerate the



[[Page 296]]



beneficiary and to commence doing business in the United States; and

    (3) The organizational structure of the foreign entity.

    (vi) If the petition indicates that the beneficiary is coming to the 

United States in a specialized knowledge capacity to open or to be 

employed in a new office, the petitioner shall submit evidence that:

    (A) Sufficient physical premises to house the new office have been 

secured;

    (B) The business entity in the United States is or will be a 

qualifying organization as defined in paragraph (l)(1)(ii)(G) of this 

section; and

    (C) The petitioner has the financial ability to remunerate the 

beneficiary and to commence doing business in the United States.

    (vii) If the beneficiary is an owner or major stockholder of the 

company, the petition must be accompanied by evidence that the 

beneficiary's services are to be used for a temporary period and 

evidence that the beneficiary will be transferred to an assignment 

abroad upon the completion of the temporary services in the United 

States.

    (viii) Such other evidence as the director, in his or her 

discretion, may deem necessary.

    (4) Blanket petitions. (i) A petitioner which meets the following 

requirements may file a blanket petition seeking continuing approval of 

itself and some or all of its parent, branches, subsidiaries, and 

affiliates as qualifying organizations if:

    (A) The petitioner and each of those entities are engaged in 

commercial trade or services;

    (B) The petitioner has an office in the United States that has been 

doing business for one year or more;

    (C) The petitioner has three or more domestic and foreign branches, 

subsidiaries, or affiliates; and

    (D) The petitioner and the other qualifying organizations have 

obtained approval of petitions for at least ten ``L'' managers, 

executives, or specialized knowledge professionals during the previous 

12 months; or have U.S. subsidiaries or affiliates with combined annual 

sales of at least $25 million; or have a United States work force of at 

least 1,000 employees.

    (ii) Managers, executives, and specialized knowledge professionals 

employed by firms, corporations, or other entities which have been found 

to be qualifying organizations pursuant to an approved blanket petition 

may be classified as intracompany transferees and admitted to the United 

States as provided in paragraphs (l) (5) and (11) of this section.

    (iii) When applying for a blanket petition, the petitioner shall 

include in the blanket petition all of its branches, subsidiaries, and 

affiliates which plan to seek to transfer aliens to the United States 

under the blanket petition. An individual petition may be filed by the 

petitioner or organizations in lieu of using the blanket petition 

procedure. However, the petitioner and other qualifying organizations 

may not seek L classification for the same alien under both procedures, 

unless a consular officer first denies eligibility. Whenever a 

petitioner which has blanket L approval files an individual petition to 

seek L classification for a manager, executive, or specialized knowledge 

professional, the petitioner shall advise the Service that it has 

blanket L approval and certify that the beneficiary has not and will not 

apply to a consular officer for L classification under the approved 

blanket petition.

    (iv) Evidence. A blanket petition filed on Form I-129 shall be 

accompanied by:

    (A) Evidence that the petitioner meets the requirements of paragraph 

(l)(4)(i) of this section.

    (B) Evidence that all entities for which approval is sought are 

qualifying organizations as defined in subparagraph (l)(1)(ii)(G) of 

this section.

    (C) Such other evidence as the director, in his or her discretion, 

deems necessary in a particular case.

    (5) Certification and admission procedures for beneficiaries under 

blanket petition--(i) Jurisdiction. United States consular officers 

shall have authority to determine eligibility of individual 

beneficiaries outside the United States seeking L classification under 

blanket petitions, except for visa-exempt nonimmigrants. An application 

for a visa-exempt nonimmigrant seeking L classification under a blanket 

petition or



[[Page 297]]



by an alien in the United States applying for change of status to L 

classification under a blanket petition shall be filed with the Service 

office at which the blanket petition was filed.

    (ii) Procedures. (A) When one qualifying organization listed in an 

approved blanket petition wishes to transfer an alien outside the United 

States to a qualifying organization in the United States and the alien 

requires a visa to enter the United States, that organization shall 

complete Form I-129S, Certificate of Eligibility for Intracompany 

Transferee under a Blanket Petition, in an original and three copies. 

The qualifying organization shall retain one copy for its records and 

send the original and two copies to the alien. A copy of the approved 

Form I-797 must be attached to the original and each copy of Form I-

129S.

    (B) After receipt of Form I-797 and Form I-129S, a qualified 

employee who is being transferred to the United States may use these 

documents to apply for visa issuance with the consular officer within 

six months of the date on Form I-129S.

    (C) When the alien is a visa-exempt nonimmigrant seeking L 

classification under a blanket petition, or when the alien is in the 

United States and is seeking a change of status from another 

nonimmigrant classification to L classification under a blanket 

petition, the petitioner shall submit Form I-129S, Certificate of 

Eligibility, and a copy of the approval notice, Form I-797, to the 

Service Center with which the blanket petition was filed.

    (D) The consular or Service officer shall determine whether the 

position in which the alien will be employed in the United States is 

with an organization named in the approved petition and whether the 

specific job is for a manager, executive, or specialized knowledge 

professional. The consular or Service officer shall determine further 

whether the alien's immediate prior year of continuous employment abroad 

was with an organization named in the petition and was in a position as 

manager, executive, or specialized knowledge professional.

    (E) Consular officers may grant ``L'' classification only in clearly 

approvable applications. If the consular officer determines that the 

alien is eligible for L classification, the consular officer may issue a 

nonimmigrant visa, noting the visa classification ``Blanket L-1'' for 

the principal alien and ``Blanket L-2'' for any accompanying or 

following to join spouse and children. The consular officer shall also 

endorse all copies of the alien's Form I-129S with the blanket L-1 visa 

classification and return the original and one copy to the alien. When 

the alien is inspected for entry into the United States, both copies of 

the Form I-129S shall be stamped to show a validity period not to exceed 

three years and the second copy collected and sent to the appropriate 

Regional Service Center for control purposes. Service officers who 

determine eligibility of aliens for L-1 classification under blanket 

petitions shall endorse both copies of Form I-129S with the blanket L-1 

classification and the validity period not to exceed three years and 

retain the second copy for Service records.

    (F) If the consular officer determines that the alien is ineligible 

for L classification under a blanket petition, the consular officer's 

decision shall be final. The consular officer shall record the reasons 

for the denial on Form I-129S, retain one copy, return the original of 

I-129S to the Service office which approved the blanket petition, and 

provide a copy to the alien. In such a case, an individual petition may 

be filed for the alien with the director having jurisdiction over the 

area of intended employment; the petition shall state the reason the 

alien was denied L classification and specify the consular office which 

made the determination and the date of the determination.

    (G) An alien admitted under an approved blanket petition may be 

reassigned to any organization listed in the approved petition without 

referral to the Service during his/her authorized stay if the alien will 

be performing virtually the same job duties. If the alien will be 

performing different job duties, the petitioner shall complete a new 

Certificate of Eligibility and send it for approval to the director who 

approved the blanket petition.



[[Page 298]]



    (6) Copies of supporting documents. The petitioner may submit a 

legible photocopy of a document in support of the visa petition, in lieu 

of the original document. However, the original document shall be 

submitted if requested by the Service.

    (7) Approval of petition--(i) General. The director shall notify the 

petitioner of the approval of an individual or a blanket petition within 

30 days after the date a completed petition has been filed. If 

additional information is required from the petitioner, the 30 day 

processing period shall begin again upon receipt of the information. 

Only the Director of a Service Center may approve individual and blanket 

L petitions. The original Form I-797 received from the Service with 

respect to an approved individual or blanket petition may be duplicated 

by the petitioner for the beneficiary's use as described in paragraph 

(l)(13) of this section.

    (A) Individual petition--(1) Form I-797 shall include the 

beneficiary's name and classification and the petition's period of 

validity.

    (2) An individual petition approved under this paragraph shall be 

valid for the period of established need for the beneficiary's services, 

not to exceed three years, except where the beneficiary is coming to the 

United States to open or to be employed in a new office.

    (3) If the beneficiary is coming to the United States to open or be 

employed in a new office, the petition may be approved for a period not 

to exceed one year, after which the petitioner shall demonstrate as 

required by paragraph (l)(14)(ii) of this section that it is doing 

business as defined in paragraph (l) (1)(ii)(H) of this section to 

extend the validity of the petition.

    (B) Blanket petition. (1) Form I-797 shall identify the approved 

organizations included in the petition and the petition's period of 

validity.

    (2) A blanket petition approved under this paragraph shall be valid 

initially for a period of three years and may be extended indefinitely 

thereafter if the qualifying organizations have complied with these 

regulations.

    (3) A blanket petition may be approved in whole or in part and shall 

cover only qualifying organizations.

    (C) Amendments. The petitioner shall file an amended petition, with 

fee, at the Service Center where the original petition was filed to 

reflect changes in approved relationships, additional qualifying 

organizations under a blanket petition, change in capacity of employment 

(i.e., from a specialized knowledge position to a managerial position), 

or any information which would affect the beneficiary's eligibility 

under section 101(a)(15)(L) of the Act.

    (ii) Spouse and dependents. The spouse and unmarried minor children 

of the beneficiary are entitled to L nonimmigrant classification, 

subject to the same period of admission and limits as the beneficiary, 

if the spouse and unmarried minor children are accompanying or following 

to join the beneficiary in the United States. Neither the spouse nor any 

child may accept employment unless he or she has been granted employment 

authorization.

    (8) Denial of petition--(i) Notice of intent to deny. When an 

adverse decision is proposed on the basis of evidence not submitted by 

the petitioner, the director shall notify the petitioner of his or her 

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.

    (ii) Individual petition. If an individual is denied, the petitioner 

shall be notified within 30 days after the date a completed petition has 

been filed of the denial, the reasons for the denial, and the right to 

appeal the denial.

    (iii) Blanket petition. If a blanket petition is denied in whole or 

in part, the petitioner shall be notified within 30 days after the date 

a completed petition has been filed of the denial, the reasons for the 

denial, and the right to appeal the denial. If the petition is denied in 

part, the Service Center issuing the denial shall forward to the 

petitioner, along with the denial, a Form I-797 listing those 

organizations which were found to quality. If the decision to deny is 

reversed on appeal, a new



[[Page 299]]



Form I-797 shall be sent to the petitioner to reflect the changes made 

as a result of the appeal.

    (9) Revocation of approval of individual and blanket petitions--(i) 

General. The director may revoke a petition at any time, even after the 

expiration of the petition.

    (ii) Automatic revocation. The approval of any individual or blanket 

petition is automatically revoked if the petitioner withdraws the 

petition or the petitioner fails to request indefinite validity of a 

blanket petition.

    (iii) Revocation on notice. (A) The director shall send to the 

petitioner a notice of intent to revoke the petition in relevant part if 

he/she finds that:

    (1) One or more entities are no longer qualifying organizations;

    (2) The alien is no longer eligible under section 101(a)(15)(L) of 

the Act;

    (3) A qualifying organization(s) violated requirements of section 

101(a)(15)(L) and these regulations;

    (4) The statement of facts contained in the petition was not true 

and correct; or

    (5) Approval of the petition involved gross error; or

    (6) None of the qualifying organizations in a blanket petition have 

used the blanket petition procedure for three consecutive years.

    (B) The notice of intent to revoke shall contain a detailed 

statement of the grounds for the revocation and the time period allowed 

for the petitioner's rebuttal. Upon receipt of this notice, the 

petitioner may submit evidence in rebuttal within 30 days of the notice. 

The director shall consider all relevant evidence presented in deciding 

whether to revoke the petition in whole or in part. If a blanket 

petition is revoked in part, the remainder of the petition shall remain 

approved, and a revised Form I-797 shall be sent to the petitioner with 

the revocation notice.

    (iv) Status of beneficiaries. If an individual petition is revoked, 

the beneficiary shall be required to leave the United States, unless the 

beneficiary has obtained other work authorization from the Service. If a 

blanket petition is revoked and the petitioner and beneficiaries already 

in the United States are otherwise eligible for L classification, the 

director shall extend the blanket petition for a period necessary to 

support the stay of those blanket L beneficiaries. The approval notice, 

Form I-171C, shall include only the names of qualifying organizations 

and covered beneficiaries. No new beneficiaries may be classified or 

admitted under this limited extension.

    (10) Appeal of denial or revocation of individual or blanket 

petition. (i) A petition denied in whole or in part may be appealed 

under 8 CFR part 103. Since the determination on the Certificate of 

Eligibility, Form I-129S, is part of the petition process, a denial or 

revocation of approval of an I-129S is appealable in the same manner as 

the petition.

    (ii) A petition that has been revoked on notice in whole or in part 

may be appealed under part 103 of this chapter. Automatic revocations 

may not be appealed.

    (11) Admission. A beneficiary may apply for admission to the United 

States only while the individual or blanket petition is valid. The 

beneficiary of an individual petition shall not be admitted for a date 

past the validity period of the petition. The beneficiary of a blanket 

petition may be admitted for three years even though the initial 

validity period of the blanket petition may expire before the end of the 

three-year period. If the blanket petition will expire while the alien 

is in the United States, the burden is on the petitioner to file for 

indefinite validity of the blanket petition or to file an individual 

petition in the alien's behalf to support the alien's status in the 

United States. The admission period for any alien under section 

101(a)(15)(L) shall not exceed three years unless an extension of stay 

is granted pursuant to paragraph (l)(15) of this section.

    (12) L-1 limitation on period of stay--(i) Limits. An alien who has 

spent five years in the United States in a specialized knowledge 

capacity or seven years in the United States in a managerial or 

executive capacity under section 101(a)(15) (L) and/or (H) of the Act 

may not be readmitted to the United States under section 101(a)(15) (L) 

or (H) of the Act unless the alien has resided and been physically 

present outside the United States, except for brief visits



[[Page 300]]



for business or pleasure, for the immediate prior year. Such visits do 

not interrupt the one year abroad, but do not count towards fulfillment 

of that requirement. In view of this restriction, a new individual 

petition may not be approved for an alien who has spent the maximum time 

period in the United States under section 101(a)(15) (L) and/or (H) of 

the Act, unless the alien has resided and been physically present 

outside the United States, except for brief visits for business or 

pleasure, for the immediate prior year. The petitioner shall provide 

information about the alien's employment, place of residence, and the 

dates and purpose of any trips to the United States for the previous 

year. A consular or Service officer may not grant L classification under 

a blanket petition to an alien who has spent five years in the United 

States as a professional with specialized knowledge or seven years in 

the United States as a manager or executive, unless the alien has met 

the requirements contained in this paragraph.

    (ii) Exceptions. The limitations of paragraph (l)(12)(i) of this 

section shall not apply to aliens who do not reside continually in the 

United States and whose employment in the United States is seasonal, 

intermittent, or consists of an aggregate of six months or less per 

year. In addition, the limitations will not apply to aliens who reside 

abroad and regularly commute to the United States to engage in part-time 

employment. The petitioner and the alien must provide clear and 

convincing proof that the alien qualifies for an exception. Clear and 

convincing proof shall consist of evidence such as arrival and departure 

records, copies of tax returns, and records of employment abroad.

    (13) Beneficiary's use of Form I-797 and Form I-129S--(i) 

Beneficiary of an individual petition. The beneficiary of an individual 

petition who does not require a nonimmigrant visa may present a copy of 

Form I-797 at a port of entry to facilitate entry into the United 

States. The copy of Form I-797 shall be retained by the beneficiary and 

presented during the validity of the petition (provided that the 

beneficiary is entering or reentering the United States) for entry and 

reentry to resume the same employment with the same petitioner (within 

the validity period of the petition) and to apply for an extension of 

stay. A beneficiary who is required to present a visa for admission and 

whose visa will have expired before the date of his or her intended 

return may use an original Form I-797 to apply for a new or revalidated 

visa during the validity period of the petition and to apply for an 

extension of stay.

    (ii) Beneficiary of a blanket petition. Each alien seeking L 

classification and admission under a blanket petition shall present a 

copy of Form I-797 and a Form I-129S from the petitioner which 

identifies the position and organization from which the employee is 

transferring, the new organization and position to which the employee is 

destined, a description of the employee's actual duties for both the new 

and former positions, and the positions, dates, and locations of 

previous L stays in the United States. A current copy of Form I-797 and 

Form I-129S should be retained by the beneficiary and used for leaving 

and reentering the United States to resume employment with a qualifying 

organization during his/her authorized period of stay, for applying for 

a new or revalidated visa, and for applying for readmission at a port of 

entry. The alien may be readmitted even though reassigned to a different 

organization named on the Form I-797 than the one shown on Form I-129S 

if the job duties are virtually the same.

    (14) Extension of visa petition validity--(i) Individual petition. 

The petitioner shall file a petition extension on Form I-129 to extend 

an individual petition under section 101(a)(15)(L) of the Act. Except in 

those petitions involving new offices, supporting documentation is not 

required, unless requested by the director. A petition extension may be 

filed only if the validity of the original petition has not expired.

    (ii) New offices. A visa petition under section 101(a)(15)(L) which 

involved the opening of a new office may be extended by filing a new 

Form I-129, accompanied by the following:

    (A) Evidence that the United States and foreign entities are still 

qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this 

section;



[[Page 301]]



    (B) Evidence that the United States entity has been doing business 

as defined in paragraph (l)(1)(ii)(H) of this section for the previous 

year;

    (C) A statement of the duties performed by the beneficiary for the 

previous year and the duties the beneficiary will perform under the 

extended petition;

    (D) A statement describing the staffing of the new operation, 

including the number of employees and types of positions held 

accompanied by evidence of wages paid to employees when the beneficiary 

will be employed in a managerial or executive capacity; and

    (E) Evidence of the financial status of the United States operation.

    (iii) Blanket petitions--(A) Extension procedure. A blanket petition 

may only be extended indefinitely by filing a new Form I-129 with a copy 

of the previous approval notice and a report of admissions during the 

preceding three years. The report of admissions shall include a list of 

the aliens admitted under the blanket petition during the preceding 

three years, including positions held during that period, the employing 

entity, and the dates of initial admission and final departure of each 

alien. The petitioner shall state whether it still meets the criteria 

for filing a blanket petition and shall document any changes in approved 

relationships and additional qualifying organizations.

    (B) Other conditions. If the petitioner in an approved blanket 

petition fails to request indefinite validity or if indefinite validity 

is denied, the petitioner and its other qualifying organizations shall 

seek L classification by filing individual petitions until another three 

years have expired; after which the petitioner may seek approval of a 

new blanket petition.

    (15) Extension of stay. (i) In individual petitions, the petitioner 

must apply for the petition extension and the alien's extension of stay 

concurrently on Form I-129. When the alien is a beneficiary under a 

blanket petition, a new certificate of eligibility, accompanied by a 

copy of the previous approved certificate of eligibility, shall be filed 

by the petitioner to request an extension of the alien's stay. The 

petitioner must also request a petition extension. The dates of 

extension shall be the same for the petition and the beneficiary's 

extension of stay. The beneficiary must be physically present in the 

United States at the time the extension of stay is filed. Even though 

the requests to extend the visa petition and the alien's stay are 

combined on the petition, the director shall make a separate 

determination on each. If the alien is required to leave the United 

States for business or personal reasons while the extension requests are 

pending, the petitioner may request the director to cable notification 

of approval of the petition extension to the consular office abroad 

where the alien will apply for a visa.

    (ii) An extension of stay may be authorized in increments of up to 

two years for beneficiaries of individual and blanket petitions. The 

total period of stay may not exceed five years for aliens employed in a 

specialized knowledge capacity. The total period of stay for an alien 

employed in a managerial or executive capacity may not exceed seven 

years. No further extensions may be granted. When an alien was initially 

admitted to the United States in a specialized knowledge capacity and is 

later promoted to a managerial or executive position, he or she must 

have been employed in the managerial or executive position for at least 

six months to be eligible for the total period of stay of seven years. 

The change to managerial or executive capacity must have been approved 

by the Service in an amended, new, or extended petition at the time that 

the change occurred.

    (16) Effect of filing an application for or approval of a permanent 

labor certification, preference petition, or filing of an application 

for adjustment of status on L-1 classification. An alien may 

legitimately come to the United States for a temporary period as an L-1 

nonimmigrant and, at the same time, lawfully seek to become a permanent 

resident of the United States provided he or she intends to depart 

voluntarily at the end of his or her authorized stay. The filing of an 

application for or approval of a permanent labor certification, an 

immigrant visa preference petition, or the filing of an application of 

readjustment of status for an L-1 nonimmigrant shall not be the basis 

for denying:



[[Page 302]]



    (i) An L-1 petition filed on behalf of the alien,

    (ii) A request to extend an L-1 petition which had previously been 

filed on behalf of the alien;

    (iii) An application for admission as an L-1 nonimmigrant by the 

alien, or as an L-2 nonimmigrant by the spouse or child of such alien;

    (iv) An application for change of status to H-1 or L-2 nonimmigrant 

filed by the alien, or to H-1, H-4, or L-1 status filed by the L-2 

spouse or child of such alien;

    (v) An application for change of status to H-4 nonimmigrant filed by 

the L-1 nonimmigrant, if his or her spouse has been approved for 

classification as an H-1; or

    (vi) An application for extension of stay filed by the alien, or by 

the L-2 spouse or child of such alien.

    (17) Filing of individual petitions and certifications under blanket 

petitions for citizens of Canada under the North American Free Trade 

Agreement (NAFTA)--(i) Individual petitions. Except as provided in 

paragraph (1)(2)(ii) of this section (filing of blanket petitions), a 

United States or foreign employer seeking to classify a citizen of 

Canada as an intracompany transferee may file an individual petition in 

duplicate on Form I-129 in conjunction with an application for admission 

of the citizen of Canada. Such filing may be made with an immigration 

officer at a Class A port of entry located on the United States-Canada 

land border or at a United States pre-clearance/pre-flight station in 

Canada. The petitioning employer need not appear, but Form I-129 must 

bear the authorized signature of the petitioner.

    (ii) Certification of eligibility for intracompany transferree under 

the blanket petition. An immigration officer at a location identified in 

paragraph (1)(17)(i) of this section may determine eligibility of 

individual citizens of Canada seeking L classification under approved 

blanket petitions. At these locations, such citizens of Canada shall 

present the original and two copies of Form I-129S, Intracompany 

Transferee Certificate of Eligibility, prepared by the approved 

organization, as well as three copies of Form I-797, Notice of Approval 

of Nonimmigrant Visa Petition.

    (iii) Nothing in this section shall preclude or discourage the 

advance filing of petitions and certificates of eligibility in 

accordance with paragraph (l)(2) of this section.

    (iv) Deficient or deniable petitions or certificates of eligibility. 

If a petition or certificate of eligibility submitted concurrently with 

an application for admission is lacking necessary supporting 

documentation or is otherwise deficient, the inspecting immigration 

officer shall return it to the applicant for admission in order to 

obtain the necessary documentation from the petitioner or for the 

deficiency to be overcome. The fee to file the petition will be remitted 

at such time as the documentary or other deficiency is overcome. If the 

petition or certificate of eligibility is clearly deniable, the 

immigration officer will accept the petition (with fee) and the 

petitioner shall be notified of the denial, the reasons for denial, and 

the right of appeal. If a formal denial order cannot be issued by the 

port of entry, the petition with a recommendation for denial shall be 

forwarded to the appropriate Service Center for final action. For the 

purposes of this provision, the appropriate Service Center will be the 

one within the same Service region as the location where the application 

for admission is made.

    (v) Spouse and dependent minor children accompanying or following to 

join. (A) The Canadian citizen spouse and Canadian citizen unmarried 

minor children of a Canadian citizen admitted under this paragraph shall 

be entitled to the same nonimmigrant classification and same length of 

stay subject to the same limits as the principal alien. They shall not 

be required to present visas, and they shall be admitted under the 

classification symbol L-2.

    (B) A non-Canadian citizen spouse or non-Canadian citizen unmarried 

minor child shall be entitled to the same nonimmigrant classification 

and the same length of stay subject to the same limits as the principal, 

but shall be required to present a visa upon application for admission 

as an L-2 unless otherwise exempt under Sec. 212.1 of this chapter.



[[Page 303]]



    (C) The spouse and dependent minor children shall not accept 

employment in the United States unless otherwise authorized under the 

Act.

    (18) Denial of intracompany transferee status to citizens of Canada 

or Mexico in the case of certain labor disputes. (i) If the Secretary of 

Labor certifies to or otherwise informs the Commissioner that a strike 

or other labor dispute involving a work stoppage of workers is in 

progress where the beneficiary is to be employed, and the temporary 

entry of the beneficiary may affect adversely the settlement of such 

labor dispute or the employment of any person who is involved in such 

dispute, a petition to classify a citizen of Mexico or Canada as an L-1 

intracompany transferee may be denied. If a petition has already been 

approved, but the alien has not yet entered the United States, or has 

entered the United States but not yet commenced employment, the approval 

of the petition may be suspended, and an application for admission on 

the basis of the petition may be denied.

    (ii) If there is a strike or other labor dispute involving a work 

stoppage of workers in progress, but such strike or other labor dispute 

is not certified under paragraph (l)(18)(i) of this section, or the 

Service has not otherwise been informed by the Secretary that such a 

strike or labor dispute is in progress, the Commissioner shall not deny 

a petition or suspend an approved petition.

    (iii) If the alien has already commended employment in the United 

States under an approved petition and is participating in a strike or 

other labor dispute involving a work stoppage of workers, whether or not 

such strike or other labor dispute has been certified by the Department 

of Labor, the alien shall not be deemed to be failing to maintain his or 

her status solely on account of past, present, or future participation 

in a strike or other labor dispute involving a work stoppage of workers, 

but is subject to the following terms and conditions.

    (A) The alien shall remain subject to all applicable provisions of 

the Immigration and Nationality Act, and regulations promulgated in the 

same manner as all other L nonimmigrants;

    (B) The status and authorized period of stay of such an alien is not 

modified or extended in any way by virtue of his or her participation in 

a strike or other labor dispute involving work stoppage of workers; and

    (C) Although participation by an L nonimmigrant alien in a strike or 

other labor dispute involving a work stoppage of workers will not 

constitute a ground for deportation, any alien who violates his or her 

status or who remains in the United States after his or her authorized 

period of stay has expired will be subject to deportation.

    (m) Students in established vocational or other recognized 

nonacademic institutions, other than in language training programs--(1) 

Admission of student--(i) Eligibility for admission. A nonimmigrant 

student may be admitted into the United States in nonimmigrant status 

under section 101(a)(15)(M) of the Act, if:

    (A) The student presents a SEVIS Form I-20 issued in his or her own 

name by a school approved by the Service for attendance by M-1 foreign 

students. (In the alternative, for a student seeking admission prior to 

August 1, 2003, the student may present a currently-valid Form I-20M-N/

I-20ID, if that form was issued by the school prior to January 30, 

2003);

    (B) The student has documentary evidence of financial support in the 

amount indicated on the SEVIS Form I-20 (or the Form I-20M-N/I-20ID); 

and

    (C) For students seeking initial admission only, the student intends 

to attend the school specified in the student's visa (or, where the 

student is exempt from the requirement for a visa, the school indicated 

on the SEVIS Form I-20 (or the Form I-20M-N/I-20ID)).

    (ii) Disposition of Form I-20M-N. When a student is admitted to the 

United States, the inspecting officer shall forward Form I-20M-N to the 

Service's processing center. The processing center shall forward Form I-

20N to the school which issued the form to notify the school of the 

student's admission.

    (iii) Use of SEVIS. On January 30, 2003, the use of the Student and 

Exchange Visitor Information System (SEVIS) will become mandatory for 

the



[[Page 304]]



issuance of any new Form I-20. A student or dependent who presents a 

non-SEVIS Form I-20 issued on or after January 30, 2003, will not be 

accepted for admission to the United States. Non-SEVIS Forms I-20 issued 

prior to January 30, 2003, will continue to be accepted for admission to 

the United States until August 1, 2003. However, schools must issue a 

SEVIS Form I-20 to any current student requiring a reportable action 

(e.g., extension of status, practical training, and requests for 

employment authorization) or a new Form I-20, or for any aliens who must 

obtain a new nonimmigrant student visa. As of August 1, 2003, the 

records of all current or continuing students must be entered in SEVIS.

    (2) Form I-20 ID copy. The first time an M-1 student comes into 

contact with the Service for any reason, the student must present to the 

Service a Form I-20M-N properly and completely filled out by the student 

and by the designated official of the school the student is attending or 

intends to attend. The student will be issued a Form I-20 ID copy with 

his or her admission number. The student must have the Form I-20 ID copy 

with him or her at all times. If the student loses the Form I-20 ID 

copy, the student must request a new Form I-20 ID copy on Form I-102 

from the Service office having jurisdiction over the school the student 

was last authorized to attend.

    (3) Admission of the spouse and minor children of an M-1 student. 

The spouse and minor children accompanying an M-1 student are eligible 

for admission in M-2 status if the student is admitted in M-1 status. 

The spouse and minor children following-to-join an M-1 student are 

eligible for admission to the United States in M-2 status if they are 

able to demonstrate that the M-1 student has been admitted and is, or 

will be within 30 days, enrolled in a full course of study, or engaged 

in approved practical training following completion of studies. In 

either case, at the time they seek admission, the eligible spouse and 

minor children of an M-1 student with a SEVIS Form I-20 must 

individually present an original SEVIS Form I-20 issued in the name of 

each M-2 dependent issued by a school authorized by the Service for 

attendance by M-1 foreign students. Prior to August 1, 2003, if exigent 

circumstances are demonstrated, the Service will allow the dependent of 

an M-1 student in possession of a SEVIS Form I-20 to enter the United 

States using a copy of the M-1 student's SEVIS Form I-20. (In the 

alternative, for dependents seeking admission to the United States prior 

to August 1, 2003, a copy of the M-1 student's current Form I-20ID 

issued prior to January 30, 2003, with proper endorsement by the DSO 

will satisfy this requirement.) A new SEVIS Form I-20 (or Form I-20M-N) 

is required for a dependent where there has been any substantive change 

in the M-1 student's current information.

    (i) A properly endorsed page 4 of Form I-20M-N if there has been no 

substantive change in the information on the student's most recent Form 

I-20M since the form was initially issued; or

    (ii) A new Form I-20M-N if there has been any substantive change in 

the information on the student's most recent Form I-20M since the form 

was initially issued.

    (4) Temporary absence--(i) General. An M-1 student returning to the 

United States from a temporary absence to attend the school which the 

student was previously authorized to attend must present either--

    (A) A properly endorsed page 4 of Form I-20M-N if there has been no 

substantive change in the information on the student's most recent Form 

I-20M since the form was initially issued; or

    (B) A new Form I-20M-N if there has been any substantive change in 

the information on the student's most recent Form I-20M since the form 

was initially issued.

    (ii) Student who transferred between schools. If an M-1 student has 

been authorized to transfer between schools and is returning to the 

United States from a temporary absence in order to attend the school to 

which transfer was authorized as indicated on the student's Form I-20 ID 

copy, the name of the school to which the student is destined does not 

need to be specified in the student's visa.

    (5) Period of stay. A student in M nonimmigrant status is admitted 

for a fixed time period, which is the period necessary to complete the 

course of



[[Page 305]]



study indicated on the Form I-20, plus practical training following 

completion of the course of study, plus an additional 30 days to depart 

the United States, but not to exceed a total period of one year. An M-1 

student may be admitted for a period up to 30 days before the report 

date or start date of the course of study listed on the Form I-20. An M-

1 student who fails to maintain a full course of study or otherwise 

fails to maintain status is not eligible for the additional 30-day 

period of stay.

    (6)-(8) [Reserved]

    (9) Full course of study. Successful completion of the course of 

study must lead to the attainment of a specific educational or 

vocational objective. A ``full course of study'' as required by section 

101(a)(15)(M)(i) of the Act means--

    (i) Study at a community college or junior college, certified by a 

school official to consist of at least twelve semester or quarter hours 

of instruction per academic term in those institutions using standard 

semester, trimester, or quarter-hour systems, where all students 

enrolled for a minimum of twelve semester or quarter hours are charged 

full-time tuition or considered full-time for other administrative 

purposes, or its equivalent (as determined by the district director) 

except when the student needs a lesser course load to complete the 

course of study during the current term;

    (ii) Study at a postsecondary vocational or business school, other 

than in a language training program except as provided in Sec. 

214.3(a)(2)(iv), which confers upon its graduates recognized associate 

or other degrees or has established that its credits have been and are 

accepted unconditionally by at least three institutions of higher 

learning which are either: (1) A school (or school system) owned and 

operated as a public educational institution by the United States or a 

State or political subdivision thereof; or (2) a school accredited by a 

nationally recognized accrediting body; and which has been certified by 

a designated school official to consist of at least twelve hours of 

instruction a week, or its equivalent as determined by the district 

director;

    (iii) Study in a vocational or other nonacademic curriculum, other 

than in a language training program except as provided in Sec. 

214.3(a)(2)(iv), certified by a designated school official to consist of 

at least eighteen clock hours of attendance a week if the dominant part 

of the course of study consists of classroom instruction, or at least 

twenty-two clock hours a week if the dominant part of the course of 

study consists of shop or laboratory work; or

    (iv) Study in a vocational or other nonacademic high school 

curriculum, certified by a designated school official to consist of 

class attendance for not less than the minimum number of hours a week 

prescribed by the school for normal progress towards graduation.

    (v) On-line courses/distance education programs. No on-line or 

distance education classes may be considered to count toward an M-1 

student's full course of study requirement if such classes do not 

require the student's physical attendance for classes, examination or 

other purposes integral to completion of the class. An on-line or 

distance education course is a course that is offered principally 

through the use of television, audio, or computer transmission including 

open broadcast, closed circuit, cable, microwave, or satellite, audio 

conferencing, or computer conferencing.

    (vi) Reduced course load. The designated school official may 

authorize an M-1 student to engage in less than a full course of study 

only where the student has been compelled by illness or a medical 

condition that has been documented by a licensed medical doctor, doctor 

of osteopathy, or licensed clinical psychologist, to interrupt or reduce 

his or her course of study. A DSO may not authorize a reduced course 

load for more than an aggregate of 5 months per course of study. An M-1 

student previously authorized to drop below a full course of study due 

to illness or medical condition for an aggregate of 5 months, may not be 

authorized by the DSO to reduce his or her course load on subsequent 

occasions during his or her particular course of study.

    (A) Non-SEVIS schools. A DSO must report any student who has been 

authorized by the DSO to carry a reduced



[[Page 306]]



course load. Within 21 days of the authorization, the DSO must send a 

photocopy of the student's Form I-20 to the Service's data processing 

center indicating the date that authorization was granted. The DSO must 

also report to the Service's data processing center when the student has 

resumed a full course of study, no more than 21 days from the date the 

student resumed a full course of study. In this case, the DSO must 

submit a photocopy of the student's Form I-20 indicating the date that a 

full course of study was resumed, with a new program end date.

    (B) SEVIS reporting. In order for a student to be authorized to drop 

below a full course of study, the DSO must update SEVIS prior to the 

student reducing his or her course load. The DSO must update SEVIS with 

the date, reason for authorization, and the start date of the next term 

or session. The DSO must also notify SEVIS within 21 days of the 

student's commencement of a full course of study.

    (10) Extension of stay--(i) Eligibility. The cumulative time of 

extensions that can be granted to an M-1 student is limited to a period 

of 3 years from the M-1 student's original start date, plus 30 days. No 

extension can be granted to an M-1 student if the M-1 student is unable 

to complete the course of study within 3 years of the original program 

start date. This limit includes extensions that have been granted due to 

a drop below full course of study, a transfer of schools, or 

reinstatement. An M-1 student may be granted an extension of stay if it 

is established that:

    (A) He or she is a bona fide nonimmigrant currently maintaining 

student status;

    (B) Compelling educational or medical reasons have resulted in a 

delay to his or her course of study. Delays caused by academic probation 

or suspension are not acceptable reasons for program extension; and

    (C) He or she is able to, and in good faith intends to, continue to 

maintain that status for the period for which the extension is granted.

    (ii) Application. A student must apply to the Service for an 

extension on Form I-539, Application to Extend/Change Nonimmigrant 

Status. A student's M-2 spouse and children seeking an extension of stay 

must be included in the application. The student must submit the 

application to the service center having jurisdiction over the school 

the student is currently authorized to attend, at least 15 days but not 

more than 60 days before the program end date on the student's Form I-

20. The application must also be accompanied by the student's Form I-20 

and the Forms I-94 of the student's spouse and children, if applicable.

    (iii) Period of stay. If an application for extension is granted, 

the student and the student's spouse and children, if applicable, are to 

be given an extension of stay for the period of time necessary to 

complete the course of study, plus 30 days within which to depart from 

the United States, or for a total period of one year, whichever is less. 

A student's M-2 spouse and children are not eligible for an extension 

unless the M-1 student is granted an extension of stay, or for a longer 

period than is granted to the M-1 student.

    (iv) SEVIS update. A DSO must update SEVIS to recommend that a 

student be approved for an extension of stay. The SEVIS Form I-20 must 

be printed with the recommendation and new program end date for 

submission by mail to the service center, with Form I-539, and Forms I-

94 if applicable.

    (11) School transfer--(i) Eligibility. An M-1 student may not 

transfer to another school after six months from the date the student is 

first admitted as, or changes nonimmigrant classification to that of, an 

M-1 student unless the student is unable to remain at the school to 

which the student was initially admitted due to circumstances beyond the 

student's control. An M-1 student may be otherwise eligible to transfer 

to another school if the student--

    (A) Is a bona fide nonimmigrant;

    (B) Has been pursuing a full course of study at the school the 

student was last authorized to attend;

    (C) Intends to pursue a full course of study at the school to which 

the student intends to transfer; and

    (D) Is financially able to attend the school to which the student 

intends to transfer.



[[Page 307]]



    (ii) Procedure. A student must apply to the Service on Form I-539 

for permission to transfer between schools. Upon application for school 

transfer, a student may effect the transfer subject to approval of the 

application. A student who transfers without complying with this 

requirement or whose application is denied after transfer pursuant to 

this regulation is considered to be out of status. If the application is 

approved, the approval of the transfer will be determined to be the 

program start date listed on the Form I-20, and the student will be 

granted an extension of stay for the period of time necessary to 

complete the new course of study plus 30 days, or for a total period of 

one year, whichever is less.

    (A) Non-SEVIS school. The application must be accompanied by the 

Form I-20ID copy and the Form I-94 of the student's spouse and children, 

if applicable. The Form I-539 must also be accompanied by Form I-20M-N 

properly and completely filled out by the student and by the designated 

official of the school which the student wishes to attend. The student 

must submit the application for school transfer to the service center 

having jurisdiction over the school the student is currently authorized 

to attend. Upon approval, the adjudicating officer will endorse the name 

of the school to which the transfer is authorized on the student's Form 

I-20ID copy and return it to the student. The officer will also endorse 

Form I-20M-N to indicate that a school transfer has been authorized and 

forward it to the Service's processing center for updating. The 

processing center will forward Form I-20M-N to the school to which the 

transfer has been authorized to notify the school of the action taken.

    (B) SEVIS school. The student must first notify his or her current 

school of the intent to transfer and indicate the school to which the 

student intends to transfer. Upon notification by the student, the 

current school must update SEVIS to show the student as a ``transfer 

out'' and input the ``release date'' for transfer. Once updated as a 

``transfer out'' the transfer school is permitted to generate a SEVIS 

Form I-20 for transfer but will not gain access to the student's SEVIS 

record until the release date is reached. Upon receipt of the SEVIS Form 

I-20 from the transfer school, the student must submit Form I-539 in 

accordance with Sec. 214.2(m)(11) to the service center with 

jurisdiction over the current school. The student may enroll in the 

transfer school at the next available term or session and is required to 

notify the DSO of the transfer school immediately upon beginning 

attendance. The transfer school must update the student's registration 

record in SEVIS in accordance with Sec. 214.3(g)(3). Upon approval of 

the transfer application, the Service officer will endorse the name of 

the school to which the transfer is authorized on the student's SEVIS 

Form I-20 and return it to the student.

    (C) Transition process. Once SEVIS is fully operational and 

interfaced with the service center benefit processing system, the 

Service officer will transmit the approval of the transfer to SEVIS and 

endorse the name of the school to which transfer is authorized on the 

student's SEVIS Form I-20 and return it to the student. As part of a 

transitional process until that time, the student is required to notify 

the DSO at the transfer school of the decision of the Service within 15 

days of the receipt of the adjudication by the Service. Upon 

notification by the student of the approval of the Service, the DSO must 

immediately update SEVIS to show that approval of the transfer has been 

granted. The DSO must then print an updated SEVIS Form I-20 for the 

student indicating that the transfer has been completed. If the 

application for transfer is denied, the student is out of status and the 

DSO must terminate the student's record in SEVIS.

    (iii) Student who has not been pursuing a full course of study. If 

an M-1 student who has not been pursuing a full course of study at the 

school the student was last authorized to attend desires to attend a 

different school, the student must apply for reinstatement to student 

status under paragraph (m)(16) of this section.

    (12) Change in educational objective. An M-1 student may not change 

educational objective.

    (13) Employment. Except as provided in paragraph (m)(14) of this 

section, a student may not accept employment.



[[Page 308]]



    (14) Practical training--(i) When practical training may be 

authorized. Temporary employment for practical training may be 

authorized only after completion of the student's course of study.

    (A) The proposed employment is recommended for the purpose of 

practical training;

    (B) The proposed employment is related to the student's course of 

study; and

    (C) Upon the designated school official's information and belief, 

employment comparable to the proposed employment is not available to the 

student in the country of the student's foreign residence.

    (ii) Application. A M-1 student must apply for permission to accept 

employment for practical training on Form I-765, with fee as contained 

in 8 CFR 103.7(b)(1), accompanied by a Form I-20 that has been endorsed 

for practical training by the designated school official. The 

application must be submitted prior to the program end date listed on 

the student's Form I-20 but not more than 90 days before the program end 

date. The designated school official must certify on Form I-538 that--

    (A) The proposed employment is recommended for the purpose of 

practical training;

    (B) The proposed employment is related to the student's course of 

study; and

    (C) Upon the designated school official's information and belief, 

employment comparable to the proposed employment is not available to the 

student in the country of the student's foreign residence.

    (iii) Duration of practical training. When the student is authorized 

to engage in employment for practical training, he or she will be issued 

an employment authorization document. The M-1 student may not begin 

employment until he or she has been issued an employment authorization 

document by the Service. One month of employment authorization will be 

granted for each four months of full-time study that the M-1 student has 

completed. However, an M-1 student may not engage in more than six 

months of practical training in the aggregate. The student will not be 

granted employment authorization if he or she cannot complete the 

requested practical training within six months.

    (iv) Temporary absence of M-1 student granted practical training. An 

M-1 student who has been granted permission to accept employment for 

practical training and who temporarily departs from the United States, 

may be readmitted for the remainder of the authorized period indicated 

on the student's Form I-20 ID copy. The student must be returning to the 

United States to perform the authorized practical training. A student 

may not be readmitted to begin practical training which was not 

authorized prior to the student's departure from the United States.

    (v) Effect of strike or other labor dispute. Authorization for all 

employment for practical training is automatically suspended upon 

certification by the Secretary of Labor or the Secretary's designee to 

the Commissioner of Immigration and Naturalization or the Commissioner's 

designee that a strike or other labor dispute involving a work stoppage 

of workers is in progress in the occupation at the place of employment. 

As used in this paragraph, ``place of employment'' means wherever the 

employer or joint employer does business.

    (vi) SEVIS process. The DSO must update the student's record in 

SEVIS to recommend that the Service approve the student for practical 

training, and print SEVIS Form I-20 with the recommendation, for the 

student to submit to the Service with Form I-765 as provided in this 

paragraph (m)(14).

    (15) Decision on application for extension, permission to transfer 

to another school, or permission to accept employment for practical 

training. The Service shall notify the applicant of the decision and, if 

the application is denied, of the reason(s) for the denial. The 

applicant may not appeal the decision.

    (16) Reinstatement to student status--(i) General. A district 

director may consider reinstating a student who makes a request for 

reinstatement on Form I-539, Application to Extend/Change Nonimmigrant 

Status, accompanied by a properly completed SEVIS Form I-20 indicating 

the DSO's recommendation



[[Page 309]]



for reinstatement (or a properly completed Form I-20M-N issued prior to 

January 30, 2003, from the school the student is attending or intends to 

attend prior to August 1, 2003). The district director may consider 

granting the request only if the student:

    (A) Has not been out of status for more than 5 months at the time of 

filing the request for reinstatement (or demonstrates that the failure 

to file within the 5 month period was the result of exceptional 

circumstances and that the student filed the request for reinstatement 

as promptly as possible under these exceptional circumstances);

    (B) Does not have a record of repeated or willful violations of the 

Service regulations;

    (C) Is currently pursuing, or intends to pursue, a full course of 

study at the school which issued the Form I-20M-N or SEVIS Form I-20;

    (D) Has not engaged in unlawful employment;

    (E) Is not deportable on any ground other than section 237(a)(1)(B) 

or (C)(i) of the Act; and

    (F) Establishes to the satisfaction of the Service, by a detailed 

showing, either that:

    (1) The violation of status resulted from circumstances beyond the 

student's control. Such circumstances might include serious injury or 

illness, closure of the institution, a natural disaster, or 

inadvertence, oversight or neglect on the part of the DSO, but do not 

include instances where a pattern of repeated violations or where a 

willful failure on the part of the student resulted in the need for 

reinstatement; or

    (2) The violation relates to a reduction in the student's course 

load that would have been within a DSO's power to authorize, and that 

failure to approve reinstatement would result in extreme hardship to the 

student.

    (ii) Decision. If the Service reinstates the student, the Service 

shall endorse the student's copy of Form I-20 to indicate that the 

student has been reinstated and return the form to the student. If the 

Form I-20 is from a non-SEVIS school, the school copy will be forwarded 

to the school. If the Form I-20 is from a SEVIS school, the adjudicating 

officer will update SEVIS to reflect the Service's decision. In either 

case, if the Service does not reinstate the student, the student may not 

appeal the decision. The district director will send notification to the 

school of the decision.

    (17) Spouse and children of M-1 student. The M-2 spouse and minor 

children of an M-1 student shall each be issued an individual SEVIS Form 

I-20 in accordance with the provisions of Sec. 214.3(k).

    (i) Employment. The M-2 spouse and children may not accept 

employment.

    (ii) Study. (A) The M-2 spouse may not engage in full time study, 

and the M-2 child may only engage in full time study if the study is in 

an elementary or secondary school (kindergarten through twelfth grade). 

The M-2 spouse and child may engage in study that is avocational or 

recreational in nature.

    (B) An M-2 spouse or M-2 child desiring to engage in full time 

study, other than that allowed for a child in paragraph (m)(17)(ii) of 

this section, must apply for and obtain a change of nonimmigrant 

classification to F-1, J-1, or M-1 status. An M-2 spouse or child who 

was enrolled on a full time basis prior to January 1, 2003, will be 

allowed to continue study but must file for a change of nonimmigrant 

classification to F-1, J-1, or M-1 status on or before March 11, 2003.

    (C) An M-2 spouse or M-2 child violates his or her nonimmigrant 

status by engaging in full time study except as provided in paragraph 

(m)(17)(i) and (ii) of this section.

    (18) Current name and address. A student must inform the Service and 

the DSO of any legal changes to his or her name or of any change of 

address, within 10 days of the change, in a manner prescribed by the 

school. A student enrolled at a SEVIS school can satisfy the requirement 

in 8 CFR 265.1 of notifying the Service by providing a notice of a 

change of address within 10 days to the DSO, and the DSO in turn shall 

enter the information in SEVIS within 21 days of notification by the 

student. A nonimmigrant student enrolled at a non-SEVIS institution must 

submit a notice of change of address to the Service, as provided in 8 

CFR 265.1, within 10 days of the change. Except in the



[[Page 310]]



case of a student who cannot receive mail where he or she resides, the 

address provided by the student must be the actual physical location 

where the student resides rather than a mailing address. In cases where 

a student provides a mailing address, the school must maintain a record 

of, and must provide upon request from the Service, the actual physical 

location where the student resides.

    (19) Special rules for certain border commuter students--(i) 

Applicability. For purposes of the special rules in this paragraph 

(m)(19), the term ``border commuter student'' means a national of Canada 

or Mexico who is admitted to the United States as an M-1 student to 

enroll in a full course of study, albeit on a part-time basis, in an 

approved school located within 75 miles of a United States land border. 

The border commuter student must maintain actual residence and place of 

abode in the student's country of nationality, and seek admission to the 

United States at a land border port-of-entry. These special rules do not 

apply to a national of Canada or Mexico who is:

    (A) Residing in the United States while attending an approved school 

as an M-1 student, or

    (B) Enrolled in a full course of study as defined in paragraph 

(m)(9) of this section.

    (ii) Full course of study. The border commuter student must be 

enrolled in a full course of study at the school that leads to the 

attainment of a specific educational or vocational objective, albeit on 

a part-time basis. A designated school official at the school may 

authorize an eligible border commuter student to enroll in a course load 

below that otherwise required for a full course of study under paragraph 

(m)(9) of this section, provided that the reduced course load is 

consistent with the border commuter student's approved course of study.

    (iii) Period of stay. An M-1 border commuter student is not entitled 

to an additional 30-day period of stay otherwise available under 

paragraph (m)(5) of this section.

    (iv) Employment. A border commuter student may not be authorized to 

accept any employment in connection with his or her M-1 student status, 

except for practical training as provided in paragraph (m)(14) of this 

section.

    (20) Remittance of the fee. An alien who applies for M-1 or M-3 

nonimmigrant status in order to enroll in a program of study at a DHS-

approved vocational educational institution is required to pay the SEVIS 

fee to DHS, pursuant to 8 CFR 214.13, except as otherwise provided in 

that section.

    (n) Certain parents and children of section 101(a)(27)(I) special 

immigrants--(1) Parent of special immigrant. Upon application, a parent 

of a child accorded special immigrant status under section 

101(a)(27)(I)(i) of the Act may be granted status under section 

101(a)(15)(N)(i) of the Act as long as the permanent resident child 

through whom eligibility is derived remains a child as defined in 

section 101(b)(1) of the Act.

    (2) Child of section 101(a)(27)(I) special immigrants and section 

101(a)(15)(N)(i) nonimmigrants. Children of parents granted nonimmigrant 

status under section 101(a)(15)(N)(i) of the Act, or of parents who have 

been granted special immigrant status under section 101(a)(27)(I) (ii), 

(iii) or (iv) of the Act may be granted status under section 

101(a)(15)(N)(ii) of the Act for such time as each remains a child as 

defined in section 101(b)(1) of the Act.

    (3) Admission and extension of stay. A nonimmigrant granted (N) 

status shall be admitted for not to exceed three years with extensions 

in increments up to but not to exceed three years. Status as an (N) 

nonimmigrant shall terminate on the date the child described in 

paragraph (n)(1) or (n)(2) of this section no longer qualifies as a 

child as defined in section 101(b)(1) of the Act.

    (4) Employment. A nonimmigrant admitted in or granted (N) status is 

authorized employment incident to (N) status without restrictions as to 

location or type of employment.

    (o) Aliens of extraordinary ability or achievement--(1) 

Classifications--(i) General. Under section 101(a)(15)(O) of the Act, a 

qualified alien may be authorized to come to the United States to 

perform services relating to an event or events if petitioned for by an 

employer. Under this nonimmigrant category, the alien may be classified 

under section 101(a)(15)(O)(i) of the Act



[[Page 311]]



as an alien who has extraordinary ability in the sciences, arts, 

education, business, or athletics, or who has a demonstrated record of 

extraordinary achievement in the motion picture or television industry. 

Under section 101(a)(15)(O)(ii) of the Act, an alien having a residence 

in a foreign country which he or she has no intention of abandoning may 

be classified as an accompanying alien who is coming to assist in the 

artistic or athletic performance of an alien admitted under section 

101(a)(15)(O)(i) of the Act. The spouse or child of an alien described 

in section 101(a)(15)(O)(i) or (ii) of the Act who is accompanying or 

following to join the alien is entitled to classification pursuant to 

section 101(a)(15)(O)(iii) of the Act. These classifications are called 

the O-1, O-2, and O-3 categories, respectively. The petitioner must file 

a petition with the Service for a determination of the alien's 

eligibility for O-1 or O-2 classification before the alien may apply for 

a visa or seek admission to the United States. This paragraph sets forth 

the standards and procedures applicable to these classifications.

    (ii) Description of classifications. (A) An O-1 classification 

applies to:

    (1) An individual alien who has extraordinary ability in the 

sciences, arts, education, business, or athletics which has been 

demonstrated by sustained national or international acclaim and who is 

coming temporarily to the United States to continue work in the area of 

extraordinary ability; or

    (2) An alien who has a demonstrated record of extraordinary 

achievement in motion picture and/or television productions and who is 

coming temporarily to the United States to continue work in the area of 

extraordinary achievement.

    (B) An O-2 classification applies to an accompanying alien who is 

coming temporarily to the United States solely to assist in the artistic 

or athletic performance by an O-1. The O-2 alien must:

    (1) Be an integral part of the actual performances or events and 

posses critical skills and experience with the O-1 alien that are not of 

a general nature and which are not possessed by others; or

    (2) In the case of a motion picture or television production, have 

skills and experience with the O-1 alien which are not of a general 

nature and which are critical, either based on a pre-existing and 

longstanding working relationship or, if in connection with a specific 

production only, because significant production (including pre- and 

post-production) will take place both inside and outside the United 

States and the continuing participation of the alien is essential to the 

successful completion of the production.

    (2) Filing of petitions--(i) General. Except as provided for in 

paragraph (o)(2)(iv)(A) of this section, a petitioner seeking to 

classify an alien as an O-1 or O-2 nonimmigrant shall file a petition on 

Form I-129, Petition for a Nonimmigrant Worker, with the Service Center 

which has jurisdiction in the area where the alien will work. The 

petition may not be filed more than 6 months before the actual need for 

the alien's services. An O-1 or O-2 petition shall be adjudicated at the 

appropriate Service Center, even in emergency situations. Only one 

beneficiary may be included on an O-1 petition. O-2 aliens must be filed 

for on a separate petition from the O-1 alien. An O-1 or O-2 petition 

may only be filed by a United States employer, a United States agent, or 

a foreign employer through a United States agent. For purposes of 

paragraph (o) of this section, a foreign employer is any employer who is 

not amenable to service of process in the United States. A foreign 

employer may not directly petition for an O nonimmigrant alien but 

instead must use the services of a United States agent to file a 

petition for an O nonimmigrant alien. A United States agent petitioning 

on behalf of a foreign employer must be authorized to file the petition, 

and to accept services of process in the United States in proceedings 

under section 274A of the Act, on behalf of the foreign employer. An O 

alien may not petition for himself or herself.

    (ii) Evidence required to accompany a petition. Petitions for O 

aliens shall be accompanied by the following:

    (A) The evidence specified in the particular section for the 

classification;

    (B) Copies of any written contracts between the petitioner and the 

alien



[[Page 312]]



beneficiary or, if there is no written contract, a summary of the terms 

of the oral agreement under which the alien will be employed;

    (C) An explanation of the nature of the events or activities, the 

beginning and ending dates for the events or activities, and a copy of 

any itinerary for the events or activities; and

    (D) A written advisory opinion(s) from the appropriate consulting 

entity or entities.

    (iii) Form of documentation. The evidence submitted with an O 

petition shall conform to the following:

    (A) Affidavits, contracts, awards, and similar documentation must 

reflect the nature of the alien's achievement and be executed by an 

officer or responsible person employed by the institution, firm, 

establishment, or organization where the work was performed.

    (B) Affidavits written by present or former employers or recognized 

experts certifying to the recognition and extraordinary ability, or in 

the case of a motion picture or television production, the extraordinary 

achievement of the alien, shall specifically describe the alien's 

recognition and ability or achievement in factual terms and set forth 

the expertise of the affiant and the manner in which the affiant 

acquired such information.

    (C) A legible photocopy of a document in support of the petition may 

be submitted in lieu of the original. However, the original document 

shall be submitted if requested by the Director.

    (iv) Other filing situations--(A) Services in more than one 

location. A petition which requires the alien to work in more than one 

location must include an itinerary with the dates and locations of work 

and must be filed with the Service Center which has jurisdiction in the 

area where the petitioner is located. The address which the petitioner 

specifies as its location on the petition shall be where the petitioner 

is located for purposes of this paragraph.

    (B) Services for more than one employer. If the beneficiary will 

work concurrently for more than one employer within the same time 

period, each employer must file a separate petition with the Service 

Center that has jurisdiction over the area where the alien will perform 

services, unless an established agent files the petition.

    (C) Change of employer. If an O-1 or O-2 alien in the United States 

seeks to change employers, the new employer must file a petition and a 

request to extend the alien's stay with the Service Center having 

jurisdiction over the new place of employment. An O-2 alien may change 

employers only in conjunction with a change of employers by the 

principal O-1 alien. If the O-1 or O-2 petition was filed by an agent, 

an amended petition must be filed with evidence relating to the new 

employer and a request for an extension of stay.

    (D) Amended petition. The petitioner shall file an amended petition 

on Form I-129, with fee, with the Service Center where the original 

petition was filed to reflect any material changes in the terms and 

conditions of employment or the beneficiary's eligibility as specified 

in the original approved petition. In the case of a petition filed for 

an artist or entertainer, a petitioner may add additional performances 

or engagements during the validity period of the petition without filing 

an amended petition, provided the additional performances or engagements 

require an alien of O-1 caliber.

    (E) Agents as petitioners. A United States agent may file a petition 

in cases involving workers who are traditionally self-employed or 

workers who use agents to arrange short-term employment on their behalf 

with numerous employers, and in cases where a foreign employer 

authorizes the agent to act in its behalf. A United States agent may be: 

The actual employer of the beneficiary, the representative of both the 

employer and the beneficiary; or, a person or entity authorized by the 

employer to act for, or in place of, the employer as its agent. A 

petition filed by an agent is subject to the following conditions:

    (1) An agent performing the function of an employer must provide the 

contractual agreement between the agent and the beneficiary which 

specifies the wage offered and the other terms and conditions of 

employment of the beneficiary.



[[Page 313]]



    (2) A person or company in business as an agent may file the 

petition involving multiple employers as the representative of both the 

employers and the beneficiary, if the supporting documentation includes 

a complete itinerary of the event or events. The itinerary must specify 

the dates of each service or engagement, the names and addresses of the 

actual employers, and the names and addresses of the establishments, 

venues, or locations where the services will be performed. A contract 

between the employers and the beneficiary is required. The burden is on 

the agent to explain the terms and conditions of the employment and to 

provide any required documentation.

    (3) A foreign employer who, through a United States agent, files a 

petition for an O nonimmigrant alien is responsible for complying with 

all of the employer sanctions provisions of section 274A of the Act and 

8 CFR part 274a.

    (F) Multiple beneficiaries. More than one O-2 accompanying alien may 

be included on a petition if they are assisting the same O-1 alien for 

the same events or performances, during the same period of time, and in 

the same location.

    (G) Traded professional O-1 athletes. In the case of a professional 

O-1 athlete who is traded from one organization to another organization, 

employment authorization for the player will automatically continue for 

a period of 30 days after acquisition by the new organization, within 

which time the new organization is expected to file a new Form I-129. If 

a new Form I-129 is not filed within 30 days, employment authorization 

will cease. If a new Form I-129 is filed within 30 days, the 

professional athlete shall be deemed to be in valid O-1 status, and 

employment shall continue to be authorized, until the petition is 

adjudicated. If the new petition is denied, employment authorization 

will cease.

    (3) Petition for alien of extraordinary ability or achievement (O-

1)--(i) General. Extraordinary ability in the sciences, arts, education, 

business, or athletics, or extraordinary achievement in the case of an 

alien in the motion picture or television industry, must be established 

for an individual alien. An O-1 petition must be accompanied by evidence 

that the work which the alien is coming to the United States to continue 

is in the area of extraordinary ability, and that the alien meets the 

criteria in paragraph (o)(3)(iii) or (iv) of this section.

    (ii) Definitions. As used in this paragraph, the term:

    Arts includes any field of creative activity or endeavor such as, 

but not limited to, fine arts, visual arts, culinary arts, and 

performing arts. Aliens engaged in the field of arts include not only 

the principal creators and performers but other essential persons such 

as, but not limited to, directors, set designers, lighting designers, 

sound designers, choreographers, choreologists, conductors, 

orchestrators, coaches, arrangers, musical supervisors, costume 

designers, makeup artists, flight masters, stage technicians, and animal 

trainers.

    Event means an activity such as, but not limited to, a scientific 

project, conference, convention, lecture series, tour, exhibit, business 

project, academic year, or engagement. Such activity may include short 

vacations, promotional appearances, and stopovers which are incidental 

and/or related to the event. A group of related activities may also be 

considered to be an event. In the case of an O-1 athlete, the event 

could be the alien's contract.

    Extraordinary ability in the field of arts means distinction. 

Distinction means a high level of achievement in the field of arts 

evidenced by a degree of skill and recognition substantially above that 

ordinarily encountered to the extent that a person described as 

prominent is renowned, leading, or well-known in the field of arts.

    Extraordinary ability in the field of science, education, business, 

or athletics means a level of expertise indicating that the person is 

one of the small percentage who have arisen to the very top of the field 

of endeavor.

    Extraordinary achievement with respect to motion picture and 

television productions, as commonly defined in the industry, means a 

very high level of accomplishment in the motion picture or television 

industry evidenced



[[Page 314]]



by a degree of skill and recognition significantly above that ordinarily 

encountered to the extent that the person is recognized as outstanding, 

notable, or leading in the motion picture or television field.

    Peer group means a group or organization which is comprised of 

practitioners of the alien's occupation. If there is a collective 

bargaining representative of an employer's employees in the occupational 

classification for which the alien is being sought, such a 

representative may be considered the appropriate peer group for purposes 

of consultation.

    (iii) Evidentiary criteria for an O-1 alien of extraordinary ability 

in the fields of science, education, business, or athletics. An alien of 

extraordinary ability in the fields of science, education, business, or 

athletics must demonstrate sustained national or international acclaim 

and recognition for achievements in the field of expertise by providing 

evidence of:

    (A) Receipt of a major, internationally recognized award, such as 

the Nobel Prize; or

    (B) At least three of the following forms of documentation:

    (1) Documentation of the alien's receipt of nationally or 

internationally recognized prizes or awards for excellence in the field 

of endeavor;

    (2) Documentation of the alien's membership in associations in the 

field for which classification is sought, which require outstanding 

achievements of their members, as judged by recognized national or 

international experts in their disciplines or fields;

    (3) Published material in professional or major trade publications 

or major media about the alien, relating to the alien's work in the 

field for which classification is sought, which shall include the title, 

date, and author of such published material, and any necessary 

translation;

    (4) Evidence of the alien's participation on a panel, or 

individually, as a judge of the work of others in the same or in an 

allied field of specialization to that for which classification is 

sought;

    (5) Evidence of the alien's original scientific, scholarly, or 

business-related contributions of major significance in the field;

    (6) Evidence of the alien's authorship of scholarly articles in the 

field, in professional journals, or other major media;

    (7) Evidence that the alien has been employed in a critical or 

essential capacity for organizations and establishments that have a 

distinguished reputation;

    (8) Evidence that the alien has either commanded a high salary or 

will command a high salary or other remuneration for services, evidenced 

by contracts or other reliable evidence.

    (C) If the criteria in paragraph (o)(3)(iii) of this section do not 

readily apply to the beneficiary's occupation, the petitioner may submit 

comparable evidence in order to establish the beneficiary's eligibility.

    (iv) Evidentiary criteria for an O-1 alien of extraordinary ability 

in the arts. To qualify as an alien of extraordinary ability in the 

field of arts, the alien must be recognized as being prominent in his or 

her field of endeavor as demonstrated by the following:

    (A) Evidence that the alien has been nominated for, or has been the 

recipient of, significant national or international awards or prizes in 

the particular field such as an Academy Award, an Emmy, a Grammy, or a 

Director's Guild Award; or

    (B) At least three of the following forms of documentation:

    (1) Evidence that the alien has performed, and will perform, 

services as a lead or starring participant in productions or events 

which have a distinguished reputation as evidenced by critical reviews, 

advertisements, publicity releases, publications contracts, or 

endorsements;

    (2) Evidence that the alien has achieved national or international 

recognition for achievements evidenced by critical reviews or other 

published materials by or about the individual in major newspapers, 

trade journals, magazines, or other publications;

    (3) Evidence that the alien has performed, and will perform, in a 

lead, starring, or critical role for organizations and establishments 

that have a distinguished reputation evidenced by articles in 

newspapers, trade journals, publications, or testimonials;



[[Page 315]]



    (4) Evidence that the alien has a record of major commercial or 

critically acclaimed successes as evidenced by such indicators as title, 

rating, standing in the field, box office receipts, motion pictures or 

television ratings, and other occupational achievements reported in 

trade journals, major newspapers, or other publications;

    (5) Evidence that the alien has received significant recognition for 

achievements from organizations, critics, government agencies, or other 

recognized experts in the field in which the alien is engaged. Such 

testimonials must be in a form which clearly indicates the author's 

authority, expertise, and knowledge of the alien's achievements; or

    (6) Evidence that the alien has either commanded a high salary or 

will command a high salary or other substantial remuneration for 

services in relation to others in the field, as evidenced by contracts 

or other reliable evidence; or

    (C) If the criteria in paragraph (o)(3)(iv) of this section do not 

readily apply to the beneficiary's occupation, the petitioner may submit 

comparable evidence in order to establish the beneficiary's eligibility.

    (v) Evidentiary criteria for an alien of extraordinary achievement 

in the motion picture or television industry. To qualify as an alien of 

extraordinary achievement in the motion picture or television industry, 

the alien must be recognized as having a demonstrated record of 

extraordinary achievement as evidenced by the following:

    (A) Evidence that the alien has been nominated for, or has been the 

recipient of, significant national or international awards or prizes in 

the particular field such as an Academy Award, an Emmy, a Grammy, or a 

Director's Guild Award; or

    (B) At least three of the following forms of documentation:

    (1) Evidence that the alien has performed, and will perform, 

services as a lead or starring participant in productions or events 

which have a distinguished reputation as evidenced by critical reviews, 

advertisements, publicity releases, publications contracts, or 

endorsements;

    (2) Evidence that the alien has achieved national or international 

recognition for achievements evidenced by critical reviews or other 

published materials by or about the individual in major newspapers, 

trade journals, magazines, or other publications;

    (3) Evidence that the alien has performed, and will perform, in a 

lead, starring, or critical role for organizations and establishments 

that have a distinguished reputation evidenced by articles in 

newspapers, trade journals, publications, or testimonials;

    (4) Evidence that the alien has a record of major commercial or 

critically acclaimed successes as evidenced by such indicators as title, 

rating, standing in the field, box office receipts, motion picture or 

television ratings, and other occupational achievements reported in 

trade journals, major newspapers, or other publications;

    (5) Evidence that the alien has received significant recognition for 

achievements from organizations, critics, government agencies, or other 

recognized experts in the field in which the alien is engaged. Such 

testimonials must be in a form which clearly indicates the author's 

authority, expertise, and knowledge of the alien's achievements; or

    (6) Evidence that the alien has either commanded a high salary or 

will command a high salary or other substantial remuneration for 

services in relation to other in the field, as evidenced by contracts or 

other reliable evidence.

    (4) Petition for an O-2 accompanying alien--(i) General. An O-2 

accompanying alien provides essential support to an O-1 artist or 

athlete. Such aliens may not accompany O-1 aliens in the fields of 

science, business, or education. Although the O-2 alien must obtain his 

or her own classification, this classification does not entitle him or 

her to work separate and apart from the O-1 alien to whom he or she 

provides support. An O-2 alien must be petitioned for in conjunction 

with the services of the O-1 alien.

    (ii) Evidentiary criteria for qualifying as an O-2 accompanying 

alien--(A) Alien accompanying an O-1 artist or athlete of extraordinary 

ability. To qualify as an O-2 accompanying alien, the alien



[[Page 316]]



must be coming to the United States to assist in the performance of the 

O-1 alien, be an integral part of the actual performance, and have 

critical skills and experience with the O-1 alien which are not of a 

general nature and which are not possessed by a U.S. worker.

    (B) Alien accompanying an O-1 alien of extraordinary achievement. To 

qualify as an O-2 alien accompanying and O-1 alien involved in a motion 

picture or television production, the alien must have skills and 

experience with the O-1 alien which are not of a general nature and 

which are critical based on a pre-existing longstanding working 

relationship or, with respect to the specific production, because 

significant production (including pre- and post-production work) will 

take place both inside and outside the United States and the continuing 

participation of the alien is essential to the successful completion of 

the production.

    (C) The evidence shall establish the current essentiality, critical 

skills, and experience of the O-2 alien with the O-1 alien and that the 

alien has substantial experience performing the critical skills and 

essential support services for the O-1 alien. In the case of a specific 

motion picture or television production, the evidence shall establish 

that significant production has taken place outside the United States, 

and will take place inside the United States, and that the continuing 

participation of the alien is essential to the successful completion of 

the production.

    (5) Consultation--(i) General. (A) Consultation with an appropriate 

U.S. peer group (which could include a person or persons with expertise 

in the field), labor and/or management organization regarding the nature 

of the work to be done and the alien's qualifications is mandatory 

before a petition for an O-1 or O-2 classification can be approved.

    (B) Except as provided in paragraph (o)(5)(i)(E) of this section, 

evidence of consultation shall be in the form of a written advisory 

opinion from a peer group (which could include a person or persons with 

expertise in the field), labor and/or management organization with 

expertise in the specific field involved.

    (C) Except as provided in paragraph (o)(5)(i)(E) of this section, 

the petitioner shall obtain a written advisory opinion from a peer group 

(which could include a person or persons with expertise in the field), 

labor, and/or management organization with expertise in the specific 

field involved. The advisory opinion shall be submitted along with the 

petition when the petition is filed. If the advisory opinion is not 

favorable to the petitioner, the advisory opinion must set forth a 

specific statement of facts which supports the conclusion reached in the 

opinion. Advisory opinions must be submitted in writing and must be 

signed by an authorized official of the group or organization.

    (D) Except as provided in paragraph (o)(5)(i)(E) and (G) of this 

section, written evidence of consultation shall be included in the 

record in every approved O petition. Consultations are advisory and are 

not binding on the Service.

    (E) In a case where the alien will be employed in the field of arts, 

entertainment, or athletics, and the Service has determined that a 

petition merits expeditious handling, the Service shall contact the 

appropriate labor and/or management organization and request an advisory 

opinion if one is not submitted by the petitioner. The labor and/or 

management organization shall have 24 hours to respond to the Service's 

request. The Service shall adjudicate the petition after receipt of the 

response from the consulting organization. The labor and/or management 

organization shall then furnish the Service with a written advisory 

opinion within 5 days of the initiating request. If the labor and/or 

management organization fails to respond within 24 hours, the Service 

shall render a decision on the petition without the advisory opinion.

    (F) In a routine processing case where the petition is accompanied 

by a written opinion from a peer group, but the peer group is not a 

labor organization, the Director will forward a copy of the petition and 

all supporting documentation to the national office of the appropriate 

labor organization within 5 days of receipt of the petition. If there



[[Page 317]]



is a collective bargaining representative of an employer's employees in 

the occupational classification for which the alien is being sought, 

that representative shall be the appropriate labor organization for 

purposes of this section. The labor organization will then have 15 days 

from receipt of the petition and supporting documents to submit to the 

Service a written advisory opinion, comment, or letter of no objection. 

Once the 15-day period has expired, the Director shall adjudicate the 

petition in no more than 14 days. The Director may shorten this time in 

his or her discretion for emergency reasons, if no unreasonable burden 

would be imposed on any participant in the process. If the labor 

organization does not respond within 15 days, the Director will render a 

decision on the record without the advisory opinion.

    (G) In those cases where it is established by the petitioner that an 

appropriate peer group, including a labor organization, does not exist, 

the Service shall render a decision on the evidence of record.

    (ii) Consultation requirements for an O-1 alien for extraordinary 

ability--(A) Content. Consultation with a peer group in the area of the 

alien's ability (which may include a labor organization), or a person or 

persons with expertise in the area of the alien's ability, is required 

in an O-1 petition for an alien of extraordinary ability. If the 

advisory opinion is not favorable to the petitioner, the advisory 

opinion must set forth a specific statement of facts which supports the 

conclusion reached in the opinion. If the advisory opinion is favorable 

to the petitioner, it should describe the alien's ability and 

achievements in the field of endeavor, describe the nature of the duties 

to be performed, and state whether the position requires the services of 

an alien of extraordinary ability. A consulting organization may also 

submit a letter of no objection in lieu of the above if it has no 

objection to the approval of the petition.

    (B) Waiver of consultation of certain aliens of extraordinary 

ability in the field of arts. Consultation for an alien of extraordinary 

ability in the field of arts shall be waived by the Director in those 

instances where the alien seeks readmission to the United States to 

perform similar services within 2 years of the date of a previous 

consultation. The director shall, within 5 days of granting the waiver, 

forward a copy of the petition and supporting documentation to the 

national office of an appropriate labor organization. Petitioners 

desiring to avail themselves of the waiver should submit a copy of the 

prior consultation with the petition and advise the Director of the 

waiver request.

    (iii) Consultation requirements for an O-1 alien of extraordinary 

achievement. In the case of an alien of extraordinary achievement who 

will be working on a motion picture or television production, 

consultation shall be made with the appropriate union representing the 

alien's occupational peers and a management organization in the area of 

the alien's ability. If an advisory opinion is not favorable to the 

petitioner, the advisory opinion must set forth a specific statement of 

facts which supports the conclusion reached in the opinion. If the 

advisory opinion is favorable to the petitioner, the written advisory 

opinion from the labor and management organizations should describe the 

alien's achievements in the motion picture or television field and state 

whether the position requires the services of an alien of extraordinary 

achievement. If a consulting organization has no objection to the 

approval of the petition, the organization may submit a letter of no 

objection in lieu of the above.

    (iv) Consultation requirements for an O-2 accompanying alien. 

Consultation with a labor organization with expertise in the skill area 

involved is required for an O-2 alien accompanying an O-1 alien of 

extraordinary ability. In the case of an O-2 alien seeking entry for a 

motion picture or television production, consultation with a labor 

organization and a management organization in the area of the alien's 

ability is required. If an advisory opinion is not favorable to the 

petitioner, the advisory opinion must set forth a specific statement of 

facts which supports the conclusion reached in the opinion. If the 

advisory opinion is favorable to the petitioner, the opinion provided by



[[Page 318]]



the labor and/or management organization should describe the alien's 

essentiality to, and working relationship with, the O-1 artist or 

athlete and state whether there are available U.S. workers who can 

perform the support services. If the alien will accompany an O-1 alien 

involved in a motion picture or television production, the advisory 

opinion should address the alien's skills and experience wit the O-1 

alien and whether the alien has a pre-existing longstanding working 

relationship with the O-1 alien, or whether significant production will 

take place in the United States and abroad and if the continuing 

participation of the alien is essential to the successful completion of 

the production. A consulting organization may also submit a letter of no 

objection in lieu of the above if it has no objection to the approval of 

the petition.

    (v) Organizations agreeing to provide advisory opinions. The Service 

will list in its Operations Instructions for O classification those peer 

groups, labor organizations, and/or management organizations which have 

agreed to provide advisory opinions to the Service and/or petitioners. 

The list will not be an exclusive or exhaustive list. The Service and 

petitioners may use other sources, such as publications, to identify 

appropriate peer groups, labor organizations, and management 

organizations. Additionally, the Service will list in its Operations 

Instructions those occupations or fields of endeavor where the 

nonexistence of an appropriate consulting entity has been verified.

    (6) Approval and validity of petition--(1) Approval. The Director 

shall consider all of the evidence submitted and such other evidence as 

may be independently required to assist in the adjudication. The 

Director shall notify the petitioner of the approval of the petition on 

Form I-797, Notice of Action. The approval notice shall include the 

alien beneficiary name, the classification, and the petition's period of 

validity.

    (ii) Recording the validity of petitions. Procedures for recording 

the validity period of petitions are as follows;

    (A) If a new O petition is approved before the date the petitioner 

indicates the services will begin, the approved petition and approval 

notice shall show the actual dates requested by the petitioner, not to 

exceed the limit specified by paragraph (o)(6)(iii) of this section or 

other Service policy.

    (B) If a new 0 petition is approved after the date the petitioner 

indicates the services will begin, the approved petition and approval 

notice shall generally show a validity period commencing with the date 

of approval and ending with the date requested by the petitioner, not to 

exceed the limit specified by paragraph (o)(6)(iii) of this section or 

other Service policy.

    (C) If the period of services requested by the petitioner exceeds 

the limit specified in paragraph (o)(6)(iii) of this section, the 

petition shall be approved only up to the limit specified in that 

paragraph.

    (iii) Validity--(A) O-1 petition. An approved petition for an alien 

classified under section 101(a)(15)(O)(i) of the Act shall be valid for 

a period of time determined by the Director to be necessary to 

accomplish the event or activity, not to exceed 3 years.

    (B) O-2 petition. An approved petition for an alien classified under 

section 101(a)(15)(O)(ii) of the Act shall be valid for a period of time 

determined to be necessary to assist the O-1 alien to accomplish the 

event or activity, not to exceed 3 years.

    (iv) Spouse and dependents. The spouse and unmarried minor children 

of the O-1 or O-2 alien beneficiary are entitled to O-3 nonimmigrant 

classification, subject to the same period of admission and limitations 

as the alien beneficiary, if they are accompanying or following to join 

the alien beneficiary in the United States. Neither the spouse nor a 

child of the alien beneficiary may accept employment unless he or she 

has been granted employment authorization.

    (7) Denial of petition--(i) 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



[[Page 319]]



which to do so. All relevant rebuttal material will be considered in 

making a final decision.

    (ii) Notice of denial. The petitioner shall be notified of the 

decision, the reasons for the denial, and the right to appeal the denial 

under 8 CFR part 103.

    (8) Revocation of approval of petition--(i) General. (A) The 

petitioner shall immediately notify the Service of any changes in the 

terms and conditions of employment of a beneficiary which may affect 

eligibility under section 101(a)(15)(O) of the Act and paragraph (o) of 

this section. An amended petition should be filed when the petitioner 

continues to employ the beneficiary. If the petitioner no longer employs 

the beneficiary, the petitioner shall send a letter explaining the 

change(s) to the Director who approved the petition.

    (B) The Director may revoke a petition at any time, even after the 

validity of the petition has expired.

    (ii) Automatic revocation. The approval of an unexpired petition is 

automatically revoked if the petitioner, or the named employer in a 

petition filed by an agent, goes out of business, files a written 

withdrawal of the petition, or notifies the Service that the beneficiary 

is no longer employed by the petitioner.

    (iii) Revocation on notice--(A) Grounds for revocation. The Director 

shall send to the petitioner a notice of intent to revoke the petition 

in relevant part if is determined that:

    (1) The beneficiary is no longer employed by the petitioner in the 

capacity specified in the petition;

    (2) The statement of facts contained in the petition was not true 

and correct;

    (3) The petitioner violated the terms or conditions of the approved 

petition;

    (4) The petitioner violated the requirements of section 

101(a)(15)(O) of the Act or paragraph (o) of this section; or

    (5) The approval of the petition violated paragraph (o) of this 

section or involved gross error.

    (B) Notice and decision. The notice of intent to revoke shall 

contain a detailed statement of the grounds for the revocation and the 

time period allowed for the petitioner's rebuttal. The petitioner may 

submit evidence in rebuttal within 30 days of the date of the notice. 

The Director shall consider all relevant evidence presented in deciding 

whether to revoke the petition.

    (9) Appeal of a denial or a revocation of a petition--(i) Denial. A 

denied petition may be appealed under 8 CFR part 103.

    (ii) Revocation. A petition that has been revoked on notice may be 

appealed under 8 CFR part 103. Automatic revocations may not be 

appealed.

    (10) Admission. A beneficiary may be admitted to the United States 

for the validity period of the petition, plus a period of up to 10 days 

before the validity period begins and 10 days after the validity period 

ends. The beneficiary may only engage in employment during the validity 

period of the petition.

    (11) Extention of visa petition validity. The petitioner shall file 

a request to extend the validity of the original petition under section 

101(a)(15)(O) of the Act on Form I-129, Petition for a Nonimmigrant 

Worker, in order to continue or complete the same activities or events 

specified in the original petition. Supporting documents are not 

required unless requested by the Director. A petition extension may be 

filed only if the validity of the original petition has not expired.

    (12) Extension of stay--(i) Extension procedure. The petitioner 

shall request extension of the alien's stay to continue or complete the 

same event or activity by filing Form I-129, accompanied by a statement 

explaining the reasons for the extension. The petitioner must also 

request a petition extension. The dates of extension shall be the same 

for the petition and the beneficiary's extension of stay. The alien 

beneficiary must be physically present in the United States at the time 

of filing of the extension of stay. Even though the request to extend 

the petition and the alien's stay are combined on the petition, the 

Director shall make a separate determination on each. If the alien 

leaves the United States for business or personal reasons while the 

extension requests are pending, the petitioner may request the Director 

to cable notification of approval of the petition extension to the 

consular office abroad where the alien will apply for a visa.



[[Page 320]]



    (ii) Extension period. An extension of stay may be authorized in 

increments of up to 1 year for an O-1 or O-2 beneficiary to continue or 

complete the same event or activity for which he or she was admitted 

plus an additional 10 days to allow the beneficiary to get his or her 

personal affairs in order.

    (iii) Denial of an extension of stay. The denial of the request for 

the alien's extension of temporary stay may not be appealed.

    (13) Effect of approval of a permanent labor certification or filing 

of a preference petition on O classification. The approval of a 

permanent labor certification or the filing of a preference petition for 

an alien shall not be a basis for denying an O-1 petition, a request to 

extend such a petition, or the alien's application for admission, change 

of status, or extension of stay. The alien may legitimately come to the 

United States for a temporary period as an O-1 nonimmigrant and depart 

voluntarily at the end of his or her authorized stay and, at the same 

time, lawfully seek to become a permanent resident of the United States.

    (14) Effect of a strike. (i) If the Secretary of Labor certifies to 

the Commissioner that a strike or other labor dispute involving a work 

stoppage of workers is in progress in the occupation at the place where 

the beneficiary is to be employed, and that the employment of the 

beneficiary would adversely affect the wages and working conditions of 

U.S. citizens and lawful resident workers:

    (A) A petition to classify an alien as a nonimmigrant as defined in 

section 101(a)(15)(O) of the Act shall be denied; or

    (B) If a petition has been approved, but the alien has not yet 

entered the United States, or has entered the United States but has not 

commenced employment, the approval of the petition is automatically 

suspended, and the application for admission on the basis of the 

petition shall be denied.

    (ii) If there is a strike or other labor dispute involving a work 

stoppage of workers in progress, but such strike or other labor dispute 

is not certified under paragraph (o)(14)(i) of this section, the 

Commissioner shall not deny a petition or suspend an approved petition.

    (iii) If the alien has already commenced employment in the United 

States under an approved petition and is participating in a strike or 

labor dispute involving a work stoppage of workers, whether or not such 

strike or other labor dispute has been certified by the Secretary of 

Labor, the alien shall not be deemed to be failing to maintain his or 

her status solely on account of past, present, or future participation 

in a strike or other labor dispute involving a work stoppage of workers 

but is subject to the following terms and conditions:

    (A) The alien shall remain subject to all applicable provisions of 

the Immigration and Nationality Act and regulations promulgated 

thereunder in the same manner as are all other O nonimmigrants;

    (B) The status and authorized period of stay of such an alien is not 

modified or extended in any way by virtue of his or her participation in 

a strike or other labor dispute involving a work stoppage of workers; 

and

    (C) Although participation by an O nonimmigrant alien in a strike or 

other labor dispute involving a work stoppage of workers will not 

constitute a ground for deportation, and alien who violates his or her 

status or who remains in the United States after his or her authorized 

period of stay has expired will be subject to deportation.

    (15) Use of approval notice, Form I-797. The Service shall notify 

the petitioner of Form I-797 whenever a visa petition or an extension of 

a visa petition is approved under the O classification. The beneficiary 

of an O petition who does not require a nonimmigrant visa may present a 

copy of the approval notice at a Port-of-Entry to facilitate entry into 

the United States. A beneficiary who is required to present a visa for 

admission, and who visa will have expired before the date of his or her 

intended return, may use Form I-797 to apply for a new or revalidated 

visa during the validity period of the petition. A copy of Form I-797 

shall be retained by the beneficiary and presented during the validity 

of the petition when reentering the United States to resume the



[[Page 321]]



same employment with the same petitioner.

    (16) Return transportation requirement. In the case of an alien who 

enters the United States under section 101(a)(15(O) of the Act and whose 

employment terminates for reasons other than voluntary resignation, the 

employer whose offer of employment formed the basis of such nonimmigrant 

status and the petitioner are jointly and severally liable for the 

reasonable cost of return transportation of the alien abroad. For the 

purposes of this paragraph, the term ``abroad'' means the alien's last 

place of residence prior to his or her entry into the United States.

    (p) Artists, athletes, and entertainers--(1) Classifications--(i) 

General. Under section 101(a)(15)(P) of the Act, an alien having a 

residence in a foreign country which he or she has not intention or 

abandoning may be authorized to come to the United States temporarily to 

perform services for an employer or a sponsor. Under the nonimmigrant 

category, the alien may be classified under section 101(a)(15)(P)(i) of 

the Act as an alien who is coming to the United States to perform 

services as an internationally recognized athlete, individually or as 

part of a group or team, or member of an internationally recognized 

entertainment group; under section 101(a)(15)(P)(ii) of the Act, who is 

coming to perform as an artist or entertainer under a reciprocal 

exchange program; under section 101(a)(15)(P)(iii) of the Act, as an 

alien who is coming solely to perform, teach, or coach under a program 

that is culturally unique; or under section 101(a)(15)(P)(iv) of the 

Act, as the spouse or child of an alien described in section 

101(a)(15)(P) (i), (ii), or (iii) of the Act who is accompanying or 

following to join the alien. These classifications are called P-1, P-2, 

P-3, and P-4 respectively. The employer or sponsor must file a petition 

with the Service for review of the services to be performed and for 

determination of the alien's eligibility for P-1, P-2, or P-3 

classification before the alien may apply for a visa or seek admission 

to the United States. This paragraph sets forth the standards and 

procedures applicable to these classifications.

    (ii) Description of classification.(A) A P-1 classification applies 

to an alien who is coming temporarily to the United States:

    (1) To perform at specific athletic competition as an athlete, 

individually or as part of a group or team, at an internationally 

recognized level or performance, or

    (2) To perform with, or as an integral and essential part of the 

performance of, and entertainment group that has been recognized 

internationally as being outstanding in the discipline for a sustained 

and substantial period of time, and who has had a sustained and 

substantial relationship with the group (ordinarily for at least 1 year) 

and provides functions integral to the performance of the group.

    (B) A P-2 classification applies to an alien who is coming 

temporarily to the United States to perform as an artist or entertainer, 

individually or as part of a group, or to perform as an integral part of 

the performance of such a group, and who seeks to perform under a 

reciprocal exchange program which is between an organization or 

organizations in the United States and an organization or organizations 

in one or more foreign states, and which provides for the temporary 

exchange of artists and entertainers, or groups of artists and 

entertainers.

    (C) A P-3 classification applies to an alien artist or entertainer 

who is coming temporarily to the United States, either individually or 

as part of a group, or as an integral part of the performance of the 

group, to perform, teach, or coach under a commercial or noncommercial 

program that is culturally unique.

    (2) Filing of petitions--(i) General. A P-1 petition for an athlete 

or entertainment group shall be filed by a United States employer, a 

United States sponsoring organization, a United States agent, or a 

foreign employer through a United States agent. For purposes of 

paragraph (p) of this section, a foreign employer is any employer who is 

not amenable to service of process in the United States. Foreign 

employers seeking to employ a P-1 alien may not directly petition for 

the alien but must use a United States agent. A United States agent 

petitioning on behalf of a



[[Page 322]]



foreign employer must be authorized to file the petition, and to accept 

service of process in the United States in proceedings under section 

274A of the Act, on behalf of the foreign employer. A P-2 petition for 

an artist or entertainer in a reciprocal exchange program shall be filed 

by the United States labor organization which negotiated the reciprocal 

exchange agreement, the sponsoring organization, or a United States 

employer. A P-3 petition for an artist or entertainer in a culturally 

unique program shall be filed by the sponsoring organization or a United 

States employer. Essential support personnel may not be included on the 

petition filed for the principal alien(s). These aliens require a 

separate petition. Except as provided for in paragraph (p)(2)(iv)(A) of 

this section, the petitioner shall file a P petition on Form I-129, 

Petition for Nonimmigrant Worker, with the Service Center which has 

jurisdiction in the area where the alien will work. The petition may not 

be filed more than 6 months before the actual need for the alien's 

services. A P-1, P-2, or P-3 petition shall be adjudicated at the 

appropriate Service Center, even in emergency situations.

    (ii) Evidence required to accompany a petition for a P nonimmigrant. 

Petitions for P nonimmigrant aliens shall be accompanied by the 

following:

    (A) The evidence specified in the specific section of this part for 

the classification;

    (B) Copies of any written contracts between the petitioner and the 

alien beneficiary or, if there is no written contract, a summary of the 

terms of the oral agreement under which the alien(s) will be employed;

    (C) An explanation of the nature of the events or activities, the 

beginning and ending dates for the events or activities, and a copy of 

any itinerary for the events or activities; and

    (D) A written consultation from a labor organization.

    (iii) Form of documentation. The evidence submitted with an P 

petition should conform to the following:

    (A) Affidavits, contracts, awards, and similar documentation must 

reflect the nature of the alien's achievement and be executed by an 

officer or responsible person employed by the institution, 

establishment, or organization where the work has performed.

    (B) Affidavits written by present or former employers or recognized 

experts certifying to the recognition and extraordinary ability, or, in 

the case of a motion picture or television production, the extraordinary 

achievement of the alien, which shall specifically describe the alien's 

recognition and ability or achievement in factual terms. The affidavit 

must also set forth the expertise of the affiant and the manner in which 

the affiant acquired such information.

    (C) A legible copy of a document in support of the petition may be 

submitted in lieu of the original. However, the original document shall 

be submitted if requested by the Director.

    (iv) Other filing situations--(A) Services in more than one 

location. A petition which requires the alien to work in more than one 

location (e.g., a tour) must include an itinerary with the dates and 

locations of the performances and must be filed with the Service Center 

which has jurisdiction in the area where the petitioner is located. The 

address which the petitioner specifies as its location on the petition 

shall be where the petitioner is located for purposes of this paragraph.

    (B) Services for more than one employer. If the beneficiary or 

beneficiaries will work for more than one employer within the same time 

period, each employer must file a separate petition with the Service 

Center that has jurisdiction over the area where the alien will perform 

the services, unless an agent files the petition pursuant to paragraph 

(p)(2)(iv)(E) of this section.

    (C) Change of employer--(1) General. If a P-1, P-2, or P-3 alien in 

the United States seeks to change employers or sponsors, the new 

employer or sponsor must file both a petition and a request to extend 

the alien's stay in the United States. The alien may not commence 

employment with the new employer or sponsor until the petition and 

request for extension have been approved.

    (2) Traded professional P-1 athletes. In the case of a professional 

P-1 athlete who is traded from one organization to another organization, 

employment authorization for the player will automatically continue for 

a period of 30



[[Page 323]]



days after acquisition by the new organization, within which time the 

new organization is expected to file a new Form I-129 for P-1 

nonimmigrant classification. If a new Form I-129 is not filed within 30 

days, employment authorization will cease. If a new Form I-129 is filed 

within 30 days, the professional athlete shall be deemed to be in valid 

P-1 status, and employment shall continue to be authorized, until the 

petition is adjudicated. If the new petition is denied, employment 

authorization will cease.

    (D) Amended petition. The petitioner shall file an amended petition, 

with fee, with the Service Center where the original petition was filed 

to reflect any material changes in the terms and conditions of 

employment or the beneficiary's eligibility as specified in the original 

approved petition. A petitioner may add additional, similar or 

comparable performance, engagements, or competitions during the validity 

period of the petition without filing an amended petition.

    (E) Agents as petitioners. A United States agent may file a petition 

in cases involving workers who are traditionally self-employed or 

workers who use agents to arrange short-term employment on their behalf 

with numerous employers, and in cases where a foreign employer 

authorizes the agent to act on its behalf. A United States agent may be: 

the actual employer of the beneficiary; the representative of both the 

employer and the beneficiary; or, a person or entity authorized by the 

employer to act for, or in place of, the employer as its agent. A 

petition filed by an United States agent is subject to the following 

conditions:

    (1) An agent performing the function of an employer must specify the 

wage offered and the other terms and conditions of employment by 

contractual agreement with the beneficiary or beneficiaries. The agent/

employer must also provide an itinerary of definite employment and 

information on any other services planned for the period of time 

requested.

    (2) A person or company in business as an agent may file the P 

petition involving multiple employers as the representative of both the 

employers and the beneficiary or beneficiaries if the supporting 

documentation includes a complete itinerary of services or engagements. 

The itinerary shall specify the dates of each service or engagement, the 

names and addresses of the actual employers, the names and addresses of 

the establishment, venues, or locations where the services will be 

performed. In questionable cases, a contract between the employer(s) and 

the beneficiary or beneficiaries may be required. The burden is on the 

agent to explain the terms and conditions of the employment and to 

provide any required documentation.

    (3) A foreign employer who, through a United States agent, files a 

petition for a P nonimmigrant alien is responsible for complying with 

all of the employer sanctions provisions of section 274A of the Act and 

8 CFR part 274a.

    (F) Multiple beneficiaries. More than one beneficiary may be 

included in a P petition if they are members of a group seeking 

classification based on the reputation of the group as an entity, or if 

they will provide essential support to P-1, P-2, or P-3 beneficiaries 

performing in the same location and in the same occupation.

    (G) Named beneficiaries. Petitions for P classification must include 

the names of beneficiaries and other required information at the time of 

filing.

    (H) Substitution of beneficiaries. A petitioner may request 

substitution of beneficiaries in approved P-1, P-2, and P-3 petitions 

for groups. To request substitution, the petitioner shall submit a 

letter requesting such substitution, along with a copy of the 

petitioner's approval notice, to the consular office at which the alien 

will apply for a visa or the Port-of-Entry where the alien will apply 

for admission. Essential support personnel may not be substituted at 

consular offices or at Ports-of-entry. In order to add additional new 

essential support personnel, a new I-129 petition must be filed with the 

appropriate Service Center.

    (3) Definitions. As used in this paragraph, the term:

    Arts includes fields of creative activity or endeavor such as, but 

not limited to, fine arts, visual arts, and performing arts.



[[Page 324]]



    Competition, event, or performance means an activity such as an 

athletic competition, athletic season, tournament, tour, exhibit, 

project, entertainment event, or engagement. Such activity could include 

short vacations, promotional appearances for the petitioning employer 

relating to the competition, event, or performance, and stopovers which 

are incidental and/or related to the activity. An athletic competition 

or entertainment event could include an entire season of performances A 

group of related activities will also be considered an event. In the 

case of a P-2 petition, the event may be the duration of the reciprocal 

exchange agreement. In the case of a P-1 athlete, the event may be the 

duration of the alien's contract.

    Contract means the written agreement between the petitioner and the 

beneficiary(ies) that explains the terms and conditions of employment. 

The contract shall describe the services to be performed, and specify 

the wages, hours of work, working conditions, and any fringe benefits.

    Culturally unique means a style of artistic expression, methodology, 

or medium which is unique to a particular country, nation, society, 

class, ethnicity, religion, tribe, or other group of persons.

    Essential support alien means a highly skilled, essential person 

determined by the Director to be an integral part of the performance of 

a P-1, P-2, or P-3 alien because he or she performs support services 

which cannot be readily performed by a United States worker and which 

are essential to the successful performance of services by the P-1, P-2, 

alien. Such alien must have appropriate qualifications to perform the 

services, critical knowledge of the specific services to be performed, 

and experience in providing such support to the P-1, P-2, or P-3 alien.

    Group means two or more persons established as one entity or unit to 

perform or to provide a service.

    Internationally recognized means having a high level of achievement 

in a field evidenced by a degree of skill and recognition substantially 

above that ordinarily encountered, to the extent that such achievement 

is renowned, leading, or well-known in more than one country.

    Member of a group means a person who is actually performing the 

entertainment services.

    Sponsor means an established organization in the United States which 

will not directly employ a P-1, P-2, or P-3 alien but will assume 

responsibility for the accuracy of the terms and conditions specified in 

the petition.

    Team means two or more persons organized to perform together as a 

competitive unit in a competitive event.

    (4) Petition for an internationally recognized athlete or member of 

an internationally recognized entertainment group (P-1)--(i) Types of 

classification--(A) P-1 classification as an athlete in an individual 

capacity. A P-1 classification may be granted to an alien who is an 

internationally recognized athlete based on his or her own reputation 

and achievements as an individual. The alien must be coming to the 

United States to perform services which require an internationally 

recognized athlete.

    (B) P-1 classification as a member of an entertainment group or an 

athletic team. An entertainment group or athletic team consists of two 

or more persons who function as a unit. The entertainment group or 

athletic team as a unit must be internationally recognized as 

outstanding in the discipline and must be coming to perform services 

which require an internationally recognized entertainment group or 

athletic team. A person who is a member of an internationally recognized 

entertainment group or athletic team may be granted P-1 classification 

based on that relationship, but may not perform services separate and 

apart from the entertainment group or athletic team. An entertainment 

group must have been established for a minimum of 1 year, and 75 percent 

of the members of the group must have been performing entertainment 

services for the group for a minimum of 1 year.

    (ii) Criteria and documentary requirements for P-1 athletes--(A) 

General. A P-1 athlete must have an internationally recognized 

reputation as an international athlete or he or she must be a member of 

a foreign team that is internationally recognized. The athlete or



[[Page 325]]



team must be coming to the United States to participate in an athletic 

competition which has a distinguished reputation and which requires 

participation of an athlete or athletic team that has an international 

reputation.

    (B) Evidentiary requirements for an internationally recognized 

athlete or athletic team. A petition for an athletic team must be 

accompanied by evidence that the team as a unit has achieved 

international recognition in the sport. Each member of the team is 

accorded P-1 classification based on the international reputation of the 

team. A petition for an athlete who will compete individually or as a 

member of a U.S. team must be accompanied by evidence that the athlete 

has achieved international recognition in the sport based on his or her 

reputation. A petition for a P-1 athlete or athletic team shall include:

    (1) A tendered contract with a major United States sports league or 

team, or a tendered contract in an individual sport commensurate with 

international recognition in that sport, if such contracts are normally 

executed in the sport, and

    (2) Documentation of at least two of the following:

    (i) Evidence of having participated to a significant extent in a 

prior season with a major United States sports league;

    (ii) Evidence of having participated in international competition 

with a national team;

    (iii) Evidence of having participated to a significant extent in a 

prior season for a U.S. college or university in intercollegiate 

competition;

    (iv) A written statement from an official of the governing body of 

the sport which details how the alien or team is internationally 

recognized;

    (v) A written statement from a member of the sports media or a 

recognized expert in the sport which details how the alien or team is 

internationally recognized;

    (vi) Evidence that the individual or team is ranked if the sport has 

international rankings; or

    (vii) Evidence that the alien or team has received a significant 

honor or award in the sport.

    (iii) Criteria and documentary requirements for members of an 

internationally recognized entertainment group--(A) General. A P-1 

classification shall be accorded to an entertainment group to perform as 

a unit based on the international reputation of the group. Individual 

entertainers shall not be accorded P-1 classification to perform 

separate and apart from a group. Except as provided in paragraph 

(p)(4)(iii)(C)(2) of this section, it must be established that the group 

has been internationally recognized as outstanding in the discipline for 

a sustained and substantial period of time. Seventy-five percent of the 

members of the group must have had a sustained and substantial 

relationship with the group for at least 1 year and must provide 

functions integral to the group's performance.

    (B) Evidentiary criteria for members of internationally recognized 

entertainment groups. A petition for P-1 classification for the members 

of an entertainment group shall be accompanied by:

    (1) Evidence that the group has been established and performing 

regularly for a period of at least 1 year;

    (2) A statement from the petitioner listing each member of the group 

and the exact dates for which each member has been employed on a regular 

basis by the group; and

    (3) Evidence that the group has been internationally recognized in 

the discipline for a sustained and substantial period of time. This may 

be demonstrated by the submission of evidence of the group's nomination 

or receipt of significant international awards or prices for outstanding 

achievement in its field or by three of the following different types of 

documentation:

    (i) Evidence that the group has performed, and will perform, as a 

starring or leading entertainment group in productions or events which 

have a distinguished reputation as evidenced by critical reviews, 

advertisements, publicity releases, publications, contracts, or 

endorsements;

    (ii) Evidence that the group has achieved international recognition 

and acclaim for outstanding achievement in its field as evidenced by 

reviews in



[[Page 326]]



major newspapers, trade journals, magazines, or other published 

material;

    (iii) Evidence that the group has performed, and will perform, 

services as a leading or starring group for organizations and 

establishments that have a distinguished reputation evidenced by 

articles in newspapers, trade journals, publications, or testimonials;

    (iv) Evidence that the group has a record of major commercial or 

critically acclaimed successes, as evidenced by such indicators as 

ratings; standing in the field; box office receipts; record, cassette, 

or video sales; and other achievements in the field as reported in trade 

journals, major newspapers, or other publications;

    (v) Evidence that the group has achieved significant recognition for 

achievements from organizations, critics, government agencies, or other 

recognized experts in the field. Such testimonials must be in a form 

that clearly indicates the author's authority, expertise, and knowledge 

of the alien's achievements; or

    (vi) Evidence that the group has either commanded a high salary or 

will command a high salary or other substantial remuneration for 

services comparable to other similarly situated in the field as 

evidenced by contracts or other reliable evidence.

    (C) Special provisions for certain entertainment groups--(1) Alien 

circus personnel. The 1-year group membership requirement and the 

international recognition requirement are not applicable to alien circus 

personnel who perform as part of a circus or circus group, or who 

constitute an integral and essential part of the performance of such 

circus or circus group, provided that the alien or aliens are coming to 

join a circus that has been recognized nationally as outstanding for a 

sustained and substantial period of time or as part of such a circus.

    (2) Certain nationally known entertainment groups. The Director may 

waive the international recognition requirement in the case of an 

entertainment group which has been recognized nationally as being 

outstanding in its discipline for a sustained and substantial period of 

time in consideration of special circumstances. An example of a special 

circumstances would be when an entertainment group may find it difficult 

to demonstrate recognition in more than one country due to such factors 

as limited access to news media or consequences of geography.

    (3) Waiver of 1-year relationship in exigent circumstances. The 

Director may waive the 1-year relationship requirement for an alien who, 

because of illness or unanticipated and exigent circumstances, replaces 

an essential member of a P-1 entertainment group or an alien who 

augments the group by performing a critical role. The Department of 

State is hereby delegated the authority to waive the 1-year relationship 

requirement in the case of consular substitutions involving P-1 

entertainment groups.

    (iv) P-1 classification as an essential support alien--(A) General. 

An essential support alien as defined in paragraph (p)(3) of this 

section may be granted P-1 classification based on a support 

relationship with an individual P-1 athlete, P-1 athletic team, or a P-1 

entertainment group.

    (B) Evidentiary criteria for a P-1 essential support petition. A 

petition for P-1 essential support personnel must be accompanied by:

    (1) A consultation from a labor organization with expertise in the 

area of the alien's skill;

    (2) A statement describing the alien(s) prior essentiality, critical 

skills, and experience with the principal alien(s); and

    (3) A copy of the written contract or a summary of the terms of the 

oral agreement between the alien(s) and the employer.

    (5) Petition for an artist or entertainer under a reciprocal 

exchange program (P-2)--(i) General. (A) A P-2 classification shall be 

accorded to artists or entertainers, individually or as a group, who 

will be performing under a reciprocal exchange program which is between 

an organization or organizations in the United States, which may include 

a management organization, and an organization or organizations in one 

or more foreign states and which provides for the temporary exchange of 

artists and entertainers, or groups of artists and entertainers.



[[Page 327]]



    (B) The exchange of artists or entertainers shall be similar in 

terms of caliber of artists or entertainers, terms and conditions of 

employment, such as length of employment, and numbers of artists or 

entertainers involved in the exchange. However, this requirement does 

not preclude an individual for group exchange.

    (C) An alien who is an essential support person as defined in 

paragraph (p)(3) of this section may be accorded P-2 classification 

based on a support relationship to a P-2 artist or entertainer under a 

reciprocal exchange program.

    (ii) Evidentiary requirements for petition involving a reciprocal 

exchange program. A petition for P-2 classification shall be accompanied 

by:

    (A) A copy of the formal reciprocal exchange agreement between the 

U.S. organization or organizations which sponsor the aliens and an 

organization or organizations in a foreign country which will receive 

the U.S. artist or entertainers;

    (B) A statement from the sponsoring organization describing the 

reciprocal exchange of U.S. artists or entertainers as it relates to the 

specific petition for which P-2 classification is being sought;

    (C) Evidence that an appropriate labor organization in the United 

States was involved in negotiating, or has concurred with, the 

reciprocal exchange of U.S. and foreign artists or entertainers; and

    (D) Evidence that the aliens for whom P-2 classification is being 

sought and the U.S. artists or entertainers subject to the reciprocal 

exchange agreement are artists or entertainers with comparable skills, 

and that the terms and conditions of employment are similar.

    (iii) P-2 classification as an essential support alien--(A) General. 

An essential support alien as defined in paragraph (p)(3) of this 

section may be granted P-2 classification based on a support 

relationship with a P-2 entertainer or P-2 entertainment group.

    (B) Evidentiary criteria for a P-2 essential support petition. A 

petition for P-2 essential support personnel must be accompanied by:

    (1) A consultation from a labor organization with expertise in the 

area of the alien's skill;

    (2) A statement describing the alien(s) prior essentiality, critical 

skills, and experience with the principal alien(s); and

    (3) A copy of the written contract or a summary of the terms of the 

oral agreement between the alien(s) and the employer.

    (6) Petition for an artist or entertainer under a culturally unique 

program--(i) General. (A) A P-3 classification may be accorded to 

artists or entertainers, individually or as a group, coming to the 

United States for the purpose of developing, interpreting, representing, 

coaching, or teaching a unique or traditional ethnic, folk, cultural, 

musical, theatrical, or artistic performance or presentation.

    (B) The artist or entertainer must be coming to the United States to 

participate in a cultural event or events which will further the 

understanding or development of his or her art form. The program may be 

of a commercial or noncommercial nature.

    (ii) Evidentiary criteria for a petition involving a culturally 

unique program. A petition for P-3 classification shall be accompanied 

by:

    (A) Affidavits, testimonials, or letters from recognized experts 

attesting to the authenticity of the alien's or the group's skills in 

performing, presenting, coaching, or teaching the unique or traditional 

art form and giving the credentials of the expert, including the basis 

of his or her knowledge of the alien's or group's skill, or

    (B) Documentation that the performance of the alien or group is 

culturally unique, as evidence by reviews in newspapers, journals, or 

other published materials; and

    (C) Evidence that all of the performances or presentations will be 

culturally unique events.

    (iii) P-3 classification as an essential support alien--(A) General. 

An essential support alien as defined in paragraph (p)(3) of this 

section may be granted P-3 classification based on a support 

relationship with a P-3 entertainer or P-3 entertainment group.

    (B) Evidentiary criteria for a P-3 essential support petition. A 

petition for P-3



[[Page 328]]



essential support personnel must be accompanied by:

    (1) A consultation from a labor organization with expertise in the 

area of the alien's skill;

    (2) A statement describing the alien(s) prior essentiality, critical 

skills and experience with the principal alien(s); and

    (3) A copy of the written contract or a summary of the terms of the 

oral agreement between the alien(s) and the employer.

    (7) Consultation--(i) General. (A) Consultation with an appropriate 

labor organization regarding the nature of the work to be done and the 

alien's qualifications is mandatory before a petition for P-1, P-2, or 

P-3 classification can be approved.

    (B) Except as provided in paragraph (p)(7)(i)(E) of this section, 

evidence of consultation shall be a written advisory opinion from an 

appropriate labor organization.

    (C) Except as provided in paragraph (p)(7)(i)(E) of this section, 

the petitioner shall obtain a written advisory opinion from an 

appropriate labor organization. The advisory opinion shall be submitted 

along with the petition when the petition is filed. If the advisory 

opinion is not favorable to the petitioner, the advisory opinion must 

set forth a specific statement of facts which support the conclusion 

reached in the opinion. Advisory opinions must be submitted in writing 

and signed by an authorized official of the organization.

    (D) Except as provided in paragraph (p)(7)(i) (E) and (F) of this 

section, written evidence of consultation shall be included in the 

record of every approved petition. Consultations are advisory and are 

not binding on the Service.

    (E) In a case where the Service has determined that a petition 

merits expeditious handling, the Service shall contact the labor 

organization and request an advisory opinion if one is not submitted by 

the petitioner. The labor organization shall have 24 hours to respond to 

the Service's request. The Service shall adjudicate the petition after 

receipt of the response from the labor organization. The labor 

organization shall then furnish the Service with a written advisory 

opinion within 5 working days of the request. If the labor organization 

fails to respond within 24 hours, the Service shall render a decision on 

the petition without the advisory opinion.

    (F) In those cases where it is established by the petitioner that an 

appropriate labor organization does not exist, the Service shall render 

a decision on the evidence of record.

    (ii) Consultation requirements for P-1 athletes and entertainment 

groups. Consultation with a labor organization that has expertise in the 

area of the alien's sport or entertainment field is required in the case 

of a P-1 petition. If the advisory opinion is not favorable to the 

petitioner, the advisory opinion must set forth a specific statement of 

facts which support the conclusion reached in the opinion. If the 

advisory opinion provided by the labor organization is favorable to the 

petitioner it should evaluate and/or describe the alien's or group's 

ability and achievements in the field of endeavor, comment on whether 

the alien or group is internationally recognized for achievements, and 

state whether the services the alien or group is coming to perform are 

appropriate for an internationally recognized athlete or entertainment 

group. In lieu of the above, a labor organization may submit a letter of 

no objection if it has no objection to the approval of the petition.

    (iii) Consultation requirements for P-1 circus personnel. The 

advisory opinion provided by the labor organization should comment on 

whether the circus which will employ the alien has national recognition 

as well as any other aspect of the beneficiary's or beneficiaries' 

qualifications which the labor organization deems appropriate. If the 

advisory opinion is not favorable to the petitioner, it must set forth a 

specific statement of facts which support the conclusion reached in the 

opinion. In lieu of the above, a labor organization may submit a letter 

of no objection if it has no objection to the approval of the petition.

    (iv) Consultation requirements for P-2 alien in a reciprocal 

exchange program. In P-2 petitions where an artist or entertainer is 

coming to the United



[[Page 329]]



States under a reciprocal exchange program, consultation with the 

appropriate labor organization is required to verify the existence of a 

viable exchange program. The advisory opinion from the labor 

organization shall comment on the bona fides of the reciprocal exchange 

program and specify whether the exchange meets the requirements of 

paragraph (p)(5) of this section. If the advisory opinion is not 

favorable to the petitioner, it must also set forth a specific statement 

of facts which support the conclusion reached in the opinion.

    (v) Consultation requirements for P-3 in a culturally unique 

program. Consultation with an appropriate labor organization is required 

for P-3 petitions involving aliens in culturally unique programs. If the 

advisory opinion is favorable to the petitioner, it should evaluate the 

cultural uniqueness of the alien's skills, state whether the events are 

cultural in nature, and state whether the event or activity is 

appropriate for P-3 classification. If the advisory opinion is not 

favorable to the petitioner, it must also set forth a specific statement 

of facts which support the conclusion reached in the opinion. In lieu of 

the above, a labor organization may submit a letter of no objection if 

it has no objection to the approval of the petition.

    (vi) Consultation requirements for essential support aliens. Written 

consultation on petitions for P-1, P-2, or P-3 essential support aliens 

must be made with a labor organization with expertise in the skill area 

involved. If the advisory opinion provided by the labor organization is 

favorable to the petitioner, it must evaluate the alien's essentiality 

to and working relationship with the artist or entertainer, and state 

whether United States workers are available who can perform the support 

services. If the advisory opinion is not favorable to the petitioner, it 

must also set forth a specific statement of facts which support the 

conclusion reached in the opinion. A labor organization may submit a 

letter of no objection if it has no objection to the approval of the 

petition.

    (vii) Labor organizations agreeing to provide consultations. The 

Service shall list in its Operations Instructions for P classification 

those organizations which have agreed to provide advisory opinions to 

the Service and/or petitioners. The list will not be an exclusive or 

exhaustive list. The Service and petitioners may use other sources, such 

as publications, to identify appropriate labor organizations. The 

Service will also list in its Operations Instructions those occupations 

or fields of endeavor where it has been determined by the Service that 

no appropriate labor organization exists.

    (8) Approval and validity of petition--(i) Approval. The Director 

shall consider all the evidence submitted and such other evidence as he 

or she may independently require to assist in his or her adjudication. 

The Director shall notify the petitioner of the approval of the petition 

on Form I-797, Notice of Action. The approval notice shall include the 

alien beneficiary's name and classification and the petition's period of 

validity.

    (ii) Recording the validity of petitions. Procedures for recording 

the validity period of petitions are:

    (A) If a new P petition is approved before the date the petitioner 

indicates the services will begin, the approved petition and approval 

notice shall show the actual dates requested by the petitioner as the 

validity period, not to exceed the limit specified in paragraph 

(p)(8)(iii) of this section or other Service policy.

    (B) If a new P petition is approved after the date the petitioner 

indicates the services will begin, the approved petition and approval 

notice shall generally show a validity period commencing with the date 

of approval and ending with the date requested by the petitioner, not to 

exceed the limit specified in paragraph (p)(8)(iii) of this section or 

other Service policy.

    (C) If the period of services requested by the petitioner exceeds 

the limit specified in paragraph (p)(8)(iii) of this section, the 

petition shall be approved only up to the limit specified in that 

paragraph.

    (iii) Validity. The approval period of a P petition shall conform to 

the limits prescribed as follows:

    (A) P-1 petition for athletes. An approved petition for an 

individual athlete classified under section



[[Page 330]]



101(a)(15)(P)(i) of the Act shall be valid for a period up to 5 years. 

An approved petition for an athletic team classified under section 

101(a)(15)(P)(i) of the Act shall be valid for a period of time 

determined by the Director to complete the competition or event for 

which the alien team is being admitted, not to exceed 1 year.

    (B) P-1 petition for an entertainment group. An approved petition 

for an entertainment group classified under section 101(a)(15)(P)(i) of 

the Act shall be valid for a period of time determined by the Director 

to be necessary to complete the performance or event for which the group 

is being admitted, not to exceed 1 year.

    (C) P-2 and P-3 petitions for artists or entertainers. An approved 

petition for an artist or entertainer under section 101(a)(15)(P)(ii) or 

(iii) of the Act shall be valid for a period of time determined by the 

Director to be necessary to complete the event, activity, or performance 

for which the P-2 or P-3 alien is admitted, not to exceed 1 year.

    (D) Spouse and dependents. The spouse and unmarried minor children 

of a P-1, P-2, or P-3 alien beneficiary are entitled to P-4 nonimmigrant 

classification, subject to the same period of admission and limitations 

as the alien beneficiary, if they are accompanying or following to join 

the alien beneficiary in the United States. Neither the spouse nor a 

child of the alien beneficiary may accept employment unless he or she 

has been granted employment authorization.

    (E) Essential support aliens. Petitions for essential support 

personnel to P-1, P-2, and P-3 aliens shall be valid for a period of 

time determined by the Director to be necessary to complete the event, 

activity, or performance for which the P-1, P-2, or P-3 alien is 

admitted, not to exceed 1 year.

    (9) Denial of petition--(i) 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.

    (ii) Notice of denial. The petitioner shall be notified of the 

decision, the reasons for the denial, and the right to appeal the denial 

under 8 CFR part 103. There is no appeal from a decision to deny an 

extension of stay to the alien or a change of nonimmigrant status.

    (10) Revocation of approval of petition--(i) General. (A) The 

petitioner shall immediately notify the Service of any changes in the 

terms and conditions of employment of a beneficiary which may affect 

eligibility under section 101(a)(15)(P) of the Act and paragraph (p) of 

this section. An amended petition should be filed when the petitioner 

continues to employ the beneficiary. If the petitioner no longer employs 

the beneficiary, the petitioner shall send a letter explaining the 

change(s) to the Director who approved the petition.

    (B) The Director may revoke a petition at any time, even after the 

validity of the petition has expired.

    (ii) Automatic revocation. The approval of an unexpired petition is 

automatically revoked if the petitioner, or the employer in a petition 

filed by an agent, goes out of business, files a written withdrawal of 

the petition, or notifies the Service that the beneficiary is no longer 

employed by the petitioner.

    (iii) Revocation on notice--(A) Grounds for revocation. The Director 

shall send to the petitioner a notice of intent to revoke the petition 

in relevant part if he or she finds that:

    (1) The beneficiary is no longer employed by the petitioner in the 

capacity specified in the petition;

    (2) The statement of facts contained in the petition were not true 

and correct;

    (3) The petitioner violated the terms or conditions of the approved 

petition;

    (4) The petitioner violated requirements of section 101(a)(15)(P) of 

the Act or paragraph (p) of this section; or

    (5) The approval of the petition violated paragraph (p) of this 

section or involved gross error.

    (B) Notice and decision. The notice of intent to revoke shall 

contain a detailed statement of the grounds for the revocation and the 

time period allowed



[[Page 331]]



for the petitioner's rebuttal. The petitioner may submit evidence in 

rebuttal within 30 days of the date of the notice. The Director shall 

consider all relevant evidence presented in deciding whether to revoke 

the petition.

    (11) Appeal of a denial or a revocation of a petition--(i) Denial. A 

denied petition may be appealed under 8 CFR part 103.

    (ii) Revocation. A petition that has been revoked on notice may be 

appealed under 8 CFR part 103. Automatic revocations may not be 

appealed.

    (12) Admission. A beneficiary may be admitted to the United States 

for the validity period of the petition, plus a period of up to 10 days 

before the validity period begins and 10 days after the validity period 

ends. The beneficiary may not work except during the validity period of 

the petition.

    (13) Extension of visa petition validity. The petitioner shall file 

a request to extend the validity of the original petition under section 

101(a)(15)(P) of the Act on Form I-129 in order to continue or complete 

the same activity or event specified in the original petition. 

Supporting documents are not required unless requested by the Director. 

A petition extension may be filed only if the validity of the original 

petition has not expired.

    (14) Extension of stay--(i) Extension procedure. The petitioner 

shall request extension of the alien's stay to continue or complete the 

same event or activity by filing Form I-129, accompanied by a statement 

explaining the reasons for the extension. The petitioner must also 

request a petition extension. The extension dates shall be the same for 

the petition and the beneficiary's stay. The beneficiary must be 

physically present in the United States at the time the extension of 

stay is filed. Even though the requests to extend the petition and the 

alien's stay are combined on the petition, the Director shall make a 

separate determination on each. If the alien leaves the United States 

for business or personal reasons while the extension requests are 

pending, the petitioner may request the Director to cable notification 

of approval of the petition extension to the consular office abroad 

where the alien will apply for a visa.

    (ii) Extension periods--(A) P-1 individual athlete. An extension of 

stay for a P-1 individual athlete and his or her essential support 

personnel may be authorized for a period up to 5 years for a total 

period of stay not to exceed 10 years.

    (B) Other P-1, P-2, and P-3 aliens. An extension of stay may be 

authorized in increments of 1 year for P-1 athletic teams, entertainment 

groups, aliens in reciprocal exchange programs, aliens in culturally 

unique programs, and their essential support personnel to continue or 

complete the same event or activity for which they were admitted.

    (15) Effect of approval of a permanent labor certification or filing 

of a preference petition on P classification. The approval of a 

permanent labor certification or the filing of a preference petition for 

an alien shall not be a basis for denying a P petition, a request to 

extend such a petition, or the alien's admission, change of status, or 

extension of stay. The alien may legitimately come to the United States 

for a temporary period as a P nonimmigrant and depart voluntarily at the 

end of his or her authorized stay and, at the same time, lawfully seek 

to become a permanent resident of the United States. This provision does 

not include essential support personnel.

    (16) Effect of a strike--(i) If the Secretary of Labor certifies to 

the Commissioner that a strike or other labor dispute involving a work 

stoppage of workers is in progress in the occupation at the place where 

the beneficiary is to be employed, and that the employment of the 

beneficiary would adversely affect the wages and working conditions of 

U.S. citizens and lawful resident workers:

    (A) A petition to classify an alien as a nonimmigrant as defined in 

section 101(a)(15)(P) of the Act shall be denied; or

    (B) If a petition has been approved, but the alien has not yet 

entered the United States, or has entered the United States but has not 

commenced employment, the approval of the petition is automatically 

suspended, and the application for admission of the basis of the 

petition shall be denied.

    (ii) If there is a strike or other labor dispute involving a work 

stoppage of



[[Page 332]]



workers in progress, but such strike or other labor dispute is not 

certified under paragraph (p)(16)(i) of this section, the Commissioner 

shall not deny a petition or suspend an approved petition.

    (iii) If the alien has already commenced employment in the United 

States under an approved petition and is participating in a strike or 

labor dispute involving a work stoppage of workers, whether or not such 

strike or other labor dispute has been certified by the Secretary of 

Labor, the alien shall not be deemed to be failing to maintain his or 

her status solely on account of past, present, or future participation 

in a strike or other labor dispute involving a work stoppage of workers 

but is subject to the following terms and conditions:

    (A) The alien shall remain subject to all applicable provisions of 

the Immigration and Nationality Act and regulations promulgated 

thereunder in the same manner as all other P nonimmigrant aliens;

    (B) The status and authorized period of stay of such an alien is not 

modified or extended in any way by virtue of his or her participation in 

a strike or other labor dispute involving a work stoppage of workers; 

and

    (C) Although participation by a P nonimmigrant alien in a strike or 

other labor dispute involving a work stoppages of workers will not 

constitute a ground for deportation, an alien who violates his or her 

status or who remains in the United States after his or her authorized 

period of stay has expired, will be subject to deportation.

    (17) Use of approval of notice, Form I-797. The Service has notify 

the petitioner on Form I-797 whenever a visa petition or an extension of 

a visa petition is approved under the P classification. The beneficiary 

of a P petition who does not require a nonimmigrant visa may present a 

copy of the approved notice at a Port-of-Entry to facilitate entry into 

the United States. A beneficiary who is required to present a visa for 

admission, and whose visa expired before the date of his or her intended 

return, may use Form I-797 to apply for a new or revalidated visa during 

the validity period of the petition. The copy of Form I-797 shall be 

retained by the beneficiary and present during the validity of the 

petition when reentering the United States to resume the same employment 

with the same petitioner.

    (18) Return transportation requirement. In the case of an alien who 

enters the United States under section 101(a)(15)(P) of the Act and 

whose employment terminates for reasons other than voluntary 

resignation, the employer whose offer of employment formed the basis of 

suh nonimmigrant status and the petitioner are jointly and severally 

liable for the reasonable cost of return transporation of the alien 

abroad. For the purposes of this paragraph, the term ``abroad'' means 

the alien's last place of residence prior to his or her entry into the 

United States.

    (q) Cultural visitors--(1)(i) International cultural exchange 

visitors program. Paragraphs (q)(2) through (q)(11) of this section 

provide the rules governing nonimmigrant aliens who are visiting the 

United States temporarily in an international cultural exchange visitors 

program (Q-1).

    (ii) Irish peace process cultural and training program. Paragraph 

(q)(15) of this section provides the rules governing nonimmigrant aliens 

who are visiting the United States temporarily under the Irish peace 

process cultural and training program (Q-2) and their dependents (Q-3).

    (iii) Definitions. As used in this section:

    Country of nationality means the country of which the participant 

was a national at the time of the petition seeking international 

cultural exchange visitor status for him or her.

    Doing business means the regular, systematic, and continuous 

provision of goods and/or services (including lectures, seminars and 

other types of cultural programs) by a qualified employer which has 

employees, and does not include the mere presence of an agent or office 

of the qualifying employer.

    Duration of program means the time in which a qualified employer is 

conducting an approved international cultural exchange program in the 

manner as established by the employer's petition for program approval, 

provided



[[Page 333]]



that the period of time does not exceed 15 months.

    International cultural exchange visitor means an alien who has a 

residence in a foreign country which he or she has no intention of 

abandoning, and who is coming temporarily to the United States to take 

part in an international cultural exchange program approved by the 

Attorney General.

    Petitioner means the employer or its designated agent who has been 

employed by the qualified employer on a permanent basis in an executive 

or managerial capacity. The designated agent must be a United States 

citizen, an alien lawfully admitted for permanent residence, or an alien 

provided temporary residence status under sections 210 or 245A of the 

Act.

    Qualified employer means a United States or foreign firm, 

corporation, non-profit organization, or other legal entity (including 

its U.S. branches, subsidiaries, affiliates, and franchises) which 

administers an international cultural exchange program designated by the 

Attorney General in accordance with the provisions of section 

101(a)(15)(Q)(i) of the Act.

    (2) Admission of international cultural exchange visitor--(i) 

General. A nonimmigrant alien may be authorized to enter the United 

States as a participant in an international cultural exchange program 

approved by the Attorney General for the purpose of providing practical 

training, employment, and the sharing of the history, culture, and 

traditions of the country of the alien's nationality. The period of 

admission is the duration of the approved international cultural 

exchange program or fifteen (15) months, whichever is shorter. A 

nonimmigrant alien admitted under this provision is classifiable as an 

international cultural exchange visitor in Q-1 status.

    (ii) Limitation on admission. Any alien who has been admitted into 

the United States as an international cultural exchange visitor under 

section 101(a)(15)(Q)(i) of the Act shall not be readmittted in Q-1 

status unless the alien has resided and been physically present outside 

the United States for the immediate prior year. Brief trips to the 

United States for pleasure or business during the immediate prior year 

do not break the continuity of the one-year foreign residency.

    (3) International cultural exchange program--(i) General. A United 

States employer shall petition the Attorney General on Form I-129, 

Petition for a Nonimmigrant Worker, for approval of an international 

cultural exchange program which is designed to provide an opportunity 

for the American public to learn about foreign cultures. The United 

States employer must simultaneously petition on the same Form I-129 for 

the authorization for one or more individually identified nonimmigrant 

aliens to be admitted in Q-1 status. These aliens are to be admitted to 

engage in employment or training of which the essential element is the 

sharing with the American public, or a segment of the public sharing a 

common cultural interest, of the culture of the alien's country of 

nationality. The international cultural exchange visitor's eligibility 

for admission will be considered only if the international cultural 

exchange program is approved.

    (ii) Program validity. Each petition for an international cultural 

exchange program will be approved for the duration of the program, which 

may not exceed 15 months, plus 30 days to allow time for the 

participants to make travel arrangements. Subsequent to the approval of 

the initial petition, a new petition must be filed each time the 

qualified employer wishes to bring in additional cultural visitors. A 

qualified employer may replace or substitute a participant named on a 

previously approved petition for the remainder of the program in 

accordance with paragraph (q)(6) of this section. The replacement or 

substituting alien may be admitted in Q-1 status until the expiration 

date of the approved petition.

    (iii) Requirements for program approval. An international cultural 

exchange program must meet all of the following requirements:

    (A) Accessibility to the public. The international cultural exchange 

program must take place in a school, museum, business or other 

establishment where the American public, or a segment of the public 

sharing a common cultural interest, is exposed to aspects



[[Page 334]]



of a foreign culture as part of a structured program. Activities that 

take place in a private home or an isolated business setting to which 

the American public, or a segment of the public sharing a common 

cultural interest, does not have direct access do not qualify.

    (B) Cultural component. The international cultural exchange program 

must have a cultural component which is an essential and integral part 

of the international cultural exchange visitor's employment or training. 

The cultural component must be designed, on the whole, to exhibit or 

explain the attitude, customs, history, heritage, philosophy, or 

traditions of the international cultural exchange visitor's country of 

nationality. A cultural component may include structured instructional 

activities such as seminars, courses, lecture series, or language camps.

    (C) Work component. The international cultural exchange visitor's 

employment or training in the United States may not be independent of 

the cultural component of the international cultural exchange program. 

The work component must serve as the vehicle to achieve the objectives 

of the cultural component. The sharing of the culture of the 

international cultural exchange visitor's country of nationality must 

result from his or her employment or training with the qualified 

employer in the United States.

    (iv) Requirements for international cultural exchange visitors. To 

be eligible for international cultural exchange visitor status, an alien 

must be a bona fide nonimmigrant who:

    (A) Is at least 18 years of age at the time the petition is filed;

    (B) Is qualified to perform the service or labor or receive the type 

of training stated in the petition;

    (C) Has the ability to communicate effectively about the cultural 

attributes of his or her country of nationality to the American public; 

and

    (D) Has resided and been physically present outside of the United 

States for the immediate prior year, if he or she was previously 

admitted as an international cultural exchange visitor.

    (4) Supporting documentation--(i) Documentation by the employer. To 

establish eligibility as a qualified employer, the petitioner must 

submit with the completed Form I-129 appropriate evidence that the 

employer:

    (A) Maintains an established international cultural exchange program 

in accordance with the requirements set forth in paragraph (q)(3) of 

this section;

    (B) Has designated a qualified employee as a representative who will 

be responsible for administering the international cultural exchange 

program and who will serve as liaison with the Immigration and 

Naturalization Service;

    (C) Is actively doing business in the United States;

    (D) Will offer the alien(s) wages and working conditions comparable 

to those accorded local domestic workers similarly employed; and

    (E) Has the financial ability to remunerate the participant(s).

    (ii) Certification by petitioner. (A) The petitioner must give the 

date of birth, country of nationality, level of education, position 

title, and a brief job description for each international cultural 

exchange visitor included in the petition. The petitioner must verify 

and certify that the prospective participants are qualified to perform 

the service or labor, or receive the type of training, described in the 

petition.

    (B) The petitioner must report the international cultural exchange 

visitors' wages and certify that such cultural exchange visitors are 

offered wages and working conditions comparable to those accorded to 

local domestic workers similarly employed.

    (iii) Supporting documentation as prescribed in paragraphs (q)(4)(i) 

and (q)(4)(ii) of this section must accompany a petition filed on Form 

I-129 in all cases except where the employer files multiple petitions in 

the same calendar year. When petitioning to repeat a previously approved 

international cultural exchange program, a copy of the initial program 

approval notice may be submitted in lieu of the documentation required 

under paragraph (q)(4)(i) of this section. The Service will request 

additional documentation only when clarification is needed.

    (5) Filing of petitions for international cultural exchange visitor 

program--(i) General. A United States employer



[[Page 335]]



seeking to bring in international cultural exchange visitors must file a 

petition on Form I-129, Petition for a Nonimmigrant Worker, with the 

applicable fee, along with appropriate documentation. The petition and 

accompanying documentation should be filed with either the service 

center having jurisdiction over the employer's headquarters or the 

service center having jurisdiction over the area where the international 

cultural exchange visitors will perform services or labor or will 

receive training. A new petition on Form I-129, with the applicable fee, 

must be filed with the appropriate service center each time a qualified 

employer wants to bring in additional international cultural exchange 

visitors. Each person named on an approved petition will be admitted 

only for the duration of the approved program. Replacement or 

substitution may be made for any person named on an approved petition as 

provided in paragraph (q)(6) of this section, but only for the remainder 

of the approved program.

    (ii) Petition for multiple participants. The petitioner may include 

more than one participant on the petition. The petitioner shall include 

the name, date of birth, nationality, and other identifying information 

required on the petition for each participant. The petitioner must also 

indicate the United States consulate at which each participant will 

apply for a Q-1 visa. For participants who are visa-exempt under 8 CFR 

212.1(a), the petitioner must indicate the port of entry at which each 

participant will apply for admission to the United States.

    (iii) Service, labor, or training in more than one location. A 

petition which requires the international cultural exchange visitor to 

engage in employment or training (with the same employer) in more than 

one location must include an itinerary with the dates and locations of 

the services, labor, or training.

    (iv) Services, labor, or training for more than one employer. If the 

international cultural exchange visitor will perform services or labor 

for, or receive training from, more than one employer, each employer 

must file a separate petition with the service center having 

jurisdiction over the area where the alien will perform services or 

labor, or receive training. The international cultural exchange visitor 

may work part-time for multiple employers provided that each employer 

has an approved petition for the alien.

    (v) Change of employers. If an international cultural exchange 

visitor is in the United States under section 101(a)(15)(Q)(i) of the 

Act and decides to change employers, the new employer must file a 

petition. However, the total period of time the international cultural 

exchange visitor may stay in the United States remains limited to 

fifteen (15) months.

    (6) Substitution or replacements of participants in an international 

cultural exchange visitor program. The petitioner may substitute for or 

replace a person named on a previously approved petition for the 

remainder of the program without filing a new Form I-129. The 

substituting international cultural exchange visitor must meet the 

qualification requirements prescribed in paragraph (q)(3)(iv) of this 

section. To request substitution or replacement, the petitioner shall, 

by letter, notify the consular office at which the alien will apply for 

a visa or, in the case of visa-exempt aliens, the Service office at the 

port of entry where the alien will apply for admission. A copy of the 

petition's approval notice must be included with the letter. The 

petitioner must state the date of birth, country of nationality, level 

of education, and position title of each prospective international 

cultural exchange visitor and must certify that each is qualified to 

perform the service or labor or receive the type of training described 

in the approved petition. The petitioner must also indicate each 

international cultural exchange visitor's wages and certify that the 

international cultural exchange visitor is offered wages and working 

conditions comparable to those accorded to local domestic workers in 

accordance with paragraph (q)(11)(ii) of this section.

    (7) Approval of petition for international cultural exchange visitor 

program. (i) The director shall consider all the evidence submitted and 

request other evidence as he or she may deem necessary.



[[Page 336]]



    (ii) The director shall notify the petitioner and the appropriate 

United States consulate(s) of the approval of a petition. For 

participants who are visa-exempt under 8 CFR 212.1(a), the director 

shall give notice of the approval to the director of the port of entry 

at which each such participant will apply for admission to the United 

States. The notice of approval shall include the name of the 

international cultural exchange visitors, their classification, and the 

petition's period of validity.

    (iii) An approved petition for an alien classified under section 

101(a)(15)(Q)(i) of the Act is valid for the length of the approved 

program or fifteen (15) months, whichever is shorter.

    (iv) A petition shall not be approved for an alien who has an 

aggregate of fifteen (15) months in the United States under section 

101(a)(15)(Q)(i) of the Act, unless the alien has resided and been 

physically present outside the United States for the immediate prior 

year.

    (8) Denial of the petition--(i) Notice of denial. The petitioner 

shall be notified of the denial of a petition, the reasons for the 

denial, and the right to appeal the denial under part 103 of this 

chapter.

    (ii) Multiple participants. A petition for multiple international 

cultural exchange visitors may be denied in whole or in part.

    (9) Revocation of approval of petition--(i) General. The petitioner 

shall immediately notify the appropriate Service center of any changes 

in the employment of a participant which would affect eligibility under 

section 101(a)(15)(Q)(i) of the Act.

    (ii) Automatic revocation. The approval of any petition is 

automatically revoked if the qualifying employer goes out of business, 

files a written withdrawal of the petition, or terminates the approved 

international cultural exchange program prior to its expiration date. No 

further action or notice by the Service is necessary in the case of 

automatic revocation. In any other case, the Service shall follow the 

revocation procedures in paragraphs (q)(9) (iii) through (v) of this 

section.

    (iii) Revocation on notice. The director shall send the petitioner a 

notice of intent to revoke the petition in whole or in part if he or she 

finds that:

    (A) The international cultural exchange visitor is no longer 

employed by the petitioner in the capacity specified in the petition, or 

if the international cultural exchange visitor is no longer receiving 

training as specified in the petition;

    (B) The statement of facts contained in the petition was not true 

and correct;

    (C) The petitioner violated the terms and conditions of the approved 

petition; or

    (D) The Service approved the petition in error.

    (iv) Notice and decision. The notice of intent to revoke shall 

contain a detailed statement of the grounds for the revocation and the 

period of time allowed for the petitioner's rebuttal. The petitioner may 

submit evidence in rebuttal within 30 days of receipt of the notice. The 

director shall consider all relevant evidence presented in deciding 

whether to revoke the petition in whole or in part. If the petition is 

revoked in part, the remainder of the petition shall remain approved and 

a revised approval notice shall be sent to the petitioner with the 

revocation notice.

    (v) Appeal of a revocation of a petition. Revocation with notice of 

a petition in whole or in part may be appealed to the Associate 

Commissioner for Examinations under part 103 of this chapter. Automatic 

revocation may not be appealed.

    (10) Extension of stay. An alien's total period of stay in the 

United States under section 101(a)(15)(Q)(i) of the Act cannot exceed 

fifteen (15) months. The authorized stay of an international cultural 

exchange visitor may be extended within the 15-month limit if he or she 

is the beneficiary of a new petition filed in accordance with paragraph 

(q)(3) of this section. The new petition, if filed by the same employer, 

should include a copy of the previous petition's approval notice and a 

letter from the petitioner indicating any terms and conditions of the 

previous petition that have changed.

    (11) Employment provisions--(i) General. An alien classified under 

section 101(a)(15)(Q)(i) of the Act may be employed only by the 

qualified employer through which the alien attained Q-1



[[Page 337]]



nonimmigrant status. An alien in this class is not required to apply for 

an employment authorization document. Employment outside the specific 

program violates the terms of the alien's Q-1 nonimmigrant status within 

the meaning of section 237(a)(1)(C)(i) of the Act.

    (ii) Wages and working conditions. The wages and working conditions 

of an international cultural exchange visitor must be comparable to 

those accorded to domestic workers similarly employed in the 

geographical area of the alien's employment. The employer must certify 

on the petition that such conditions are met as in accordance with 

paragraph (q)(4)(iii)(B) of this section.

    (12)-(14) [Reserved]

    (15) Irish peace process cultural and training program visitors (Q-

2) and their dependents (Q-3)--(i) General. An Irish Peace Process 

Cultural and Training Program (IPPCTP) visitor is a nonimmigrant alien 

coming to the United States temporarily to gain or upgrade work skills 

through training and temporary employment and to experience living in a 

diverse and peaceful environment.

    (ii) What are the requirements for participation? (A) The principal 

alien must have been physically resident in either Northern Ireland or 

the counties of Louth, Monaghan, Cavan, Leitrim, Sligo, and Donegal in 

the Republic of Ireland, for at least 3 months immediately preceding 

application to the program and must show that he or she has no intention 

of abandoning this residence.

    (B) The principal alien must be between the ages of 18 and 35.

    (C) The principal alien must:

    (1) Be unemployed for at least 3 months, or have completed or 

currently be enrolled in a training/employment program sponsored by the 

Training and Employment Agency of Northern Ireland (T&EA) or by the 

Training and Employment Authority of Ireland (FAS), or by other such 

publicly funded programs, or have been made redundant from employment 

(i.e., lost their job), or have received a notice of redundancy 

(termination of employment); or

    (2) Be a currently employed person whose employer has nominated him/

her to participate in this program for additional training or job 

experience that is to benefit both the participant and his/her employer 

upon returning home.

    (D) The principal alien must intend to come to the United States 

temporarily, for a period not to exceed 36 months, in order to obtain 

training, employment, and the experience of coexistence and conflict 

resolution in a diverse society.

    (iii) Are there any limitations on admissions? (A) No more than 

4,000 participants, including spouses and any minor children of 

principal aliens, may be admitted annually for 3 consecutive program 

years, beginning with FY 2000 (October 1, 1999, through September 30, 

2000).

    (B) For each alien admitted under section 101(a)(15)(Q)(ii) of the 

Act, the number of aliens admitted under section 101(a)(15)(H)(ii)(b) of 

the Act is reduced by one for that fiscal year or the subsequent fiscal 

year.

    (C) This program expires on October 1, 2005.

    (iv) What are the requirements for initial admission to the United 

States? (A) Principal aliens, their spouses, and minor children of 

principal aliens must present valid passports and either a Q-2 or Q-3 

visa at the time of inspection.

    (B) Initial admission for those principal and dependent aliens in 

this program who received their visas at either the U.S. Embassy in 

Dublin or the U.S. Consulate in Belfast must take place at the Service's 

Pre-Flight Inspection facilities at either the Shannon or Dublin 

airports in the Republic of Ireland.

    (C) The principal alien will be required to present a Certification 

Letter issued by the Department of State's (DOS') Program Administrator 

documenting him or her as an individual selected for participation in 

the IPPCTP. Eligible dependents may be requested to present written 

documentation certifying their relationship to the principal.

    (v) May the principal alien and dependents make brief visits outside 

the United States? (A) The principal alien, spouse, and any minor 

children of the principal alien may make brief departures, for periods 

not to exceed 3 consecutive



[[Page 338]]



months, and may be readmitted without having to obtain a new visa. 

However, such periods of time spent outside the United States will not 

be added to the end of stay, which is not to exceed a total of 3 years 

from the initial date of entry of the principal alien.

    (B) Those participants or dependents who remain outside the United 

States in excess of 3 consecutive months will not be readmitted by the 

Service on their initial Q-2 or Q-3 visa. Instead, any such individual 

and eligible dependents wishing to rejoin the program will be required 

to reapply to the program and be in receipt of a new Q-2 or Q-3 visa and 

a Certification Letter issued by the DOS' Program Administrator, prior 

to any subsequent admission to the United States.

    (vi) How long may a Q-2 or Q-3 visa holder remain in the United 

States under this program? (A) The principal alien and any accompanying, 

or following-to-join, spouse or minor children of the principal alien 

are admitted for the duration of the principal alien's planned cultural 

and training program or 36 months, whichever is shorter.

    (B) Those participants and eligible dependents admitted for specific 

periods less than 36 months may extend their period of stay through the 

Service so that their total period of stay is 36 months, provided the 

extension of stay is related to employment or training certified by the 

DOS' Program Administrator.

    (vii) How is employment authorized under this program? (A) Following 

endorsement of his/her Form I-94, Arrival-Departure Record, by a Service 

officer, any principal alien admitted under section 101(a)(15)(Q)(ii) of 

the Act is permitted to work for an employer or employers listed on the 

Certification Letter issued by the DOS' Program Administrator.

    (B) The accompanying spouse and minor children of the principal 

alien may not accept employment, unless the spouse has also been 

designated as a principal alien (Q-2) in this program and has been 

issued a Certification Letter by the DOS' Program Administrator.

    (viii) May the principal alien change employers? Principal aliens 

wishing to change employers must request such a change through the DOS' 

Program Administrator to the Service. Following review and consideration 

of the request by the Service, the Service will inform the participant 

of the decision. The Service will grant such approval of employers only 

if the new employer has been approved by DOS in accordance with its 

regulations and such approval is communicated to the Service through the 

DOS' Program Administrator. If approved, the participant's Form I-94 

will be annotated to show the new employer. If denied, there is no 

appeal under this section.

    (ix) May the principal alien hold other jobs during his/her U.S. 

visit? No; any principal alien classified as an Irish peace process 

cultural and training program visitor may only engage in employment that 

has been certified by the DOS' Program Administrator and approved by the 

DOS or the Service as endorsed on the Form I-94. An alien who engages in 

unauthorized employment violates the terms of the Q-2 visa and will be 

considered to have violated section 237(a)(1)(C)(i) of the Act.

    (x) What happens if a principal alien loses his/her job? A principal 

alien, who loses his or her job, will have 30 days from his/her last 

date of employment to locate appropriate employment or training, to have 

the job offer certified by the DOS' Program Administrator in accordance 

with the DOS' regulations and to have it approved by the Service. If 

appropriate employment or training cannot be found within this 30-day-

period, the principal alien and any accompany family members will be 

required to depart the United States.

    (r) Religious workers--(1) General. Under section 101(a)(15)(R) of 

the Act, an alien who, for at least the two (2) years immediately 

preceding the time of application for admission, has been a member of a 

religious denomination having a bona fide nonprofit religious 

organization in the United States, may be admitted temporarily to the 

United States to carry on the activities of a religious worker for a 

period not to exceed five (5) years. The alien must be coming to the 

United States for one of the following purposes: solely to carry on the 

vocation of a minister of the religious denomination; to work for the 

religious organization at the request of



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the organization in a professional capacity; or to work for the 

organization, or a bona fide organization which is affiliated with the 

religious denomination, at the request of the organization in a 

religious vocation or occupation.

    (2) Definitions. As used in this section:

    Bona fide nonprofit religious organization in the United States 

means an organization exempt from taxation as described in section 

501(c)(3) of the Internal Revenue Code of 1986 as it relates to 

religious organizations, or one that has never sought such exemption but 

establishes to the satisfaction of the Service that it would be eligible 

therefor if it had applied for tax exempt status.

    Bona fide organization which is affiliated with the religious 

denomination means an organization which is both closely associated with 

the religious denomination and exempt from taxation as described in 

section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to 

religious organizations.

    Minister means an individual duly authorized by a recognized 

religious denomination to conduct religious worship and to perform other 

duties usually performed by authorized members of the clergy of that 

religion. In all cases, there must be a reasonable connection between 

the activities performed and the religious calling of the minister. The 

term does not include a lay preacher not authorized to perform such 

duties.

    Professional capacity means an activity in a religious vocation or 

occupation for which the minimum of a United States baccalaureate degree 

or a foreign equivalent degree is required.

    Religious denomination means a religious group or community of 

believers having some form of ecclesiastical government, a creed or 

statement of faith, some form of worship, a formal or informal code of 

doctrine and discipline, religious services and ceremonies, established 

places of religious worship, and religious congregations, or comparable 

indicia of a bona fide religious denomination. For the purposes of this 

definition, an interdenominational religious organization which is 

exempt from taxation pursuant to section 501(c)(3) of the Internal 

Revenue Code of 1986 will be treated as a religious denomination.

    Religious occupation means an activity which relates to a 

traditional religious function. Examples of persons in religious 

occupations include, but are not limited to, liturgical workers, 

religious instructors, religious conselors, cantors, catechists, workers 

in religious hospitals or religious health care facilities, 

missionaries, religious translators, or religious broadcasters. This 

group does not include janitors, maintenance workers, clerks, fund 

raisers, or persons involved solely in the solicitation of donations.

    Religious vocation means a calling to religious life evidenced by 

the demonstration of commitment practiced in the religious denomination, 

such as the taking of vows. Examples of persons with a religious 

vocation include, but are not limited to, nuns, monks, and religious 

brothers and sisters.

    (3) Initial evidence. An alien seeking classification as a 

nonimmigrant religious worker shall present to a United States consular 

officer, or, if visa exempt, to an immigration officer at a United 

States port of entry, documentation which establishes to the 

satisfaction of the consular or immigration officer that the alien will 

be providing services to a bona fide nonprofit religious organization in 

the United States or to an affiliated religious organization as defined 

in paragraph (r)(2) of this section, and that the alien meets the 

criteria to perform such services. If the alien is in the United States 

in another valid nonimmigrant classification and desires to change 

nonimmigrant status to classification as a nonimmigrant religious 

worker, this documentation should be presented with an application for 

change of status (Form I-129, Petition for a Nonimmigrant Worker). The 

documentation shall consist of:

    (i) Evidence that the organization qualifies as a non-profit 

organization, in the form of either:

    (A) Documentation showing that it is exempt from taxation in 

accordance with section 501(c)(3) of the Internal Revenue Code of 1986 

as it relates to religious organizations (in appropriate cases, evidence 

of the organization's assets and methods of operation and



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the organization's papers of incorporation under applicable State law 

may be requested); or

    (B) Such documentation as is required by the Internal Revenue 

Service to establish eligibility for exemption under section 501(c)(3) 

of the Internal Revenue Code of 1986 as it relates to religious 

organizations; and

    (ii) A letter from an authorized official of the specific 

organizational unit of the religious organization which will be 

employing the alien or engaging the alien's services in the United 

States. If the alien is to be employed, this letter should come from the 

organizational unit that will maintain the alien's Form I-9, Employment 

Eligibility Verification, that is, the organizational unit that is 

either paying the alien a salary or otherwise remunerating the alien in 

exchange for services rendered. This letter must establish:

    (A) That, if the alien's religious membership was maintained, in 

whole or in part, outside the United States, the foreign and United 

States religious organizations belong to the same religious 

denomination;

    (B) That, immediately prior to the application for the nonimmigrant 

visa or application for admission to the United States, the alien has 

the required two (2) years of membership in the religious denomination;

    (C) As appropriate:

    (1) That, if the alien is a minister, he or she is authorized to 

conduct religious worship for that denomination and to perform other 

duties usually performed by authorized members of the clergy of that 

denomination, including a detailed description of those duties;

    (2) That, if the alien is a religious professional, he or she has at 

least a United States baccalaureate degree or its foreign equivalent and 

that at least such a degree is required for entry into the religious 

profession; or

    (3) That, if the alien is to work in another religious vocation or 

occupation, he or she is qualified in the religious vocation or 

occupation. Evidence of such qualifications may include, but need not be 

limited to, evidence establishing that the alien is a monk, nun, or 

religious brother or that the type of work to be done relates to a 

traditional religious function;

    (D) The arrangements made, if any, for remuneration for services to 

be rendered by the alien, including the amount and source of any salary, 

a description of any other types of remuneration to be received 

(including housing, food, clothing, and any other benefits to which a 

monetary value may be affixed), and a statement whether such 

remuneration shall be in exchange for services rendered;

    (E) The name and location of the specific organizational unit of the 

religious organization for which the alien will be providing services 

within the United States; and

    (F) If the alien is to work in a non-ministerial and nonprofessional 

capacity for a bona fide organization which is affiliated with a 

religious denomination, the existence of the affiliation; and

    (iii) Any appropriate additional evidence which the examining 

officer may request relating to the religious organization, the alien, 

or the affiliated organization. Such additional documentation may 

include, but need not be limited to, diplomas, degrees, financial 

statements, or certificates of ordination. No prior petition, labor 

certification, or prior approval shall be required.

    (4) Initial admission. The initial admission of a religious worker, 

spouse, and unmarried children under twenty-one years of age shall not 

exceed three (3) years. A Form I-94, Arrival-Departure Record, shall be 

provided to every alien who qualifies for admission as an R 

nonimmigrant. The Form I-94 for the religious worker shall be endorsed 

with the name and location of the specific organizational unit of the 

religious organization for which the alien will be providing services 

within the United States. The admission symbol for the religious worker 

shall be R-1; the admission symbol for the worker's spouse and childen 

shall be R-2.

    (5) Extension of stay. The organizational unit of the religious 

organization employing the nonimmigrant religious worker admitted under 

this section shall use Form I-129, Petition for a Nonimmigrant Worker, 

along with the appropriate fee, to extend the stay



[[Page 341]]



of the worker. The petition shall be filed at the Service Center having 

jurisdiction over the place of employment. An extension may be 

authorized for a period of up to two (2) years. The worker's total 

period of stay may not exceed five (5) years. The petition must be 

accompanied by a letter from an authorized official of the 

organizational unit confirming the worker's continuing eligibility for 

classification as an R-1 nonimmigrant.

    (6) Change of employers. A different or additional organizational 

unit of the religious denomination seeking to employ or engage the 

services of a religious worker admitted under this section shall file 

Form I-129 with the appropriate fee. The petition shall be filed with 

the Service Center having jurisdiction over the place of employment. The 

petition must be accompanied by evidence establishing that the alien 

will continue to qualify as a religious worker under this section. Any 

unauthorized change to a new religious organizational unit will 

constitute a failure to maintain status within the meaning of section 

241(a)(1)(C)(i) of the Act.

    (7) Limitation on stay. An alien who has spent five (5) years in the 

United States under section 101(a)(15)(R) of the Act may not be 

readmitted to the United States under the R visa classification unless 

the alien has resided and been physically present outside the United 

States for the immediate prior year, except for brief visits for 

business or pleasure. Such visits do not end the period during which an 

alien is considered to have resided and been physically present outside 

the United States, but time spent during such visits does not count 

toward the requirement of this paragraph.

    (8) Spouse and children. The religious worker's spouse and unmarried 

children under twenty-one years of age are entitled to the same 

nonimmigrant classification and length of stay as the religious worker, 

if the religious worker will be employed and residing primarily in the 

United States, and if the spouse and unmarried minor children are 

accompanying or following to join the religious worker in the United 

States. Neither the spouse nor any child may accept employment while in 

the United States in R-2 nonimmigrant status.

    (s) NATO nonimmigrant aliens--(1) General--(i) Background. The North 

Atlantic Treaty Organization (NATO) is constituted of nations signatory 

to the North Atlantic Treaty. The Agreement Between the Parties to the 

North Atlantic Treaty Regarding the Status of Their Forces, signed in 

London, June 1951 (NATO Status of Forces Agreement), is the agreement 

between those nations that defines the terms of the status of their 

armed forces while serving abroad.

    (A) Nonimmigrant aliens classified as NATO-1 through NATO-5 are 

officials, employees, or persons associated with NATO, and members of 

their immediate families, who may enter the United States in accordance 

with the NATO Status of Forces Agreement or the Protocol on the Status 

of International Military Headquarters set up pursuant to the North 

Atlantic Treaty (Paris Protocol). The following specific classifications 

shall be assigned to such NATO nonimmigrants:

    (1) NATO-1--A principal permanent representative of a Member State 

to NATO (including any of its subsidiary bodies) resident in the United 

States and resident members of permanent representative's official 

staff; Secretary General, Deputy Secretary General, Assistant 

Secretaries General and Executive Secretary of NATO; other permanent 

NATO officials of similar rank; and the members of the immediate family 

of such persons.

    (2) NATO-2--Other representatives of Member States to NATO 

(including any of its subsidiary bodies) including representatives, 

advisers and technical experts of delegations, and the members of the 

immediate family of such persons; dependents of members of a force 

entering in accordance with the provisions of the NATO Status of Forces 

Agreement or in accordance with the provisions of the Paris Protocol; 

members of such a force, if issued visas.

    (3) NATO-3--Official clerical staff accompanying a representative of 

a Member State to NATO (including any of its subsidiary bodies) and the 

members of the immediate family of such persons.

    (4) NATO-4--Officials of NATO (other than those classifiable under 

NATO-1)



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and the members of their immediate family

    (5) NATO-5--Experts, other than NATO officials classifiable under 

NATO-4, employed on missions on behalf of NATO and their dependents.

    (B) Nonimmigrant aliens classified as NATO-6 are civilians, and 

members of their immediate families, who may enter the United States as 

employees of a force entering in accordance with the NATO Status of 

Forces Agreement, or as members of a civilian component attached to or 

employed by NATO Headquarters, Supreme Allied Commander, Atlantic 

(SACLANT), set up pursuant to the Paris Protocol.

    (C) Nonimmigrant aliens classified as NATO-7 are attendants, 

servants, or personal employees of nonimmigrant aliens classified as 

NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6, who are authorized 

to work only for the NATO-1 through NATO-6 nonimmigrant from whom they 

derive status, and members of their immediate families.

    (ii) Admission and extension of stay. NATO-1, NATO-2, NATO-3, NATO-

4, and NATO-5 aliens are normally exempt from inspection under 8 CFR 

235.1(c). NATO-6 aliens may be authorized admission for duration of 

status. NATO-7 aliens may be admitted for not more than 3 years and may 

be granted extensions of temporary stay in increments of not more than 2 

years. In addition, an application for extension of temporary stay for a 

NATO-7 alien must be accompanied by a statement signed by the employing 

official stating that he or she intends to continue to employ the NATO-7 

applicant, describing the work the applicant will perform, and 

acknowledging that this is, and will be, the sole employment of the 

NATO-7 applicant.

    (2) Definition of a dependent of a NATO-1, NATO-2, NATO-3, NATO-4, 

NATO-5, or NATO-6. For purposes of employment in the United States, the 

term dependent of a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 

principal alien, as used in this section, means any of the following 

immediate members of the family habitually residing in the same 

household as the NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 

principal alien assigned to official duty in the United States:

    (i) Spouse;

    (ii) Unmarried children under the age of 21;

    (iii) Unmarried sons or daughters under the age of 23 who are in 

full-time attendance as students at post-secondary educational 

institutions;

    (iv) Unmarried sons or daughters under the age of 25 who are in 

full-time attendance as students at post-secondary educational 

institutions if a formal bilateral employment agreement permitting their 

employment in the United States was signed prior to November 21, 1988, 

and such bilateral employment agreements do not specify under the age of 

23 as the maximum age for employment of such sons and daughters;

    (v) Unmarried sons or daughters who are physically or mentally 

disabled to the extent that they cannot adequately care for themselves 

or cannot establish, maintain, or re-establish their own households. The 

Service may require medical certification(s) as it deems necessary to 

document such mental or physical disability.

    (3) Dependent employment requirements based on formal bilateral 

employment agreements and informal de facto reciprocal arrangements--(i) 

Formal bilateral employment agreements. The Department of State's Family 

Liaison office (FLO) shall maintain all listing of NATO Member States 

which have entered into formal bilateral employment agreements that 

include NATO personnel. A dependent of a NATO-1, NATO-2, NATO-3, NATO-4, 

NATO-5, or NATO-6 principal alien assigned to official duty in the 

United States may accept, or continue in, unrestricted employment based 

on such formal bilateral agreement upon favorable recommendation by 

SACLANT, pursuant to paragraph (s)(5) of this section, and issuance of 

employment authorization documentation by the Service in accordance with 

8 CFR part 274a. The application procedures are set forth in paragraph 

(s)(5) of this section.

    (ii) Informal de facto reciprocal arrangements. For purposes of this 

section, an informal de facto reciprocal arrangement exists when the 

Office of



[[Page 343]]



the Secretary of Defense, Foreign Military Rights Affairs (OSD/FMRA), 

certifies, with State Department concurrence, that a NATO Member State 

allows appropriate employment in the local economy for dependents of 

members of the force and members of the civilian component of the United 

States assigned to duty in the NATO Member State. OSD/FMRA and State's 

FLO shall maintain a listing of countries with which such reciprocity 

exists. Dependents of a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-

6 principal alien assigned to official duty in the United States may be 

authorized to accept, or continue in, employment based upon informal de 

facto arrangements upon favorable recommendation by SACLANT, pursuant to 

paragraph (s)(5) of this section, and issuance of employment 

authorization by the Service in accordance with 8 CFR part 274a. 

Additionally, the application procedures set forth in paragraph (s)(5) 

of this section must be complied with, and the following conditions must 

be met:

    (A) Both the principal alien and the dependent requesting employment 

are maintaining NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 

status, as appropriate;

    (B) The principal alien's total length of assignment in the United 

States is expected to last more than 6 months;

    (C) Employment of a similar nature for dependents of members of the 

force and members of the civilian component of the United States 

assigned to official duty in the NATO Member State employing the 

principal alien is not prohibited by the NATO Member State;

    (D) The proposed employment is not in an occupation listed in the 

Department of Labor's Schedule B (20 CFR part 656), or otherwise 

determined by the Department of Labor to be one for which there is an 

oversupply of qualified United States workers in the area of proposed 

employment. This Schedule B restriction does not apply to a dependent 

son or daughter who is a full-time student if the employment is part-

time, consisting of not more than 20 hours per week, of if it is 

temporary employment of not more than 12 weeks during school holiday 

periods; and

    (E) The proposed employment is not contrary to the interest of the 

United States. Employment contrary to the interest of the United States 

includes, but is not limited to, the employment of NATO-1, NATO-2, NATO-

3, NATO-4, NATO-5, or NATO-6 dependents who have criminal records; who 

have violated United States immigration laws or regulations, or visa 

laws or regulations; who have worked illegally in the United States; or 

who cannot establish that they have paid taxes and social security on 

income from current or previous United States employment.

    (iii) State's FLO shall inform the Service, by contacting 

Headquarters, Adjudications, Attention: Chief, Business and Trade 

Services Branch, 425 I Street, NW., Washington, DC 20536, of any 

additions or changes to the formal bilateral employment agreements and 

informal de facto reciprocal arrangements.

    (4) Applicability of a formal bilateral agreement or an informal de 

facto arrangement for NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 

dependents. The applicability of a formal bilateral agreement shall be 

based on the NATO Member State which employs the principal alien and not 

on the nationality of the principal alien or dependent. The 

applicability of an informal de facto arrangement shall be based on the 

NATO Member State which employs the principal alien, and the principal 

alien also must be a national of the NATO Member State which employs him 

or her in the United States. Dependents of SACLANT employees receive 

bilateral agreement or de facto arrangement employment privileges as 

appropriate based upon the nationality of the SACLANT employee 

(principal alien).

    (5) Application procedures. The following procedures are required 

for dependent employment applications under bilateral agreements and de 

facto arrangements:

    (i) The dependent of a NATO alien shall submit a complete 

application for employment authorization, including Form I-765 and Form 

I-566, completed in accordance with the instructions on, or attached to, 

those forms. The complete application shall be submitted to



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SACLANT for certification of the Form I-566 and forwarding to the 

Service.

    (ii) In a case where a bilateral dependent employment agreement 

containing a numerical limitation on the number of dependents authorized 

to work is applicable, the certifying officer of SACLANT shall not 

forward the application for employment authorization to the Service 

unless, following consultation with State's Office of Protocol, the 

certifying officer has confirmed that this numerical limitation has not 

been reached. The countries with such limitations are indicated on the 

bilateral/de facto dependent employment listing issued by State's FLO.

    (iii) SACLANT shall keep copies of each application and certified 

Form I-566 for 3 years from the date of the certification.

    (iv) A dependent applying under the terms of a de facto arrangement 

must also attach a statement from the prospective employer which 

includes the dependent's name, a description of the position offered, 

the duties to be performed, the hours to be worked, the salary offered, 

and verification that the dependent possesses the qualifications for the 

position.

    (v) A dependent applying under paragraph (s)(2) (iii) or (iv) of 

this section must also submit a certified statement from the post-

secondary educational institution confirming that he or she is pursuing 

studies on a full-time basis.

    (vi) A dependent applying under paragraph (s)(2)(v) of this section 

must also submit medical certification regarding his or her condition. 

The certification should identify both the dependent and the certifying 

physician, give the physician's phone number, identify the condition, 

describe the symptoms, provide a clear prognosis, and certify that the 

dependent is unable to maintain a home of his or her own.

    (vii) The Service may require additional supporting documentation, 

but only after consultation with SACLANT.

    (6) Period of time for which employment may be authorized. If 

approved, an application to accept or continue employment under this 

paragraph shall be granted in increments of not more than 3 years.

    (7) Income tax and Social Security liability. Dependents who are 

granted employment authorization under this paragraph are responsible 

for payment of all Federal, state, and local income taxes, employment 

and related taxes and Social Security contributions on any remuneration 

received.

    (8) No appeal. There shall be no appeal from a denial of permission 

to accept or continue employment under this paragraph.

    (9) Unauthorized employment. An alien classified as a NATO-1, NATO-

2, NATO-3, NATO-4, NATO-5, NATO-6, or NATO-7 who is not a NATO principal 

alien and who engages in employment outside the scope of, or in a manner 

contrary to, this paragraph may be considered in violation of status 

pursuant to section 237(a)(1)(C)(i) of the Act. A NATO principal alien 

in those classifications who engages in employment outside the scope of 

his or her official position may be considered in violation of status 

pursuant to section 237(a)(1)(C)(i) of the Act.

    (t) Alien witnesses and informants--(1) Alien witness or informant 

in criminal matter. An alien may be classified as an S-5 alien witness 

or informant under the provisions of section 101(a)(15)(S)(i) of the Act 

if, in the exercise of discretion pursuant to an application on Form I-

854 by an interested federal or state law enforcement authority 

(``LEA''), it is determined by the Commissioner that the alien:

    (i) Possesses critical reliable information concerning a criminal 

organization or enterprise;

    (ii) Is willing to supply, or has supplied, such information to 

federal or state LEA; and

    (iii) Is essential to the success of an authorized criminal 

investigation or the successful prosecution of an individual involved in 

the criminal organization or enterprise.

    (2) Alien witness or informant in counterterrorism matter. An alien 

may be classified as an S-6 alien counterterrorism witness or informant 

under the provisions of section 101(a)(15)(S)(ii) of the Act if it is 

determined by the Secretary of State and the Commissioner acting 

jointly, in the exercise of their discretion, pursuant



[[Page 345]]



to an application on Form I-854 by an interested federal LEA, that the 

alien:

    (i) Possesses critical reliable information concerning a terrorist 

organization, enterprise, or operation;

    (ii) Is willing to supply or has supplied such information to a 

federal LEA;

    (iii) Is in danger or has been placed in danger as a result of 

providing such information; and

    (iv) Is eligible to receive a reward under section 36(a) of the 

State Department Basic Authorities Act of 1956, 22 U.S.C. 2708(a).

    (3) Spouse, married and unmarried sons and daughters, and parents of 

alien witness or informant in criminal or counterterrorism matter. An 

alien spouse, married or unmarried son or daughter, or parent of an 

alien witness or informant may be granted derivative S classification 

(S-7) when accompanying, or following to join, the alien witness or 

informant if, in the exercise of discretion by, with respect to 

paragraph (t)(1) of this section, the Commissioner, or, with respect to 

paragraph (t)(2) of this section, the Secretary of State and the 

Commissioner acting jointly, consider it to be appropriate. A 

nonimmigrant in such derivative S-7 classification shall be subject to 

the same period of admission, limitations, and restrictions as the alien 

witness or informant and must be identified by the requesting LEA on the 

application Form I-854 in order to qualify for S nonimmigrant 

classification. Family members not identified on the Form I-854 

application will not be eligible for S nonimmigrant classification.

    (4) Request for S nonimmigrant classification. An application on 

Form I-854, requesting S nonimmigrant classification for a witness or 

informant, may only be filed by a federal or state LEA (which shall 

include a federal or state court or a United States Attorney's Office) 

directly in need of the information to be provided by the alien witness 

or informant. The completed application is filed with the Assistant 

Attorney General, Criminal Division, Department of Justice, who will 

forward only properly certified applications that fall within the 

numerical limitation to the Commissioner, Immigration and Naturalization 

Service, for approval, pursuant to the following process.

    (i) Filing request. For an alien to qualify for status as an S 

nonimmigrant, S nonimmigrant classification must be requested by an LEA. 

The LEA shall recommend an alien for S nonimmigrant classification by: 

Completing Form I-854, with all necessary endorsements and attachments, 

in accordance with the instructions on, or attached to, that form, and 

agreeing, as a condition of status, that no promises may be, have been, 

or will be made by the LEA that the alien will or may remain in the 

United States in S or any other nonimmigrant classification or parole, 

adjust status to that of lawful permanent resident, or otherwise attempt 

to remain beyond a 3-year period other than by the means authorized by 

section 101(a)(15)(S) of the Act. The alien, including any derivative 

beneficiary who is 18 years or older, shall sign a statement, that is 

part of or affixed to Form I-854, acknowledging awareness that he or she 

is restricted by the terms of S nonimmigrant classification to the 

specific terms of section 101(a)(15)(S) of the Act as the exclusive 

means by which he or she may remain permanently in the United States.

    (A) District director referral. Any district director or Service 

officer who receives a request by an alien, an eligible LEA, or other 

entity seeking S nonimmigrant classification shall advise the requestor 

of the process and the requirements for applying for S nonimmigrant 

classification. Eligible LEAs seeking S nonimmigrant classification 

shall be referred to the Commissioner.

    (B) United States Attorney certification. The United States Attorney 

with jurisdiction over a prosecution or investigation that forms the 

basis for a request for S nonimmigrant classification must certify and 

endorse the application on Form I-854 and agree that no promises may be, 

have been, or will be made that the alien will or may remain in the 

United States in S or any other nonimmigrant classification or parole, 

adjust status to lawful permanent resident, or attempt to remain beyond 

the authorized period of admission.



[[Page 346]]



    (C) LEA certification. LEA certifications on Form I-854 must be made 

at the seat-of-government level, if federal, or the highest level of the 

state LEA involved in the matter. With respect to the alien for whom S 

nonimmigrant classification is sought, the LEA shall provide evidence in 

the form of attachments establishing the nature of the alien's 

cooperation with the government, the need for the alien's presence in 

the United States, all conduct or conditions which may constitute a 

ground or grounds of excludability, and all factors and considerations 

warranting a favorable exercise of discretionary waiver authority by the 

Attorney General on the alien's behalf. The attachments submitted with a 

request for S nonimmigrant classification may be in the form of 

affidavits, statements, memoranda, or similar documentation. The LEA 

shall review Form I-854 for accuracy and ensure the alien understands 

the certifications made on Form I-854.

    (D) Filing procedure. Upon completion of Form I-854, the LEA shall 

forward the form and all required attachments to the Assistant Attorney 

General, Criminal Division, United States Department of Justice, at the 

address listed on the form.

    (ii) Assistant Attorney General, Criminal Division review--(A) 

Review of information. Upon receipt of a complete application for S 

nonimmigrant classification on Form I-854, with all required 

attachments, the Assistant Attorney General, Criminal Division, shall 

ensure that all information relating to the basis of the application, 

the need for the witness or informant, and grounds of excludability 

under section 212 of the Act has been provided to the Service on Form I-

854, and shall consider the negative and favorable factors warranting an 

exercise of discretion on the alien's behalf. No application may be 

acted on by the Assistant Attorney General unless the eligible LEA 

making the request has proceeded in accordance with the instructions on, 

or attached to, Form I-854 and agreed to all provisions therein.

    (B) Advisory panel. Where necessary according to procedures 

established by the Assistant Attorney General, Criminal Division, an 

advisory panel, composed of representatives of the Service, Marshals 

Service, Federal Bureau of Investigation, Drug Enforcement 

Administration, Criminal Division, and the Department of State, and 

those representatives of other LEAs, including state and federal courts 

designated by the Attorney General, will review the completed 

application and submit a recommendation to the Assistant Attorney 

General, Criminal Division, regarding requests for S nonimmigrant 

classification. The function of this advisory panel is to prioritize 

cases in light of the numerical limitation in order to determine which 

cases will be forwarded to the Commissioner.

    (C) Assistant Attorney General certification. The certification of 

the Assistant Attorney General, Criminal Division, to the Commissioner 

recommending approval of the application for S nonimmigrant 

classification shall contain the following:

    (1) All information and attachments that may constitute, or relate 

to, a ground or grounds of excludability under section 212(a) of the 

Act;

    (2) Each section of law under which the alien appears to be 

inadmissible;

    (3) The reasons that waiver(s) of inadmissibility are considered to 

be justifiable and in the national interest;

    (4) A detailed statement that the alien is eligible for S 

nonimmigrant classification, explaining the nature of the alien's 

cooperation with the government and the government's need for the 

alien's presence in the United States;

    (5) The intended date of arrival;

    (6) The length of the proposed stay in the United States;

    (7) The purpose of the proposed stay; and

    (8) A statement that the application falls within the statutorily 

specified numerical limitation.

    (D) Submission of certified requests for S nonimmigrant 

classification to Service. (1) The Assistant Attorney General, Criminal 

Division, shall forward to the Commissioner only qualified applications 

for S-5 nonimmigrant classification that have been certified in 

accordance with the provisions of this paragraph and that fall within 

the annual numerical limitation.



[[Page 347]]



    (2) The Assistant Attorney General Criminal Division, shall forward 

to the Commissioner applications for S-6 nonimmigrant classification 

that have been certified in accordance with the provisions of this 

paragraph, certified by the Secretary of State or eligibility for S-6 

classification, and that fall within the annual numerical limitation.

    (5) Decision on application. (i) The Attorney General's authority to 

waive grounds of excludability pursuant to section 212 of the Act is 

delegated to the Commissioner and shall be exercised with regard to S 

nonimmigrant classification only upon the certification of the Assistant 

Attorney General, Criminal Division. Such certification is nonreviewable 

as to the matter's significance, importance, and/or worthwhileness to 

law enforcement. The Commissioner shall make the final decision to 

approve or deny a request for S nonimmigrant classification certified by 

the Assistant Attorney General, Criminal Division.

    (ii) Decision to approve application. Upon approval of the 

application on Form I-854, the Commissioner shall notify the Assistant 

Attorney General, Criminal Division, the Secretary of State, and Service 

officers as appropriate. Admission shall be authorized for a period not 

to exceed 3 years.

    (iii) Decision to deny application. In the event the Commissioner 

decides to deny an application for S nonimmigrant classification on Form 

I-854, the Assistant Attorney General, Criminal Division, and the 

relevant LEA shall be notified in writing to that effect. The Assistant 

Attorney General, Criminal Division, shall concur in or object to that 

decision. Unless the Assistant Attorney General, Criminal Division, 

objects within 7 days, he or she shall be deemed to have concurred in 

the decision. In the event of an objection by the Assistant Attorney 

General, Criminal Division, the matter will be expeditiously referred to 

the Deputy Attorney General for a final resolution. In no circumstances 

shall the alien or the relevant LEA have a right of appeal from any 

decision to deny.

    (6) Submission of requests for S nonimmigrant visa classification to 

Secretary of State. No request for S nonimmigrant visa classification 

may be presented to the Secretary of State unless it is approved and 

forwarded by the Commissioner.

    (7) Conditions of status. An alien witness or informant is 

responsible for certifying and fulfilling the terms and conditions 

specified on Form I-854 as a condition of status. The LEA that assumes 

responsibility for the S nonimmigrant must:

    (i) Ensure that the alien:

    (A) Reports quarterly to the LEA on his or her whereabouts and 

activities, and as otherwise specified on Form I-854 or pursuant to the 

terms of his or her S nonimmigrant classification;

    (B) Notifies the LEA of any change of home or work address and phone 

numbers or any travel plans;

    (C) Abides by the law and all specified terms, limitations, or 

restrictions on the visa, Form I-854, or any waivers pursuant to 

classification; and

    (D) Cooperates with the responsible LEA in accordance with the terms 

of his or her classification and any restrictions on Form I-854;

    (ii) Provide the Assistant Attorney General, Criminal Division, with 

the name of the control agent on an ongoing basis and provide a 

quarterly report indicating the whereabouts, activities, and any other 

control information required on Form I-854 or by the Assistant Attorney 

General;

    (iii) Report immediately to the Service any failure on the alien's 

part to:

    (A) Report quarterly;

    (B) Cooperate with the LEA;

    (C) Comply with the terms and conditions of the specific S 

nonimmigrant classification; or

    (D) Refrain from criminal activity that may render the alien 

deportable, which information shall also be forwarded to the Assistant 

Attorney General, Criminal Division; and

    (iv) Report annually to the Assistant Attorney General, Criminal 

Division, on whether the alien's S nonimmigrant classification and 

cooperation resulted in either:

    (A) A successful criminal prosecution or investigation or the 

failure to produce a successful resolution of the matter; or



[[Page 348]]



    (B) The prevention or frustration of terrorist acts or the failure 

to prevent such acts.

    (v) Assist the alien in his or her application to the Service for 

employment authorization.

    (8) Annual report. The Assistant Attorney General, Criminal 

Division, in consultation with the Commissioner, shall compile the 

statutorily mandated annual report to the Committee on the Judiciary of 

the House of Representatives and the Committee on the Judiciary of the 

Senate.

    (9) Admission. The responsible LEA will coordinate the admission of 

an alien in S nonimmigrant classification with the Commissioner as to 

the date, time, place, and manner of the alien's arrival.

    (10) Employment. An alien classified under section 101(a)(15)(S) of 

the Act may apply for employment authorization by filing Form I-765, 

Application for Employment Authorization, with fee, in accordance with 

the instructions on, or attached to, that form pursuant to Sec. 

274a.12(c)(21) of this chapter.

    (11) Failure to maintain status. An alien classified under section 

101(a)(15)(S) of the Act shall abide by all the terms and conditions of 

his or her S nonimmigrant classification imposed by the Attorney 

General. If the terms and conditions of S nonimmigrant classification 

will not be or have not been met, or have been violated, the alien is 

convicted of any criminal offense punishable by a term of imprisonment 

of 1 year or more, is otherwise rendered deportable, or it is otherwise 

appropriate or in the public interest to do so, the Commissioner shall 

proceed to deport an alien pursuant to the terms of 8 CFR 242.26. In the 

event the Commissioner decides to deport an alien witness or informant 

in S nonimmigrant classification, the Assistant Attorney General, 

Criminal Division, and the relevant LEA shall be notified in writing to 

that effect. The Assistant Attorney General, Criminal Division, shall 

concur in or object to that decision. Unless the Assistant Attorney 

General, Criminal Division, objects within 7 days, he or she shall be 

deemed to have concurred in the decision. In the event of an objection 

by the Assistant Attorney General, Criminal Division, the matter will be 

expeditiously referred to the Deputy Attorney General for a final 

resolution. In no circumstances shall the alien or the relevant LEA have 

a right of appeal from any decision to deport.

    (12) Change of classification. (i) An alien in S nonimmigrant 

classification is prohibited from changing to any other nonimmigrant 

classification.

    (ii) An LEA may request that any alien lawfully admitted to the 

United States and maintaining status in accordance with the provisions 

of Sec. 248.1 of this chapter, except for those aliens enumerated in 8 

CFR 248.2, have his or her nonimmigrant classification changed to that 

of an alien classified pursuant to section 101(a)(15)(S) of the Act as 

set forth in 8 CFR 248.3(h).

    (u) [Reserved]

    (v) Certain spouses and children of LPRs. Section 214.15 of this 

chapter provides the procedures and requirements pertaining to V 

nonimmigrant status.



(Title VI of the Health Professions Educational Assistance Act of 1976 

(Pub. L. 94-484; 90 Stat. 2303); secs. 103 and 214, Immigration and 

Nationality Act (8 U.S.C. 1103 and 1184))



[38 FR 35425, Dec. 28, 1973]



    Editorial Note: For Federal Register citations affecting Sec. 

214.2, see the List of CFR Sections Affected, which appears in the 

Finding Aids section in the printed volume and on GPO Access.