8 CFR Part 214 · GlobalLawDB

Contents

Subpart C · Subpart C—Noncitizen Victims of Severe Forms of Trafficking in Persons

214.200Scope of this subpart.#

This subpart governs the submission and adjudication of an Application for T Nonimmigrant Status, including a request by a principal applicant on behalf of an eligible family member for derivative status.

214.201Definitions.#

Where applicable, USCIS will apply the definitions provided in section 103 and 107(e) of the Trafficking Victims Protection Act (TVPA), 22 U.S.C. 7102, and 8 U.S.C. 1101, 1182(d), and 1184, with due regard for the definitions and application of these terms in 28 CFR part 1100 and the provisions of 18 U.S.C. 77. As used in this section the term: Abuse or threatened abuse of the legal process means the use or threatened use of a law or legal process whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action. Application for Derivative T Nonimmigrant Status means a request by a principal applicant on behalf of an eligible family member for derivative T-2, T-3, T-4, T-5, or T-6 nonimmigrant status on an Application for T Nonimmigrant Status. Application for T Nonimmigrant Status means a request by a principal applicant for T-1 nonimmigrant status on the form designated by USCIS for that purpose. Child means a person described in section 101(b)(1) of the Act. Coercion means threats of serious harm to or physical restraint against any person; any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or the abuse or threatened abuse of the legal process. Commercial sex act means any sex act on account of which anything of value is given to or received by any person. Debt bondage means the status or condition of a debtor arising from a pledge by the debtor of their personal services or those of a person under their control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined. Derivative T nonimmigrant means an eligible family member who has been granted T-2, T-3, T-4, T-5, or T-6 derivative status. A family member outside of the United States is not a derivative T nonimmigrant until they are issued a T-2, T-3, T-4, T-5, or T-6 visa by the Department of State and they are admitted to the United States in derivative T nonimmigrant status. Eligible family member means:

(1)A family member eligible for derivative T nonimmigrant status based on their relationship to a principal applicant or T-1 nonimmigrant and, if required, upon a showing of a present danger of retaliation;

(2)In the case of a principal applicant or T-1 nonimmigrant who is 21 years of age or older, the spouse and children of such applicant;

(3)In the case of a principal applicant or T-1 nonimmigrant under 21 years of age, the spouse, children, unmarried siblings under 18 years of age, and parents of such applicant; and

(4)Regardless of the age of a principal applicant or T-1 nonimmigrant, any parent or unmarried sibling under 18 years of age, or adult or minor child of a derivative of such principal applicant or T-1 nonimmigrant where the family member faces a present danger of retaliation as a result of the principal applicant or T-1 nonimmigrant's escape from a severe form of trafficking in persons or cooperation with law enforcement. Involuntary servitude, for the purposes of this part:

(1)Means a condition of servitude induced by means of any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or a condition of servitude induced by the abuse or threatened abuse of legal process; and

(2)Includes a condition of servitude in which the victim is forced to work for the trafficker by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through the law or the legal process. This definition encompasses those cases in which the trafficker holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion. Law Enforcement Agency (LEA) means a Federal, State, Tribal, or local law enforcement agency, prosecutor, judge, labor agency, children's protective services agency, adult protective services agency, or other authority that has the responsibility and authority for the detection, investigation, and/or prosecution of severe forms of trafficking in persons under any administrative, civil, criminal, or Tribal laws. Federal LEAs include but are not limited to the following: Department of Justice (including U.S. Attorneys' Offices, Civil Rights Division, Criminal Division, U.S. Marshals Service, Federal Bureau of Investigation (FBI)); U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP); Department of State (including Diplomatic Security Service); Department of Labor (DOL); Equal Employment Opportunity Commission (EEOC); National Labor Relations Board (NLRB); Offices of Inspectors General (OIG); Bureau of Indian Affairs (BIA) Police, and Offices for Civil Rights and Civil Liberties. Law Enforcement Agency (LEA) declaration means an official LEA declaration submitted on the Declaration for Trafficking Victim. Law enforcement involvement, for purposes of establishing physical presence, means law enforcement action beyond receiving the applicant's reporting and may include the LEA interviewing the applicant or otherwise becoming involved in detecting, investigating, or prosecuting the acts of trafficking. Peonage means a status or condition of involuntary servitude based upon real or alleged indebtedness. Principal applicant means a noncitizen who has filed an Application for T Nonimmigrant Status. Request for assistance means a request made by an LEA to a victim to assist in the detection, investigation, or prosecution of the acts of trafficking in persons or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime. The reasonableness of the request is assessed using the factors delineated at § 214.208(c). Serious harm means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm. Severe form of trafficking in persons means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act is under the age of 18 years; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. Sex trafficking means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act. T-1 nonimmigrant means the victim of a severe form of trafficking in persons who has been granted T-1 nonimmigrant status. United States means the fifty States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands. Victim of a severe form of trafficking in persons (victim) means a noncitizen who is or has been subjected to a severe form of trafficking in persons.

214.202Eligibility for T-1 nonimmigrant status.#

An applicant is eligible for T-1 nonimmigrant status under section 101(a)(15)(T)(i) of the Act if they demonstrate all of the following, subject to section 214(o) of the Act:

(a)Victim. The applicant is or has been a victim of a severe form of trafficking in persons, according to § 214.206.

(b)Physical presence. The applicant is physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port-of-entry thereto, according to § 214.207.

(c)Compliance with any reasonable request for assistance. The applicant has complied with any reasonable request for assistance from law enforcement or meets one of the conditions described below. The reasonableness of the request is assessed using the factors delineated at § 214.208(c).

(1)Exemption for minor victims. An applicant who was under 18 years of age at the time at least one act of trafficking occurred is not required to comply with any reasonable request for assistance.

(2)Exception for trauma. An applicant who, due to physical or psychological trauma, is unable to cooperate with a reasonable request for assistance from law enforcement is not required to comply with such reasonable request.

(d)Hardship. The applicant would suffer extreme hardship involving unusual and severe harm upon removal, according to § 214.209.

(e)Prohibition against traffickers in persons. No applicant will be eligible to receive T nonimmigrant status if there is substantial reason to believe that the applicant has committed an act of a severe form of trafficking in persons.

214.203Period of admission.#

(a)T-1 Principal. T-1 nonimmigrant status may be approved for a period not to exceed 4 years, except as provided in section 214(o)(7) of the Act.

(b)Derivative family members. A derivative family member who is otherwise eligible for admission may be granted T-2, T-3, T-4, T-5, or T-6 nonimmigrant status for an initial period that does not exceed the expiration date of the initial period approved for the T-1 principal applicant, except as provided in section 214(o)(7) of the Act.

(c)Notice. At the time an applicant is approved for T nonimmigrant status or receives an extension of T nonimmigrant status, USCIS will notify the applicant when their T nonimmigrant status will expire. USCIS also will notify the applicant that the failure to apply for adjustment of status to lawful permanent resident during the period of T nonimmigrant status, as set forth in 8 CFR 245.23, will result in termination of the applicant's T nonimmigrant status in the United States at the end of the 4-year period or any extension.

214.204Application.#

(a)Jurisdiction. USCIS has sole jurisdiction over all applications for T nonimmigrant status.

(b)Filing an application. An applicant seeking T-1 nonimmigrant status must submit an Application for T Nonimmigrant Status on the form designated by USCIS in accordance with 8 CFR 103.2 and with the evidence described in paragraph (c) of this section.

(1)Applicants in pending immigration proceedings. (i) An applicant in removal proceedings under section 240 of the Act, or in exclusion or deportation proceedings under former sections 236 or 242 of the Act (as in effect prior to April 1, 1997), and who wishes to apply for T-1 nonimmigrant status must file an Application for T Nonimmigrant Status directly with USCIS.

(c)Initial evidence. An Application for T Nonimmigrant Status must include:

(1)A detailed, signed personal statement from the applicant, in their own words, addressing:

(i)The circumstances surrounding the applicant's victimization, including:

(A)The nature of the victimization; and

(B)To the extent possible, the following:

(1)When the victimization occurred;

(2)How long the trafficking lasted;

(3)How and when they escaped, were rescued, or otherwise became separated from the traffickers;

(4)The events surrounding the trafficking;

(5)Who was responsible for the trafficking; and

(6)The circumstances surrounding their entry into the United States, if related to the trafficking;

(ii)How the applicant's physical presence in the United States relates to the trafficking;

(iii)The hardship, including harm or mistreatment the applicant fears if they are removed from the United States; and

(iv)Whether they have complied with any reasonable law enforcement request for assistance and whether any criminal, civil or administrative records relating to the acts of trafficking exist, if known, (or if applicable, why the age exemption or trauma exception applies); and

(2)Any credible evidence that supports any of the eligibility requirements set out in §§ 214.206 through 214.209.

(d)Inadmissible applicants. If an applicant is inadmissible to the United States, they must submit a request for a waiver of inadmissibility on the Application for Advance Permission to Enter as a Nonimmigrant, or successor form as designated by USCIS accordance with 8 CFR 103.2, in accordance with form instructions and 8 CFR 212.16, and accompanied by supporting evidence.

(e)Evidence from law enforcement. An applicant may wish to submit evidence from an LEA to help establish eligibility, including victimization and the compliance with reasonable requests for assistance. An LEA declaration:

(1)Is optional evidence;

(2)Is not given any special evidentiary weight;

(3)Does not grant an immigration benefit and does not lead to automatic approval of the Application for T Nonimmigrant Status;

(4)Must be submitted on the “Declaration for Trafficking Victim,” and must be signed by a supervising official responsible for the detection, investigation, or prosecution of severe forms of trafficking in persons;

(5)Is completed at the discretion of the certifying official; and

(6)Does not require that a formal investigation or prosecution be initiated.

(f)Any credible evidence. All evidence demonstrating cooperation with law enforcement will be considered under the any credible evidence standard.

(g)USCIS determination. USCIS, not the LEA, will determine if the applicant was or is a victim of a severe form of trafficking in persons, and otherwise meets the eligibility requirements for T nonimmigrant status.

(h)Disavowed or withdrawn LEA declaration. An LEA may disavow or withdraw the contents of a previously submitted declaration and should provide a detailed explanation of its reasoning in writing. After disavowal or withdrawal, the LEA declaration generally will no longer be considered as evidence of the applicant's compliance with requests for assistance in the LEA's detection, investigation, or prosecution, but may be considered for other purposes.

(i)Continued Presence. An applicant granted Continued Presence under 28 CFR 1100.35 should submit documentation of the grant of Continued Presence. If revoked, the grant of Continued Presence will generally no longer be considered as evidence of the applicant's compliance with requests for assistance in the LEA's investigation or prosecution but may be considered for other purposes.

(ii)In its discretion, ICE may exercise prosecutorial discretion, as appropriate, while USCIS adjudicates the Application for T Nonimmigrant Status, including applications for derivatives.

(2)Applicants with final orders of removal, deportation, or exclusion. An applicant subject to a final order of removal, deportation, or exclusion may file an Application for T Nonimmigrant Status directly with USCIS.

(i)The filing of an Application for T Nonimmigrant Status has no effect on DHS authority or discretion to execute a final order of removal, although the applicant may request an administrative stay of removal pursuant to 8 CFR 241.6(a).

(ii)If the applicant is in detention pending execution of the final order, the period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the applicant's removal will be extended during the period the stay is in effect.

(iii)If USCIS subsequently determines under the procedures in § 214.205 that the application is bona fide, the final order of removal, deportation, or exclusion will be automatically stayed, and the stay will remain in effect until a final decision is made on the Application for T Nonimmigrant Status.

(3)Referral of applicants for removal proceedings. USCIS generally will not refer an applicant for T nonimmigrant status for removal proceedings while the application is pending or following denial of the application, absent serious aggravating circumstances, such as the existence of an egregious criminal history, a threat to national security, or where the applicant is complicit in committing an act of trafficking.

(4)Minor applicants. When USCIS receives an application from a principal applicant under the age of 18, USCIS will notify the Department of Health and Human Services to facilitate the provision of interim assistance.

(j)Other evidence. An applicant may also submit any evidence regarding entry or admission into the United States or permission to remain in the United States. An applicant may also note that such evidence is contained in their immigration file.

(k)Biometric services. All applicants for T-1 nonimmigrant status must submit biometrics in accordance with 8 CFR 103.16.

(l)Evidentiary standards, standard of proof, and burden of proof. (1) The burden is on the applicant to demonstrate eligibility for T-1 nonimmigrant status by a preponderance of the evidence. The applicant may submit any credible evidence relating to a T nonimmigrant application for consideration by USCIS.

(2)USCIS will conduct a review of all evidence and may investigate any aspect of the application.

(3)Evidence previously submitted by the applicant for any immigration benefit request or relief may be used by USCIS in evaluating the eligibility of an applicant for T-1 nonimmigrant status. USCIS will not be bound by previous factual determinations made in connection with a prior application or petition for any immigration benefit or relief. USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence.

(4)USCIS will consider the totality of the evidence the applicant submitted and other evidence available to USCIS in evaluating an Application for T Nonimmigrant Status.

(m)Bona fide determination. Once an applicant submits an Application for T Nonimmigrant Status or Application for Derivative T Nonimmigrant Status, USCIS will conduct an initial review to determine if the application is bona fide under the provisions of § 214.205. USCIS will conduct an initial review of an eligible family member's Application for Derivative T Nonimmigrant Status to determine if the application is bona fide if the principal's Application for T Nonimmigrant Status has been deemed bona fide.

(n)Decision. After completing its review of the application and evidence, USCIS will issue a decision approving or denying the application in accordance with 8 CFR 103.3.

(o)Approval. If USCIS determines that the applicant is eligible for T-1 nonimmigrant status, USCIS will approve the application and grant T-1 nonimmigrant status, subject to the annual limitation as provided in § 214.210. USCIS will provide the applicant with evidence of T-1 nonimmigrant status. USCIS may also notify other parties and entities of the approval as it determines appropriate, including any LEA providing an LEA declaration and the Department of Health and Human Service's Office of Refugee Resettlement, consistent with 8 U.S.C. 1367.

(1)Applicants with an outstanding order of removal, deportation, or exclusion issued by DHS. For an applicant who is the subject of an order of removal, deportation, or exclusion issued by DHS, the order will be deemed cancelled by operation of law as of the date of the USCIS approval of the application.

(2)Applicants with an outstanding order of removal, deportation, or exclusion issued by the Department of Justice. An applicant who is the subject of an order of removal, deportation or exclusion issued by an immigration judge or the Board of Immigration Appeals (Board) may seek rescission of such order by filing a motion to reopen and terminate removal proceedings with the immigration judge or the Board. ICE may agree, as a matter of discretion, to join such motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23.

(3)Employment authorization. An individual granted T-1 nonimmigrant status is authorized to work incident to status. An applicant does not need to file a separate Application for Employment Authorization to be granted employment authorization. USCIS will issue an initial Employment Authorization Document (EAD) to such T-1 nonimmigrants for the duration of the T-1 nonimmigrant status. An applicant granted T-1 nonimmigrant status seeking to replace an EAD that was lost, stolen, or destroyed must file an Application for Employment Authorization in accordance with form instructions.

(p)Travel abroad. In order to return to the United States after travel abroad and continue to hold T-1 nonimmigrant status, a T-1 nonimmigrant must be granted advance parole pursuant to section 212(d)(5) of the Act prior to departing the United States.

(q)Denial. Upon denial of an application, USCIS will notify the applicant in accordance with 8 CFR 103.3. USCIS may also notify any LEA providing an LEA declaration and the Department of Health and Human Service's Office of Refugee Resettlement. If an applicant appeals a denial in accordance with 8 CFR 103.3, the denial will not become final until the administrative appeal is decided.

(1)Effect on bona fide determination. Upon denial of an application, any benefits derived from a bona fide determination will automatically be revoked when the denial becomes final.

(2)Applicants previously in removal proceedings. In the case of an applicant who was previously in removal proceedings that were terminated on the basis of a pending Application for T Nonimmigrant Status, once a denial becomes final, DHS may file a new Notice to Appear to place the individual in removal proceedings again.

(3)Applicants subject to an order of removal, deportation, or exclusion. In the case of an applicant who is subject to an order of removal, deportation, or exclusion that had been stayed due to the pending Application for T Nonimmigrant Status, the stay will be automatically lifted as of the date the denial becomes final.

214.205Bona fide determination.#

(a)Bona fide determinations for principal applicants for T nonimmigrant status. If an Application for T Nonimmigrant Status is submitted on or after August 28, 2024, USCIS will conduct an initial review to determine if the application is bona fide.

(1)Request for evidence. If an Application for T Nonimmigrant Status was pending as of August 28, 2024, and additional evidence is required to establish eligibility for principal T nonimmigrant status, USCIS will issue a request for evidence, and conduct a bona fide review based on available evidence.

(2)Initial review criteria. After initial review, USCIS will deem an Application for T Nonimmigrant Status bona fide if:

(i)The applicant has submitted a properly filed and complete Application for T Nonimmigrant Status;

(ii)The applicant has submitted a signed personal statement; and

(iii)The results of initial background checks are complete, have been reviewed, and do not present national security concerns.

(3)Secondary review criteria. If initial review does not establish an Application for T Nonimmigrant Status is bona fide, USCIS will conduct a full T nonimmigrant status eligibility review. An Application for T Nonimmigrant Status that meets all eligibility requirements will be approved, or if the statutory cap has been reached, will receive a bona fide determination.

(b)Bona fide determinations for eligible family members in the United States. Once a principal applicant's application has been deemed bona fide, USCIS will conduct an initial review for any eligible family members in the United States who have filed an Application for Derivative T Nonimmigrant Status to determine whether their applications are bona fide.

(1)If an Application for Derivative T Nonimmigrant Status was pending as of August 28, 2024, and additional evidence is required to establish eligibility for derivative T nonimmigrant status, USCIS will issue a request for evidence and conduct a bona fide review based on available evidence.

(2)After initial review, USCIS will determine an Application for Derivative T Nonimmigrant Status is bona fide if:

(i)The eligible family member is in the United States at the time of the bona fide determination;

(ii)The principal applicant or T-1 nonimmigrant has submitted a properly filed and complete Application for Derivative T Nonimmigrant Status;

(iii)The Application for Derivative T Nonimmigrant Status is supported by credible evidence that the derivative applicant qualifies as an eligible family member; and

(iv)Initial background checks are complete, have been reviewed, and do not present national security concerns.

(3)If initial review does not establish an Application for Derivative T Nonimmigrant Status is bona fide, USCIS will conduct a full T nonimmigrant status eligibility review. An Application for Derivative T Nonimmigrant Status that meets all eligibility requirements during this secondary review will be approved, or if the statutory cap has been reached, will receive a bona fide determination.

(c)Notice of USCIS determination. If USCIS determines that the Application for T Nonimmigrant Status or Application for Derivative T Nonimmigrant Status is bona fide under this section, USCIS will issue written notice of that determination, and inform the applicant that they may be considered for deferred action and may file an Application for Employment Authorization if they have not already filed one. The notice will also inform the applicant that any final order of removal, deportation, or exclusion is automatically stayed as set forth in paragraph (g) of this section. An application will be treated as a bona fide application as of the date of the notice.

(d)Not considered bona fide. If an application is incomplete or presents national security concerns, it will not be considered bona fide. There are no motion or appeal rights for a bona fide determination upon initial review under this section.

(1)For applications found not to be bona fide upon initial review, USCIS will proceed to full T nonimmigrant status eligibility review as described in paragraphs (a)(3) and (b)(3) of this section, generally in order of application receipt date.

(2)If an application is found through this review not to establish eligibility for T nonimmigrant status, the application will be denied in accordance with § 214.204(q).

(e)Exercise of discretion. (1) Once USCIS deems an Application for T Nonimmigrant Status or Application for Derivative T Nonimmigrant Status bona fide, USCIS may consider the applicant for deferred action.

(2)If, after review of the available information including background checks, USCIS determines that deferred action is warranted in a particular case as an exercise of enforcement discretion, USCIS will then proceed to adjudication of the Application for Employment Authorization, if one has been filed.

(3)There are no motion or appeal rights for the exercise of enforcement discretion under this section.

(f)Bona fide determinations for applicants in removal proceedings. This section applies to applicants whose Applications for T Nonimmigrant Status or Applications for Derivative T Nonimmigrant Status have been deemed bona fide and who are in removal proceedings under section 240 of the Act, or in exclusion or deportation proceedings under former sections 236 or 242 of the Act (as in effect prior to April 1, 1997). In such cases, ICE may exercise prosecutorial discretion, as appropriate, while USCIS adjudicates an Application for T Nonimmigrant Status or an Application for Derivative T Nonimmigrant Status.

(g)Stay of final order of removal, deportation, or exclusion. (1) If USCIS determines that an application is bona fide it automatically stays the execution of any final order of removal, deportation, or exclusion.

(2)This administrative stay will remain in effect until any adverse decision becomes final.

(3)Neither an immigration judge nor the Board has jurisdiction to adjudicate an application for a stay of removal, deportation, or exclusion on the basis of the filing of an Application for T Nonimmigrant Status or Application for Derivative T Nonimmigrant Status.

214.206Victim of a severe form of trafficking in persons.#

(a)Evidence. The applicant must submit evidence that demonstrates:

(1)That they are or have been a victim of a severe form of trafficking in persons. Except in instances of sex trafficking involving victims under 18 years of age, severe forms of trafficking in persons must involve both a particular means (force, fraud, or coercion) and a particular end or a particular intended end (sex trafficking, involuntary servitude, peonage, debt bondage, or slavery); or

(2)If an applicant has not performed labor or services, or a commercial sex act, they must establish that they were recruited, transported, harbored, provided, or obtained for the purposes of subjection to sex trafficking, involuntary servitude, peonage, debt bondage, or slavery, or patronized or solicited for the purposes of subjection to sex trafficking.

(3)The applicant may satisfy the requirements under paragraph (a)(1) or (2) of this section by submitting:

(i)The applicant's personal statement, which should describe the circumstances of the victimization suffered. For more information regarding the personal statement, see § 214.204(c).

(ii)Any other credible evidence, including but not limited to:

(A)Trial transcripts;

(B)Court documents;

(C)Police reports or other documentation from an LEA;

(D)News articles;

(E)Copies of reimbursement forms for travel to and from court;

(F)Affidavits from case managers, therapists, medical professionals, witnesses, or other victims in the same trafficking scheme;

(G)Correspondence or other documentation from the trafficker;

(H)Documents used in furtherance of the trafficking scheme such as recruitment materials, advertisements, pay stubs, logbooks, or contracts;

(I)Photographs or images;

(J)An LEA declaration as described in § 214.204(c); or

(K)Documentation of a grant of Continued Presence under 28 CFR 1100.35.

(b)[Reserved]

214.207Physical presence.#

(a)Requirement. To be eligible for T-1 nonimmigrant status, an applicant must be physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port-of-entry thereto on account of such trafficking. USCIS considers the applicant's presence in the United States at the time of application. An applicant must demonstrate that they are physically present under one of the following grounds:

(1)Are currently being subjected to a severe form of trafficking in persons;

(2)Were liberated from a severe form of trafficking in persons by an LEA, at any time prior to filing the Application for T Nonimmigrant Status;

(3)Escaped a severe form of trafficking in persons before an LEA was involved, at any time prior to filing the Application for T Nonimmigrant Status;

(4)Were subject to a severe form of trafficking in persons at some point in the past and their current presence in the United States is directly related to the original trafficking in persons, regardless of the length of time that has passed between the trafficking and filing of the Application for T Nonimmigrant Status; or

(5)Have been allowed entry into the United States for participation in the detection, investigation, prosecution, or judicial processes associated with an act or perpetrator of trafficking.

(i)An applicant will be deemed physically present under this provision regardless of where such trafficking occurred.

(ii)To demonstrate that the applicant's physical presence is for participation in an investigative or judicial process, the applicant must submit documentation to show valid entry into the United States and evidence that this valid entry is for participation in investigative or judicial processes associated with an act or perpetrator of trafficking.

(b)Departure from the United States. An applicant who has voluntarily departed from or has been removed from the United States at any time after the act of a severe form of trafficking in persons is deemed not to be present in the United States as a result of such trafficking in persons unless:

(1)The applicant's reentry into the United States was the result of the continued victimization of the applicant;

(2)The applicant is a victim of a new incident of a severe form of trafficking in persons;

(3)The applicant has been allowed reentry into the United States for participation in the detection, investigation, prosecution, or judicial process associated with an act or a perpetrator of trafficking. An applicant will be deemed physically present under this provision regardless of where such trafficking occurred. To demonstrate that the applicant's physical presence is for participation in an investigative or judicial process, the applicant must submit documentation to show valid entry into the United States and evidence that this valid entry is for participation in investigative or judicial processes associated with an act or perpetrator of trafficking;

(4)The applicant's presence in the United States is on account of their past or current participation in investigative or judicial processes associated with an act or perpetrator of trafficking, regardless of where such trafficking occurred. The applicant may satisfy physical presence under this provision regardless of the length of time that has passed between their participation in an investigative or judicial process associated with an act or perpetrator of trafficking and the filing of the Application for T Nonimmigrant Status; or

(5)The applicant returned to the United States and received treatment or services related to their victimization that cannot be provided in their home country or last place of residence outside the United States.

(c)Evidence. The applicant must submit evidence that demonstrates that their physical presence in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port-of-entry thereto, is on account of trafficking in persons. USCIS will consider any credible evidence presented to determine the physical presence requirement, including but not limited to:

(1)A detailed personal statement describing the applicant's current presence in the United States on account of the trafficking, including:

(i)The circumstances describing the victimization, including when the events took place, the length and severity of the trafficking, how and when the applicant escaped, was rescued, or otherwise became separated from the traffickers, when the trafficking ended, and when and how the applicant learned that they were a victim of human trafficking;

(ii)An explanation of any physical health effects or psychological trauma the applicant has suffered as a result of the trafficking and a description of how this trauma impacts the applicant's life at the time of filing;

(iii)The financial impact of the victimization;

(iv)The applicant's ability to access mental health services, social services, and legal services;

(v)Any relevant description of the applicant's cooperation with law enforcement at the time of filing;

(vi)A description of how the victimization relates to the applicant's current presence in the U.S., if relevant.

(2)Affidavits, evaluations, diagnoses, or other records from the applicant's service providers (including therapists, psychologists, psychiatrists, and social workers) documenting the therapeutic, psychological, or medical services the applicant has sought or is currently accessing as a result of victimization and that describe how the applicant's life is being impacted by the trauma at the time of filing, and describing any mental health conditions resulting from the trafficking;

(3)Documentation of any stabilizing services and benefits, including financial, language, housing, or legal resources, the applicant is accessing or has accessed as a result of being trafficked. For those services and benefits not currently being accessed, the record should demonstrate how those past services and benefits related to trauma the applicant is experiencing at the time of filing;

(4)An LEA declaration as described in § 214.204(c) or other statements from LEAs documenting the cooperation between the applicant and the LEA or law enforcement involvement in liberating the applicant;

(5)Documentation of a grant of Continued Presence under 28 CFR 1100.35;

(6)Any other documentation of entry into the United States or permission to remain in the United States, such as parole under section 212(d)(5) of the Act, or a notation that such evidence is contained in the applicant's immigration file;

(7)Copies of news reports, law enforcement records, or court records; or

(8)Any other credible evidence to establish the applicant's current presence in the United States is on account of the trafficking victimization.

214.208Compliance with any reasonable request for assistance in the detection, investigation, or prosecution of an act of trafficking.#

(a)Requirement. To be eligible for T-1 nonimmigrant status, an applicant must have complied with any reasonable request for assistance from an LEA in the detection, investigation, or prosecution of acts of trafficking or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime, unless the applicant meets an exception or exemption described in paragraph (e) of this section.

(b)Applicability. An applicant must, at a minimum, contact an LEA with proper jurisdiction to report the acts of a severe form of trafficking in persons. Credible evidence documenting a single contact with an LEA may suffice. Reporting may be telephonic, electronic, or through other means. An applicant who has never had contact with an LEA regarding the acts of a severe form of trafficking in persons will not be eligible for T-1 nonimmigrant status, unless they meet an exemption or exception as described in paragraph (e) of this section.

(c)Reasonable requests. An applicant need only show compliance with reasonable requests made by an LEA for assistance in the investigation or prosecution of the acts of trafficking in persons. The reasonableness of the request depends on the totality of the circumstances. Factors to consider include, but are not limited to:

(1)General law enforcement and prosecutorial practices;

(2)The nature of the victimization;

(3)The specific circumstances of the victim;

(4)The victim's capacity, competency, or lack thereof;

(5)Trauma suffered (both mental and physical) or whether the request would cause further trauma;

(6)Access to support services;

(7)The safety of the victim or the victim's family;

(8)Compliance with previous requests and the extent of such compliance;

(9)Whether the request would yield essential information;

(10)Whether the information could be obtained without the victim's compliance;

(11)Whether a qualified interpreter or attorney was present to ensure the victim understood the request;

(12)Cultural, religious, or moral objections to the request;

(13)The time the victim had to comply with the request;

(14)The age, health, and maturity of the victim; and

(15)Any other relevant circumstances surrounding the request.

(d)Evidence. An applicant must submit evidence that demonstrates that they have complied with any reasonable request for assistance in a Federal, State, Tribal, or local detection, investigation, or prosecution of trafficking in persons, or a crime where trafficking in persons is at least one central reason for the commission of that crime. In the alternative, an applicant can submit evidence to demonstrate that they should be exempt under paragraph (e) of this section. If USCIS has any question about whether the applicant has complied with a reasonable request for assistance, USCIS may contact the LEA. The applicant may satisfy this requirement by submitting any of the following:

(1)An LEA declaration as described in § 214.204(c);

(2)Documentation of a grant of Continued Presence under 28 CFR 1100.35; or

(3)Any other evidence, including affidavits of witnesses. In the victim's statement prescribed by § 214.204(c), the applicant should show that an LEA that has responsibility and authority for the detection, investigation, or prosecution of severe forms of trafficking in persons has information about such trafficking in persons, that the victim has complied with any reasonable request for assistance in the investigation or prosecution of such acts of trafficking, and, if the victim did not report the crime, why the crime was not previously reported.

(e)Exception or exemption. An applicant who has not had contact with an LEA or who has not complied with any reasonable request may be excepted or exempt from the requirement to comply with any reasonable request for assistance in an investigation or prosecution if either of the following circumstances apply:

(1)Trauma. The applicant is unable to cooperate with a reasonable request for assistance from an LEA in the detection, investigation, or prosecution of acts of trafficking in persons due to physical or psychological trauma. An applicant must submit credible evidence of the trauma experienced. The applicant may satisfy this exception by submitting:

(i)A personal statement describing the trauma and explaining the circumstances surrounding the trauma the applicant experienced, including their age, background, maturity, health, disability, and any history of abuse or exploitation;

(ii)A signed statement from a qualified professional, such as a medical professional, mental health professional, social worker, or victim advocate, who attests to the victim's mental state or medical condition;

(iii)Medical or psychological records documenting the trauma or its impact;

(iv)Witness statements;

(v)Photographs;

(vi)Police reports;

(vii)Court records and court orders;

(viii)Disability determinations;

(ix)Government agency findings; or

(x)Any other credible evidence.

(2)Age. The applicant was under 18 years of age at the time of victimization. An applicant who was under 18 years of age at the time at least one of the acts of trafficking occurred is exempt from the requirement to comply with any reasonable request for assistance in the detection, investigation, or prosecution, but they must submit evidence of their age at the time of the victimization. Where available, an applicant should include an official copy of their birth certificate, a passport, or a certified medical opinion. USCIS will also consider any other credible evidence submitted regarding the age of the applicant.

(f)Exception or exemption established. When an applicant has established that the exception or exemption applies, they are not required to have had any contact with law enforcement or comply with future requests for assistance, including reporting the trafficking. USCIS reserves the authority and discretion to contact the LEA involved in the case, if appropriate.

214.209Extreme hardship involving unusual and severe harm.#

To be eligible for T-1 nonimmigrant status, an applicant must demonstrate that removal from the United States would subject the applicant to extreme hardship involving unusual and severe harm.

(a)Standard. A finding of extreme hardship involving unusual and severe harm may be based on the following factors.

(b)Factors. Factors that may be considered in evaluating whether removal would result in extreme hardship involving unusual and severe harm should include both traditional extreme hardship factors and factors associated with having been a victim of a severe form of trafficking in persons. These factors include, but are not limited to:

(1)The age, maturity, and personal circumstances of the applicant;

(2)Any physical or psychological issues the applicant has that necessitate medical or psychological care not reasonably available in the foreign country to which the applicant would be returned;

(3)The nature and extent of the physical and psychological consequences of having been a victim of a severe form of trafficking in persons;

(4)The impact of the loss of access to the United States courts and the criminal justice system for purposes relating to the incident of a severe form of trafficking in persons or other crimes perpetrated against the applicant, including criminal and civil redress for acts of trafficking in persons, criminal prosecution, restitution, and protection;

(5)The reasonable expectation that the existence of laws, social practices, or customs in the foreign country to which the applicant would be returned would penalize the applicant severely for having been the victim of a severe form of trafficking in persons;

(6)The likelihood of re-victimization and the need, ability, and willingness of foreign authorities to protect the applicant;

(7)The likelihood that the trafficker or others acting on behalf of the trafficker in the foreign country would cause the applicant harm;

(8)The likelihood that the applicant's individual safety would be threatened by the existence of civil unrest or armed conflict; or

(9)Current or likelihood of future economic harm.

(c)Evidence. (1) An applicant is encouraged to describe and document all factors that may be relevant to the case, as there is no guarantee that a particular reason(s) will satisfy the requirement.

(2)Hardship to persons other than the applicant may be considered in determining whether an applicant will suffer the requisite hardship only if the related evidence demonstrates specifically that the applicant will suffer extreme hardship upon removal as a result of hardship to persons other than the applicant.

(3)The applicant may satisfy this requirement by submitting any credible evidence regarding the nature and scope of the hardship if the applicant was removed from the United States, including evidence of hardship arising from circumstances surrounding the victimization and any other circumstances.

(4)An applicant may submit a personal statement or other evidence, including evidence from relevant country condition reports and any other public or private sources of information.

214.210Annual numerical limit.#

(a)5,000 per fiscal year. DHS may not grant T-1 nonimmigrant status to more than 5,000 principal applicants in any fiscal year.

(b)Waiting list. If the numerical limit prevents further grants of T-1 nonimmigrant status, USCIS will place applicants who receive a bona fide determination pursuant to § 214.205 on a waiting list. USCIS:

(1)Will assign priority on the waiting list based on the date the application was properly filed, with the oldest applications receiving the highest priority for processing;

(2)Will in the next fiscal year, issue a number to each application on the waiting list, in the order of the highest priority; and

(3)After T-1 nonimmigrant status has been issued to eligible applicants on the waiting list, USCIS will issue any remaining T-1 nonimmigrant numbers for that fiscal year to new eligible applicants in the order the applications were filed.

(c)Unlawful presence. While an applicant for T nonimmigrant status in the United States is on the waiting list, the applicant will not accrue unlawful presence under section 212(a)(9)(B) of the Act.

(d)Removal from the waiting list. An applicant may be removed from the waiting list consistent with law and policy. Applicants on the waiting list must remain admissible to the United States and otherwise eligible for T nonimmigrant status. If at any time prior to final adjudication USCIS receives information that an applicant is no longer eligible for T nonimmigrant status, the applicant may be removed from the waiting list. USCIS will provide notice to the applicant of that decision.

214.211Application for eligible family members.#

(a)Eligibility. Subject to section 214(o) of the Act, an applicant who has applied for or has been granted T-1 nonimmigrant status (principal applicant) may apply for the admission of an eligible family member, who is otherwise admissible to the United States, in derivative T nonimmigrant status if accompanying or following to join the principal applicant.

(1)Principal applicant 21 years of age or older. For a principal applicant who is 21 years of age or over, eligible family member means a T-2 (spouse) or T-3 (child).

(2)Principal applicant under 21 years of age. For a principal applicant who is under 21 years of age, eligible family member means a T-2 (spouse), T-3 (child), T-4 (parent), or T-5 (unmarried sibling under the age of 18).

(3)Family member facing danger of retaliation. Regardless of the age of the principal applicant, if the eligible family member faces a present danger of retaliation as a result of the principal applicant's escape from the severe form of trafficking or cooperation with law enforcement, in consultation with the law enforcement agency investigating a severe form of trafficking, eligible family member means a T-4 (parent), T-5 (unmarried sibling under the age of 18), or T-6 (adult or minor child of a derivative of the principal applicant). In cases where the LEA has not investigated the acts of trafficking after the applicant has reported the crime, USCIS will evaluate any credible evidence demonstrating derivatives' present danger of retaliation.

(4)Admission requirements. The principal applicant must demonstrate that the applicant for whom derivative T nonimmigrant status is being sought is an eligible family member of the T-1 principal applicant, as defined in § 214.201, and is otherwise eligible for that status.

(b)Application. (1) Application submission. A T-1 principal applicant may submit an Application for Derivative T Nonimmigrant Status in accordance with the form instructions.

(e)Relationship and age-out protections—(1) Protection for new child of a principal applicant. If the T-1 principal applicant establishes that they have become a parent of a child after filing the application for T-1 nonimmigrant status, the child will be deemed to be an eligible family member eligible to accompany or follow to join the T-1 principal applicant.

(2)Age-out protection for eligible family members of a principal applicant under 21 years of age. (i) If the T-1 principal applicant was under 21 years of age when they applied for T-1 nonimmigrant status but reached 21 years of age while the principal application was still pending, USCIS will continue to consider a parent or unmarried sibling as an eligible family member.

(f)Evidence demonstrating a present danger of retaliation. A principal applicant or T-1 nonimmigrant seeking derivative T nonimmigrant status for an eligible family member on the basis of facing a present danger of retaliation as a result of the principal applicant's or T-1 nonimmigrant's escape from a severe form of trafficking or cooperation with law enforcement, must demonstrate the basis of this danger. USCIS may contact the LEA involved, if appropriate. An applicant may satisfy this requirement by submitting:

(1)Documentation of a previous grant of advance parole to an eligible family member;

(2)A signed statement from a law enforcement agency describing the danger of retaliation;

(3)A personal statement from the principal applicant or derivative applicant describing the danger the family member faces and how the danger is linked to the victim's escape or cooperation with law enforcement; and/or

(4)Any other credible evidence, including trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits from other witnesses. This evidence may be from the United States or any country in which the eligible family member is facing danger of retaliation.

(g)Biometric submission; evidentiary standards. The provisions for biometric submission and evidentiary standards described in § 214.204(b) and (d) apply to an eligible family member's Application for Derivative T Nonimmigrant Status.

(h)Review and decision. USCIS will review the application and issue a decision in accordance with paragraph (d) of this section.

(i)Derivative approvals. A noncitizen whose Application for Derivative T Nonimmigrant Status is approved is not subject to the annual limit described in § 214.210. USCIS will not approve an Application for Derivative T Nonimmigrant Status unless and until it has approved T-1 nonimmigrant status for the principal applicant.

(1)Approvals for eligible family members in the United States. When USCIS approves an Application for Derivative T Nonimmigrant Status for an eligible family member in the United States, USCIS will concurrently approve T nonimmigrant status for the eligible family member. USCIS will notify the T-1 nonimmigrant of such approval and provide evidence of T nonimmigrant status to the derivative.

(2)Approvals for eligible family members outside the United States. When USCIS approves an application for an eligible family member outside the United States, USCIS will notify the T-1 nonimmigrant of such approval and provide the necessary documentation to the Department of State for consideration of visa issuance.

(3)Employment authorization. (i) A noncitizen granted derivative T nonimmigrant status may apply for employment authorization by filing an Application for Employment Authorization in accordance with form instructions.

(ii)For derivatives in the United States, the Application for Employment Authorization may be filed concurrently with the Application for Derivative T Nonimmigrant Status or at any later time.

(c)Required supporting evidence. In addition to the form, an Application for Derivative T Nonimmigrant Status must include the following:

(1)Biometrics.

(2)Evidence demonstrating the relationship of an eligible family member, as provided in § 214.211(d).

(3)In the case of an applicant seeking derivative T nonimmigrant status based on danger of retaliation, evidence demonstrating this danger as provided in § 214.211.

(4)If an eligible family member is inadmissible based on a ground that may be waived, a request for a waiver of inadmissibility under section 212(d)(13) or section 212(d)(3) of the Act must be filed in accordance with § 212.16 of this subchapter and submitted with the completed application package.

(d)Relationship. Except as described in paragraph (e) of this section, the family relationship must exist at the time:

(1)The Application for T Nonimmigrant Status is filed;

(2)The Application for T Nonimmigrant Status is adjudicated;

(3)The Application for Derivative T Nonimmigrant Status is filed;

(4)The Application for Derivative T Nonimmigrant Status is adjudicated; and

(5)The eligible family member is admitted to the United States if residing abroad.

(ii)Principal applicants who marry while their Application for T Nonimmigrant Status is pending may file an Application for Derivative T Nonimmigrant Status on behalf of their spouse, even if the relationship did not exist at the time they filed their Application for T Nonimmigrant Status.

(3)Eligible family members with final orders of removal, deportation, or exclusion. (i) If an eligible family member is the subject of a final order of removal, deportation, or exclusion, the principal applicant must file an Application for Derivative T Nonimmigrant Status directly with USCIS.

(iii)For derivatives outside the United States, an Application for Employment Authorization based on their T nonimmigrant status may only be filed after admission to the United States in T nonimmigrant status.

(2)Eligible family members in pending immigration proceedings. (i) If an eligible family member is in removal proceedings under section 240 of the Act, or in exclusion or deportation proceedings under former sections 236 or 242 of the Act (as in effect prior to April 1, 1997), the principal applicant or T-1 nonimmigrant must file an Application for Derivative T Nonimmigrant Status directly with USCIS.

(4)Marriage of an eligible family member. (i) An eligible family member seeking T-3 or T-5 status must be unmarried when the principal applicant files an Application for T Nonimmigrant Status, when USCIS adjudicates the Application for T Nonimmigrant Status, when the principal applicant or T-1 nonimmigrant files the Application for Derivative T Nonimmigrant Status, when USCIS adjudicates the Derivative T Nonimmigrant Status, and if relevant, when the family member is admitted to the United States.

(iv)If the Application for Employment Authorization is approved, the derivative T nonimmigrant will be granted employment authorization pursuant to 8 CFR 274a.12(c)(25) for the period remaining in derivative T nonimmigrant status.

(3)Age-out protection for child of a principal applicant. (i) USCIS will continue to consider a child as an eligible family member if the child was under 21 years of age at the time the principal filed the Application for T Nonimmigrant Status, but reached 21 years of age while the principal's application was still pending.

(4)Travel abroad. In order to return to the United States after travel abroad and continue to hold derivative T nonimmigrant status, a noncitizen granted derivative T nonimmigrant status must either be granted advance parole pursuant to section 212(d)(5) of the Act and 8 CFR 223 or obtain a T nonimmigrant visa (unless visa exempt under 8 CFR 212.1) and be admitted as a T nonimmigrant at a designated port of entry.

214.212Extension of T nonimmigrant status.#

(a)Eligibility. USCIS may grant extensions of T-1 nonimmigrant status beyond 4 years from the date of approval in 1-year periods from the date the T-1 nonimmigrant status ends if:

(1)An LEA detecting, investigating, or prosecuting activity related to acts of trafficking certifies that the presence of the applicant in the United States is necessary to assist in the detection, investigation, or prosecution of such activity; or

(2)USCIS determines that an extension is warranted due to exceptional circumstances.

(b)Application for a discretionary extension of status. Upon application, USCIS may extend T-1 nonimmigrant status based on law enforcement need or exceptional circumstances. A T-1 nonimmigrant may apply for an extension by submitting the form designated by USCIS in accordance with form instructions. A derivative T nonimmigrant may file for an extension of status independently if the T-1 nonimmigrant remains in valid T nonimmigrant status, or the T-1 nonimmigrant may file for an extension of T-1 status and request that this extension be applied to the derivative family members in accordance with the form instructions.

(c)Timely filing. An applicant should file the application to extend nonimmigrant status before the expiration of T nonimmigrant status. If T nonimmigrant status has expired, the applicant must explain in writing the reason for the untimely filing. USCIS may exercise its discretion to approve an untimely filed application for extension of T nonimmigrant status.

(d)Evidence. In addition to the application, a T nonimmigrant must include evidence to support why USCIS should grant an extension of T nonimmigrant status. The nonimmigrant bears the burden of establishing eligibility for an extension of status and that a favorable exercise of discretion is warranted.

(e)Evidence of law enforcement need. An applicant may demonstrate law enforcement need by submitting evidence that comes directly from an LEA, including:

(1)A new LEA declaration;

(2)Evidence from a law enforcement official, prosecutor, judge, or other authority who can detect, investigate, or prosecute acts of trafficking, such as a letter on the agency's letterhead, email, or fax; or

(3)Any other credible evidence.

(f)Exceptional circumstances. (1) USCIS may, in its discretion, extend status beyond the 4-year period if it determines the extension of the period of such nonimmigrant status is warranted due to exceptional circumstances as described in section 214(o)(7)(iii) of the Act. (2) USCIS may approve an extension of status for a principal applicant, based on exceptional circumstances, when an approved eligible family member is awaiting initial issuance of a T visa by an embassy or consulate and the principal applicant's T-1 nonimmigrant status is soon to expire.

(g)Evidence of exceptional circumstances. An applicant may demonstrate exceptional circumstances by submitting:

(1)The applicant's affirmative statement; or

(2)Any other credible evidence, including but not limited to:

(i)Medical records;

(ii)Police or court records;

(iii)News articles;

(iv)Correspondence with an embassy or consulate; and

(v)Affidavits from individuals with direct knowledge of or familiarity with the applicant's circumstances.

(h)Mandatory extensions of status for adjustment of status applicants. USCIS will automatically extend T nonimmigrant status when a T nonimmigrant properly files an application for adjustment of status during the period of T nonimmigrant status, in accordance with 8 CFR 245.23. No separate application for extension of T nonimmigrant status, or supporting evidence, is required.

214.213Revocation of approved T nonimmigrant status.#

(a)Automatic revocation of derivative status. An approved Application for Derivative T Nonimmigrant Status will be revoked automatically if the family member with an approved derivative application notifies USCIS that they will not apply for admission to the United States. An automatic revocation cannot be appealed.

(b)Revocation on notice/grounds for revocation. USCIS may revoke an approved Application for T Nonimmigrant Status following issuance of a notice of intent to revoke if:

(1)The approval of the application violated the requirements of section 101(a)(15)(T) of the Act or this subpart or involved error in preparation, procedure, or adjudication that led to the approval;

(2)In the case of a T-2 spouse, the applicant's divorce from the T-1 principal applicant has become final;

(3)In the case of a T-1 principal applicant, an LEA with jurisdiction to detect, investigate, or prosecute the acts of severe forms of trafficking in persons notifies USCIS that the applicant has refused to comply with a reasonable request to assist with the detection, investigation, or prosecution of the trafficking in persons and provides USCIS with a detailed explanation in writing; or

(4)The LEA that signed the LEA declaration withdraws it or disavows its contents and notifies USCIS and provides a detailed explanation of its reasoning in writing.

(c)Procedures. (1) USCIS may revoke an approved application for T nonimmigrant status following a notice of intent to revoke.

(i)The notice of intent to revoke must be in writing and contain a statement of the grounds for the revocation and the time period allowed for the T nonimmigrant's rebuttal.

(ii)The T nonimmigrant may submit evidence in rebuttal within 30 days of the notice.

(d)Effect of revocation. Revocation of T-1 nonimmigrant status will terminate the principal's status as a T nonimmigrant and result in automatic termination of any derivative T nonimmigrant status. If a derivative application is pending at the time of revocation of T-1 nonimmigrant status, such pending applications will be denied. Revocation of a T-1 nonimmigrant status or derivative T nonimmigrant status also revokes any waiver of inadmissibility granted in conjunction with such application. The revocation of T-1 nonimmigrant status will have no effect on the annual numerical limit described in § 214.210.

(i)Will provide written notice to the applicant; and

(ii)May notify the LEA who signed the LEA declaration, any consular officer having jurisdiction over the applicant, or the Office of Refugee Resettlement of the Department of Health and Human Services.

(3)If an applicant appeals the revocation, the decision will not become final until the administrative appeal is decided in accordance with 8 CFR 103.3.

(iii)USCIS will consider all relevant evidence in determining whether to revoke the approved application for T nonimmigrant status.

(2)If USCIS revokes approval of the previously granted T nonimmigrant status application, USCIS:

214.214Removal proceedings.#

(a)Nothing in this section prohibits DHS from instituting removal proceedings for conduct committed after admission, or for conduct or a condition that was not disclosed prior to the granting of T nonimmigrant status, including misrepresentations of material facts in the Application for T-1 Nonimmigrant Status or in an Application for Derivative T Nonimmigrant Status, or after revocation of T nonimmigrant status.

(b)ICE will maintain a policy regarding the exercise of discretion toward all applicants for T nonimmigrant status and T nonimmigrants. This policy will address, but need not be limited to, ICE's discretionary decision-making in proceedings before the Executive Office for Immigration Review and considerations related to ICE's immigration enforcement actions involving T visa applicants and T nonimmigrants.

214.215USCIS employee referral.#

(a)Any USCIS employee who, while carrying out their official duties, comes into contact with a noncitizen believed to be a victim of a severe form of trafficking in persons and is not already working with an LEA may consult, as necessary, with the ICE officials responsible for victim protection, trafficking investigations and prevention, and deterrence.

(b)The ICE office may, in turn, refer the victim to another LEA with responsibility for detecting, investigating, or prosecuting acts of trafficking.

(c)If the noncitizen has a credible claim to victimization, USCIS may advise the individual that they can submit an Application for T Nonimmigrant Status and seek any other benefit or protection for which they may be eligible, provided doing so would not compromise the noncitizen's safety.

214.216Restrictions on use and disclosure of information relating to applicants for T nonimmigrant classification.#

(a)The use or disclosure (other than to a sworn officer or employee of DHS, the Department of Justice, the Department of State, or a bureau or agency of any of those departments, for legitimate department, bureau, or agency purposes) of any information relating to the beneficiary of a pending or approved Application for T Nonimmigrant Status is prohibited unless the disclosure is made in accordance with an exception described in 8 U.S.C. 1367(b).

(b)Information protected under 8 U.S.C. 1367(a)(2) may be disclosed to Federal prosecutors to comply with constitutional obligations to provide statements by witnesses and certain other documents to defendants in pending Federal criminal proceedings.

(c)Agencies receiving information under this section, whether governmental or non-governmental, are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. 1367.

(d)DHS officials are prohibited from making adverse determinations of admissibility or deportability based on information obtained solely from the trafficker, unless the applicant has been convicted of a crime or crimes listed in section 237(a)(2) of the Act.

214.1Requirements for admission, extension, and maintenance of status.#

(a)General—(1) Nonimmigrant classes. For the purpose of administering the nonimmigrant provisions of the Act, the following administrative subclassifications of nonimmigrant classifications as defined in section 101(a)(15) of the Act are established:

(b)Admission of nonimmigrants under section 101(a)(15)(F), (J), or (M) whose visa validity is considered automatically extended to complete unexpired periods of previous admission or extension of stay—(1) Section 101(a)(15)(F). The inspecting immigration officer may admit, up to the unexpired period of stay authorized prior to the alien's departure, any nonimmigrant alien whose nonimmigrant visa validity is considered automatically extended pursuant to 22 CFR 41.112(d) and who is applying for admission under section 101(a)(15)(F) of the Act, if the alien:

(e)Employment. (1) A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure, or section 101(a)(15)(C) of the Act as an alien in transit through this country, may not engage in any employment, except as provided in paragraph (e)(3) of this section. Any other nonimmigrant in the United States may not engage in any employment unless the nonimmigrant has been accorded a nonimmigrant classification which authorizes employment or the nonimmigrant has been granted permission to engage in employment in accordance with the provisions of this chapter.

(2)A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)(C)(i) of the Act.

(3)A crewman, admitted in transit in the C-4 class or granted temporary landing in the D-3 class, who is performing ship-to-ship liquid cargo transfer operations to or from any other vessel engaged in foreign trade is not, for immigration purposes, performing services, work, labor, or employment within the United States.

(f)False information. A condition of a nonimmigrant's admission and continued stay in the United States is the full and truthful disclosure of all information requested by DHS. A nonimmigrant's willful failure to provide full and truthful information requested by DHS (regardless of whether or not the information requested was material) constitutes a failure to maintain nonimmigrant status under section 237(a)(1)(C)(i) of the Act.

(g)Criminal activity. A condition of a nonimmigrant's admission and continued stay in the United States is obedience to all laws of United States jurisdictions which prohibit the commission of crimes of violence and for which a sentence of more than one year imprisonment may be imposed. A nonimmigrant's conviction in a jurisdiction in the United States for a crime of violence for which a sentence of more than one year imprisonment may be imposed (regardless of whether such sentence is in fact imposed) constitutes a failure to maintain status under section 241(a)(1)(C)(i) of the Act.

(h)Education privacy and F, J, and M nonimmigrants. As authorized by section 641(c)(2) of Division C of Pub. L. 104-208, 8 U.S.C. 1372, and § 2.1 of this chapter, DHS has determined that, with respect to F and M nonimmigrant students and J nonimmigrant exchange visitors, waiving the provisions of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, is necessary for the proper implementation of 8 U.S.C. 1372. An educational agency or institution may not refuse to report information concerning an F or M nonimmigrant student or a J nonimmigrant exchange visitor that the educational agency or institution is required to report under 8 U.S.C. 1372 and § 214.3(g) (or any corresponding Department of State regulation concerning J nonimmigrants) on the basis of FERPA and any regulation implementing FERPA. The waiver of FERPA under this paragraph authorizes and requires an educational agency or institution to report information concerning an F, J or M nonimmigrant that would ordinarily be protected by FERPA, but only to the extent that 8 U.S.C. 1372 and § 214.3(g) (or any corresponding Department of State regulation concerning J nonimmigrants) requires the educational agency or institution to report information.

(i)Notwithstanding this paragraph (m)(1), an F-1 student recommended for post-completion OPT who files before his or her period of admission expires, including the 60 day departure period, an Application for Employment Authorization, Form I-765, or successor form on the form and in the manner designated by USCIS, with the required fee, as described in the form's instructions, on or before March 18, 2027, is not required to file an Application to Extend/Change Nonimmigrant Status, Form I-539, or successor form for the requested period of post-completion OPT. An F-1 student recommended for STEM OPT who files, prior to the expiration of his or her current OPT Employment Authorization Document, Form I-766, or successor form, an Application for Employment Authorization, Form I-765, or successor form on or before March 18, 2027, is not required to file an Application to Extend/Change Nonimmigrant Status, Form I-539, or successor form for the requested period of STEM OPT. If the alien's application for post-completion OPT or STEM OPT employment authorization is approved, the alien will be authorized to remain in the United States in F status until the expiration date of the Employment Authorization Document, plus 60 days. If the employment authorization application is denied, the F-1 student would continue to be authorized to remain in the United States until the program end date listed on their Form I-20, valid on September 15, 2026, plus 60 days, as long as he or she continues to pursue a full course of study and otherwise meets the requirements for F-1 status, or until the end date of the Employment Authorization Document for post-completion OPT, as long as he or she continues to meet the requirements for F-1 status, plus 60 days.

(2)A TN nonimmigrant may establish that he or she is eligible for a waiver described at 8 CFR 212.15(n) by providing evidence that his or her initial admission as a TN (or TC) nonimmigrant health care worker occurred before September 23, 2003, and he or she was licensed and employed in the United States as a health care worker before September 23, 2003. Evidence may include, but is not limited to, copies of TN or TC approval notices, copies of Form I-94 Arrival/Departure Records, employment verification letters and/or pay-stubs or other employment records, and state health care worker licenses.

(ii)An F-1 student described in this paragraph (m)(1) who departs the United States before filing the application for post-completion OPT or STEM OPT, and is admitted to the United States with a fixed period of admission is required to file both an Application for Employment Authorization, Form I-765, or successor form and an Application to Extend/Change Nonimmigrant Status, Form I-539, or successor form pursuant to § 214.2(f)(11)(i)(B)(2) or (f)(11)(i)(C). An alien described in this section who departs the United States while the Application for Employment Authorization, Form I-765, or successor form is pending or once approved will be admitted pursuant to paragraph (a) of this section.

(c)Extensions of stay—(1) Extension or amendment of stay for certain employment-based nonimmigrant workers. An applicant or petitioner seeking the services of an E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1, or TN nonimmigrant beyond the period previously granted, or seeking to amend the terms and conditions of the nonimmigrant's stay without a request for additional time, must file for an extension of stay or amendment of stay, on Form I-129, with the fee prescribed in 8 CFR 106.2, with the initial evidence specified in § 214.2, and in accordance with the form instructions. Dependents holding derivative status may be included in the petition if it is for only one worker and the form version specifically provides for their inclusion. In all other cases, dependents of the worker should file extensions of stay using Form I-539.

(2)Filing for an extension of stay. Any other nonimmigrant who seeks to extend his or her stay beyond the currently authorized period of admission must apply for an extension of stay by filing an extension request in the manner and on the form prescribed by USCIS, together with the required fees and all initial evidence specified in the applicable provisions of § 214.2, and in the form instructions, including the submission of any biometrics required by 8 CFR 103.16. More than one person may be included in an application if the co-applicants are all members of a single-family unit and either all hold the same nonimmigrant status, or one holds a nonimmigrant status, and the other co-applicants are his or her spouse and/or children who hold derivative nonimmigrant status based on his or her status. Extensions granted to members of a family unit must be for the same period of time. The shortest period granted to any member of the family will be granted to all members of the family. In order to be eligible for an extension of stay, nonimmigrant aliens in K-3/K-4 status must do so in accordance with § 214.2(k)(10).

(3)Ineligible for extension of stay. A nonimmigrant in any of the following classes is ineligible for an extension of stay:

(d)Termination of status. Within the period of initial admission or extension of stay, the nonimmigrant status of an alien shall be terminated by the revocation of a waiver authorized on his or her behalf under section 212(d) (3) or (4) of the Act; by the introduction of a private bill to confer permanent resident status on such alien; or, pursuant to notification in the Federal Register, on the basis of national security, diplomatic, or public safety reasons.

(i)If the F-1 student's application for post-completion OPT or STEM OPT employment authorization is approved, the F-1 student will be authorized to remain in the United States in F status until the expiration date of the Employment Authorization Document, plus 60 days. If the employment authorization application is denied, the F-1 student would continue to be authorized to remain in the United States until the program end date listed on their Form I-20, plus 60 days, as long as he or she continues to pursue a full course of study and otherwise meets the requirements for F-1 status.

(B)Aliens seeking admission to the United States as an F nonimmigrant with a properly filed pending application for extension of stay as an F nonimmigrant may, if they have time remaining on the period of stay authorized prior to departure, be admitted for a period up to the unexpired period of stay authorized prior to the alien's departure, plus an additional 30 days as provided in § 214.2(f)(5)(v), subject to the requirements in paragraph (c)(8) of this section, or if the alien seeks admission with a Form I-20 for a program end date beyond their previously authorized period of admission, the alien may be admitted for the period specified in § 214.2(f)(5), subject to the requirements in paragraph (c)(8) of this section; and

(C)Aliens seeking admission to the United States as an F nonimmigrant with an approved extension of stay for F nonimmigrant status may be admitted until the expiration of the approved extension of stay, plus an additional 30 days, as provided in § 214.2(f)(5)(v).

(ii)F-1 students with pending employment authorization applications, other than post-completion OPT and STEM OPT, who continue to pursue a full course of study and otherwise meet the requirements for F-1 status, continue to be authorized to remain in the United States until the program end date listed on the Form I-20, plus 60 days, regardless of whether the employment authorization application is approved or denied.

(3)Transition from duration of status admission to a fixed admission period for aliens with I status present in the United States on September 15, 2026. Except for those aliens described in § 214.2(i)(3)(ii), aliens in I nonimmigrant status who are properly maintaining their status on September 15, 2026, and who were admitted for duration of status are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed May 13, 2027, with the exception of aliens in I nonimmigrant status presenting with passports described in § 214.2(i)(3)(ii), who are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed December 14, 2026. Aliens who need additional time to complete their employment beyond May 13, 2027, or December 14, 2026, as applicable, must apply for an extension of stay with USCIS in accordance with paragraph (c)(2) of this section and § 214.2(i)(5).

(4)Severability. The provisions in this paragraph (m) are intended to be independent severable parts. In the event that any provision in this paragraph (m) is not implemented, DHS intends that the remaining provisions be implemented as an independent rule. Editorial Note:For Federal Register citations affecting § 214.1, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

(5)Deference to prior USCIS determinations of eligibility. When adjudicating a request filed on Form I-129 involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of the petitioner's, applicant's, or beneficiary's eligibility. However, USCIS need not give deference to a prior approval if: there was a material error involved with a prior approval; there has been a material change in circumstances or eligibility requirements; or there is new, material information that adversely impacts the petitioner's, applicant's, or beneficiary's eligibility.

(6)Evidence of maintenance of status. When requesting an extension or amendment of stay on Form I-129, an applicant or petitioner must submit supporting evidence to establish that the applicant or beneficiary maintained the previously accorded nonimmigrant status before the extension or amendment request was filed. Evidence of such maintenance of status may include, but is not limited to: copies of paystubs, W-2 forms, quarterly wage reports, tax returns, contracts, and work orders.

(7)Decision on extension or amendment of stay request. Where an applicant or petitioner demonstrates eligibility for a requested extension or amendment of stay, USCIS may grant the extension or amendment in its discretion. The denial of an extension or amendment of stay request may not be appealed.

(8)Abandonment of extension of stay and pending employment authorization applications for F, I, and J nonimmigrant aliens. (i) If an alien in F, I, or J nonimmigrant status timely files an application for an extension of stay, USCIS will not consider the application abandoned if the alien departs the United States while the application is pending, provided that when the alien seeks admission, the previously authorized period of admission has not expired, and the alien seeks admission for the balance of the previously authorized admission period.

(B)Aliens seeking admission to the United States as a J nonimmigrant with a properly filed pending extension of stay as a J nonimmigrant may, if they have time remaining on the period of stay authorized prior to departure, be admitted for a period up to the unexpired period of stay authorized prior to the alien's departure, plus an additional 30 days as provided in § 214.2(j)(1)(ii)(C), subject to the requirements in paragraph (c)(8) of this section, provided that if the alien seeks admission with a Form DS-2019 for a program end date beyond his or her previously authorized period of admission, the alien may be admitted for the period specified in § 214.2(j)(1), subject to the requirements in paragraph (c)(8) of this section; and

(C)Aliens seeking admission to the United States as a J nonimmigrant with an approved extension of stay in J nonimmigrant status may be admitted up to the expiration of the approved extension of stay, plus an additional 30 days as provided in § 214.2(j)(1)(ii)(C).

(iii)DHS reserves the discretion to extend the period exempting the filing of the Application to Extend/Change Nonimmigrant Status, Form I-539, or successor form beyond March 18, 2027, in 6-month increments by publication of a notification in the Federal Register.

(2)Pending employment authorization applications with USCIS on September 15, 2026, filed by F-1 students. F-1 students described in paragraph (m)(1) of this section who have timely and properly filed applications for employment authorization pending with USCIS on September 15, 2026, do not have to file for an extension or re-file such applications for employment authorization, unless otherwise requested by USCIS.

(4)Requirements for admission of aliens under section 101(a)(15)(F) and (J). Aliens applying for admission as F or J nonimmigrants after September 15, 2026, will be inspected and may be admitted into the United States, if in possession of a valid Form I-20 or Form DS-2019, or successor form, and otherwise eligible, and subject to the following:

(iv)K-1, K-2;

(3)Section 101(a)(15)(M). The inspecting immigration officer may admit, up to the unexpired period of stay authorized prior to the alien's departure, any nonimmigrant alien whose nonimmigrant visa validity is considered automatically extended pursuant to 22 CFR 41.112(d) and who is applying for admission under section 101(a)(15)(M) of the Act, if the alien:

(A)A properly endorsed Form I-20 or successor form if there has been no substantive change in the information on the student's most recent Form I-20 or successor form since the form was initially issued; or

(B)A new Form I-20 or successor form if there has been any substantive change in the information on the student's most recent Form I-20 or successor form since the form was initially issued.

(2)Section 101(a)(15)(J). The inspecting immigration officer may admit, up to the unexpired period of stay authorized prior to the alien's departure, any nonimmigrant alien whose nonimmigrant visa validity is considered automatically extended pursuant to 22 CFR 41.112(d) and who is applying for admission under section 101(a)(15)(J) of the Act, if the alien:

(ix)Section 101(a)(15)(U)(ii) is divided into (U)(ii), (U)(iii), (U)(iv), and (U)(v) for the spouse, child, parent, and siblings, respectively, of a nonimmigrant classified under section 101(a)(15)(U)(i); and

(2)Classification designations. For the purpose of this chapter the following nonimmigrant designations are established. The designation in the second column may be used to refer to the appropriate nonimmigrant classification. Section Designation 101(a)(15)(A)(i) A-1. 101(a)(15)(A)(ii) A-2. 101(a)(15)(A)(iii) A-3. 101(a)(15)(B)(i) B-1. 101(a)(15)(B)(ii) B-2. 101(a)(15)(C)(i) C-1. 101(a)(15)(C)(ii) C-2. 212(d)(8) C-3. 101(a)(15)(C)(iii) C-4. 101(a)(15)(D)(i) D-1. 101(a)(15)(D)(ii) D-2. 101(a)(15)(D)(iii) D-3. 101(a)(15)(E)(i) E-1. 101(a)(15)(E)(ii) E-2. 101(a)(15)(F)(i) F-1. 101(a)(15)(F)(ii) F-2. 101(a)(15)(G)(i) G-1. 101(a)(15)(G)(ii) G-2. 101(a)(15)(G)(iii) G-3. 101(a)(15)(G)(iv) G-4. 101(a)(15)(g)(v) G-5. 101(a)(15)(H)(i)(B) H-1B. 101(a)(15)(H)(i)(C) H-1C. 101(a)(15)(H)(ii)(A) H-2A. 101(a)(15)(H)(ii)(B) H-2B. 101(a)(15)(H)(iii) H-3. 101(a)(15)(H)(iv) H-4. 101(a)(15)(I) I. 101(a)(15)(J)(i) J-1. 101(a)(15)(J)(ii) J-2. 101(a)(15)(K)(i) K-1. 101(a)(15)(K)(ii) K-3. 101(a)(15)(K)(iii) K-2; K-4. 101(a)(15)(L)(i) L-1. 101(a)(15)(L)(ii) L-2. 101(a)(15)(M)(i) M-1. 101(a)(15)(M)(ii) M-2. 101(a)(15)(N)(i) N-8. 101(a)(15)(N)(ii) N-9. 101(a)(15)(O)(i) O-1. 101(a)(15)(O)(ii) O-2. 101(a)(15)(O)(iii) O-3. 101(a)(15)(P)(i) P-1. 101(a)(15)(P)(ii) P-2. 101(a)(15)(P)(iii) P-3. 101(a)(15)(P)(iv) P-4. 101(a)(15)(Q)(i) Q-1. 101(a)(15)(Q)(ii) Q-2. 101(a)(15)(Q)(iii) Q-3. 101(a)(15)(R)(i) R-1. 101(a)(15)(R)(ii) R-2. 101(a)(15)(S)(i) S-5. 101(a)(15)(S)(ii) S-6. 101(a)(15)(S) qualified family members S-7. 101(a)(15)(T)(i) T-1 101(a)(15)(T)(ii) T-2 101(a)(15)(T)(iii) T-3 101(a)(15)(T)(iv) T-4 101(a)(15)(T)(v) T-5 101(a)(15)(T)(vi) T-6 101(a)(15)(U)(i) U-1 101(a)(15)(U)(ii) U-2, U-3, U-4, U-5 101(a)(15)(V) V-1, V-2, or V-3 USMCA, Principal TN. USMCA, Dependent TD. Visa Waiver, Business WB. Visa Waiver, Tourist WT. Note 1: The classification designation K-2 is for the child of a K-1. The classification designation K-4 is for the child of a K-3. Note 2: The classification designation V-1 is for the spouse of a lawful permanent resident; the classification designation V-2 is for the principal beneficiary of an I-130 who is the child of an LPR; the classification V-3 is for the derivative child of a V-1 or V-2 alien.

(3)General requirements. (i) Every nonimmigrant alien who applies for admission to, or an extension of stay in, the United States, must establish that he or she is admissible to the United States, or that any ground of inadmissibility has been waived under section 212(d)(3) of the Act. Upon application for admission, the alien must present a valid passport and valid visa unless either or both documents have been waived. A nonimmigrant alien's admission to the United States is conditioned on compliance with any inspection requirement in § 235.1(d) or of this chapter, as well as compliance with part 215, subpart B, of this chapter, if applicable. The passport of an alien applying for admission must be valid for a minimum of six months from the expiration date of the contemplated period of stay, unless otherwise provided in this chapter, and the alien must agree to abide by the terms and conditions of his or her admission. An alien applying for extension of stay must present a passport only if requested to do so by the Department of Homeland Security. The passport of an alien applying for extension of stay must be valid at the time of application for extension, unless otherwise provided in this chapter, and the alien must agree to maintain the validity of his or her passport and to abide by all the terms and conditions of his extension.

(v)Any nonimmigrant admitted for duration of status, except those who fall under paragraph (m) of this section;

(vi)Any nonimmigrant who is classified pursuant to section 101(a)(15)(S) of the Act beyond a total of 3 years; or

(vii)Any nonimmigrant who is classified according to section 101(a)(15)(Q)(ii) of the Act beyond a total of 3 years.

(viii)Any nonimmigrant admitted pursuant to the Guam-CNMI Visa Waiver Program, or its sub-program, the CNMI Economic Vitality & Security Travel Authorization Program (EVS-TAP), as provided in section 212(l) of the Act.

(4)Timely filing and maintenance of status. (i) An extension or amendment of stay may not be approved for an applicant or beneficiary who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that USCIS may excuse the late filing in its discretion where it is demonstrated at the time of filing that:

(A)The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and USCIS finds the delay commensurate with the circumstances;

(B)The applicant or beneficiary has not otherwise violated their nonimmigrant status;

(C)The applicant or beneficiary remains a bona fide nonimmigrant; and

(D)The applicant or beneficiary is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

(j)Extension of stay or change of status for health care worker. In the case of any alien admitted temporarily as a nonimmigrant under section 212(d)(3) of the Act and 8 CFR 212.15(n) for the primary purpose of the providing labor in a health care occupation described in 8 CFR 212.15(c), the petitioning employer may file an application or petition to extend the approval period for the alien's classification for the nonimmigrant status. If the alien is in the United States and is eligible for an extension of stay or change of status, the application or petition also serves as an application to extend the period of the alien's authorized stay or to change the alien's status. Although the application or petition may be approved, as it relates to the employer's request to classify the alien, the application for an extension of stay or change of status shall be denied if:

(1)The petitioner or applicant fails to submit the certification required by 8 CFR 212.15(a) with the petition or application to extend the alien's stay or change the alien's status; or

(2)The petition or application to extend the alien's stay or change the alien's status does include the certification required by 8 CFR 212.15(a), but the alien obtained the certification more than 1 year after the date of the alien's admission under section 212(d)(3) of the Act and 8 CFR 212.15(n). While DHS may admit, extend the period of authorized stay, or change the status of a nonimmigrant health care worker for a period of 1 year if the alien does not have certification on or before July 26, 2004 (or on or before July 26, 2005, in the case of a citizen of Canada or Mexico, who, before September 23, 2003, was employed as a TN or TC nonimmigrant health care worker and held a valid license from a U.S. jurisdiction), the alien will not be eligible for a subsequent admission, change of status, or extension of stay as a health care worker if the alien has not obtained the requisite certification 1 year after the initial date of admission, change of status, or extension of stay as a health care worker.

(k)Denial of petitions under section 214(c) of the Act based on a finding by the Department of Labor. Upon debarment by the Department of Labor pursuant to 20 CFR part 655, USCIS may deny any petition filed by that petitioner for nonimmigrant status under section 101(a)(15)(H) (except for status under sections 101(a)(15)(H)(i)(b1)), (L), (O), and (P)(i) of the Act) for a period of at least 1 year but not more than 5 years. The length of the period shall be based on the severity of the violation or violations. The decision to deny petitions, the time period for the bar to petitions, and the reasons for the time period will be explained in a written notice to the petitioner.

(l)Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.

(2)An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

(3)An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.

(m)Transition period from duration of status to a fixed admission date—(1) Transition from duration of status admission to a fixed admission period for aliens properly maintaining F and J status on September 15, 2026. Aliens with F or J status who are properly maintaining their status on September 15, 2026, and who were admitted for duration of status are authorized to remain in the United States in F or J nonimmigrant status until the later date of either the expiration date on an Employment Authorization Document, Form I-766, or successor form, or the program end date noted on their Form I-20 or Form DS-2019, as applicable, not to exceed a period of 4 years from September 15, 2026, plus the departure period of 60 days for F nonimmigrants, which is November 14, 2030, and 30 days for J nonimmigrants, which is October 15, 2030. Subject to 8 CFR 274a.14, any authorized employment or training continues until the program end date on such F or J nonimmigrant's Form I-20 or DS-2019, as applicable and as endorsed by the designated school official or responsible officer for employment or training, or expiration date on the alien's Employment Authorization Document, Form I-766, or successor form. Aliens who need additional time to complete their current program of study, including requests for post-completion optional practical training (OPT) and the Science, Technology, Engineering and Mathematics (STEM) OPT extension, or exchange visitor program, including academic training, or would like to start a new program of study or exchange visitor program must apply for an extension of stay with USCIS in accordance with paragraph (c)(2) of this section for an admission period to a fixed date.

214.11Former regulations for noncitizen victims of severe forms of trafficking in persons.#

For DHS and USCIS regulations governing Noncitizen Victims of Severe Forms of Trafficking in Persons, see subpart C of this part.

214.12[Reserved]#

214.13SEVIS fee for certain F, J, and M nonimmigrants.#

(a)Applicability. The aliens in paragraphs (a)(1) through (3) of this section are required to submit a payment in the amount indicated for their status to the Student and Exchange Visitor Program (SEVP) in advance of obtaining nonimmigrant status as an F or M student or J exchange visitor, in addition to any other applicable fees, except as otherwise provided for in this section:

(1)An alien who applies for F-1 or F-3 status in order to enroll in a program of study at an SEVP-certified institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965, as amended, or in a program of study at any other SEVP-certified academic or language training institution, including private elementary, middle, and secondary schools and public secondary schools, the amount of $350;

(2)An alien who applies for J-1 status in order to commence participation in an exchange visitor program designated by the Department of State, the amount of $220, with a reduced fee for certain exchange visitor categories as provided in paragraphs (b)(1) and (c) of this section; and

(3)An alien who applies for M-1 or M-3 status in order to enroll in a program of study at an SEVP-certified vocational educational institution, including a flight school, in the amount of $350.

(b)Aliens not subject to a fee. No SEVIS fee is required with respect to:

(1)A J-1 exchange visitor who is coming to the United States as a participant in an exchange visitor program sponsored by the Federal government, identified by a program identifier designation prefix of G-1, G-2, G-3, or G-7;

(2)Dependents of F, M, or J nonimmigrants. The principal alien must pay the fee, when required under this section, in order for his/her qualifying dependents to obtain F-2, J-2, or M-2 status. However, an F-2, J-2, or M-2 dependent is not required to pay a separate fee under this section in order to obtain that status or during the time he/she remains in that status.

(c)Special Fee for Certain J-1 Nonimmigrants. A J-1 exchange visitor coming to the United States as an au pair, camp counselor, or participant in a summer work/travel program is subject to a fee of $35.

(d)Time for payment of SEVIS fee. An alien who is subject to payment of the SEVIS fee must remit the fee directly to DHS as follows:

(1)An alien seeking an F-1, F-3, J-1, M-1, or M-3 visa from a consular officer abroad for initial attendance at an SEVP-certified school or to commence participation in a Department of State-designated exchange visitor program, must pay the fee to DHS before issuance of the visa.

(2)An alien who is exempt from the visa requirement described in section 212(d)(4) of the Act must pay the fee to DHS before the alien applies for admission at a U.S. port-of-entry to begin initial attendance at an SEVP-certified school or initial participation in a Department of State-designated exchange visitor program.

(3)A nonimmigrant alien in the United States seeking a change of status to F-1, F-3, J-1, M-1, or M-3 must pay the fee to DHS before the alien is granted the change of nonimmigrant status, except as provided in paragraph (e)(4) of this section.

(4)A J-1 nonimmigrant who is applying for a change of program category within the United States, in accordance with 22 CFR 62.42, must pay the fee associated with that new category, if any, prior to being granted such a change.

(5)A J-1 nonimmigrant initially granted J-1 status to participate in a program sponsored by the Federal government, as defined in paragraph (b)(1) of this section, and transferring in accordance with 22 CFR 62.42 to a program that is not similarly sponsored, must pay the fee associated with the new program prior to completing the transfer.

(6)A J-1 nonimmigrant who is applying for reinstatement after a substantive violation of status, or who has been out of program status for longer than 120 days but less than 270 days during the course of his/her program must pay a new fee to DHS, if applicable, prior to being granted a reinstatement to valid J-1 status.

(7)An F or M student who is applying for reinstatement of student status because of a violation of status, and who has been out of status for a period of time that exceeds the presumptive ineligibility deadline set forth in 8 CFR 214.2(f)(16)(i)(A) or (m)(16)(i)(A), must pay a new fee to DHS prior to being granted a return to valid status.

(8)An F-1, F-3, M-1, or M-3 nonimmigrant who has been absent from the United States for a period that exceeds 5 months in duration, and wishes to reenter the United States to engage in further study in the same course of study, with the exception of students who have been working toward completion of a U.S. course of study in authorized overseas study, must pay a new fee to DHS prior to being granted student status.

(e)Circumstances where no new fee is required. (1) Extension of stay, transfer, or optional practical training for students. An F-1, F-3, M-1, or M-3 nonimmigrant is not required to pay a new fee in connection with:

(f)[Reserved]

(g)Procedures for payment of the SEVIS fee—(1) Options for payment. An alien subject to payment of a fee under this section may pay the fee by any procedure approved by DHS, including:

(h)Failure to pay the fee. The failure to pay the required fee is grounds for denial of F, M, or J nonimmigrant status or status-related benefits. Payment of the fee does not preserve the lawful status of any F, J, or M nonimmigrant that has violated his or her status in some other manner.

(1)For purposes of reinstatement to F or M status, failure to pay the required fee will be considered a “willful violation” under 8 CFR 214.2(f)(16) or (m)(16), unless DHS determines that there are sufficient extenuating circumstances (as determined at the discretion of the Student and Exchange Visitor Program).

(2)For purposes of reinstatement to valid J program status, failure to pay the required fee will not be considered a “minor or technical infraction” under 22 CFR 62.45.

(i)Submission of Form I-901, to DHS by mail, along with the proper fee paid by check, money order, or foreign draft drawn on a financial institution in the United States and payable in United States currency, as provided by 8 CFR 103.7(d)(8);

(ii)Electronic submission of Form I-901 to DHS using a credit card or other electronic means of payment accepted by DHS; or,

(i)DHS will provide for an expedited delivery of the receipt, upon request and receipt of an additional fee;

(ii)If payment was made electronically, both DHS and the Department of State will accept a properly completed receipt that is printed-out electronically, in lieu of the receipt generated by DHS;

(3)Visa issuance for a continuation of study. An F-1, F-3, J-1, M-1, or M-3 nonimmigrant who has previously paid the fee is not required to pay a new fee in order to be granted a visa to return to the United States as a continuing student or exchange visitor in a single course of study, so long as the nonimmigrant is not otherwise required to pay a new fee in accordance with the other provisions in this section.

(4)Certain changes in student classification.

(5)Re-application following denial of application by consular officer. An alien who fully paid a SEVIS fee in connection with an initial application for an F-1, F-3, M-1, or M-3 visa, or a J-1 visa in a particular program category, whose initial application was denied, and who is reapplying for the same status, or the same J-1 exchange visitor category, within 12 months following the initial notice of denial is not required to repay the SEVIS fee.

(6)Re-application following denial of an application for a change of status. A nonimmigrant who fully paid a SEVIS fee in connection with an initial application for a change of status within in the United States to F-1, F-3, M-1, or M-3 classification, or for a change of status to a particular J-1 exchange visitor category, whose initial application was denied, and who is granted a motion to reopen the denied case is not required to repay the SEVIS fee if the motion to reopen is granted within 12 months of receipt of initial notice of denial.

(iii)If payment was made through an approved payment service, DHS and the Department of State will accept a properly completed receipt issued by the payment service, in lieu of the receipt generated by DHS.

(2)Receipts. DHS will provide a receipt for each fee payment under paragraph (g)(1) of this section until such time as DHS issues a notice in the Federal Register that paper receipts will no longer be necessary. Further receipt provisions include:

(3)Electronic record of fee payment. DHS will maintain an electronic record of payment for the alien as verification of receipt of the required fee under this section. If DHS records indicate that the fee has been paid, an alien who has lost or did not receive a receipt for a fee payment under this section will not be denied an immigration benefit, including visa issuance or admission to the United States, solely because of a failure to present a paper receipt of fee payment.

(4)Third-party payments. DHS will accept payment of the required fee for an alien from a certified school or a designated exchange visitor program sponsor, or from another source, in accordance with procedures approved by DHS.

(iv)An application for post-completion practical training, as provided in 8 CFR 214.2(f)(10)(ii) or (m)(14).

(2)Extension of program or transfer for exchange visitors. A J-1 nonimmigrant is not required to pay a new fee in connection with:

214.14Alien victims of certain qualifying criminal activity.#

(a)Definitions. As used in this section, the term:

(1)BIWPA means Battered Immigrant Women Protection Act of 2000 of the Victims of Trafficking and Violence Protection Act of 2000, div. B, Violence Against Women Act of 2000, tit. V, Pub. L. 106-386, 114 Stat. 1464, (2000), amended by Violence Against Women and Department of Justice Reauthorization Act of 2005, tit. VIII, Pub. L. 109-162, 119 Stat. 2960 (2006), amended by Violence Against Women and Department of Justice Reauthorization Act—Technical Corrections, Pub. L. 109-271, 120 Stat. 750 (2006).

(2)Certifying agency means a Federal, State, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity. This definition includes agencies that have criminal investigative jurisdiction in their respective areas of expertise, including, but not limited to, child protective services, the Equal Employment Opportunity Commission, and the Department of Labor.

(3)Certifying official means:

(i)The head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency; or

(ii)A Federal, State, or local judge.

(4)Indian Country is defined as:

(i)All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;

(ii)All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and

(iii)All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through such allotments.

(5)Investigation or prosecution refers to the detection or investigation of a qualifying crime or criminal activity, as well as to the prosecution, conviction, or sentencing of the perpetrator of the qualifying crime or criminal activity.

(6)Military Installation means any facility, base, camp, post, encampment, station, yard, center, port, aircraft, vehicle, or vessel under the jurisdiction of the Department of Defense, including any leased facility, or any other location under military control.

(7)Next friend means a person who appears in a lawsuit to act for the benefit of an alien under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. The next friend is not a party to the legal proceeding and is not appointed as a guardian.

(8)Physical or mental abuse means injury or harm to the victim's physical person, or harm to or impairment of the emotional or psychological soundness of the victim.

(9)Qualifying crime or qualifying criminal activity includes one or more of the following or any similar activities in violation of Federal, State or local criminal law of the United States: Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes. The term “any similar activity” refers to criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities.

(10)Qualifying family member means, in the case of an alien victim 21 years of age or older who is eligible for U nonimmigrant status as described in section 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(U), the spouse or child(ren) of such alien; and, in the case of an alien victim under the age of 21 who is eligible for U nonimmigrant status as described in section 101(a)(15)(U) of the Act, qualifying family member means the spouse, child(ren), parents, or unmarried siblings under the age of 18 of such an alien.

(11)Territories and Possessions of the United States means American Samoa, Swains Island, Bajo Nuevo (the Petrel Islands), Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa Island, Palmyra Atoll, Serranilla Bank, and Wake Atoll.

(12)U nonimmigrant status certification means Form I-918, Supplement B, “U Nonimmigrant Status Certification,” which confirms that the petitioner has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim.

(13)U interim relief refers to the interim benefits that were provided by USCIS to petitioners for U nonimmigrant status, who requested such benefits and who were deemed prima facie eligible for U nonimmigrant status prior to the publication of the implementing regulations.

(14)Victim of qualifying criminal activity generally means an alien who has suffered direct and proximate harm as a result of the commission of qualifying criminal activity.

(i)The alien spouse, children under 21 years of age and, if the direct victim is under 21 years of age, parents and unmarried siblings under 18 years of age, will be considered victims of qualifying criminal activity where the direct victim is deceased due to murder or manslaughter, or is incompetent or incapacitated, and therefore unable to provide information concerning the criminal activity or be helpful in the investigation or prosecution of the criminal activity. For purposes of determining eligibility under this definition, USCIS will consider the age of the victim at the time the qualifying criminal activity occurred.

(ii)A petitioner may be considered a victim of witness tampering, obstruction of justice, or perjury, including any attempt, solicitation, or conspiracy to commit one or more of those offenses, if:

(A)The petitioner has been directly and proximately harmed by the perpetrator of the witness tampering, obstruction of justice, or perjury; and

(B)There are reasonable grounds to conclude that the perpetrator committed the witness tampering, obstruction of justice, or perjury offense, at least in principal part, as a means:

(1)To avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring to justice the perpetrator for other criminal activity; or

(2)To further the perpetrator's abuse or exploitation of or undue control over the petitioner through manipulation of the legal system.

(iii)A person who is culpable for the qualifying criminal activity being investigated or prosecuted is excluded from being recognized as a victim of qualifying criminal activity.

(b)Eligibility. An alien is eligible for U-1 nonimmigrant status if he or she demonstrates all of the following in accordance with paragraph (c) of this section:

(1)The alien has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. Whether abuse is substantial is based on a number of factors, including but not limited to: The nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite to establish that the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse suffered was substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level;

(2)The alien possesses credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based. The alien must possess specific facts regarding the criminal activity leading a certifying official to determine that the petitioner has, is, or is likely to provide assistance to the investigation or prosecution of the qualifying criminal activity. In the event that the alien has not yet reached 16 years of age on the date on which an act constituting an element of the qualifying criminal activity first occurred, a parent, guardian or next friend of the alien may possess the information regarding a qualifying crime. In addition, if the alien is incapacitated or incompetent, a parent, guardian, or next friend may possess the information regarding the qualifying crime;

(3)The alien has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity upon which his or her petition is based, and since the initiation of cooperation, has not refused or failed to provide information and assistance reasonably requested. In the event that the alien has not yet reached 16 years of age on the date on which an act constituting an element of the qualifying criminal activity first occurred, a parent, guardian or next friend of the alien may provide the required assistance. In addition, if the petitioner is incapacitated or incompetent and, therefore, unable to be helpful in the investigation or prosecution of the qualifying criminal activity, a parent, guardian, or next friend may provide the required assistance; and

(4)The qualifying criminal activity occurred in the United States (including Indian country and U.S. military installations) or in the territories or possessions of the United States, or violated a U.S. federal law that provides for extraterritorial jurisdiction to prosecute the offense in a U.S. federal court.

(c)Application procedures for U nonimmigrant status—(1) Filing a petition. USCIS has sole jurisdiction over all petitions for U nonimmigrant status. An alien seeking U-1 nonimmigrant status must submit a Petition for U Nonimmigrant Status on the form prescribed by USCIS, and initial evidence to USCIS in accordance with this paragraph (c)(1) and the form instructions. A petitioner who received interim relief is not required to submit initial evidence with a Petition for U Nonimmigrant Status if he or she is relying on the law enforcement certification and other evidence that was submitted with the request for interim relief.

(d)Annual cap on U-1 nonimmigrant status—(1) General. In accordance with section 214(p)(2) of the Act, 8 U.S.C. 1184(p)(2), the total number of aliens who may be issued a U-1 nonimmigrant visa or granted U-1 nonimmigrant status may not exceed 10,000 in any fiscal year.

(2)Waiting list. All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

(3)Unlawful presence. During the time a petitioner for U nonimmigrant status who was granted deferred action or parole is on the waiting list, no accrual of unlawful presence under section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B), will result. However, a petitioner may be removed from the waiting list, and the deferred action or parole may be terminated at the discretion of USCIS.

(e)Restrictions on use and disclosure of information relating to petitioners for U nonimmigrant classification—(1) General. The use or disclosure (other than to a sworn officer or employee of DHS, the Department of Justice, the Department of State, or a bureau or agency of any of those departments, for legitimate department, bureau, or agency purposes) of any information relating to the beneficiary of a pending or approved petition for U nonimmigrant status is prohibited unless the disclosure is made:

(f)Admission of qualifying family members—(1) Eligibility. An alien who has petitioned for or has been granted U-1 nonimmigrant status (i.e., principal alien) may petition for the admission of a qualifying family member in a U-2 (spouse), U-3 (child), U-4 (parent of a U-1 alien who is a child under 21 years of age), or U-5 (unmarried sibling under the age of 18) derivative status, if accompanying or following to join such principal alien. A qualifying family member who committed the qualifying criminal activity in a family violence or trafficking context which established the principal alien's eligibility for U nonimmigrant status shall not be granted U-2, U-3, U-4, or U-5 nonimmigrant status. To be eligible for U-2, U-3, U-4, or U-5 nonimmigrant status, it must be demonstrated that:

(g)Duration of U nonimmigrant status—(1) In general. U nonimmigrant status may be approved for a period not to exceed 4 years in the aggregate. A qualifying family member granted U-2, U-3, U-4, and U-5 nonimmigrant status will be approved for an initial period that does not exceed the expiration date of the initial period approved for the principal alien.

(2)Extension of status. (i) Where a U nonimmigrant's approved period of stay on Form I-94 is less than 4 years, he or she may file Form I-539, “Application to Extend/Change Nonimmigrant Status,” to request an extension of U nonimmigrant status for an aggregate period not to exceed 4 years. USCIS may approve an extension of status for a qualifying family member beyond the date when the U-1 nonimmigrant's status expires when the qualifying family member is unable to enter the United States timely due to delays in consular processing, and an extension of status is necessary to ensure that the qualifying family member is able to attain at least 3 years in nonimmigrant status for purposes of adjusting status under section 245(m) of the Act, 8 U.S.C. 1255.

(h)Revocation of approved petitions for U nonimmigrant status—(1) Automatic revocation. An approved petition for U-1 nonimmigrant status will be revoked automatically if, pursuant to 8 CFR 214.14(d)(1), the beneficiary of the approved petition notifies the USCIS office that approved the petition that he or she will not apply for admission to the United States and, therefore, the petition will not be used.

(2)Revocation on notice. (i) USCIS may revoke an approved petition for U nonimmigrant status following a notice of intent to revoke. USCIS may revoke an approved petition for U nonimmigrant status based on one or more of the following reasons:

(A)The certifying official withdraws the U nonimmigrant status certification referred to in 8 CFR 214.14(c)(2)(i) or disavows the contents in writing;

(B)Approval of the petition was in error;

(C)Where there was fraud in the petition;

(D)In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the relationship to the principal petitioner has terminated; or

(E)In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the principal U-1's nonimmigrant status is revoked.

(i)The alien for whom U-2, U-3, U-4, or U-5 status is being sought is a qualifying family member, as defined in paragraph (a)(10) of this section; and

(ii)The notice of intent to revoke must be in writing and contain a statement of the grounds for the revocation and the time period allowed for the U nonimmigrant's rebuttal. The alien may submit evidence in rebuttal within 30 days of the date of the notice. USCIS shall consider all relevant evidence presented in deciding whether to revoke the approved petition for U nonimmigrant status. The determination of what is relevant evidence and the weight to be given to that evidence will be within the sole discretion of USCIS. If USCIS revokes approval of a petition and thereby terminates U nonimmigrant status, USCIS will provide the alien with a written notice of revocation that explains the specific reasons for the revocation.

(2)Filing procedures. A petitioner for U-1 nonimmigrant status may apply for derivative U nonimmigrant status on behalf of qualifying family members by submitting a Form I-918, Supplement A, “Petition for Qualifying Family Member of U-1 Recipient,” for each family member either at the same time the petition for U-1 nonimmigrant status is filed, or at a later date. An alien who has been granted U-1 nonimmigrant status may apply for derivative U nonimmigrant status on behalf of qualifying family members by submitting Form I-918, Supplement A for each family member. All Forms I-918, Supplement A must be accompanied by initial evidence and the required fees specified in the instructions to the form. Forms I-918, Supplement A that are not filed at the same time as Form I-918 but are filed at a later date must be accompanied by a copy of the Form I-918 that was filed by the principal petitioner or a copy of his or her Form I-94 demonstrating proof of U-1 nonimmigrant status, as applicable.

(i)Qualifying family members in pending immigration proceedings. The principal alien of a qualifying family member who is in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, or in exclusion or deportation proceedings initiated under former sections 236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to April 1, 1997), and who is seeking U nonimmigrant status, must file a Form I-918, Supplement A directly with USCIS. ICE counsel may agree to file, at the request of the qualifying family member, a joint motion to terminate proceedings without prejudice with the immigration judge or Board of Immigration Appeals, whichever is appropriate, while the petition for U nonimmigrant status is being adjudicated by USCIS.

(ii)Qualifying family members with final orders of removal, deportation, or exclusion. An alien who is the subject of a final order of removal, deportation, or exclusion is not precluded from filing a petition for U-2, U-3, U-4, or U-5 nonimmigrant status directly with USCIS. The filing of a petition for U-2, U-3, U-4, or U-5 nonimmigrant status has no effect on ICE's authority to execute a final order, although the alien may file a request for a stay of removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in detention pending execution of the final order, the time during which a stay is in effect will extend the period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the alien's removal.

(iii)A signed statement by the petitioner describing the facts of the victimization. The statement also may include information supporting any of the eligibility requirements set out in paragraph (b) of this section. When the petitioner is under the age of 16, incapacitated, or incompetent, a parent, guardian, or next friend may submit a statement on behalf of the petitioner; and

(iv)If the petitioner is inadmissible, Form I-192, “Application for Advance Permission to Enter as Non-Immigrant,” in accordance with 8 CFR 212.17.

(3)Appeal of a revocation of approval. A revocation on notice may be appealed to the Administrative Appeals Office in accordance with 8 CFR 103.3 within 30 days after the date of the notice of revocation. Automatic revocations may not be appealed.

(i)Evidence demonstrating the relationship of a qualifying family member, as provided in paragraph (f)(4) of this section;

(ii)If the qualifying family member is inadmissible, Form I-192, “Application for Advance Permission to Enter as a Non-Immigrant,” in accordance with 8 CFR 212.17.

(4)Effects of revocation of approval. Revocation of a principal alien's approved Form I-918 will result in termination of status for the principal alien, as well as in the denial of any pending Form I-918, Supplement A filed for qualifying family members seeking U-2, U-3, U-4, or U-5 nonimmigrant status. Revocation of a qualifying family member's approved Form I-918, Supplement A will result in termination of status for the qualifying family member. Revocation of an approved Form I-918 or Form I-918, Supplement A also revokes any waiver of inadmissibility granted in conjunction with such petition.

(i)Removal proceedings. Nothing in this section prohibits USCIS from instituting removal proceedings under section 240 of the Act, 8 U.S.C. 1229(a), for conduct committed after admission, for conduct or a condition that was not disclosed to USCIS prior to the granting of U nonimmigrant status, for misrepresentations of material facts in Form I-918 or Form I-918, Supplement A and supporting documentation, or after revocation of U nonimmigrant status.

(ii)If the principal alien was under 21 years of age at the time he or she filed Form I-918, and filed Form I-918, Supplement A for an unmarried sibling under the age of 18, USCIS will continue to consider such sibling as a qualifying family member for purposes of U nonimmigrant status even if the principal alien is no longer under 21 years of age at the time of adjudication, and even if the sibling is no longer under 18 years of age at the time of adjudication.

(5)Biometric capture and evidentiary standards. The provisions for biometric capture and evidentiary standards in paragraphs (c)(3) and (c)(4) of this section also are applicable to petitions for qualifying family members.

(i)Approval of Form I-918, generally. If USCIS determines that the petitioner has met the requirements for U-1 nonimmigrant status, USCIS will approve Form I-918. For a petitioner who is within the United States, USCIS also will concurrently grant U-1 nonimmigrant status, subject to the annual limitation as provided in paragraph (d) of this section. For a petitioner who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date of USCIS' approval of Form I-918. A petitioner who is subject to an order of exclusion, deportation, or removal issued by an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a matter of discretion, to join such a motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23.

(A)Notice of Approval of Form I-918 for U-1 petitioners within the United States. After USCIS approves Form I-918 for an alien who filed his or her petition from within the United States, USCIS will notify the alien of such approval on Form I-797, “Notice of Action,” and include Form I-94 (see § 1.4), “Arrival-Departure Record,” indicating U-1 nonimmigrant status.

(B)Notice of Approval of Form I-918 for U-1 petitioners outside the United States. After USCIS approves Form I-918 for an alien who filed his or her petition from outside the United States, USCIS will notify the alien of such approval on Form I-797, “Notice of Action,” and will forward notice to the Department of State for delivery to the U.S. Embassy or Consulate having jurisdiction over the area in which the alien is located, or, for a visa exempt alien, to the appropriate port of entry.

(ii)Denial of Form I-918. USCIS will provide written notification to the petitioner of the reasons for the denial. The petitioner may appeal a denial of Form I-918 to the Administrative Appeals Office (AAO) in accordance with the provisions of 8 CFR 103.3. For petitioners who appeal a denial of their Form I-918 to the AAO, the denial will not be deemed administratively final until the AAO issues a decision affirming the denial. Upon USCIS' final denial of a petition for a petitioner who was in removal proceedings that were terminated pursuant to 8 CFR 214.14(c)(1)(i), DHS may file a new Notice to Appear (see section 239 of the Act, 8 U.S.C. 1229) to place the individual in proceedings again. For petitioners who are subject to an order of removal, deportation, or exclusion and whose order has been stayed, USCIS' denial of the petition will result in the stay being lifted automatically as of the date the denial becomes administratively final.

(6)Decision. USCIS will issue a written decision approving or denying Form I-918, Supplement A and send notice of this decision to the U-1 principal petitioner. USCIS will include in a decision approving Form I-918 a list of nongovernmental organizations to which the qualifying family member can refer regarding his or her options while in the United States and available resources. For a qualifying family member who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date of USCIS' approval of Form I-918, Supplement A. A qualifying family member who is subject to an order of exclusion, deportation, or removal issued by an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a matter of discretion, to join such a motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23.

(i)Approvals for qualifying family members within the United States. When USCIS approves a Form I-918, Supplement A for a qualifying family member who is within the United States, it will concurrently grant that alien U-2, U-3, U-4, or U-5 nonimmigrant status. USCIS will notify the principal of such approval on Form I-797, “Notice of Action,” with Form I-94, “Arrival-Departure Record,” indicating U-2, U-3, U-4, or U-5 nonimmigrant status. Aliens who were previously granted U interim relief as defined in paragraph (a)(13) of this section will be accorded U nonimmigrant status as of the date that the request for U interim relief was approved. Aliens who are granted U-2, U-3, U-4, or U-5 nonimmigrant status are not subject to an annual numerical limit. USCIS may not approve Form I-918, Supplement A unless it has approved the principal alien's Form I-918.

(ii)Approvals for qualifying family members outside the United States. When USCIS approves Form I-918, Supplement A for a qualifying family member who is outside the United States, USCIS will notify the principal alien of such approval on Form I-797. USCIS will forward the approved Form I-918, Supplement A to the Department of State for delivery to the U.S. Embassy or Consulate having jurisdiction over the area in which the qualifying family member is located, or, for a visa exempt alien, to the appropriate port of entry.

(iii)Denial of the Form I-918, Supplement A. In accordance with 8 CFR 103.3(a)(1), USCIS will provide written notification of the reasons for the denial. The principal alien may appeal the denial of Form I-918, Supplement A to the Administrative Appeals Office in accordance with the provisions of 8 CFR 103.3. Upon USCIS' final denial of Form I-918, Supplement A for a qualifying family member who was in removal proceedings that were terminated pursuant to 8 CFR 214.14(f)(2)(i), DHS may file a new Notice to Appear (see section 239 of the INA, 8 U.S.C. 1229) to place the individual in proceedings again. For qualifying family members who are subject to an order of removal, deportation, or exclusion and whose order has been stayed, USCIS' denial of the petition will result in the stay being lifted automatically as of the date the denial becomes administratively final.

(7)Employment authorization. An alien granted U-2, U-3, U-4, or U-5 nonimmigrant status is employment authorized incident to status. To obtain an Employment Authorization Document (EAD), such alien must file Form I-765, “Application for Employment Authorization,” with the appropriate fee or a request for a fee waiver, in accordance with the instructions to the form. For qualifying family members within the United States, the Form I-765 may be filed concurrently with Form I-918, Supplement A, or at any time thereafter. For qualifying family members who are outside the United States, Form I-765 only may be filed after admission to the United States in U nonimmigrant status.

(iii)In conjunction with judicial review of a determination in a manner that protects the confidentiality of such information;

(iv)After adult petitioners for U nonimmigrant status or U nonimmigrant status holders have provided written consent to waive the restrictions prohibiting the release of information;

(ix)To federal prosecutors to comply with constitutional obligations to provide statements by witnesses and certain other documents to defendants in pending federal criminal proceedings.

(2)Agencies receiving information under this section, whether governmental or non-governmental, are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. 1367.

(3)Officials of the Department of Homeland Security are prohibited from making adverse determinations of admissibility or deportability based on information obtained solely from the perpetrator of substantial physical or mental abuse and the criminal activity.

(v)To Federal, State, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits pursuant to 8 U.S.C. 1641(c);

(vi)After a petition for U nonimmigrant status has been denied in a final decision;

(vii)To the chairmen and ranking members of the Committee on the Judiciary of the Senate or the Committee on the Judiciary of the House of Representatives, for the exercise of congressional oversight authority, provided the disclosure relates to information about a closed case and is made in a manner that protects the confidentiality of the information and omits personally identifying information (including locational information about individuals);

(viii)With prior written consent from the petitioner or derivative family members, to nonprofit, nongovernmental victims' service providers for the sole purpose of assisting the victim in obtaining victim services from programs with expertise working with immigrant victims; or

214.15Certain spouses and children of lawful permanent residents.#

(a)Aliens abroad. Under section 101(a)(15)(v) of the Act, certain eligible spouses and children of lawful permanent residents may apply for a V nonimmigrant visa at a consular office abroad and be admitted to the United States in V-1 (spouse), V-2 (child), or V-3 (dependent child of the spouse or child who is accompanying or following to join the principal beneficiary) nonimmigrant status to await the approval of:

(1)A relative visa petition;

(2)The availability of an immigrant visa number; or

(3)Lawful permanent resident (LPR) status through adjustment of status or an immigrant visa.

(b)Aliens already in the United States. Eligible aliens already in the United States may apply to the Service to obtain V nonimmigrant status for the same purpose. Aliens in the United States in V nonimmigrant status are entitled to reside in the United States as V nonimmigrants and obtain employment authorization.

(c)Eligibility. Subject to section 214(o) of the Act, an alien who is the beneficiary (including a child of the principal alien, if eligible to receive a visa under section 203(d) of the Act) of an immigrant visa petition to accord a status under section 203(a)(2)(A) of the Act that was filed with the Service under section 204 of the Act on or before December 21, 2000, may apply for V nonimmigrant status if:

(1)Such immigrant visa petition has been pending for 3 years or more; or

(2)Such petition has been approved, and 3 or more years have passed since such filing date, in either of the following circumstances:

(i)An immigrant visa is not immediately available to the alien because of a waiting list of applicants for visas under section 203(a)(2)(A) of the Act; or

(ii)The alien's application for an immigrant visa, or the alien's application for adjustment of status under section 245 of the Act, pursuant to the approval of such petition, remains pending.

(d)The definition of “pending petition.” For purposes of this section, a pending petition is defined as a petition to accord a status under section 203(a)(2)(A) of the Act that was filed with USCIS under section 204 of the Act on or before December 21, 2000, and has not been adjudicated. In addition, the petition must have been properly filed according to 8 CFR 103.2(a), and if, subsequent to filing, USCIS returns the petition to the applicant for any reason or makes a request for evidence or issues a notice of intent to deny under 8 CFR 103.2(b), the petitioner must comply with the request within the time period set by USCIS. If USCIS denies a petition but the petitioner appeals that decision, the petition will be considered pending until the administrative appeal is decided by USCIS. A petition rejected by USCIS as not properly filed is not considered to be pending.

(e)Classification process for aliens outside the United States—(1) V nonimmigrant visa. An eligible alien may obtain a V nonimmigrant visa from the Department of State at a consular office abroad pursuant to the procedures set forth in 22 CFR 41.86.

(2)Aliens applying for admission to the United States as a V nonimmigrant at a port-of-entry. Aliens applying under section 235 of the Act for admission to the United States at a port-of-entry as a V nonimmigrant must have a visa in the appropriate category. Such aliens are exempt from the ground of inadmissibility under section 212(a)(9)(B) of the Act.

(f)Application by aliens in the United States. An alien described in paragraph (c) of this section who is in the United States may apply to the Service to obtain V nonimmigrant status pursuant to the procedures set forth in this section and 8 CFR part 248. The alien must be admissible to the United States, except that, in determining the alien's admissibility in V nonimmigrant status, sections 212(a)(6)(A), (a)(7), and (a)(9)(B) of the Act do not apply.

(1)Contents of application. To apply for V nonimmigrant status, an eligible alien must submit:

(i)Form I-539, Application to Extend/Change Nonimmigrant Status, with the fee required by § 103.7(b)(1) of this chapter;

(ii)The fingerprint fee as required by § 103.2(e)(4) of this chapter;

(iii)Form I-693, Medical Examination of Aliens Seeking Adjustment of Status, without the vaccination supplement; and

(iv)Evidence of eligibility as described by Supplement A to Form I-539 and in paragraph (f)(2) of this section.

(2)Evidence. Supplement A to Form I-539 provides instructions regarding the submission of evidence. An alien applying for V nonimmigrant status with the Service should submit proof of filing of the immigrant petition that qualifies the alien for V status. Proof of filing may include Form I-797, Notice of Action, which serves as a receipt of the petition or as a notice of approval, or a receipt for a filed petition or notice of approval issued by a local district office. If the alien does not have such proof, the Service will review other forms of evidence, such as correspondence to or from the Service regarding a pending petition. If the alien does not have any of the items previously mentioned in this paragraph, but believes he or she is eligible for V nonimmigrant status, he or she should state where and when the petition was filed, the name and alien number of the petitioner, and the names of all beneficiaries (if known).

(g)Period of admission—(1) Spouse of an LPR. An alien admitted to the United States in V-1 nonimmigrant status (or whose status in the United States is changed to V-1) will be granted a period of admission not to exceed 2 years.

(2)Child of an LPR or derivative child. An alien admitted to the United States in V-2 or V-3 nonimmigrant status (or whose status in the United States is changed to V-2 or V-3) will be granted a period of admission not to exceed 2 years or the day before the alien's 21st birthday, whichever comes first.

(3)Extension of status. An alien may apply to the Service for an extension of V nonimmigrant status pursuant to this part and 8 CFR part 248. Aliens may apply for the extension of V nonimmigrant status, submitting Form I-539, and the associated filing fee, on or before 120 days before the expiration of their status. If approved, the Service will grant an extension of status to aliens in V nonimmigrant status who remain eligible for V nonimmigrant status for a period not to exceed 2 years, or in the case of a child in V-2 or V-3 status, the day before the alien's 21st birthday, whichever comes first.

(4)Special rules. The following special rules apply with respect to aliens who have a current priority date in the United States, but do not have a pending application for an immigrant visa abroad or an application to adjust status.

(i)For an otherwise eligible alien who applies for admission to the United States in a V nonimmigrant category at a designated Port-of-Entry and has a current priority date but does not have a pending immigrant visa abroad or application for adjustment of status in the United States, the Service will admit the alien for a 6-month period (or to the date of the day before the alien's 21st birthday, as appropriate).

(ii)For such an alien in the United States who applies for extension of V nonimmigrant status, the Service will grant a one-time extension not to exceed 6 months.

(iii)If the alien has not filed an application, either for adjustment of status or for an immigrant visa within that 6-month period, the alien cannot extend or be admitted or readmitted to V nonimmigrant status. If the alien does file an application, either for adjustment of status or for an immigrant visa within the time allowed, the alien will continue to be eligible for further extensions of V nonimmigrant status as provided in this section while that application remains pending.

(h)Employment authorization. An alien in V nonimmigrant status may apply to the Service for employment authorization pursuant to this section and § 274a.12(a)(15) of this chapter. An alien must file Form I-765, Application for Employment Authorization, with the fee required by 8 CFR 103.7. The Service will grant employment authorization to aliens in V nonimmigrant status who remain eligible for V nonimmigrant status valid for a period equal to the alien's authorized admission as a V nonimmigrant.

(i)The denial, withdrawal, or revocation of the Form I-130, Petition for Immediate Relative, filed on behalf of that alien;

(2)V nonimmigrants with a pending Form I-485. An alien in V nonimmigrant status with a pending Form I-485 (Application to Register Permanent Residence or Adjust Status) that was properly filed with the Service does not have to obtain advance parole in order to prevent the abandonment of that application when the alien departs the United States.

(3)Unlawful presence—(i) Nonimmigrant admission. An alien otherwise eligible for admission as a V nonimmigrant is not subject to the ground of inadmissibility under section 212(a)(9)(B) of the Act. This is true even if the alien had accrued more than 180 days of unlawful presence in the United States and is applying for admission as a nonimmigrant after travel abroad.

(ii)The denial or withdrawal of the immigrant visa application filed by that alien;

(iii)The denial or withdrawal of the alien's application for adjustment of status to that of lawful permanent residence;

(iv)The V-1 spouse's divorce from the LPR becomes final; or

(v)The marriage of an alien in V-2 or V-3 status.

(2)Dependents. When a principal alien's V nonimmigrant status is terminated, the V nonimmigrant status of any alien listed as a V-3 dependent or who is seeking derivative benefits is also terminated.

(3)Appeals. If the denial of the immigrant visa petition is appealed, the alien's V nonimmigrant status does not terminate until 30 days after the administrative appeal is dismissed.

(4)Violations of status. Nothing in this section precludes the Service from immediately initiating removal proceedings for other violations of an alien's V nonimmigrant status.

(j)Termination of status—(1) General. The status of an alien admitted to the United States as a V nonimmigrant under section 101(a)(15)(V) of the Act shall be automatically terminated 30 days following the occurrence of any of the following:

(k)Naturalization of the petitioner. If the lawful permanent resident who filed the qualifying Form I-130 immigrant visa petition subsequently naturalizes, the V nonimmigrant status of the spouse and any children will terminate after his or her current period of admission ends. However, in such a case, the alien spouse or child will be considered an immediate relative of a U.S. citizen as defined in section 201(b) of the Act and will immediately be eligible to apply for adjustment of status and related employment authorization. If the V-1 spouse or V-2 child had already filed an application for adjustment of status by the time the LPR naturalized, a new application for adjustment will not be required.

(l)Aliens in proceedings. An alien who is already in immigration proceedings and believes that he or she may have become eligible to apply for V nonimmigrant status should request before the immigration judge or the Board, as appropriate, that the proceedings be administratively closed (or before the Board that a previously-filed motion for reopening or reconsideration be indefinitely continued) in order to allow the alien to pursue an application for V nonimmigrant status with the Service. If the alien appears eligible for V nonimmigrant status, the immigration judge or the Board, whichever has jurisdiction, shall administratively close the proceeding or continue the motion indefinitely. In the event that the Service finds an alien eligible for V nonimmigrant status, the Service can adjudicate the change of status under this section. In the event that the Service finds an alien ineligible for V nonimmigrant status, the Service shall recommence proceedings by filing a motion to re-calendar.

214.2Special requirements for admission, extension, and maintenance of status.#

Table 1 to § 214.2—Section Contents (a) Foreign government officials (b) Visitors (c) Transits (d) Crewmen (e) Treaty traders and investors (f) Students in colleges, universities, seminaries, conservatories, academic high schools, elementary schools, other academic institutions, and in language training programs (g) Representatives to international organizations (h) Temporary employees (i) Representatives of information media (j) Exchange visitors (k) Spouses, Fiancées, and Fiancés of United States Citizens (l) Intracompany transferees (m) Students in established vocational or other recognized nonacademic institutions, other than in language training programs (n) Certain parents and children of section 101(a)(27)(I) special immigrants (o) Aliens of extraordinary ability or achievement (p) Artists, athletes, and entertainers (q) Cultural visitors (r) Religious workers (s) NATO nonimmigrant aliens (t) Alien witnesses and informants (u) [Reserved] (v) Certain spouses and children of LPRs (w) CNMI-Only Transitional Worker (CW-1) The general requirements in § 214.1 are modified for the following nonimmigrant classes:

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

(2)Definition of A-1 or A-2 dependent. For purposes of employment in the United States, the term dependent of an A-1 or A-2 principal alien, as used in § 214.2(a), means any of the following immediate members of the family habitually residing in the same household as the principal alien who is an officer or employee assigned to a diplomatic or consular office in the United States:

(i)Spouse;

(ii)Unmarried children under the age of 21;

(iii)Unmarried sons or daughters under the age of 23 who are in full-time attendance as students at post-secondary educational institutions;

(iv)Unmarried sons or daughters under the age of 25 who are in full-time attendance as students at post-secondary educational institutions if a formal bilateral employment agreement permitting their employment in the United States was signed prior to November 21, 1988, and such bilateral employment agreement does not specify 23 as the maximum age for employment of such sons and daughters. The Office of Protocol of the Department of State shall maintain a listing of foreign states with which the United States has such bilateral employment agreements;

(v)Unmarried sons or daughters who are physically or mentally disabled to the extent that they cannot adequately care for themselves or cannot establish, maintain or re-establish their own households. The Department of State or the Service may require certification(s) as it deems sufficient to document such mental or physical disability; or

(vi)An immediate family member of an A-1 or A-2 principal alien described in 22 CFR 41.21(a)(3)(i) to (iv) with A-1 or A-2 nonimmigrant status, who falls within a category of aliens recognized by the Department of State as qualifying dependents.

(3)Applicability of a formal bilateral agreement or an informal de facto arrangement for A-1 or A-2 dependents. The applicability of a formal bilateral agreement shall be based on the foreign state which employs the principal alien 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.

(b)Visitors—(1) General. Any B-1 visitor for business or B-2 visitor for pleasure may be admitted for not more than one year and may be granted extensions of temporary stay in increments of not more than six months each, except that alien members of a religious denomination coming temporarily and solely to do missionary work in behalf of a religious denomination may be granted extensions of not more than one year each, provided that such work does not involve the selling of articles or the solicitation or acceptance of donations. Those B-1 and B-2 visitors admitted pursuant to the waiver provided at § 212.1(e) of this chapter may be admitted to and stay on Guam for period not to exceed fifteen days and are not eligible for extensions of stay.

(1)With a group of passengers on a bus tour that has begun in, and will return to, the territory of another Party.

(2)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.

(C)Marketing. (1) Market researchers and analysts conducting independent research or analysis, or research or analysis for an enterprise located in the territory of another Party.

(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 supplying services.

(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, 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.)

(F)After-sales services. Installers, repair and maintenance personnel, and supervisors, possessing specialized knowledge essential to the seller's contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside the United States, during the life of the warranty or service agreement. (For the purposes of this provision, the commercial or industrial equipment or machinery, including computer software, must have been manufactured outside the United States.)

(G)General service. Professionals engaging in a business activity at a professional level in a profession set out in Appendix 2 to Annex 16-A of Chapter 16 of the USMCA, 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 16-A of the USMCA.

(H)Commercial transactions. (1) Management and supervisory personnel engaging in commercial transactions for an enterprise located in the territory of another Party.

(I)Public relations and advertising. Public relations and advertising personnel consulting with business associates, or attending or participating in conventions.

(J)Tourism. 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.)

(K)Tour bus operation. Tour bus operators entering the United States:

(3)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.

(L)Translation. Translators or interpreters performing services as employees of an enterprise located in the territory of another Party.

(4)Admission of aliens pursuant to the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA). A citizen of Canada or Mexico seeking temporary entry for purposes set forth in paragraph (b)(4)(i) of this section, who otherwise meets the 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.

(i)Occupations and professions set forth in Section B of Appendix 1 of Chapter 16 of the USMCA—(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.)

(c)Transits—(1) Immediate and continuous transit through the United States. An alien of the class defined in section 101(a)(15)(C)(i) of the Act may be admitted for a period not to exceed 29 days.

(2)United Nations Headquarters District. An alien of the class defined in section 101(a)(15)(C)(ii) 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 the alien proceed directly to the immediate vicinity of the United Nations Headquarters District, and remain there continuously, departing therefrom only if required in connection with the alien's departure from the United States, and that the alien have a document establishing the ability to enter some country other than the United States following the alien's 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)Foreign government officials transiting through the United States. An alien of the class defined in section 212(d)(8) of the Act may be admitted for a period not to exceed 29 days.

(4)Lightering crew. An alien of the class defined in section 101(a)(15)(C)(iii) of the Act may be admitted for a period not to exceed 180 days.

(d)Crewmen—(1) General provisions. (i) 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.

(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:

(f)Students in colleges, universities, seminaries, conservatories, academic high schools, elementary schools, other academic institutions, and in language training programs. Table 2 to Paragraph (f)—Paragraph Contents (1) Admission of student (2) Form I-20 or successor form (3) Admission of the spouse and minor children of an F-1 student (4) Temporary absence (5) Period of stay (6) Full course of study (7) Extension of stay (8) School transfer and change of educational objectives (9) Employment (10) Practical training (11) OPT application and approval process (12) Reporting while on optional practical training (13) Temporary absence from the United States of F-1 student granted employment authorization (14) Effect of strike or other labor dispute (15) Spouse and children of F-1 student (16) Reinstatement to student status (17) Current name and address (18) Special rules for certain border commuter students (19) Remittance of the fee (20) Severability

(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 Form I-20 or successor form issued in the student's name by a school certified by the Student and Exchange Visitor Program (SEVP) for attendance by F-1 foreign students;

(B)The student has documentary evidence of financial support in the amount indicated on the Form I-20 or successor form;

(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 Form I-20 or successor form); 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.

(g)Representatives to international organizations—(1) General. The determination by a consular officer prior to admission and the recognition by the Secretary of State subsequent to admission is evidence of the proper classification of a nonimmigrant under section 101(a)(15)(G) of the Act. An alien who has a nonimmigrant status under section 101(a)(15)(G) (i), (ii), (iii) or (iv) of the Act is to be admitted for the duration of the period for which the alien continues to be recognized by the Secretary of State as being entitled to that status. An alien defined in section (101)(a)(15)(G)(v) of the Act is to be admitted for an initial period of not more than three years, and may be granted extensions of temporary stay in increments of not more than two years. In addition, the application for extension of temporary stay must be accompanied by a statement signed by the employing official stating that he or she intends to continue to employ the applicant and describing the type of work the applicant will perform.

(2)Definition of G-1, G-3, or G-4 dependent. For purposes of employment in the United States, the term dependent of a G-1, G-3, or G-4 principal alien, as used in § 214.2(g), means any of the following immediate members of the family habitually residing in the same household as the principal alien who is an officer or employee assigned to a mission, to an international organization, or is employed by an international organization in the United States:

(i)Spouse;

(ii)Unmarried children under the age of 21;

(iii)Unmarried sons or daughters under the age of 23 who are in full-time attendance as students at post-secondary educational institutions;

(iv)Unmarried sons or daughters under the age of 25 who are in full-time attendance as students at post-secondary educational institutions if a formal bilateral employment agreement permitting their employment in the United States was signed prior to November 21, 1988, and such bilateral employment agreement does not specify 23 as the maximum age for employment of such sons and daughters. The Office of Protocol of the Department of State shall maintain a listing of foreign states which the United States has such bilateral employment agreements. The provisions of this paragraph apply only to G-1 and G-3 dependents under certain bilateral agreements and are not applicable to G-4 dependents;

(v)Unmarried sons or daughters who are physically or mentally disabled to the extent that they cannot adequately care for themselves or cannot establish, maintain, or re-establish their own households. The Department of State or the Service may require certification(s) as it deems sufficient to document such mental or physical disability; or

(vi)An immediate family member of a G-1, G-3, or G-4 principal alien described in 22 CFR 41.21(a)(3)(i) to (iv) with G-1, G-3, or G-4 nonimmigrant status who falls within a category of aliens designated by the Department of State as qualifying dependents.

(3)Applicability of a formal bilateral agreement or an informal de facto arrangement for G-1 and G-3 dependents. The applicability of a formal bilateral agreement shall be based on the foreign state which employs the principal alien and not on the nationality of the principal alien or dependent. The applicability of an informal de facto arrangement shall be based on the foreign state which employs the principal alien, but under a de facto arrangement the principal alien also must be a national of the foreign state which employs him or her in the United States.

(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 paragraph (g)(6) of this section.

(h)Temporary employees. Table 3 to Paragraph (h)—Paragraph Contents (1) Admission of temporary employees (2) Petitions (3) Petition for registered nurse (H-1C) (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 field of fashion modeling (H-1B) (5) Petition for alien to perform agricultural labor or services of a temporary or seasonal nature (H-2A) (6) Petition for alien to perform temporary nonagricultural services or labor (H-2B) (7) Petition for alien trainee or participant in a special education exchange visitor program (H-3) (8) Numerical limits (9) Approval and validity of petition (10) Denial of petition (11) Revocation of approval of petition (12) Appeal of a denial or a revocation of a petition (13) Admission (14) Extension of visa petition validity (15) Extension of stay (16) Effect of approval of a permanent labor certification or filing of a preference petition on H classification (17) Effect of a strike (18) Use of approval notice, Form I-797 (19) Additional fee for filing certain H-1B petitions (20) Retaliatory action claims (21) Change of employers during COVID-19 National Emergency (August 19, 2020 through December 17, 2020) (22) Change of employers during COVID-19 National Emergency (December 18, 2020 through June 16, 2021) (23) Change of employers and extensions beyond 3 years during COVID-19 National Emergency for H-2B aliens essential to the U.S. food supply chain (24) Severability (25) [Reserved] (26) Change of employers and portability for H-2B workers (May 25, 2021 through November 22, 2021) (27) Change of employers and portability for H-2B workers (January 28, 2022 through July 27, 2022) (28) Change of employers and portability for H-2B workers (July 28, 2022 through January 24, 2023) (29)-(30) [Reserved] (31) Change of employers and portability for H-2B workers (January 25, 2024 through January 24, 2025). (32) Change of employers and portability for H-2B workers (January 25, 2025 through January 24, 2026).

(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.

(i)Possesses critical reliable information concerning a criminal organization or enterprise;

(ii)Use. DHS may provide such semiannual reports to other federal partners, including DOL for investigative or other use as the DOL may deem appropriate. Failure to comply with the requirements of paragraph (w)(26) of this section may be a basis for revocation of an approved petition as provided in paragraph (w)(27) of this section, or for denial of subsequent petitions filed by the employer.

(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)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;

(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.

(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.

(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.

(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 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.

(M)Director means a Service Center director with delegated authority at 8 CFR 103.1.

(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.

(5)Nonimmigrant intent. An alien classified under section 101(a)(15)(E) of the Act shall maintain an intention to depart the United States upon the expiration or termination of E-1 or E-2 status. However, an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.

(6)Treaty country. A treaty country is, for purposes of this section, a foreign state with which a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under section 101(a)(15)(E) of the Act by specific legislation.

(7)Treaty country nationality. The nationality of an individual treaty trader or treaty investor is determined by the authorities of the foreign state of which the alien is a national. In the case of an enterprise or organization, ownership must be traced as best as is practicable to the individuals who are ultimately its owners.

(8)Terms and conditions of E treaty status—(i) Limitations on employment. The Service determines the terms and conditions of E treaty status at the time of admission or approval of a request to change nonimmigrant status to E classification. A treaty trader, treaty investor, or treaty employee may engage only in employment which is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status.

(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)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;

(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

(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.

(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;

(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:

(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)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;

(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)Traded professional P-1 athletes. In the case of a professional P-1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new application or petition for P-1 nonimmigrant classification. If a new application or petition is not filed within 30 days, employment authorization will cease. If a new application or petition 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.

(5)Extension of stay or readmission. An R-1 alien who is maintaining status or is seeking readmission and who satisfies the eligibility requirements of this section may be granted an extension of R-1 stay or readmission in R-1 status for the validity period of the petition, up to 30 months, provided the total period spent in R-1 status does not exceed a maximum of 5 years. A Petition for a Nonimmigrant Worker to request an extension of R-1 status must be filed by the employer with a supplement prescribed by USCIS containing attestations required by this section, the fee specified in 8 CFR part 106, and the supporting evidence, in accordance with the applicable form instructions.

(6)Limitation on total stay. An alien who has spent five years in the United States in R-1 status may not receive an extension of stay in the United States as an R-1 nonimmigrant. The alien must depart the United States after reaching the maximum five-year admission period of being physically present in the United States to be eligible to be readmitted as an R-1 nonimmigrant. There is no minimum period of time that the alien must remain outside of the United States after reaching the maximum five-year admission period before seeking readmission as an R-1 nonimmigrant, provided all other eligibility requirements are met. The limitations in this paragraph will not apply to R-1 aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitations will 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, both the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof consists of evidence such as arrival and departure records, transcripts of processed income tax returns, and records of employment abroad.

(7)Jurisdiction and procedures for obtaining R-1 status. An employer in the United States seeking to employ a religious worker, by initial petition or by change of status, shall file a petition in accordance with the applicable form instructions.

(8)Attestation. An authorized official of the prospective employer of an R-1 alien must complete, sign and date an attestation prescribed by USCIS and submit it along with the petition. The prospective employer must specifically attest to all of the following:

(i)A current Form I-20 or successor form properly endorsed by the DSO for reentry if there has been no substantive change to the most recent Form I-20 or successor form information; or

(A)Was lawfully admitted to the CNMI in long-term investor status under the immigration laws of the CNMI before the transition program effective date and had that status on the transition program effective date;

(B)Has continuously maintained residence in the CNMI;

(C)Is otherwise admissible to the United States; and

(D)Maintains the investment or investments that formed the basis for such long-term investment status.

(ii)Exemptions. From January 10, 1978 until December 31, 1983, any alien who has come to or seeks to come to the United States as an exchange visitor to participate in an accredited program of graduate medical education or training, or any alien who seeks to change nonimmigrant status for that purpose, may be admitted to participate in such program without regard to the requirements stated in subparagraphs (A) and (B)(ii)(I) of section 212(j)(1) of the Act if a substantial disruption in the health services provided by such program would result from not permitting the alien to participate in the program: Provided that the exemption will not increase the total number of aliens then participating in such programs to a level greater than that participating on January 10, 1978.

(5)Remittance of the fee. An alien who applies for J-1 nonimmigrant status in order to commence participation in a Department of State-designated exchange visitor program is required to pay the SEVIS fee to DHS, pursuant to 8 CFR 214.13, except as otherwise provided in that section.

(6)Severability. The provisions in this paragraph (j) are intended to be independent severable parts. In the event that any provision in this paragraph (j) is not implemented, DHS intends that the remaining provisions be implemented as an independent rule.

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

(A)Approved investment or residence means an investment or residence approved by the CNMI government.

(B)Approval letter means a letter issued by the CNMI government certifying the acceptance of an approved investment subject to the minimum investment criteria and standards provided in 4 N. Mar. I. Code section 5941 et seq. (long-term business certificate), 4 N. Mar. I. Code section 5951 et seq. (foreign investor certificate), and 4 N. Mar. I. Code section 50101 et seq. (foreign retiree investment certificate).

(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.

(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 16-A of Chapter 16 of the USMCA if:

(C)Certificate means a certificate or certification issued by the CNMI government to an applicant whose application has been approved by the CNMI government.

(D)Continuously maintained residence in the CNMI means that the alien has maintained his or her residence within the CNMI since being lawfully admitted as a long-term investor and has been physically present therein for periods totaling at least half of that time. Absence from the CNMI for any continuous period of more than six months but less than one year after such lawful admission shall break the continuity of such residence, unless the subject alien establishes to the satisfaction of DHS that he or she did not in fact abandon residence in the CNMI during such period. Absence from the CNMI for any period of one year or more during the period for which continuous residence is required shall break the continuity of such residence.

(E)Public organization means a CNMI public corporation or an agency of the CNMI government.

(F)Transition period means the period beginning on the transition program effective date and ending on December 31, 2029.

(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.

(2)Student maintenance of Form I-20 or successor form. An F-1 student is expected to retain for safekeeping the initial Form I-20 or successor form bearing the admission number and any subsequent Form I-20 issued to them. Should the student lose their current Form I-20 or successor form, a replacement copy bearing the same information as the lost copy, including any endorsement for employment and notations, should be issued by the designated school official (DSO) as defined in § 214.3(l)(1).

(3)Admission of the spouse and minor children of an F-1 student. The spouse and minor children accompanying an F-1 student are eligible for admission in F-2 status if the student is admitted in F-1 status. The spouse and minor children following-to-join an F-1 student are eligible for admission to the United States in F-2 status if they are able to demonstrate that the F-1 student has been admitted and is, or will be within 30 days, enrolled in a full course of study, or engaged in approved practical training following completion of studies. In either case, at the time they seek admission, the eligible spouse and minor children of an F-1 student must individually present a Form I-20 or successor form in the name of each F-2 dependent issued by a school certified by SEVP for attendance by F-1 students. A new Form I-20 or successor form 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 an SEVP-certified educational institution, if the student presents:

(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:

(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:

(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 the form prescribed by USCIS, with required accompanying documents, in accordance with § 214.1 and the instructions on that form.

(21)Change of nonimmigrant 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 the form prescribed by USCIS, 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 the form prescribed by USCIS.

(A)Long-term business investor. An alien who has an approved investment of at least $50,000 in the CNMI, as evidenced by a Long-Term Business Certificate.

(B)Foreign investor. An alien in the CNMI who has invested either a minimum of $100,000 in an aggregate approved investment in excess of $2,000,000, or a minimum of $250,000 in a single approved investment, as evidenced by a Foreign Investment Certificate.

(C)Retiree investor. An alien in the CNMI who:

(1)Is over the age of 55 years and has invested a minimum of $100,000 in an approved residence on Saipan or $75,000 in an approved residence on Tinian or Rota, as evidenced by a Foreign Retiree Investment Certification; or

(2)Is over the age of 55 years and has invested a minimum of $150,000 in an approved residence to live in the CNMI, as evidenced by a Foreign Retiree Investment Certificate.

(iv)Extension of stay. A program end date as indicated on the Form DS-2019 or successor form, standing alone, does not allow aliens with J status to remain in the United States in lawful status. An alien in J-1 status seeking to extend his or her stay beyond the currently authorized period of admission must apply for an extension of stay, including if a sponsor issues a Form DS-2019 or successor form extending an alien's program end date for any reason, including for a request for reinstatement, academic training, change of program, or program extension or the alien requires additional time to complete his or her program.

(23)Special procedures for classifying foreign investors in the Commonwealth of the Northern Mariana Islands (CNMI) as E-2 nonimmigrant treaty investors under title VII of the Consolidated Natural Resources Act of 2008 (Pub. L. 110-229), 48 U.S.C. 1806.

(A)Form. To request an extension of stay, an alien in J status must file an extension of stay application on the form and in the manner designated by USCIS, including submitting the valid Form DS-2019 or successor form, appearing for any biometrics collection required by 8 CFR 103.16, and remitting the appropriate fee.

(B)Timely filing. An extension of stay application is considered timely filed if the receipt date, pursuant to 8 CFR 103.2(a)(7), is on or before the date the authorized admission period expires. USCIS must receive the extension of stay application on or before the expiration of the authorized period of admission, which includes the 30-day period of preparation for departure. If the extension application is received during the 30-day period provided in paragraph (j)(1)(ii)(C) of this section following the completion of the exchange visitor program, the alien in J-1 status may continue to participate in his or her exchange visitor program.

(C)Length of extensions. Subject to the restrictions in the regulations at 22 CFR part 62, extensions of stay may be granted for a period up to the length of the program, as listed on the Form DS-2019, or successor form, not to exceed 4-years, unless the J-1 exchange visitor is otherwise restricted by regulations at 22 CFR part 62. The 30-day period before the indicated report date or program start date and 30 additional days following the program end date or the maximum period of admission do not count towards the maximum length of an extension.

(D)Late requests for extension of current program end date. If the responsible officer must update the program status or program end date for an exchange visitor after the program end date listed on the most recent Form DS-2019 (or its successor), the sponsor is required to submit the necessary correction or reinstatement in the manner and timeframe required by the Department of State. Once the record is corrected or reinstated, the J-1 exchange visitor must submit a request for an extension of stay to USCIS within 30 days of the status update.

(E)Dependents. A J-2 spouse and unmarried children under the age of 21 seeking to accompany the J-1 exchange visitor during the additional period of admission must either be included on the primary applicant's request for extension or file their own extension of stay applications on the form designated by USCIS, including any biometrics required by 8 CFR 103.16. USCIS must receive the extension of stay applications on or before the expiration of the previously authorized period of admission, including the 30-day period following the completion of the program provided in paragraph (j)(1)(ii)(C) of this section, as indicated on the J-2 dependent's Form I-94 or successor form. J-2 dependents must demonstrate the qualifying relationship with the principal J-1 exchange visitor, be maintaining status, and not have engaged in any unauthorized employment. Extensions of stay for J-2 dependents may not exceed the authorized admission period of the principal J-1 exchange visitor.

(F)Denials. If an alien's extension of stay application is denied, and the alien's authorized admission period has expired, he or she and his or her dependents must immediately depart the United States.

(ix)Current name and address. A J-1 exchange visitor must inform DHS 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 calendar 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 reporting requirement in 8 CFR 265.1 by providing a notice of a change of address within 10 calendar days to the responsible officer, who in turn shall enter the information in SEVIS within 10 business days of notification by the exchange visitor. In cases where an exchange visitor provides the sponsor a mailing address that is different than his or her actual physical address, he or she is responsible for providing the sponsor his or her actual physical location of residence. The exchange visitor program sponsor is responsible for maintaining a record of, and must provide upon request from DHS, 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.

(v)Employment of J-2 dependents. The accompanying spouse or unmarried children under the age of 21 of a J-1 exchange visitor may only engage in employment if authorized by USCIS. The employment authorization is valid only if the J-1 is maintaining status, and the J-2 employment authorization dates may not exceed the J-1 principal alien's authorized stay as indicated on Form I-94. An application for employment authorization must be filed in the manner prescribed by USCIS, together with the required fee and any additional evidence required in the filing instructions. Income from the J-2 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 exchange visitor. If the requested period of employment authorization exceeds the current admission period, the J-2 dependent must file an extension of stay application or be included in the J-1 principal's extension of stay application, in addition to the application for employment authorization, in the manner designated by USCIS, with the required fee and in accordance with form instructions.

(vi)Automatic extension of J-1 authorized period of stay and grant of employment authorization for aliens who are the beneficiaries of a cap-subject H-1B petition. USCIS may, by notification in the Federal Register, at any time it 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 deemed necessary to complete the adjudication of the H-1B petition, the status of any J-1 alien on behalf of whom an employer has timely filed an H-1B petition requesting change of status. The alien, in accordance with 8 CFR part 248, must not have violated the terms of his or her nonimmigrant stay and not be subject to the 2-year foreign residence requirement at section 212(e) of the Act. Any J-1 exchange visitor whose 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 (j)(1)(vi) also applies to the J-2 dependent alien.

(A)Required evidence of admission includes a valid unexpired foreign passport and a properly endorsed CNMI admission document (e.g., entry permit or certificate) reflecting lawful admission to the CNMI in long-term business investor, foreign investor, or retiree foreign investor status.

(B)Required evidence of long-term investor status includes:

(1)An unexpired Long-Term Business Certificate, in the case of an alien in long-term business investor status.

(2)An unexpired Foreign Investment Certificate, in the case of an alien in foreign investor status.

(3)A Foreign Retiree Investment Certification or a Foreign Retiree Investment Certificate, in the case of an alien in retiree investor status.

(C)Required evidence that the long-term investor is maintaining his or her investment includes all of the following, as applicable:

(1)An approval letter issued by the CNMI government.

(2)Evidence that capital has been invested, including bank statements showing amounts deposited in CNMI business accounts, invoices, receipts or contracts for assets purchased, stock purchase transaction records, loan or other borrowing agreements, land leases, financial statements, business gross tax receipts, or any other agreements supporting the application.

(3)Evidence that the applicant has invested at least the minimum amount required, including evidence of assets which have been purchased for use in the enterprise, evidence of property transferred from abroad for use in the enterprise, evidence of monies transferred or committed to be transferred to the new or existing enterprise in exchange for shares of stock, any loan or mortgage, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the applicant.

(4)A comprehensive business plan for new enterprises.

(5)Articles of incorporation, by-laws, partnership agreements, joint venture agreements, corporate minutes and annual reports, affidavits, declarations, or certifications of paid-in capital.

(6)Current business licenses.

(7)Foreign business registration records, recent tax returns of any kind, evidence of other sources of capital.

(8)A listing of all resident and nonresident employees.

(9)A listing of all holders of business certificates for the business establishment.

(10)A listing of all corporations in which the applicant has a controlling interest.

(11)In the case of a holder of a certificate of foreign investment, copies of annual reports of investment activities in the CNMI containing sufficient information to determine whether the certificate holder is under continuing compliance with the standards of issuance, accompanied by annual financial audit reports performed by an independent certified public accountant.

(12)In the case of an applicant who is a retiree investor, evidence that he or she has an interest in property in the CNMI (e.g., lease agreement), evidence of the value of the property interest (e.g., an appraisal regarding the value of the property), and, as applicable, evidence of the value of the improvements on the property (e.g., receipts or invoices of the costs of construction, the amount paid for a preexisting structure, or an appraisal of improvements).

(vii)Pending extension of stay applications and employment authorization. (A) An alien whose J-1 status, as indicated on the alien's Arrival/Departure Record, Form I-94, has expired but who has timely filed an extension of stay application is authorized to continue engaging in authorized employment and activities consistent with pursuing the terms and conditions of the alien's program objectives and including authorized training, beginning on the day after the admission period expires, for a period of up to 240 days as provided in 8 CFR 274a.12(b)(20). Notwithstanding 8 CFR 274a.12(b)(20), an alien whose J-1 status, as indicated on the alien's Arrival/Departure Record, Form I-94, has expired but who has timely filed an extension of stay application on or before March 18, 2027, is authorized to continue engaging in authorized employment and activities consistent with pursuing the terms and conditions of the alien's program objectives, including authorized training and activities pursuant to a new or transferred program, while the extension of stay application is pending with USCIS, not to exceed the program end date on the Form DS-2019 (or successor form) filed with the pending application. Such authorization may be subject to any conditions and limitations of the initial authorization. If the extension of stay application remains pending beyond the Form DS-2019 (or successor form) end date filed with the application, the alien, whose status has expired, may remain in the United States and continue engaging in activities consistent with pursuing the terms and conditions of the alien's program objectives and including authorized training, but not including employment, so long as the extension of stay application is pending and he or she has filed a subsequent extension of stay request with a Form DS-2019 (or successor form) indicating an end date beyond the Form DS-2019 (or successor form) end date requested in the preceding extension of stay request. DHS reserves the discretion to extend the period permitting an alien in J-1 status to continue engaging in activities consistent with pursuing the terms and conditions of the alien's program objectives and including authorized training, up to the end date of the Form DS-2019 (or successor form) so long as the extension of stay application is pending, beyond March 18, 2027, in 6-month increments by publication of a notification in the Federal Register. Consistent with paragraph (j)(1)(iv)(E) of this section, the denial of an extension of stay application requires the alien to cease activities and depart the United States immediately.

(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.

(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:

(viii)Use of SEVIS. The use of the Student and Exchange Visitor Information System (SEVIS) is mandatory for designated program sponsors. All designated program sponsors must issue a SEVIS Form DS-2019 to any exchange visitor requiring a reportable action (e.g., program extensions and requests for employment authorization), or for any aliens who must obtain a new nonimmigrant J visa. As of 2003, the records of all current or continuing exchange visitors must be entered in SEVIS.

(x)Spouse and children of an E-2 CNMI Investor—(A) Classification. The spouse and children of an E-2 CNMI Investor accompanying or following-to-join the principal alien, if otherwise admissible, may receive the same classification as the principal alien. The nationality of a spouse or child of an E-2 CNMI investor is not material to the classification of the spouse or child.

(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

(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.

(viii)Automatic extension of the authorized period of stay and employment authorization while extension of stay and employment authorization applications are pending. An F-1 student whos1e status as indicated on the Arrival/Departure Record, Form I-94, or successor form has expired will be considered to be in a period of authorized stay if he or she has timely filed an extension of stay application pursuant to paragraph (f)(7) of this section until USCIS issues a decision on the extension of stay application. Subject to paragraphs (f)(9)(i) and (ii) and (f)(10)(i) of this section and 8 CFR 274a.12(b)(6)(i) and (iii) and (c)(3)(iii), an F-1 student's current on-campus, curricular practical training (CPT), and severe economic hardship authorized employment is automatically extended during the pendency of the extension of stay application, but such automatic extension may not exceed 240 days beginning from the end date of his or her period of admission as indicated on the alien's Arrival/Departure Record, Form I-94, or successor form. However, severe economic hardship employment authorization resulting from emergent circumstances under paragraph (f)(5)(vi) of this section is automatically extended for up to 240 days or until the end date stated in the Federal Register notification announcing the suspension of certain requirements, whichever is earlier. If an F-1 student files an extension of stay application during the 30-day period provided in paragraph (f)(5)(v) of this section, he or she does not receive an automatic extension of authorized employment, including on-campus, CPT, and severe economic hardship, and must wait for approval of the extension of stay application (and employment authorization application, if required) before engaging in CPT or employment. For purposes of employment eligibility verification (Form I-9) under 8 CFR 274a.2(b)(1)(v), for CPT under paragraph (f)(10)(i) of this section, on-campus employment under paragraph (f)(9)(i) of this section, and severe economic hardship employment authorization resulting from emergent circumstances under paragraph (f)(5)(vi) of this section, the alien's authorized employment period, which ends 30 days before their Form I-94 or successor form admit until date, or Employment Authorization Document, Form I-766 or successor form, based on severe economic hardship, when combined with a notice issued by USCIS indicating receipt of an extension of stay application, is considered unexpired for up to 240 days or until USCIS issues a decision on the extension of stay application, or for CPT, until the CPT end date authorized by the designated school official on the Form I-20 or successor form, whichever is earlier, or for severe economic hardship employment based on emergent circumstances under paragraph (f)(5)(vi) of this section, the end date stated in the Federal Register notification announcing suspension of certain requirements, whichever is less.

(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 certified for attendance by foreign students as provided in § 214.3(a)(3) does not satisfy the requirement of this paragraph (f)(6)(i). A “full course of study” as required by section 101(a)(15)(F)(i) of the Act means:

(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.

(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.

(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 of a NATO alien shall submit a complete application for employment authorization, including Form I-765 and Form I-566, completed in accordance with the instructions on, or attached to, those forms. The complete application shall be submitted to SACLANT for certification of the Form I-566 and forwarding to the Service.

(ii)In a case where a bilateral dependent employment agreement containing a numerical limitation on the number of dependents authorized to work is applicable, the certifying officer of SACLANT shall not forward the application for employment authorization to the Service unless, following consultation with State's Office of Protocol, the certifying officer has confirmed that this numerical limitation has not been reached. The countries with such limitations are indicated on the bilateral/de facto dependent employment listing issued by State's FLO.

(iii)SACLANT shall keep copies of each application and certified Form I-566 for 3 years from the date of the certification.

(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:

(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.

(1)Has been timely filed;

(2)Requests an H-1B employment start date in the fiscal year for which such H-1B status is being requested consistent with paragraph (h)(2)(i)(I) of this section; and

(3)Is nonfrivolous.

(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.

(F)Multiple beneficiaries. More than one beneficiary may be included in a P petition if they are members of a team or group, 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. Up to 25 named beneficiaries may be included per petition.

(G)Named beneficiaries. Petitions for P classification must include the names of beneficiaries and other required information at the time of filing.

(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.

(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 petition must be filed.

(3)Definitions. As used in this paragraph, the term: Arts includes fields of creative activity or endeavor such as, but not limited to, fine arts, visual arts, and performing arts. Competition, event, or performance means an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such activity could include short vacations, promotional appearances for the petitioning employer relating to the competition, event, or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances A group of related activities will also be considered an event. In the case of a P-2 petition, the event may be the duration of the reciprocal exchange agreement. In the case of a P-1 athlete, the event may be the duration of the alien's contract. Contract means the written agreement between the petitioner and the beneficiary(ies) that explains the terms and conditions of employment. The contract shall describe the services to be performed, and specify the wages, hours of work, working conditions, and any fringe benefits. Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons. Essential support alien means a highly skilled, essential person determined by the Director to be an integral part of the performance of a P-1, P-2, or P-3 alien because he or she performs support services which cannot be readily performed by a United States worker 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.

(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)Immediate and automatic revocation. The approval of any petition is immediately and automatically revoked if the petitioner ceases operations, files a written withdrawal of the petition, or the U.S. Department of Labor revokes the temporary labor certification upon which the petition is based.

(1)Has a bona fide job offer for the beneficiary to work within the United States, which may include telework, remote work, or other off-site work within the United States;

(2)Full course of study. Subject to paragraph (m)(17)(ii)(B) of this section, an M-2 spouse and child may engage in a full course of study only by applying for and obtaining a change of status to F-1, M-1, or J-1 status, as appropriate, before beginning a full course of study. An M-2 spouse and M-2 child may engage in study that is avocational or recreational in nature, up to and including on a full-time basis.

(B)M-2 elementary or secondary study. An M-2 child may engage in full-time study, including any full course of study, in any elementary or secondary school (kindergarten through twelfth grade).

(C)An M-2 spouse or child violates his or her nonimmigrant status by enrolling in any study except as provided in paragraph (m)(17)(ii)(A) or (B) of this section.

(3)International cultural exchange program—(i) General. A United States employer shall petition the Attorney General on the form prescribed by USCIS, 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 application or petition 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.

(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)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.

(1)Accreditation. The degree that is the basis for the 24-month OPT extension is from a U.S. educational institution accredited by an accrediting agency recognized by the Department of Education at the time of application.

(2)DHS-approved degree. The degree that is the basis for the 24-month OPT extension is a bachelor's, master's, or doctoral degree in a field determined by the Secretary, or his or her designee, to qualify within a science, technology, engineering, or mathematics field.

(i)The term “science, technology, engineering or mathematics field” means a field included in the Department of Education's Classification of Instructional Programs taxonomy within the two-digit series or successor series containing engineering, biological sciences, mathematics, and physical sciences, or a related field. In general, related fields will include fields involving research, innovation, or development of new technologies using engineering, mathematics, computer science, or natural sciences (including physical, biological, and agricultural sciences).

(ii)The Secretary, or his or her designee, will maintain the STEM Designated Degree Program List, which will be a complete list of qualifying degree program categories, published on the Student and Exchange Visitor Program Web site at http://www.ice.gov/sevis. Changes that are made to the Designated Degree Program List may also be published in a notice in the Federal Register. All program categories included on the list must be consistent with the definition set forth in paragraph (f)(10)(ii)(C)(2)(i) of this section.

(iii)At the time the DSO recommends a 24-month OPT extension under this paragraph (f)(10)(ii)(C) in SEVIS, the degree that is the basis for the application for the OPT extension must be contained within a category on the STEM Designated Degree Program List.

(3)Previously obtained STEM degree(s). The degree that is the basis for the 24-month OPT extension under this paragraph (f)(10)(ii)(C) may be, but is not required to be, the degree that is the basis for the post-completion OPT period authorized under 8 CFR 274a.12(c)(3)(i)(B). If an application for a 24-month OPT extension under this paragraph (f)(10)(ii)(C) is based upon a degree obtained previous to the degree that provided the basis for the period of post-completion OPT authorized under 8 CFR 274a.12(c)(3)(i)(B), that previously obtained degree must have been conferred from a U.S. educational institution that is accredited and SEVP-certified at the time the student's DSO recommends the student for the 24-month OPT extension and must be in a degree program category included on the current STEM Designated Degree Program List at the time of the DSO recommendation. That previously obtained degree must have been conferred within the 10 years preceding the date the DSO recommends the student for the 24-month OPT extension.

(4)Eligible practical training opportunity. The STEM practical training opportunity that is the basis for the 24-month OPT extension under this paragraph (f)(10)(ii)(C) must be directly related to the degree that qualifies the student for such extension, which may be the previously obtained degree described in paragraph (f)(10)(ii)(C)(3) of this section.

(5)Employer qualification. The student's employer is enrolled in E-Verify, as evidenced by either a valid E-Verify Company Identification number or, if the employer is using an employer agent to create its E-Verify cases, a valid E-Verify Client Company Identification number, and the employer remains a participant in good standing with E-Verify, as determined by USCIS. An employer must also have an employer identification number (EIN) used for tax purposes.

(6)Employer reporting. A student may not be authorized for employment with an employer pursuant to paragraph (f)(10)(ii)(C)(2) of this section unless the employer agrees, by signing the Training Plan for STEM OPT Students, Form I-983 or successor form, to report the termination or departure of an OPT student to the DSO at the student's school, if the termination or departure is prior to the end of the authorized period of OPT. Such reporting must be made within five business days of the termination or departure. An employer shall consider a student to have departed when the employer knows the student has left the practical training opportunity, or if the student has not reported for his or her practical training for a period of five consecutive business days without the consent of the employer, whichever occurs earlier.

(7)Training Plan for STEM OPT Students, Form I-983 or successor form. (i) A student must fully complete an individualized Form I-983 or successor form and obtain requisite signatures from an appropriate individual in the employer's organization on the form, consistent with form instructions, before the DSO may recommend a 24-month OPT extension under paragraph (f)(10)(ii)(C)(2) of this section in SEVIS. A student must submit the Form I-983 or successor form, which includes a certification of adherence to the training plan completed by an appropriate individual in the employer's organization who has signatory authority for the employer, to the student's DSO, prior to the new DSO recommendation. A student must present his or her signed and completed Form I-983 or successor form to a DSO at the educational institution of his or her most recent enrollment. A student, while in F-1 student status, may also be required to submit the Form I-983 or successor form to ICE and/or USCIS upon request or in accordance with form instructions.

(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.

(4)If the H-1B beneficiary possesses a controlling interest in the petitioner, meaning the beneficiary owns more than 50 percent of the petitioner or has majority voting rights in the petitioner, such a beneficiary may perform duties that are directly related to owning and directing the petitioner's business as long as the beneficiary will perform specialty occupation duties a majority of the time, consistent with the terms of the H-1B petition.

(5)Period of stay. A student in M nonimmigrant status is admitted for a fixed time period, which is the period necessary to complete the course of study indicated on the Form 1-20 or successor form, 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 1-20 or successor form. 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]

(8)Denial of petition—(i) Individual petition. If an individual is denied, the petitioner shall be notified within 30 days after the date a completed petition has been filed of the denial, the reasons for the denial, and the right to appeal the denial.

(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.

(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)Extension of visa petition validity. The petitioner must file a request to extend the validity of the original petition under section 101(a)(15)(O) of the Act on the form prescribed by USCIS, in order to continue or complete the same activities or events specified in the original petition. A petition extension generally may be filed only if the validity of the original petition has not expired.

(12)-(14) [Reserved]

(13)Extension of visa petition validity. The petitioner must file a request to extend the validity of the original petition under section 101(a)(15)(P) of the Act on the form prescribed by USCIS in order to continue or complete the same activity or event specified in the original petition. A petition extension generally 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 the form prescribed by USCIS, 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.

(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.

(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:

(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 DHS 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 or successor form;

(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 USCIS, 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.

(17)Spouse and children of M-1 student. The M-2 spouse and minor children of an M-1 student will each be issued an individual Form I-20 or successor form in accordance with the provisions of § 214.3(k).

(18)Current name and address. A student must inform DHS and the DSO of any legal changes to the student's name or of any change of address, within 10 days of the change, in a manner prescribed by the school. A student can satisfy the requirement in 8 CFR 265.1 of notifying DHS by providing a notice of a change of address within 10 days to the DSO, and the DSO in turn must enter the information in SEVIS within 21 days of notification by the student. Except in the case of a student who cannot receive mail where the student 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 DHS, the actual physical location where the student resides.

(A)Residing in the United States while attending a certified school as an F-1 student, or

(B)Enrolled in a full course of study as defined in paragraph (f)(6) of this section.

(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 a certified 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 a certified school as an M-1 student; or

(B)Enrolled in a full course of study as defined in paragraph (m)(9) of this section.

(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

(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)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.

(1)Foreign workers, whether compensated or uncompensated, have previously participated in R-1 status;

(2)Missionary workers are traditionally uncompensated;

(3)The organization provides formal training for missionaries; and

(4)Participation in such missionary work is an established element of religious development in that denomination.

(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 their Form I-20 or successor form may resume employment only if the student is readmitted to attend the same school that granted the employment authorization.

(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:

(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.

(12)Evidence of previous R-1 employment. Any request for an extension of stay as an R-1 must include initial evidence of the previous R-1 employment. If the beneficiary:

(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.

(1)The student has been in F-1 status for one full academic year;

(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.

(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.

(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.

(E)In a case where the alien will be employed in the field of arts, entertainment, or athletics, and the Service has determined that a petition merits expeditious handling, the Service shall contact the appropriate labor and/or management organization and request an advisory opinion if one is not submitted by the petitioner. The labor and/or management organization shall have 24 hours to respond to the Service's request. The Service shall adjudicate the petition after receipt of the response from the consulting organization. The labor and/or management organization shall then furnish the Service with a written advisory opinion within 5 days of the initiating request. If the labor and/or management organization fails to respond within 24 hours, the Service shall render a decision on the petition without the advisory opinion.

(F)In a routine processing case where the petition is accompanied by a written opinion from a peer group, but the peer group is not a labor organization, the Director will forward a copy of the petition and all supporting documentation to the national office of the appropriate labor organization within 5 days of receipt of the petition. If there is a collective bargaining representative of an employer's employees in the occupational classification for which the alien is being sought, that representative shall be the appropriate labor organization for purposes of this section. The labor organization will then have 15 days from receipt of the petition and supporting documents to submit to the Service a written advisory opinion, comment, or letter of no objection. Once the 15-day period has expired, the Director shall adjudicate the petition in no more than 14 days. The Director may shorten this time in his or her discretion for emergency reasons, if no unreasonable burden would be imposed on any participant in the process. If the labor organization does not respond within 15 days, the Director will render a decision on the record without the advisory opinion.

(2)[Reserved]

(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.

(6)Copies of supporting documents. The petitioner may submit a legible photocopy of a document in support of the visa petition, in lieu of the original document. However, the original document shall be submitted if requested by the Service.

(7)Approval of petition—(i) General. The director shall notify the petitioner of the approval of an individual or a blanket petition within 30 days after the date a completed petition has been filed. If additional information is required from the petitioner, the 30 day processing period shall begin again upon receipt of the information. The original Form I-797 received from the USCIS with respect to an approved individual or blanket petition may be duplicated by the petitioner for the beneficiary's use as described in paragraph (l)(13) of this section.

(iii)Revocation on notice—(A) Grounds for revocation. USCIS may in its discretion send to the petitioner a notice of intent to revoke the petition in relevant part, for good cause, including, if it finds that:

(1)The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;

(I)H-2A and H-2B portability. An eligible H-2A or H-2B nonimmigrant is authorized to start new employment upon the proper filing, in accordance with 8 CFR 103.2(a), of a nonfrivolous H-2A or H-2B petition on behalf of such alien requesting the same classification that the nonimmigrant alien currently holds, or as of the requested start date, whichever is later.

(1)Eligible H-2A or H-2B nonimmigrant. For H-2A and H-2B portability purposes, an eligible H-2A or H-2B nonimmigrant is defined as an alien:

(2)The facts contained in the petition or on the application for a temporary labor certification was not true and correct, inaccurate, fraudulent, or misrepresented a material fact;

(C)Applications and filing deadlines for 24-month OPT extension. A student meeting the eligibility requirements for a 24-month OPT extension under paragraph (f)(10)(ii)(C) of this section may request an extension of employment authorization by filing Form I-765 or successor form, with the required fee and supporting documents, up to 90 days prior to the expiration date of the student's current OPT employment authorization. The student seeking such 24-month OPT extension must properly file his or her Form I-765 or successor form with USCIS within 60 days of the date the DSO enters the recommendation for the OPT extension into his or her SEVIS record. If a student timely and properly files an application for such 24-month OPT extension and timely and properly requests a DSO recommendation, including by submitting the fully executed Form I-983 or successor form to his or her DSO, but the Employment Authorization Document, Form I-766 or successor form, currently in the student's possession expires prior to the decision on the student's application for the OPT extension, the student's Form I-766 or successor form is extended automatically pursuant to the terms and conditions specified in 8 CFR 274a.12(b)(6)(iv).

(D)Start of OPT employment. A student may not begin OPT employment prior to the approved start date on his or her Employment Authorization Document, Form I-766 or successor form, except as described in paragraph (f)(11)(i)(C) of this section. A student may not request a start date that is more than 30 days after the student's program end date. Employment authorization will begin on the date requested or the date the employment authorization is adjudicated, whichever is later.

(3)The petitioner violated terms and conditions of the approved petition;

(B)An employer must retain documents and records until the date that is three years after the ending date of the petition validity period.

(C)Process. If DHS has determined that the petitioner has violated the notification requirements in paragraph (h)(5)(vi)(B)(1) of this section and has not received the required notification, the petitioner will be given written notice and 30 days to reply before being given written notice of the assessment of liquidated damages.

(D)Failure to pay liquidated damages. If liquidated damages are not paid within 10 days of assessment, an H-2A petition may not be processed for that petitioner or any joint employer shown on the petition until such damages are paid.

(4)The petitioner violated a requirement of paragraph (w) of this section;

(B)A new Form I-20 or successor form if there has been any substantive change in the information on the student's most recent Form I-20 or successor form since the form was initially issued.

(5)The approval of the petition violated paragraph (w) this section or involved gross error;

(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 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.

(F)Bona fide position in a specialty occupation. At the time of filing, the petitioner must establish that it has a bona fide position in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the petition. A petitioner is not required to establish specific day-to-day assignments for the entire time requested in the petition.

(6)The petitioner failed to maintain the continuous employment of the CW-1 nonimmigrant, failed to pay the nonimmigrant, failed to timely file a semiannual report described in paragraph (w)(26) of this section, committed any other violation of the terms and conditions of employment, or otherwise ceased to operate as a legitimate business;

(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.

(7)The beneficiary did not apply for admission to the CNMI within 10 days after the beginning of the petition validity period if the petition has been approved for consular processing; or

(8)The employer failed to provide a former, current, or prospective CW-1 nonimmigrant, not later than 21 business days after a written request from such individual, with the original (or a certified copy of the original) of all petitions, notices, and other written communication related to the worker (other than sensitive financial or proprietary information of the employer which may be redacted) that has been exchanged between the employer and the Department of Labor, the Department of Homeland Security, or any other Federal agency or department.

(B)Notice and decision. The notice of intent to revoke shall state the grounds for the revocation. The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. USCIS 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.

(9)Appeal of a denial or a revocation of a petition—(i) Denial. A denied petition may be appealed under 8 CFR part 103.

(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)Appeal of a denial or a revocation of a petition—(i) Denial. A denied petition may be appealed under 8 CFR part 103.

(A)Applications for employment authorization. The student must properly file an Application for Employment Authorization, Form I-765 or successor form, with USCIS, accompanied by the required fee, and the supporting documents, as described in the form's instructions.

(B)Applications and filing deadlines for pre-completion OPT and post-completion OPT—(1) Pre-completion OPT. For pre-completion OPT, the student may properly file his or her Form I-765 or successor form up to 90 days before being enrolled for one full academic year, provided that the period of employment will not start prior to the completion of the full academic year.

(D)Extension of stay for post-completion optional practical training (OPT). Unless described in § 214.1(m)(1)(i), an F-1 student recommended for post-completion OPT must apply for an employment authorization and either apply for an extension of stay with USCIS or seek admission through CBP after travel abroad and may not engage in post-completion OPT unless such employment authorization is granted. If the application for post-completion OPT is granted along with an extension of stay or admission through CBP after travel abroad, the student extension will include the additional 30-day period provided in paragraph (f)(5)(v) of this section for departure following the expiration of the time approved to complete post-completion OPT.

(E)Periods of unemployment during post-completion OPT. During post-completion OPT, F-1 status is dependent upon employment. Students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT period described in 8 CFR 274a.12(c)(3)(i)(B). Students granted a 24-month OPT extension under paragraph (f)(10)(ii)(C)(2) of this section may not accrue an aggregate of more than 150 days of unemployment during a total OPT period, including any post-completion OPT period described in 8 CFR 274a.12(c)(3)(i)(B) and any subsequent 24-month extension period.

(12)Change in educational objective. An M-1 student may not change educational objective.

(13)Change or addition of employers. An R-1 alien may not be compensated for work for any religious organization other than the one for which a petition has been approved or the alien will be out of status. A different or additional employer seeking to employ the alien may obtain prior approval of such employment through the filing of a separate petition and appropriate supplement, supporting documents, and fee prescribed in 8 CFR 106.2.

(14)Employer obligations. When an R-1 alien is working less than the required number of hours or has been released from or has otherwise terminated employment before the expiration of a period of authorized R-1 stay, the R-1 alien's approved employer must notify DHS within 14 days using procedures set forth in the instructions to the petition or otherwise prescribed by USCIS on the USCIS Internet Web site at www.uscis.gov.

(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.

(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.

(15)Nonimmigrant intent. An alien classified under section 101(a)(15)(R) of the Act shall maintain an intention to depart the United States upon the expiration or termination of R-1 or R-2 status. However, a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R classification may not be denied solely on the basis of a filed or an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.

(16)Inspections, evaluations, verifications, and compliance reviews. The supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organization's facilities, an interview with the organization's officials, a review of selected organization records relating to compliance with immigration laws and regulations, and an interview with any other individuals or review of any other records that the USCIS considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, or satellite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition.

(17)Denial and appeal of petition. USCIS will provide written notification of the reasons for the denial under 8 CFR 103.3(a)(1). The petitioner may appeal the denial under 8 CFR 103.3.

(18)Revocation of approved petitions—(i) Director discretion. The director may revoke a petition at any time, even after the expiration of the petition.

(19)Appeal of a revocation of a petition. A petition that has been revoked on notice in whole or in part may be appealed under 8 CFR 103.3. Automatic revocations may not be appealed.

(27)Revocation of approval of petition—(i) General. (A) The petitioner shall immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under this paragraph (w). To notify USCIS of such changes, an amended petition shall be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter to the office at which the CW-1 petition was filed explaining the basis on which the specific CW-1 nonimmigrant is no longer employed.

(B)USCIS may revoke a petition at any time, even after the expiration of the petition.

(28)Appeal of a revocation of a petition. 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.

(29)Notice to DOL. USCIS will provide notice to DOL of CW-1 petition revocations. (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)) Editorial Note:For Federal Register citations affecting § 214.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov. Effective Date Notes:1. At 88 FR 80456, Nov. 17, 2023, § 214.2 was amended by adding rows (30) and (31) to table 3 to paragraph (h), and by adding paragraphs (h)(6)(xiv) and (h)(31), effective Nov. 17, 2023, through Nov. 17, 2026.2. At 89 FR 95681, Dec. 2, 2024, § 214.2 was amended by adding row (32) to table 3 to paragraph (h), and by adding paragraphs (h)(6)(xv) and (h)(32), effective Dec. 2, 2024, through Dec. 2, 2027.

(A)Report quarterly;

(B)Cooperate with the LEA;

(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.

(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)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.

(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.

(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.

(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.

(C)Comply with the terms and conditions of the specific S nonimmigrant classification; or

(12)Reporting while on optional practical training—(i) General. An F-1 student who is granted employment authorization by USCIS to engage in optional 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 optional practical training. A DSO who recommends a student for OPT is responsible for updating the student's record to reflect these reported changes for the duration of the time that training is authorized.

(15)Use of approval notice, Form I-797. The Service shall notify the petitioner of Form I-797 whenever a visa petition or an extension of a visa petition is approved under the O classification. The beneficiary of an O petition who does not require a nonimmigrant visa may present a copy of the approval notice at a Port-of-Entry to facilitate entry into the United States. A beneficiary who is required to present a visa for admission, and who visa will have expired before the date of his or her intended return, may use Form I-797 to apply for a new or revalidated visa during the validity period of the petition. A copy of Form I-797 shall be retained by the beneficiary and presented during the validity of the petition when reentering the United States to resume the same employment with the same petitioner.

(16)Return transportation requirement. In the case of an alien who enters the United States under section 101(a)(15(O) of the Act and whose employment terminates for reasons other than voluntary resignation, the employer whose offer of employment formed the basis of such nonimmigrant status and the petitioner are jointly and severally liable for the reasonable cost of return transportation of the alien abroad. For the purposes of this paragraph, the term “abroad” means the alien's last place of residence prior to his or her entry into the United States.

(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 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.

(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

(10)Evidence relating to the qualifications of a minister. If the alien is a minister, the petitioner must submit the following:

(11)Evidence relating to compensation. Initial evidence must state how the petitioner intends to compensate the alien, including specific monetary or in-kind compensation, or whether the alien intends to be self-supporting. In either case, the petitioner must submit verifiable evidence explaining how the petitioner will compensate the alien or how the alien will be self-supporting. Compensation may include:

(E)Essential support aliens. Petitions for essential support personnel to P-1, P-2, and P-3 aliens shall be valid for a period of time determined by the Director to be necessary to complete the event, activity, or performance for which the P-1, P-2, or P-3 alien is admitted, not to exceed 1 year.

(9)The petitioner shall be notified of the decision, the reasons for the denial, and the right to appeal the denial under 8 CFR part 103. There is no appeal from a decision to deny an extension of stay to the alien or a change of nonimmigrant status.

(10)Revocation of approval of petition—(i) General. (A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(P) of the Act and paragraph (p) of this section. An amended 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.

(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.

(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.

(2)A foreign employer who, through a United States agent, files a petition for an H nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a.

(G)Multiple H-1B petitions. An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A) of the Act or is exempt from those limitations under section 214(g)(5)(C) of the Act. If an H-1B petition is denied, on a basis other than fraud or misrepresentation, the employer may file a subsequent H-1B petition on behalf of the same alien in the same fiscal year, provided that the numerical limitation has not been reached or if the filing qualifies as exempt from the numerical limitation. Otherwise, filing more than one H-1B petition by an employer on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions. If USCIS believes that related entities (such as a parent company, subsidiary, or affiliate) may not have a legitimate business need to file more than one H-1B petition on behalf of the same alien subject to the numerical limitations of section 214(g)(1)(A) of the Act or otherwise eligible for an exemption under section 214(g)(5)(C) of the Act, USCIS may issue a request for additional evidence or notice of intent to deny, or notice of intent to revoke each petition. If any of the related entities fail to demonstrate a legitimate business need to file an H-1B petition on behalf of the same alien, all petitions filed on that alien's behalf by the related entities will be denied or revoked.

(H)H-1B portability. An eligible H-1B nonimmigrant is authorized to start concurrent or new employment under section 214(n) of the Act upon the filing, in accordance with 8 CFR 103.2(a), of a nonfrivolous H-1B petition on behalf of such alien, or as of the requested start date, whichever is later.

(1)Eligible H-1B nonimmigrant. For H-1B portability purposes, an eligible H-1B nonimmigrant is defined as an alien:

(J)Time of filing. A petition filed under section 101(a)(15)(H) of the Act may not be filed earlier than 6 months before the date of actual need for the beneficiary's services or training.

(iv)Report annually to the Assistant Attorney General, Criminal Division, on whether the alien's S nonimmigrant classification and cooperation resulted in either:

(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

(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).

(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.

(B)An alien crewman who qualifies as a current employee under this paragraph remains subject to the restrictions on his or her employment in the United States contained in paragraph (d)(1) of this section.

(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.

(7)The petitioner shall be notified of the decision, the reasons for the denial, and the right to appeal the denial under 8 CFR part 103.

(A)Has continually maintained lawful status;

(B)Timely filing. An extension of stay application is considered timely filed if the receipt date, pursuant to 8 CFR 103.2(a)(7), is on or before the date the authorized period of stay expires, which includes the 30-day period provided in paragraph (f)(5)(v) of this section. USCIS must receive the extension application on or before the expiration of the authorized period of stay, including the 30-day period provided in paragraph (f)(5)(v) of this section that is allowed after the completion of studies or any authorized practical training. If the extension of stay application is received during the 30-day period provided in paragraph (f)(5)(v) of this section, the F-1 student is authorized to continue a full course of study but may not continue or begin engaging in practical training or other employment. Notwithstanding § 214.1(c)(4), USCIS must receive the extension of stay application on or before the expiration of the previously authorized period of stay.

(C)Has one of the following:

(1)A currently issued Form I-20, or successor form, indicating additional time is left to complete his or her program of study; or

(2)Documentation demonstrating the request for an extension is based on one of the following reasons:

(i)A compelling academic reason, such as a change of major or research topic or unexpected research problems. Unexpected research problems are those caused by an unexpected change in faculty advisor, need to refine an investigatory topic based on initial research, research funding delays, and similar issues. Delays including, but not limited to, those caused by academic probation or suspension or a student's repeated inability or unwillingness to complete his or her course of study are not acceptable reasons for an extension;

(ii)SEVIS update. The Form I-20 or successor form must be endorsed with the designated school official recommendation and new program end date for submission to USCIS.

(iii)USCIS application—(A) Form. An F-1 student must file an extension of stay application using the form and in the manner designated by USCIS, including submitting the updated, properly endorsed Form I-20 or successor form; submitting evidence of sufficient funds to cover expenses; appearing for any biometrics collection required by 8 CFR 103.16; and remitting the appropriate fee. The F-1 student must be maintaining his or her status and must never have engaged in any unauthorized employment.

(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.

(B)The Director may revoke a petition at any time, even after the validity of the petition has expired.

(9)Evaluation requirements and Training Plan modifications. (i) A student may not be authorized for employment with an employer pursuant to paragraph (f)(10)(ii)(C)(2) of this section unless the student submits a self-evaluation of the student's progress toward the training goals described in the Form I-983 or successor form. All required evaluations must be completed prior to the conclusion of a STEM practical training opportunity, and the student and an appropriate individual in the employer's organization must sign each evaluation to attest to its accuracy. All STEM practical training opportunities require an initial evaluation within 12 months of the approved starting date on the employment authorization document granted pursuant to the student's 24-month OPT extension application, and a concluding evaluation. The student is responsible for ensuring the DSO receives his or her 12-month evaluation and final evaluation no later than 10 days following the conclusion of the reporting period or conclusion of his or her practical training opportunity, respectively.

(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.

(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.

(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 an SEVP-certified 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.

(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 an SEVP-certified vocational educational institution is required to pay the SEVIS fee to DHS, pursuant to § 214.13, except as otherwise provided in that section.

(A)A successful criminal prosecution or investigation or the failure to produce a successful resolution of the matter; or

(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)The prevention or frustration of terrorist acts or the failure to prevent such acts.

(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.

(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)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.

(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)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.

(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 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.

(D)Will offer the alien(s) wages and working conditions comparable to those accorded local domestic workers similarly employed; and

(4)Supporting documentation—(i) Documentation by the employer. To establish eligibility as a qualified employer, the petitioner must submit with the completed application or petition appropriate evidence that the employer:

(E)Has the financial ability to remunerate the participant(s).

(ix)That the alien will be employed at least 20 hours per week;

(m)Students in established vocational or other recognized nonacademic institutions, other than in language training programs. Table 4 to Paragraph (m)—Paragraph Contents (1) Admission of student (2) Form I-20 ID copy (3) Admission of the spouse and minor children of an M-1 student (4) Temporary absence (5) Period of stay (6)-(8) [Reserved] (9) Full course of study (10) Extension of stay (11) School transfer (12) Change in educational objective (13) Employment (14) Practical training (15) Decision on application for extension, permission to transfer to another school, or permission to accept employment for practical training (16) Reinstatement to student status (17) Spouse and children of M-1 student (18) Current name and address (19) Special rules for certain border commuter students (20) Remittance of the fee

(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 Form I-20 or successor form issued in the student's own name by a school certified by SEVP for attendance by M-1 foreign students;

(B)The student has documentary evidence of financial support in the amount indicated on the Form I-20 or successor form; and

(v)Assist the alien in his or her application to the Service for employment authorization.

(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.

(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 application or petition. 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.

(8)Annual report. The Assistant Attorney General, Criminal Division, in consultation with the Commissioner, shall compile the statutorily mandated annual report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate.

(9)Admission. The responsible LEA will coordinate the admission of an alien in S nonimmigrant classification with the Commissioner as to the date, time, place, and manner of the alien's arrival.

(10)Employment. An alien classified under section 101(a)(15)(S) of the Act may apply for employment authorization by filing Form I-765, Application for Employment Authorization, with fee, in accordance with the instructions on, or attached to, that form pursuant to § 274a.12(c)(21) of this chapter.

(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.

(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)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.

(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)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.

(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.

(C)The spouse and dependent minor children shall not accept employment in the United States unless otherwise authorized under the Act.

(2)An H-1B petition filed on behalf of an alien who does not have a valid state or local license, where a license is otherwise required to fully perform the duties in that occupation, may be approved for a period of up to 1 year if:

(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.

(E)Criteria for Guam labor certifications. The Governor of Guam shall, in consultation with the Service, establish systematic methods for determining the prevailing wage rates and working conditions for individual occupations on Guam and for making determinations as to availability of qualified United States residents.

(1)Prevailing wage and working conditions. The system to determine wages and working conditions must provide for consideration of wage rates and employment conditions for occupations in both the private and public sectors, in Guam and/or in the United States (as defined in section 101(a)(38) of the Act), and may not consider wages and working conditions outside of the United States. If the system includes utilization 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:

(vi)The number of special immigrant religious worker and nonimmigrant religious worker petitions and applications filed by or on behalf of any aliens for employment by the prospective employer in the past five years;

(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.

(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.

(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.

(15)Decision on application for extension, permission to transfer to another school, or permission to accept employment for practical training. USCIS will 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. USCIS may consider reinstating a student who makes a request for reinstatement on Form I-539, Application to Extend/Change Nonimmigrant Status or successor form, accompanied by a properly completed Form I-20 or successor form indicating the DSO's recommendation for reinstatement. USCIS may consider granting the request only if the student:

(B)Does not have a record of repeated or willful violations of DHS regulations;

(C)Is currently pursuing, or intends to pursue, a full course of study at the school which issued the Form I-20 or successor form;

(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 USCIS, 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

(17)Filing of individual petitions and certifications under blanket petitions for citizens of Canada under the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA)—(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 the form prescribed by USCIS 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 the form prescribed by USCIS must bear the authorized signature of the petitioner.

(A)He or she is a bona fide nonimmigrant currently maintaining student status;

(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.

(1)To notify DHS, within 2 workdays, and beginning on a date and in a manner specified in a notice published in the Federal Register if:

(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 field 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.

(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:

(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.

(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; or

(E)Liability for transportation costs. The employer will be liable for the reasonable costs of return transportation of the alien abroad, if the alien is dismissed from employment for any reason by the employer before the end of the period of authorized admission pursuant to section 214(c)(5) of the Act. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term “abroad” means the alien's last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for the alien obtaining or continuing H-2B status.

(vii)The title of the position offered to the alien and a detailed description of the alien's proposed daily duties;

(1)Documentation, certifications, affidavits, writings, reviews, or any other required evidence sufficient to establish that the beneficiary is a fashion model of distinguished merit and ability. Affidavits submitted by present or former employers or recognized experts certifying to the recognition and distinguished ability of the beneficiary shall specifically describe the beneficiary's recognition and ability in factual terms and must set forth the expertise of the affiant and the manner in which the affiant acquired such information.

(2)Copies of any written contracts between the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.

(B)Petitioner's requirements. To establish that a position requires prominence, the petitioner must establish that the position meets one of the following criteria:

(1)The services to be performed involve events or productions which have a distinguished reputation;

(2)The services are to be performed for an organization or establishment that has a distinguished reputation for, or record of, employing prominent persons.

(C)Beneficiary's requirements. A petitioner may establish that a beneficiary is a fashion model of distinguished merit and ability by the submission of two of the following forms of documentation showing that the alien:

(1)Has achieved national or international recognition and acclaim for outstanding achievement in his or her field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material;

(2)Has performed and will perform services as a fashion model for employers with a distinguished reputation;

(3)Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies, or other recognized experts in the field; or

(4)Commands a high salary or other substantial remuneration for services evidenced by contracts or other reliable evidence.

(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.

(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.

(C)Period of absence. An absence from the United States for an uninterrupted period of at least 60 days at any time will result in the alien becoming eligible for a new 3-year maximum period of H-2 stay. The limitation in paragraph (h)(6)(vii)(B) of this section will not apply to H-2B aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year. In addition, the limitation in paragraph (h)(6)(vii)(B) of this section will not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify, the petitioner must provide evidence documenting the alien's relevant absence(s) from the United States, such as, but not limited to, arrival and departure records, copies of tax returns, and records of employment abroad.

(D)Traded professional H-2B athletes. In the case of a professional H-2B athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the player's acquisition by the new organization, within which time the new organization is expected to file a new application or petition for H-2B nonimmigrant classification. If a new application or petition is not filed within 30 days, employment authorization will cease. If a new application or petition is filed within 30 days, the professional athlete will be deemed to be in valid H-2B status, and employment will continue to be authorized, until the petition is adjudicated. If the new petition is denied, employment authorization will cease.

(F)Approval and publication of employment systems on Guam—(1) Systems. The Commissioner of Immigration and Naturalization must approve the system to determine prevailing wages and working conditions and the system to determine availability of United States resident workers and any future modifications of the systems prior to implementation. If the Commissioner, in consultation with the Secretary of Labor, finds that the systems or modified systems meet the requirements of this section, the Commissioner shall publish them as a notice in the Federal Register and the Governor shall publish them as a public record in Guam.

(2)Approval of construction wage rates. The Commissioner must approve specific wage data and rates used for construction occupations on Guam prior to implementation of new rates. The Governor shall submit new wage survey data and proposed rates to the Commissioner for approval at least eight weeks before authority to use existing rates expires. Surveys shall be conducted at least every two years, unless the Commissioner prescribes a lesser period.

(G)Reporting. The Governor shall provide the Commissioner statistical data on temporary labor certification workload and determinations. This information shall be submitted quarterly no later than 30 days after the quarter ends.

(H)Invalidation of temporary labor certification issued by the Governor of Guam—(1) General. A temporary labor certification issued by the Governor of Guam may be invalidated by a director if it is determined by the director or a court of law that the certification request involved fraud or willful misrepresentation. A temporary labor certification may also be invalidated if the director determines that the certification involved gross error.

(2)Notice of intent to invalidate. If the director intends to invalidate a temporary labor certification, a notice of intent shall be served upon the employer, detailing the reasons for the intended invalidation. The employer shall have 30 days in which to file a written response in rebuttal to the notice of intent. The director shall consider all evidence submitted upon rebuttal in reaching a decision.

(3)Appeal of invalidation. An employer may appeal the invalidation of a temporary labor certification in accordance with part 103 of this chapter.

(viii)Whether the alien will receive salaried or non-salaried compensation and the details of such compensation;

(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)An H-2A petition requesting unnamed beneficiaries may be filed electronically after DOL issues a notice of acceptance and before DOL approves the underlying application for temporary agricultural labor certification. If applicable, USCIS will make necessary modifications to the concurrently processed H-2A petition to reflect any modifications made by DOL to the application for temporary agricultural labor certification after issuance of the notice of acceptance and before certification. The temporary agricultural labor certification must be approved by DOL before USCIS may approve the H-2A petition, provided that all other statutory and regulatory requirements are met. If the H-2A petition is filed before DOL issues a notice of acceptance, or if DOL denies the application for temporary agricultural labor certification, USCIS will deny the H-2A petition.

(B)Multiple beneficiaries. The total number of beneficiaries of a petition or series of petitions based on the same temporary labor certification may not exceed the number of workers indicated on that document. A single petition can include more than one named beneficiary if the total number is 25 or fewer and does not exceed the number of positions indicated on the relating temporary labor certification.

(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)[Reserved]

(D)Evidence. An H-2A petitioner must show that the proposed employment qualifies as a basis for H-2A status, and that any named beneficiary qualifies for that employment. Except for an H-2A petition filed electronically pursuant to paragraph (h)(5)(i)(A)(2) of this section, an H-2A petition will be automatically denied if filed without the certification evidence required in paragraph (h)(5)(i)(A)(1) 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.

(5)Petition for alien to perform agricultural labor or services of a temporary or seasonal nature (H-2A)—(i) Filing a petition—(A) General. (1) An H-2A petition must be filed on the form prescribed by USCIS and, except for an H-2A petition seeking unnamed beneficiaries filed electronically pursuant to paragraph (h)(5)(i)(A)(2) of this section, must be filed with a single valid temporary agricultural labor certification issued by the Department of Labor (DOL). The petition may be filed by either the employer listed on the application for temporary labor certification, the employer's agent, or the association of United States agricultural producers named as a joint employer on the application for temporary labor certification.

(8)School transfer and change of educational objectives—(i) Eligibility. An F-1 student may change educational objectives or transfer to SEVP-certified schools if he or she is maintaining status as described in paragraphs (f)(5)(ii)(A) through (D) of this section. “Educational objectives” refers to an F-1 student's educational level or major. An F-1 student changing educational objectives or transferring to an SEVP-certified school also must meet the following requirements:

(A)The student is currently maintaining status;

(B)To be eligible to transfer, the student must:

(1)Have been pursuing a full course of study, unless a reduced course load was properly authorized under this paragraph (f);

(2)Have completed a degree program; or

(3)Be currently completing or have completed post-completion or STEM optional practical training (OPT);

(C)The student is not currently in a graduate level program of study, unless an exception has been authorized by SEVP for extenuating circumstances under paragraph (f)(5)(ii)(A) of this section;

(D)The student has completed his or her first academic year of a program of study at the school that initially issued his or her Form I-20 or successor form, unless an exception has been authorized by SEVP for extenuating circumstances under paragraph (f)(5)(ii)(A) of this section;

(E)The student has not been placed on academic probation or school suspension;

(F)The student does not have a pattern of behavior demonstrating a repeated inability or unwillingness to complete his or her course of study;

(G)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, or successor form, whichever is earlier; and

(H)If the F-1 student is authorized to engage in post-completion or STEM OPT, he or she must be able to begin or resume classes within 5 months of transferring out of the school that recommended the post-completion or STEM OPT or the date the post-completion or STEM OPT authorization ends, whichever is earlier.

(A)To substitute beneficiaries who were previously approved for consular processing but have not been admitted with aliens who are outside of the United States, the petitioner shall, by letter and a copy of the petition approval notice, notify the consular office at which the alien will apply for a visa or the port of entry where the alien will apply for admission. The petitioner shall also submit evidence of the qualifications of beneficiaries to the consular office or port of entry prior to issuance of a visa or admission, if applicable.

(B)To substitute beneficiaries who were previously approved for consular processing but have not been admitted with aliens who are currently in the United States, the petitioner shall file an amended petition with fees at the USCIS Service Center where the original petition was filed, with a copy of the original petition approval notice, a statement explaining why the substitution is necessary, evidence of the qualifications of beneficiaries, if applicable, evidence of the beneficiaries' current status in the United States, and evidence that the number of beneficiaries will not exceed the number allocated on the approved temporary labor certification, such as employment records or other documentary evidence to establish that the number of visas sought in the amended petition were not already issued. The amended petition must retain a period of employment within the same half of the same fiscal year as the original petition. Otherwise, a new temporary labor certification issued by DOL or the Governor of Guam and subsequent H-2B petition are required.

(C)Limits on an individual's stay. Except as provided in paragraph (h)(5)(viii)(B) of this section, an alien's stay as an H-2A nonimmigrant is limited by the period of time stated in 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 or H-2B status for a total of 3 years may not again be granted H-2A status until such time as they remain outside the United States for an uninterrupted period of at least 60 days. Eligibility under this paragraph (h)(5)(viii)(C) will be determined during adjudication of a request for admission, change of status or extension. An alien found eligible for a shorter period of H-2A status than that indicated by the petition due to the application of this paragraph (h)(5)(viii)(C) will only be admitted for that shorter period.

(D)Period of absence. An absence from the United States for an uninterrupted period of at least 60 days at any time will result in the alien becoming eligible for a new 3-year maximum period of H-2 stay. To qualify, the petitioner must provide evidence documenting the alien's relevant absence(s) from the United States, such as, but not limited to, arrival and departure records, copies of tax returns, and records of employment abroad.

(x)The specific location(s) of the proposed employment; and

(2)Successor in interest. For the purposes of paragraphs (h)(6)(i)(C) and (D) of this section, successor in interest means an employer that is controlling and carrying on the business of a previous employer regardless of whether such successor in interest has succeeded to all of the rights and liabilities of the predecessor entity. The following factors may be considered by USCIS in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole:

(6)Petition for alien to perform temporary nonagricultural services or labor (H-2B)—(i) Petition—(A) H-2B nonagricultural temporary worker. An H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor without displacing qualified United States workers available to perform such services or labor and whose employment is not adversely affecting the wages and working conditions of United States workers.

(B)Denial or revocation of petition for prohibited fees. As a condition of approval of an H-2B petition, no job placement fee, fee or penalty for breach of contract, or other fee, penalty, or compensation (either direct or indirect), related to the H-2B employment (collectively, “prohibited fees”) may be collected at any time from a beneficiary of an H-2B petition or any person acting on the beneficiary's behalf by a petitioner, a petitioner's employee, agent, attorney, facilitator, recruiter, or similar employment service, or any employer (if different from the petitioner). The term “similar employment service” refers to any person or entity that recruits or solicits prospective beneficiaries of the H-2B petition. The passing of a cost to the beneficiary that, by statute or applicable regulations is the responsibility of the petitioner, constitutes the collection of a prohibited fee. This provision does not prohibit petitioners (including their employees), employers, agents, attorneys, facilitators, recruiters, or similar employment services from receiving reimbursement from the beneficiary for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees. This provision does not prohibit employers from allowing workers to initially incur fees or expenses that the employers are required to subsequently reimburse, where such arrangement is specifically permitted by, and performed in compliance with, statute or regulations governing the H-2B program.

(1)If USCIS determines that the petitioner or any of its employees, whether before or after the filing of the H-2B petition, has collected or entered into an agreement to collect a prohibited fee related to the H-2B employment, USCIS will deny or revoke the H-2B petition filed on or after January 17, 2025 on notice unless the petitioner demonstrates through clear and convincing evidence that: the petitioner made ongoing, good faith, reasonable efforts to prevent and learn of the prohibited fee collection or agreement throughout the recruitment, hiring, and employment process; extraordinary circumstances beyond the petitioner's control resulted in its failure to prevent collection or entry into agreement for collection of prohibited fees; the petitioner took immediate remedial action as soon as it became aware of the payment of or agreement to pay the prohibited fee; and the petitioner fully reimbursed all affected beneficiaries or, only if such beneficiaries cannot be located or are deceased, it fully reimbursed their designees.

(2)If USCIS determines that the beneficiary has paid or agreed to pay any employer, agent, attorney, facilitator, recruiter, or similar employment service a prohibited fee related to the H-2B employment, whether before or after the filing of the H-2B petition, USCIS will deny or revoke the H-2B petition filed on or after January 17, 2025 on notice unless the petitioner demonstrates to USCIS through clear and convincing evidence that: the petitioner made ongoing, good faith, reasonable efforts to prevent and learn of the prohibited fee(s) collection or agreement by such parties throughout the recruitment, hiring, and employment process; the petitioner took immediate remedial action as soon as it became aware of the payment of the prohibited fee or agreement; and all affected beneficiaries, or their designees only if such beneficiaries cannot be located or are deceased, have been fully reimbursed. A written contract between the petitioner and the facilitator, recruiter, or similar employment service stating that such fees were prohibited will not, by itself, be sufficient to meet this standard of proof.

(3)For purposes of paragraph (h)(6)(i) of this section, a designee must be an individual or entity for whom the beneficiary has provided the petitioner or its successor in interest prior written authorization to receive such reimbursement, as long as the petitioner or its successor in interest, or its agent, employer, attorney, facilitator, recruiter, or similar employment service would not act as such designee or derive any financial benefit, either directly or indirectly, from the reimbursement.

(C)One-year denial period of subsequent H-2B petitions. USCIS will deny any H-2B petition filed by the same petitioner or a successor in interest within 1 year after the decision denying or revoking on notice an H-2B or H-2A petition on the basis of paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), respectively, of this section, provided that the denied or revoked petition was filed on or after January 17, 2025. In addition, USCIS will deny any H-2B petition filed by the same petitioner or successor in interest within 1 year after withdrawal of an H-2B or H-2A petition filed on or after January 17, 2025, that was withdrawn following USCIS issuance of a request for evidence or notice of intent to deny or revoke the petition on the basis of paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), respectively, of this section.

(D)Reimbursement as condition of approval of future H-2B petitions—(1) Additional 3-year denial period of subsequent H-2B petitions. For an additional 3 years after the 1-year period described in paragraph (h)(6)(i)(C) of this section, USCIS will deny any H-2B petition filed by the same petitioner or successor in interest, unless the petitioner or successor in interest demonstrates to USCIS that the petitioner or successor in interest, or the petitioner's or successor in interest's agent, facilitator, recruiter, or similar employment service, reimbursed in full each beneficiary, or the beneficiary's designee only if such beneficiary cannot be located or is deceased, of the denied or revoked petition from whom a prohibited fee was collected. USCIS will deny H-2B petitions under this provision based on the denial or revocation decision(s) issued pursuant to paragraph (h)(6)(i)(B) or (h)(5)(xi)(A) of this section on a prior petition filed on or after January 17, 2025.

(E)[Reserved]

(F)Petitioner agreements and notification requirements—(1) Agreements. The petitioner must notify DHS, within 2 workdays, and beginning on a date and in a manner specified in a notice published in the Federal Register if: An H-2B worker does not report for work within 5 workdays after the employment start date stated on the petition; the nonagricultural labor or services for which H-2B workers were hired were completed more than 30 days early; or an H-2B worker does not report for work for a period of 5 consecutive workdays without the consent of the employer or is terminated prior to the completion of the nonagricultural labor or services for which they were hired. The petitioner must also retain evidence of such notification and make it available for inspection by DHS officers for a 1-year period beginning on the date of the notification.

(2)Consent. In filing an H-2B petition, the petitioner and each employer (if different from the petitioner) consent to allow Government access to all sites where the labor is being or will be performed and agrees to fully cooperate with any compliance review, evaluation, verification, or inspection conducted by USCIS, including an on-site inspection of the employer's facilities, review of the employer's records related to the compliance with immigration laws and regulations, and interview of the employer's employees and any other individuals possessing pertinent information, which may be conducted in the absence of the employer or the employer's representatives, as a condition for the approval of the petition. The interviews may be conducted on the employer's property, or as feasible, at a neutral location agreed to by the employee and USCIS away from the employer's property. If USCIS is unable to verify facts, including due to the failure or refusal of the petitioner or employer to cooperate in an inspection or other compliance review, then such inability to verify facts, including due to failure or refusal to cooperate, may result in denial or revocation of any H-2B petition for H-2B workers performing services at the location or locations that are a subject of inspection or compliance review.

(xi)That the alien will not be engaged in secular employment.

(1)If USCIS determines that the petitioner or any of its employees, whether before or after the filing of the H-2A petition, has collected, or entered into an agreement to collect, a prohibited fee related to the H-2A employment, USCIS will deny or revoke the H-2A petition filed on or after January 17, 2025 on notice unless the petitioner demonstrates through clear and convincing evidence that: the petitioner made ongoing, good faith, reasonable efforts to prevent and learn of the prohibited fee collection or agreement by its employees throughout the recruitment, hiring, and employment process; extraordinary circumstances beyond the petitioner's control resulted in its failure to prevent collection or entry into agreement for collection of prohibited fees; the petitioner took immediate remedial action as soon as it became aware of the payment of or agreement to pay the prohibited fee; and the petitioner fully reimbursed all affected beneficiaries or, only if such beneficiaries cannot be located or are deceased, it fully reimbursed the beneficiaries' designees.

(2)Successor in interest. For the purposes of paragraphs (h)(5)(xi)(B) and (C) of this section, successor in interest means an employer that is controlling and carrying on the business of a previous employer regardless of whether such successor in interest has succeeded to all of the rights and liabilities of the predecessor entity. The following factors may be considered by USCIS in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole:

(3)For purposes of paragraph (h)(5)(xi) of this section, a designee must be an individual or entity for whom the beneficiary has provided the petitioner or its successor in interest prior written authorization to receive such reimbursement, as long as the petitioner or its successor in interest, or its agent, employer, or any joint employer, attorney, facilitator, recruiter, or similar employment service would not act as such designee or derive any financial benefit, either directly or indirectly, from the reimbursement.

(B)One-year denial period of subsequent H-2A petitions. USCIS will deny any H-2A petition filed by the same petitioner or a successor in interest within 1 year after the decision denying or revoking on notice an H-2B or H-2A petition on the basis of paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), respectively, of this section, provided that the denied or revoked petition was filed on or after January 17, 2025. In addition, USCIS will deny any H-2A petition filed by the same petitioner or successor in interest within 1 year after withdrawal of an H-2A or H-2B petition filed on or after January 17, 2025, that was withdrawn following USCIS issuance of a request for evidence or notice of intent to deny or revoke the petition on the basis of paragraph (h)(5)(xi)(A) or (h)(6)(i)(B), respectively, of this section.

(C)Reimbursement as condition of approval of future H-2A petitions—(1) Additional 3-year denial period of subsequent H-2A petitions. For an additional 3 years after the 1-year period described in paragraph (h)(5)(xi)(B) of this section, USCIS will deny any H-2A petition filed by the same petitioner or successor in interest, unless the petitioner or successor in interest demonstrates to USCIS that the petitioner, successor in interest, or the petitioner's or successor in interest's agent, facilitator, recruiter, or similar employment service, or any joint employer, including a member employer if the petitioner is an association of U.S. agricultural producers, reimbursed in full each beneficiary, or the beneficiary's designee only if such beneficiary cannot be located or is deceased, of the denied or revoked petition from whom a prohibited fee was collected. USCIS will deny H-2A petitions under this provision based on the denial or revocation decision(s) issued pursuant to paragraph (h)(5)(xi)(A) or (h)(6)(i)(B) of this section on a prior petition filed on or after January 17, 2025.

(9)Evidence relating to the petitioning organization. A petition shall include the following initial evidence relating to the petitioning organization:

(xiv)Special requirements for additional cap allocations under Public Laws 117-328 and 118-15—(A) Public Law 117-328 and section 101(6) of Division A of Public Law 118-15, Continuing Appropriations Act, 2024 and Other Extensions Act—(1) Supplemental allocation for returning workers. Notwithstanding the numerical limitations set forth in paragraph (h)(8)(i)(C) of this section, for fiscal year 2024 only, the Secretary has authorized up to an additional 64,716 visas for aliens who may receive H-2B nonimmigrant visas pursuant to section 303 of Division O of Public Law 117-328, the Consolidated Appropriations Act, 2023, and section 101(6) of Division A of Public Law 118-15, Continuing Appropriations Act, 2024 and Other Extensions Act. An alien may be eligible to receive an H-2B nonimmigrant visa under this paragraph (h)(6)(xiv)(A)(1) if she or he is a returning worker. The term “returning worker” under this paragraph (h)(6)(xiv)(A)(1) means a person who was issued an H-2B visa or was otherwise granted H-2B status in fiscal year 2021, 2022, or 2023. Notwithstanding § 248.2 of this chapter, an alien may not change status to H-2B nonimmigrant under this paragraph (h)(6)(xiv)(A)(1). The additional H-2B visas authorized under this paragraph will be made available to returning workers as follows:

(i)Its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to this paragraph (h)(6)(xiv);

(ii)All workers requested and/or instructed to apply for a visa have been issued an H-2B visa or otherwise granted H-2B status in fiscal year 2021, 2022, or 2023, unless the H-2B worker is a national of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica who is counted towards the 20,000 cap described in paragraph (h)(6)(xiv)(A)(2) of this section;

(iii)The employer will comply with obligations and additional recruitment requirements outlined in 20 CFR 655.64(a)(3) through (5);

(1)Comply with all other statutory and regulatory requirements for H-2B classification, including, but not limited to, requirements in this section, under part 103 of this chapter, and under 20 CFR part 655 and 29 CFR part 503; and

(2)Submit to USCIS, at the time the employer files its petition, a U.S. Department of Labor attestation, in compliance with this section and 20 CFR 655.64, evidencing that:

(B)Eligibility. In order to file a petition with USCIS under this paragraph (h)(6)(xiv), the petitioner must:

(iv)The employer will provide documentary evidence of the facts in paragraphs (h)(6)(xiv)(B)(2)(i) through (iii) of this section to DHS and/or DOL upon request; and

(v)The employer will agree to fully cooperate with any compliance review, evaluation, verification, or inspection conducted by DHS, including an on-site inspection of the employer's facilities, interview of the employer's employees and any other individuals possessing pertinent information, and review of the employer's records related to the compliance with immigration laws and regulations, including but not limited to evidence pertaining to or supporting the eligibility criteria for the FY 2024 supplemental allocations outlined in paragraph (h)(6)(xiv)(B) of this section, as a condition for the approval of the petition.

(vi)The employer will fully cooperate with any audit, investigation, compliance review, evaluation, verification or inspection conducted by DOL, including an on-site inspection of the employer's facilities, interview of the employer's employees and any other individuals possessing pertinent information, and review of the employer's records related to the compliance with applicable laws and regulations, including but not limited to evidence pertaining to or supporting the eligibility criteria for the FY 2024 supplemental allocations outlined in 20 CFR 655.64(a) and 655.65(a), as a condition for the approval of the H-2B petition. The employer must attest to this on Form ETA-9142-B-CAA-8 and must further attest on Form ETA-9142-B-CAA-8 that it will not impede, interfere, or refuse to cooperate with an employee of the Secretary of the U.S. Department of Labor who is exercising or attempting to exercise DOL's audit or investigative authority pursuant to 20 CFR part 655, subpart A, and 29 CFR 503.25.

(C)Processing—(1) Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(i) requesting FY 2024 employment start dates on or before March 31, 2024. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(i) of this section requesting employment start dates on or before March 31, 2024 that are received after the applicable numerical limitation has been reached or after September 16, 2024.

(2)Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(ii) of this section requesting FY 2024 employment start dates from April 1, 2024 to May 14, 2024. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(ii) of this section requesting employment start dates from April 1, 2024 to May 14, 2024 that are received earlier than 15 days after the INA section 214(g) cap for the second half FY 2024 has been met, or after the applicable numerical limitation has been reached or after September 16, 2024.

(3)Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(iii) of this section requesting FY 2024 employment start dates from May 15, 2024 and September 30, 2024. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(iii) of this section requesting employment start dates from May 15, 2024 to September 30, 2024 that are received earlier than 45 days after the INA section 214(g) cap for the second half FY 2024 has been met, or after the applicable numerical limitation has been reached or after September 16, 2024.

(4)Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(2) requesting nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica with FY 2024 employment start dates. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(2) of this section that have a date of need on or after April 1, 2024 and are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2024 is met, or after the applicable numerical limitation has been reached or after September 16, 2024.

(5)USCIS will not approve a petition filed pursuant to this paragraph (h)(6)(xiv) on or after October 1, 2024.

(D)Numerical limitations under paragraphs (h)(6)(xiv)(A)(1) and (2) of this section. When calculating the numerical limitations under paragraphs (h)(6)(xiv)(A)(1) and (2) of this section as authorized under Public Law 117-328, as extended by Public Law 118-15, USCIS will make numbers for each allocation available to petitions in the order in which the petitions subject to the respective limitation are received. 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 received (including the number of workers requested when necessary) and will notify the public of the dates that USCIS has received the necessary number of petitions (the “final receipt dates”) under paragraph (h)(6)(xiv)(A)(1) or (2). The day the public is notified will not control the final receipt dates. When necessary to ensure the fair and orderly allocation of numbers subject to the numerical limitations in paragraphs (h)(6)(xiv)(A)(1) and (2), USCIS may randomly select from among the petitions received on the final receipt dates the remaining number of petitions deemed necessary to generate the numerical limit of approvals. This random selection will be made via computer-generated selection. Petitions subject to a numerical limitation not randomly selected or that were received after the final receipt dates that may be applicable under paragraph (h)(6)(xiv)(A)(1) or (2) will be rejected. If the final receipt date is any of the first 5 business days on which petitions subject to the applicable numerical limits described in paragraph (h)(6)(xiv)(A)(1) or (2) may be received (in other words, if either of the numerical limits described in paragraph (h)(6)(xiv)(A)(1) or (2) is reached on any one of the first 5 business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those 5 business days.

(E)Sunset. This paragraph (h)(6)(xiv) expires on October 1, 2024.

(F)Non-severability. The requirement to file an attestation under paragraph (h)(6)(xiv)(B)(2) of this section is intended to be non-severable from the remainder of this paragraph (h)(6)(xiv), including, but not limited to, the numerical allocation provisions at paragraphs (h)(6)(xiv)(A)(1) and (2) of this section in their entirety. In the event that any part of this paragraph (h)(6)(xiv) is enjoined or held to be invalid by any court of competent jurisdiction, the remainder of this paragraph (h)(6)(xiv) is also intended to be enjoined or held to be invalid in such jurisdiction, without prejudice to workers already present in the United States under this paragraph (h)(6)(xiv), as consistent with law.

(xv)Special requirements for additional cap allocations under Public Laws 118-47 and 118-83—(A) Public Law 118-47 and sections 101(6) and 106, Division A, Title I of Public Law 118-83—(1) Supplemental allocation for returning workers. Notwithstanding the numerical limitations set forth in paragraph (h)(8)(i)(C) of this section, for fiscal year 2025 only, the Secretary has authorized up to an additional 64,716 visas for aliens who may receive H-2B nonimmigrant visas pursuant to section 105 of Division G, Title I of Public Law 118-47, the Further Consolidated Appropriations Act, 2024, and sections 101(6) and 106, Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118-83. An alien may be eligible to receive an H-2B nonimmigrant visa under this paragraph (h)(6)(xv)(A)(1) if she or he is a returning worker. The term “returning worker” under this paragraph (h)(6)(xv)(A)(1) means a person who was issued an H-2B visa or was otherwise granted H-2B status in fiscal year 2022, 2023, or 2024. Notwithstanding § 248.2 of this chapter, an alien may not change status to H-2B nonimmigrant under this paragraph (h)(6)(xv)(A)(1). The additional H-2B visas authorized under this paragraph will be made available to returning workers as follows:

(i)Demonstrate that the foreign media organization that the alien represents has a home office in a foreign country, and that the home office will continue to operate in the foreign country while the alien is in the United States; and

(2)Evidence. Aliens applying for I nonimmigrant status must:

(ii)Dependents accompanying or following to join the principal I representative of foreign information media. A spouse or unmarried children under the age of 21 of an alien in I nonimmigrant status may be eligible for extensions of stay. The dependent applicant must either be included on the primary applicant's request for an extension of stay or file his or her own extension of stay application on the form designated by USCIS in accordance with paragraph (i)(5)(i) or (iii) of this section. The dependents must demonstrate the qualifying relationship with the principal I representative of foreign information media, be maintaining status, and must not have engaged in any unauthorized employment. Extensions of stay for I dependents may not exceed the authorized admission period of the principal I representative of foreign information media.

(1)“Institution of higher education” has the same definition as described at section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(2)H-1B approvals under paragraph (h)(13)(iii)(D) of this section may be granted in up to 1-year increments until either the approved permanent labor certification expires or a final decision has been made to:

(3)Admission—(i) Length of admission. Generally, aliens seeking admission in I nonimmigrant status may be admitted for a period of time necessary to complete the planned activities or assignments consistent with the I classification, not to exceed 240 days unless paragraph (i)(3)(ii) of this section applies.

(E)Calculating the number of registrations needed to meet the H-1B regular cap and H-1B advanced degree exemption allocation. When calculating the number of registrations for unique beneficiaries needed to meet the H-1B regular cap and the H-1B advanced degree exemption numerical limitation for a given fiscal year, USCIS will take into account historical data related to approvals, denials, revocations, and other relevant factors. If necessary, USCIS may increase those numbers throughout the fiscal year.

(F)Cap exemptions under sections 214(g)(5)(A) and (B) of the Act. An alien is not subject to the numerical limitations identified in section 214(g)(1)(A) of the Act if the alien qualifies for an exemption under section 214(g)(5) of the Act. For purposes of section 214(g)(5)(A) and (B) of the Act:

(4)Change in activity. Aliens admitted pursuant to section 101(a)(15)(I) of the Act may not change the information medium or employer until they obtain permission from USCIS. Aliens must request permission by submitting the form designated by USCIS, in accordance with that form's instructions, and with the required fee, including any biometrics required by 8 CFR 103.16, as appropriate.

(B)Description of training program. Each petition for a trainee must include a statement which:

(5)Extensions of stay—(i) Eligibility; effect of timely filing. (A) Aliens in I nonimmigrant status may be eligible for extensions of stay, each of up to 240 days or until the activities or assignments consistent with the I classification are completed, whichever is shorter (except for aliens who present a passport from the People's Republic of China, with the exception of Hong Kong Special Administrative Region passport holders and Macau Special Administrative Region passport holders, who may be eligible for extensions of stay, each up to 90 days or until the activities or assignments consistent with the I classification are completed, whichever is shorter).

(B)To request an extension of stay, aliens in I nonimmigrant status must file an application to extend their stay by submitting the form designated by USCIS, in accordance with that form's instructions, and with the required fee, including any biometrics required by 8 CFR 103.16, and provide all the evidence required in paragraph (i)(2) of this section, as appropriate. An alien whose I nonimmigrant status, as indicated on the alien's Arrival/Departure Record, Form I-94, has expired but who has timely filed an extension of stay application is authorized to continue engaging in activities consistent with the I classification on the day after the Form I-94 expired, for a period of up to 240 days, as provided in 8 CFR 274a.12(b)(20). Such authorization shall be subject to any conditions and limitations of the initial authorization.

(C)If an extension of stay application remains pending at the end of this 240-day period, the I nonimmigrant alien, whose status has expired, may remain in the United States so long as the extension of stay application is pending, he or she has timely filed a subsequent extension of stay request to remain beyond the period requested in the preceding request, and he or she does not otherwise violate the terms of his or her authorized period of stay. The alien, however, must cease working until his or her initial extension of stay application is approved. USCIS will deny the extension of stay application if the alien did not cease working after the 240-day period and before the extension of stay request was approved.

(6)Exemption eligibility. Only the principal beneficiary of an approved immigrant visa petition for classification under section 203(b)(1), (2), or (3) of the Act may be eligible under paragraph (h)(13)(iii)(E) of this section for an exemption to the maximum period of admission under section 214(g)(4) of the Act.

(7)Increase to the number of beneficiaries projected to meet the H-1B regular cap or advanced degree exemption allocations in a fiscal year. Unselected properly submitted registrations for unique beneficiaries will remain on reserve for the applicable fiscal year. If USCIS determines that it needs to increase the number of registrations for unique beneficiaries projected to meet the H-1B regular cap or advanced degree exemption allocation, and select additional unique beneficiaries, USCIS will select from among the unique beneficiaries with properly submitted registrations that are on reserve a sufficient number to meet the H-1B regular cap or advanced degree exemption numerical limitation, as applicable. If all of the unique beneficiaries on reserve are selected and there are still fewer unique beneficiaries than needed to meet the H-1B regular cap or advanced degree exemption numerical limitation, as applicable, USCIS may reopen the applicable registration period until USCIS determines that it has received a sufficient number of registrations for unique beneficiaries projected as needed to meet the H-1B regular cap or advanced degree exemption numerical limitation. USCIS will monitor the number of properly registered unique beneficiaries and will notify the public of the date that USCIS has received the necessary number of registrations (the new “final registration date”). The day the public is notified will not control the applicable final registration date. When selecting additional unique beneficiaries under this paragraph (h)(8)(iii)(A)(7), USCIS will select unique beneficiaries with properly submitted registrations in accordance with paragraphs (h)(8)(iii)(A)(4) through (6) of this section. If the registration period will be reopened, USCIS will announce the start of the re-opened registration period on the USCIS website at www.uscis.gov.

(B)Confirmation. Petitioners will receive electronic notification that USCIS has accepted a registration for processing.

(C)Notification to file H-1B cap-subject petitions. USCIS will notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the beneficiary named in the notice within the filing period indicated on the notice.

(D)H-1B cap-subject petition filing following registration—(1) Filing procedures. In addition to any other applicable requirements, a petitioner may file an H-1B petition for a beneficiary who may be counted under section 214(g)(1)(A) of the Act or eligible for exemption under section 214(g)(5)(C) of the Act only if the petition is based on a valid registration, which means that the registration was properly submitted in accordance with § 103.2(a)(1) of this chapter, paragraph (h)(8)(iii) of this section, and the registration tool instructions; and was submitted by the petitioner, or its designated representative, on behalf of the beneficiary who was selected for that cap season by USCIS. A petitioner may not substitute the beneficiary named in the original registration or transfer the registration to another petitioner. An H-1B petition filed on behalf of a beneficiary must contain and be supported by the same identifying information and position information, including SOC code, provided in the selected registration and indicated on the labor condition application used to support the petition, and must include a proffered wage that equals or exceeds the prevailing wage for the corresponding OEWS wage level in the registration for the SOC code in the area(s) of intended employment as described in paragraph (h)(8)(iii)(A)(4)(i) of this section. Petitioners must submit evidence of the basis of the wage level selected on the registration as of the date that the registration underlying the petition was submitted. Petitioners must also submit evidence of the passport or travel document used at the time of registration to identify the beneficiary. In its discretion, USCIS may find that a change in the beneficiary's identifying information in some circumstances would be permissible. Such circumstances could include, but are not limited to, a legal name change due to marriage or a change in passport number or expiration date due to renewal or replacement of a stolen passport, in between the time of registration submission and petition filing. In its discretion, USCIS may find that a change in the area(s) of intended employment would be permissible, provided such change is consistent with the requirement of a bona fide job offer at the time of registration as stated in paragraph (h)(10)(ii) of this section. USCIS may deny or revoke the approval of an H-1B petition that does not meet these requirements.

(13)Admission—(i) General. (A) An H-3 beneficiary will 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 section 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 toward fulfillment of the required time abroad. A certain period of absence from the United States of H-2A and H-2B aliens, as set forth in 8 CFR 214.2(h)(5)(viii)(D) and 8 CFR 214.2(h)(6)(vii)(C), respectively, will provide a new total of 3 years that H-2A or H-2B status may be granted. The petitioner must provide information about the alien's employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to reside abroad.

(C)An alien admitted or otherwise provided status in H-2A or H-2B classification and their dependents will not be considered to have failed to maintain nonimmigrant status, and will not accrue any period of unlawful presence under section 212(a)(9) of the Act (8 U.S.C. 1182(a)(9)), solely on the basis of a cessation of the employment on which the alien's classification was based, for 60 consecutive days or until the end of the authorized period of admission, whichever is shorter, once during each authorized period of admission. During such a period, the alien may only work as otherwise authorized under 8 CFR 274a.12.

(D)An alien in any authorized period described in paragraph (C) of this section may apply for and be granted an extension of stay under 8 CFR 214.1(c)(4) or change of status under 8 CFR 248.1, if otherwise eligible.

(21)-(29) [Reserved]

(30)Severability. The Department intends that should any of the revisions effective on January 17, 2025, to provisions in paragraphs (h)(2), (5), (6), (10), (11), (13), (16) and (20) of this section or to the provision in 8 CFR 274a.12(b)(21) be held to be invalid or unenforceable by their terms or as applied to any person or circumstance they should nevertheless be construed so as to continue to give the maximum effect to the provision(s) permitted by law, unless any such provision is held to be wholly invalid and unenforceable, in which event the provision(s) should be severed from the remainder of the provisions and the holding should not affect the other provisions or the application of those other provisions to persons not similarly situated or to dissimilar circumstances.

(31)Change of employers and portability for H-2B workers. (i) This paragraph (h)(31) relates to H-2B workers seeking to change employers during the time period specified in paragraph (h)(31)(iv) of this section. Notwithstanding paragraph (h)(2)(i)(D) of this section:

(A)An alien in valid H-2B nonimmigrant status whose new petitioner files a non-frivolous H-2B petition requesting an extension of the alien's stay on or after January 25, 2024, is authorized to begin employment with the new petitioner after the petition described in this paragraph (h)(31) is received by USCIS and before the new H-2B petition is approved, but no earlier than the start date indicated in the new H-2B petition; or

(B)An alien whose new petitioner filed a non-frivolous H-2B petition requesting an extension of the alien's stay before January 25, 2024, that remains pending on January 25, 2024, is authorized to begin employment with the new petitioner before the new H-2B petition is approved, but no earlier than the start date of employment indicated on the new H-2B petition.

(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)With respect to a new petition described in paragraph (h)(32)(i)(B) of this section, the new period of employment described in paragraph (h)(32)(i) of this section may last for up to 60 days beginning on the later of either January 25, 2025, or the start date of employment indicated in the H-2B petition.

(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)With respect to either type of new petition, if USCIS adjudicates the new petition before the expiration of this 60-day period and denies the petition, or if the new petition is withdrawn by the petitioner before the expiration of the 60-day period, the employment authorization associated with the filing of that petition under 8 CFR 274a.12(b)(35) will automatically terminate 15 days after the date of the denial decision or 15 days after the date on which the new petition is withdrawn. Nothing in this paragraph (h)(32) is intended to alter the availability of employment authorization related to professional H-2B athletes who are traded between organizations pursuant to paragraph (h)(6)(vii) of this section and 8 CFR 274a.12(b)(9).

(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.

(2)If USCIS does not issue an RFE concerning the requested dates of employment, if the petitioner does not respond, or the RFE response does not support new dates of employment, the petition will be approved, if otherwise approvable, for the originally requested period or until the end-date eligibility has been established, as appropriate. However, the petition will not be forwarded to the Department of State nor will any accompanying request for a change of status, an extension of stay, or amendment of stay, be granted.

(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.

(iii)Aliens with a passport from People's Republic of China. (A) In the case of an alien who presents a passport issued by the People's Republic of China (other than a Hong Kong Special Administrative Region passport or a Macau Special Administrative Region passport), an extension of stay may be authorized until the activities or assignments consistent with the I classification are completed, not to exceed the maximum period of stay of 90 days. To request an extension of stay, these aliens must file an application to extend their stay by submitting the form designated by USCIS, in accordance with that form's instructions, and with the required fee, including any biometrics required by 8 CFR 103.16, as appropriate. Notwithstanding paragraph (i)(5)(i) of this section and 8 CFR 274a.12(b)(20), an alien in I nonimmigrant status who is described in paragraph (i)(3)(ii) of this section whose status, as indicated on the alien's Arrival/Departure Record, Form I-94, has expired but who has timely filed an extension of stay application is authorized to continue engaging in activities consistent with the I classification and continue employment with the same employer on the day after the status indicated on the Form I-94 expired, for a period of up to 90 days. Such authorization shall be subject to any conditions and limitations of the initial authorization.

(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, H-1B registration (if applicable), the application for a temporary labor certification, or the labor condition application, was not true and correct, inaccurate, fraudulent, or misrepresented a material fact, including if the attestations on the registration are determined to be false; or

(B)Eligibility. In order to file a petition with USCIS under this paragraph (h)(6)(xv), the petitioner must:

(E)(1) With respect to denials under paragraph (h)(10)(iv)(A) of this section, USCIS will inform the petitioner of the right to appeal the denial under 8 CFR 103.3, and indicate in the denial notice that the mandatory ground of denial will also apply in the adjudication of any other pending or future H-2 petition filed by the petitioner or a successor in interest during the applicable time period.

(F)If USCIS has determined in the course of a prior adjudication that a petitioner (or the preceding entity, if the petitioner is a successor in interest) has established its intention and ability to comply with H-2A or H-2B program requirements notwithstanding relevant violation determination(s) under paragraph (h)(10)(iv)(B) of this section, USCIS will not seek to deny a subsequent petition under paragraph (h)(10)(iv)(B) based on the same previous violation determination(s) unless USCIS becomes aware of a new material fact or finds that its previous determination was based on a material error of law.

(3)The petitioner violated terms and conditions of the approved petition; or

(C)In determining whether the underlying violation(s) in paragraph (h)(10)(iv)(B) of this section calls into question the intention and/or ability of the petitioner or its successor in interest to comply with H-2A or H-2B program requirements, USCIS will consider all relevant factors, including, but not limited to:

(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 paragraph (h) of this section or involved gross error; or

(6)The H-1B cap-subject petition was not based on a valid registration submitted by the petitioner (or its designated representative), or a successor in interest, for the beneficiary named or identified in the petition;

(7)The petitioner failed to timely file an amended petition notifying USCIS of a material change or otherwise failed to comply with the material change reporting requirements in paragraph (h)(2)(i)(E) of this section; or

(8)The petitioner, or a related entity, filed a new or amended petition on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner's (or related entity's) attempt to unfairly increase the chance of selection during the registration or petition selection process, as applicable, such as by changing the proffered wage in a subsequent new or amended petition to an amount that would be equivalent to a lower wage level than that indicated on the registration, or the original cap-subject petition if the registration process was suspended.

(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.

(D)For purposes of paragraph (h)(10)(iv) of this section, a criminal conviction or final administrative or judicial determination against any one of the following individuals will be treated as a conviction or final administrative or judicial determination against the petitioner or successor in interest:

(11)Revocation of approval of petition—(i) General. (A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on the form prescribed by USCIS should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition. However, H-2A and H-2B petitioners must send notification to DHS pursuant to paragraphs (h)(5)(vi) and (h)(6)(i)(F) of this section respectively.

(B)The director may revoke a petition at any time, even after the expiration of the petition.

(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.

(A)The alien must either:

(1)Have been in valid H-2B nonimmigrant status on or after January 25, 2025 and be the beneficiary of a non-frivolous H-2B petition requesting an extension of the alien's stay that is received on or after January 25, 2025, but no later than January 24, 2026; or

(2)Be the beneficiary of a non-frivolous H-2B petition requesting an extension of the alien's stay that is pending as of January 25, 2025; and

(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)If an extension of stay application remains pending at the end of this 90-day period, the I nonimmigrant alien, whose status has expired, may remain in the United States so long as the extension of stay application is pending, he or she has timely filed a subsequent extension of stay request to remain beyond the period requested in the preceding request, and he or she does not otherwise violate the terms of his or her authorized period of stay. The alien, however, must cease working until his or her initial extension of stay application is approved. USCIS may deny the extension of stay application if the alien did not cease working after the 90-day period and before the extension of stay request was approved.

(1)The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;

(2)The nonprofit entity is operated by an institution of higher education;

(3)The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or

(4)The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education. A nonprofit entity may engage in more than one fundamental activity;

(C)A nonprofit research organization or government research organization. When a fundamental activity of a nonprofit organization is engaging in basic research and/or applied research, that organization is a nonprofit research organization. When a fundamental activity of a governmental organization is the performance or promotion of basic research and/or applied research, that organization is a government research organization. A governmental research organization may be a Federal, State, or local entity. A nonprofit research organization or governmental research organization may perform or promote more than one fundamental activity. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. 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. Both basic research and applied research may include research and investigation in the sciences, social sciences, or humanities and may include designing, analyzing, and directing the research of others if on an ongoing basis and throughout the research cycle;

(1)It is the H-1B petitioner's burden to request and demonstrate the specific amount of time for recapture on behalf of the beneficiary. The beneficiary may provide appropriate evidence, such as copies of passport stamps, Arrival-Departure Records (Form I-94), or airline tickets, together with a chart, indicating the dates spent outside of the United States, and referencing the relevant independent documentary evidence, when seeking to recapture the alien's time spent outside the United States. Based on the evidence provided, USCIS may grant all, part, or none of the recapture period requested.

(2)If the beneficiary was previously counted toward the H-1B numerical cap under section 214(g)(1) of the Act with respect to the 6-year maximum period of H-1B admission from which recapture is sought, the H-1B petition seeking to recapture a period of stay as an H-1B nonimmigrant will not subject the beneficiary to the H-1B numerical cap, whether or not the alien has been physically outside the United States for 1 year or more and would be otherwise eligible for a new period of admission under such section of the Act. An H-1B petitioner may either seek such recapture on behalf of the alien or, consistent with paragraph (h)(13)(iii) of this section, seek a new period of admission on behalf of the alien under section 214(g)(1) of the Act.

(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 defined in paragraph (h)(19)(iii) of this section, or an employer filing a petition described in paragraph (h)(19)(v) of this section) who files a petition or application must include the additional American Competitiveness and Workforce Improvement Act (ACWIA) fee referenced in 8 CFR 106.2, if the petition is filed for any of the following purposes:

(D)A primary or secondary education institution; or

(E)A nonprofit entity which engages in an established curriculum-related clinical training of students registered at an institution of higher education.

(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)Documentation. The facially expired Arrival/Departure Record, Form I-94, or successor form of an alien described in paragraphs (i)(5)(i) through (iii) of this section is considered unexpired when combined with a USCIS receipt notice indicating receipt of a timely filed extension of stay application. An application is considered timely filed if the receipt notice for the application is on or before the date the admission period expires. Such extension may not exceed the earlier of 240 days (90 days for aliens who present a passport issued by the People's Republic of China (with the exception of Hong Kong Special Administrative Region passport holders and Macau Special Administrative Region passport holders)) as provided in 8 CFR 274a.12(b)(20), or the date of denial of the alien's application for an extension of stay.

(1)Validity periods. USCIS may grant validity periods for petitions approved under this paragraph in increments of up to 3 years for as long as the alien remains eligible for this exemption.

(2)H-1B approvals under paragraph (h)(13)(iii)(E) of this section may be granted until a final decision has been made to:

(3)No final decision while appeal available or pending. A decision to deny or revoke an application for labor certification, or to deny or revoke the approval of an immigrant visa petition, will not be considered final under paragraph (h)(13)(iii)(D)(2)(i) or (ii) of this section during the period authorized for filing an appeal of the decision, or while an appeal is pending.

(B)Evidence. An H-3 petition for a participant in a special education exchange visitor program shall be accompanied by:

(4)Substitution of beneficiaries. An alien who has been replaced by another alien, on or before July 16, 2007, as the beneficiary of an approved permanent labor certification may not rely on that permanent labor certification to establish eligibility for H-1B status based on this lengthy adjudication delay exemption. Except for a substitution of a beneficiary that occurred on or before July 16, 2007, an alien establishing eligibility for this lengthy adjudication delay exemption based on a pending or approved labor certification must be the named beneficiary listed on the permanent labor certification.

(5)Advance filing. A petitioner may file an H-1B petition seeking a lengthy adjudication delay exemption under paragraph (h)(13)(iii)(D) of this section within 6 months of the requested H-1B start date. The petition may be filed before 365 days have elapsed since the labor certification application or immigrant visa petition was filed with the Department of Labor or USCIS, respectively, provided that the application for labor certification or immigrant visa petition must have been filed at least 365 days prior to the date the period of admission authorized under this exemption will take effect. The petitioner may request any time remaining to the beneficiary under the maximum period of admission described at section 214(g)(4) of the Act along with the exemption request, but in no case may the approved H-1B period of validity exceed the limits specified by paragraph (h)(9)(iii) of this section. Time remaining to the beneficiary under the maximum period of admission described at section 214(g)(4) of the Act may include any request to recapture unused H-1B, L-1A, or L-1B time spent outside of the United States.

(6)Denials. If an alien's extension of stay application is denied and the alien's authorized admission period has expired, the alien and his or her dependents must immediately depart the United States.

(7)Change of status. An alien seeking to change from a different nonimmigrant status to, if eligible, an I nonimmigrant status as described in this section, may be granted a period of stay until the activities or assignments consistent with the I classification are completed, not to exceed the maximum period of stay stated in paragraph (i)(3) of this section. To request a change from a different nonimmigrant status to an I nonimmigrant status as described in this section, an alien must file an application to change his or her status by submitting the form designated by USCIS, in accordance with that form's instructions, and with the required fee, including any biometrics required by 8 CFR 103.16, as appropriate.

(8)Severability. The provisions in this paragraph (i) are intended to be independent severable parts. In the event that any provision in this paragraph (i) is not implemented, DHS intends that the remaining provisions be implemented as an independent rule.

(A)Aliens classified as H-1B nonimmigrants, excluding those involved in Department of Defense research and development projects or coproduction projects, may not exceed the limits identified in section 214(g)(1)(A) of the Act.

(B)Aliens classified as H-1B nonimmigrants to work for DOD research and development projects or coproduction projects may not exceed 100 at any time.

(C)Aliens classified as H-2B nonimmigrants may not exceed 66,000.

(D)Aliens classified as H-3 nonimmigrant participants in a special education exchange visitor program may not exceed 50.

(E)Aliens classified as H-1C nonimmigrants may not exceed 500 in a fiscal year.

(9)Exemption eligibility. Only a principal beneficiary of a nonfrivolous labor certification application or immigrant visa petition filed on his or her behalf may be eligible under paragraph (h)(13)(iii)(D) of this section for an exemption to the maximum period of admission under section 214(g)(4) of the Act.

(10)Limits on future exemptions from the lengthy adjudication delay. An alien is ineligible for the lengthy adjudication delay exemption under paragraph (h)(13)(iii)(D) of this section if the alien is the beneficiary of an approved petition under section 203(b) of the Act and fails to file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant visa being authorized for issuance based on his or her preference category and country of chargeability. If the accrual of such 1-year period is interrupted by the unavailability of an immigrant visa, a new 1-year period shall be afforded when an immigrant visa again becomes immediately available. USCIS may excuse a failure to file in its discretion if the alien establishes that the failure to apply was due to circumstances beyond his or her control. The limitations described in this paragraph apply to any approved immigrant visa petition under section 203(b) of the Act, including petitions withdrawn by the petitioner or those filed by a petitioner whose business terminates 180 days or more after approval.

(E)Per-country limitation exemption from section 214(g)(4) of the Act. An alien who currently maintains or previously held H-1B status, who is the beneficiary of an approved immigrant visa petition for classification under section 203(b)(1), (2), or (3) of the Act, and who is eligible to be granted that immigrant status but for application of the per country limitation, is eligible for H-1B status beyond the 6-year limitation under section 214(g)(4) of the Act. The petitioner must demonstrate such visa unavailability as of the date the H-1B petition is filed with USCIS.

(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.

(32)Change of employers and portability for H-2B workers. (i) This paragraph (h)(32) relates to H-2B workers seeking to change employers during the time period specified in paragraph (h)(32)(iv) of this section. Notwithstanding paragraph (h)(2)(i)(D) of this section:

(A)An alien in valid H-2B nonimmigrant status whose new petitioner files a non-frivolous H-2B petition requesting an extension of the alien's stay on or after January 25, 2025, is authorized to begin employment with the new petitioner after the petition described in this paragraph (h)(32) is received by USCIS and before the new H-2B petition is approved, but no earlier than the start date indicated in the new H-2B petition; or

(B)An alien whose new petitioner filed a non-frivolous H-2B petition requesting an extension of the alien's stay before January 25, 2025, that remains pending on January 25, 2025, is authorized to begin employment with the new petitioner before the new H-2B petition is approved, but no earlier than the start date of employment indicated on the new H-2B petition.

(33)Severability. The Department intends that should any of the revisions effective on January 17, 2025, to provisions in paragraphs (f)(5), (h)(2), (4) through (6), (8), (9), (11), (14), and (19), (l)(14), (o)(11), and (p)(13) of this section or to the provisions in 8 CFR 214.1(c)(1) and (4) through (7) be held to be invalid or unenforceable by their terms or as applied to any person or circumstance they should nevertheless be construed so as to continue to give the maximum effect to the provision(s) permitted by law, unless any such provision is held to be wholly invalid and unenforceable, in which event the provision(s) should be severed from the remainder of the provisions and the holding should not affect the other provisions or the application of those other provisions to persons not similarly situated or to dissimilar circumstances.

(B)Petition-based cap-subject selections in event of suspended registration process. In any year in which USCIS suspends the H-1B registration process for cap-subject petitions, USCIS will allow for the submission of H-1B petitions notwithstanding paragraph (h)(8)(iii) of this section and conduct a cap-subject selection process based on the petitions that are received. Each petitioner must select the highest OEWS wage level that the beneficiary's proffered wage equals or exceeds for the relevant SOC code in the area(s) of intended employment. If the beneficiary's proffered wage is lower than OEWS wage level I, because it is based on a prevailing wage from another legitimate source (other than OEWS) or an independent authoritative source, the petitioner must select “wage level I.” If the beneficiary will work in multiple locations, or in multiple positions if the petitioner is an agent, the petitioner must select the lowest corresponding OEWS wage level that the beneficiary's proffered wage will equal or exceed. Where there is no current OEWS prevailing wage information for the beneficiary's proffered position, the petitioner must select the appropriate wage level that corresponds to the requirements of the beneficiary's proffered position using the Department of Labor's prevailing wage guidance. If a random selection is necessary, each petition will be assigned the OEWS wage level selected in accordance with form instructions and will be entered into the selection pool in a weighted manner as follows: a petition assigned wage level IV will be entered into the selection pool four times, a petition assigned wage level III will be entered into the selection pool three times, a petition assigned wage level II will be entered into the selection pool two times, and a petition assigned wage level I will be entered into the selection pool one time. The selection will be made via computer-generated selection. Petitioners must submit evidence of the basis of the selected wage level as of the date the petition is submitted. USCIS will deny petitions indicating that they are exempt from the H-1B regular cap and the H-1B advanced degree exemption if USCIS determines, after the final receipt date, that they are not eligible for the exemption sought. If USCIS determines, on or before the final receipt date, that the petition is not eligible for the exemption sought, USCIS may consider the petition under the applicable numerical allocation and proceed with processing of the petition. If a petition is denied under this paragraph (h)(8)(iv)(B), USCIS will not return or refund filing fees.

(1)H-1B regular cap selection in event of suspended registration process. In determining whether there are enough H-1B cap-subject petitions to meet the H-1B regular cap, USCIS will consider all petitions properly submitted in accordance with § 103.2 of this chapter relating to beneficiaries who may be counted under section 214(g)(1)(A) of the Act, including those who may be eligible for exemption under section 214(g)(5)(C) of the Act. When calculating the number of petitions needed to meet the H-1B regular cap, USCIS will take into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions received and will announce on its website the date that it receives the number of petitions projected as needed to meet the H-1B regular cap (the “final receipt date”). The date the announcement is posted will not control the final receipt date. If the final receipt date is any of the first five business days on which petitions subject to the H-1B regular cap may be received (in other words, if the numerical limitation is reached on any one of the first five business days that filings can be made), USCIS will weight each petition as described in paragraph (h)(8)(iv)(B) of this section and randomly select the number of petitions properly submitted during the first five business days deemed necessary to meet the H-1B regular cap.

(2)Advanced degree exemption selection in event of suspended registration process. After USCIS has received a sufficient number of petitions to meet the H-1B regular cap and, as applicable, completed the random selection process of petitions for the H-1B regular cap, USCIS will determine whether there is a sufficient number of remaining petitions to meet the H-1B advanced degree exemption numerical limitation. When calculating the number of petitions needed to meet the H-1B advanced degree exemption numerical limitation, USCIS will take into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions received and will announce on its website the date that it receives the number of petitions projected as needed to meet the H-1B advanced degree exemption numerical limitation (the “final receipt date”). The date the announcement is posted will not control the final receipt date. If the final receipt date is any of the first five business days on which petitions subject to the H-1B advanced degree exemption may be received (in other words, if the numerical limitation is reached on any one of the first five business days that filings can be made), USCIS will weight each petition as described in paragraph (h)(8)(iv)(B) of this section and randomly select the number of petitions properly submitted during the first five business days deemed necessary to meet the H-1B advanced degree exemption numerical limitation.

(v)Filing situations where the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee is not required. The ACWIA fee is not required if:

(1)A final administrative determination by the Secretary of Labor or the Governor of Guam with respect to a prior H-2A or H-2B temporary labor certification that includes:

(2)A final USCIS denial or revocation decision issued during the pendency of the petition or within 3 years prior to filing the petition that includes a finding of fraud or willful misrepresentation of a material fact with respect to a previously filed H-2A or H-2B petition. This provision will only apply if the final denial or revocation decision was issued on a petition filed on or after January 17, 2025; or

(3)A final determination of violation(s) under section 274(a) of the Act during the pendency of the petition or within 3 years prior to filing the petition if the final determination of violation(s) under section 274(a) of the Act is made on or after January 17, 2025 and the petition is filed on or after January 17, 2025.

(B)Except as provided in paragraph (h)(10)(iv)(A) of this section, USCIS may deny any H-2A or H-2B petition filed by a petitioner, or the successor in interest of a petitioner as defined in paragraphs (h)(5)(xi)(C)(2) and (h)(6)(i)(D)(2) of this section on or after January 17, 2025, that has been the subject of one or more of the following actions during the pendency of the petition or within 3 years prior to filing the petition, regardless of whether the action(s) or underlying violation(s) occurred before, on, or after January 17, 2025. USCIS may deny such a petition if it determines that the petitioner or successor has not established its intention and/or ability to comply with H-2A or H-2B program requirements. The violation(s) underlying the following actions that may call into question a petitioner's or successor's intention and/or ability to comply include:

(14)Extension of visa petition validity. The petitioner must file a request for a petition extension on the Form I-129 to extend the validity of the original petition under section 101(a)(15)(H) of the Act. A request for a petition extension generally 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 the form prescribed by USCIS 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.

(A)The petition is an amended H-1B petition that does not contain any requests for an extension of stay;

(B)The petition is an H-1B petition filed for the sole purpose of correcting a Service error; or

(C)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 ACWIA fee was paid on the initial petition or the first extension of stay.

(vi)ACWIA fee exemption evidence. (A) Employer claiming to be exempt. An employer claiming to be exempt from the ACWIA fee must file the form prescribed by USCIS, in accordance with the form instructions, including supporting evidence 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 ACWIA 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.

(A)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)(vi)(C) of this section).

(B)Exempt filing situations. Any non-exempt employer who claims that the ACWIA fee does not apply with respect to a particular filing for one of the reasons described in paragraph (h)(19)(v) of this section must indicate why the ACWIA fee is not required.

(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.

(20)Retaliatory action claims. (i) If credible documentary evidence is provided in support of a petition seeking an extension of H-1B stay in or change of status to another classification indicating that the beneficiary faced retaliatory action from their employer based on a report regarding a violation of that employer's labor condition application obligations under section 212(n)(2)(C)(iv) of the Act, USCIS may consider a loss or failure to maintain H-1B status by the beneficiary related to such violation as due to, and commensurate with, “extraordinary circumstances” as defined by 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).

(C)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.

(2)Petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of this section requesting FY 2025 employment start dates from April 1, 2025 to May 14, 2025. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of this section requesting employment start dates from April 1, 2025 to May 14, 2025 that are received earlier than 15 days after the INA section 214(g) cap for the second half FY 2024 has been met, or after the applicable numerical limitation has been reached or after September 15, 2025.

(3)Petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii) of this section requesting FY 2025 employment start dates from May 15, 2025 and September 30, 2025. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii) of this section requesting employment start dates from May 15, 2025 to September 30, 2025 that are received earlier than 45 days after the INA section 214(g) cap for the second half FY 2025 has been met, or after the applicable numerical limitation has been reached or after September 15, 2025.

(4)Petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) requesting nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica with FY 2025 employment start dates. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) of this section that have a date of need on or after April 1, 2025, and are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2025 is met, or after the applicable numerical limitation has been reached or after September 15, 2025.

(5)USCIS will not approve a petition filed pursuant to this paragraph (h)(6)(xv) on or after October 1, 2025.

(D)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.

(E)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.

(F)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.

(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.

(vii)H-2B numerical limitations. When calculating the numerical limitations under section 214(g)(1)(B) and 214(g)(10) of the Act for a given fiscal year, USCIS will make numbers available to petitions in the order in which the petitions are filed. USCIS will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions (including the number of beneficiaries requested when necessary) received and will notify the public of the date that USCIS has received the necessary number of petitions (the “final receipt date”). The day the public is notified will not control the final receipt date. When necessary to ensure the fair and orderly allocation of numbers subject to the numerical limitations in 214(g)(1)(B) and 214(g)(10) of the Act, USCIS may randomly select from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals. This random selection will be made via computer-generated selection. Petitions subject to a numerical limitation not randomly selected or that were received after the final receipt date will be rejected. Petitions indicating that they are exempt from the numerical limitation but that are determined by USCIS after the final receipt date to be subject to the numerical limit will be denied and filing fees will not be returned or refunded. If the final receipt date is any of the first five business days on which petitions subject to the applicable numerical limit may be received (i.e., if the numerical limit is reached on any one of the first five business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those five business days.

(9)Approval and validity of petition—(i) Approval. (A) USCIS will consider all the evidence submitted and any other evidence independently required to assist in adjudication. USCIS will notify the petitioner of the approval of the petition on a Notice of Action. The approval notice will include the beneficiary's (or beneficiaries') 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 will cover only those beneficiaries approved for classification under section 101(a)(15)(H) of the Act.

(B)Where an H-1B petition is approved for less time than requested on the petition, the approval notice will provide or be accompanied by a brief explanation for the validity period granted.

(iv)Employment authorization. An alien with CW-1 nonimmigrant status is only authorized employment in the CNMI for the petitioning employer. An alien with CW-2 status is not authorized to be employed.

(24)Expiration of status. CW-1 status expires when the alien violates his or her CW-1 status (or in the case of a CW-1 status violation caused solely by termination of the alien's employment, at the end of the 30 day period described in paragraph (w)(7)(v) of this section), 10 days after the end of the petition's validity period, when the petition is revoked, or at the end of the transitional worker program, whichever is earlier. CW-2 nonimmigrant status expires when the status of the related CW-1 alien expires, on a CW-2 minor child's 18th birthday, when the alien violates his or her status, or at the end of the transitional worker program, whichever is earlier. No alien will be eligible for admission to the CNMI in CW-1 or CW-2 status, and no CW-1 or CW-2 visa will be valid for travel to the CNMI, after the transitional worker program ends.

(25)Waivers of inadmissibility for applicants lawfully present in the CNMI. An applicant for CW-1 or CW-2 nonimmigrant status, who is otherwise eligible for such status and otherwise admissible to the United States, and who possesses appropriate documents demonstrating that the applicant is lawfully present in the CNMI, may be granted a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Act, including the grounds of inadmissibility described in sections 212(a)(6)(A)(i) and 212(a)(7)(B)(i)(II) of the Act, as a matter of discretion for the purpose of granting the CW-1 or CW-2 nonimmigrant status. Such waiver may be granted without additional form or fee. Appropriate documents required for such a waiver include a valid unexpired passport and other documentary evidence demonstrating that the applicant is lawfully present in the CNMI, such as a DHS-issued Form I-94. Evidence that the applicant possesses appropriate documents may be provided by an employer to accompany a petition, by an eligible spouse or minor child to accompany the Form I-539 (or such alternative form as USCIS may designate), or in such other manner as USCIS may designate.

(26)Semiannual report—(i) Filing. During the validity period of the petition, an employer whose petition has been approved for an employment start date on or after October 1, 2019 and for a validity period of six months or more, shall file a semiannual report, every six months after the petition validity start date up to and including the sixth month preceding the petition's validity end date. The semiannual report must be filed within a 60 day window surrounding the six month anniversary of the petition validity start date, with the filing window opening 30 days before and closing 30 days after the six month anniversary of the petition validity start date. The semiannual report must be filed with USCIS in the form and containing such evidence as USCIS may direct, to verify the continuing employment and payment of the beneficiary under the terms and conditions of the approved petition.

(j)Exchange visitors—(1) General—(i) Eligibility for admission. A nonimmigrant exchange visitor and his or her accompanying spouse and minor children may be admitted into the United States in J-1 and J-2 classifications under section 101(a)(15)(J) of the Act, if the exchange visitor and his or her accompanying spouse and children each presents a SEVIS Form DS-2019 issued in his or her own name by a program approved by the Department of State for participation by J-1 exchange visitors. Prior to August 1, 2003, if exigent circumstances are demonstrated, the Service will allow the dependent of an exchange visitor possessing a SEVIS Form DS-2019 to enter the United States using a copy of the exchange visitor's SEVIS Form DS-2019. However, where the exchange visitor presents a properly completed Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, which was issued to the J-1 exchange visitor by a program approved by the Department of State for participation by exchange visitors and which remains valid for the admission of the exchange visitor, the accompanying spouse and children may be admitted on the basis of the J-1's non-SEVIS Form DS-2019.

(k)Spouses, Fiancées, and Fiancés of United States Citizens—(1) Petition and supporting documents. To be classified as a fiance or fiancee as defined in section 101(a)(15)(K)(i) of the Act, an alien must be the beneficiary of an approved visa petition filed on Form I-129F. A copy of a document submitted in support of a visa petition filed pursuant to section 214(d) of the Act and this paragraph may be accepted, though unaccompanied by the original, if the copy bears a certification by an attorney, typed or rubber-stamped, in the language set forth in § 204.2(j) of this chapter. However, the original document shall be submitted if requested by the Service.

(2)Requirement that petitioner and K-1 beneficiary have met. The petitioner shall establish to the satisfaction of the director that the petitioner and K-1 beneficiary have met in person within the two years immediately preceding the filing of the petition. As a matter of discretion, the director may exempt the petitioner from this requirement only if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the K-1 beneficiary's foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day. In addition to establishing that the required meeting would be a violation of custom or practice, the petitioner must also establish that any and all other aspects of the traditional arrangements have been or will be met in accordance with the custom or practice. Failure to establish that the petitioner and K-1 beneficiary have met within the required period or that compliance with the requirement should be waived shall result in the denial of the petition. Such denial shall be without prejudice to the filing of a new petition once the petitioner and K-1 beneficiary have met in person.

(3)Children of beneficiary. Without the approval of a separate petition on his or her behalf, a child of the beneficiary (as defined in section 101(b)(1)(A), (B), (C), (D), or (E) of the Act) may be accorded the same nonimmigrant classification as the beneficiary if accompanying or following to join him or her.

(4)Notification. The petitioner shall be notified of the decision and, if the petition is denied, of the reasons therefor and of the right to appeal in accordance with the provisions of part 103 of this chapter.

(5)Validity. The approval of a petition under this paragraph shall be valid for a period of four months. A petition which has expired due to the passage of time may be revalidated by a director or a consular officer for a period of four months from the date of revalidation upon a finding that the petitioner and K-1 beneficiary are free to marry and intend to marry each other within 90 days of the beneficiary's entry into the United States. The approval of any petition is automatically terminated when the petitioner dies or files a written withdrawal of the petition before the beneficiary arrives in the United States.

(6)Adjustment of status from nonimmigrant to immigrant.

(i)[Reserved]

(ii)Nonimmigrant visa issued on or after November 10, 1986. Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act.

(7)Eligibility, petition and supporting documents for K-3/K-4 classification. To be classified as a K-3 spouse as defined in section 101(a)(15)(k)(ii) of the Act, or the K-4 child of such alien defined in section 101(a)(15)(K)(iii) of the Act, the alien spouse must be the beneficiary of an immigrant visa petition filed by a U.S. citizen on Form I-130, Petition for Alien Relative, and the beneficiary of an approved petition for a K-3 nonimmigrant visa filed on Form I-129F.

(8)Period of admission for K3/K-4 status. Aliens entering the United States as a K-3 shall be admitted for a period of 2 years. Aliens entering the United States as a K-4 shall be admitted for a period of 2 years or until that alien's 21st birthday, whichever is shorter.

(9)Employment authorization. An alien admitted to the United States as a nonimmigrant under section 101(a)(15)(K) of the Act shall be authorized to work incident to status for the period of authorized stay. K-1/K-2 aliens seeking work authorization must apply, with fee, to the Service for work authorization pursuant to § 274a.12(a)(6) of this chapter. K-3/K-4 aliens must apply to the Service for a document evidencing employment authorization pursuant to § 274a.12(a)(9) of this chapter. Employment authorization documents issued to K-3/K-4 aliens may be renewed only upon a showing that the applicant has an application or petition awaiting approval, equivalent to the showing required for an extension of stay pursuant to § 214.2(k)(10).

(10)Extension of stay for K-3/K-4 status—(i) General. A K-3/K-4 alien may apply for extension of stay, on Form I-539, Application to Extend/Change Nonimmigrant Status, 120 days prior to the expiration of his or her authorized stay. Extensions for K-4 status must be filed concurrently with the alien's parent's K-3 status extension application. In addition, the citizen parent of a K-4 alien filing for extension of K status should file Form I-130 on their behalf. Extension will be granted in 2-year intervals upon a showing of eligibility pursuant to section 101(a)(15)(K)(ii) or (iii) of the Act. Aliens wishing to extend their period of stay as a K-3 or K-4 alien pursuant to § 214.1(c)(2) must show that one of the following has been filed with the Service or the Department of State, as applicable, and is awaiting approval:

(A)The Form I-130, Petition for Alien Relative, filed by the K-3's U.S. citizen spouse who filed the Form I-129F;

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

(C)A Form I-485, Application for Adjustment to that of Permanent Residence, based on a Form I-130 described in § 214.2(k)(10)(i);

(n)Certain parents and children of section 101(a)(27)(I) special immigrants—(1) Parent of special immigrant. Upon application, a parent of a child accorded special immigrant status under section 101(a)(27)(I)(i) of the Act may be granted status under section 101(a)(15)(N)(i) of the Act as long as the permanent resident child through whom eligibility is derived remains a child as defined in section 101(b)(1) of the Act.

(2)Child of section 101(a)(27)(I) special immigrants and section 101(a)(15)(N)(i) nonimmigrants. Children of parents granted nonimmigrant status under section 101(a)(15)(N)(i) of the Act, or of parents who have been granted special immigrant status under section 101(a)(27)(I) (ii), (iii) or (iv) of the Act may be granted status under section 101(a)(15)(N)(ii) of the Act for such time as each remains a child as defined in section 101(b)(1) of the Act.

(3)Admission and extension of stay. A nonimmigrant granted (N) status shall be admitted for not to exceed three years with extensions in increments up to but not to exceed three years. Status as an (N) nonimmigrant shall terminate on the date the child described in paragraph (n)(1) or (n)(2) of this section no longer qualifies as a child as defined in section 101(b)(1) of the Act.

(4)Employment. A nonimmigrant admitted in or granted (N) status is authorized employment incident to (N) status without restrictions as to location or type of employment.

(o)Aliens of extraordinary ability or achievement—(1) Classifications—(i) General. Under section 101(a)(15)(O) of the Act, a qualified alien may be authorized to come to the United States to perform services relating to an event or events if petitioned for by an employer. Under this nonimmigrant category, the alien may be classified under section 101(a)(15)(O)(i) of the Act as an alien who has extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry. Under section 101(a)(15)(O)(ii) of the Act, an alien having a residence in a foreign country which he or she has no intention of abandoning may be classified as an accompanying alien who is coming to assist in the artistic or athletic performance of an alien admitted under section 101(a)(15)(O)(i) of the Act. The spouse or child of an alien described in section 101(a)(15)(O)(i) or (ii) of the Act who is accompanying or following to join the 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.

(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.

(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).

(r)Religious workers. This paragraph governs classification of an alien as a nonimmigrant religious worker (R-1).

(1)To be approved for temporary admission to the United States, or extension and maintenance of status, for the purpose of conducting the activities of a religious worker for a period not to exceed five years, an alien must:

(i)Be a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately preceding the time of application for admission;

(ii)Be coming to the United States to work at least in a part time position (average of at least 20 hours per week);

(iii)Be coming solely as a minister or to perform a religious vocation or occupation as defined in paragraph (r)(3) of this section (in either a professional or nonprofessional capacity);

(iv)Be coming to or remaining in the United States at the request of the petitioner to work for the petitioner; and

(v)Not work in the United States in any other capacity, except as provided in paragraph (r)(2) of this section.

(2)An alien may work for more than one qualifying employer as long as each qualifying employer submits a petition plus all additional required documentation as prescribed by USCIS regulations.

(3)Definitions. As used in this section, the term: Bona fide non-profit religious organization in the United States means a religious organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code, and possessing a currently valid determination letter from the Internal Revenue Service (IRS) confirming such exemption. Bona fide organization which is affiliated with the religious denomination means an organization which is closely associated with the religious denomination and which is exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, or subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code, and possessing a currently valid determination letter from the IRS confirming such exemption. Denominational membership means membership during at least the two-year period immediately preceding the filing date of the petition, in the same type of religious denomination as the United States religious organization where the alien will work. Minister means an individual who:

(A)Is fully authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination;

(B)Is not a lay preacher or a person not authorized to perform duties usually performed by clergy;

(C)Performs activities with a rational relationship to the religious calling of the minister; and

(D)Works solely as a minister in the United States which may include administrative duties incidental to the duties of a minister. Petition means the form or as may be prescribed by USCIS, a supplement containing attestations required by this section, and the supporting evidence required by this part. Religious denomination means a religious group or community of believers that is governed or administered under a common type of ecclesiastical government and includes one or more of the following:

(A)The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination;

(B)The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination;

(C)The duties do not include positions which are primarily administrative or support such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible; and

(D)Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status. Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of vocations include nuns, monks, and religious brothers and sisters. Religious worker means an individual engaged in and, according to the denomination's standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister. Tax-exempt organization means an organization that has received a determination letter from the IRS establishing that it, or a group it belongs to, is exempt from taxation in accordance with sections 501(c)(3) of the Internal Revenue Code of 1986, or subsequent amendments or equivalent sections of prior enactments of the Internal Revenue Code.

(E)Common established places of religious worship or religious congregations; or

(F)Comparable indicia of a bona fide religious denomination. Religious occupation means an occupation that meets all of the following requirements:

(4)Requirements for admission/change of status; time limits—(i) Principal applicant (R-1 nonimmigrant). If otherwise admissible, an alien who meets the requirements of section 101(a)(15)(R) of the Act may be admitted as an R-1 alien or changed to R-1 status for an initial period of up to 30 months from date of initial admission. If visa-exempt, the alien must present original documentation of the petition approval.

(s)NATO nonimmigrant aliens—(1) General—(i) Background. The North Atlantic Treaty Organization (NATO) is constituted of nations signatory to the North Atlantic Treaty. The Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, signed in London, June 1951 (NATO Status of Forces Agreement), is the agreement between those nations that defines the terms of the status of their armed forces while serving abroad.

(A)Nonimmigrant aliens classified as NATO-1 through NATO-5 are officials, employees, or persons associated with NATO, and members of their immediate families, who may enter the United States in accordance with the NATO Status of Forces Agreement or the Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty (Paris Protocol). The following specific classifications shall be assigned to such NATO nonimmigrants:

(1)NATO-1—A principal permanent representative of a Member State to NATO (including any of its subsidiary bodies) resident in the United States and resident members of permanent representative's official staff; Secretary General, Deputy Secretary General, Assistant Secretaries General and Executive Secretary of NATO; other permanent NATO officials of similar rank; and the members of the immediate family of such persons.

(2)NATO-2—Other representatives of Member States to NATO (including any of its subsidiary bodies) including representatives, advisers and technical experts of delegations, and the members of the immediate family of such persons; dependents of members of a force entering in accordance with the provisions of the NATO Status of Forces Agreement or in accordance with the provisions of the Paris Protocol; members of such a force, if issued visas.

(3)NATO-3—Official clerical staff accompanying a representative of a Member State to NATO (including any of its subsidiary bodies) and the members of the immediate family of such persons.

(4)NATO-4—Officials of NATO (other than those classifiable under NATO-1) and the members of their immediate family

(5)NATO-5—Experts, other than NATO officials classifiable under NATO-4, employed on missions on behalf of NATO and their dependents.

(B)Nonimmigrant aliens classified as NATO-6 are civilians, and members of their immediate families, who may enter the United States as employees of a force entering in accordance with the NATO Status of Forces Agreement, or as members of a civilian component attached to or employed by NATO Headquarters, Supreme Allied Commander, Atlantic (SACLANT), set up pursuant to the Paris Protocol.

(C)Nonimmigrant aliens classified as NATO-7 are attendants, servants, or personal employees of nonimmigrant aliens classified as NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6, who are authorized to work only for the NATO-1 through NATO-6 nonimmigrant from whom they derive status, and members of their immediate families.

(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:

(u)[Reserved]

(v)Certain spouses and children of LPRs. Section 214.15 of this chapter provides the procedures and requirements pertaining to V nonimmigrant status.

(w)CNMI-Only Transitional Worker (CW-1). Table 5 to Paragraph (w)—Paragraph Contents (1) Definitions (2) Eligible aliens (3) Derivative beneficiaries—CW-2 nonimmigrant classification (4) Eligible employers (5) Petition requirements (6) Appropriate documents (7) Change of employers (8) Amended or new petition (9) Multiple beneficiaries (10) Named beneficiaries (11) Early termination (12) Approval (13) Petition validity (14) Validity of the labor certification (15) How to apply for CW-1 or CW-2 status (16) Biometrics and other information (17) Period of admission (18) Extension of petition validity and extension of stay (19) Change or adjustment of status (20) Effect of filing an application for or approval of a permanent labor certification, preference petition, or filing of an application for adjustment of status on CW-1 or CW-2 classification (21) Rejection (22) Denial (23) Terms and conditions of CW Nonimmigrant status (24) Expiration of status (25) Waivers of inadmissibility for applicants lawfully present in the CNMI (26) Semiannual report (27) Revocation of approval of petition (28) Appeal of a revocation of a petition (29) Notice to DOL

(1)Definitions. The following definitions apply to petitions for and maintenance of CW status in the Commonwealth of the Northern Mariana Islands (the CNMI or the Commonwealth):

(i)200 for occupational categories 29-0000 (Healthcare Practitioners and Technical Occupations) and 31-0000 (Healthcare Support Occupations); and

(ii)60 for occupational categories related to the operations of the CNMI public utilities services, including, but not limited to, 17-2081 (Water/Waste Water Engineers), 17-2071 (Electrical Engineers), 17-2141 (Mechanical Engineers), and Trades Technicians.

(iii)Doing business means the regular, systematic, and continuous provision of goods or services by an employer as defined in this paragraph and does not include the mere presence of an agent or office of the employer in the CNMI.

(iv)Employer means a person, firm, corporation, contractor, or other association, or organization which:

(A)Engages a person to work within the CNMI; and

(B)Has or will have an employer-employee relationship with the CW-1 nonimmigrant being petitioned for.

(v)Employer-employee relationship means that the employer will hire, pay, fire, supervise, and control the work of the employee.

(vi)Lawfully present in the CNMI means that the alien was lawfully admitted or paroled into the CNMI under the immigration laws on or after the transition program effective date, other than an alien admitted or paroled as a visitor for business or pleasure (B-1 or B-2, under any visa-free travel provision or parole of certain visitors from Russia and the People's Republic of China), and remains in a lawful immigration status or if paroled into the CNMI, the authorized parole period has not expired.

(vii)Legitimate business, as determined by DHS, means a real, active, and operating commercial or entrepreneurial undertaking that:

(A)Produces services or goods for profit, or is a governmental, charitable or other validly recognized nonprofit entity;

(B)Meets applicable legal requirements for doing business in the CNMI;

(C)Has substantially complied with wage and hour laws, occupational safety and health requirements, nondiscrimination, and all other Federal, CNMI, and local requirements relating to employment during the five-year period immediately preceding the date of filing the petition, and continues to be in substantial compliance with such requirements;

(D)Does not directly or indirectly engage in, or knowingly benefit from, prostitution, human trafficking, or any other activity that is illegal under Federal, CNMI, or local law;

(E)Is a participant in good standing in the E-Verify program;

(F)Does not have, as an owner, investor, manager, operator, or person meaningfully involved with the undertaking, any individual who has been an owner, investor, manager, operator, or person otherwise meaningfully involved with an undertaking that was not in compliance with paragraph (w)(1)(vii)(C) of this section at the time of the individual's involvement and within the five years immediately preceding the date of filing the petition; or that was not in compliance with clause paragraph (w)(1)(vii)(D) of this section at any time during which the individual was involved with the undertaking, or is an agent of such individual; and

(G)Is not a successor in interest to an undertaking that has not complied with paragraphs (C) or (D).

(viii)Long-term worker means an alien who was admitted to the CNMI, or otherwise granted status, as a CW-1 nonimmigrant during fiscal year 2015, and during each of fiscal years 2016 through 2018.

(ix)Minor child means a child as defined in section 101(b)(1) of the Act who is under 18 years of age.

(x)Numerical limitation means the maximum number of persons who may be granted CW-1 status in a given fiscal year, as follows:

(A)For fiscal years 2018 through the first quarter of fiscal year 2030, the numerical limitations are:

(1)9,998 for fiscal year 2018;

(2)13,000 for fiscal year 2019;

(3)12,500 for fiscal year 2020;

(4)12,000 for fiscal year 2021;

(5)11,500 for fiscal year 2022;

(6)11,000 for fiscal year 2023;

(7)10,000 for fiscal year 2024;

(8)9,000 for fiscal year 2025;

(9)8,000 for fiscal year 2026;

(10)7,000 for fiscal year 2027;

(11)6,000 for fiscal year 2028;

(12)5,000 for fiscal year 2029; and

(13)1,000 for the first quarter of fiscal year 2030.

(B)A long-term worker granted CW-1 nonimmigrant status for a period exceeding one year shall be counted toward the numerical limitation, and toward any reservation of CW-1 numbers, as described in paragraph (w)(1)(x)(D)(1) of this section, if applicable, for each fiscal year within the period of petition validity.

(C)For each petition revoked entirely or in part in a fiscal year, the numerical limitation for the next fiscal year shall be increased by the number of beneficiaries of such petitions subject to such revocation before the end of the validity period of the petition.

(D)(1) Within the numerical limitations described in paragraph (w)(1)(x)(A) of this section, the following reservations of CW-1 numbers for specified occupational categories shall apply:

(2)Reserved CW-1 numbers described in paragraph (w)(1)(x)(D)(1) of this section will be made available to eligible petitioners requesting such numbers for a fiscal year in order of filing, separately under either paragraph (w)(1)(x)(D)(1)(i) or (ii) of this section, until exhausted. Unused reserved numbers under either paragraph (w)(1)(x)(D)(1)(i) or (ii) of this section will not be available to other petitioners.

(3)DHS may adjust the reservation of numbers for specified occupational categories for a fiscal year or other period via publication of a notice in the Federal Register, as long as such adjustment is consistent with paragraph (w)(1)(x)(A) of this section. DHS will base any such adjustment on factors including: The level of past demand for reserved numbers compared to supply; whether a reservation of numbers has resulted in unused numbers; reservation of numbers compared to overall numerical limitation in a fiscal year; and any recommendation received from the Governor of the CNMI regarding the adjustment of the reservation of numbers.

(E)If the numerical limitation is not reached for a specified fiscal year, unused numbers do not carry over to the next fiscal year.

(F)If USCIS receives a sufficient number of petitions to meet the numerical limitation in paragraph (w)(1)(x)(A) of this section in a fiscal year, USCIS will cease processing further cap-subject petitions in that fiscal year, and DOL may cease processing cap-subject applications for temporary labor certification for that fiscal year.

(xi)Occupational category means those employment activities that DHS has determined require alien workers to supplement the resident workforce and includes:

(A)Professional, technical, or management occupations;

(B)Travel from a foreign place to the CNMI. An alien with a valid CW-1 or CW-2 visa, who is admissible to the CNMI in such status, may be admitted to the United States in CW-1 or CW-2 status in Guam for the purpose of a direct Guam transit to the CNMI. An alien who violates the terms of direct Guam transit violates his or her CW-1 or CW-2 status.

(C)Service occupations;

(xiii)Change of status. An alien lawfully admitted to the United States in another valid nonimmigrant status who is continuing to maintain that status may apply to change nonimmigrant status to E-2 CNMI Investor in accordance with paragraph (e)(21) of this section, if otherwise eligible, including but not limited to having been in CNMI long-term investor status on the transition date and within the period provided by paragraph (e)(23)(v) of this section.

(xiv)Expiration of the transition period. Upon expiration of the transition period, the E-2 CNMI Investor nonimmigrant status will automatically terminate.

(xv)[Reserved]

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

(D)Agricultural, fisheries, forestry, and related occupations;

(E)Processing occupations;

(2)The spouse and children accompanying or following-to-join an E-2 CNMI Investor may be admitted for the period during which the principal alien is in valid E-2 CNMI Investor nonimmigrant status. The temporary departure from the United States of the principal E-2 CNMI Investor shall not affect the derivative status of the dependent spouse and children, provided the familial relationship continues to exist and the principal alien remains eligible for admission as an E-2 CNMI Investor.

(xii)Extensions of stay. Requests for extensions of E-2 CNMI Investor nonimmigrant status may be granted in increments of not more than two years, until the end of the transition period. To request an extension of stay, an E-2 CNMI Investor must file with USCIS an application for extension of stay, with required accompanying documents, in accordance with the appropriate form instructions. To qualify for an extension of E-2 CNMI Investor nonimmigrant status, each alien must demonstrate:

(F)Machine trade occupations;

(G)Benchwork occupations;

(H)Structural work occupations; and

(I)Miscellaneous occupations.

(i)A CW-1 petition filed on behalf of the alien;

(ii)Re-entry. An alien with CW-1 or CW-2 status who travels abroad from the CNMI will require a CW-1 or CW-2 or other appropriate visa to be re-admitted to the CNMI.

(13)Petition validity. An approved petition will be valid for a period of up to one year, unless the beneficiary is a long-term worker in which case an approved petition will be valid for a period of up to three years.

(14)Validity of the labor certification. A TLC is valid only for the period of employment as approved on the CW-1 Application for Temporary Employment Certification. The TLC expires on the last day of authorized employment.

(15)How to apply for CW-1 or CW-2 status. (i) Upon approval of the petition, a beneficiary, his or her eligible spouse, and his or her minor child(ren) outside the CNMI will be informed in the approval notice of where they may apply for a visa authorizing admission in CW-1 or CW-2 status.

(18)Extension of petition validity and extension of stay. (i) The petitioner may request an extension of an employee's CW-1 nonimmigrant status by filing a new petition.

(A)The employer has not displaced and will not displace a United States worker in order to employ the beneficiary as agreed to in the CW-1 Application for Temporary Employment Certification;

(B)The employer is doing business as defined in paragraph (w)(1)(iii) of this section;

(C)The employer is a legitimate business as defined in paragraph (w)(1)(vii) of this section;

(D)The employer is an eligible employer as described in paragraph (w)(4) of this section and will continue to comply with the requirements for an eligible employer until such time as the employer no longer employs the CW-1 nonimmigrant worker;

(E)The beneficiary meets the qualifications for the position;

(F)The beneficiary, if present in the CNMI, is lawfully present in the CNMI;

(G)The position is not temporary or seasonal employment, and the petitioner does not reasonably believe it to qualify as eligible for any other nonimmigrant worker classification, including H-2A or H-2B;

(H)The position falls within the list of occupational categories designated by DHS;

(I)The petitioner will pay the beneficiary a wage that is not less than the greater of—

(1)The CNMI minimum wage;

(2)The Federal minimum wage; or

(3)The prevailing wage in the CNMI for the occupation in which the beneficiary will be employed as established by the U.S. Department of Labor; and

(J)The petitioner will comply with the reporting and retention requirements in paragraph 26.

(iii)Travel outside the CNMI—(A) Direct Guam transit from the CNMI. An alien with CW-1 or CW-2 status may travel to a foreign place via a direct Guam transit without being deemed to violate that status.

(4)Eligible employers. To be eligible to petition for a CW-1 nonimmigrant worker, an employer must:

(16)Biometrics and other information. The beneficiary of a CW-1 petition or the spouse or child applying for a grant or extension of CW-2 status, or a change of status to CW-2 status, must submit biometric information as requested by USCIS.

(17)Period of admission. (i) A CW-1 nonimmigrant will be admitted for the period of petition validity, plus up to 10 days before the validity period begins and 10 days after the validity period ends. The CW-1 nonimmigrant may not work except during the validity period of the petition. A CW-2 spouse will be admitted for the same period as the principal alien. A CW-2 minor child will be admitted for the same period as the principal alien, but such admission will not extend beyond the child's 18th birthday.

(A)The prospective employer has filed a nonfrivolous petition for new employment before the date of expiration of the CW-1 worker's authorized period of stay; and

(B)Subsequent to his or her lawful admission, the CW-1 worker has not been employed without authorization in the United States.

(C)Duties without licensure. If the CNMI allows an individual to fully practice the occupation that usually requires a license without a license under the supervision of licensed senior or supervisory personnel in that occupation, USCIS may grant CW-1 status at its discretion after considering the duties performed, the degree of supervision received, and any limitations placed on the alien if the facts demonstrate that the alien under supervision could fully perform the duties of the occupation.

(iv)A request to extend CW-2 status pursuant to the extension of a related CW-1 alien's extension; or

(5)Petition requirements. An employer who seeks to classify an alien as a CW-1 worker must file a petition with USCIS and pay the requisite petition fee plus the CNMI education funding fee and the fraud prevention and detection fee as prescribed in 8 CFR part 106. If the beneficiary will perform services for more than one employer, each employer must file a separate petition with fees with USCIS.

(6)Appropriate documents. Documentary evidence establishing eligibility for CW status is required. A petition must be accompanied by:

(7)Change of employers. A change of employment to a new employer inconsistent with paragraphs (w)(7)(i) and (ii) of this section will constitute a failure to maintain status within the meaning of section 237(a)(1)(C)(i) of the Act. A CW-1 nonimmigrant may change employers if:

(A)Continuously maintained the terms and conditions of CW-1 status;

(B)Remains admissible to the United States; and

(C)Remains eligible for CW-1 classification.

(v)An application for admission as a CW-1 or CW-2 nonimmigrant.

(8)Amended or new petition. If there are any material changes in the terms and conditions of employment, the petitioner must file an amended or new petition to reflect the changes. An amended or new petition must be submitted with a new TLC approved by DOL.

(9)Multiple beneficiaries. A petitioning employer may include more than one beneficiary in a CW-1 petition if the beneficiaries will be working in the same occupational category, under the same terms and conditions, for the same period of time, and in the same location.

(10)Named beneficiaries. The petition must include the name of the beneficiary and other required information, as indicated in the form instructions, at the time of filing. Unnamed beneficiaries are not permitted.

(11)Early termination. The petitioning employer must pay the reasonable cost of return transportation of the alien to the alien's last place of foreign residence if the alien is dismissed from employment for any reason by the employer before the end of the period of authorized admission.

(12)Approval. USCIS will consider all the evidence submitted and such other evidence required in the form instructions to adjudicate the petition. USCIS will notify the petitioner of the approval of the petition on Form I-797, Notice of Action, or in another form as USCIS may prescribe.

(21)Rejection. USCIS may reject an employer's petition for new or extended CW-1 status if any numerical limitation has been met. In that case, the petition and accompanying fee will be rejected and returned with the notice that numbers are unavailable for the CW nonimmigrant classification. The beneficiary's application for admission based upon an approved petition will not be rejected based upon the numerical limitation.

(22)Denial. The ultimate decision to grant or deny CW-1 or CW-2 classification or status is a discretionary determination, and the petition or the application may be denied for failure of the petitioner or the applicant to demonstrate eligibility or for other good cause. The denial of a petition to classify an alien as a CW-1 may be appealed to the USCIS Administrative Appeals Office or any successor body. The denial of CW-1 or CW-2 status within the CNMI, or of an application for change or extension of status filed under this section, may not be appealed.

(23)Terms and conditions of CW Nonimmigrant status—(i) Geographical limitations. CW-1 and CW-2 statuses are only applicable in the CNMI. Entry, employment and residence in the rest of the United States (including Guam) require the appropriate visa or visa waiver and nonimmigrant classification. Except as provided in paragraph (w)(23)(iii) of this section, an alien with CW-1 or CW-2 status who enters or attempts to enter, or travels or attempts to travel to any other part of the United States without an appropriate visa or visa waiver, or who violates conditions of nonimmigrant stay applicable to any such authorized status in any other part of the United States, will be deemed to have violated CW-1 or CW-2 status.

(vi)The derivative CW-2 nonimmigrant may file an application for extension of nonimmigrant stay on Form I-539 (or such alternative form as USCIS may designate) in accordance with the form instructions. The CW-2 status extension may not be approved until approval of the CW-1 extension petition.

(19)Change or adjustment of status. A CW-1 or CW-2 nonimmigrant can apply to change nonimmigrant status under section 248 of the Act or apply for adjustment of status under section 245 of the Act, if otherwise eligible. During the transition period, CW-1 or CW-2 nonimmigrants may be the beneficiary of a petition for or may apply for any nonimmigrant or immigrant visa classification for which they may qualify.

(20)Effect of filing an application for or approval of a permanent labor certification, preference petition, or filing of an application for adjustment of status on CW-1 or CW-2 classification. An alien may be granted, be admitted in and maintain lawful CW-1 or CW-2 nonimmigrant status while, at the same time, lawfully seeking to become a lawful permanent resident of the United States, provided he or she intends to depart the CNMI voluntarily at the end of the period of authorized stay. The filing of an application for or approval of a permanent labor certification or an immigrant visa preference petition, the filing of an application for adjustment of status, or the lack of residence abroad will not be the basis for denying:

(vii)Will not be employed in a Construction and Extraction Occupation (as defined by the U.S. Department of Labor as Standard Occupational Classification Group 47-0000 or successor provision) unless the alien is a long-term worker.

(3)Derivative beneficiaries—CW-2 nonimmigrant classification. The spouse or minor child of a CW-1 nonimmigrant may accompany or follow the alien as a CW-2 nonimmigrant if the alien:

(xii)Participant in good standing in the E-Verify program means an employer, as defined in paragraph (w)(1)(iv) of this section, that has enrolled in E-Verify with respect to all hiring sites in the United States as of the time of filing a petition; is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be a participant in good standing in E-Verify at any time during which the employer employs any CW-1 nonimmigrant.

(xiii)Petition means USCIS Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, a successor form, other form, or electronic equivalent, any supplemental information requested by USCIS, and additional evidence as may be prescribed or requested by USCIS.

(xiv)Successor in interest means an employer that is controlling and carrying on the business of a previous employer. The following factors may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole:

(A)Substantial continuity of the same business operations;

(B)Use of the same facilities;

(C)Continuity of the work force;

(D)Similarity of jobs and working conditions;

(E)Similarity of supervisory personnel;

(F)Whether the former management or owner retains a direct or indirect interest in the new enterprise;

(G)Similarity in machinery, equipment, and production methods;

(H)Similarity of products and services; and

(I)The ability of the predecessor to provide relief.

(xv)Temporary Labor Certification or TLC means the certification made by the DOL OFLC Administrator, based on the CW-1 Application for Temporary Employment Certification, and all supporting documentation, with respect to an employer seeking to file with a CW-1 petition.

(xvi)Transition period means the period beginning on the transition program effective date and ending on December 31, 2029.

(xvii)United States worker means a citizen or national of the United States, an alien lawfully admitted for permanent residence, or a citizen of the Federated States of Micronesia, the Republic of the Marshall Islands, or the Republic of Palau who is eligible for nonimmigrant admission and is employment-authorized under the Compacts of Free Association between the United States and those nations.

(2)Eligible aliens. Subject to the numerical limitation, an alien may be classified as a CW-1 nonimmigrant if, during the transition period, the alien:

214.3Certification and recertification of schools for enrollment of F and M nonimmigrants.#

(a)Filing petition—(1) General. A school or school system seeking certification or recertification for attendance by nonimmigrant students under sections 101(a)(15)(F) or 101(a)(15)(M) of the Act, or both, must file a petition for certification or recertification with SEVP, using the Student and Exchange Visitor Information System (SEVIS), in accordance with the procedures at paragraph (h) of this section. The petition must state whether the school or school system is seeking certification or recertification for attendance of nonimmigrant students under section 101(a)(15)(F) or 101(a)(15)(M) of the Act or both. The petition must identify by name and address each location of the school that is included in the petition for certification or recertification, specifically including any physical location in which a nonimmigrant can attend classes through the school (i.e., campus, extension campuses, satellite campuses, etc.).

(b)Supporting documents. Schools petitioning for certification or recertification must submit the following supporting documents:

(1)Licensure, approval, and accreditation documents. A charter will not be considered a license, approval, or accreditation.

(i)Public Schools. A petitioning school or school system owned and operated as a public educational institution or system by the United States or a State or a political subdivision thereof must submit a certification to that effect signed by the authorized public official. The official must certify that they are authorized to do so.

(ii)Private elementary, middle, or secondary schools. A petitioning private elementary, middle, or secondary school or school system must submit a certification signed by the authorized public official that it meets the requirements of the State or local public educational system. The official must certify that they are authorized to do so.

(iii)Any other school. Any other petitioning school not included under paragraph (b)(1)(i) or (ii) of this section must submit a certification that—

(A)The school is licensed, approved, or accredited by the authorized official, who must certify that they are authorized to do so; or

(B)If the school offers courses recognized by a State-approving agency as appropriate for study for veterans under the provisions of 38 U.S.C. 3675 and 3676, in lieu of such certification provided in paragraph (b)(1)(i)(A) of this section, the school may submit a statement of recognition signed by the authorized official of the State approving agency, who must certify that they are authorized to do so.

(2)School operations information. Private schools that are not accredited by a nationally recognized accrediting body or operated as part of a school that is accredited by a nationally recognized accrediting body must submit a school catalog, if one is issued. If not included in the catalog, or if a catalog is not issued, the school must furnish a written statement containing the following information listed in paragraphs (b)(2)(i) through (vii) of this section:

(i)Size of its physical facilities;

(ii)Nature of its facilities for study and training;

(iii)Educational, vocational, or professional qualifications of the teaching staff;

(iv)Salaries of the teachers;

(v)Attendance and scholastic grading policy;

(vi)Amount and character of supervisory and consultative services available to students and trainees; and

(vii)Finances, including a certified copy of the accountant's last statement of school's net worth, income, and expenses.

(c)Additional evidence—(1) Vocational, business, and language schools, and American institutions of research. A petitioning vocational, business, or language school, or an American institution of research recognized as such by the Secretary of Homeland Security, must submit evidence that its courses of study are accepted as fulfilling the requirements for the attainment of an educational, professional, or vocational objective, and have not been designated avocational or recreational through the appropriate licensing or approval officials.

(2)Unaccredited private elementary, middle, and secondary schools. A petitioning private elementary, middle, or secondary school that is not accredited by a nationally recognized accrediting body or operated by a school that is accredited by a nationally recognized accrediting body must submit evidence that attendance at the petitioning school—

(i)Satisfies the compulsory attendance requirements of the State in which it is located; and

(ii)Qualifies graduates for acceptance by schools of a higher educational level by a public school, a school accredited by a nationally recognized accrediting body, or a secondary school operated by a school that is accredited by a nationally recognized accrediting agency.

(3)Unaccredited private institutions of higher learning. A private institution of higher learning that is not accredited by a nationally recognized accrediting body must submit evidence that—

(i)It confers upon its graduates recognized bachelor, master, doctor, professional or divinity degrees; or

(ii)If it does not confer such degrees, its credits have been and are accepted unconditionally by at least three other institutions of higher learning that are public or accredited by a nationally recognized accredited body.

(d)Interview of petitioner. The petitioner or an authorized representative of the petitioner may be required to appear in person before or be interviewed by telephone by a DHS representative prior to the adjudication of a petition for certification or recertification. The interview will be conducted under oath.

(e)Notices to schools related to certification or recertification petitions or to out-of-cycle review—(1) General. All notices from SEVP to schools or school systems related to school certification, recertification, or out-of-cycle review (including, but not limited to, notices related to the collection of evidence, testimony, and appearance pertaining to petitions for recertification encompassing compliance with the recordkeeping, retention and reporting, and other requirements of paragraphs (f), (g), (j), (k), and (l) of this section, as well as to eligibility) will be served in accordance with the procedures at 8 CFR 103.2(b)(1), (4)-(16), (18) and (19), with the exception that all procedures will be conducted by SEVP, the SEVP Director, and the Assistant Secretary, ICE, as appropriate, and except as provided in this section. All such notices will be served (i.e., generated and transmitted) through SEVIS and/or by e-mail. The date of service is the date of transmission of the e-mail notice. DSOs must maintain current contact information, including current e-mail addresses, at all times. Failure of a school to receive SEVP notices due to inaccurate DSO e-mail addresses in SEVIS or blockages of the school's e-mail system caused by spam filters is not grounds for appeal of a denial or withdrawal. The term “in writing” means either a paper copy bearing original signatures or an electronic copy bearing electronic signatures.

(2)SEVP approval notification and SEVIS updating by certified schools. SEVP will notify the petitioner by updating SEVIS to reflect approval of the petition and by e-mail upon approval of a certification or recertification petition. The certification or recertification is valid only for the type of program and nonimmigrant classification specified in the certification or recertification approval notice. The certification must be recertified every two years and may be subject to out-of-cycle review at any time. Approval may be withdrawn in accordance with 8 CFR 214.4.

(3)Modifications to Form I-17 while a school is SEVP-certified. Any modification made by an SEVP-certified school on the Form I-17 at any time after certification and for the duration of a school's authorization to enroll F and/or M students must be reported to SEVP and will be processed by SEVP in accordance with the provisions of paragraphs (f)(1), (g)(2) and (h)(3)(i) of this section.

(4)Notice of Intent to Withdraw (NOIW) SEVP certification—(i) Automatic withdrawal. SEVP will serve the school with an NOIW 30 days prior to a school's SEVP certification expiration date if the school has not submitted to SEVP a completed recertification petition, in accordance with paragraph (h)(2) of this section. The school will be automatically withdrawn immediately, in accordance with 8 CFR 214.4(a)(3), if it has not submitted a completed recertification petition by the school's certification expiration date.

(f)Adjudication of a petition for SEVP certification or recertification—(1) Approval. The school is required to immediately report through SEVIS any change to its school information upon approval of a petition for SEVP certification or recertification. Modification to school information listed in paragraph (h)(3) of this section will require a determination of continued eligibility for certification. The certification or recertification is valid only for the type of program and student specified in the approval notice. The certification may be withdrawn in accordance with the provisions of 8 CFR 214.4, is subject to review at any time, and will be reviewed every two years.

(2)Denial. The petitioner will be notified of the reasons for the denial and appeal rights, in accordance with the provisions of 8 CFR part 103 and 8 CFR 214.4, if SEVP denies a petition for certification or recertification.

(g)Recordkeeping and reporting requirements—(1) Student records. An SEVP-certified school must keep records containing certain specific information and documents relating to each F-1 or M-1 student to whom it has issued a Form I-20 or successor form, while the student is attending the school and until the school notifies SEVP, in accordance with the requirements of paragraphs (g)(1) and (2) of this section, that the student is no longer pursuing a full course of study at that school. Student information not required for entry in SEVIS may be kept in the school's student system of records, but must be accessible to DSOs. The school must keep a record of having complied with the reporting requirements for at least three years after the student is no longer pursuing a full course of study at that school. The school must maintain records on the student in accordance with paragraphs (g)(1) and (2) of this section if a school recommends reinstatement for a student who is out of status. The school must maintain records on the student for three years from the date of the denial if the reinstatement is denied. The DSO must make the information and documents required by this paragraph (g)(1) available, including academic transcripts, and must furnish them to DHS representatives upon request. Schools must maintain and be able to provide an academic transcript or other routinely maintained student records that reflect the total, unabridged academic history of the student at the institution, in accordance with paragraph (g)(1)(iv) of this section. All courses must be recorded in the academic period in which the course was taken and graded. The information and documents that the school must keep on each student are as follows:

(h)SEVP certification, recertification, out-of-cycle review, and oversight of schools—(1) Certification. A school seeking SEVP certification for attendance by nonimmigrants under section 101(a)(15)(F) or 101(a)(15)(M) of the Act must use SEVIS to file an electronic petition (which compiles the data for the Form I-17) and must submit the nonrefundable certification petition fee on-line.

(i)A PDSO and DSO must be either a citizen or lawful permanent resident of the United States.

(ii)Each campus must have one PDSO. The PDSO is responsible for updating SEVIS to reflect the addition or deletion of any DSO on their associated campus. SEVP will use the PDSO at the main campus as the point of contact on any issues that relate to the school's compliance with the regulations, as well as any system alerts generated by SEVIS. SEVP may also designate certain functions in SEVIS for use by the PDSO only. The PDSO of the main campus is the only DSO authorized to submit a Form I-17 for recertification. The PDSO and DSO will share the same responsibilities in all other respects.

(2)Certification for F-1 or M-1 classification, or both—(i) F-1 classification. The following schools may be certified for attendance by nonimmigrant students under section 101(a)(15)(F) of the Act:

(A)A college or university, i.e., an institution of higher learning which awards recognized bachelor's, master's, doctor's or professional degrees.

(B)A community college or junior college which provides instruction in the liberal arts or in the professions and which awards recognized associate degrees.

(C)A seminary.

(D)A conservatory.

(E)An academic high school.

(F)A private elementary or middle school.

(G)An institution which provides language training, instruction in the liberal arts or fine arts, instruction in the professions, or instruction or training in more than one of these disciplines.

(5)Notice of Denial. A Notice of Denial will be served to a school when SEVP denies a petition for certification or recertification. The notice will address appeals options. Schools denied recertification must comply with 8 CFR 214.4(i).

(6)Notice of Automatic Withdrawal. Schools that relinquish SEVP certification for any of the reasons cited in 8 CFR 214.4(a)(3) will be served a Notice of Automatic Withdrawal.

(7)Notice of Withdrawal. A school found to be ineligible for continued SEVP certification as a result of an out-of-cycle review will receive a Notice of Withdrawal. Schools withdrawn must comply with 8 CFR 214.4(i).

(8)Notice of SEVIS Access Termination Date. The Notice of SEVIS Access Termination Date gives the official date for the school's denial or withdrawal to be final and SEVIS access to be terminated. In most situations, SEVP will not adjust a SEVIS access termination date for that school when the appeals process has concluded and the denial or withdrawal has been upheld, in accordance with § 214.4(i)(2). The school will no longer be able to access SEVIS and SEVP will automatically terminate any remaining Active SEVIS records for that school on that date.

(A)A community college or junior college which provides vocational or technical training and which awards recognized associate degrees.

(B)A vocational high school.

(C)A school which provides vocational or nonacademic training other than language training.

(ii)The petitioner, to be eligible for recertification, must establish at the time of filing that it:

(A)Remains eligible for certification in accordance with paragraph (a)(3)(i) of this section; and

(B)Has complied during its previous period of certification or recertification with recordkeeping, retention, and reporting requirements and all other requirements of paragraphs (g), (j), (k), and (l) of this section.

(iii)Both F-1 and M-1 classification. A school may be certified for attendance by nonimmigrant students under both sections 101(a)(15)(F) and 101(a)(15)(M) of the Act if it has both instruction in the liberal arts, fine arts, language, religion, or the professions and vocational or technical training. In that case, a student whose primary intent is to pursue studies in liberal arts, fine arts, language, religion, or the professions at the school is classified as a nonimmigrant under section 101(a)(15)(F) of the Act. A student whose primary intent is to pursue vocational or technical training at the school is classified as a nonimmigrant under section 101(a)(15)(M) of the Act.

(iv)English language training for a vocational student. A student whose primary intent is to pursue vocational or technical training who takes English language training at the same school solely for the purpose of being able to understand the vocational or technical course of study is classified as a nonimmigrant under section 101(a)(15)(M) of the Act.

(v)Schools not qualified for attendance. The following may not be certified for attendance by foreign students:

(A)Is a bona fide school;

(B)Is an established institution of learning or other recognized place of study;

(C)Possesses the necessary facilities, personnel, and finances to conduct instruction in recognized courses; and

(3)Eligibility. (i) The petitioner, to be eligible for certification, must establish at the time of filing that it:

(D)Is, in fact, engaged in instruction in those courses.

(i)Filing of petition for recertification. Schools must submit a completed Form I-17 (including any supplements and bearing signatures of all officials) using SEVIS. SEVP will notify all DSOs of a previously certified school 180 days prior to the school's certification expiration date that the school may submit a petition for recertification. A school may file its recertification petition at any time after receipt of this notification. A school must submit a complete recertification petition package, as outlined in the submission guidelines, by its certification expiration date. SEVP will send a notice of confirmation of complete filing or rejection to the school upon receipt of any filing of a petition for recertification.

(A)Notice of confirmation assures a school of uninterrupted access to SEVIS while SEVP adjudicates the school's petition for recertification. A school that has complied with the petition submission requirements will continue to have SEVIS access after its certification expiration date while the adjudication for recertification is pending. The school is required to comply with all regulatory recordkeeping, retention and reporting, and other requirements of paragraphs (f), (g), (j), (k), and (l) of this section during the period the petition is pending.

(B)Notice of rejection informs a school that it must take prompt corrective action in regard to its recertification petition prior to its certification expiration date to ensure that its SEVIS access will not be terminated and its petition for recertification will be accepted for adjudication.

(ii)SEVP may request a school to electronically update all Form I-17 fields in SEVIS and provide SEVP with documentation supporting the update. The school must complete such updates in SEVIS and submit the supporting documentation to SEVP within 10 business days of the request from SEVP.

(A)Any student who has failed to maintain status or complete his or her program;

(B)A change of the student's or dependent's legal name or U.S. address;

(C)Any student who has graduated early or prior to the program end date listed on SEVIS Form I-20;

(D)Any disciplinary action taken by the school against the student as a result of the student being convicted of a crime; and

(E)Any other notification request not covered by paragraph (g)(1) of this section made by DHS with respect to the current status of the student.

(F)For F-1 students authorized by USCIS to engage in a 24-month extension of OPT under 8 CFR 214.2(f)(10)(ii)(C):

(1)Any change that the student reports to the school concerning legal name, residential or mailing address, employer name, or employer address; and

(2)The end date of the student's employment reported by a former employer in accordance with 8 CFR 214.2(f)(10)(ii)(C)(6).

(iii)School officials may nominate as many DSOs in addition to PDSOs as they determine necessary to adequately provide recommendations to F and/or M students enrolled at the school regarding maintenance of nonimmigrant status and to support timely and complete recordkeeping and reporting to DHS, as required by this section. School officials must not permit a DSO or PDSO nominee access to SEVIS until DHS approves the nomination.

(2)Name, title, and signature. Petitions for SEVP certification, review and recertification must include the names, titles, and signatures of designated officials. An SEVP-certified school must update SEVIS upon any changes to the persons who are principal or designated officials, and furnish the name, title and e-mail address of any new official within 21 days of the change. Any changes to the PDSO or DSO must be made by the PDSO within 21 days of the change. DHS may, at its discretion, reject the submission of any individual as a DSO or withdraw a previous submission by a school of an individual.

(3)Statement of designated officials. A petition for school certification must include a statement by each designated official certifying that the official is familiar with DHS regulations relating to the requirements for admission and maintenance of status of nonimmigrant students, change of nonimmigrant status under part 248 of this chapter, and school certification under §§ 214.3 and 214.4, and affirming the official's intent to comply with these regulations. At the time a new designated official is added, the designated official must make the same certification. Editorial Note:For Federal Register citations affecting § 214.3, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

(A)Whether the student has enrolled at the school, dropped below a full course of study without prior authorization by the DSO, or failed to enroll;

(B)Compliance. Assessment by SEVP of a school petitioning for recertification will focus primarily on overall school compliance, but may also include examination of individual DSO compliance as data and circumstances warrant. Past performance of these individuals, whether or not they continue to serve as principal designated school officials (PDSOs) or DSOs, will be considered in any petition for recertification of the school.

(C)On-site review for recertification. All schools are subject to on-site review, at the discretion of SEVP, in conjunction with recertification. The school must comply with and complete an on-site review within 30 days of the notification by a DHS representative of a school that it has been selected for an on-site review for recertification, or the petition for recertification will be denied as abandoned, resulting in the school's withdrawal from SEVIS.

(D)Adjustment to the program completion date. Any factors that influence the student's progress toward program completion (e.g., deferred attendance, authorized drop below, program extension) must be reflected by making an adjustment updating the program completion date.

(3)Administrative correction of a student's record. In instances where technological or computer problems on the part of SEVIS cause an error in the student's record, the DSO may request the SEVIS system administrator, without fee, to administratively correct the student's record.

(iv)On-site review. SEVP-certified schools are subject to on-site review at any time. SEVP will initiate withdrawal proceedings against a certified school, pursuant to 8 CFR 214.4(b), if the certified school selected for on-site review prior to its certification expiration date fails to comply with and complete the review within 30 days of the date SEVP contacted the school to arrange the review.

(ix)Termination date and reason.

(v)Notice of Continued Eligibility. SEVP will serve the school a notice of continued eligibility if, upon completion of an out-of-cycle review, SEVP determines that the school remains eligible for certification. Such notice will not change the school's previously-determined certification expiration date unless specifically notified by SEVP.

(vi)Withdrawal of certification. SEVP will institute withdrawal proceedings in accordance with 8 CFR 214.4(b) if, upon completion of an out-of-cycle review, SEVP determines that a school or its programs are no longer eligible for certification.

(3)Out-of-cycle review and oversight of SEVP-certified schools. (i) SEVP will determine if out-of-cycle review is required upon receipt in SEVIS of any changes from an SEVP-certified school to its Form I-17 information. The Form I-17 information that requires out-of-cycle review when changed includes:

(A)Approval for attendance of students (F/M/both);

(B)Name of school system; name of main campus;

(C)Mailing address of the school;

(D)Location of the school;

(E)School type;

(F)Public/private school indicator;

(G)Private school owner name;

(H)The school is engaged in;

(I)The school operates under the following Federal, State, Local or other authorization;

(J)The school has been approved by the following national, regional, or state accrediting association or agency;

(K)Areas of study;

(L)Degrees available from the school;

(M)If the school is engaged in elementary or secondary education;

(N)If the school is engaged in higher education;

(O)If the school is engaged in vocational or technical education;

(P)If the school is engaged in English language training;

(Q)Adding or deleting campuses;

(R)Campus name;

(S)Campus mailing address; and

(T)Campus location address.

(vii)Voluntary withdrawal. A school can voluntarily withdraw from SEVP certification at any time or in lieu of complying with an out-of-cycle review or request. Failure of a school to comply with an out-of-cycle review or request by SEVP will be treated as a voluntary withdrawal. A school must initiate voluntary withdrawal by sending a request for withdrawal on official school letterhead to SEVP.

(i)Administration of student regulations. DHS officials may conduct out-of-cycle, on-site reviews on the campuses of SEVP-certified schools to determine whether nonimmigrant students on those campuses are complying with DHS regulations pertaining to them, including the requirement that each maintains a valid passport. DHS officers will take appropriate action regarding violations of the regulations by nonimmigrant students.

(viii)Statement of graduation (if applicable). Title of degree or credential received, date conferred, program of study or major.

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

(2)Reporting changes in student and school information. (i) Schools must update SEVIS with the current information within 21 days of a change in any of the information contained in paragraphs (f)(1) and (h)(3) of this section.

(j)Advertising. In any advertisement, catalogue, brochure, pamphlet, literature, or other material hereafter printed or reprinted by or for an SEVP-certified school, any statement which may appear in such material concerning certification for attendance by nonimmigrant students shall be limited solely to the following: This school is authorized under Federal law to enroll nonimmigrant alien students.

(k)Issuance of Certificate of Eligibility. A DSO of an SEVP-certified school must sign any completed Form I-20 issued for either a prospective or continuing student or a dependent. A Form I-20 issued by a certified school system must state which school within the system the student will attend. Only a DSO of an SEVP-certified school may issue a Form I-20 to a prospective student and his or her dependents, and only after the following conditions are met:

(1)The prospective student has made a written application to the school.

(2)The written application, the student's transcripts or other records of courses taken, proof of financial responsibility for the student, and other supporting documents have been received, reviewed, and evaluated at the school's location in the United States.

(3)The appropriate school authority has determined that the prospective student's qualifications meet all standards for admission.

(4)The official responsible for admission at the school has accepted the prospective student for enrollment in a full course of study.

(l)Designated Official. (1) Meaning of term Designated Official. As used in §§ 214.2(f) and (m), 214.3 and 214.4, a Designated Official, Designated School Official (DSO), or Principal Designated School Official (PDSO), means a regularly employed member of the school administration whose office is located at the school and whose compensation does not come from commissions for recruitment of foreign students. An individual whose principal obligation to the school is to recruit foreign students for compensation does not qualify as a designated official. The PDSO and any other DSO must be named by the president, owner, or head of a school or school system. The PDSO and DSO may not delegate this designation to any other person.

214.4Denial of certification, denial of recertification, or withdrawal of SEVP certification.#

(a)General—(1) Denial of certification. The petitioning school will be notified of the reasons and its appeal rights if a petition for certification is denied, in accordance with the provisions of 8 CFR 103.3(a)(1)(iii). A petitioning school denied certification may file a new petition for certification at any time.

(2)Denial of recertification or withdrawal on notice. The school must wait at least one calendar year from the date of denial of recertification or withdrawal on notice before being eligible to petition again for SEVP certification if a school's petition for recertification is denied by SEVP pursuant to § 214.3(h)(2)(v), or its certification is withdrawn on notice pursuant to paragraph (b) of this section. Eligibility to re-petition will be at the discretion of the Director of SEVP. SEVP certification of a school or school system for the attendance of nonimmigrant students, pursuant to sections 101(a)(15)(F) and/or 101(a)(15)(M) of the Immigration and Nationality Act, will be withdrawn on notice subsequent to out-of-cycle review, or recertification denied, if the school or school system is determined to no longer be entitled to certification for any valid and substantive reason including, but not limited to, the following:

(i)Failure to comply with 8 CFR 214.3(g)(1) without a subpoena.

(ii)Failure to comply with 8 CFR 214.3(g)(2).

(iii)Failure of a DSO to notify SEVP of the attendance of an F-1 transfer student as required by 8 CFR 214.2(f)(8)(ii).

(iv)Failure of a DSO to identify on the Form I-20 or successor form which school within the system the student must attend, in compliance with 8 CFR 214.3(k).

(v)Willful issuance by a DSO of a false statement, including wrongful certification of a statement by signature, in connection with a student's school transfer or application for employment or practical training.

(vi)Conduct on the part of a DSO that does not comply with the regulations.

(vii)The designation as a DSO of an individual who does not meet the requirements of 8 CFR 214.3(l)(1).

(viii)Failure to provide SEVP with the school's Form I-17 bearing the names, titles, and signatures of DSOs as required by 8 CFR 214.3(l)(2).

(ix)Failure to submit statements of DSOs as required by 8 CFR 214.3(l)(3).

(x)Issuance of Form I-20 or successor form to students without receipt of proof that the students have met scholastic, language, or financial requirements as required by 8 CFR 214.3(k)(2).

(xi)Issuance of Form I-20 or successor form to aliens who will not be enrolled in or carry full courses of study, as defined in 8 CFR 214.2(f)(6) or 214.2(m)(9).

(xii)Failure to operate as a bona fide institution of learning.

(xiii)Failure to employ adequate qualified professional personnel.

(xiv)Failure to limit advertising in the manner prescribed in 8 CFR 214.3(j).

(xv)Failure to maintain proper facilities for instruction.

(xvi)Failure to maintain accreditation or licensing necessary to qualify graduates as represented in the school's Form I-17.

(xvii)Failure to maintain the physical plant, curriculum, and teaching staff in the manner represented in the Form I-17. (xviii) Failure to comply with the procedures for issuance of Form I-20 or successor form as set forth in 8 CFR 214.3(k).

(xix)Failure of a DSO to notify SEVP of material changes, such as changes to the school's name, address, or curricular changes that represent material change to the scope of institution offerings (e.g., addition of a program, class or course for which the school is issuing Form I-20 or successor form, but which does not have Form I-17 approval), as required by 8 CFR 214.3(f)(1).

(3)Automatic withdrawal. A school that is automatically withdrawn and subsequently wishes to enroll nonimmigrant students in the future may file a new petition for SEVP certification at any time. The school must use the certification petition procedures described in § 214.3(h) to gain access to SEVIS for submitting its petition. Past compliance with the recordkeeping, retention, reporting and other requirements of 8 CFR 214.3(f), (g), (j), (k), and (l), and with the requirements for transition of students under paragraph (i) of this section will be considered in the evaluation of a school's subsequent petition for certification. SEVP certification will be automatically withdrawn:

(i)As of the date of termination of operations, if an SEVP-certified school terminates its operations.

(ii)As of a school's certification expiration date, if an SEVP-certified school does not submit a completed recertification petition in the manner required by 8 CFR 214.3(h)(2).

(iii)Sixty days after the occurrence of the change of ownership if the school failed to update its information in accordance with § 214.3(h)(1) or properly file a new petition, SEVP will review the petition if the school properly files such petition to determine whether the school still meets the eligibility requirements of § 214.3(a)(3) and is still in compliance with the recordkeeping, retention, reporting and other requirements of § 214.3(f), (g), (j), (k), and (l). SEVP will review the petition if the school properly files such petition to determine whether the school still meets the eligibility requirements of 8 CFR 214.3(a)(3) and is still in compliance with the recordkeeping, retention, reporting and other requirements of 8 CFR 214.3(f), (g), (j), (k), and (l). SEVP will institute withdrawal proceedings in accordance with paragraph (b) of this section if, upon completion of the review, SEVP finds that the school is no longer eligible for certification, or is not in compliance with the recordkeeping, retention, reporting and other requirements of § 214.3(f), (g), (j), (k), and (l), or failed to file a new petition within the allowable 60-day timeframe.

(iv)If an SEVP-certified school voluntarily withdraws from its certification.

(b)Withdrawal on notice. SEVP will initiate an out-of-cycle review and serve the school with an NOIW if SEVP has information that a school or school system may no longer be entitled to SEVP certification prior to the school being due for its two-year recertification. The NOIW will inform the school of:

(1)The grounds for withdrawing SEVP certification.

(2)The 30-day deadline from the date of the service of the NOIW for the school to submit sworn statements, and documentary or other evidence, to rebut the grounds for withdrawal of certification in the NOIW. An NOIW is not a means for the school to submit evidence that it should have previously submitted as a part of its established reporting requirements.

(3)The school's right to submit a written request (including e-mail) within 30 days of the date of service of the NOIW for a telephonic interview in support of its response to the NOIW.

(c)Assistance of counsel. The school or school system shall also be informed in the notice of intent to withdraw certification that it may be assisted or represented by counsel of its choice qualified under part 292 of this chapter, at no expense to the Government, in preparation of its answer or in connection with the interview.

(d)Allegations admitted or no answer filed. If the school or school system admits all of the allegations in the notice of intent to withdraw certification, or if the school or school system fails to file an answer within the 30-day period, SEVP will withdraw the certification previously granted and notify the designated school official of the decision. No appeal of SEVP's decision will be accepted if all allegations are admitted or no answer is filed within the 30-day period.

(e)Allegations denied. If the school or school system denies the allegations in the notice of intent to withdraw certification, then the school or school system shall, in its answer, provide all information or evidence on which the answer is based.

(f)Interview requested. (1) If in its answer to the notice of intent to withdraw certification the school or school system requests an interview, the school or school system will be given notice of the date set for the interview.

(2)A summary of the information provided by the school or school system at the interview will be prepared and included in the record. At the discretion of SEVP, the interview may be recorded.

(g)Decision. The decision of SEVP will be in accordance with 8 CFR 103.3(a)(1).

(h)Appeals. A school may file an appeal of a denial or withdrawal no later than 15 days after the service of the decision by ICE. The appeal must state the reasons and grounds for contesting the denial or withdrawal. The appeal must be accompanied by the fee as provided in 8 CFR 103.7(d)(15).

(i)Operations at a school when SEVP certification is relinquished or withdrawn, or whose recertification is denied and on the SEVIS access termination date—(1) General. A school whose certification is relinquished or withdrawn, or whose recertification is denied may, at SEVP discretion, no longer be able to create Initial student records or issue new Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, or successor form, for initial attendance. Schools must comply with the instructions given in the notice of withdrawal or denial with regard to management of status for their Initial and continuing F and/or M students. All other SEVIS functionality, including event reporting for students, will remain unchanged until the school's SEVIS access termination date. The school must continue to comply with the recordkeeping, retention, reporting and other requirements of 8 CFR 214.3(f), (g), (j), (k), and (l) until its SEVIS access termination date.

(2)SEVIS access termination. In determining the SEVIS access termination date, SEVP will consider the impact that such date will have upon SEVP, the school, and the school's nonimmigrant students in determining the SEVIS access termination date. In most situations, SEVP will not determine a SEVIS access termination date for that school until the appeals process has concluded and the denial or withdrawal has been upheld unless a school whose certification is withdrawn or whose recertification is denied is suspected of criminal activity or poses a potential national security threat. The school will no longer be able to access SEVIS, and SEVP will automatically terminate any remaining Active SEVIS records for that school on the SEVIS access termination date.

(3)Legal obligations and ramifications for a school and its DSOs when a school is having SEVP certification denied or withdrawn. Schools are obligated to their students to provide the programs of study to which they have committed themselves in the students' application for enrollment and acceptance process. Schools are obligated to the U.S. government to comply with the recordkeeping, retention, reporting and other requirements contained in 8 CFR 214.3. With any new petition for SEVP certification, SEVP will consider the extent to which a school has fulfilled these obligations to students and the U.S. government during any previous period of SEVP certification.

214.5Libyan and third country nationals acting on behalf of Libyan entities.#

(a)Notwithstanding any other provision of this title, the nonimmigrant status of any Libyan national, or of any other foreign national acting on behalf of a Libyan entity, who is engaging in aviation maintenance, flight operations, or nuclear-related studies or training is terminated.

(b)Notwithstanding any other provision of this chapter, the following benefits will not be available to any Libyan national or any other foreign national acting on behalf of a Libyan entity where the purpose is to engage in, or seek to obtain aviation maintenance, flight operations or nuclear-related studies or training:

(1)Application for school transfer.

(2)Application for extension of stay.

(3)Employment authorization or practical training.

(4)Request for reinstatement of student status.

(5)Application for change of nonimmigrant status. (Secs. 103, 212, 214, 248; 8 U.S.C. 1103, 1182, 1184, 1258)

214.6Citizens of Canada or Mexico seeking temporary entry under USMCA to engage in business activities at a professional level.#

(a)General. Under section 214(e) of the Act, a citizen of Canada or Mexico who seeks temporary entry as a business person to engage in business activities at a professional level may be admitted to the United States in accordance with the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA).

(b)Definitions. As used in this section, the terms: Business activities at a professional level means those undertakings which require that, for successful completion, the individual has a least a baccalaureate degree or appropriate credentials demonstrating status as a professional in a profession set forth in Appendix 2 to Annex 16-A of Chapter 16 of the USMCA. Business person, as defined in the USMCA, means a citizen of Canada or Mexico who is engaged in the trade of goods, the supply of services, or the conduct of investment activities. Engage in business activities at a professional level means the performance of prearranged business activities for a United States entity, including an individual. It does not authorize the establishment of a business or practice in the United States in which the professional will be, in substance, self-employed. A professional will be deemed to be self-employed if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner. Temporary entry, as defined in the USMCA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.

(c)Appendix 2 to Annex 16-A of Chapter 16 of the USMCA. Pursuant to the USMCA, an applicant seeking admission under this section shall demonstrate business activity at a professional level in one of the professions set forth in Appendix 2 to Annex 16-A of Chapter 16. The professions in Appendix 2 to Annex 16-A and the minimum requirements for qualification for each are as follows: 1 1 A business person seeking temporary employment under this Appendix may also perform training functions relating to the profession, including conducting seminars. Appendix 2 to Annex 16-A of Chapter 16 (Annotated) General —Accountant—Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A., or C.M.A. —Architect—Baccalaureate or Licenciatura Degree; or state/provincial license. 2 2 The terms “state/provincial license” and “state/provincial/federal license” mean any document issued by a state, provincial, or federal government, as the case may be, or under its authority, but not by a local government, that permits a person to engage in a regulated activity or profession. —Computer Systems Analyst—Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma 3 or Post-Secondary Certificate, 4 and three years experience. 3 “Post-Secondary Diploma” means a credential issued, on completion of two or more years of postsecondary education, by an accredited academic institution in Canada or the United States. 4 “Post-Secondary Certificate” means a certificate issued, on completion of two or more years of postsecondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law. —Disaster Relief Insurance Claims Adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster)—Baccalaureate or Licenciatura Degree, and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims. —Economist—Baccalaureate or Licenciatura Degree. —Engineer—Baccalaureate or Licenciatura Degree; or state/provincial license. —Forester—Baccalaureate or Licenciatura Degree; or state/provincial license. —Graphic Designer—Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience. —Hotel Manager—Baccalaureate or Licenciatura Degree in hotel/restaurant management; or Post-Secondary Diploma or Post-Secondary Certificate in hotel/restaurant management, and three years experience in hotel/restaurant management. —Industrial Designer—Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience. —Interior Designer—Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience. —Land Surveyor—Baccalaureate or Licenciatura Degree; or state/provincial/federal license. —Landscape Architect—Baccalaureate or Licenciatura Degree. —Lawyer (including Notary in the province of Quebec)—L.L.B., J.D., L.L.L., B.C.L., or Licenciatura Degree (five years); or membership in a state/provincial bar. —Librarian—M.L.S. or B.L.S. (for which another Baccalaureate or Licenciatura Degree was a prerequisite). —Management Consultant—Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement. —Mathematician (including Statistician)—Baccalaureate or Licenciatura Degree. 5 5 The term “Mathematician” includes the profession of Actuary. An Actuary must satisfy the necessary requirements to be recognized as an actuary by a professional actuarial association or society. A professional actuarial association or society means a professional actuarial association or society operating in the territory of at least one of the Parties. —Range Manager/Range Conservationist—Baccalaureate or Licenciatura Degree. —Research Assistant (working in a post-secondary educational institution)—Baccalaureate or Licenciatura Degree. —Scientific Technician/Technologist 6 —Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research. 6 A business person in this category must be seeking temporary entry for work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics. —Social Worker—Baccalaureate or Licenciatura Degree. —Sylviculturist (including Forestry Specialist)—Baccalaureate or Licenciatura Degree. —Technical Publications Writer—Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience. —Urban Planner (including Geographer)—Baccalaureate or Licenciatura Degree. —Vocational Counselor—Baccalaureate or Licenciatura Degree. Medical/Allied Professionals —Dentist—D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental; or state/provincial license. —Dietitian—Baccalaureate or Licenciatura Degree; or state/provincial license. —Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States) 7 —Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience. 7 A business person in this category must be seeking temporary entry to perform in a laboratory, chemical, biological, hematological, immunologic, microscopic or bacteriological tests and analyses for diagnosis, treatment, or prevention of diseases. —Nutritionist—Baccalaureate or Licenciatura Degree. —Occupational Therapist—Baccalaureate or Licenciatura Degree; or state/provincial license. —Pharmacist—Baccalaureate or Licenciatura Degree; or state/provincial license. —Physician (teaching or research only)—M.D. or Doctor en Medicina; or state/provincial license. —Physiotherapist/Physical Therapist—Baccalaureate or Licenciatura Degree; or state/provincial license. —Psychologist—State/provincial license; or Licenciatura Degree. —Recreational Therapist—Baccalaureate or Licenciatura Degree. —Registered Nurse—State/provincial license; or Licenciatura Degree. —Veterinarian—D.V.M., D.M.V., or Doctor en Veterinaria; or state/provincial license. Scientist —Agriculturist (including Agronomist)—Baccalaureate or Licenciatura Degree. —Animal Breeder—Baccalaureate or Licenciatura Degree. —Animal Scientist—Baccalaureate or Licenciatura Degree. —Apiculturist—Baccalaureate or Licenciatura Degree. —Astronomer—Baccalaureate or Licenciatura Degree. —Biochemist—Baccalaureate or Licenciatura Degree. —Biologist—Baccalaureate or Licenciatura Degree. 8 8 The term “Biologist” includes the profession of Plant Pathologist. —Chemist—Baccalaureate or Licenciatura Degree. —Dairy Scientist—Baccalaureate or Licenciatura Degree. —Entomologist—Baccalaureate or Licenciatura Degree. —Epidemiologist—Baccalaureate or Licenciatura Degree. —Geneticist—Baccalaureate or Licenciatura Degree. —Geochemist—Baccalaureate or Licenciatura Degree. —Geologist—Baccalaureate or Licenciatura Degree. —Geophysicist (including Oceanographer in Mexico and the United States)—Baccalaureate or Licenciatura Degree. —Horticulturist—Baccalaureate or Licenciatura Degree. —Meteorologist—Baccalaureate or Licenciatura Degree. —Pharmacologist—Baccalaureate or Licenciatura Degree. —Physicist (including Oceanographer in Canada)—Baccalaureate or Licenciatura Degree. —Plant Breeder—Baccalaureate or Licenciatura Degree. —Poultry Scientist—Baccalaureate or Licenciatura Degree. —Soil Scientist—Baccalaureate or Licenciatura Degree. —Zoologist—Baccalaureate or Licenciatura Degree. Teacher —College—Baccalaureate or Licenciatura Degree. —Seminary—Baccalaureate or Licenciatura Degree. —University—Baccalaureate or Licenciatura Degree.

(d)Classification of citizens of Canada or Mexico as TN professionals under the USMCA—(1) Citizens of Mexico. A citizen of Mexico who seeks temporary entry as a business person to engage in business activities at a professional level may be admitted to the United States in accordance with USMCA upon presentation of a valid passport and valid TN nonimmigrant visa at a United States Class A port-of-entry, at a United States airport handling international traffic, or at a United States pre-clearance/pre-flight station.

(2)Citizens of Canada. A citizen of Canada seeking temporary entry as a business person to engage in business activities at a professional level shall make application for admission with a Department officer at the United States Class A port-of-entry, at a United States airport handling international traffic, or at a United States pre-clearance/pre-flight station.

(3)Documentation. Upon application for a visa at a United States consular office, or, in the case of a citizen of Canada making application for admission at a port-of-entry, an applicant under this section shall present the following:

(i)Proof of citizenship. A Mexican citizen applying for admission as a TN nonimmigrant must establish such citizenship by presenting a valid passport. Canadian citizens, while not required to present a valid passport for admission unless traveling from outside the Western hemisphere, must establish Canadian citizenship.

(ii)Documentation demonstrating engagement in business activities at a professional level and demonstrating professional qualifications. The applicant must present documentation sufficient to satisfy the consular officer (in the case of a Mexican citizen) or the Department officer (in the case of a Canadian citizen) that the applicant is seeking entry to the United States to engage in business activities for a United States employer(s) or entity(ies) at a professional level, and that the applicant meets the criteria to perform at such a professional level. This documentation may be in the form of a letter from the prospective employer(s) in the United States or from the foreign employer, and must be supported by diplomas, degrees or membership in a professional organization. Degrees received by the applicant from an educational institution not located within Canada, Mexico, or the United States must be accompanied by an evaluation by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials. The documentation shall fully affirm:

(A)The profession of the applicant under Appendix 2 to Annex 16-A of Chapter 16 of the USMCA;

(B)A description of the professional activities, including a brief summary of daily job duties, if appropriate, in which the applicant will engage in for the United States employer/entity;

(C)The anticipated length of stay;

(D)The educational qualifications or appropriate credentials which demonstrate that the Canadian or Mexican citizen has professional level status; and

(E)The arrangements for remuneration for services to be rendered.

(e)Procedures for admission. A citizen of Canada or Mexico who qualifies for admission under this section shall be provided confirming documentation and shall be admitted under the classification symbol TN for a period not to exceed three years. The conforming document provided shall bear the legend “multiple entry.” The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian Citizens upon admission to the United States pursuant to the terms and conditions of the USMCA. Upon remittance of the prescribed fee, the TN applicant for admission shall be provided a DHS-issued receipt on the appropriate form.

(f)[Reserved]

(g)Readmission—(1) With a Form I-94. An alien may be readmitted to the United States in TN classification for the remainder of the authorized period of TN admission on Form I-94 (see § 1.4), without presentation of the letter or supporting documentation described in paragraph (d)(3) of this section, and without the prescribed fee set forth in 8 CFR 106.2, provided that the original intended professional activities and employer(s) have not changed, and the Form I-94 has not expired.

(2)Without a valid I-94. If the alien seeking readmission to the United States in TN classification is no longer in possession of a valid, unexpired Form I-94, and the period of initial admission in TN classification has not lapsed, then a new Form I-94 may be issued for the period of validity that remains on the TN nonimmigrant's original Form I-94 with the legend “multiple entry” and the alien can then be readmitted in TN status if the alien presents alternate evidence as follows:

(i)For Canadian citizens, alternate evidence may include, but is not limited to, a fee receipt for admission as a TN or a previously issued admission stamp as TN in a passport, and a confirming letter from the United States employer(s).

(ii)For Mexican citizens seeking readmission as TN nonimmigrants, alternate evidence shall consist of presentation of a valid unexpired TN visa and evidence of a previous admission.

(h)Extension of stay—(1) Filing. A United States employer of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status, or a United States entity (in the case of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status and is employed by a foreign employer), may request an extension of stay, subject to the following conditions:

(i)An extension of stay must be requested by filing the appropriate form with the fee provided at 8 CFR 106.2, in accordance with the form instructions with USCIS.

(ii)The beneficiary must be physically present in the United States at the time of the filing of the appropriate form requesting an extension of stay as a TN nonimmigrant. If the alien is required to leave the United States for any reason while the petition is pending, the petitioner may request that USCIS notify the consular office where the beneficiary is required to apply for a visa or, if visa exempt, a DHS-designated port-of-entry where the beneficiary will apply for admission to the United States, of the approval.

(i)Request for change or addition of United States employers—(1) Filing at the service center. A citizen of Canada or Mexico admitted into the United States as a TN nonimmigrant who seeks to change or add a United States employer during the period of admission must have the new employer file a Form I-129 with appropriate supporting documentation, including a letter from the new employer describing the services to be performed, the time needed to render such services, and the terms of remuneration for services. Employment with a different or with an additional employer is not authorized prior to Department approval of the request.

(2)Readmission at the border. Nothing in paragraph (i)(1) of those section precludes a citizen of Canada or Mexico from applying for readmission to the United States for the purpose of presenting documentation from a different or additional United States or foreign employer. Such documentation shall meet the requirements prescribed in paragraph (d) of this section. The fee prescribed under 8 CFR 106.2 shall be remitted by Canadian citizens upon admission to the United States pursuant to the terms and conditions of the USMCA. Citizens of Mexico may present documentation from a different or additional United States or foreign employer to a consular officer as evidence in support of a new nonimmigrant TN visa application.

(3)No action shall be required on the part of a citizen of Canada or Mexico in TN status who is transferred to another location by the same United States employer to perform the same services. Such an acceptable transfer would be to a branch or office of the employer. In a case of a transfer to a separately incorporated subsidiary or affiliate, the requirements of paragraphs (i)(1) and (i)(2) of this section will apply.

(iii)An extension of stay in TN status may be approved by USCIS for a maximum period of three years.

(iv)There is no specific limit on the total period of time an alien may be in TN status provided the alien continues to be engaged in TN business activities for a U.S. employer or entity at a professional level, and otherwise continues to properly maintain TN nonimmigrant status.

(2)Readmission at the border. Nothing in paragraph (h)(1) of this section shall preclude a citizen of Canada or Mexico who has previously been admitted to the United States in TN status, and who has not violated such status while in the United States, from applying at a DHS-designated port-of-entry, prior to the expiration date of the previous period of admission, for a new three-year period of admission. The application for a new period of admission must be supported by a new letter from the United States employer or the foreign employer, in the case of a citizen of Canada who is providing prearranged services to a United States entity, which meets the requirements of paragraph (d) of this section, together with the appropriate filing fee as noted in 8 CFR 106.2. Citizens of Mexico must present a valid passport and a valid, unexpired TN nonimmigrant visa when applying for readmission, as outlined in paragraph (d)(1) of this section.

(j)Spouse and unmarried minor children accompanying or following to join. (1) The spouse or unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status, if otherwise admissible, may be admitted initially, readmitted, or granted a change of nonimmigrant status or an extension of his or her period of stay for the same period of time granted to the TN nonimmigrant. Such spouse or unmarried minor children shall, upon approval of an application for admission, readmission, change of status or extension of stay be classified as TD nonimmigrants. A request for a change of status to TD or an extension of stay of a TD nonimmigrant may be made on the appropriate form together with appropriate filing fees and evidence of the principal alien's current TN status.

(2)The spouse or unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall be required to present a valid, unexpired TD nonimmigrant visa unless otherwise exempt under 8 CFR 212.1.

(3)The spouse and unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall be issued confirming documentation bearing the legend “multiple entry.” There shall be no fee required for admission of the spouse and unmarried minor children.

(4)The spouse and unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall not accept employment in the United States unless otherwise authorized under the Act.

(k)Effect of a strike. (1) If the Secretary of Labor certifies or otherwise informs the Director of USCIS that a strike or other labor dispute involving a work stoppage of workers is in progress, and the temporary entry of a citizen of Mexico or Canada in TN nonimmigrant status may adversely affect the settlement of any labor dispute or the employment of any person who is involved in such dispute, the United States may refuse to issue an immigration document authorizing the entry or employment of such an alien.

(2)If the alien has already commenced employment in the United States and is participating in a strike or other labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Department of Labor, or whether USCIS has been otherwise informed that such a strike or labor dispute is in progress, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers, but is subject to the following terms and conditions:

(i)The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated in the same manner as all other TN nonimmigrants;

(ii)The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and

(iii)Although participation by a TN nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for removal, any alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired will be subject to removal.

(3)If there is a strike or other labor dispute involving a work stoppage of workers in progress but such strike or other labor dispute is not certified under paragraph (k)(1) of this section, or USCIS has not otherwise been informed by the Secretary that such a strike or labor dispute is in progress, Director of USCIS shall not deny a petition or deny entry to an applicant for TN status based upon such strike or other labor dispute.

214.7Habitual residence in the territories and possessions of the United States and consequences thereof.#

(a)Definitions. As used in this section, the term:

(1)Compacts means the agreements of free association between the United States and the governments of the Republic of the Marshall Islands, the Federated States of Micronesia, and Palau, approved by Public Law 99-239 with respect to the governments of the Republic of the Marshall Islands and the Federated States of Micronesia, and by Public Law 99-658, with respect to Palau.

(2)Freely associated states (FAS) means the following parts of the former Trust Territories of the Pacific Islands, namely, the Republic of the Marshall Islands, the Federated States of Micronesia, and Palau.

(3)Territories and possessions of the United States means all territories and possessions of the United States to which the Act applies, including those commonwealths of the United States that are not States. It does not include American Samoa, as long as the Act does not apply to it.

(4)(i) Habitual resident means a citizen of the FAS who has been admitted to a territory or possession of the United States (other than American Samoa, as long as the Act is not applicable to it) pursuant to section 141(a) of the Compacts and who occupies in such territory or possession a habitual residence as that term is defined in section 461 of the Compacts, namely a place of general abode or a principal, actual dwelling place of a continuing or lasting nature. The term “habitual resident” does not apply to:

(A)A person who has established a continuing residence in a territory or possession of the United States, but whose cumulative physical presence in the United States amounts to less than 365 days; or

(B)A dependent of a resident representative described in section 152 of the Compacts; or

(C)A person who entered the United States for the purpose of full-time studies as long as such person maintains that status.

(b)Where do these rules regarding habitual residence apply? The rules in this section apply to habitual residents living in a territory or possession of the United States to which the Act applies. Those territories and possessions are at present Guam, the Commonwealth of Puerto Rico, the American Virgin Islands, and the Commonwealth of the Northern Mariana Islands. These rules do not apply to habitual residents living in American Samoa as long as the Act does not extend to it. These rules are not applicable to habitual residents living in the fifty States or the District of Columbia.

(c)When is an arriving FAS citizen presumed to be a habitual resident? (1) An arriving FAS citizen will be subject to the rebuttable presumption that he or she is a habitual resident if the Service has reason to believe that the arriving FAS citizen was previously admitted to the territory or possession more than one year ago; and

(2)That the arriving FAS citizen either;

(i)Failed to turn in his or her Form I-94 (see § 1.4) when he or she previously departed from the United States; or

(ii)Failed to apply for a replacement Form I-94.

(d)What rights do habitual residents have? Habitual residents have the right to enter, reside, study, and work in the United States, its territories or possessions, in nonimmigrant status without regard to the requirements of sections 212(a)(5)(A) and 212(a)(7)(A) and (B) of the Act.

(e)What are the limitations on the rights of habitual residents? (1) A habitual resident who is not a dependent is subject to removal if he or she:

(i)Is not and has not been self-supporting for a period exceeding 60 consecutive days for reasons other than a lawful strike or other labor dispute involving work stoppage; or

(ii)Has received unauthorized public benefits by fraud or willful misrepresentation; or

(A)Members of the Armed Forces of the United States described in 8 CFR § 235.1(c);

(B)Persons lawfully admitted for permanent residence in the United States; or

(C)Persons having nonimmigrant status whose entry into the United States is based on provisions of the Compacts or the Act other than section 141(a) of the Compacts.

(5)Dependent means a citizen of the FAS, as defined in section 141(a) of the Compacts, who:

(i)The principal habitual resident who financially supports him or her and with whom he or she resides, becomes subject to removal unless the dependent establishes that he or she has become a dependent of another habitual resident or becomes self-supporting; or

(ii)The dependent, as an individual, receives unauthorized public benefits by fraud or willful misrepresentation; or

(8)Receipt of unauthorized public benefits means the acceptance of public benefits by fraud or willful misrepresentation in violation of section 401 or 411 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2261, 2268, as amended by sections 5561 and 5565 of the Balanced Budget Act of 1997, Public Law 105-33, 111 Stat. 638. 639.

(iii)The dependent, as an individual, is subject to removal pursuant to section 237 of the Act, or any other provision of the Act.

(2)Any dependent is removable from a territory or possession of the United States if:

(iv)Is either the parent, spouse, or unmarried child under the age of 21 of the principal habitual resident or the parent or child of the spouse of the principal habitual resident.

(6)Principal habitual resident means a habitual resident with whom one or more dependents reside and on whom dependent(s) rely for financial support.

(7)Self-supporting means:

214.8-214.10-214.10 [Reserved]#

United States Government work; public domain under 17 U.S.C. § 105.

Subpart C · Subpart C&#x2014;Noncitizen Victims of Severe Forms of Trafficking in Persons

214.200Scope of this subpart.#

214.201Definitions.#

214.202Eligibility for T-1 nonimmigrant status.#

214.203Period of admission.#

214.204Application.#

214.205Bona fide determination.#

214.206Victim of a severe form of trafficking in persons.#

214.207Physical presence.#

214.208Compliance with any reasonable request for assistance in the detection, investigation, or prosecution of an act of trafficking.#

214.209Extreme hardship involving unusual and severe harm.#

214.210Annual numerical limit.#

214.211Application for eligible family members.#

214.212Extension of T nonimmigrant status.#

214.213Revocation of approved T nonimmigrant status.#

214.214Removal proceedings.#

214.215USCIS employee referral.#

214.216Restrictions on use and disclosure of information relating to applicants for T nonimmigrant classification.#

214.1Requirements for admission, extension, and maintenance of status.#

214.11Former regulations for noncitizen victims of severe forms of trafficking in persons.#

214.12[Reserved]#

214.13SEVIS fee for certain F, J, and M nonimmigrants.#

214.14Alien victims of certain qualifying criminal activity.#

214.15Certain spouses and children of lawful permanent residents.#

214.2Special requirements for admission, extension, and maintenance of status.#

214.3Certification and recertification of schools for enrollment of F and M nonimmigrants.#

214.4Denial of certification, denial of recertification, or withdrawal of SEVP certification.#

214.5Libyan and third country nationals acting on behalf of Libyan entities.#

214.6Citizens of Canada or Mexico seeking temporary entry under USMCA to engage in business activities at a professional level.#

214.7Habitual residence in the territories and possessions of the United States and consequences thereof.#

214.8-214.10-214.10 [Reserved]#

Subpart C · Subpart C—Noncitizen Victims of Severe Forms of Trafficking in Persons