8 cfr 214.2

§ 214.2

8 CFR Ch. I (1–1–01 Edition)

of this chapter, except for those aliens
enumerated in 8 CFR 248.2, have his or
her
nonimmigrant
classification
changed to that of an alien classified
pursuant to section 101(a)(15)(S) of the
Act as set forth in 8 CFR 248.3(h).
(Title VI of the Health Professions Educational Assistance Act of 1976 (Pub. L. 94–
484; 90 Stat. 2303); secs. 103 and 214, Immigration and Nationality Act (8 U.S.C. 1103 and
1184))
[38 FR 35425, Dec. 28, 1973]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 214.2, see the List of CFR
Sections Affected, which appears in the
Finding Aids section in the printed volume
and on GPO Access.
EFFECTIVE DATE NOTE: At 65 FR 43531, July
13, 2000, in § 214.2, paragraphs (h)(2)(i)(A), (B),
(D), and (E), (iii), (iv), (v), (5)(i)(A) through
(D), (ii), (iv)(B), (v), (ix), (9)(ii)(C), (10)(ii),
(iii), (11)(i), (ii), (iii)(A) introductory text,
(B), (12)(i), (13)(i)(A), (14), (16)(ii) and (18)
were revised and paragraph (h)(9)(i)(C) was
added, effective Nov. 13, 2000. At 65 FR 67617,
Nov. 13, 2000, the effective date was delayed
until Oct. 1, 2001. For the convenience of the
user, the revised and added text is set forth
as follows:
§ 214.2 Special requirements for admission,
extension, and maintenance of status.

*

*

*

*

*

(h) * * *
(2) * * *
(i) * * *
(A) General. Except as provided in this section, even in emergency situations, a United
States employer seeking to classify an alien
as an H–1B, H–2B, or H–3 temporary employee must file a petition on Form I–129,
Petition for Nonimmigrant Worker, with the
service center which has jurisdiction in the
area where the alien will perform services or
receive training. A United States employer
seeking to classify an alien as an H–2A worker must file a petition on Department of
Labor (DOL) Form ETA–9079, Application for
Temporary Agricultural Labor Certification
and H–2A Petition, only with the DOL Regional Administrator having jurisdiction in
the area where the alien will first perform
services (see 20 CFR 655, Subpart B). All petitions for temporary workers, except petitions for temporary agricultural workers (H–
2As), in Guam and the Virgin Islands, and petitions involving special filing situations as
determined by Service Headquarters, must
be filed with the local Service office or a designated Service office. Petitions for temporary agricultural workers (H–2A) in Guam
and the Virgin Islands must be filed with the

DOL Regional Administrator having jurisdiction. The petitioner may submit a legible
photocopy of a document in support of the
petition in lieu of the original document.
However, the original document must be submitted if requested by the Service.
(B) Service or training in more than one location. A petition that requires services to be
performed or training to be received in more
than one location must include an itinerary
with the dates and locations of the services
or training and must be filed with the Service office that has jurisdiction over petitions
in the area where the petitioner is located,
or in the case of H–2As, it must be filed with
the DOL Regional Administrator having jurisdiction over the location where services
will be performed first. The address that the
petitioner specifies as its location on the petition must be where the petitioner is located for purposes of this paragraph.

*

*

*

*

*

(D) Change of employers. (1) If the alien is in
the United States and seeks to change employers, the prospective new employer (except in the case of H–2As) must file a petition on Form I–129, with the fee required in
§ 103.7(b)(1) of this chapter, requesting classification and extension of the alien’s stay in
the United States. If the new petition is approved, the extension of stay may be granted
for the validity of the approved petition. The
validity of the petition and the alien’s extension of stay must conform to the limits on
the alien’s temporary stay that are prescribed in paragraph (h)(13) of this section.
The alien is not authorized to begin the employment with the new petitioner until the
petition is approved.
(2) [Reserved]
(3) An H–1A nonimmigrant alien may not
change employers.
(E) Amended or new petition. The petitioner
must file an amended or new petition, with
fee, with the Service Center or, in the case of
H–2A workers, with the DOL Regional Administrator where the original petition was
filed, to reflect any material changes in the
terms and conditions of employment or
training or the beneficiary’s eligibility as
specified in the original approved petition.
An amended or new H–1A, H–1B, or H–2B petition must be accompanied by a current or
new DOL determination. An H–2A petition
must be filed with a valid labor certification
or an application for the certification. In the
case of an H–1B petition, this requirement
includes a new labor condition application.

*

*

*

*

*

(iii) Named beneficiaries. Nonagricultural
petitions must include the names of beneficiaries and other required information at

376

VerDate 112000

08:40 Jan 23, 2001

Jkt 194025

PO 00000

Frm 00376

Fmt 8010

Sfmt 8003

Y:\SGML\194025T.XXX

pfrm01

PsN: 194025T

Immigration and Naturalization Service, Justice
the time of filing. Under the H–2B classification, exceptions may be granted in emergency situations involving multiple beneficiaries at the discretion of the Service Center Director, and in special filing situations
as determined by the Service’s Headquarters.
If all of the beneficiaries covered by an H–2B
labor certification have not been identified
at the time a petition is filed, multiple petitions naming subsequent beneficiaries may
be filed at different times with a copy of the
same labor certification. Each petition must
reference all previously filed petitions for
that labor certification. An H–2A petition
may contain both named and unnamed beneficiaries and must agree in total number of
positions with the labor certification request. The H–2A petition does not need to
agree in total number when seeking an extension of stay for H–2A beneficiaries in the
United States.
(iv) Substitution of beneficiaries. Beneficiaries may be substituted in H–2B petitions that are approved for a group, or H–2B
petitions that are approved for unnamed
beneficiaries, or approved H–2B petitions
where the job offered to the alien(s) does not
require any education, training, and/or experience. To request a substitution, the petitioner must, by letter and a copy of the petition approval notice, notify the consular office where the alien will apply for a visa or
the port-of-entry where the alien will apply
for admission. Where evidence of the qualifications of beneficiaries is required in petitions for unnamed beneficiaries, the petitioner must also submit such evidence to the
consular office or port-of-entry prior to
issuance of a visa or admission. (See paragraph (h)(5) of this section for substitution of
H–2A beneficiaries.)
(v) H–2A petitions. Special criteria for admission, extension, maintenance of status,
and substitution of beneficiaries apply to H–
2A petitions and are specified in paragraph
(h)(5) of this section. The other provisions of
§ 214.2(h) apply to H–2A only to the extent
that they do not conflict with the special agricultural provisions in paragraph (h)(5) of
this section.

(B) Multiple beneficiaries. The total number
of beneficiaries of a petition must equal the
number of workers indicated on the application for labor certification, except when the
petitioner is seeking an extension of stay for
H–2A beneficiaries in the United States. A
petition can include more than one beneficiary even when all beneficiaries will not
obtain a visa at the same consulate or are
not required to have a visa and will not
apply for admission at the same port-ofentry. A petition may also include beneficiaries seeking change of status or extension of stay.
(C) Identification of beneficiaries. The sole
beneficiary of an H–2A petition must be
named in the petition. All beneficiaries located in the United States must be named in
the petition. The total number of unnamed
beneficiaries must be shown on the petition.
Names of beneficiaries located outside of the
United States may be included on the petition, but are not required to be identified
until application for visa issuance from the
Department of State.
(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 satisfies any qualifications for that employment. A petition will be
automatically denied if filed without the initial evidence required in paragraph (h)(5)(v)
of this section for each named beneficiary.

*

*

*

*

*

(5) * * *
(i) * * *
(A) General. An H–2A petition must be filed
on Form ETA–9079 with the DOL Regional
Administrator having jurisdiction over the
area of employment and be accompanied by
the filing fee specified in § 103.7(b)(1) of this
chapter. An H–2A petition may be filed by either the employer listed on the certification
application, the employer’s agent, or the association of United States agricultural producers named as a joint employer on the certification application.

*

*

*

*

(ii) Effect of the labor certification process.
The temporary agricultural labor certification process determines whether employment is for a temporary or seasonal agricultural worker, whether it is open to U.S.
workers, if qualified U.S. workers are available, the adverse impact of employment of a
qualified alien, and whether employment
conditions, including housing, meet applicable requirements. In petition proceedings, a
petitioner must establish that the employment and beneficiary meet the requirements
of paragraph (h)(5) of this section.

*
*

§ 214.2

*

*

*

*

(iv) * * *
(B) Effect of permanent labor certification application. Employment will be found not to
be temporary or seasonal where an application for permanent labor certification has
been filed for the same alien, or for another
alien to be employed in the same position, by
the same employer or by its parent, subsidiary or affiliate. This can be overcome
only by the petitioner’s demonstration that
there will be at least a 6 month interruption
of employment in the United States after H–
2A status ends.
(v) The beneficiary’s qualifications—

377

VerDate 112000

08:40 Jan 23, 2001

Jkt 194025

PO 00000

Frm 00377

Fmt 8010

Sfmt 8003

Y:\SGML\194025T.XXX

pfrm01

PsN: 194025T

§ 214.2

8 CFR Ch. I (1–1–01 Edition)

(A) Eligibility requirements. An H–2A petitioner must establish that any named beneficiary met the stated minimum requirements and was fully able to perform the stated duties when the application for certification was filed. It must be established at
the time of application for an H–2A visa, or
for admission if a visa is not required, that
any unnamed beneficiary either met these
requirements when the certification was applied for or passed any certified aptitude test
at any time prior to visa issuance, or prior
to admission if a visa is not required.
(B) Initial evidence of employment/job training. A petition must be filed with evidence
that at the time of filing the named beneficiary met the certification’s minimum employment and job training requirements. Initial evidence must be in the form of the past
employer’s detailed statement or actual employment documents, such as company payroll or tax records. Alternately, a petitioner
must show that such evidence cannot be obtained, and submit affidavits from people
who worked with the beneficiary that demonstrate the claimed employment.
(C) Initial evidence of education and other
training. A petition must be filed with evidence that at the time of filing each named
beneficiary met the certification’s minimum
post-secondary education and other formal
training requirements. Initial evidence must
be in the form of documents, issued by the
relevant institution or organization, that
show periods of attendance, majors, and degrees or certificates accorded.

*

*

*

*

*

(ix) Substitution of beneficiaries after admission. An H–2A petition may be filed with the
DOL Regional Administrator to replace H–2A
workers whose employment was terminated
early. The petition must be filed with a copy
of the labor certification, a copy of the approval notice covering the workers for whom
replacements are sought, and other evidence
required by paragraph (h)(5)(i)(D) of this section. It must also be filed with a statement
giving each terminated worker’s name, date
and country of birth, termination date, and
evidence the worker has departed the United
States. A petition for a replacement may not
be approved when the requirements of paragraph (h)(5)(vi) of this section have not been
met. A petition for replacements does not
constitute the notice to the Service that an
H–2A worker has absconded or has ended authorized employment more than 5 days before the relating certification expires.

*

*

*

*

*

(9) * * *
(i) * * *
(C) For H–2As, the Department of Labor
will issue a notice of petition approval as

part of its notification of labor certification
approval. The notice will conform with paragraph (h)(9)(i)(A) of this section.
(ii) * * *
(C) If the period of services or training requested by the petitioner exceeds the limit
specified in paragraph (h)(5)(vii), or (h)(9)(iii)
of this section, the petition will be approved
only up to the limit specified in that paragraph.

*

*

*

*

*

(10) * * *
(ii) Notice of intent to deny. When an adverse decision is proposed on the basis of derogatory information of which the petitioner
is unaware, the director, or the DOL Regional Administrator in the case of H–2A petitions, must notify the petitioner of the intent to deny the petition and the basis for
the denial. The petitioner may inspect and
rebut the evidence and will be granted a period of 30 days from the date of the notice (7
days for H–2A petitions) in which to do so.
All relevant rebuttal material will be considered in making a final decision.
(iii) Notice of denial. The petitioner must be
notified of the reasons for the petition denial, and of the right to appeal the denial of
the petition under 8 CFR part 103, and in the
case of H–2A petitions, under the rules established by DOL in 20 CFR 655, subpart B.
There is no appeal from a decision to deny a
change of status or an extension of stay to
the alien.
(11) * * *
(i) General.
(A) The petitioner must immediately notify the Service (or the DOL Regional Administrator for H–2As) of any changes in the
terms and conditions of employment of a
beneficiary that may affect eligibility under
section 101(a)(15)(H) of the Act and paragraph
(h) of this section. An amended petition on
Form I–129, or on Form ETA–9079 in the case
of H–2A workers, must be filed when the petitioner continues to employ the beneficiary.
If the petitioner no longer employs the beneficiary, the petitioner must send a letter notifying the director or the Regional Administrator who approved the petition.
(B) The director or the Regional Administrator who approved the petition may revoke
a petition at any time, even after the expiration of the petition.
(ii) Automatic revocation. The approval of
any petition is automatically revoked if the
petitioner goes out of business or files a
written withdrawal of the petition. No notice
to the petitioner is required.
(iii) * * *
(A) Grounds for revocation. The director (or
the DOL Regional Administrator in the case
of H–2A workers) must send to the petitioner
a notice of intent to revoke the petition, or

378

VerDate 112000

08:40 Jan 23, 2001

Jkt 194025

PO 00000

Frm 00378

Fmt 8010

Sfmt 8003

Y:\SGML\194025T.XXX

pfrm01

PsN: 194025T

Immigration and Naturalization Service, Justice
relevant part of the petition, if he or she
finds that:

*

*

*

*

*

*

*

*

(13) * * *
(i) * * *
(A) A beneficiary may be admitted to the
United States for the validity period of the
petition, plus a period of up to 10 days before
the validity period begins and 10 days after
the validity period ends. The beneficiary
may not work except during the validity period of the petition. (See paragraph
(h)(5)(viii) of this section for admission and
limits on admission for H–2As.)

*

*

*

*

*

(14) Extension of petition validity. Except
with respect to H–2A petitions, the petitioner must file a request for a petition extension on Form I–129 to extend the validity
of the original petition under section
101(a)(15)(H) of the Act. Supporting evidence
is not required unless requested by the director. A request for a petition extension may
be filed only if the validity of the original
petition has not expired. (See paragraph
(h)(5)(x) of this section for extension requirements for H–2A petitions.)

*

*

*

*

reason, by itself, to deny a petition extension request and the alien’s extension of
stay.

*

(B) Notice and decision. The notice of intent
to revoke must 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 or the DOL Regional Administrator must 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 must remain approved and a revised approval notice must be sent to the petitioner with the revocation notice.
(12) * * *
(i) Denial. A petition (other than an H–2A
petition) denied in whole or in part by the
Service may be appealed under 8 CFR part
103. In the case of an H–2A petition, the appeal must be filed with DOL concurrently
with the appeal of the denial of a labor certification (or if the certification was not denied, within 30 days) under the rules established by DOL in 20 CFR 655 subpart B.

*

§ 214.3

*

(16) * * *
(ii) H–2A, H–2B, and H–3 classification. The
approval of a permanent labor certification,
or the filing of a preference petition for an
alien currently employed by or in a training
position with the same petitioner, may be a

*

*

*

*

*

(18) Use of approval notice, Form I–797 and
DOL notification. The Service must notify
the petitioner on Form I–797 whenever a petition, an extension of a petition, or an
alien’s extension of stay is approved under
the H classification (except with respect to
H–2A). DOL must notify the petitioner as
part of its certification notice whenever an
H–2A petition or an extension of a petition is
approved by a Regional Administrator. The
beneficiary of an H petition who does not require a nonimmigrant visa may present a
copy of the approval notice at a port-ofentry 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 or DOL notification to apply for a new or
revalidated visa during the validity period of
the petition. The copy of Form I–797 or DOL
notification must be retained by the beneficiary and presented during the validity period of the petition when re-entering the
United States to resume the same employment with the same petitioner.

*

*

*

*

*

§ 214.3 Petitions
for
approval
of
schools.
(a) Filing petition—(1) General. A
school or school system seeking approval for attendance by nonimmigrant
students under sections 101(a)(15)(F)(i)
or 101 (a)(15)(M)(i) of the Act, or both,
shall file a petition on Form I–17 with
the district director having jurisdiction over the place in which the school
or school system is located. Separate
petitions are required for different
schools in the same school system located within the jurisdiction of different district directors. A petition by
a school system must specifically identify by name and address those schools
included in the petition. The petition
must also state whether the school or
school system is seeking approval for
attendance of nonimmigrant students
under
section
101(a)(15)(F)(i)
or
101(a)(15)(M)(i) of the Act or both.
(2) Approval for F–1 or M–1 classification, or both—(i) F–1 classification. The
following schools may be approved for
attendance by nonimmigrant students
under section 101(a)(15)(F)(i) of the Act:

379

VerDate 112000

08:40 Jan 23, 2001

Jkt 194025

PO 00000

Frm 00379

Fmt 8010

Sfmt 8010

Y:\SGML\194025T.XXX

pfrm01

PsN: 194025T