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(H) Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.

(iv) Petition for participant in a special education exchange visitor program-A) General Requirements. (1) The H-3 participant in a special education training program must be coming to the United States to participate in a structured program which provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.

(2) The petition must be filed by a facility which has professionally trained staff and a structured program for providing education to children with disabilities, and for providing training and hands-on experience to participants in the special education exchange visitor program.

(3) The requirements in this section for alien trainees shall not apply to petitions for participants in a special education exchange visitor program.

(B) Evidence. An H-3 petition for a participant in a special education exchange visitor program shall be accompanied by:

(1) A description of the training program and the facility's professional staff and details of the alien's participation in the training program (any custodial care of children must be incidental to the training), and

(2) Evidence that the alien participant is nearing completion of a baccalaureate or higher degree in special education, or already holds such a degree, or has extensive prior training and experience in teaching children with physical, mental, or emotional disabilities.

(8) Numerical limits-(i) Limits on affected categories. During each fiscal year, the total number of aliens who can be provided nonimmigrant classification is limited as follows:

(A) Aliens classified as H-1B nonimmigrants, excluding those in in Department of Defense research and development projects or coproduction projects, may not exceed:

(1) 115,000 in fiscal year 1999;
(2) 115,000 in fiscal year 2000;
(3) 107,500 in fiscal year 2001; and

(4) 65,000 in each succeeding fiscal year.

(B) Aliens classified as H-1B nonimmigrants to work for DOD research and development projects or coproduction projects may not exceed 100 at any time.

(C) Aliens classified as H-2B nonimmigrants may not exceed 66.000.

(D) Aliens classified as H-3 nonimmigrant participants in a special education exchange visitor program may not exceed 50. (ii) Procedures. (A) Each alien issued

visa otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of the Act shall be counted for purposes of the numerical limit. Requests for petition extension or extension of an alien's stay shall not be counted for the purpose of the numerical limit. The spouse and children of principal aliens classified as H-4 nonimmigrants shall not be counted against the numerical limit.

(B) Numbers will be assigned temporarily to each alien (or job opening(s) for aliens in petitions with unnamed beneficiaries) included in a new petition in the order that petitions are filed. If a petition is denied, the number(s) originally assigned to the petition shall be returned to the system which maintains and assigns numbers.

(C) For purposes of assigning numbers to aliens on petitions filed in Guam and the Virgin Islands, Service Headquarters Adjudications shall assign numbers to these locations from the central system which controls and assigns numbers to petitions filed in other locations of the United States.

(D) When an approved petition is not used because the beneficiary(ies) does not apply for admission to the United States, the petitioner shall notify the Service Center Director who approved the petition that the number(s) has not been used. The petition shall be revoked pursuant to paragraph (h)(11)(ii) of this section and the unused number(s) shall be returned to the system which maintains and assigns numbers.

(E) If the total numbers available in a fiscal year are used, new petitions and the accompanying fee shall be rejected and returned with a notice that numbers are unavailable for the particular nonimmigrant classification until the beginning of the next fiscal year.

(9) Approval and validity of petition, (i) Approval. The director shall consider all the evidence submitted and such other evidence as he or she may independently require to assist his or her adjudication. The director shall notify the petitioner of the approval of the petition on Form I-797, Notice of Action. The approval shall be as follows:

(A) The approval notice shall include the beneficiary's(ies') name(s) and classification and the petition's period of validity. A petition for more than one beneficiary and/or multiple services may be approved in whole or in part. The approval notice shall cover only those beneficiaries approved for classification under section 101(a)(15)(H) of the Act.

(B) The petition may not be filed or approved earlier than six months before the date of actual need for the beneficiary's services or training.

(ii) Recording the validity of petitions. Procedures for recording the validity period of petitions are:

(A) If a new H petition is approved before the date the petitioner indicates that the services or training will begin, the approved petition and approval notice shall show the actual dates requested by the petitioner as the validity period, not to exceed the limits specified by paragraph (h)(9)(iii) of this section or other Service policy.

(B) If a new H petition is approved after the date the petitioner indicates that the services or training will begin, the approved petition and approval notice shall show a validity period commencing with the date of approval and ending with the date requested by the petitioner, as long as that date does not exceed either the limits specified by paragraph (h)(9)(iii) of this section or other Service policy.

(C) If the period of services or training requested by the petitioner exceeds the limit

specified in paragraph (h)(9)(iii) of this section, the petition shall be approved only up to the limit specified in that paragraph.

(iii) Validity. The initial approval period of an H petition shall conform to the limits prescribed as follows:

(A)(1) H-1B petition in a specialty occupation. An approved petition classified under section 101(a)(15)(H)(i)(b) of the Act for an alien in a specialty occupa

tion shall be valid for a period of up to three years but may not exceed the validity period of the labor condition application.

(2) H-1B petition involving a DOD research and development or coproduction project. An approved petition classified under section 101(a)(15)(H)(i)(b) of the Act for an alien involved in a DOD research and development project or a coproduction project shall be valid for a period of up to five years.

(3) H-1B petition involving an alien of distinguished merit and ability in the field of fashion modeling. An approved petition classified under section 101(a)(15)(H)(i)(b) of the Act for an alien of distinguished merit and ability in the field of fashion modeling shall be valid for a period of up to three years.

(B) H-2B petition-1) Labor certification attached. If a certification by the Secretary of Labor or the Governor of Guam is attached to a petition to accord an alien a classification under section 101(a)(15)(H)(ii)(B) of the Act, the approval of the petition shall be valid for a period of up to one year.

(2) Notice that certification cannot be made attached—(i) Countervailing evidence. If a petition is submitted containing a notice from the Secretary of Labor or the Governor of Guam that certification cannot be made, and is not accompanied by countervailing evidence, the petitioner shall be informed that he or she may submit the countervailing evidence in accordance with paragraphs (h)(6)(iii)(E) and (h)(6)(iv)(D) of this section.

(ii) Approval. In any case where the director decides that approval of the H2B petition is warranted despite the issuance of a notice by the Secretary of Labor or the Governor of Guam that certification cannot be made, the approval shall be certified by the Director to the Commissioner pursuant to 8 CFR 103.4. In emergent situations, the certification may be presented by telephone to the Director, Administrative Appeals Office, Headquarters. If approved, the petition is valid for the period of established need not to exceed one year. There is no appeal from a decision which has been certified to the Commissioner.

(C)(1) H-3 petition for alien trainee. An approved petition for an alien trainee

no

classified

under

section 101(a)(15)(H)(iii) of the Act shall be valid for a period of up to two years.

(2) H-3 petition for alien participant in a special education training program. An approved petition for an alien classified under section 101(a)(15)(H)(iii) of the Act as a participant in a special education exchange visitor program shall be valid for a period of up to 18 months.

(iv) Spouse and dependents. The spouse and unmarried minor children of the beneficiary are entitled to H nonimmigrant classification, subject to the same period of admission and limitations as the beneficiary, if they are accompanying or following to join the beneficiary in the United States. Neither the spouse nor a child of the beneficiary may accept employment unless he or she is the beneficiary of an approved petition filed in his or her behalf and has been granted a nonimmigrant classification authorizing his or her employment.

(10) Denial of petition–(i) Multiple beneficiaries. A petition for multiple beneficiaries may be denied in whole or in part.

(ii) Notice of intent to deny. When an adverse decision is proposed on the basis of derogatory inform U.S. ation of which the petitioner is unaware, the director shall notify the petitioner of the intent to deny the petition and the basis for the denial. The petitioner may inspect and rebut the evidence and will be granted a period of 30 days from the date of the notice in which to do so. All relevant rebuttal material will be considered in making a final decision.

(iii) Notice of denial. The petitioner shall be notified of the reasons for the denial, and of his or her right to appeal the denial of the petition under 8 CFR part 103. There is no appeal from a decision to deny an extension of stay to the alien.

(11) Revocation of approval of petition-(i) General. (A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed

when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition.

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

(ii) Automatic revocation. The approval of any petition is automatically revoked if the petitioner goes out of business or files a written withdrawal of the petition.

(iii) Revocation on notice-(A) Grounds for revocation. The director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he or she finds that:

(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is longer receiving training as specified in the petition; or

(2) The statement of facts contained in the petition was not true and correct; or

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

(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section; or

(5) The approval of the petition violated pargraph (h) of this section or involved gross error.

(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. The director shall consider all relevant evidence presented in deciding whether to revoke the petition in whole or in part. If the petition is revoked in part, the remainder of the petition shall remain approved and a revised approval notice shall be sent to the petitioner with the revocation notice.

(12) Appeal of a denial or a revocation of a petition-(i) Denial. A petition denied in whole or in part may be appealed under part 103 of this chapter.

(ii) Revocation. A petition that has been revoked on notice in whole or in part may be appealed under part 103 of this chapter. Automatic revocations may not be appealed.

are

(13) Admission-(i) General. (A) A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.

(B) When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15) (H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad

not interruptive, but do not count towards fulfillment of the required time abroad. The petitioner shall provide information about the alien's employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to spend time abroad.

(ii) H-1A limitation on admission. An alien who was previously accorded H1A nonimmigrant status, which expired on or before October 11, 1996, may not be admitted to the United States after October 11, 1996, in order to apply for an extension of authorized stay as provided in Public Law 104–302. Except as provided in paragraph (15)(ii)(A) of this subsection, and H-1A alien who has spent 5 years in the United States under section 101(a)(15)(H) of the Act may not change status, admitted to the United States in any H classification unless the alien has resided and been physically present outside the United States, except for brief trips for pleasure or business, for the immediate prior year.

(iii) H-1B limitation on admission. (A) Alien in a specialty occupation or an alien of distinguished merit and ability in the field of fashion modeling. An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15)(H) and/ or (L) of the Act may not seek extension, change status, or be readmitted

to the United States under section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.

(B) Alien involved in a DOD research and development or coproduction project. An H-1B alien involved in a DOD research and development or coproduction project who has spent 10 years in the United States under section 101(a)(15) (H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15) (H) or (L) of the Act to perform services involving a DOD research and development project or coproduction project. A new petition or change of status under section 101(a)(15) (H) or (L) of the Act may not be approved for such an alien unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.

(iv) H-2B and H-3 limitation on admission. An H-2B alien who has spent 3 years in the United States under section 101(a)(15)(H) and/or (L) of the Act; an H-3 alien participant in a special education program who has spent 18 months in the United States under section 101(a)(15)(H) and/or (L) of the Act; and an H-3 alien trainee who has spent 24 months in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15)(H) and/ or (L) of the Act unless the alien has resided and been physically present outside the United States for the immediate prior 6 months.

(v) Erceptions. The limitations in paragraph (h)(13)(ii) through (h)(13)(iv) of this section shall not apply to H-1A, H-1B, H-2B, and H-3 aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitations shall not apply to aliens who reside abroad and regularly commute to the United States to engage in parttime employment. To qualify for this

or be

re

as

exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.

(14) Extension of visa petition validity. The petitioner shall file a request for a petition extension on Form I-129 to extend the validity of the original petition under section 101(a)(15)(H) of the Act. Supporting evidence is not required unless requested by the director. A request for a petition extension may be filed only if the validity of the original petition has not expired.

(15) Extension of stay-(i) General. The petitioner shall apply for extension of an alien's stay in the United States by filing a petition extension on Form I129 accompanied by the documents described for the particular classification in paragraph (h)(15)(ii) of this section. The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary's extension of stay. The beneficiary must be physically present in the United States at the time of the filing of the extension of stay. Even though the requests to extend the petition and the alien's stay are combined on the petition, the director shall make a separate determination on each. If the alien is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may request the director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa. When the total period of stay in an H classification has been reached, no further extensions may be granted.

(ii) Extension periods-(A) H-1A extension of stay. An alien who previously entered the United States pursuant to an H-1A visa may receive an extension of H-1A temporary stay until September 30, 1997, provided that the alien was within the United States in valid H-1A classification on or after September 1, 1995, regardless of whether the alien continued to work as a registered nurse after September 1, 1995; that the alien's period of H-1A temporary stay has expired or would expire

before September 30, 1997; and, if the alien was not in valid H-1A nonimmigrant status on October 11, 1996, that the alien was within the United States on October 11, 1996. An extension of stay may not be granted to an H-1A nonimmigrant alien beyond September 30, 1997. An H-1A alien granted an extension of stay, and the spouse and child of such nonimmigrant, shall be considered to have maintained nonimmigrant status through September 30, 1997, for all purposes under the Immigration and Nationality Act, amended. Public Law 104-302 does not apply to an H-1A alien who otherwise failed to maintain his or her valid H-1A nonimmigrant status or has changed from H-1A to another nonimmigrant status. A request for an extension of stay for an H-1A nonimmigrant must be filed on Form I-129, Petition for Nonimmigrant Worker, at the appropriate Service Center with the following:

(1) Evidence that the alien was employed as a registered nurse on September 1, 1995:

(2) Evidence that the beneficiary is licensed to practice as a registered nurse in the state of intended employment;

(3) Evidence that the alien was within the United States on or after September 1, 1995. For purposes of this provision, an alien will be deemed to have been within the United States on September 1, 1995, who, although not physically present in the United States on that date, was subsequently admitted to the United States in H-1A classification pursuant to an unexpired H-1A visa; and

(4) If the alien was not in valid H-1A nonimmigrant status on October 11, 1996, evidence that the alien was within the United States on October 11, 1996. For purposes of this provision, an alien will be deemed to have been within the United States on October 11, 1996, who, although not physically present in the United States on that date, was subsequently admitted to the United States in H-1A classification pursuant to an unexpired H-1A visa.

(B) H-1B extension of stay-(1) Alien in a specialty occupation or an alien of distinguished merit and ability in the field of fashion modeling. An extension of stay

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