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may be authorized for a period of up to (B) A request to extend an H-1 petithree years for a beneficiary of an H-1B tion, petition in a specialty occupation or an (C) The H-1 alien's application (and alien of distinguished merit and abil- that of their dependent family memity. The alien's total period of stay bers) for admission. may not exceed six years. The request (D) The H-1 alien's application (and for extension must be accompanied by that of their dependent family memeither a new or a photocopy of the bers) for change of status to a different prior certification from the Depart- H-1 or L classification, or a dependent ment of Labor that the petitioner con- of an H-1 or L nonimmigrant, or tinues to have on file a labor condition (E) The H-1 alien's application for exapplication valid for the period of time tension of stay, (and that of their derequested for the occupation.
pendent family members). (2) Alien in a DOD research and devel- (ii) H-2A, H-2B, and H-3 classification. opment or coproduction project. An ex- The approval of a permanent labor certension of stay may be authorized for a tification, or the filing of a preference period up to five years for the bene- petition for an alien currently emficiary of an H-1B petition involving a ployed by or in a training position with DOD research and development project the same petitioner, shall be a reason, or coproduction project. The total pe- by itself, to deny the alien's extension riod of stay may not exceed 10 years. of stay.
(C) H-2A or H-2B extension of stay. An (17) Effect of a strike-(i) If the Secextension of stay for the beneficiary of retary of Labor certifies to the Coman H-2A or H-2B petition may be au- missioner that a strike or other labor thorized for the validity of the labor dispute involving a work stoppage of certification or for a period of up to workers is in progress in the occupaone year, except as provided for in tion and at the place where the beneparagraph (h)(5)(x) of this section. The ficiary is to be employed or trained, alien's total period of stay as an H-2A and that the employment of training of or H-2B worker may not exceed three the beneficiary would adversely affect years, except that in the Virgin Is- the wages and working conditions of lands, the alien's total period of stay U.S. citizens and lawful resident workmay not exceed 45 days.
(D) H-3 extension of stay. An exten- (A) A petition to classify an alien as sion of stay may be authorized for the a nonimmigrant as defined in section length of the training program for a 101(a)(15)(H) of the Act shall be denied. total period of stay as an H-3 trainee (B) If a petition has already been apnot to exceed two years, or for a total proved, but the alien has not yet enperiod of stay as a participant in a spe- tered the United States, or has entered cial education training program not to
the United States but has not comexceed 18 months.
menced the employment, the approval (16) Effect of approval of a permanent of the petition is automatically suslabor certification or filing of a preference pended, and the application for admispetition on H classification-(i) H-1 clas- sion on the basis of the petition shall sification. An alien may legitimately be denied. come to the United States for a tem- (ii) If there is a strike or other labor porary period as an H-1 nonimmigrant dispute involving a work stoppage of and, at the same time, lawfully seek to workers in progress, but such strike or become a permanent resident of the other labor dispute is not certified United States provided he or she in- under paragraph (h)(17)(i), the Commistends to depart voluntarily at the end sioner shall not deny a petition or susof his or her authorized stay. The filing pend an approved petition. of an application for or approval of a (iii) If the alien has already compermanent labor certification, an im- menced employment in the United migrant visa preference petition, or the States under an approved petition and filing of an application for adjustment is participating in a strike or other of status for an H-1 nonimmigrant labor dispute involving a work stopshall not be a basis for denying:
page of workers, whether or not such (A) An H-1 petition,
strike or other labor dispute has been
certified by the Department of Labor, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers, but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act, and regulations promulgated in the same manner as all other H nonimmigrants;
(B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and
(C) Although participation by an H nonimmigrant alien in a strike other labor dispute involving a work stoppage of workers will not constitute a ground for deportation, any alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired will be subject to deportation.
(18) Use of approval notice, Form 1–797. 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 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 1–797 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 th same petitioner.
(19) Additional fee for filing certain H1B petitions--(i) A United States employer (other than an exempt employer as defined in paragraph (h)(19)(iii) of this section) who files a Form I-129, on or after December 1, 1998, and before October 1, 2001, must include the additional fee required in $103.7(b)(1) of this
chapter, if the petition is filed for any of the following purposes:
(A) An initial grant of H-1B status under section 101(a)(15)(H)(i)(b) of the Act;
(B) An initial extension of stay, as provided in paragraph (h)(15)(i) of this section; or
(C) Authorization for a change in employment, as provided in paragraph (h)(2)(i)(D) of this section.
(ii) The service will accept remittances of the additional fee only from the United States employer or its representative of record, as defined under 8 CFR part 292 and 8 CFR 103.2(a)(3).
(iii) The following exempt organizations are not required to pay the additional fee:
(A) An institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965;
(B) An affiliated or related nonprofit entity. A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary;
(C) A nonprofit research organization or governmental research organization. A research organization that is either a nonprofit organization or entity that is primarily engaged in basic research and/or applied research or a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research also is 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
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.
(iv) For purposes of paragraphs (h)(19)(iii)(B) and (C) of this section, a nonprofit organization or entity is one that is qualified as a tax exempt organization under section 501(c)(3), (c)(4), or (c)(6) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3), (c)(4) or (c)(6)) and has received approval as a tax exempt organization from the Internal Revenue Service, as it relates to research or educational purposes.
(i) Representatives of information media. The admission of an alien of the class defined in section 101(a)(15)(I) of the Act constitutes an agreement by the alien not to change the information medium or his or her employer until he or she obtains permission to do so from the district director having jurisdiction over his or her residence. An alien classified as an information media nonimmigrant (1) may be authorized admission for the duration of employment.
(j) Erchange aliens—(1) General—(i) Erchange alien means a nonimmigrant admitted under section 101(a)(15)(J) of the Act or who acquired such status, or who acquired exchange-visitor status under the United States Information and Education Exchange Act. Any exchange alien coming to the United States as a participant in a program designated under section 101(a)(15)(J) of the Act and accompanying spouse and minor children shall not be admitted without submitting a completely executed Form IAP-66. The spouse and minor children following to join the participant shall not be admitted without a copy of current Form IAP-66 endorsed by the program sponsor indicating the expiration of stay date as shown on Form I-94. Any alien seeking to change nonimmigrant status to exchange visitor status shall file Form I506 and attach a valid Form IAP-66.
(ii) Admission. The initial admission of an exchange alien, spouse, and children may not exceed the period specified on Form IAP-66, plus a period of 30 days for the purpose of travel or for the period designated by the Commissioner as provided in paragraph (j)(1)(vi) of this section. Regulations of the United States Information Agency published
at 22 CFR 514.23 give general limitations on the length of stay of the various classes of exchange visitors. A spouse or child (J-2) may not be admitted for longer than the principal exchange alien (J-1).
(iii) Readmission. An exchange alien may be readmitted to the United States for the remainder of the time authorized on Form 1–94, without presenting Form IAP-66, if the alien is returning from a visit solely to foreign contiguous territory or adjacent islands after an absence of less than 30 days and if the original Form I-94 is presented. All other exchange aliens must present a valid Form IAP-66. An original Form IAP-66 or copy three (the pink copy) of a previously issued form presented by an exchange alien returning from a temporary absence shall be retained by the exchange alien for re-entries during the balance of the alien's stay.
(iv) Extensions of Stay. If an exchange alien requires an extension beyond the initial admission period, the alien shall apply by submitting a new Form IAP66 which indicates the date to which the alien's program is extended. The extension may not exceed the period specified on Form IAP-66, plus a period of 30 days for the purpose of travel. Extensions of stay for the alien's spouse and children require, as an attachment to Form IAP-66, Form I-94 for each dependent, and a list containing the names of the applicants, dates and places of birth, passport numbers, issuing countries, and expiration dates. An accompanying spouse or child may not be granted an extension of stay for longer than the principal exchange alien.
(V) Employment. (A) The panying spouse and minor children of a J-1 exchange visitor may accept employment only with authorization by the Immigration and Naturalization Service. A request for employment authorization must be made on Form I765, Application for Employment Authorization, with fee, as required by the Service, to the district director having jurisdiction over the J-1 exchange visitor's temporary residence in the United States. Income from the spouse's or dependent's employment may be used to support the family's customary recreational and cultural activities and related travel, among other things. Employment will not be authorized if this income is needed to support the J-1 principal alien.
(B) J-2 employment may be authorized for the duration of the J-1 principal alien's authorized stay as indicated on Form 1–94 or a period of four years, whichever is shorter. The employment authorization is valid only if the J-1 is maintaining status. Where a J-2 spouse or dependent child has filed a timely application for extension of stay, only upon approval of the request for extension of stay may he or she apply for a renewal of the employment authorization on a Form I-765 with the required fee.
(vi) Extension of duration of status. The Commissioner may, by notice in the FEDERAL REGISTER, at any time she determines that the H-1B numerical limitation as described in section 214(g)(1)(A) of the Act will likely be reached prior to the end of a current fiscal year, extend for such a period of time as the Commissioner deems necessary to complete the adjudication of the H-1B application, the duration of status of any J-1 alien on behalf of whom an employer has timely filed an application for change of status to H1B. The alien, in accordance with 8 CFR part 248, must not have violated the terms of his or her nonimmigrant stay and is not subject to the 2-year foreign residence requirement at 212(e) of the Act. Any J-1 student whose duration of status has been extended shall be considered to be maintaining lawful nonimmigrant status for all purposes under the Act, provided that the alien does not violate the terms and conditions of his or her J immigrant stay. An extension made under this paragraph also applies to the J-2 dependent aliens.
(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 1-644 as an attachment to a completed Form IAP-66 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 IAP-66, 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)(I) 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, 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 IAP-66.
(ii) Eremptions. 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.
(k) Fiancees and fiances 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) of the Act, an alien must be the beneficiary of an approved visa petition filed on Form I-129F. The petition with supporting documents shall be filed by the petitioner with the director having administrative jurisdiction over the place where the petitioner is residing in the United States. A copy of a document submitted in support of a visa petition filed pursuant to section 214(d) of the Act and this paragraph may be accepted, though unaccompanied by the original, if the copy bears a certification by an attorney, typed or rubber-stamped, in the language set forth in $204.2(j) of this chapter. However, the original document shall be submitted if requested by the Service.
(2) Requirement that petitioner and beneficiary have met. The petitioner shall establish to the satisfaction of the director that the petitioner and 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 beneficiary's foreign culture social practice, 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 ac
cordance with the custom or practice. Failure to establish that the petitioner and 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 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 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) Nonimmigrant visa issued prior to November 10, 1986. If the beneficiary contracts a valid marriage with the petitioner within 90 days of his or her admission to the United States pursuant to a valid K-1 visa issued prior to November 10, 1986, and the beneficiary and his or her minor children are otherwise admissible, the director shall record their lawful admission for permanent residence as of the date of their filing of an application for adjustment of status to lawful permanent resident (Form I485). Such residence shall be granted