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(i) The degree of proven expertise of the alien in the area of operations involved; whether others possess the applicant's specific skill or aptitude; the length of the applicant's experience and/or training with the treaty enterprise; the period of training or other experience necessary to perform effectively the projected duties; the relationship of the skill or knowledge to the enterprise's specific processes or applications, and the salary the special qualifications command; that knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement, and;
(ii) Whether the skills and qualifications are readily available in the United States. In all cases, in determining whether the applicant possesses special qualifications which are essential to the treaty enterprise, a Service officer must take into account all the particular facts presented. A skill that is essential at one point in time may become commonplace at a later date. Skills that are needed to start up an enterprise may no longer be essential after initial operations are complete and running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Under certain circumstances, an applicant may be able to establish his or her essentiality to the treaty enterprise for a longer period of time, such as, in connection with activities in the areas of product improvement, quality control, or the provision of a service not yet generally available in the United States. Where the treaty enterprise's need for the applicant's special qualifications, and therefore, the applicant's essentiality, is time-limited, Service officers may request that the applicant provide evidence of the period for which skills will be needed and a reasonable projected date for completion of start-up or replacement of the essential skilled workers.
(19) Period of admission. Periods of admission are as follows:
(i) A treaty trader or treaty investor may be admitted for an initial period of not more than 2 years.
(ii) The spouse and minor children accompanying or following to join a treaty trader or treaty investor shall
be admitted for the period during which the principal alien is in valid treaty trader or investor status. The temporary departure from the United States of the principal trader or investor shall not affect the derivative status of the dependent spouse and minor unmarried children, provided the familial relationship continues to exist and the principal remains eligible for admission as an E nonimmigrant to perform the activity.
(iii) Unless otherwise provided for in this chapter, an alien shall not be admitted in E classification for a period of time extending more than 6 months beyond the expiration date of the alien's passport.
(20) Extensions of stay. Requests for extensions of stay may be granted in increments of not more than 2 years. A treaty trader or treaty investor in valid E status may apply for an extension of stay by filing an application for extension of stay on Form I-129 and E Supplement, with required accompanying documents, in accordance with $ 214.1 and the instructions on that form.
(i) For purposes of eligibility for an extension of stay, the alien must prove that he or she:
(A) Has at all times maintained the terms and conditions of his or her E nonimmigrant classification;
(B) Was physically present in the United States at the time of filing the application for extension of stay; and
(C) Has not abandoned his or her extension request.
(ii) With limited exceptions, it is presumed that employees of treaty enterprises with special qualifications who are responsible for start-up operations should be able to complete their objectives within 2 years. Absent special circumstances, therefore, such employees will not be eligible to obtain an extension of stay.
(iii) Subject to paragraph (e)(5) of this section and the presumption noted in paragraph (e)(22)(ii) of this section, there is no specified number of extensions of stay that a treaty trader or treaty investor may be granted.
(21) Change of nonimigrant status. (i) An alien in another valid nonimmigrant status may change of status to E classification by
apply for filing an application for change of status on Form I-129 and E Supplement, with required accompanying documents establishing eligibility for a change of status and E classification, in accordance with 8 CFR part 248 and the instructions on Form I-129 and E Supplement.
(ii) The spouse or minor children of an applicant seeking a change of status to that of treaty trader or treaty investor alien shall file concurrent applications for change of status to derivative treaty classification on the appropriate Service form. Applications for derivative treaty status shall:
(A) Be approved only if the principal treaty alien is granted treaty alien status and continues to maintain that status;
(B) Be approved for the period of admission authorized in paragraph (e)(20) of this section.
(22) Denial of treaty trader or treaty investor status to citizens of Canada or Merico in the case of certain labor disputes. (i) A citizen of Canada or Mexico may be denied E treaty trader or treaty investor status as described in section 101(a)(15)(E) of the Act and section B of Annex 1603 of the NAFTA if:
(A) The Secretary of Labor certifies to or otherwise informs the Commissioner that a strike or other labor dispute involving a work stoppage of workers in the alien's occupational classification is in progress at the place where the alien is or intends to be employed; and
(B) Temporary entry of that alien may affect adversely either:
(1) The settlement of any labor dispute that is in progress at the place or intended place of employment, or
(2) The employment of any person who is involved in such dispute.
(ii) If the alien has already commenced employment in the United States and is participating in a strike or other labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Secretary of Labor, or whether the Service has been otherwise informed that such a strike or labor dispute is in progress, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future par
ticipation in a strike or other labor dispute involving a work stoppage of workers, but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act, and regulations promulgated in the same manner as all other E nonimmigrants; and
(B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers.
(iii) Although participation by an E nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for deportation, any alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired will be subject to deportation.
(iv) If there is a strike or other labor dispute involving a work stoppage of workers in progress, but such strike or other labor dispute is not certified under paragraph (e)(22)(i) of this section, or the Service has not otherwise been informed by the Secretary that such a strike or labor dispute is in progress, the Commissioner shall not deny entry to an applicant for E status.
(f) Students in colleges, universities, seminaries, conservatories, academic high schools, elementary schools, other academic institutions, and in language training programs—(1) Admission of student(i) Eligibility for admission. A nonimmigrant student and his or her accompanying spouse and minor children may be admitted into the United States in F-1 and F-2 classifications for duration of status under section 101(a)(15)(F)(i) of the Act, if the student:
(A) Presents a properly completed Form 1-20 A-B/-20 ID, Certificate of Eligibility for Nonimmigrant (F-1) Student Status, which is issued by a school approved by the Service for attendance by foreign students;
(B) Has documentary evidence of financial support in the amount indicated on the Form I-20 A-B/I-20 ID; and
(C) For students seeking initial admission only, intends to attend the school specified in the student's visa except where the student is exempt from the requirement for a visa, in which case the student must intend to attend the school indicated on the Form I-20 A-B/I-20 ID.
(ii) Disposition of Form 1–20 A-B/I-20 ID. Form I-20 A-B/I-20 ID contains two copies, the 1-20 School Copy and the I20 ID (Student) Copy. For purposes of clarity, the entire Form 1-20 A-B/I-20 ID shall be referred to as Form I-20 AB and the 1-20 ID (Student) Copy shall be referred to as the 1-20 ID. When an F-1 student applies for admission with a complete Form I-20 A-B, the inspecting officer shall:
(A) Transcribe the student's admission number from Form I-94 onto his or her Form I-20 A-B (for students seeking initial admission only);
(B) Endorse all copies of the Form I20 A-B;
(C) Return the 1-20 ID to the student; and
(D) Forward the I-20 School Copy to the Service's processing center for data entry. (The school copy of Form 1–20 AB will be sent back to the school as a notice of the student's admission after data entry.)
(2) 1–20 ID. An F-1 student is expected to safekeep the initial I-20 ID bearing the admission number and any subsequent copies which have been issued to him or her. Should the student lose his or her current 1–20 ID, a replacement copy bearing the same information as the lost copy, including any endorsement for employment and notations, may be issued by the designated school official (DSO) as defined in 8 CFR 214.3(1)(1)(i).
(3) Spouse and minor children following to join student. The spouse and minor children following to join an F-1 student are eligible for admission to the United States if the F-1 student is, or will be within sixty days, enrolled in a full course of study or, if the student is engaged in approved practical training following completion of studies. The eligible spouse and minor children of an F-1 student may be admitted in F-2 status if they present the F-1 student's current 1-20 ID with proper endorsement by the DSO. A new Form 1-20 AB is required where there has been any substantive change in the information on the student's current I-20 ID.
(4) Temporary absence. An F-1 student returning to the United States from a temporary absence of five months or less may be readmitted for attendance at a Service-approved educational institution, if the student presents:
(i) A current 1-20 ID properly endorsed by the DSO for reentry if there is no substantive change on the most recent I-20 ID; or
(ii) A new Form I-20 A-B if there has been any substantive change in the information on the student's most recent 1-20 ID, such as in the case of a student who has changed the major area of study, who intends to transfer to another Service-approved institution, or who has advanced to a higher level of study.
(5) Duration of status-(i) General. Duration of status is defined as the time during which an F-1 student is pursuing a full course of studies at an educational institution approved by the Service for attendance by foreign students, or engaging in authorized practical training following completion of studies, plus 60 days to prepare for departure from the United States. The student is considered to be maintaining status if he or she is making normal progress toward completing a course of studies. Duration of status also includes the period designated by the Commissioner as provided in paragraph (f)(5)(vi) of this section.
(ii) Change in educational levels. An F1 student who continues from one educational level to another is considered to be maintaining status, provided that the transition to the new educational level is accomplished according to transfer procedures outlined in paragraph (f)(8) of this section.
(iii) Annual vacation. An F-1 student at an academic institution is considered to be in status during the annual (or summer) vacation if the student is eligible and intends to register for the next term. A student attending a school on a quarter or trimester calendar who takes only one vacation a year during any one of the quarters or trimesters instead of during the summer is considered to be in status during that vacation, if the student has completed the equivalent of an academic year prior to taking the vacation.
(iv) Illness of medical conditions. A student who is compelled by illness or other medical conditions to interrupt or reduce a full course of study is considered to be in status during the illness or other medical condition. The student must resume a full course of study upon recovery.
(v) Emergent circumstances as determined by the Commissioner. Where the Commissioner has suspended the applicability of any or all of the requirements for on-campus or off-campus employment authorization for specified students pursuant to paragraphs (f)(9)(i) or (f)(9)(ii) of this section by notice in the FEDERAL REGISTER, an affected student who needs to reduce his or her full course of study as a result of accepting employment authorized by such notice in the FEDERAL REGISTER will be considered to be in status during the authorized employment, subject to any other conditions specified in the notice, provided that, for the duration of the authorized employment, the student is registered for the number of semester or quarter hours of instruction per academic term specified in the notice, which in no event shall be less than 6 semester or quarter hours of instruction per academic term if the student is at the undergraduate level or less than 3 semester or quarter hours of instruction per academic term if the student is at the graduate level, and is continuing to make progress toward completing the course of study.
(vi) Extension of duration of status. The Commissioner may, by notice in the FEDERAL REGISTER, at any time she determines that the H-1B numerical limitation described in section 214(g)(1)(A) of the Act will likely be reached prior to the end of a current fiscal year, extend for such a period of time as the Commissioner deems necessary to complete the adjudication of the H-1B application, the duration of status of any F-1 student on behalf of whom an employer has timely filed an application for change of status to H1B. The alien, according to 8 CFR part 248, must not have violated the terms of his or her nonimmigrant stay in order to obtain this extension of stay. An F-1 student whose duration of status has been so extended shall be considered to be maintaining lawful non
immigrant status for all purposes under the Act, provided that the alien does not violate the terms and conditions of his or her F nonimmigrant stay. An extension made under this paragraph applies to the F-2 dependent aliens.
(6) Full course of study—(i) General. Successful completion of the
full course of study must lead to the attainment of a specific educational or professional objective. A "full course of study"
section 101(a)(15)(F)(i) of the Act means:
(A) Postgraduate study postdoctoral study at a college or university, or undergraduate or postgraduate study at a conservatory or religious seminary, certified by a DSO as a full course of study;
(B) Undergraduate study at a college or university, certified by a school official to consist of at least twelve semester or quarter hours of instruction per academic term in those institutions using standard semester, trimester, or quarter hour systems, where all undergraduate students who are enrolled for a minimum of twelve semester or quarter hours are charged full-time tuition or are considered full-time for other administrative purposes, or its equivalent (as determined by the district director in the school approval process), except when the student needs a lesser course load to complete the course of study during the current term;
(C) Study in a postsecondary language, liberal arts, fine arts, or other non-vocational program at a school which confers upon its graduates recognized associate or other degrees or has established that its credits have been and are accepted unconditionally by at least three institutions of higher learning which are either: (1) A school (or school system) owned and operated as a public educational institution by the United States or a State or pol ical subdivision thereof; or (2) a school accredited by a nationally recognized accrediting body; and which has been certified by a designated school official to consist of at least twelve clock hours of instruction a week, or its equivalent as determined by the district director in the school approval process;
(D) Study in any other language, liberal arts, fine arts, or other nonvocational training program, certified by a designated school official to consist of at least eighteen clock hours of attendance a week if the dominant part of the course study consists of classroom instruction, or to consist of at least twenty-two clock hours a week if the dominant part of the course of study consists of laboratory work; or
(E) Study in a primary school or academic high school curriculum certified by a designated school official to consist of class attendance for not less than the minimum number of hours a week prescribed by the school for normal progress towards graduation.
(F) Notwithstanding paragraphs (f)(6)(i)(A) and (f)(6)(i)(B) of this section, an alien who has been granted employment authorization pursuant to the terms of a document issued by the Commissioner under paragraphs (f)(9)(i) or (f)(9)(ii) of this section and published in the FEDERAL REGISTER shall be deemed to be engaged in a “full course of study” if he or she remains registered for no less than the number of semester or quarter hours of instruction per academic term specified by the Commissioner in the notice for the validity period of such employment authorization.
(ii) Institution of higher learning. For purposes of this paragraph, a college or university is an institution of higher learning which awards recognized associate, bachelor's, master's, doctorate, or professional degrees. Schools which devote themselves exclusively or primarily to vocational, business, or language instruction are not included in the category of colleges or universities. Vocational or business schools which are classifiable as M-1 schools are provided for by regulations under 8 CFR 214.2(m).
(iii) Reduced course load. The designated school official may advise an F-1 student to engage in less thai full course of study due to initial difficulties with the English language or reading requirements, unfamiliarity with American teaching methods, or improper course level placement. An F-i student authorized to reduce course load by the Dso in accordance with the provisions of this paragraph is
considered to be maintaining status. On-campus employment pursuant to the terms of a scholarship, fellowship, or assistantship is deemed to be part of the academic program of a student otherwise taking a full course of study.
(7) Extension of stay-(i) General. An F-1 student is admitted for duration of status. The student is not required to apply for extension of stay as long as the student is maintaining status and making normal progress toward completing his or her educational objective. An F-1 student who is unable to complete a full course of study in a timely manner must apply, in a 30-day period before the completion date on the Form 1-20 A-B, to the DSO for a program extension pursuant to paragraph (f)(7)(iii) of this section.
(ii) Completion date on Form 1-20 A-B. When determining the program completion date on Form I-20 A-B, the DSO should make a reasonable estimate based on the time an average foreign student would need to complete a similar program in the same discipline. A grace period of no more than one year may be added onto the DSO's estimate.
(iii) Program extension for students in lawful status. An F-1 student who is unable to meet the program completion date on the Form I-20 A-B may be granted a program extension by the school, if the DSO certifies on a Form I-538 that the student has continually maintained status and that the delays are caused by compelling academic or medical reasons, such as changes of major or research topics, unexpected research problems, or documented illnesses. Delays caused by academic probation or suspension are not acceptable reasons for program extension. The DSO must notify the Service within 30 days of any approved program extensions by forwarding to the Service data processing center a certification on Form I-538 and the top page of a new Form I-20 A-B showing a new program completion date.
(iv) Failure to complete the educational program in a timely manner. An F-1 student who is unable to complete the educational program within the time period written on the Form 1-20 A-B and who is ineligible for program extension pursuant to paragraph (f)(7)(iii)