31.2 General Requirements for H Petitions.

(a) General .

Petition filing requirements, requirements for maintaining status and requirements for obtaining an extension of stay or change of nonimmigrant status are discussed in Chapter 30 of this manual. General adjudicative practices are discussed in Chapter 10 . The remainder of this chapter deals with the adjudication of I-129 petitions for all H-class temporary workers. Regulations governing the filing and adjudication of these petitions may be located at 8 CFR 214.2(h) . Also helpful are the instructions for Form I-129 . These regulations and instructions are detailed and somewhat complex, because the requirements of the statute itself are complex.

(b) Filing of Petitions .

(1) Filing Location .

A petition to classify a worker under section 101(a)(15)(H) of the Act must be filed with the service center which has jurisdiction over H petitions in the area of intended employment, except in emergent situations. Petitions are filed at the service center unless there is an emergent situation as directed by HQOPRD. In such a case, the district officer must obtain a file number from the service center and send the file to the service center after disposition for records retention. The service centers do n ot have jurisdiction over special filing situations, such as petitions for Canadian woodsmen. Such petitions are filed with the local district office or a designated USCIS office. (See Appendix 31-4 for a list of such “special filing situation” cases.)

(2) Who Can File .

Although the statute requires the employer to file an H petition, USCIS allows others to file for the employer to accommodate some situations.

· H-1B petition. A U.S. employer or an agent where appropriate may file the petition.

· H-1C petition. A “facility” as defined by Department of Labor regulations at 20 CFR 655.1102 may file the petition.

· H-2A petition. A U.S. employer, the employer's agent, or an association of U.S. agricultural producers named as a joint employer on the labor certification may file the petition.

· H-2B petition. A U.S. employer, a U.S. agent, or a foreign employer filing through a U.S. agent may file the petition.

· H-3 petition. A U.S. employer must file the petition.

(3) Services in More than One Location .

Such petitions are usually filed by an agent who is representing numerous employers in various locations, or by one employer which has work to be performed by the beneficiary in more than one location. A detailed itinerary is required to accompany the petition. The procedure where each employer must file a separate petition in order for the alien to work part-time for multiple employers does not apply in petitions filed by agents. [See 8 CFR 214.2(h)(2)(i)(B) .]

(4) Amended Petition .

An amended petition requires the same filing fee as a new petition. Because the amended petition supplements the original petition, documentation does not have to be duplicated in the amended petition. However, an amended petition must be accompanied by evidence addressing the change which necessitated the filing of the amended petition.

(5) Agents as Petitioners .

A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in it behalf. A United States agent may be:

· The actual employer of the beneficiary;

· The representative of both the employer and the beneficiary;

· A person or entity authorized by the employer to act for, or in the place of, the employer as its agent.

Whenever the beneficiary(ies) will be employed by a single employer, the actual employer(s) must file the petition. USCIS reserves the right to require information from the actual employers and beneficiary(ies). The itinerary of firm engagements provided by the agent is acceptable in lieu of signed contracts, unless the adjudicator has reason to believe the statements are not true and correct. However, the adjudicator should request any additional information from the petitioning agent. Speculative employment should not be included in an itinerary. When the agent, such as a modeling agency, is functioning as the employer, a co ntract between the agency and the alien, guaranteeing the wages and conditions of employment, must accompany the petition.

(6) Named Beneficiaries .

Nonagricultural H petitions must identify the beneficiary (or beneficiaries) by name and other information required on Form I-129 , except in emergent situations involving multiple H-2B aliens. [See 8 CFR 214.2(h)(2)(iii) .]

(A) Emergent Situations .

The decision not to require names in an emergent situation is a discretionary one which the director must make. The petitioner's inability to provide names at the time the petition is adjudicated should be due to circumstances which the petitioner could not anticipate or could not control. The names and evidence that the aliens meet the requirements of the labor certification must be provided by the petitioner to the port of entry or the consular officer prior to their admission at a port of entry or applic ation for a visa.

(B) Multiple Petitions Using the Same Labor Certification .

The petitioner may file multiple petitions at different times as the names of aliens become known, and use copies of the same labor certification until all of the positions covered by the labor certification have been filled. Each subsequent petition must refer to the petition number of all previously filed petitions using that labor certification, if available to the petitioner.

(7) Multiple Petitions .

An H-1B beneficiary can work simultaneously for more than one employer, provided each files a separate petition with its own LCA. Such separate petitions are not necessary if an agent serves as the sole petitioner.

(c) Effect of a Prior H-petition Approval .

Evidence of prior approvals as a form of documentation on a subsequent new petition cannot serve as the basis for future eligibility. Knowledge of prior approval of an H petition can be helpful to USCIS when considered along with other evidence eligibility. A prior approval, however, does not obligate USCIS to approve a subsequent petition or relieve the petitioner of providing sufficient documentation to establish current eligibility.

(d) Limits on a Temporary Stay . [Chapter 31.2(d) revised 12-05-2006]

(1) Principal Alien .

Specific limits on what is regarded as a temporary period of stay in all H classifications are included in the regulations to reflect the temporary nature of these classifications and to achieve consistency in the handling of requests for extensions of stay.

The maximum time limit in an H classification and the requirement to reside abroad upon expiration of this period cannot be avoided by leaving the United States before the expiration of the maximum time limit and reentering within a short period of time under a new petition. In such cases, the approval period of the new petition shall be consistent with and count towards the maximum time limit on an alien's temporary stay.

A new period of authorized stay may begin only when the alien has resided outside the United States for a period required by the classification, or when the alien qualifies for an exemption from limits on the maximum period of stay as discussed below.

(2) Spouse and Dependents .

Limitations on the duration of time spent in H-1B nonimmigrant status refer only to the principal alien worker in H-1B status and do not apply independently to the principal worker’s spouse and children. Normal rules for maintenance of derivative status still apply such that the spouse or dependent may remain in the United States only for the purpose of unity with the principal worker.

Time spent as an H-4 dependent does not count against the maximum allowable period of stay available to principals in H-1B status. Thus, an alien who was previously an H-4 and subsequently becomes an H-1B principal will be entitled to a maximum period of stay. Conversely, an H-1B principal who subsequently converts H-4 status may remain in the derivative status for as long as the principal alien spouse maintains that principal status.

USCIS may limit, deny or revoke on notice any stay for an H-4 dependent that is not primarily intended for the purpose of being with the principal worker in the United States, and a spouse or child may be required to show that his requested stay is not intended to evade the normal requirements of the nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States.

USCIS (as well as port inspectors and consular officers) may adjudicate applications for dependent stays in order to prevent an H-1B alien from using only occasional work visits to the United States in order to “park” the family members in the United States for extended periods while the principal alien is normally absent.

(3) Seasonal, Intermittent or Aggregate Periods of Employment of Six Months or Less .

The limitation on the total period of stay does not apply to H-1B, H-1C, H-2B, or H-3 aliens who do not reside continually in the United States and whose employment in the United States is seasonal or intermittent or for an aggregate of six months or less per year.

Further, the limitations do 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, 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.

(4) Exemptions to Limitations of Stay . . [Updated May 28, 2008]

The limitation on the total period of stay does not apply to H 1B aliens when, as of the date of filing the extension request:

· 365 or more days have passed since the filing of any application for labor certification, Forms ETA 750 http://www.foreignlaborcert.doleta.gov/750inst.cfm or ETA 9089, that is required or used by the alien to obtain status as an EB immigrant; and the labor certification, if approved, has not been revoked, is unexpired or has been timely filed with an EB petition within the labor certification's validity period; or

· 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or

· The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number.

(5) Applying for Exemptions to Limitations of Stay .

In sections 106 and 104(c) of AC21 [ link to “Sec. 11030A. Extension of H-1B status for aliens with lengthy adjudications” on the i-link Public Laws Amending the INA], Congress provided exemptions from maximum stay rules for certain H-1B aliens who were being sponsored by employers for permanent residence and were subject to long delays either for government processing or for visa numbers.

The relevant subsections emphasize exemption from the maximum admission under INA section 214(g)(4). Congress did not restrict eligibility for additional periods of admission beyond the maximum six years to only requests for extension of stay.

A qualified alien need not be in H-1B status in order to benefit from sections 106 and 104(c) of AC21. The alien may obtain such additional periods of H-1B admission through a petition to change status from another nonimmigrant classification, or through H-1B visa issuance at a U.S. consulate (unless visa exempt) and admission from abroad.

Note:

The burden of proof rests with the petitioner and alien to establish his or her eligibility for any additional periods of stay in H-1B status beyond the six year maximum, including evidence of job requirements, alien credentials, labor condition application approval, previous H-1B status, pending labor certification or immigrant petition, and unavailability of immigrant visa number, and admissibility or maintenance of nonimmigrant status.

(e) Amended Petitions .

An amended petition must be filed when there is a material change in the terms and conditions of employment or the beneficiary's eligibility. The amended petition procedure was not devised merely as an avenue to advise USCIS of minor changes in the conditions of employment or the beneficiary's eligibility. Petitioners should advise USCIS of these minor, immaterial changes when extensions of the beneficiary's stay are filed.

The following examples would require a new or amended petition to be filed:

· When a beneficiary is transferred from one employer to another, the filing of a new petition ensures that the new employer is liable for the alien's return transportation abroad and that the employer files a labor condition application.

· A change of the alien's duties from one specialty occupation to another.

· When a beneficiary is transferred from a firm to another firm within the same organization, and the new firm becomes the beneficiary's employer. The mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien's employer and, provided further, the supporting labor condition application remains valid.

· When the beneficiary's employer merges with another firm to create a third entity which will subsequently employ the beneficiary. This circumstance is distinguished from a change in ownership.

The following examples would not require a new or amended petition to be filed:

· When a beneficiary is transferred from one branch of a firm to another branch of the same firm. A branch of a firm is not considered to be a separate entity from its parent company.

· If the petitioner changes its name. The petitioner should advise USCIS of the name change if and when it files to extend the alien's stay.

· Changes in the ownership structure of the petitioning entity. It is understood that the new owner(s) of the firm assumes the previous owner's liabilities which would include the assertions the prior owner made on the labor condition application.