List of Subjects in 8 CFR Part 214

Administrative practice and procedures, Aliens, Employment, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

1. The authority citation for part 214 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282; 8 CFR part 2.

2. Section 214.2 is amended by:

a. Revising paragraph (h)(2)(i)(B);

b. Revising paragraph (h)(2)(i)(E);

c. Revising paragraph (h)(2)(i)(F);

d. Revising paragraph (h)(4)(i)(B)( 1 );

e. Revising paragraph (h)(4)(iii)(B)( 1 );

f. Revising paragraph (h)(11) (i), (ii), and (iii); and by

h. Revising paragraph (h)(15)(ii)(B)( 1 ) to read as follows:

§ 214.2 Special requirements for admission, extension, and maintenance of status.

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(h) * * *

(2) * * *

(i) * * *

(B) Services or training in more than one location . -- ( 1 ) H-1B petitions . An H-1B petition which require services to be performed or training to be received in more than one location must include, to the extent possible, a complete itinerary with the dates and locations of the services or training to be performed. The petition must be filed with the Service Center having jurisdiction over the place where the petitioner is located. The address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph. I f the petitioner has not yet determined all of the locations where the beneficiary might be employed at the time of filing, the petitioner must provide an itinerary of all definite employment and provide a description of any proposed or possible employment for the period of time covered by the petition. Petitions filed by an agent must also comport with 8 CFR 214.2(h)(2)(i)(F).

( 2 ) Other H petitions . A petition for an H-2A, H-2B, or H-3 nonimmigrant alien which requires services to be performed or training to be received in more than one location must include a complete itinerary with the dates and locations of the services or training to be performed. The petition must be filed with the Service Center having jurisdiction over the area where the petitioner is located. The address which the petitioner specifies on the petition as its location shall be where the petitioner is located for purposes of th is paragraph.

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(E) Amended petition --( 1 ) General . A nonimmigrant H petitioner which continues to employ the beneficiary shall file an amended petition on Form I-129, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of the H nonimmigrant's employment or training, as specified in the original approved petition. An amended H-1B petition must be accompanied by a current or new labor condition application certified by the Department of Labor. In the case of amended H-2A or H-2B petitions, the amended petition must be accompanied by the appropriate Department of Labor determination.

( 2 ) H-1B petitions . An amended H-1B petition shall be filed by the petitioner in all cases where the petitioner is required, under 20 CFR part 655, to obtain a new certification of filing of a labor condition application. An amended H-1B petition must also be filed where there is a change in the beneficiary's duties from one specialty occupation to another specialty occupation. A change in the name of the petitioning entity, standing alone, is not a material change and does not require the filing of an amended petition. As t hese examples are not all-inclusive, it is the responsibility of the petitioner to determine whether, in a particular case, these exists a material change in the terms and conditions of the H nonimmigrant alien's employment or training necessitating the filing of an amended petition.

(F) 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 on its behalf. A United States agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent. A petition filed by a United States agent must also comply with the provisions of 8 CFR 214.2(h)(2)(i)(B) and is subject to the following conditions:

( 1 ) An agent performing the function of an employer, such as where the agent acts as an employment contractor, should provide an itinerary of all definite employment and provide a description of any proposed or possible employment for the period of time covered by the petition. Such an agent need not submit a complete itinerary. A petition filed by such an agent/employer must guarantee the wages and other terms and conditions of employment by contractual agreement with the beneficiary or beneficiaries of the petition.

( 2 ) A person or company in business as an agent may file the H petition involving multiple employers as the representative of both the employers and the beneficiary or beneficiaries if the supporting documentation includes a complete itinerary of services or engagements, the agent has fully informed both the employers and the beneficiaries of his or her dual representation, and the agent fully complies with the requirements of 8 CFR part 292. The itinerary shall specify the dates of each service or engagement , the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed. In questionable cases, a contract between the employers and the beneficiary or beneficiaries may be required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation.

( 3 ) A foreign employer who, through a United States agent, files a petition for an H nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a.

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(4) * * *

(i) * * *

(B) General requirements for petitions involving a specialty occupation . ( 1 ) Before filing a petition for H-1B classification in a specialty occupation, the petitioner should obtain a certification from the Department of Labor that it has filed a labor condition application in the occupational specialty in which the alien(s) will be employed. If the labor condition application is not initially submitted with the petition, the petitioner shall be given an opportunity to obtain a certified labor condition application from the Secretary of Labor and to submit the certified labor cond ition application to the Service. Under no circumstances, however, may the Service approve the petition prior to submission of a certified labor condition application. The fact that the certification date on the labor condition application may be later than the initial filing date of the petition is not a basis on which to deny the petition.

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(iii) * * *

(B) * * *

( 1 ) A certification from the Department of Labor that the petitioner has filed a labor condition application with the Secretary of Labor as required under 20 CFR part 655. If the labor condition application is not initially submitted with the petition, the petitioner shall be given an opportunity to obtain a certified labor condition application from the Secretary of Labor and to submit the certified labor condition application to the Service. In all cases, a certified labor condition application must be subm itted to the Service before the petition may be adjudicated. The fact that the certification date on the labor condition application may be later than the initial filing date of the petition does not warrant the denial of the petition.

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(11) Revocation of approval of petition (i) General . 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, files a written withdrawal of the petition, or notifies the Service pursuant to 8 CFR part 214 that the beneficiary is no longer employed by the petitioner.

(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 ) Other than through notification in paragraph (h)(11)(ii) of this section, the beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is no longer receiving training as specified in the petition;

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

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

( 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 paragraph (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.

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(15) * * *

(ii) * * *

(A) * * *

(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 may be authorized for a period of up to 3 years for a beneficiary of an H-1B petition in a specialty occupation or an alien of distinguished merit and ability. The alien's total period of stay may not exceed 6 years. The request for an extension must be accompanied by either a new certification from the Department of Labor valid for the extension period requested, or a photocopy of the prior certification from the Department of Labor indicating that the petitioner has on file a labor condition application valid for the period of time requested by the petitioner for the particular occupation. The director may require the petitioner to submit any evidence which in the director's discretion may be necessary to establish that the petitioner has employed the alien pursuant to the terms of the prior petition(s) and labor condition application(s).

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May 29, 1998 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner,Immigration and Naturalization Service.