(7) Petition for alien trainee or participant in a special education exchange visitor program (H-3)--

(i) Alien trainee . The H-3 trainee is a nonimmigrant who seeks to enter the United States at the invitation of an organization or individual for the purpose of receiving training in any field of endeavor, such as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as training in a purely industrial establishment. This category shall not apply to physicians, who are statutorily ineligible to use H-3 classification in order to receive any type of graduate medical education or training.

(A) Externs . A hospital approved by the American Medical Association or the American Osteopathic Association for either an internship or residency program may petition to classify as an H-3 trainee a medical student attending a medical school abroad, if the alien will engage in employment as an extern during his/her medical school vacation.

(B) Nurses . A petitioner may seek H-3 classification for anurse who is not H-1 if it can be established that there is a genuine need for the nurse to receive a brief period of training that is unavailable in the alien's native country and such training is designed to benefit the nurse and the overseas employer upon the nurse's return to the country of origin, if:

( 1 ) The beneficiary has obtained a full and unrestricted license to practice professional nursing in the country where the beneficiary obtained a nursing education, or such education was obtained in the United States or Canada; and

( 2 ) The petitioner provides a statement certifying that the beneficiary is fully qualified under the laws governing the place where the training will be received to engage in such training, and that under those laws the petitioner is authorized to give the beneficiary the desired training.

(ii) Evidence required for petition involving alien trainee--(A) Conditions. The petitioner is required to demonstrate that:

( 1 ) The proposed training is not available in the alien's own country;

( 2 ) The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed;

( 3 ) The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and

( 4 ) The training will benefit the beneficiary in pursuing a career outside the United States.

(B) Description of training program. Each petition for a trainee must include a statement which:

( 1 ) Describes the type of training and supervision to be given, and the structure of the training program;

( 2 ) Sets forth the proportion of time that will be devoted to productive employment;

( 3 ) Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training;

( 4 ) Describes the career abroad for which the training will prepare the alien;

( 5 ) Indicates the reasons why such training cannot be obtained in the alien's country and why it is necessary for the alien to be trained in the United States; and

( 6 ) Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training.

(iii) Restrictions on training program for alien trainee. A training program may not be approved which:

(A) Deals in generalities with no fixed schedule, objectives, or means of evaluation;

(B) Is incompatible with the nature of the petitioner's business or enterprise;

(C) Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training;

(D) Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;

(E) Will result in productive employment beyond that which is incidental and necessary to the training;

(F) Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States;

(G) Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or

(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 involved in Department of Defense research and development projects or coproduction projects, may not exceed the limits identified in section 214(g)(1)(A) of the Act. (Revised 3/24/08; 73 FR 15389 ) (Paragraph (h)(8)(i)(A) amended effective 12/1/98; 63 FR 65657 )

(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.

(E) Aliens classified as H-1C nonimmigrants may not exceed 500 in a fiscal year. (Added 6/11/01; 66 FR 31107 )

(ii) Procedures . (A) Each alien issued a visa or otherwise provided nonimmigrant status under sections 101(a)(15)(H)(i)(b) , 101(a)(15)(H)(i)(c) , or 101(a)(15)(H)(ii) of the Act shall be counted for purposes of any applicable numerical limit, unless otherwise exempt from such 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 H aliens are classified as H-4 nonimmigrants and shall not be counted against numerical limits applicable to principals. (Revised effective 1/18/2009; 73 FR 78104 ) (Revised 6/11/01; 66 FR 31107 )

(B) When calculating the numerical limitations or the number of exemptions under section 214(g)(5)(C) of the Act for a given fiscal year, USCIS will make numbers available to petitions in the order in which the petitions are filed. USCIS will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions (including the number of beneficiaries requested when necessary) received and will notify the public of the date that US CIS has received the necessary number of petitions (the ``final receipt date''). The day the news is published will not control the final receipt date. When necessary to ensure the fair and orderly allocation of numbers in a particular classification subject to a numerical limitation or the exemption under section 214(g)(5)(C) of the Act, USCIS may randomly select from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals. This random selection will be made via computer-generated selection as validated by the Office of Immigration Statistics. Petitions subject to a numerical limitation not randomly selected or that were received after the final receipt date will be rejected. Petitions filed on behalf of aliens otherwise eligible for the exemption under section 214(g)(5)(C) of the Act not randomly selected or that were received after the final receipt date will be rejected if the numerical limitation under 214(g)(1) of the Act has been reached for that fiscal year. Petitions indicating that they are exempt from the numerical limitation but that are determined by USCIS after the final receipt date to be subject to the numerical limit will be denied and filing fees will not be returned or refunded. If the final receipt date is any of the first five business days on which petitions subject to the applicable numerical limit may be received (i.e., if the numerical limit is reached on any one of the first five business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those five business days, conducting the random selection among the petitions subject to the exemption under section 214(g)(5)(C) of the Act first. (Revised 3/24/08; 73 FR 15389 ) (Revised 5/5/05; 70 FR 23775 )

(C) 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 USCIS will take into account the unused number during the appropriate fiscal year. (Redesignated as (C) and amended, previously (D), 5/5/05; 70 FR 23775 )

(D) 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. Petitions received after the total numbers available in a fiscal year are used stating that the alien beneficiaries are exempt from the numerical limitation will be denied and filing fees will not be returned or refunded if USCIS later determines th at such beneficiaries are subject to the numerical limitation. (Revised 3/24/08; 73 FR 15389 ) (Redsignated as (D), previously (E), 5/5/05; 70 FR 23775 )

(E) The 500 H-1C nonimmigrant visas issued each fiscal year shall be allocated in the following manner: (Redesignated as (E), previously (F), 5/5/05; 70 FR 23775 ) (Added 6/11/01; 66 FR 31107 )

( 1 ) For each fiscal year, the number of visas issued to the states of California, Florida, Illinois, Michigan, New York, Ohio, Pennsylvania, and Texas shall not exceed 50 each (except as provided for in paragraph (h)(8)(ii)(F)( 3 ) of this section).

( 2 ) For each fiscal year, the number of visas issued to the states not listed in paragraph (h)(8)(ii)(F)( 1 ) of this section shall not exceed 25 each (except as provided for in paragraph (h)(8)(ii)(F)(3) of this section).

( 3 ) If the total number of visas available during the first three quarters of a fiscal year exceeds the number of approvable H-1C petitions during those quarters, visas may be issued during the last quarter of the fiscal year to nurses who will be working in a state whose cap has already been reached for that fiscal year.

( 4 ) When an approved H-1C petition is not used because the alien(s) does not obtain H-1C classification, e.g., the alien is never admitted to the United States, or the alien never worked for the facility, the facility must notify the Service according to the instructions contained in paragraph (h)(11)(ii) of this section. The Service will subtract H-1C petitions approved in the current fiscal year that are later revoked from the total count of approved H-1C petitions, provided that the alien never commenced e mployment with the facility.

( 5 ) If the number of alien nurses included in an H-1C petition exceeds the number available for the remainder of a fiscal year, the Service shall approve the petition for the beneficiaries to the allowable amount in the order that they are listed on the petition. The remaining beneficiaries will be considered for approval in the

subsequent fiscal year.

( 6 ) Once the 500 cap has been reached, the Service will reject any new petitions subsequently filed requesting a work start date prior to the first day 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 6 months before the date of actual need for the beneficiary's services or training, except that an H-2B petition for a temporary nonagricultural worker may not be filed or approved more than 120 days before the date of the actual need for the beneficiary's temporary nonagricultural services that is identified on the temporary labor certification. (Revised effective 1/18/2009; 73 FR 78104 )

(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 occupation shall be valid for a period of up to three years but may not exceed the validity period of the labor condition application. (Redesignated as (A), previously (B), 3/7/97; 62 FR 10422 )

( 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 ) The approval of the petition to accord an alien a classification under section 101(a)(15)(H)(ii)(b) of the Act shall be valid for the period of the approved temporary labor certification. (Revised effective 1/18/2009; 73 FR 78104 ) (Redesignated as (B), previously (C), 3/7/97; 62 FR 10422 )

( 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 H-2B 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. (Amended 3/7/97; 62 FR 10422 )

(C) ( 1 ) H-3 petition for alien trainee . An approved petition for an alien trainee classified under section 101(a)(15)(H)(iii) of the Act shall be valid for a period of up to two years. (Redesignated as (C), previously (D), 3/7/97; 62 FR 10422 )

( 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.

(D) H-1C petition for a registered nurse . An approved petition for an alien classified under section 101(a)(15)(H)(i)(c) of the Act shall be valid for a period of 3 years. (Added 6/11/01; 66 FR 31107 )

(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 employmen t.