Sec. 214.2(h)(10)

(10) Denial of petition --(i) Multiple beneficiaries . A petition for multiple beneficiaries may be denied in whole or in part.

(ii) Notice of denial . The petitioner shall be notified of the reasons for the denial and of the right to appeal the denial of the petition under 8 CFR part 103 . The petition will be denied if it is determined that the statements on the petition were inaccurate, fraudulent, or misrepresented a material fact. There is no appeal from a decision to deny an extension of stay to the alien. (Revised effective 1/18/2009; 73 FR 78104 ) (Re-designated paragraph (h)(10)(iii) as (h)(10)(ii), effective 6/18/07; 72 FR 19100 )

(11) Revocation of approval of petition--

(i) General .

(A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition. However, H-2A and H-2B petitioners must send notification to DHS pursuant to paragraphs (h)(5)(vi) and (h)(6)(i)(F) of this section respectively. (Corrected effective 1/18/09; 74 FR 2837 )(Amended effective 1/18/2009; 73 FR 78104 ) (Amended effective 1/17/2009; 73 FR 76891 )

(B) The director may revoke a petition at any time, even after the expiration of the petition.

(ii) Immediate and automatic revocation . The approval of any petition is immediately and automatically revoked if the petitioner goes out of business, files a written withdrawal of the petition, or the Department of Labor revokes the labor certification upon which the petition is based. (Revised effective 1/17/2009; 73 FR 76891 )

(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 ) 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; or

( 2 ) The statement of facts contained in the petition or on the application for a temporary labor certification was not true and correct, inaccurate, fraudulent, or misrepresented a material fact; or (Corrected effective 1/18/09; 74 FR 2837 )(Revised effective 1/18/2009; 73 FR 78104 )

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

( 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.

(12) Appeal of a denial or a revocation of a petition.

(i) Denial. A petition denied in whole or in part may be appealed under Part 103 of this chapter.

(ii) Revocation. A petition that has been revoked on notice in whole or in part may be appealed under Part 103 of this chapter. Automatic revocations may not be appealed.

(13) Admission.

(i) General .

(A) A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.

(B) When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15)(H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. A certain period of absence from the United States of H-2A and H-2B aliens can interrupt the accrual of t ime spent in such status against the 3-year limit set forth in 8 CFR 214.2(h)(13)(iv) . The petitioner shall provide information about the alien's employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to reside abroad. (Revised effective 1/18/2009; 73 FR 78104 )

(ii) H-1 C limitation on admission . The maximum period of admission for an H-1C nonimmigrant alien is 3 years. The maximum period of admission for an H-1C alien begins on the date the H-1C alien is admitted to the United and ends on the third anniversary of the alien's admission date. Periods of time spent out of the United States for business or personal reasons during the validity period of the H-1C petition count towards the alien's maximum period of admission. When an H-1C alien has reached the 3-year maximum period of admission, the H- 1C alien is no longer eligible for admission to the United States as an H-1C nonimmigrant alien. (Revised 6/11/01; 66 FR 31107 ) (Revised 3/7/97; 62 FR 10422 )

(iii) H-1B limitation on admission .

(A) Alien in a specialty occupation or an alien of distinguished merit and ability in the field of fashion modeling. An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15)(H) or (L) of the Act unless the alien has resided and been physically present outside the United States, excep t for brief trips for business or pleasure, for the immediate prior year.

(B) Alien involved in a DOD research and development or coproduction project. An H-1B alien involved in a DOD research and development or coproduction project who has spent 10 years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15)(H) or (L) of the Act to perform services involving a DOD research and development project or coproduction project. A new petition or change of status under section 101(a)(15)(H) or (L) of the Act may not be approved for such an alien unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.

(iv) H-2B and H-3 limitation on admission . An H-2B alien who has spent 3 years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under sections 101(a)(15)(H) and/or (L) of the Act unless the alien has resided and been physically present outside the United States for the immediately preceding 3 months. An H-3 alien participant in a special education program who has spent 18 months in the United States under sections 101(a)(15)(H) and/or (L) of the Act; and an H-3 alien trainee who has spent 24 months in the United States under sections 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under sections 101(a)(15)(H) and/or (L) of the Act unless the alien has resided and been physically present outside the United States for the immediate prior 6 months. (Revised effective 1/18/2009; 73 FR 78104 )(Revised 12/4/95; 60 FR 62021 )

(v) Exceptions . The limitations in paragraphs (h)(13)(iii) through (h)(13)(iv) of this section shall not apply to H-1B, H-2B, and H-3 aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year. In addition, the limitations shall not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. An absence from the United States can interrupt the accru al of time spent as an H-2B nonimmigrant against the 3-year limit. If the accumulated stay is 18 months or less, an absence is interruptive if it lasts for at least 45 days. If the accumulated stay is greater than 18 months, an absence is interruptive if it lasts for at least two months. 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. (Revised effective 1/18/2009; 73 FR 78104 ) (Amended 6/11/01; 66 FR 31107 )

(14) Extension of visa petition validity . The petitioner shall file a request for a petition extension on Form I-129 to extend the validity of the original petition under section 101(a)(15)(H) of the Act. Supporting evidence is not required unless requested by the director. A request for a petition extension may be filed only if the validity of the original petition has not expired.

(15) Extension of stay--

(i) General . The petitioner shall apply for extension of an alien's stay in the United States by filing a petition extension on Form I-129 accompanied by the documents described for the particular classification in paragraph (h)(15)(ii) of this section. The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary's extension of stay. The beneficiary must be physically present in the United States at the time of the filing of the extension of st ay. Even though the requests to extend the petition and the alien's stay are combined on the petition, the director shall make a separate determination on each. If the alien is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may request the director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa. When the total period of stay in an H classification has been reached, no further extensions may be granted.

(ii) Extension periods --

(A) H-1 C extension of stay . The maximum period of admission for an H-1C alien is 3 years. An H-1C alien who was initially admitted to the United States for less than 3 years may receive an extension of stay up to the third anniversary date of his or her initial admission. An H-1C nonimmigrant may not receive an extension of stay beyond the third anniversary date of his or her initial admission to the United States. (Revised 6/11/01; 66 FR 31107 ) (Revised 10/7/94; 59 FR 51101 ) (Revised 3/7/97; 62 FR 10422 )

( 1 ) Evidence that the alien was employed as a registered nurse on September 1, 1995:

( 2 ) Evidence that the beneficiary is licensed to practice as a registered nurse in the state of intended employment;

( 3 ) Evidence that the alien was within the United States on or after September 1, 1995. For purposes of this provision, an alien will be deemed to have been within the United States on September 1, 1995, who, although not physically present in the United States on that date, was subsequently admitted to the United States in H-1A classification pursuant to an unexpired H-1A visa; and

( 4 ) If the alien was not in valid H-1A nonimmigrant status on October 11, 1996, evidence that the alien was within the United States on October 11, 1996. For purposes of this provision, an alien will be deemed to have been within the United States on October 11, 1996, who, although not physically present in the United States on that date, was subsequently admitted to the United States in H-1A classification pursuant to an unexpired H-1A visa.

(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 three 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 six years. The request for extension must be accompanied by either a new or a photocopy of the prior certification from the Department of Labor that the petition er continues to have on file a labor condition application valid for the period of time requested for the occupation.

( 2 ) Alien in a DOD research and development or coproduction project. An extension of stay may be authorized for a period up to five years for the beneficiary of an H-1B petition involving a DOD research and development project or coproduction project. The total period of stay may not exceed 10 years.

(C) H-2A or H-2B extension of stay . An extension of stay for the beneficiary of an H-2A or H-2B petition may be authorized for the validity of the labor certification or for a period of up to one year, except as provided for in paragraph (h)(5)(x) of this section. The alien's total period of stay as an H-2A or H-2B worker may not exceed three years, except that in the Virgin Islands, the alien's total period of stay may not exceed 45 days.

(D) H-3 extension of stay . An extension of stay may be authorized for the length of the training program for a total period of stay as an H-3 trainee not to exceed two years, or for a total period of stay as a participant in a special education training program not to exceed 18 months.

(16) Effect of approval of a permanent labor certification or filing of a preference petition on H classification- -

(i) H- 1B or H-1C classification . The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an H-1C or H-1B petition or a request to extend such a petition, or the alien's admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. (Revised 6/11/01; 66 FR 31107 ) (Paragraph (h)(16)(i) revised effective 7/1/99; 64 FR 29208 )

(ii) H-2A, H-2B, and H-3 classification . The approval of a permanent labor certification, or the filing of a preference petition for an alien currently employed by or in a training position with the same petitioner, shall be a reason, by itself, to deny the alien's extension of stay.

(17) Effect of a strike.

(i) If the Secretary of Labor certifies to the Commissioner that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation and at the place where the beneficiary is to be employed or trained, and that the employment or training of the beneficiary would adversely affect the wages and working conditions of U.S. citizens and lawful resident workers:

(A) A petition to classify an alien as a nonimmigrant as defined in section l01(a)(l5)(H) of the Act shall be denied.

(B) If a petition has already been approved, but the alien has not yet entered the United States, or has entered the United States but has not commenced the employment, the approval of the petition is automatically suspended, and the application for admission on the basis of the petition shall be denied.

(ii) 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 (h)(17)(i), the Commissioner shall not deny a petition or suspend an approved petition.

(iii) If the alien has already commenced employment in the United States under an approved petition 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 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 nonimmigration 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.

(18) Use of approval notice, Form I-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 a 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 ma y 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 I-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 the same petitioner.

(19) Additional fee for filing certain H-1B 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 employers, as provided in paragraph (h)(2)(i)(D) of this section. (Revised effective 3/30/00; 65 FR 10678 )

(ii) A petitioner must submit the $110 filing fee and additional $500 filing fee in a single remittance totaling $610. Payment of the $610 sum ($110 filing fee and additional $500 filing fee) must be made at the same time to constitute a single remittance. A petitioner may submit two checks, one in the amount of $500 and the other in the amount of $110. The Service will accept remittances of the $500 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) . (Revised effective 3/30/00; 65 FR 10678 )

(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; or (Amended effective 3/30/00; 65 FR 10678 )

(C) A nonprofit research organization or governmental research organization . A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowl edge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or 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. It may include research and investigation in the sciences, social sciencies, or humanities. (Revised effective 3/30/00; 65 FR 10678 ) (Corrected 12/24/98; 63 FR 71342 )

(iv) Non-profit or tax exempt organizations. For purposes of paragraphs (h)(19)(iii) (B) and (C) of this section, a nonprofit organization or entity is: (Revised effective 3/30/00; 65 FR 10678 )

(A) Defined as a tax exempt organization under the Internal Revenue Code of 1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3), (c)(4) or (c)(6), and

(B) Has been approved as a tax exempt organization for research or educational purposes by the Internal Revenue Service. (Paragraph (h)(19) added effective 12/1/98; 63 FR 65657 )

(v) Filing situations where the $500 filing fee is not required . The $500 filing fee is not required: (Added effective 3/30/00; 65 FR 10678

(A) If the petition is an amended H-1B petition that does not contain any requests for an extension of stay;

(B) If the petition is an H-1B petition filed for the sole purpose of correcting a Service error; or

(C) If the petition is the second or subsequent request for an extension of stay filed by the employer regardless of when the first extension of stay was filed or whether the $500 filing fee was paid on the initial petition or the first extension of stay.

(vi) Petitioners required to file Form I-129W. All petitioners must submit Form I-129W with the appropriate supporting documentation with the petition for an H-1B nonimmigrant alien. Petitioners who do not qualify for a fee exemption are required only to fill our Part A of Form I-129W. (Added effective 3/30/00; 65 FR 10678 )

(vii) Evidence to be submitted in support of the Form I-129W. (Added effective 3/30/00; 65 FR 10678 )

(A) Employer claiming to be exempt . An employer claiming to be exempt from the $500 filing fee must complete both Parts A and B of Form I-129W along with Form I-129. The employer must also submit evidence as described on Form I-129W establishing that it meets one of the exemptions described at paragraph (h)(19)(iii) of this section. A United States employer claiming an exemption from the $500 filing fee on the basis that it is a non-profit research organization must submit evidence that it has tax exempt status under the Internal Revenue Co de of 1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3), (c)(4) or (c)(6). All other employers claiming an exemption must submit a statement describing why the organization or entity is exempt.

(B) Exempt filing situations . Any non-exempt employer who claims that the $500 filing fee does not apply with respect to a particular filing for one of the reasons described in section 214.2(h)(19)(v) , must submit a statement describing why the filing fee is not required.