\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1997 \ FEDERAL REGISTER INTERIM REGULATIONS - 1997 \ Processing of Certain H-1A Nurses Under Public Law 104-302[62 FR 10422] [FR 8-97] \ List of Subjects in 8 CFR Part 214
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List of Subjects in 8 CFR Part 214
Adminsistrative practice and procedures, Aliens, Employment, Organization and functions (Government agencies).
Accordingly, part 214 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as follows:
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 paragraphs (h)(1)(ii)(A) and (B) (
b. Revising paragraphs (h)(2)(i)(A) and (D);
c. Removing paragraph (h)(9)(iii)(A);
d. Redesignating paragraphs (h)(9)(iii) (B), (C), and (D) as paragraphs (h)(9)(iii)(A), (B), and (C) respectively;
e. Revising paragraph (h)(13)(ii); and by
f. Revising paragraph (h)(15)(ii)(A); to read as follows:
§ 214.2 Special requirements for admission, extension, and maintenance of status.
* * * * *
(h) * * *
(1) * * *
Description of classification
(A) An H-1A classification applies to an alien who is coming temporarily to the United States to perform services as a registered nurse, meets the requirements of section 212(m)(1) of the Act, and will perform services at a facility for which the Secretary of Labor has determined and certified to the Attorney General that an unexpired attestation is on file and in effect under section 212(m)(2) of the Act. This classification expired on September 1, 1995, but certain aliens previously accorded H-1A classifi
cation are eligible to obtain and extension of stay until September 30, 1997, pursuant to Public Law 104-302.
(B) * * *
) To perform services in a specialty occupation (except agricultural workers, and aliens described in section 101(a)(15) (O) and (P) of the Act) described in section 214(i)(1) of the Act, that meets the requirements of section 214(i)(2) of the Act, and for whom the Secretary of Labor has determined and certified to the Attorney General that the prospective employer has filed a labor condition application under section 212(n)(1) of the Act;
* * * * *
Filing of petitions
. A United States employer seeking to classify an alien as an H-1B, H-2A, H-2B, or H-3 temporary employee shall file a petition on Form I-129, Petition for Nonimmigrant Worker, only with the Service Center which has jurisdiction in the area where the alien will perform services, or receive training, even in emergent situations, except as provided in this section. Petitions in Guam and the Virgin Islands, and petitions involving special filing situations as determined by Service Headquarters, shall be filed
with the local Service office or a designated Service office. The petitioner may submit a legible photocopy of a document in support of the visa petition in lieu of the original document. However, the original document shall be submitted if requested by the Service.
* * * * *
Change of employers
. If the alien is in the United States and seeks to change employers, the prospective new employer must file a petition on Form I-129 requesting classification and extension of the alien's stay in the United States. If the new petition is approved, the extension of stay may be granted for the validity of the approved petition. The validity of the petition and the alien's extension of stay shall conform to the limits on the
alien's temporary stay that are prescribed in paragraph (h)(13) of this section. The alien is not authorized to begin the employment with the new petitioner until the petition is approved. An H-1A nonimmigrant alien may not change employers.
* * * * *
(13) * * *
H-1A limitation on admission
. An alien who was previously accorded H-1A nonimmigrant status, which expired on or before October 11, 1996, may not be admitted to the United States after October 11, 1996, in order to apply for an extension of authorized stay as provided in Public Law 104-302. Except as provided in paragraph (15)(ii)(A) of this subsection, and H-1A alien who
has spent 5 years in the United States under section 101(a)(15)(H) of the Act may not change status, or be readmitted to the United States in any H classification unless the alien has resided and been physically present outside the United States, except for brief trips for pleasure or business, for the immediate prior year.
* * * * *
(15) * * *
(ii) * * *
H-1A extension of stay
. An alien who previously entered the United States pursuant to an H-1A visa may receive an extension of H-1A temporary stay until September 30, 1997, provided that the alien was within the United States in valid H-1A classification on or after September 1, 1995, regardless of whether the alien continued to work as a registered nurse after September 1, 1995; that the alien's period of H-1A temporary stay has expired or would
expire before September 30, 1997; and, if the alien was not in valid H-1A nonimmigrant status on October 11, 1996, that the alien was within the United States on October 11, 1996. An extension of stay may not be granted to an H-1A nonimmigrant alien beyond September 30, 1997. An H-1A alien granted an extension of stay, and the spouse and child of such nonimmigrant, shall be considered to have maintained nonimmigrant status through September 30, 1997, for all purposes under the Immigration and Nationality Ac
t, as amended. Public Law 104-302 does not apply to an H-1A alien who otherwise failed to maintain his or her valid H-1A nonimmigrant status or has changed from H-1A to another nonimmigrant status. A request for an extension of stay for an H-1A nonimmigrant must be filed on Form I-129, Petition for Nonimmigrant Worker, at the appropriate Service Center with the following:
) Evidence that the alien was employed as a registered nurse on September 1, 1995:
) Evidence that the beneficiary is licensed to practice as a registered nurse in the state of intended employment;
) 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
) 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.
* * * * *
§ 214.2 [Amended]
3. In § 214.2, newly redesignated paragraph (h)(9)(iii)(B)(
) is amended in the second sentence by revising the phrase "Chief of the Administrative Appeals Unit, Central Office" to read: "Director, Administrative Appeals Office, Headquarters".
February 28, 1997
Commissioner,Immigration and Naturalization Service.