Chapter 4 - Adjudication

A. Approvals

If the petitioner properly filed the Petition for a Nonimmigrant Worker (Form I-129) and the officer is satisfied that the petitioner has met the required eligibility standards, the officer should approve the petition. The approval period should not exceed the maximum period of stay allowed, which is the length of the approved program, or 15 months, whichever is shorter.[1] The petitioner must demonstrate that the program will run 15 straight months in order to obtain a validity period of that length.[2]

1. Substitution of Beneficiaries

A petitioner may substitute or replace a participant named on an approved petition for the remainder of the program without filing a new Form I-129.[3] The substituting cultural exchange visitor must meet the qualifications for a participant.[4]

Petitioners seeking to substitute a participant must submit a letter to the consulate at which the participant will apply for the visa or at the port of entry in the case of a visa-exempt noncitizen, along with a copy of the approval notice and the participant’s information.[5] 

2. Revocation

The approval of any petition is automatically revoked if the qualifying employer:[6]

  • Goes out of business;

  • Files a written withdrawal of the petition; or

  • Terminates the approved international cultural exchange program before its expiration date.

No further action or notice by USCIS is necessary in the case of automatic revocation.

A notice of intent to revoke (NOIR) is necessary upon a determination that:[7]

  • The international cultural exchange visitor is no longer employed by the petitioner in the capacity specified in the petition, or if the international cultural exchange visitor is no longer receiving training as specified in the petition;

  • The statement of facts contained in the petition was not true and correct;

  • The petitioner violated the terms and conditions of the approved petition; or

  • USCIS approved the petition in error.

The notice of intent to revoke should contain a detailed statement of the grounds for the revocation and the period of time allowed for the petitioner’s rebuttal. USCIS must 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 remains approved and USCIS sends a revised approval notice to the petitioner with the revocation notice.[8]

The petitioner may appeal the decision to revoke a petition (in whole or in part) to the Administrative Appeals Office (AAO) if USCIS revoked the petition on notice. Petitioners may not appeal an automatic revocation.[9]

B. Denials

If the petitioner does not meet the eligibility requirements, the officer must deny the petition.[10] The officer may deny a petition for multiple participants in whole or in part.[11] If the officer denies the petition, he or she must prepare a final notice of action, which includes information explaining why the petition is denied.[12] Additionally, officers should include information about appeal rights and the opportunity to file a motion to reopen or reconsider in the denial notice. The office that issued the decision has jurisdiction over any motion[13] and the AAO has jurisdiction over any appeal.[14]

Footnotes


[^ 1] See 8 CFR 214.2(q)(7)(iii).

[^ 2] See Matter of R-C-C-S-D- (PDF, 356.08 KB), Adopted Decision 2016-04 (AAO Oct. 24, 2016).

[^ 3] See 8 CFR 214.2(q)(6).

[^ 4] See Chapter 2, Eligibility Requirements, Section C, Participant Requirements [2 USCIS-PM E.2(C)].

[^ 5] See 8 CFR 214.2(q)(6).

[^ 6] See 8 CFR 214.2(q)(9)(ii).

[^ 7] See 8 CFR 214.2(q)(9)(iii).

[^ 8] See 8 CFR 214.2(q)(9)(iv).

[^ 9] See 8 CFR 214.2(q)(9)(v).

[^ 10] See 8 CFR 103.2(b)(8).

[^ 11] See 8 CFR 214.2(q)(8)(ii)

[^ 12] See 8 CFR 103.2(b)(19). See 8 CFR 103.3. See 8 CFR 214.2(q)(8)(i).

[^ 13] See 8 CFR 103.5(a)(1)(ii).

[^ 14] See 8 CFR 103.3(a)(2).

Current as of July 30, 2021