9 FAM 402.10
(U) Temporary Workers and Trainees - H Visas
(Office of Origin: CA/VO/L/R)
9 FAM 402.10-1 (U) STATUTORY AND REGULATORY Authority
9 FAM 402.10-1(A) (U) Immigration and Nationality Act
(U) INA 101(a)(15)(H) (8 U.S.C. 1101(a)(15)(H)); INA 212(m) (8 U.S.C. 1182(m)); INA 212(n) (8 U.S.C. 1182(n)); INA 212(r) (8 U.S.C. 1182(r)); INA 214(b) (8 U.S.C. 1184(b)); INA 214(h) (8 U.S.C. 1184(h)).
9 FAM 402.10-1(B) (U) Code of Federal Regulation
(U) 8 CFR 214.1(h); 8 CFR 214.2; 22 CFR 41.53.
9 FAM 402.10-1(C) (U) Public Law
(U) Sections 222 and 223 of the Immigration Act of 1990 (Public Law 101-649); the Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95), American Competitiveness in the Twenty-first Century Act of 2000 (Public Law 106-313).
9 FAM 402.10-2 (u) Overview of H Visas
a. (U) The Immigration and Nationality Act of 1952 (Public Law 82-414 of June 27, 1952) created the H nonimmigrant visa classification in INA 101(a)(15)(H) for temporary workers and trainees. INA 101(a)(15)(H) has since been amended numerous times. The H nonimmigrant visa classification is for persons who want to enter the United States for employment lasting a fixed period of time, either as a professional in a specialty occupation, a fashion model of distinguished merit and ability, a temporary agricultural or non-agricultural worker, or a trainee or special education visitor. Each of these visas requires the prospective employer to first file a petition with the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS).
b. (U) On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.
9 FAM 402.10-3 (U) Classification Codes
(U) 22 CFR 41.12 identifies the following classification symbols for individuals engaged in temporary work or trainee in accordance with INA 101(a)(15)(H):
Alien in a Specialty Occupation (Profession)
Chilean or Singaporean National to Work in a Specialty Occupation
Nurse in health professional shortage area
Temporary Worker Performing Agricultural Services Unavailable in the United States
Temporary Worker Performing Other Services Unavailable in the United States
Spouse or Child of Alien Classified H1B/B1/C, H2A/B, or H–3
9 FAM 402.10-4 (U) H Classifications and Prerequisites for Filing H Petitions
9 FAM 402.10-4(A) (U) H-1A Nonimmigrants
(U) The H-1A visa classification was eliminated with repeal of INA 101(a)(15)(H)(i)(a) by Section 2(c) of the Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95).
9 FAM 402.10-4(B) (U) H-1B Nonimmigrants
a. (U) The H-1B classification applies to an alien who is coming temporarily to the United States to perform services in one of the categories described below. (For information on H-1B1 classification for nationals of Chile and Singapore deriving from free trade agreements see 9 FAM 402.10-5 below.)
(1) (U) Aliens in Specialty Occupations: Aliens who are qualified to perform services in a specialty occupation as described in INA 214(i)(1) and (2) (other than agricultural workers, described in INA 101(a)(15)(H)(ii)(A) or aliens qualifying under INA 101(a)(15)(O) or (P)) are classifiable as H-1B nonimmigrants.
(a) (U) A specialty occupation requires the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) for entry into the occupation. An alien seeking to work in a specialty occupation must have completed such a degree or have experience in the specialty equivalent to the completion of the degree (as determined by USCIS) and expertise in the specialty through progressively responsible positions relating to the specialty.
(b) (U) The criteria for qualifying as an H-1B physician are found in subparagraph 3 below.
(c) (U) Prior to filing a petition with USCIS on behalf of an alien in a specialty occupation, the petitioner must have obtained a certification from DOL that it has filed a labor certification application (LCA) as specified in INA 212(n)(1). The filing of an LCA does not constitute a determination that the occupation in question is a specialty occupation. USCIS is responsible for determining whether the application involves a specialty occupation and whether the particular alien for whom H-1B status is sought qualifies to perform services in that occupation.
(2) (U) Certain Fashion Models: H-1B classification may be granted to an alien who is of distinguished merit and ability in the field of fashion modeling. “Distinguished merit and ability” is defined by USCIS as prominence; i.e., the attainment of a high level of achievement in the field of fashion modeling evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading or well-known in the field. Such an alien must also be coming to the United States to perform services which require a fashion model of prominence. The petitioner of a fashion model of distinguished merit and ability must file an LCA (see 9 FAM 402.10-7 below) with DOL prior to filing a petition for the alien.
(3) (U) Alien Physicians:
(a) (U) Graduates of Foreign or U.S. Medical Schools: An alien "graduate of a medical school," as defined in INA 101(a)(41), may enter the United States as an H-1B nonimmigrant to perform services as a member of the medical profession if he or she has a full and unrestricted license to practice medicine in a foreign state or if he or she has graduated from medical school in either the United States or in a foreign state. In addition, if he or she will provide direct patient care, he or she must generally have a valid medical license in the state of intended employment; however, USCIS may grant a limited-validity petition in order to allow the beneficiary time to obtain a professional license. An alien involved in a medical residency program, for example, may have an approved H-1B petition, even though he or she does not yet have a full and unrestricted U.S. medical license.
(b) (U) Coming to Teach or Conduct Research: An alien physician may also be classified as an H-1B nonimmigrant if he or she is coming to the United States primarily to teach or conduct research, or both, at or for a public or nonprofit private educational or research institution or agency. Such an alien may only engage in direct patient care that is incidental to his or her teaching and/or research.
(c) (U) Note: Alien Physicians Not Eligible for H-2B or H-3 Classification: Alien physicians who are coming to the United States to perform medical services or receive graduate medical training are statutorily ineligible to receive H-2B or H-3 status.
(4) (U) Aliens in Department of Defense Cooperative Research and Development or Co-production Projects: Aliens coming to the United States, pursuant to Section 222 of the Immigration Act of 1990, to participate in a cooperative research and development project or a co-production project under a government-to-government agreement administered by the Department of Defense (DOD) are classifiable as H-1B nonimmigrants. Such aliens must perform services of an exceptional nature requiring exceptional merit and ability. For purposes of this classification, services of an exceptional nature must be those which require a bachelor's degree or higher (or its equivalent, as determined by USCIS) to perform the duties. The requirement for filing an LCA with DOL does not apply to petitions involving DOD cooperative research and development or co-production projects.
b. (U) General Licensure Requirement: The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because states have different rules in this area. If a state permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some states do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a taxpayer identification number. Therefore, a visa must not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States.
9 FAM 402.10-4(C) (U) H-1C Nurse in Health Professional Shortage Area
(U) This classification expired December 20, 2009.
9 FAM 402.10-4(D) (U) H-2A Nonimmigrants
a. (U) The H-2A classification applies to aliens who are coming temporarily to the United States to perform agricultural work of a temporary or seasonal nature.
b. (U) The petitioner must file a temporary agricultural labor certification with Department of Labor (DOL) prior to filing a petition with USCIS to classify an alien as an H-2A nonimmigrant.
c. (U) Except as noted in 402.10-7(A), USCIS generally may only approve a Form I-129, Petition for a Nonimmigrant Worker, filed on behalf of an H-2A worker who is a national of a country designated as an H-2A program eligible country. However, USCIS may still approve H-2A petitions filed for nationals of countries not designated as participating countries, if such an approval is in the national interest, as noted in 9 FAM 402.10-8(A).
(1) (U) The designated countries can be found on the USCIS H-2A website.
(2) (U) Countries are designated as H-2A program participating countries based on:
(a) (U) The country’s cooperation with respect to the issuance of travel documents for citizens, subjects, nationals, and residents of that country who are subject to a final order of removal from the United States; and
(b) (U) The number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; and
(c) (U) The number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and
(d) (U) Such other factors as may serve U.S. interest.
(3) (U) Posts will be advised when there are changes to the list of participating countries as well as the effective dates for their formal participation in the program. Subsequent designations will be valid for one year from the date of publication of the list of eligible countries in the Federal Register. On a case-by-case basis, DHS may allow a worker from a country not on the participating country list to be eligible for the H-2A program if, among other considerations, such participation is in the interest of the United States.
(4) (U) Posts recommending that a country obtain, maintain, or lose status as an H-2A program participant should contact the responsible regional country desk officer and CA/VO/F/IE as early in the calendar year as possible.
9 FAM 402.10-4(E) (U) H-2B Nonimmigrants
a. (U) The H-2B classification applies to aliens who are coming temporarily to the United States to perform nonagricultural services or labor of a temporary or seasonal nature, other than graduates of medical schools coming to provide medical services, if qualified persons capable of performing such work cannot be found in the United States. USCIS defines temporary services or labor as those that will be needed by the employer for a limited period of time; i.e., where the job will end in the near, definable future. Such a period of time generally will be limited to one year or less, but a one-time event could last up to three years. The employer’s need for services or labor must be on a one-time basis, seasonal, for a peak load, or intermittent basis.
b. (U) This classification requires a temporary labor certification issued by the Department of Labor (DOL) or the Government of Guam (in certain cases involving employment on Guam), prior to the filing of a petition with USCIS to classify an alien or aliens in the H-2B classification. Consular officers do not have the authority to attempt to interpret DOL regulations or question DOL's decision to approve a temporary labor certification.
c. (U) With limited exception, USCIS may only approve Form I-129, Petition for a Nonimmigrant Worker, filed on behalf of an H-2B worker to individuals who are nationals of a country designated as an H-2B program eligible country. Employers petitioning for nationals of a country not designated as a program eligible country must establish additional eligibility criteria (see 9 FAM 402.10-8(A) paragraph c for more information on nationals of non-program eligible countries).
(1) (U) The designated countries can be found on the USCIS H-2B website.
(2) (U) Countries were designated as H-2B program participating countries based on:
(a) (U) The country’s cooperation with respect to the issuance of travel documents to citizens, subjects, nationals, and residents of that country who are subject to a final order of removal from the United States;
(b) (U) The number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country;
(c) (U) The number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and
(d) (U) Such other factors as may serve U.S. interest.
(3) (U) Posts will be advised when there are changes to the list of participating countries as well as the effective dates for formal participation in the program. Subsequent designations will be valid for one year from the date of publication of the list of eligible countries in the Federal Register. On a case-by-case basis, DHS may allow a worker from a country not on the participating country list to be eligible for the H-2B program if, among other considerations, such participation is in the interest of the United States.
(4) (U) Posts recommending that a country obtain, maintain, or lose status as an H-2B program participant should contact the responsible country desk officer from the regional bureau and CA/VO/F/IE as early in the calendar year as possible.
d. (U) Alien Coming to Train Others and/or Organize Business: An alien seeking to enter the United States to train others or to organize a business operation may be considered to be coming to a temporary position and is classifiable as an H-2B, if otherwise qualified. For example, a cook coming to train other cooks or organize a kitchen may be classified as an H-2B, but a cook coming to assume a job of a permanent nature may not be accorded H-2B or any other nonimmigrant status and would have to qualify for an immigrant visa (IV).
e. (U) Alien Employees of United States Exhibitors: Alien employees of United States exhibitors or employers at international fairs or expositions held in the United States may be classifiable as H-1B or H-2B temporary workers if eligibility requirements are met.
f. (U) Returning Workers: The Consolidated Appropriations Act for Fiscal Year 2016 was passed on December 22, 2015. Under this Act, certain returning H-2B workers were exempt from the annual H-2B numerical limitation during FY 2016. This program sunset on September 30, 2016.
9 FAM 402.10-4(F) (U) H-3 Nonimmigrants
a. (U) The H-3 classification applies to an alien who is a temporary worker who is invited by an individual, a business, or an organization for purposes of receiving instruction and training other than graduate medical education or training. The training program must be one that is not designed primarily to provide productive employment beyond that which is incidental and necessary to the training. The trainee must have a foreign residence to which he or she intends to return. See INA 101(a)(15)(H)(iii); 8 CFR 214.1 (h).
b. (U) Alien Trainees: The regulatory criteria for an H-3 petition approval are that the proposed training is not available in the alien’s own home country, the beneficiary will not be placed in a position that is in the normal operation of the business in which U.S. citizen and legal permanent resident workers are regularly employed, that there will be no productive employment unless it is incidental and necessary to the training, and the training will benefit the beneficiary in pursuance of a career outside of the United States. See 8 CFR 214.2(h)(7)(ii)(A).
c. (U) Alien Participants in Special Education Exchange Program: A special education exchange program, described in section 223 of the Immigration Act of 1990, allows up to 50 aliens per year to come to the United States in H-3 visa status in order to receive practical training and experience in the education of children with physical, mental, or emotional disabilities. The length of stay in the United States is normally limited to 18 months. Alien participants in this program will either be nearing completion of a bachelor’s level degree or higher degree in special education, or already have a degree, or they will have extensive prior training or experience in this field. (See 8 CFR 214.2(h)(7)(iv).)
d. (U) Certain Nurses Eligible for H-3 Classification: A petitioner may seek H-3 status for a nurse 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 that such training is designed to benefit the nurse and the foreign employer upon the nurse's return to his or her country of origin. For a nurse to qualify for H-3 classification, certain criteria established by USCIS must be met. These include the alien having a full and unrestricted license to practice in the country where the alien obtained his/her nursing education (unless in the United States or Canada) and the petitioner's certification that, under the laws where the training will take place, the petitioner is authorized to give such training and the alien to receive it.
e. (U) Medical Students Qualifying as H-3 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 a student attending a medical school abroad as an H-3 trainee, if the alien will engage in employment as an extern during his or her medical school vacation.
9 FAM 402.10-4(G) (U) Nature of Position or Training for H Nonimmigrants
a. (U) H-1B Nonimmigrants: An alien may be classified as an H-1B nonimmigrant whether the position to be temporarily occupied is permanent or temporary in nature. For example, a foreign professor coming to fill a position on the faculty of a U.S. university could be classified H-1B.
b. (U) H-2A and H-2B Nonimmigrants: An H-2A or H-2B nonimmigrant must be coming to fill a position that is temporary in nature. He or she may not be classified H-2A or H-2B for the purpose of occupying a position of permanent or indefinite duration; note, however, that in certain circumstances, sheepherders which can be permanent or indefinite positions, may be eligible for H-2A classification.
c. (U) H-3 Nonimmigrants: An alien may not be classified H-3 if his or her training program is primarily designed to provide productive employment, beyond that which is incidental and necessary to the training, except in the case of a participant in a special education exchange program. (See 9 FAM 402.10-4(F) above.)
d. (U) Using B-1 in Lieu of H Classification: For a discussion of whether or not a B-1 in lieu of H classification may be used, see 9 FAM 402.2-5(F).
9 FAM 402.10-5 (U) H-1B1 Free Trade Agreement Nonimmigrant Professionals
9 FAM 402.10-5(A) (U) Overview of Free Trade Agreements
a. (U) The President signed free trade agreements (FTAs) with Chile and Singapore on September 3, 2003. The FTAs with Chile and Singapore were authorized by Congress in Public Law 108-77 and Public Law 108-78, respectively. Both agreements became effective on January 1, 2004.
b. (U) The FTAs with Chile and Singapore include immigration provisions that allow for the temporary entry of certain professionals into the territory of the trading partners in order to facilitate free trade opportunities, as provided for in Chapter 14 of the U.S.-Chile Agreement and in Chapter 11 of the U.S.-Singapore Agreement. The temporary entry chapters in both agreements establish four categories of nonimmigrant entry for business purposes. Three of the categories, business visitors, traders and or investors, and intra-company transferees, qualify for visas under the existing B-1, E-1/E-2, and L-1/L-2 visa categories. The FTAs establish a new fourth category of temporary entry for nonimmigrant professionals, the H-1B1 category.
9 FAM 402.10-5(B) (U) H-1B1 Applications Subject to Numerical Limitations
a. (U) Annual numerical limits are set for aliens who may obtain H-1B1 visas. 1,400 professionals from Chile and 5,400 professionals from Singapore are allowed to enter the United States annually. These numerical limits fall within and are registered against the existing annual numerical limit (currently 65,000) for H-1B aliens. Only principals are counted against each country’s respective numerical limitation. Initial applications for H-1B1 classification, as well as the sixth and all subsequent extensions of stay, are counted against the H-1B1 annual numerical limitations.
b. (U) At the end of each fiscal year, unused H-1B1 numbers will be returned to that year’s total H-1B global numerical limit and will be made available to H-1B aliens during the first 45 days of the new fiscal year.
c. (U) USCIS is required to keep a numerical count of the H-1B1 visas issued. The Office of Visa Services (CA/VO) monitors the number used based on workload data. On a periodic basis, CA/VO provides this information to USCIS.
9 FAM 402.10-5(C) (U) No Petition Required
(U) An employer of an H-1B1 professional is not required to file a petition with USCIS. Instead, an employee will present evidence for classification directly to consular officers at the time of visa application.
9 FAM 402.10-5(D) (U) Applicants Subject to Labor Condition
(U) Employers must submit a labor condition application (LCA) for foreign workers from Chile or Singapore under the H-1B1 program. If the employee makes an application for H-1B1 classification with a consular officer, rather than with USCIS, the law requires the Department of Labor (DOL) to certify to the Department of State that LCA, Form ETA-9035, Labor Condition Application for H-1B Nonimmigrants, has been filed with DOL. If certified, the employer transmits a copy of the signed, certified LCA to the alien together with a written offer of employment. At the time of visa application, the alien will present a certified copy of the LCA, clearly annotated by the employer as “H-1B1 Chile” or “H-1B1 Singapore,” as proof of filing.
9 FAM 402.10-5(E) (U) H-1B1 Professionals in Specialty Occupations
a. (U) The H-1B1 category allows for the entry of nonimmigrant professionals in “specialty occupations.” The definition of “specialty occupation” set forth in both FTAs is presently identical to the regulatory definition for H-1Bs; i.e., an occupation that requires:
(1) (U) Theoretical and practical application of a body of specialized knowledge; and
(2) (U) Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States” (8 CFR 214.2). Consular officials should refer to this section for guidance in connection with an applicant’s qualifications as an H-1B1 professional.
b. (U) Both agreements allow for alternative credentials for certain professions. The United States has agreed to accept alternative credentials for Chilean and Singaporean nationals in the occupations of Disaster Relief Claims Adjuster and Management Consultant and must have a degree, even if in an unrelated discipline. If the degree is in an unrelated discipline, they additionally must have 3 years of experience in a field or specialty related to the consulting agreement. For Chilean nationals only, Agricultural Managers and Physical Therapists can also qualify with a combination of a post-secondary certificate in the specialty and three years' experience in lieu of the standard degree requirements. You may accept specified documentary evidence of alternative credentials.
9 FAM 402.10-5(F) (U) Temporary Entry of FTA Professionals
a. (U) Both agreements provide for the temporary entry of professionals into the United States. Temporary entry is defined in both agreements as “an entry into the United States without the intent to establish permanent residence.” You must be satisfied that the alien’s proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. The circumstances surrounding an application should clearly and convincingly indicate that the alien’s temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment. An intent to immigrate in the future, which is in no way connected to the proposed immediate trip, need not in itself result in a finding that the immediate trip is not temporary. An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate.
b. (U) H-1B1 nonimmigrant professionals are admitted for a one-year period renewable indefinitely, provided the alien is able to demonstrate that he or she does not intend to remain or work permanently in the United States.
9 FAM 402.10-5(G) (U) Licensing Requirements
(U) For admission into the United States in a specialty occupation, an alien must meet the academic and occupational requirements. However, the requirements for classification as an H-1B1 nonimmigrant professional do not include licensure. Licensure to practice a given profession in the United States is a post-entry requirement subject to enforcement by the appropriate state or other sub-federal authority. Proof of licensure to practice in a given profession in the United States may be offered along with a job offer letter, or other documentation in support of an application for an H-1B1 visa. However, admission and or classification must not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States.
9 FAM 402.10-5(H) (U) H-1B1 Visa Application Procedures
a. (U) A national of Chile or Singapore must meet the general academic and occupational requirements for the position pursuant to the definition cited. Proof of alternative credentials may be submitted for certain professions as discussed in 9 FAM 402.10-5(G) above.
b. (U) An applicant must submit evidence that his or her employer has filed an LCA with DOL covering the applicant’s position. A certified form ETA-9035 clearly annotated as “H-1B1 Chile” or “H-1B1 Singapore” must be submitted as evidence of filing.
c. (U) An applicant must submit evidence that the employer has paid any applicable fee imposed.
d. (U) An applicant must submit evidence that his or her stay in the United States will be temporary (a letter or contract of employment should be evidence that the employment is being offered on a temporary basis).
e. (U) An applicant must pay the Machine Readable Visa (MRV) fee or provide proof of payment.
9 FAM 402.10-6 (U) Labor Condition Application for H-1B Nonimmigrants
a. (U) Prior to filing a Form I-129, Petition for a Nonimmigrant Worker, with USCIS for an H-1B nonimmigrant (other than an alien in a Department of Defense research and development or co-production project), the employer must file a labor condition application (LCA) with DOL. The labor condition application must state, among other things, that:
(1) (U) The employer will pay the beneficiary a wage which is no less than the wage paid to U.S. workers with similar experience and qualifications for the specific employment position in question or the prevailing wage for the occupational classification in the geographic area of employment, whichever is greater;
(2) (U) The employer will provide working conditions for the alien-beneficiary that will not adversely affect the working conditions of workers similarly employed; and
(3) (U) There is no current strike or lockout as a result of a labor dispute in the occupational classification at the place of employment.
b. (U) Additional restrictions are placed on any employer that is an “H-1B dependent employer,” as defined in INA 212(n)(3). An “H-1B dependent employer” generally, must make the following additional attestations to the DOL when filing LCA:
(1) (U) It has taken good faith steps to recruit U.S. workers (defined as U.S. citizens or nationals, lawful permanent residents, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens)) using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant;
(2) (U) It has offered the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant;
(3) (U) It has not “displaced” any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought; and
(4) (U) It will not place an H-1B worker with another employer unless it has inquired into whether and has no knowledge that the other employer has displaced or intends to displace a U.S. worker within 90 days before or after the placement of the H-1B worker.
c. (U) Note that if an H1-B worker is changing places of employment, the employer must file a new LCA. For more information on petitioner and beneficiary requirements when there is a change of employment, see 9 FAM 402.10-8(G).
9 FAM 402.10-7 (U) Significance of Approved Form I-129, Petition for a Nonimmigrant Worker
9 FAM 402.10-7(A) (U) DHS Responsible for Adjudicating H Petitions
(U) By mandating a preliminary petition process, Congress placed responsibility and authority with the Department of Homeland Security (DHS) to determine whether the foreign worker meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex and petition adjudication is a DHS-mandated activity, you must rely on the expertise of DHS, specifically USCIS, in this area.
9 FAM 402.10-7(B) (U) Approved Petition is Prima Facie Evidence of Entitlement to H Classification
a. (U) An approved Form I-129, Petition for a Nonimmigrant Worker, seeking H nonimmigrant status on behalf of an alien beneficiary or alien beneficiaries, or evidence that the petition has been approved (see 9 FAM 402.10-9(A) below), is in itself, to be considered by you as prima facie evidence that the requirements for H classification which are examined in the petition process have been met. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the petition was filed. You may only request reconsideration of an approval of a petition with specific evidence, unavailable to USCIS at the time of petition approval, that the beneficiary may not be entitled to status.
b. (U) The approval of a petition by USCIS does not relieve the alien-beneficiary of the burden of establishing visa eligibility during a visa interview. In the course of the visa interview questions may arise as to the beneficiaries' eligibility for H classification. If information develops during the visa interview (i.e., evidence which was not available to USCIS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. Disagreement with USCIS interpretation of the law or the facts, however, is not sufficient reason to ask USCIS to reconsider its approval of the petition.
c. (U) Prohibited Fees: The USCIS may deny or revoke an approved H-2A or H-2B petition if it is discovered that the petitioner collected or entered into an agreement to collect a fee or other compensation (direct or indirect) from the beneficiary as a condition of the beneficiary obtaining or maintaining employment or if the petitioner knows or reasonably should have known at the time of filing the I-129 petition that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service as a condition or requirement of obtaining employment. Prohibited job placement fees do not include the lower of the fair market value of, or actual costs for, transportation to the United States (if permitted by applicable laws) or the payment of any government-specified fees such as fees required by a foreign government for the issuance of a passport and the visa issuance fees. If you have reason to believe that the alien-beneficiary has paid a prohibited fee or agreed to pay such a fee and s/he has not been reimbursed or the agreement to pay the fee has not been terminated, you should return the petition to USCIS for reconsideration following current procedures outlined below in 9 FAM 402.10-7(C) after consulting with your liaison in the Advisory Opinions Division of the Visa Office (CA/VO/L/A).
9 FAM 402.10-7(C) (U) Referring Approved H Petition to USCIS for Reconsideration
a. (U) You should consider all approved H petitions in light of these Notes, process those applications that appear to be legitimate, identify those applications which require local investigation, and identify those petitions that require referral to the approving U.S. Citizenship and Immigration Services (USCIS) office for reconsideration. Refer petitions to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS. You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which are material to the petition eligibility criteria, and might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.
b. (U) When requesting reconsideration, you must, under cover of Form DS-3099, NIV Petition Revocation Request Cover Sheet-Kentucky Consular Center, forward the consular return memorandum and all of the supporting evidence that is relevant to the request for reconsideration to the Kentucky Consular Center (KCC), which will then forward the request to the approving USCIS office. The preferred method for submitting these documents to KCC is to scan and send a PDF document to the KCCI129Revocations@state.gov mailbox with a subject line reading "Revocation Request from (Post Name) for (Receipt Number)." KCC will also enter the request and all supporting documents into Petition Information Management System (PIMS), will maintain a copy of the request and all supporting documentation, and will track all consular revocation requests. You are no longer required to maintain a paper copy of all documents, although scanning the revocation request and supporting documents into the case file is strongly recommended.
9 FAM 402.10-7(D) (U) Effect of Revocation of Department of Labor (DOL) Temporary Labor Certifications for H-2A Beneficiaries
a. (U) The approval of an employer’s H-2A petition is immediately and automatically revoked if the Department of Labor (DOL) revokes the underlying temporary labor certification upon which the petition is based.
b. (U) The alien beneficiary’s stay is authorized for a 30-day period following the revocation for the purpose of departure or extension of stay based upon a subsequent offer of employment. The alien will not accrue any period of unlawful presence under INA 212(a)(9) during that 30-day period.
c. (U) The previously approved H-2A petition must be returned to the approving USCIS office through the Kentucky Consular Center (KCC) under cover of a Form DS-3099 with a written memorandum detailing the Department of Labor’s action.
9 FAM 402.10-8 (U) Petition Procedures
9 FAM 402.10-8(A) (U) Using Form I-129, Petition for a Nonimmigrant Worker
a. (U) An employer must file a Form I-129, Petition for a Nonimmigrant Worker, with USCIS to accord status as a temporary worker or trainee. Form I-129 is also used to request changes of status, extensions of petition validity and extensions of stay in H status. The form must be filed with the USCIS Service Center that has jurisdiction over the area where the alien will perform services or receive training.
b. (U) More than one beneficiary may be included in an H-2A, H-2B, or H-3 petition if the beneficiaries will be performing the same service, or receiving the same training, for the same period of time and in the same location.
c. (U) According to DHS H-2A and H-2B regulations, a national from a country not on the list of designated countries may be the beneficiary of an approved Form I-129 petition upon the request of the petitioner, if the Secretary of the DHS determines that it is in the U.S. interest for the petition to be approved. When making such a determination the Secretary of DHS will take into consideration a variety of factors, including but not limited to consideration of:
(1) (U) Evidence that a worker with the required skills is not available within the U.S. workforce or from the pool of foreign workers who are nationals of H-2A or H2B program participating countries;
(2) (U) Evidence that the beneficiary has been admitted to the United States in H-2A or H2B status on a previous occasion and has complied with the terms of that status;
(3) (U) The potential for abuse, fraud, or other harm to the integrity of the H-2A or H-2B program through the potential admission of the beneficiary; and
(4) (U) Such other factors as may serve the U.S. interest. You must not refuse a visa based on the nationality of the beneficiary, but may presume that DHS has approved this exception in the absence of any evidence to the contrary.
d. (U) USCIS recommends that petitions filed for beneficiaries who are nationals of countries participating in the H-2 program should be filed separately from those petitions filed for beneficiaries who are nationals of countries not participating in the H-2 program.
e. (U) There are specific USCIS requirements of petitioners for naming beneficiaries on all H-2A and H-2B petitions. An H-2A or H-2B petition must list the names of all beneficiaries who are currently in the United States, but the petitioner, generally, is not required to do so for those not currently in the United States. However, USCIS retains the authority to require, at its discretion, the naming of beneficiaries of H-2A and H-2B petitions if they are currently outside the United States. Moreover, beneficiaries from countries who are not on the list of eligible countries must be named. All H-2A and H-2B petitions must include the nationality of all beneficiaries whether named or unnamed.
9 FAM 402.10-8(B) (U) Evidence Submitted in Support of H Petitions
a. (U) Evidence of Employment/Job Training: For petitions with named beneficiaries, a petition must be filed with evidence that the beneficiary met the certification's minimum employment and job training requirements, if any are prescribed, as of the date of the filing of the labor certification application. For petitions with unnamed beneficiaries, such evidence must be submitted at the time of a visa application or, if a visa is not required, at the time the applicant seeks admission to the United States. Evidence in support of H-2A petitions must be and evidence in support of H-2B petitions can be in the form of the past employer or employers' detailed statement(s) or actual employment documents, such as company payroll or tax records. Alternately, a petitioner must show that such evidence cannot be obtained, and submit affidavits from persons who worked with the beneficiary that demonstrate the claimed employment or job training.
b. (U) Evidence of Education and Other Training: For petitions with named beneficiaries, a petition must be filed with evidence that the beneficiary met all of the certification's post-secondary education and other formal training requirements, if any are prescribed in the labor certification application as of date of the filing of the labor certification application. For petitions with unnamed beneficiaries, such evidence must be submitted at the time of a visa application or, if a visa is not required, at the time the applicant seeks admission to the United States. Evidence in support of H-2A petitions must be and evidence in support of H-2B petitions can be in the form of documents, issued by the relevant institution(s) or organization(s) that show periods of attendance, majors and degrees or certificates accorded.
9 FAM 402.10-8(C) (U) Notifying Petitioner of Petition Approval
(U) USCIS uses Form I-797, Notice of Action, to notify the petitioner that the H petition filed by the petitioner has been approved or that the extension of stay in H status for the employee has been granted. The petitioner may furnish Form I-797 to the employee for the purpose of making his or her H visa appointment or to facilitate the employee’s entry into the United States in H status, either initially or after a temporary absence abroad during the employee’s stay in H status. (See 9 FAM 402.10-9(A) below.)
9 FAM 402.10-8(D) (U) Validity of Approved Petitions
a. (U) Initial Period of Approval: USCIS has established the following initial approval period of an H petitions; however, individual petitions may vary. You must always be sure to check the expiration date on the actual petition itself via PIMS or PCQS:
(1) (U) An H-1B petition for an alien in a specialty occupation may be approved for a period of up to three years but may not exceed the validity period of the labor condition application;
(2) (U) An H-1B petition for a fashion model of distinguished merit and ability may be approved for a period of up to three years;
(3) (U) An H-1B petition involving a participant in a Department of Defense (DOD) research and development or co-production project may be approved for a period of up to five years;
(4) (U) An approved H-2A petition generally will be valid through the expiration of the related labor certification;
(5) (U) An approved H-2B petition generally will be valid through the expiration of the related labor certification;
(6) (U) An H-3 petition for an alien trainee may be approved for a period of up to two years; and
(7) (U) An H-3 petition for an alien participating in a special education exchange program may be approved for a period of up to 18 months.
b. (U) Petition Extension: A petitioner wishing to extend the validity of a petition must file a request for a petition extension to USCIS, using Form I-129, Petition for a Nonimmigrant Worker. Only DHS can extend the validity of a petition.
c. (U) Validity of H-1B Petition When Company Restructures: An H-1B petition remains valid if a company is involved in a corporate restructuring, including but not limited to, a merger, acquisition or consolidation if:
(1) (U) The new corporate entity succeeds to the interests and obligations of the original petitioning employer remain the same; and
(2) (U) The terms and conditions of employment remain the same, but for the identity of the petitioner.
9 FAM 402.10-8(E) (U) “NAFTA Professional” (TN) Status in Lieu of H-1B Petition for Canadian Citizens
a. (U) No visa, prior petition, labor condition application, or prior approval is required for a Canadian citizen who is a business person seeking to enter the United States temporarily to engage at a professional level in one of the professional activities listed in Chapter 16 Appendix 1603.D.1 of the North American Free Trade Agreement (NAFTA). Engaging in a professional activity listed in this appendix would not necessarily result in qualification for H-1B status. The criteria used to develop Appendix 1603.D.1 differ from the statutory requirements for determining H-1B classification. To qualify for TN status, the alien-beneficiary may present supporting documentation to an immigration officer at the port of entry demonstrating that he or she seeks entry to engage in a listed profession at a professional level and meets the criteria to perform at that level. (See 9 FAM 402.17.)
b. (U) Mexican nationals applying for a TN visa do not/not require a petition approved by USCIS. (See 9 FAM 402.17-6(c) and (d).
9 FAM 402.10-8(F) (U) Filing H Petitions for Visa-Exempt Aliens
(U) Petitioners seeking to classify employees in H nonimmigrant status must file a petition in advance with USCIS, and the visa-exempt beneficiary must present a copy of Form I-797, Notice of Action, at a port of entry.
9 FAM 402.10-8(G) (U) Effect on Petition if Beneficiary's Employment Changes
9 FAM 402.10-8(G)(1) (U) When a New Petition is Required For a New Position with the Same Employer
a. (U) The petitioner must file a new or amended H-1B petition if the H-1B employee is changing his or her place of employment to a new geographical area. The place of employment is defined as the worksite or physical location where the work is actually performed by the H-1B nonimmigrant. For petition validity purposes, geographical area means the area within normal commuting distance of the place of employment or within the same Metropolitan Statistical Area. Once a petitioner files the new or amended H-1B petition, the H-1B employee can immediately begin to work at the new place of employment. The petitioner does not have to wait for a final decision on the new or amended petition.
b. (U) A change in employment does not have an effect on an H-1B employee's currently valid visa. For information on the effect of the new petition on the applicant's unexpired visa, see 9 FAM 402.10-11(A), (U) Validity of H-1B When There is a Change of Employer.
9 FAM 402.10-8(G)(2) (U) When an Amended or New Petition is NOT Required
(U) If the employment relationship between the petitioner and the beneficiary remains the same and there are no other material changes in the terms and conditions of the H-1B worker's employment, petitioners are not required to file amended petitions for:
(1) (U) Movement of an employee's place of employment within the same geographical area;
(2) (U) Short-term placements of up to 30 days, or up to 60 days when the employee is still based at the "home" worksite, provided certain provisions of 20 CFR 655.735 are met; or
(3) (U) "Non-worksite" locations. A location is considered a non-worksite if the employee is attending training or a conference, the employee spends little time at any one location, or the job involves short periods of travel to other locations on a casual short term basis.
9 FAM 402.10-8(G)(3) (U) Consular Officer Responsibilities
a. (U) If you become aware of a change in an H-1B applicant's place of employment, you should verify the petitioner has taken the appropriate steps outlined above or give them an opportunity to do so. For example, if the beneficiary presents a cover letter from the petitioner stating that the beneficiary's place of employment is different than that stated on the approved H-1B petition, an additional line of inquiry may be necessary to determine the actual place of employment.
b. (U) If you determine that an applicant's place of employment has changed since the petition was submitted, you should refuse the visa application under INA Section 221(g) until the petitioner has provided a copy of a USCIS notice of receipt that an amended or new petition has been filed. The case should be processed to conclusion based on the receipt notice, even if the amended or new petition has not yet been approved. The PIMS record should use the original, approved petition number, and the visa should be annotated with: "New worksite - petition [new receipt number] filed [date]."
9 FAM 402.10-9 (U) Interviewing and Approving H Visa Applicants
9 FAM 402.10-9(A) (U) Evidence Forming Basis for H Visa Issuance
a. (U) Before issuing a visa, posts must verify that the petition has been approved. Posts must first use the electronic Petition Information Management Service (PIMS) record created by the Kentucky Consular Center (KCC) to verify petition approval (see 9 FAM 402.10-7(B) above). Posts are able to access the details of approved NIV petitions using the PIMS Petition Report in the Consular Consolidated Database (CCD), under the Nonimmigrant Visa tab. If no record of the petition is found in PIMS, you may use the Person Centric Query Service (PCQS), via the CCD, to verify that the petition has been approved. If post finds a petition approval in PCQS that was is not in PIMS, then post should send an email to PIMS@state.gov as follows: Petition with Receipt Number <Insert Number> was found in PCQS but not in PIMS. KCC’s Fraud Prevention Unit (FPU) will research approval of the petition and, if able to confirm its approval, will make the details available through the CCD within two working days. You may not authorize a petition-based NIV without verification of petition approval either through PIMS or through PCQS.
b. (U) When presented at post, an approved Form I-129, Petition for a Nonimmigrant Worker, and a Form I-797, Notice of Action, may be used as sufficient proof to schedule an appointment, but posts should not review these forms for purposes of H visa issuance. Only PIMS or PCQS must provide the evidence forming the basis for H visa issuance.
9 FAM 402.10-9(B) (U) Approved Petition is Prima Facie Evidence of Entitlement to H Classification
(U) You should not require an approved Form I-129, Petition for a Nonimmigrant Worker, or an I-797 be presented by the applicant as evidence that the H petition has been approved. All petition approvals must be verified through the PIMS or through the PCQS. Once you have verified approval through PIMS or PCQS, consider this as prima facie evidence that the requirements for H classification, which are examined in the petition process, have been met. You may not question the approval of H petitions without specific evidence, unavailable to USCIS at the time of petition approval, that the beneficiary may not be entitled to status. A large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.
9 FAM 402.10-9(C) (U) INA 214(b) and H Visas
a. (U) H-1B aliens are excluded by law from INA 214(b). In addition, INA 214(h) provides that H-1B nonimmigrant may have "dual intent," i.e., the fact that an H-1B nonimmigrant has sought permanent residence in the United States or will be seeking such status in the future does not preclude him or her from obtaining or maintaining H-1B nonimmigrant status. The alien may legitimately come to the United States as a nonimmigrant under the H-1B classification and depart voluntarily at the end of his or her authorized period of stay, and, at the same time, lawfully seek to become a permanent resident of the United States without jeopardizing his H-1B nonimmigrant status. Consequently, your evaluation of an applicant’s eligibility for an H-1B visa must not focus on the issue of immigrant intent.
b. (U) Unlike H-1B nonimmigrants, H-1B1, H-2, and H-3 nonimmigrants are subject to INA 214(b) and are not accorded dual intent under INA 214(h). Under INA 101(a)(15)(H)(ii)-(iii), an applicant is not classifiable as an H-2A, H-2B, or H-3 nonimmigrant unless the alien has a residence abroad and no intention to abandon that residence. Thus, the fact that an H-2 or H-3 nonimmigrant has sought or plans to seek permanent residence may be considered evidence of the alien's intention to abandon his or her foreign residence.
c. (U) H-4 spouse and child derivatives of H1-B aliens are subject to INA 214(b) only if they have not been able to establish a bona fide relationship to the principal applicant. H-4 spouses and child derivatives of H-1B1, H-2, and H3 aliens are subject to the foreign residence requirement.
9 FAM 402.10-9(D) (U) Former Exchange Visitors Subject to Two-Year Foreign Residence Requirement
(U) For instructions regarding requests for waivers of the two-year foreign residence requirement by H visa applicants who are former exchange visitors and subject to the two-year residence abroad requirement of INA 212(e), see 22 CFR 40.202, and 9 FAM 302.13-2(B)(1).
9 FAM 402.10-9(E) (U) Responsibility of Consular Officers to Inform Applicants of Legal Rights
a. (U) The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (WWTVPRA) requires you to ensure that all individuals applying for H visas are made aware of their legal rights under federal immigration, labor, and employment laws. This includes information on the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States and the legal rights of immigrant victims of such crimes. A briefing on the material may be provided by any consular section employee or contractor prior to the interview. At the time of the nonimmigrant visa interview, you must confirm that a pamphlet (“Certain Employment or Education-Based Nonimmigrants”) prepared by the Department detailing this information has been received, read, and understood by the applicant. See 9 FAM 402.3-9(C) for information about WWTVPRA enforcement and consular officer responsibilities. Consular officers must enter a mandatory case note in the NIV system stating the pamphlet was provided and that the applicant indicated he or she understood its contents.
b. (U) If an H visa applicant is eligible for an in-person interview waiver and the applicant’s previous visa was issued at a time when post was adhering to the WWTVPRA requirements, post may apply the fingerprint reuse/interview waiver policies and ensure a copy of the pamphlet is returned to every issued applicant along with his or her visa.
9 FAM 402.10-10 (U) Issuing H Visas
9 FAM 402.10-10(A) (U) Numerical Limitations on Certain H Nonimmigrants
a. (U) Current fiscal year limitations on the total number of aliens who can be accorded H nonimmigrant visa classification in the categories indicated below is limited as follows:
(1) (U) Aliens classified as H-1B nonimmigrants, excluding those participating in Department of Defense (DOD) research and development or co-production projects, may not exceed:
(a) (U) 65,000 in each fiscal year;
(b) (U) 20,000 additional aliens classified as H-1B nonimmigrants who have earned a master's or higher degree from a nonprofit U.S. institution of higher education are exempted from the limitation each fiscal year;
(c) (U) Aliens classified as H-1B nonimmigrants to work in DOD research and development or co-production may not exceed 100 at any time;
(d) (U) Aliens who are employed at (or have an offer of employment from) an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization are not to be counted against these ceilings. Such aliens will be counted if they move from such a position to one which is within the ceiling applicability;
(2) (U) Aliens classified as H-2B nonimmigrants may not exceed 66,000 during any fiscal year and may not exceed 33,000 during the first 6 months of any fiscal year; and
(3) (U) Aliens classified as H-3 participants in special education exchange programs may not exceed 50 in any given fiscal year.
b. (U) These numerical limitations are tracked by USCIS which allocates a number to each alien included in a new cap-subject petition when the petition is filed. Petitioners are required to notify the appropriate USCIS Service Center Director when numbers are not used, so that they may be reassigned. Consequently, the data provided above is solely for informational purposes. You should not be concerned about the availability of visa numbers for beneficiaries of approved petitions, nor should you inform USCIS when H visa applications in affected categories are abandoned or denied.
c. (U) The dependents of principal aliens in these categories must not be counted against the numerical limitations.
9 FAM 402.10-10(B) (U) Multiple Beneficiaries
(U) More than one beneficiary may be included in an H-2A, H-2B, or H-3 petition if the beneficiaries will be performing the same service, or receiving the same training, for the same period of time and in the same location.
9 FAM 402.10-10(C) (U) Beneficiaries with More than One Employer
(U) If a nonagricultural beneficiary is performing services for or receiving training from more than one employer, each employer must file a petition unless an agent, as described in DHS regulations, files the petition.
9 FAM 402.10-10(D) (U) Substitution of Beneficiaries
a. (U) Beneficiaries, in certain circumstances, may be substituted in H-2 petitions approved on behalf of a group or for unnamed or named beneficiaries, or on H-2 petitions approved for a job offer that does not require any education, training, and/or experience. (See DHS regulation at 8 CFR 214.2(h)(5)(ix) for H-2A and 8 CFR 214.2(h)(6)(viii) for H-2B).
b. (U) Substitution Requests for Workers Already in the United States: In order to be eligible for substitution through consular processing, the original worker must not have been admitted into the United States on their issued H-2 visa. In cases where the petitioner wishes to substitute a worker who was already admitted into the United States, they must file an amended I-129 petition with USCIS.
c. (U) Substitution Requests for Workers Who Have Not Entered the United States: To substitute a worker who has not been admitted into the United States, the petitioner must provide written notification to the consular section. This notification must name both the worker who was originally issued the visa (or named on the petition) and the worker who will be replacing him or her. The petitioner must also submit evidence that the replacement worker meets any qualifications listed on the labor certification and/or petition. Replacement workers seeking substitution at the consulate must be a national of a country on the DHS H-2 H-2A or H-2B Eligible Countries list as defined in 8 CFR 214.2(h)(5)(i)(F) and 8 CFR 214.2(h)(6)(i)(E).
d (U) If the request to substitute one H-2 worker for another is approved, the consular officer must both revoke the issued visa in the NIV system and physically cancel the visa foil of the substituted worker. This will ensure that the total number of beneficiaries issued under the approved I-129 will not exceed the maximum number approved by USCIS. Consular officers should be extremely diligent in cases where USCIS approved a petition for multiple unnamed beneficiaries and where the petition includes workers from different countries to ensure that substituted workers will not yield the petitioner more H-2 workers than were approved by USCIS.
e. (U) In cases where an H-2 worker who was issued a visa was subsequently denied admission into the United States, that worker may be substituted at the request of the petitioner per the guidance listed above (paragraphs b through d), provided that the replacement worker is not already in the United States.
f. (U) Substitutions in H-2B “Returning Worker” Cases: If a petitioner named a worker on the I-129 and certified that this individual was a returning worker eligible for H-2B cap exemption, that worker may not be substituted at post. This prohibition holds true even in cases where the proposed replacement worker held previous H2-B visas. The only way a petitioner may request substitution for returning workers is by filing an amended I-129 with USCIS.
9 FAM 402.10-11 (U) Validity of H Visas
a. (U) Generally H-1B visas should be issued for the validity of the petition or per the reciprocity schedule, whichever is shorter.
b. (U) Posts are authorized to accept H visa petitions and issue visas to qualified applicants up to 90 days in advance of applicants’ beginning of employment status. Post must inform applicants verbally that they can only use the visa to apply for admission to the United States starting one week prior for H-2A beneficiaries, and ten days prior to the beginning of the approved status period for H-1B, H-2B, and H-3. In addition, such visas must be annotated, "Not valid until (ten days prior to the petition validity date).”
c. (U) When there is no gap in authorized status, an alien may obtain an H-1B visa that is valid during the time remaining on the first petition (and/or any extensions) and the validity of the second petition, and does not have to wait until 10 days before the start date of the second petition to reenter the United States.
9 FAM 402.10-11(A) (U) Validity of H-1B When There is a Change of Employer
a. (U) After changing H-1B employers in accordance with USCIS procedures for making such a change, an H-1B visa holder may continue to use his or her original H-1B visa for entry into the United States. When applying for entry during the period when the new employment petition is pending, the visa holder must present a dated filing receipt or other evidence that a new petition was filed timely in addition to the visa. When traveling after the new petition has been approved, the visa holder must present the new Form I-797, Notice of Action, evidencing the approval of the change of employer in addition to the visa.
b. (U) An H-1B applicant can change employers while in the United States provided the following criteria were met:
(1) (U) The alien was lawfully admitted to the United States;
(2) (U) The new employer filed the petition for the alien prior to the expiration of his or her authorized stay; and
(3) (U) The alien has not been employed in the United States without authorization subsequent to lawful admission but before filing such petition.
c. (U) After the filing of the new petition the H-1B visa holder is authorized to accept employment with the new employer until the petition is adjudicated. If the new petition is denied, employment must cease. If the alien's prior visa and petition have expired, the alien is not eligible to receive a new visa until the pending petition has been approved.
d. (U) If an H-1B alien who is the beneficiary of an employment-based immigrant visa petition under INA 204(a)(1)(D) changes employers or jobs, the petition and the labor certification approved for the original employer will remain valid if:
(1) (U) The alien's adjustment of status application has remained unadjudicated for 180 days or more; and
(2) (U) The new job is in the same or a similar occupational classification as the job for which the petition was filed.
9 FAM 402.10-11(B) (U) Limiting Validity of H Visas
a. (U) You may restrict visa validity in some cases to less than the period of validity of the approved petition (for example, on the basis of reciprocity or the terms of a waiver of a ground of ineligibility). In any such case, in addition to the other notations required on the H visa, posts must insert the following:
“PETITION VALID TO (date)”
b. (U) Posts should use appropriate operating instructions for annotating visas.
9 FAM 402.10-11(C) (U) Reissuance of Limited H Visas
(U) When an H visa has been issued with a validity of less than the validity of the petition or authorized period of stay, you may reissue the visa any number of times within the period allowable. If a fee is prescribed in the reciprocity schedule, you must collect the fee for each issuance of the H visa.
9 FAM 402.10-11(D) (U) Issuing Single H Visa Based on More Than One Petition
(U) If an alien is the beneficiary of two or more H petitions and does not plan to depart from the United States between engagements, you may issue a single H visa valid until the expiration date of the last expiring petition, reciprocity permitting. In such a case, the required notations from all petitions must be placed below the visa.
9 FAM 402.10-12 (U) Length and Extension of Stay
a. (U) An H-1B, H-2B or H-3 petition beneficiary may be admitted to the United States for the validity period of the petition, plus a period of up to ten days before the validity period of the petition begins and ten days after it ends. An H-2A petition beneficiary may be admitted to the United States for the validity period of the petition, plus ten days before the beginning of the approved petition and 30 days following the expiration of the approved petition. The beneficiary generally may not work, except during the validity period of the petition.
b. (U) The petitioner must request the extension of a beneficiary's stay in the United States on the same Form I-129, Petition for a Nonimmigrant Worker, used to file for the extension of the beneficiary's petition. The effective dates of the petition extension and of the beneficiary’s extension of stay must be the same. The beneficiary must be physically present in the United States at the time the extension of stay petition is filed. If the beneficiary is required to leave the United States for business or personal reasons while the extension requests are pending, the alien may apply at a consular section overseas for the visa. The approved extension of stay must be verified via PIMS or PCQS before the visa can be issued (see 9 FAM 402.10-8(F) above). When the maximum allowable period of stay in an H classification has been reached (see paragraphs below), no further extensions may be granted.
c. (U) Calculating Maximum Period of Stay: Calculating the maximum period of stay is part of the petition review conducted by USCIS, and consular officers should not review this calculation unless it appears that the information submitted with the petition is false. Total maximum period of stay for H nonimmigrants will be calculated by determining the actual total number of days an alien lawfully admitted in H status is physically present in the United States in that status. All time spent outside of the United States is, generally, subtracted and thus does not count towards the maximum allowable period of stay in H status. NOTE: Time spent as an H-4 dependent does not count against the maximum allowable period of stay available to a principal H beneficiary (or vice-versa)
d. (U) Maximum Stay for H-1B Nonimmigrants: Generally the maximum period of stay in H-1B status is six years. This is subject to the exceptions below.
(1) (U) Most H-1B visa holders can work in the United States for a maximum of 6 years, but an alien participating in a Department of Defense (DOD) research and development or co-production project may work for a maximum of ten years. Note that petition validity is usually for a maximum of 3 and 5 years, respectively. Also, other factors, such as time recapture and American Competitiveness Act in the 21st Century extensions can affect the validity period of an H-1B petition.
(2) (U) Under the American Competitiveness in the 21st Century Act (“AC21,” Public Law 106-313), USCIS may approve an H-1B petition for an unlimited number of times beyond the 6 year minimum in 3-year increments if the alien is the beneficiary of an approved employment-based immigrant petition, but is unable to adjust status due to unavailability of immigrant visa numbers. Additionally, USCIS may approve the H-1B petition in 1-year increments beyond the initial 6-year maximum if 365 days or more have elapsed since the filing of a labor certification or an immigrant petition on the alien's behalf. The AC21 law also provides the ability for certain H-1B nonimmigrants to switch employers upon the new employer's filing of an H-1B petition on the alien's behalf, without waiting for the petition to be approved. See AC21 section 105.
(3) (U) The limitation on total period of stay does 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 is seasonal or intermittent, or is for an aggregate of six months or less per year, nor to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. These exceptions may not apply (and thus the maximum period of stay may still be enforced) if the principal alien's dependents have been living continuously in the United States in H-4 status. The alien must provide clear and convincing proof (e.g., evidence such as arrival and departure records, copies of tax returns, records of employment abroad) that he or she qualifies for these exceptions.
e. (U) Maximum Stay for H-2A and H-2B Nonimmigrants: An extension of stay for the beneficiary of an H-2A or H-2B petition generally may be authorized for the validity of the labor certification or for a period of up to one year. The alien’s total period of stay may not exceed three years, except in the U.S. Virgin Islands, where the alien’s total period of stay may not exceed 45 days.
f. (U) Maximum Stay for H-3 Nonimmigrants: An extension of stay may be authorized for the length of the training program or for a total period of stay not to exceed two years for an H-3 trainee, or for a total period of stay not to exceed 18 months for an H-3 participant in a special education exchange program.
9 FAM 402.10-13 (U) Readmission After Maximum Total Period of Stay Has Been Reached
a. (U) A nonimmigrant who has spent the maximum allowable period of stay in the United States in H and/or L status may not be issued a visa or be readmitted to the United States under the H or L visa classification, nor may a new petition, extension, or change of status be approved for that alien under INA 101(a)(15)(H) or INA 101(a)(15)(L), unless the 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 category, or unless the exception under AC21 described above at 9 FAM 402.10-12 paragraph d(2) applies.
b. (U) All time spent outside of the United States is, generally, subtracted and thus does not count towards the maximum allowable period of stay in H-1B or L visa status; however, it does not count toward fulfillment of the required time abroad. The required periods of residence abroad prior to readmission for H nonimmigrants who have reached their maximum period of stay are as follows. (See 9 FAM 402.10-13(A) and (B) below.)
9 FAM 402.10-13(A) (U) H-1B Nonimmigrants
(U) An H-1B alien who has reached his or her maximum allowable period of stay in H-1B visa status must have resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year in order to re-qualify.
9 FAM 402.10-13(B) (U) H-2A, H-2B, and H-3 Nonimmigrants
a. (U) An H-2A or H-2B applicant who has spent the maximum allowable period of time in the United States in H status must have resided and been physically present outside the United States for the immediate prior three months before he or she may be granted H-2A or H-2B status. Additionally, the amount of time that will serve to interrupt the accrual of the three-year limitation on H-2A or H-2B status is affected by any absence from the United States. If the accumulated length of stay in the United States is 18 months or less, then an absence of 45 days from the United States will be interruptive. If the accumulated length of stay is more than 18 months, then an absence of two months, but less than three months will be interruptive. Any time the H-2 worker is outside the United States for at least 3 months, his or her 3-year limit restarts from the beginning upon the worker's readmission to the United States in H-2 status.
b. (U) An H-3 applicant who has spent the maximum allowable period of time in the United States in H status must have resided and been physically present outside the United States for the immediate prior six months before he or she may be granted H-3 status again.
9 FAM 402.10-14 (U) SpouseS and Children of H Aliens
9 FAM 402.10-14(A) (U) Derivative Classification and Validity
a. (U) The spouse and children of a principal alien classified H-1B, H-1B1, H-2A, H-2B, or H-3, who are accompanying or following to join the beneficiary in the United States, are entitled to H-4 classification. In general, H-4 derivatives are subject to the same visa validity, period of admission, or limitation of stay as the principal alien. An exception to this is when a principal alien's visa has been limited according to the clearance validities instructions in 9 FAM 304.2-5(C)(2); in this instance derivative applicants may still receive the maximum visa validity permitted by either the reciprocity schedule or the petition validity.
b. (U) It is not required that the spouse and children of H-1 nonimmigrants demonstrate that they have a residence abroad to which they intend to return. However, H-4 dependents of H-2 and H-3 aliens are subject to the residence abroad requirement in INA 101(a)(15)(H)(ii) and (iii). See 9 FAM 402.10-9(C) above for additional guidance on 214(b) applicability for derivatives.
c. (U) If an H-1B, H-2B, or H-3 alien did not reside continually in the United States, but has maintained his or her family in the United States in H-4 status, he or she might not qualify for one of the exceptions to the maximum allowable periods of stay described in 9 FAM 402.10-12 above.
9 FAM 402.10-14(B) (U) Verifying Principal Alien is Maintaining Status
a. (U) When an alien applies for an H-4 visa to follow to join a principal alien already in the United States, you must be satisfied that the principal alien is maintaining H status before issuing the visa. There will be certain circumstances when the principal does not have a valid visa (i.e., the principal changed to H-1B status in the United States, extended status without seeking a new visa, or is exempt from visa requirements).
b. (U) If you have any doubt about the principal alien's status, a PIMS record of petition approval or change of status must be obtained, or the information on the principal alien may be obtained through PCQS. In the event neither PCQS nor PIMS contains the record, send an email to PIMS@state.gov. KCC’s Fraud Prevention Unit (FPU) will research approval of the petition and, if able to confirm its approval, will make the details available through the CCD within two working days.
c. (U) When adjudicating the visa, utilize the petition validity or limitation of stay (via ADIS) to determine the visa validity and annotation for the derivative H-4.
9 FAM 402.10-14(C) (U) Employment in United States by H-4 Dependent Aliens Prohibited
(U) Aliens in H-4 status are not authorized to accept employment while in the United States other than when authorized in pursuant in INA 106 (relating to battered spouses). The spouse and children of H nonimmigrants may not accept employment unless they are approved for work authorization by USCIS or they hold a work-authorized classification other than H-4 (i.e., if the spouse of an H-1B holder is also an H-1B beneficiary). You must take this into account in evaluating whether family members have furnished adequate evidence of their support while in the United States. H-4 aliens are permitted to study during their stay in the United States.
9 FAM 402.10-14(D) (U) Using B-2 instead of H-4 Classification
(U) Although the H-4 classification is provided specifically for the spouse and children of H nonimmigrants, if their planned period of stay is to be brief, and if they overcome the presumption of immigrant intent under INA 214(b) and satisfy the requirements of INA 101(a)(15)(B)(including foreign residence requirement), such aliens could also travel as temporary visitors using a B-1/B-2 visa. In addition, if the spouse or child already has a valid B-2 visa and it would be inconvenient or impossible for him or her to apply for an H-4 visa, you need not require the latter visa. As always, consular officers should be aware that it is possible for a person to qualify for more than one nonimmigrant visa classification at the same time.
9 FAM 402.10-15 (U) Domestic Employees of H Nonimmigrants
(U) Personal or domestic servants seeking to accompany or follow to join H nonimmigrant employers may be issued B-1 visas, provided they meet the requirements of 9 FAM 402.2-5(D)(3).
9 FAM 402.10-16 (U) Return Transportation if H-1B or H-2B Alien's Employment Terminated Involuntarily
(U) If an H-1B or H-2B nonimmigrant is dismissed from employment before the end of his or her authorized admission by the employer who sought the alien's H-1B or H-2B status, the employer is responsible for providing the reasonable cost of transportation to the alien's last place of foreign residence. This requirement does not apply if the alien voluntarily terminates his or her employment.
9 FAM 402.10-17 (U) LABOR VIOLATIONS BACKGROUND
a. (U) Your primary responsibility in visa adjudication is to carry out the requirements of U.S. immigration law. Occasionally, you may discover indications of possible violations of other U.S. laws, even if you issue a visa. This note outlines types of possible violations of U.S. labor law, and tells you how to report them to the Department of Labor (DOL). In most of these situations, you likely would still issue a visa. (See 9 FAM 402.10-7(C) for information on when petitions must be returned to USCIS for possible revocation.)
b. (U) DOL's Wage and Hour division is responsible for ensuring that foreign workers are receiving the wages promised on the Labor Condition Application (LCA) and are working in the occupation and at the location specified. If you uncover information indicating a violation of U.S. immigration or labor laws, as outlined below, this information must be reported to DOL for potential enforcement. Fulsome reporting of potential labor violations is consistent with the executive branch's policy, laid out in the Executive Order on Buy American and Hire American (E.O. 13788), to rigorously enforce and administer all laws relating to workers entering the United States from abroad, in order to create higher wages and employment rates for workers in the United States.
9 FAM 402.10-17(A) Unavailable
9 FAM 402.10-17(B) Unavailable
9 FAM 402.10-17(C) (U) What Will Department of Labor (DOL) Do With a Complaint?
(U) If DOL finds that a labor violation has occurred, it may impose penalties in the form of back pay reimbursement to injured parties, fines to the company, and/or a ban on the filing of further labor certifications by the company. In some cases, the DOL may apply the ban to any company associated with the violator.
9 FAM 402.10-17(D) (U) Information Available From Department of Labor (DOL)
a. (U) DOL has printed business cards with information on legal protections for H-1B and H-2 workers. These cards are a simple and effective way to get the word out to each beneficiary. You may contact your VO/F liaison for more information these cards. Specify the type of card (H-1B or H-2), the quantity of each type, and the mailing address at post.
b. (U) Administrative actions on labor violations may be found at OALJ on DOL’s website. Individuals wishing to file labor violation complaints can find instructions at H-1B Nonimmigrant Information on DOL’s website.
c. (U) DOL has helpful Fact Sheets on immigration related issues and particularly on H-1B issues. See DOL’s website at Topical Fact Sheet Index.