9 FAM 402.10 (U) TEMPORARY WORKERS AND TRAINEES (2024)

UNCLASSIFIED(U)

9 FAM 402.10

(U) Temporary Workers and Trainees - H Visas

(CT:VISA-1939; 03-04-2024)
(Office of Origin: CA/VO)

9 FAM 402.10-1 (U) STATUTORY ANDREGULATORY Authority

9 FAM 402.10-1(A) (U)Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

(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) (8U.S.C. 1184(h)).

9 FAM 402.10-1(B) (U) Code ofFederal Regulation

(CT:VISA-680; 09-24-2018)

(U) 8 CFR 214.2(h); 22 CFR 41.53.

9 FAM 402.10-1(C) (U) PublicLaw

(CT:VISA-1474; 02-17-2022)

(U) Immigration and NationalityAct of 1952 (Public Law 82-414); Sections 222 and 223 of the Immigration Act of1990 (Public Law 101-649); American Competitiveness in the Twenty-first CenturyAct of 2000 (Public Law 106-313); Chile-United States and Singapore-UnitedStates Free Trade Agreements of 2003 (Public Law 108-78).

9 FAM 402.10-2 (u) Overview of HVisas

(CT:VISA-1623; 09-29-2022)

(U) The Immigration andNationality Act of 1952 (Public Law 82-414 of June 27, 1952) created the H NIVclassification in INA 101(a)(15)(H) for temporary workers and trainees. INA101(a)(15)(H) has since been amended numerous times. The H NIV classificationis for persons who want to enter the United States for employment lasting afixed time, either as a professional in aspecialty occupation, a fashion model of distinguished merit and ability, atemporary agricultural or non-agricultural worker, or a trainee or specialeducation visitor. Most of these visas require the prospective employer tofirst file a petition with USCIS.

9 FAM 402.10-3 (U)Classification Codes

(CT:VISA-1828; 09-12-2023)

(U) 22 CFR 41.12 identifies thefollowing classification symbols for individuals engaged in temporary work ortrainee in accordance with INA 101(a)(15)(H):

9 FAM 402.10-4 (U) HClassifications and Prerequisites for Filing H Petitions

9 FAM 402.10-4(A) (U) H-1ANonimmigrants

(CT:VISA-1474; 02-17-2022)

(U) The H-1A visa classificationwas eliminated with the repeal of INA 101(a)(15)(H)(i)(a) by Section 2(c) ofthe Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95).

9 FAM 402.10-4(B) (U) H-1BNonimmigrants

(CT:VISA-1623; 09-29-2022)

a. (U) The H-1B classificationapplies to an applicant who is coming temporarily to the United States toperform services in one of the categories described below. For information onH-1B1 classification for nationals of Chile and Singapore deriving from freetrade agreements see 9 FAM402.10-5 below.

(1) (U) Applicantsin Specialty Occupations: Applicants who are qualified to performservices in a specialty occupation as described in INA 214(i)(1) and (2) (otherthan agricultural workers, described in INA 101(a)(15)(H)(ii)(A) or applicantsqualifying under INA 101(a)(15)(O) or (P)) are classifiable as H-1Bnonimmigrants.

(a) (U) A specialty occupationrequires the attainment of a bachelor’s or higher degree in the specificspecialty (or its equivalent) for entry into the occupation. An applicantseeking to work in a specialty occupation must have completed such a degree orhave experience in the specialty equivalent to the completion of the degree (asdetermined by USCIS) and expertise in the specialty through progressivelyresponsible positions relating to the specialty.

(b) (U) The criteria forqualifying as an H-1B physician are found in subparagraph 3 below.

(c) (U) Before filing a petitionwith USCIS on behalf of an individual in aspecialty occupation, the petitioner must have obtained a certification fromDOL that it has filed a labor condition application (LCA) as specified in INA212(n)(1). The filing of an LCA does not constitute a determination that theoccupation in question is a specialty occupation. USCIS is responsible for determining whether theapplication involves a specialty occupation and whether the individual for whomH-1B status is sought qualifies to perform services in that occupation.

(2) (U) CertainFashion Models: H-1B classification may be granted to an applicant whois 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 highlevel of achievement in the field of fashion modeling evidenced by a degree ofskill and recognition substantially above that ordinarily encountered to theextent that a person described as prominent is renowned, leading, or well-knownin the field. Such an applicant must also be coming to the United States toperform services which require a fashion model of prominence. The petitionerof a fashion model of distinguished merit and ability must file an LCA (see 9 FAM402.10-6 below) with DOL before filing a petition for the applicant.

(3) (U) Physicians:

(a) (U) Graduatesof Foreign or U.S. Medical Schools: A foreign "graduate of amedical school," as defined in INA 101(a)(41), may enter the United Statesas an H-1B nonimmigrant to perform services as a member of the medicalprofession if they have a full and unrestricted license to practice medicine ina foreign state or if they have graduated from medical school in either theUnited States or in a foreign state. In addition, if they will provide directpatient care, they must generally have a valid medical license in the state ofintended employment; however, USCIS may grant a limited-validity petition toallow the beneficiary time to obtain a professional license. An individualinvolved in a medical residency program, for example, may have an approved H-1Bpetition, even though they do not yet have a full and unrestricted U.S. medicallicense.

(b) (U) Comingto Teach or Conduct Research: A foreign physician may also beclassified as an H-1B nonimmigrant if they are coming to the United Statesprimarily to teach or conduct research, or both, at or for a public ornonprofit private educational or research institution or agency. Such an applicantmay only engage in direct patient care that is incidental to their teachingand/or research.

(c) (U) ApplicantPhysicians Not Eligible for H-2B or H-3 Classification: Foreignphysicians who are coming to the United States to perform medical services orreceive graduate medical training are statutorily ineligible to receive H-2B orH-3 status.

(4) (U) Applicantsin Department of Defense Cooperative Research andDevelopment or Co-production Projects: Applicants coming to the UnitedStates, pursuant to INA 222, to participate in a cooperative research anddevelopment project or a co-production project under a government-to-governmentagreement administered by DOD are classifiable as H-1B nonimmigrants. Such applicantsmust perform services of an exceptional nature requiring exceptional merit andability. For purposes of this classification, services of an exceptionalnature must be those which require a bachelor's degree or higher (or itsequivalent, as determined by USCIS) to perform the duties. The requirement forfiling an LCA with DOL does not apply to petitions involving DOD cooperativeresearch and development or co-production projects.

b. (U) GeneralLicensure Requirement: The requirements for classification as an H-1Bnonimmigrant professional may or may not include a license because states havedifferent rules in this area. If a state permits applicants to take alicensing exam while in nonimmigrant status, then USCIS will generally requirea license before they will approve the H-1B petition. However, some states donot permit applicants to take licensing exams until they enter the UnitedStates 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 notalready hold a license to practice in the United States if the applicantintends to work in a state that requires a taxpayer identification number as aprerequisite to licensure.

9 FAM 402.10-4(C) (U) H-1CNurse in Health Professional Shortage Area

(CT:VISA-1474; 02-17-2022)

(U) This classification expired asof December 20, 2009.

9 FAM 402.10-4(D) (U) H-2ANonimmigrants

(CT:VISA-1623; 09-29-2022)

a. (U) The H-2A classificationapplies to applicants who are coming temporarily to the United States toperform agricultural work of a temporary or seasonal nature.

b. (U) The petitioner must filea temporary agricultural labor certification with DOL before filing a petitionwith USCIS to classify a beneficiary as anH-2A nonimmigrant.

c. (U) Except as noted in 9 FAM402.10-7(C) below, USCIS generally mayonly approve a Form I-129, Petition for a Nonimmigrant Worker, filed on behalfof an H-2A worker who is a national of a country designated as an H-2A programeligible country. However, USCIS may stillapprove H-2A petitions filed for nationals of countries not designated asparticipating countries, if such an approval is in the U.S. interest, as notedin 9 FAM402.10-7(C paragraph c, below.

(1) (U) The designatedcountries can be found on the USCIS H-2A website.

(2) (U) Countries aredesignated as H-2A program participating countries based on factors thatinclude the following:

(a) (U) The country’scooperation with respect to the issuance of travel documents for citizens,subjects, nationals, and residents of that country who are subject to a finalorder of removal from the United States;

(b) (U) The number of final andunexecuted orders of removal against citizens, subjects, nationals, andresidents of that country;

(c) (U) The number of orders ofremoval executed against citizens, subjects, nationals, and residents of thatcountry; and

(d) (U) Such other factors asmay serve U.S. interest.

(3) (U) Posts will be advisedwhen there are changes to the list of participating countries as well as theeffective dates for their formal participation in the program. Designationswill be valid for one year from the date of publication of the list of eligiblecountries in the Federal Register. On a case-by-case basis, DHS may allow aworker from a country not on the participating country list to be eligible forthe H-2A program if, among other considerations, such participation is in theinterest of the United States.

(4) (U) Posts recommendingthat a country obtain, maintain, or lose status as an H-2A program participantshould contact the responsible regional country desk officer and CA/VO/F/IE asearly in the calendar year as possible.

d. (U) Since 2016, visas havebeen required for certain nationals who previously could engage in agriculturalwork without a visa. This included British, French, or Dutch nationals, andnationals of Antigua, Barbados, Grenada, Jamaica, or Trinidad and Tobago, whohad a residence in British, French, or Dutch territory located in the adjacentislands of the Caribbean area, or had a residence in Antigua, Barbados,Grenada, Jamaica, or Trinidad and Tobago. These individuals generally must nowapply for H-2A visas to engage in agricultural work in the United States. TheDepartment and the DHS published final rules codifying this requirement on July6, 2018.

9 FAM 402.10-4(E) (U) H-2BNonimmigrants

(CT:VISA-1623; 09-29-2022)

a. (U) The H-2B classificationapplies to applicants who are coming temporarily to the United States toperform nonagricultural services or labor of a temporary or seasonal nature,other than graduates of medical schools coming to provide medical services, ifqualified persons capable of performing such work cannot be found in the UnitedStates. USCIS defines temporary services or labor as those that will be neededby the employer for a limited period; i.e., where the job will end in the near,definable future. Such a period generally will be limited to one year or less,but a one-time event could last up to three years. The employer’s needfor services or labor must be on a one-time basis, seasonal, for a peak load,or intermittent basis.

b. (U) This classificationrequires a temporary labor certification issued by DOL or the Government ofGuam (in certain cases involving employment on Guam), before the filing of a petition with USCIS to classify a beneficiary or beneficiaries inthe H-2B classification. You do not have the authority to attempt to interpretDOL regulations or question DOL's decision to approve a temporary laborcertification.

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 toindividuals who are nationals of a country designated as an H-2B programeligible country. Employers petitioning for nationals of a country not designatedas a program eligible country must establish additional eligibility criteria.See 9FAM 402.10-7(C) paragraph c below formore information on nationals of non-program eligible countries.

(1) (U) The designatedcountries can be found on the USCIS H-2B website.

(2) (U) Countries weredesignated as H-2B program participating countries based on:

(a) (U) The country’scooperation with respect to the issuance of travel documents to citizens,subjects, nationals, and residents of that country who are subject to a finalorder of removal from the United States;

(b) (U) The number of final andunexecuted orders of removal against citizens, subjects, nationals, andresidents of that country;

(c) (U) The number of orders ofremoval executed against citizens, subjects, nationals, and residents of thatcountry; and

(d) (U) Such other factors asmay serve U.S. interest.

(3) (U) Posts will be advisedwhen there are changes to the list of participating countries as well as theeffective dates for formal participation in the program. Designations will bevalid for one year from the date of publication of the list of eligible countriesin the Federal Register. On a case-by-case basis, DHS may allow a worker froma country not on the participating country list to be eligible for the H-2Bprogram if, among other considerations, such participation is in the interestof the United States.

(4) (U) Posts recommendingthat a country obtain, maintain, or lose status as an H-2B program participantshould contact the responsible country desk officer from the regional bureauand CA/VO/F/IE as early in the calendar year as possible.

d. (U) ApplicantComing to Train Others and/or Organize Business: An applicant seekingto enter the United States to train others or to organize a business operation iscoming to a temporary position and is classifiable as an H-2B, if otherwisequalified. For example, a cook coming to train other cooks or organize akitchen may be classified as an H-2B, but a cook coming to assume a job of apermanent nature may not be accorded H-2B or any other nonimmigrant status andwould have to qualify for an IV.

e. (U) Employeesof United States Exhibitors: Employees of United States exhibitors oremployers at international fairs or expositions held in the United States maybe classifiable as H-1B or H-2B temporary workers if eligibility requirementsare met.

9 FAM 402.10-4(F) (U) H-3Nonimmigrants

(CT:VISA-1846; 10-05-2023)

a. (U) The H-3 classificationapplies to an applicant who is a temporary worker who is invited by anindividual, a business, or an organization for purposes of receivinginstruction and training other than graduate medical education or training.The training program must be one that is not designed primarily to provideproductive employment beyond that which is incidental and necessary to thetraining. The trainee must have a foreign residence to which they intend toreturn. See INA 101(a)(15)(H)(iii); 8 CFR 214.2(h)(7).

b. (U) Trainees:The regulatory criteria for an H-3 petition approval are that the proposedtraining is not available in the beneficiary’s own home country, theywill not be placed in a position that is in the normal operation of thebusiness in which U.S. citizen and LPR workers are regularly employed, thatthere will be no productive employment unless it is incidental and necessary tothe training, and the training will benefit the beneficiary in pursuance of acareer outside of the United States. See 8 CFR 214.2(h)(7)(ii)(A).

c. (U) Participantsin Special Education Exchange Program: A special education exchangeprogram, described in INA 223, allows up to 50 applicants per year to come tothe United States in H-3 visa status to receive practical training andexperience in the education of children with physical, mental, or emotionaldisabilities. The length of stay in the United States is normally limited to18 months. Participants in this program will either be nearing completion of abachelor’s level degree or higher degree in special education, or alreadyhave a degree, or they will have extensive prior training or experience in thisfield. See 8 CFR 214.2(h)(7)(iv).

d. (U) CertainNurses Eligible for H-3 Classification: A petitioner may seek H-3status for a nurse if it can be established that there is a genuine need forthe nurse to receive a brief period of training that is unavailable in the applicant'snative country, and that such training is designed to benefit the nurse and theforeign employer upon the nurse's return to their country of origin. For anurse to qualify for H-3 classification, certain criteria established by USCIS must be met. These include having a full andunrestricted license to practice in the country where the applicant obtained theirnursing education (unless in the United States or Canada) and the petitioner'scertification that, under the laws where the training will take place, thepetitioner is authorized to give such training and the applicant to receiveit. See 8 CFR 214.2(h)(7)(i)(B).

e. (U) MedicalStudents Qualifying as H-3 Externs: A hospital approved by the AmericanMedical Association or the American Osteopathic Association for either aninternship or residency program may petition to classify a student attending amedical school abroad as an H-3 trainee if the applicant will engage inemployment as an extern during their medical school vacation. See 8 CFR214.2(h)(7)(i)(A).

9 FAM 402.10-4(G) (U)Temporary Nature of Position or Training for H Nonimmigrants

(CT:VISA-1623; 09-29-2022)

a. (U) H-1BNonimmigrants: An applicant may be classified as an H-1B nonimmigrantwhether the position to be temporarily occupied is permanent or temporary innature. For example, a foreign professor coming to fill a position on thefaculty of a U.S. university could be classified H-1B.

b. (U) H-2Aand H-2B Nonimmigrants: An H-2A or H-2B nonimmigrant must be coming tofill a position that is temporary in nature. They may not be classified H-2Aor H-2B to occupy a position of permanent or indefinite duration. In certaincirc*mstances, however, sheepherders who in permanent or indefinite positions,may be eligible for H-2A classification.

c. (U) H-3Nonimmigrants: An applicant may not be classified H-3 if their trainingprogram is primarily designed to provide productive employment, beyond thatwhich is incidental and necessary to the training, except in the case of aparticipant in a special education exchange program. (See 9 FAM402.10-4(F) above.)

d. (U) UsingOther Classifications instead of H Classification: For a discussion ofwhether a B-1 in lieu of H classification may be used, see 9 FAM402.2-5(F). For a discussion of the TN and TD classifications for USMCA professionals,see 9 FAM402.17.

9 FAM 402.10-5 (U) H-1B1 FreeTrade Agreement Nonimmigrant Professionals

9 FAM 402.10-5(A) (U) Overviewof Free Trade Agreements

(CT:VISA-1939; 03-04-2024)

a. (U) The President signedfree trade agreements (FTAs) with Chile and Singapore on September 3, 2003.The FTAs with Chile and Singapore were authorized by Congress in Public Law108-77 and Public Law 108-78, respectively. Both agreements became effective onJanuary 1, 2004.

b. (U) The FTAs with Chile andSingapore include immigration provisions that allow for the temporary entry ofcertain professionals into the territory of the trading partners to facilitatefree trade opportunities, as provided for in Chapter 14 of the U.S.-ChileAgreement and in Chapter 11 of the U.S.-Singapore Agreement. The temporaryentry chapters in both agreements establish four categories of nonimmigrantentry for business purposes. Three of the categories, business visitors,traders and/or investors, and intra-company transferees, qualify for visasunder the existing B-1, E-1/E-2, and L-1 visa categories. The FTAs establish anew fourth category of temporary entry for nonimmigrant professionals, theH-1B1 category.

9 FAM 402.10-5(B) (U) H-1B1Applications Subject to Numerical Limitations

(CT:VISA-1939; 03-04-2024)

a. (U) Annual numerical limitsare set for noncitizens who may obtain H-1B1 visas. 1,400 professionals inspecialty occupations who are nationals of Chile and 5,400 professionals inspecialty occupations who are nationals of Singapore may enter the UnitedStates annually. These numerical limits fall within and are registered againstthe existing annual numerical limit (currently 65,000) for H-1B applicants.Only principals are counted against each country’s respective numericallimitation. Initial applications for H-1B1 classification are counted againstthe H-1B1 annual numerical limitations, as is each renewed labor conditionapplication (LCA).

b. (U) At the end of eachfiscal year, unused H-1B1 numbers will be returned to that year’s totalH-1B global numerical limit and will be made available to H-1B applicants.

c. (U) USCIS is required to keep a numerical count of theH-1B1 visas issued. The Office of Visa Services (CA/VO) monitors the numberused based on workload data. On a periodic basis, CA/VO provides thisinformation to USCIS.

9 FAM 402.10-5(C) (U)Applicants Subject to Labor Condition Application

(CT:VISA-1939; 03-04-2024)

(U) Employers must submit a laborcondition application (LCA) for foreign workers of Chilean or Singaporeannationality under the H-1B1 program. If the employee applies for an H-1B1 visaabroad, rather than changing status withUSCIS, the law requires DOL to certify to the Department that 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 theapplicant together with a written offer of employment. The applicant willpresent a certified copy of the LCA, clearly annotated by the employer as“H-1B1 Chile” or “H-1B1 Singapore,” as proof of filing with the visa application.

9 FAM 402.10-5(D) (U) NoPetition Required

(CT:VISA-1846; 10-05-2023)

(U) An employer of an H-1B1professional is not required to file a petition with USCIS. Instead, anemployee will present evidence for classification directly to you with the visaapplication.

9 FAM 402.10-5(E) (U) H-1B1Professionals in Specialty Occupations

(CT:VISA-1623; 09-29-2022)

a. (U) The H-1B1 categoryallows for the entry of nonimmigrant professionals in “specialtyoccupations.” The definition of “specialty occupation” setforth in both FTAs is presently identical to the regulatory definition forH-1Bs; i.e., an occupation that requires:

(1) (U) Theoretical andpractical application of a body of specialized knowledge; and

(2) (U) Attainment of abachelor’s or higher degree in the specific specialty (or its equivalent)as a minimum for entry into the occupation in the United States” (8 CFR214.2). You should refer to this section for guidance in connection with anapplicant’s qualifications as an H-1B1 professional.

b. (U) Both agreements allowfor alternative credentials for certain professions. The United States hasagreed to accept alternative credentials for Chilean and Singaporean nationalsin the occupations of Disaster Relief Claims Adjuster and Management Consultant.Disaster Relief Claims Adjusters must have a baccalaureate degree, Licenciaturadegree, or Titulo Profesional and completion of training in the appropriateareas of insurance adjustment pertaining to disaster relief claims or threeyears' experience in claims adjustment and successful completion of training inthe appropriate areas of insurance adjustment pertaining to disaster reliefclaims. Management Consultants must have a baccalaureate degree, Licenciaturadegree, or Titulo Profesional, even if in an unrelated discipline. If aManagement Consultant has a degree in an unrelated discipline, the applicant additionallymust have 3 years of experience in a field or specialty related to theconsulting agreement. For Chilean nationals only, Agricultural Managers andPhysical Therapists can also qualify with a combination of a post-secondarycertificate requiring three years of study in the specialty and three years'experience in lieu of the standard degree requirements. You may accept specifieddocumentary evidence of alternative credentials.

9 FAM 402.10-5(F) (U)Temporary Entry of FTA Professionals

(CT:VISA-1846; 10-05-2023)

a. (U) Both agreements providefor the temporary entry of professionals into the United States. Temporaryentry is defined in both agreements as “an entry into the United Stateswithout the intent to establish permanent residence.” You must be satisfiedthat the applicant’s proposed stay is temporary. A temporary period hasa reasonable, finite end that does not equate to permanent residence. Thecirc*mstances surrounding an application should clearly and convincinglyindicate that the applicant’s temporary work assignment in the UnitedStates will end predictably and that the applicant will depart upon completionof the assignment. An intent to immigrate in the future, which is in no wayconnected to the proposed immediate trip, need not in itself result in afinding that the immediate trip is not temporary. An extended stay, even interms of years, may be temporary, if there is no immediate intent to immigrate.

b. (U) H-1B1 nonimmigrantprofessionals are admitted for one year renewable indefinitely, if the applicantcan demonstrate that they do not intend to remain or work permanently in theUnited States.

9 FAM 402.10-5(G) (U)Licensing Requirements

(CT:VISA-1316; 07-15-2021)

(U) For admission into the UnitedStates in a specialty occupation, an applicant must meet the academic andoccupational requirements. However, the requirements for classification as anH-1B1 nonimmigrant professional do not include licensure. Licensure topractice a given profession in the United States is a post-entry requirementsubject to enforcement by the appropriate state or other sub-federalauthority. Proof of licensure to practice in a profession in the United Statesmay be offered along with a job offer letter, or other documentation in supportof an application for an H-1B1 visa. However, admission and or classificationmust not be denied based solely on the fact that the applicant does not alreadyhold a license to practice in the United States.

9 FAM 402.10-5(H) (U) H-1B1Visa Application Procedures

(CT:VISA-1623; 09-29-2022)

a. (U) A national of Chile orSingapore must meet the general academic and occupational requirements for theposition pursuant to the definition cited. Proof of alternative credentialsmay be submitted for certain professions as discussed in 9 FAM402.10-5(E) above.

b. (U) An applicant must submitevidence that their employer has filed an LCA with DOL covering theapplicant’s position. A certified form ETA-9035 clearly annotated as“H-1B1 Chile” or “H-1B1 Singapore” must be submitted asevidence of filing.

c. (U) An applicant mustsubmit evidence that the employer has paid any applicable fee imposed.

d. (U) An applicant must submitevidence that their stay in the United States will be temporary (a letter orcontract of employment should be evidence that the employment is being offeredon a temporary basis).

e. (U) An applicant must paythe Machine Readable Visa (MRV) fee or provide proof of payment.

9 FAM 402.10-6 (U) LaborCondition Application for H-1B Nonimmigrants

(CT:VISA-1939; 03-04-2024)

a. (U)Before filing a FormI-129, Petition for a Nonimmigrant Worker, with USCIS for an H-1B nonimmigrant (other than an applicantin a Department of Defense research and development or co-production project),the employer must file a labor condition application (LCA) with DOL. Employersmust submit the LCA to DOL electronically through the Foreign Labor ApplicationGateway (FLAG). The labor condition application must state, among otherthings, that:

(1) (U) The employer will paythe beneficiary a wage which is no less than the wage paid to U.S. workers withsimilar experience and qualifications for the specific employment position inquestion or the prevailing wage for the occupational classification in thegeographic area of employment, whichever is greater;

(2) (U) The employer willprovide working conditions for the applicant-beneficiary that will notadversely affect the working conditions of workers similarly employed; and

(3) (U) There is no currentstrike or lockout because of a labor dispute in the occupational classificationat the place of employment.

b. (U) Additional restrictionsare placed on any employer that is an “H-1B dependent employer,” asdefined in INA 212(n)(3). An “H-1B dependent employer” generally,must make the following additional attestations to the DOL when filing an LCA:

(1) (U) It has taken goodfaith steps to recruit U.S. workers (defined as U.S. citizens or nationals, LPRs,refugees, asylees, or other immigrants authorized to be employed in the UnitedStates (i.e., workers other than nonimmigrant applicants)) using industry-widestandards and offering compensation that is at least as great as those offeredto the H-1B nonimmigrant;

(2) (U) It has offered the jobto any U.S. worker who applies and is equally or better qualified for the jobthat is intended for the H-1B nonimmigrant;

(3) (U) It has not“displaced” any U.S. worker employed within the period beginning 90days before the filing of the H-1Bpetition and ending 90 days after its filing. A U.S. worker is displaced ifthe worker is laid off from a job that is essentially the equivalent of the jobfor which an H-1B nonimmigrant is sought; and

(4) (U) It will not place anH-1B worker with another employer unless it has inquired into whether theother employer has displaced or intends to displace a U.S. worker within 90days before or after the placement of the H-1B worker and has no knowledge tothe contrary.

c. (U) If an H-1B worker ischanging places of employment outside theMetropolitan Statistical Area of the existing LCA, the employer mustfile a new LCA and may be required to file a new or amended H-1B petitionbefore the H-1B worker commences services at the new place of employment. Formore information on petitioner and beneficiary requirements when there is achange of employment, see 9 FAM402.10-8 below.

9 FAM 402.10-7 (U) DHS PEtitionadjudications

9 FAM 402.10-7(A) (U) DHSResponsible for Adjudicating H Petitions

(CT:VISA-1623; 09-29-2022)

a. (U) By mandating apreliminary petition process, Congress placed responsibility and authority withDHS to determine whether the foreign worker meets the required qualificationsfor H status.

b. (U) You generally must notrequest the Department to provide status reports on petitions filed with DHS,nor must you contact DHS directly for such reports. As an alternative, you maysuggest that the applicant communicate with their petitioner. You should emailVO/F if you receive a case with public relations significance.

9 FAM 402.10-7(B) (U)Numerical Limitations on Certain H Nonimmigrants

(CT:VISA-1623; 09-29-2022)

a. (U) Current fiscal yearlimitations on the total number of applicants who can be accorded H NIV classificationin the categories indicated below is limited as follows:

(1) (U) Applicants classifiedas H-1B nonimmigrants, excluding those participating in Department of Defense(DOD) research and development or co-production projects, may not exceed 65,000in each fiscal year; plus 20,000 additional applicants classified as H-1Bnonimmigrants who have earned a master's or higher degree from a public ornonprofit U.S. institution of higher education are exempted from the limitationeach fiscal year. Additionally,

(a) (U) Applicants classified asH-1B nonimmigrants to work in DOD research and development, or co-productionmay not exceed 100 at any time;

(b) (U) Applicants who areemployed at (or have an offer of employment from) an institution of highereducation, a related or affiliated nonprofit entity, or a nonprofit orgovernmental research organization are not to be counted against theseceilings. Such applicants will be counted if they move from such a position toone which is within the ceiling applicability;

(2) (U) Applicants granted newpetitions as H-2B nonimmigrants may not exceed 66,000 during any fiscal yearand may not exceed 33,000 during the first 6 months of any fiscal year; and

(3) (U) Applicants classifiedas H-3 participants in special education exchange programs may not exceed 50 inany given fiscal year.

b. (U) USCIS projects thenumber of cap-subject petitions needed to meet the numerical limitation eachyear. Petitioners are required to notify the appropriate USCIS Service CenterDirector when numbers are not used. Consequently, the data provided above is solelyfor informational purposes. You should not be concerned about the availabilityof visa numbers for beneficiaries of approved petitions, nor should you informUSCIS when H visa applications in affected categories are abandoned or denied.

c. (U) The dependents ofprincipal applicants in these categories must not be counted against thenumerical limitations.

9 FAM 402.10-7(C) (U) FilingForm I-129, Petition for a Nonimmigrant Worker

(CT:VISA-1939; 03-04-2024)

a. (U) An employer must file aForm I-129, Petition for a Nonimmigrant Worker, with USCIS to accord status asa temporary worker or trainee. Form I-129 is also used to request changes ofstatus, extensions of petition validity and extensions of stay in H status.

b. (U) MultipleBeneficiaries: 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 and in the same location.

c. (U) Beneficiariesfrom Non-Designated Countries: According to DHS H-2A and H-2Bregulations, a national from a country not on the list of designated countriesmay be the beneficiary of an approved Form I-129 petition upon the request ofthe petitioner. USCIS recommends that petitions filed for beneficiaries whoare nationals of countries participating in the H-2 program should be filedseparately from those petitions filed for beneficiaries who are nationals ofcountries not participating in the H-2 program. Before approving a petitionfor a national from a non-designated country, the Secretary of the DHS mustdetermine that it is in the U.S. interest for the petition to be approved.When making such a determination the Secretary of DHS will consider a varietyof factors, including but not limited to consideration of:

(1) (U) Evidence that a workerwith the required skills is not available within the U.S. workforce or from thepool of foreign workers who are nationals of H-2A or H-2B program participatingcountries;

(2) (U) Evidence that thebeneficiary has been admitted to the United States in H-2A or H-2B status on aprevious occasion and has complied with the terms of that status;

(3) (U) The potential forabuse, fraud, or other harm to the integrity of the H-2A or H-2B programthrough the potential admission of the beneficiary; and

(4) (U) Such other factors asmay serve the U.S. interest. You must not refuse a visa based on thenationality of the beneficiary but may presume that DHS has approved thisexception in the absence of any evidence to the contrary.

d. (U) UnnamedBeneficiaries: Petitions may be submitted and approved for certainunnamed H-2A or H-2B beneficiaries, but there are specific USCIS requirementsfor when beneficiaries must be named. An H-2A or H-2B petition must list thenames of all beneficiaries who are currently in the United States, but thepetitioner, generally, is not required to do so for those not currently in theUnited States. However, USCIS retains the authority to require, at itsdiscretion, the naming of beneficiaries of H-2A and H-2B petitions if they arenot on the list of eligible countries. All H-2A and H-2B petitions mustinclude the nationality of all beneficiaries whether named or unnamed.

e. (U) Beneficiarieswith Multiple Employers: For a nonagricultural beneficiary to performservices for or receive training from more than one employer, each employermust file a petition unless an agent, as described in DHS regulations, files aqualifying petition seeking authorization for such employment.

9 FAM 402.10-7(D) (U) EvidenceSubmitted in Support of H Petitions

(CT:VISA-1846; 10-05-2023)

a. (U) Evidenceof Employment/Job Training: For petitions with named beneficiaries, apetition must be filed with evidence that the beneficiary met thecertification's minimum employment and job training requirements, if any areprescribed, as of the date of the filing of the labor certificationapplication. For petitions with unnamed beneficiaries, such evidence must besubmitted with the visa application or, if a visa is not required, when the individualseeks admission to the United States. Evidence in support of H-2A petitionsmust be and evidence in support of H-2B petitions can be in the form of thepast employer or employers' detailed statement(s) or actual employmentdocuments, such as company payroll or tax records. Alternately, a petitionermust show that such evidence cannot be obtained and submit affidavits frompersons who worked with the beneficiary that demonstrate the claimed employmentor job training.

b. (U) Evidenceof Education and Other Training: For petitions with namedbeneficiaries, a petition must be filed with evidence that the beneficiary met allthe certification's post-secondary education and other formal trainingrequirements, if any are prescribed in the labor certification application asof date of the filing of the labor certification application. For petitionswith unnamed beneficiaries, such evidence must be submitted with the visaapplication or, if a visa is not required, when the individual seeks admissionto the United States. Evidence in support of H-2A petitions must be andevidence in support of H-2B petitions can be in the form of documents, issuedby the relevant institution(s) or organization(s) that show periods ofattendance, majors and degrees or certificates accorded.

9 FAM 402.10-7(E) (U) PetitionApproval

(CT:VISA-1846; 10-05-2023)

a. (U) Notifying Petitioner:USCIS uses Form I-797, Notice of Action, to notify the petitioner that the Hpetition filed by the petitioner has been approved or that the extension ofstay in H status for the employee has been granted. The petitioner may furnishForm I-797 to the employee to apply for an H visa or to facilitate theemployee’s entry into the United States in H status, either initially orafter a temporary absence abroad during the employee’s stay in H status.(See 9FAM 402.10-8(C) below.)

b. (U) Transmission to Visa Sectionsvia KCC: USCIS electronically sends approved NIV petitions to theKentucky Consular Center (KCC) for transmittal to post. The petition andsupporting documents are entered into PIMS, which you can access through CCD.PIMS allows all information on a petitioner, petition, and/or beneficiary to belinked through a centrally managed CCD service. For additional information onaccessing the petition data, see 9 FAM 402.10-9(B) below.

9 FAM 402.10-7(F) (U) Validityof Approved Petitions

(CT:VISA-1939; 03-04-2024)

a. (U) InitialPeriod of Approval: USCIS has established the following initialapproval period of H petitions; however, individual petitions may vary. Youmust always check the expiration date on the actual petition itself via PIMS orPCQS:

(1) (U) An H-1B petition for abeneficiary in a specialty occupation may be approved for up to three years butmay not exceed the validity of the labor condition application;

(2) (U) An H-1B petition for afashion model of distinguished merit and ability may be approved for up tothree years;

(3) (U) An H-1B petitioninvolving a participant in a Department of Defense (DOD) research anddevelopment or co-production project may be approved for up to five years;

(4) (U) An approved H-2Apetition generally will be valid through the expiration of the related laborcertification;

(5) (U) An approved H-2Bpetition generally will be valid through the expiration of the related laborcertification;

(6) (U) An H-3 petition for a beneficiarytrainee may be approved for to two years; and

(7) (U) An H-3 petition for a beneficiaryparticipating in a special education exchange program may be approved for up to18 months.

b. (U) PetitionExtension: A petitioner wishing to extend the validity of a petitionmust 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 apetition.

c. (U) Validityof H-1B Petition When Company Restructures: An H-1B petition remainsvalid if a company is involved in a corporate restructuring, including but notlimited to, a merger, acquisition, or consolidation if:

(1) (U) The new corporateentity succeeds to the interests and obligations of the original petitioningemployer; and

(2) (U) The terms andconditions of employment remain the same, but for the identity of thepetitioner.

9 FAM 402.10-7(G) (U) Filing HPetitions for Visa-Exempt Employees

(CT:VISA-1846; 10-05-2023)

(U) Petitioners seeking toclassify employees in H nonimmigrant status must file a petition in advancewith USCIS, and the visa-exempt beneficiary must present a copy of Form I-797,Notice of Action, at a POE.

9 FAM 402.10-8 (U) Effect onPetition if Beneficiary's Employment Changes

9 FAM 402.10-8(A) (U) When aNew Petition is Required for a New Position with the Same Employer

(CT:VISA-1623; 09-29-2022)

a. (U) NewGeographic Location of Position: The petitioner must file a new oramended H-1B petition if the H-1B employee is changing place of employment to anew geographical area. The place of employment is defined as the worksite orphysical location where the work is performed by the H-1B nonimmigrant. Forpetition validity purposes, geographical area means the area within normalcommuting distance of the place of employment or within the same MetropolitanStatistical Area. Once a petitioner files the new or amended H-1B petition, theH-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 amendedpetition.

b. (U) VisaRemains Valid: A change in employment does not have an effect on an H-1Bemployee's currently valid visa. For information on the effect of the newpetition on the applicant's unexpired visa, see 9 FAM402.10-11(A) below.

9 FAM 402.10-8(B) (U) When anAmended or New Petition is NOT Required

(CT:VISA-1846; 10-05-2023)

(U) If the employment relationshipbetween the petitioner and the beneficiary remains the same and there are noother material changes in the terms and conditions of the H-1B worker'semployment, petitioners are not required to file amended petitions for:

(1) (U) Movement of anemployee's place of employment within the same geographical area;

(2) (U) Short-term placementsof up to 30 days, or up to 60 days when the employee is still based at the"home" worksite, if certain provisions of 20 CFR 655.735 are met; or

(3) (U)"Non-worksite" locations. A location is considered a non-worksite ifthe employee is attending training or a conference, the employee spends littletime at any one location, or the job involves short periods of travel to otherlocations on a casual short-term basis.

9 FAM 402.10-8(C) (U) YourResponsibilities

(CT:VISA-1623; 09-29-2022)

a. (U) If you become aware of achange in an H-1B applicant's place of employment, you should verify thepetitioner has taken the appropriate steps outlined above or give them anopportunity to do so. For example, if the beneficiary presents a cover letterfrom the petitioner stating that the beneficiary's place of employment isdifferent than that stated on the approved H-1B petition, an additional line ofinquiry may be necessary to determine the actual place of employment.

b. (U) If you determine that anapplicant's place of employment has changed since the petition was submittedrequiring an amended or new petition, you should refuse the visa applicationunder INA 221(g) until the petitioner has provided a copy of a USCIS notice ofreceipt that an amended or new petition has been filed. The case should beprocessed to conclusion based on the receipt notice, even if the amended or newpetition has not yet been approved. The PIMS record should use the original,approved petition number, and the visa should be annotated with: "Newworksite - petition [new receipt number] filed [date]."

9 FAM 402.10-8(D) (U) Effectof Revocation of Department of Labor (DOL) Temporary Labor Certifications forH-2A Beneficiaries

(CT:VISA-1846; 10-05-2023)

a. (U) The approval of anemployer’s H-2A petition is immediately and automatically revoked if DOLrevokes the underlying temporary labor certification upon which the petition isbased.

b. (U) The beneficiary’sstay is authorized for 30 days following the revocation to arrange departure orrequest an extension of stay based upon a subsequent offer of employment. Theywill not accrue any unlawful presence under INA 212(a)(9) during those 30 days.

c. (U) The previously approvedH-2A petition must be returned to the approving USCIS office through theKentucky Consular Center (KCC) under cover of a Form DS-3099 with a writtenmemorandum detailing DOL’s action.

9 FAM 402.10-9 (U) Issuing HVisas

9 FAM 402.10-9(A) (U) Effectof an Approved Petition on Visa Adjudication

(CT:VISA-1846; 10-05-2023)

a. (U) An approved petition isprima facie evidence that the requirements for visa classification, which areexamined by a USCIS adjudicator during the petition process, have been met. However,the approval of a petition by USCIS does not relieve the applicant of theburden of establishing visa eligibility. While most petitions are valid, youshould confirm that the facts in the petition are true during the visainterview. Remember that USCIS interacts solely with the petitioner; theinterview is the first point during the petition-based visa process where a USGrepresentative can interact with the beneficiary of the petition.Additionally, you benefit from cultural and local knowledge that adjudicatorsat USCIS do not possess, making it easier to spot exaggerations ormisrepresentation in qualifications. Finally, most H-2A and H-2B applicantsare petitioned as unnamed beneficiaries.

b. (U) If you know or havereason to believe that an applicant applying for a visa under INA 101(a)(15)(H)is not entitled to the classification as approved in an individual petition,you must refuse the case under INA 221(g) and explain to the applicant that youintend to return the petition to USCIS for reconsideration, providing anexplanation of the relevant facts to the extent possible. Then, submit a FormDS-3099, NIV Petition Revocation Request Cover Sheet along with the petition,all pertinent documentation, and a written memorandum of the evidence inMicrosoft Word format to the Kentucky Consular Center (KCC) using the emailaddress KCCI129Revocations@state.gov. The KCC will forward the request to theapproving USCIS Service Center. For more information on returning anindividual H petition to USCIS for reconsideration and revocation, see 9 FAM601.13-3(C).

9 FAM 402.10-9(B) (U)Verifying Petition Approval

(CT:VISA-1939; 03-04-2024)

a. (U) PIMS or PCQS enablesyou to confirm that a petition has been approved. You may use an approved FormI-129 or Form I-797 presented by the applicant as sufficient proof to schedulea visa interview or may schedule an interview based on the applicant’sconfirmation that the petition has been approved, but an H visa must not beissued to a potentially eligible applicant unless the petition is approved inPIMS or PCQS.

b. (U) The PIMS Petition Reportis listed in the CCD under a sub-category of the NIV menu called “NIVPetitions.” The PIMS Petition Report contains a record of allpetitioners recorded by the KCC as having approved petitions since 2004. Inaddition, the KCC FPU has provided informational memos on a large percentage ofthese petitioners. Each new, approved petition is linked to a base petitionerrecord, allowing tracking of NIV petitioner and petition information.

c. (U) If PIMS does notcontain the petition approval, you can check PCQS (found in the CCD under theOther Agencies/Bureaus tab) for confirmation that USCIS has approved thepetition before sending an email to KCC to confirm that such petition has beenapproved and is in PIMS. In PCQS, under Search Criteria, select ReceiptNumber; then enter the number from the Form I-797; e.g., EAC1234567890 or IOE1234567890. Select Receipt Number in thesearch type and select CLAIMS 3 and ELIS asthe systems. Navigate to the CLAIMS 3 or ELIS record and confirm USCIS approved thepetition along with the validity dates. The presence of a CLAIMS 3 or ELIS record alone is not indicative of itsapproval. If you find a petition approval in PCQS that was not in PIMS, youshould send an email to PIMS@state.gov as follows: "Petition with ReceiptNumber EAC1234567890 was found in PCQS but not in PIMS." In the event thecase is not available within two days, you should contact the KCCFPM@state.govmailbox. You may not issue an H visa to an eligible applicant withoutverification of petition approval either through PIMS or PCQS.

d. (U) If you are unable tolocate information on a specific petition either through PIMS or PCQS, you mustsend an email to PIMS@state.gov. KCC will research approval of the petitionand, if able to confirm its approval, will make the details available throughthe CCD within two working days. If the petition is not available before visainterview, you may submit requests to KCC no more than five working days before the scheduled interview date. You mustcheck PIMS before submitting a request to PIMS@state.gov. KCC will check theUSCIS CLAIMS database and will upload the CLAIMS report into PIMS so that youcan proceed with the scheduled interview. Always conduct a PIMS query beforesending in these special requests, to avoid overburdening KCC.

9 FAM 402.10-9(C) (U) FormerExchange Visitors Subject to Two-Year Foreign Residence Requirement

(CT:VISA-680; 09-24-2018)

(U) For instructions regardingrequests for waivers of the two-year foreign residence requirement by H visaapplicants who are former exchange visitors and subject to the two-yearresidence abroad requirement of INA 212(e), see 22 CFR 40.202, and 9 FAM302.13-2(B)(1).

9 FAM 402.10-9(D) (U) Your Responsibilityto Inform Applicants of Legal Rights

(CT:VISA-1921; 02-23-2024)

a. (U) The William WilberforceTrafficking Victims Protection Reauthorization Act of 2008 (WWTVPRA) requiresyou to ensure that all individuals applying for H visas are made aware of theirlegal rights under federal immigration, labor, and employment laws. Thisincludes information on the illegality of slavery, peonage, trafficking inpersons, sexual assault, extortion, blackmail, and worker exploitation in theUnited States and the legal rights of applicant victims of such crimes. Abriefing on the material may be provided by any consular section employee orcontractor before the interview. TheWilberforce information is available in the form of a physical "Know YourRights" information pamphlet or a Quick Response (QR) code, which permitsapplicants to access an online version of the information pamphlet by scanningthe code with their smartphone camera. During the interview, you must askapplicants if they prefer the QR code, the physical pamphlet, or both, and confirmthat the applicant has received, read, and understood the information preparedby the Department. See 9 FAM402.3-9(C)(1) for information about WWTVPRA enforcement and your responsibilities.You must enter a mandatory case note in the NIV system stating the QR codeand/or the pamphlet was provided, and that the applicant indicated they understoodits contents.

b. (U) If an H visa applicantis eligible for an in-person interview waiver, you must ensure the Wilberforceinformation is returned to every issued applicant along with their visa.

9 FAM 402.10-9(E) (U)Substitution of H-2 Petition Beneficiaries

(CT:VISA-1316; 07-15-2021)

a. (U) Beneficiaries, incertain circ*mstances, may be substituted in H-2 petitions approved on behalfof a group or for unnamed or named beneficiaries, or on H-2 petitions approvedfor 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 CFR214.2(h)(6)(viii) for H-2B).

b. (U) SubstitutionRequests for Workers Already in the United States: To be eligible forsubstitution through consular processing, the original worker must not havebeen admitted into the United States on their issued H-2 visa. In cases wherethe petitioner wishes to substitute a worker who was already admitted into theUnited States, they must file an amended I-129 petition with USCIS.

c. (U) SubstitutionRequests for Workers Who Have Not Entered the United States: Tosubstitute a worker who has not been admitted into the United States, thepetitioner must provide written notification to the consular section. Thisnotification must name both the worker who was originally issued the visa (ornamed on the petition) and the worker who will be replacing him or her. Thepetitioner must also submit evidence that the replacement worker meets anyqualifications listed on the labor certification and/or petition. Replacementworkers seeking substitution at the consulate must be a national of a countryon the DHS H-2A or H-2B Eligible Countries list as defined in 8 CFR214.2(h)(5)(i)(F) and 8 CFR 214.2(h)(6)(i)(E).

d (U) If the request tosubstitute one H-2 worker for another is approved, you must both revoke theissued visa in the NIV system and physically cancel the visa foil of thesubstituted worker. This will ensure that the total number of beneficiariesissued under the approved I-129 will not exceed the maximum number approved byUSCIS. You should be extremely diligent in cases where USCIS approved apetition for multiple unnamed beneficiaries and where the petition includesworkers from different countries to ensure that substituted workers will notyield the petitioner more H-2 workers than were approved by USCIS.

e. (U) In cases where an H-2worker who was issued a visa was later denied admission into the United States,that worker may be substituted at the request of the petitioner per theguidance listed above (paragraphs b through d), if the replacement worker isnot already in the United States.

9 FAM 402.10-10 (U) REFUSING HVISAS

(CT:VISA-1474; 02-17-2022)

(U) For general information on NIVrefusals, see 9FAM 403.10 and for information onreferring approved H petitions to DHS for reconsideration, see 9 FAM402.10-10(B) below.

9 FAM 402.10-10(A) (U) INA214(b) and H Visas

(CT:VISA-1623; 09-29-2022)

a. (U) The express text of INA214(b) indicates that it cannot be applied to H-1B applicants. In addition,INA 214(h) provides that an H-1B nonimmigrant may have "dual intent,"i.e., the fact that an H-1B nonimmigrant has sought permanent residence in theUnited States or will be seeking such status in the future does not precludehim or her from obtaining or maintaining H-1B nonimmigrant status. The applicantmay legitimately come to the United States as a nonimmigrant under the H-1Bclassification and depart voluntarily at the end of their authorized period ofstay, and, at the same time, lawfully seek to become a permanent resident ofthe United States without jeopardizing H-1B nonimmigrant status. Consequently,your evaluation of an applicant’s eligibility for an H-1B visa must notfocus on the issue of immigrant intent.

b. (U) Unlike H-1Bnonimmigrants, H-1B1, H-2, and H-3 nonimmigrants are subject to INA 214(b) andare not accorded dual intent under INA 214(h). Under INA101(a)(15)(H)(ii)-(iii), an applicant is not classifiable as an H-2A, H-2B, orH-3 nonimmigrant unless the applicant has a residence abroad and no intentionto abandon that residence. Thus, the fact that an H-2 or H-3 nonimmigrant hassought or plans to seek permanent residence may be considered evidence of the applicant'sintention to abandon foreign residence.

c. (U) H-4 spouse and childderivatives of H-1B applicants are subject to INA 214(b) only if they have not been able to establish abona fide relationship to the principal applicant. H-4 spouses and childderivatives of H-1B1, H-2, and H3 applicants are subject to the foreignresidence requirement.

9 FAM 402.10-10(B) (U)Referring Petitions to USCIS for Reconsideration

(CT:VISA-1474; 02-17-2022)

(U) If you know or have reason tobelieve an applicant applying for a visa under INA 101(a)(15)(H) is notentitled to the classification as approved in the individual petition, you mustrefuse the case under INA 221(g) and explain to the applicant that you intendto return the petition to USCIS for reconsideration, providing an explanationof the relevant facts to the extent possible. Then, submit a Form DS-3099, NIVPetition Revocation Request Cover Sheet along with the petition, all pertinentdocumentation, and a written memorandum of the evidence in Microsoft Wordformat to the Kentucky Consular Center (KCC) using the email addressKCCI129Revocations@state.gov. The KCC will forward the request to theapproving USCIS Service Center. For more information on returning anindividual H petition to USCIS for reconsideration and revocation, see 9 FAM601.13-3(C).

9 FAM 402.10-10(C) (U)Prohibited Fees

(CT:VISA-1846; 10-05-2023)

a. (U) USCIS may deny or revokean approved H-2A or H-2B petition if it is discovered that the petitionercollected or entered into an agreement to collect a fee or other compensation(direct or indirect) from the beneficiary as a condition of the beneficiary obtainingor maintaining employment or if the petitioner knows or reasonably should haveknown when the I-129 petition was filedthat the beneficiary has paid or agreed to pay any facilitator, recruiter, orsimilar employment service as a condition or requirement of obtainingemployment. Prohibited job placement fees do not include the lower of the fairmarket value of, or actual costs for, transportation to the United States orthe payment of any government-specified fees such as fees required by a foreigngovernment for the issuance of a passport and the visa issuance fees, unlessprohibited by statute or the employer, agent, facilitator, recruiter, orsimilar employment service agreed with the beneficiary that it will pay thesecosts and fees.

b. (U) If you have reason tobelieve that the applicant has paid a prohibited fee or agreed to pay such afee and has not been reimbursed or the agreement to pay the fee has not beenterminated, you should return the petition to USCIS for reconsiderationfollowing current procedures outlined in 9 FAM 601.13after consulting with your liaison in the Office of the Legal Adviser forConsular Affairs (L/CA). While the caseis returned to USCIS via KCC for consideration, you should refuse applicationsunder INA 221(g) in situations where the applicant overcomes INA 214(b) andotherwise qualifies for an H-2 visa.

9 FAM 402.10-11 (U) Validity ofH Visas

(CT:VISA-1846; 10-05-2023)

a. (U) The validity of an H-1Bvisa may not exceed the validity shown in the Reciprocity Schedule. Generally,H-1B visas should be issued for the validity of the petition or per thereciprocity schedule, whichever is shorter.

b. (U) Consular sections areauthorized to accept H visa petitions and issue visas to qualified applicantsup to 90 days in advance of applicants’ beginning of employment status. Youmust inform H-1B, H-2B, and H-3 applicants verbally that they can only use thevisa to apply for admission to the United States starting ten days before the beginning of the approvedstatus period. H-2A visa recipients, however, can only use the visa to applyfor admission to the United States starting one week before the beginning ofthe approved status period.

(1) (U) H-1B, H-2B, and H-3visas must be annotated, "Not valid until ten days before the petition validity date.”

(2) (U) H-2A visas must beannotated, "Not valid until seven days beforethe petition validity date."

c. (U) When there is no gap inauthorized status, an applicant may obtain an H-1B visa that is valid duringthe time remaining on the first petition (and/or any extensions) and thevalidity of the second petition and does not have to wait until 10 days beforethe 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

(CT:VISA-1846; 10-05-2023)

a. (U) After changing H-1Bemployers in accordance with USCIS procedures for making such a change, an H-1Bvisa holder may continue to use their original H-1B visa for entry into theUnited States. When applying for entry during the time when the new employmentpetition is pending, the visa holder must present a dated filing receipt orother 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 mustpresent the new Form I-797, Notice of Action, evidencing the approval of thechange of employer in addition to the visa.

b. (U) An H-1B applicant canchange employers while in the United States if the following criteria were met:

(1) (U) The beneficiary waslawfully admitted to the United States;

(2) (U) The new employer filedthe petition for the beneficiary beforethe expiration of their authorized stay; and

(3) (U) The beneficiary hasnot been employed in the United States without authorization after lawfuladmission but before filing such petition.

c. (U) After the filing of thenew petition, the H-1B visa holder is authorized to begin employment with thenew employer upon the filing of the petition with USCIS. If the new petitionis denied, employment must cease. If the applicant's prior visa and petitionhave expired, the applicant is not eligible to receive a new visa until thepending petition has been approved.

d. (U) If an H-1B beneficiaryof a valid employment-based IV petition under INA 204(a)(1)(D) changesemployers or jobs, the immigrant petition and the labor certification approvedfor the original employer will remain valid if:

(1) (U) The adjustment ofstatus application has remained unadjudicated for 180 days or more; and

(2) (U) The new job is in thesame or a similar occupational classification as the job for which the petitionwas filed.

9 FAM 402.10-11(B) (U)Limiting Validity of H Visas

(CT:VISA-1623; 09-29-2022)

a. (U) You may restrict visavalidity in some cases to less than the validity of the approved petition (forexample, based on reciprocity or the terms of a waiver of a ground ofineligibility). In any such case, in addition to the other notations requiredon the H visa, you must insert the following:

“PETITION VALID TO (date)”

b. (U) You should useappropriate operating instructions for annotating visas.

9 FAM 402.10-11(C) (U)Reissuance of Limited H Visas

(CT:VISA-1623; 09-29-2022)

(U) When an H visa has been issuedwith a validity of less than the validity of the petition or authorized periodof stay, you may reissue the visa any number of times within the time allowable.If a fee is prescribed in the reciprocity schedule, you must collect the feefor each issuance of the H visa.

9 FAM 402.10-11(D) (U)Issuing Single H Visa Based on More Than One Petition

(CT:VISA-1474; 02-17-2022)

(U) If an applicant is thebeneficiary of two or more H petitions and does not plan to depart from theUnited States between engagements, you may issue a single H visa valid untilthe expiration date of the last expiring petition, reciprocity permitting. Insuch a case, the required notations from all petitions must be placed on thevisa.

9 FAM 402.10-12 (U) Length andExtension of Stay

(CT:VISA-1846; 10-05-2023)

a. (U) An H-1B, H-2B, or H-3petition beneficiary may be admitted to the United States for the validity ofthe petition, plus up to ten days before the validity of the petition beginsand ten days after it ends. An H-2A petition beneficiary may be admitted tothe United States for the validity of the petition, plus seven days, beforethe beginning of the approved petition and 30 days following the expiration ofthe approved petition. The beneficiary generally may not work, except duringthe validity of the petition.

b. (U) The petitioner mustrequest the extension of a beneficiary's stay in the United States on the sameForm I-129, Petition for a Nonimmigrant Worker, used to file for the extensionof the beneficiary's petition. The beneficiary must be physically present inthe United States when the extension of stay petition is filed. If thebeneficiary is required to leave the United States for business or personalreasons while the extension requests are pending, the individual may apply at aconsular section overseas for the visa. The approved extension of stay must beverified via PIMS or PCQS before the visa can be issued (see 9 FAM402.10-9(B) above). When the maximum allowable stay in an H classificationhas been reached (see paragraphs below), no further extensions may be granted unlessan exception applies.

c. (U) CalculatingMaximum Length of Stay: Calculating the maximum length of stay is partof the petition review conducted by USCIS, and you should not review thiscalculation unless it appears that the information submitted with the petitionis false. Total maximum stay for H nonimmigrants will be calculated bydetermining the actual total number of days an individual lawfully in H statusis physically present in the United States in that status. All time spentoutside of the United States is, generally, subtracted and thus does not counttowards the maximum stay allowed in H status. Time spent as an H-4 dependentdoes not count against the maximum stay available to a principal H beneficiary(or vice-versa).

d. (U) MaximumStay for H-1B Nonimmigrants: Generally, the maximum length of stay inH-1B status is six years. This is subject to the exceptions below.

(1) (U) Most H-1B visa holderscan work in the United States for a maximum of six years, but an individual participatingin a Department of Defense (DOD) research and development or co-productionproject may work for a maximum of ten years. Each H-1B petition for aspecialty occupation worker or fashion model may be approved for up to 3years. H-1B petitions for qualifying DOD workers, however, may be approved forup to five years. Also, other factors, such as time recapture and American CompetitivenessAct in the 21st Century extensions can affect the validity of an H-1B petition.

(2) (U) Under the AmericanCompetitiveness in the Twenty-first Century Act (“AC21,” Public Law106-313), USCIS may approve an H-1B petition for an unlimited number of timesbeyond the six-year minimum in three-year increments if the individual is thebeneficiary of an approved employment-based immigrant petition but is unable toadjust status due to unavailability of IV numbers. Additionally, USCIS mayapprove the H-1B petition in one-year increments beyond the initial six-yearmaximum if 365 days or more have elapsed since the filing of a laborcertification or an immigrant petition on the individual's behalf. The AC21law also provides the ability for certain H-1B nonimmigrants to switchemployers upon the new employer's filing of an H-1B petition on the beneficiary'sbehalf, without waiting for the petition to be approved. See AC21 section 105.

(3) (U) The limitation ontotal length of stay does not apply to H-1B, H-2B, and H-3 applicants who didnot reside continually in the United States and whose employment in the UnitedStates is seasonal or intermittent or is for an aggregate of six months or lessper year, nor to applicants who reside abroad and regularly commute to theUnited States to engage in part-time employment. These exceptions may notapply (and thus the maximum length of stay may still be enforced) if theprincipal applicant's dependents have been living continuously in the UnitedStates in H-4 status. The applicant must provide clear and convincing proof(e.g., evidence such as arrival and departure records, copies of tax returns,records of employment abroad) that they qualify for these exceptions.

e. (U) MaximumStay for H-2A and H-2B Nonimmigrants: An extension of stay for thebeneficiary of an H-2A or H-2B petition generally may be authorized for thevalidity of the labor certification or for up to one year. The individual’stotal stay may not exceed three years, except in the U.S. Virgin Islands, wherethe total length of stay may not exceed 45 days.

f. (U) MaximumStay for H-3 Nonimmigrants: An extension of stay may be authorized forthe length of the training program or for a total period of stay not to exceedtwo years for an H-3 trainee, or for a total period of stay not to exceed 18months for an H-3 participant in a special education exchange program.

9 FAM 402.10-13 (U) ReadmissionAfter Maximum Total Period of Stay Has Been Reached

(CT:VISA-1623; 09-29-2022)

a. (U) A nonimmigrant who hasspent the maximum allowable period of stay in the United States in H and/or Lstatus may not be issued a visa or be readmitted to the United States under theH or L visa classification, nor may a new petition, extension, or change ofstatus be approved for that individual under INA 101(a)(15)(H) or INA101(a)(15)(L), unless the individual has resided and been physically presentoutside the United States, (except for brief trips for business or pleasure)for the time limit imposed on that H category, or unless the exception underAC21 described above at 9 FAM402.10-12 paragraph d(2) applies.

b. (U) All time spent outsideof the United States is, generally, subtracted and thus does not count towardsthe maximum allowable stay in H-1B or L visa status; however, it does not counttoward fulfillment of the required time abroad. The required lengths ofresidence abroad before readmission for Hnonimmigrants who have reached their maximum stay are as follows. See 9 FAM402.10-13(A) and 9 FAM402.10-13(B) below.

9 FAM 402.10-13(A) (U) H-1BNonimmigrants

(CT:VISA-1623; 09-29-2022)

(U) An H-1B applicant who hasreached their maximum allowable of stay in H-1B status must have resided andbeen physically present outside the United States, except for brief trips forbusiness or pleasure, for the immediate prior year to re-qualify.

9 FAM 402.10-13(B) (U) H-2A,H-2B, and H-3 Nonimmigrants

(CT:VISA-1623; 09-29-2022)

a. (U) An H-2A or H-2Bapplicant who has spent the maximum allowable time in the United States in Hstatus must have resided and been physically present outside the United Statesfor the immediate prior three months before they may be granted H-2A or H-2Bstatus. Additionally, the amount of time that will serve to interrupt theaccrual of the three-year limitation on H-2A or H-2B status is affected by anyabsence from the United States. If the accumulated length of stay in theUnited States is 18 months or less, then an absence of 45 days from the UnitedStates will be interruptive. If the accumulated length of stay is more than 18months, then an absence of two months, but less than three months will beinterruptive. Any time the H-2 worker is outside the United States for atleast three months, their three-year limit restarts from the beginning upon theworker's readmission to the United States in H-2 status.

b. (U) An H-3 applicant who hasspent the maximum allowable time in the United States in H status must haveresided and been physically present outside the United States for the immediateprior six months before they may be granted H-3 status again.

9 FAM 402.10-14 (U) SpouseS andChildren of H NOnimmigrants

9 FAM 402.10-14(A) (U)Derivative Classification and Validity

(CT:VISA-1316; 07-15-2021)

a. (U) The spouse and childrenof a principal classified H-1B, H-1B1, H-2A, H-2B, or H-3, who are accompanyingor following to join the beneficiary in the United States, may be entitled toH-4 classification. H-4 applicants are not listed in the principal applicant'spetition and therefore, if the visas are refused, it is not necessary to drafta revocation request for USCIS' consideration.

b. (U) Visa Validity: Ingeneral, H-4 derivatives are subject to the same visa validity, period ofadmission, or limitation of stay as the principal. An exception to this iswhen a principal's visa has been limited according to the clearance validitiesinstructions in 9 FAM304.2-5(C)(2); in this instancederivative applicants may still receive the maximum visa validity permitted byeither the reciprocity schedule or the petition validity.

c. (U) INA 214(b) Applicability: Itis not required that the spouse and children of H-1 nonimmigrants demonstratethat they have a residence abroad to which they intend to return; thesederivatives are qualified for the visa classification solely based on thelegitimacy of the relationship with the principal applicant. However, H-4dependents of H-2 or H-3 nonimmigrant are subject to the residence abroadrequirement in INA 101(a)(15)(H)(ii) and (iii). See 9 FAM402.10-10(A) above for additionalguidance on 214(b) applicability for derivatives.

9 FAM 402.10-14(B) (U)Verifying the Principal is Maintaining Status

(CT:VISA-1316; 07-15-2021)

a. (U) When an applicantapplies for an H-4 visa to follow to join a principal already in the UnitedStates, you must be satisfied that the principal is maintaining H status beforeissuing the visa. There will be certain circ*mstances when the principal doesnot have a valid visa (i.e., the principal changed to H-1B status in the UnitedStates, extended status without seeking a new visa, or is exempt from visarequirements) but is nevertheless maintaining status.

b. (U) If you have any doubtabout the principal's status, a PIMS record of petition approval or change ofstatus must be obtained, or the information on the principal may be obtainedthrough PCQS. In the event neither PCQS nor PIMS contains the record, send anemail to PIMS@state.gov. KCC’s Fraud Prevention Unit (FPU) will researchapproval of the petition and, if able to confirm its approval, will make thedetails available through the CCD within two working days.

c. (U) When adjudicating thevisa, utilize the petition validity or limitation of stay (via ADIS) todetermine 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 Prohibited

(CT:VISA-1316; 07-15-2021)

(U) Individuals in H-4 status arenot authorized to accept employment while in the United States other than whenauthorized pursuant to a regulation providing employment authorization tocertain H-4 nonimmigrants or INA 106 (relating to battered spouses). Thespouse and children of H nonimmigrants may not accept employment unless theyare approved for work authorization by USCIS or they hold a work-authorizedclassification other than H-4 (i.e., if the spouse of an H-1B holder is also anH-1B beneficiary). You must take this into account in evaluating whetherfamily members have furnished adequate evidence of their support while in theUnited States. H-4s are permitted to study during their stay in the UnitedStates.

9 FAM 402.10-14(D) (U) UsingB-2 instead of H-4 Classification

(CT:VISA-1623; 09-29-2022)

(U) Although the H-4classification is provided specifically for the spouse and children of Hnonimmigrants, if their planned length of stay is to be brief, and if theyovercome the presumption of immigrant intent under INA 214(b) and satisfy therequirements of INA 101(a)(15)(B)(including foreign residence requirement),such applicants 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 wouldbe inconvenient or impossible for him or her to apply for an H-4 visa, you neednot require the latter visa. As always, you should be aware that it ispossible for a person to qualify for more than one NIV classification at thesame time.

9 FAM 402.10-15 (U) DomesticEmployees of H Nonimmigrants

(CT:VISA-1846; 10-05-2023)

(U) Personal employees or domesticworkers seeking to accompany or follow to join H nonimmigrant employers may beissued B-1 visas, if they meet the requirements of 9 FAM402.2-5(D)(3).

9 FAM 402.10-16 (U) ReturnTransportation if H-1B or H-2B Employment Terminated Involuntarily

(CT:VISA-1623; 09-29-2022)

(U) If an H-1B or H-2Bnonimmigrant is dismissed from employment before the end of their authorizedadmission by the employer who sought the individual's H-1B or H-2B status, theemployer is responsible for providing the reasonable cost of transportation tothe individual's last place of foreign residence. This requirement does notapply if the nonimmigrant voluntarily terminates their employment.

9 FAM 402.10-17 (U) LABORVIOLATIONS BACKGROUND

(CT:VISA-1623; 09-29-2022)

a. (U) Your primaryresponsibility in visa adjudication is to carry out the requirements of U.S.immigration law. Occasionally, you may discover indications of possibleviolations of other U.S. laws, even if you issue a visa. This note describespossible violations of U.S. labor law and tells you how to report them to DOL.In most of these situations, you likely would still issue a visa. (See 9 FAM 601.13for information on when petitions must be returned to USCIS for possiblerevocation.)

b. (U) DOL's Wage and Hourdivision is responsible for ensuring that foreign workers are receiving thewages promised on the Labor Condition Application (LCA) and are working in theoccupation and at the location specified. If you uncover information indicatinga violation of U.S. immigration or labor laws, as outlined below, thisinformation must be reported to DOL for potential enforcement.

9 FAM 402.10-17(A) Unavailable

(CT:VISA-1623; 09-29-2022)

a. Unavailable

b. Unavailable

c. Unavailable

d. Unavailable

(1) Unavailable

(2) Unavailable

(3) Unavailable

(4) Unavailable

9 FAM 402.10-17(B) Unavailable

(CT:VISA-1939; 03-04-2024)

a. Unavailable

b. Unavailable

9 FAM 402.10-17(C) (U) WhatWill Department of Labor (DOL) Do with a Complaint?

(CT:VISA-1; 11-18-2015)

(U) If DOL finds that a laborviolation has occurred, it may impose penalties in the form of back payreimbursem*nt to injured parties, fines to the company, and/or a ban on thefiling of further labor certifications by the company. In some cases, the DOL mayapply the ban to any company associated with the violator.

9 FAM 402.10-17(D) (U)Information Available from Department of Labor (DOL)

(CT:VISA-1623; 09-29-2022)

a. (U) DOL has printed businesscards with information on legal protections for H-1B and H-2 workers. Thesecards are a simple and effective way to get the word out to each beneficiary.You may contact your VO/F liaison for more information about these cards.Specify the type of card (H-1B or H-2), the quantity of each type, and post'smailing address.

b. (U) Administrative actionson labor violations may be found at OALJ on DOL’s website. Individualswishing to file labor violation complaints can find instructions at H-1BNonimmigrant Information on DOL’s website.

c. (U) DOL has helpful FactSheets on immigration related issues and on H-1B issues. See DOL’swebsite at Topical Fact Sheet Index.

UNCLASSIFIED (U)