Petitioning Requirements for the H Nonimmigrant Classification

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1769-96]

RIN 1115-AE-38

Petitioning Requirements for the H Nonimmigrant Classification

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service's (Service) regulations to accommodate the needs of certain

United States employers with respect to the filing of new and amended

petitions for H-1B nonimmigrant workers. This rule was written in

response to a number of complaints received from certain industries

which asserted that the current H regulations contain requirements with

which some U.S. employers cannot comply. In addition, the current

regulations contain certain procedures which are burdensome to both the

Service and to the public. Specifically, this rule proposes to amend

the Service's regulation with regard to the submission of itineraries

with certain H-1B petitions and to amend the Service's regulations

regarding the H-1B classification by allowing petitioners to obtain and

submit the required certified labor condition application after the

petition is initially filed with the Service, but before the petition

is adjudicated. Finally, this rule proposes to amend the Service's

regulation regarding the revocation of approved H petitions where the

beneficiary is no longer employed by the petitioner. This rule will

make the H-1B nonimmigrant classification easier for certain U.S.

employers to use and will make the requirements for the H-1B

nonimmigrant classification more consistent with the practices of the

business world.

DATES: Written comments must be submitted on or before August 3, 1998.

ADDRESSES: Please submit written comments, in triplicate, to the Policy

Directives and Instructions Branch, Immigration and Naturalization

Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure

proper handling, please reference the INS number 1769-96 on your

correspondence. Comments are available for public inspection at the

above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

John W. Brown, Adjudications Officer, Adjudications Division,

Immigration and Naturalization Service, 425 I Street, NW., Room 3214,

Washington, DC 20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION: The current regulation at 8 CFR

214.2(h)(2)(i)(B) provides that an H petition which requires an alien

beneficiary to perform services in more than one location must include

an itinerary with dates and locations of the services or training to be

performed. This regulatory provision was promulgated primarily to

address certain practices in the entertainment industry, which, prior

to the passage of the Immigration Act of 1990, was one of the largest

users of the H-1B classification. (Entertainers now typically enter the

United States in the O and P nonimmigrant classifications.)

Specifically, this regulation was intended to preclude foreign

entertainers who were admitted in H classification for the purpose of

performing at a specific engagement from engaging in freelance work in

this country subsequent to their admission. The regulation was designed

to ensure that aliens seeking H nonimmigrant status have an actual job

offer and are not coming to the United States for the purpose of

seeking employment following arrival in this country.

Since promulgation of this regulation, however, many industries in

the United States, such as the health care and computer consulting

industries, have begun to rely more frequently on the use of contract

workers. It has been the experience of the Service that many bona fide

businesses which provide contract workers to certain industries under

the H-1B classification have experienced difficulty in providing

complete and detailed itineraries due to the unique employment

practices of such industries. For example, companies which are in the

business of contracting out physical therapists or computer

professionals often get requests from customers to fill a position with

as little as 1 day advance notice. Clearly an H-1B petitioner in this

situation could not know of all particular contract jobs at the time

that it first files the H-1B petition with the Service. As a result,

many such bona fide employment contractors do not know all of the

locations where a contract worker will be employed at the time the Form

I-129, Petition for a Nonimmigrant Worker, is initially filed.

Moreover, some employers who use the H-1B classification may have a

legitimate, but unforeseeable, need to transfer their employees on

short notice from one work site to another within the organization,

such as from the employer's Los Angeles office to its New York office.

Under the current regulation, however, such an employer is required to

submit with its petition a complete itinerary listing all of the

locations where the contract workers will be employed. The regulation

as now written, therefore, does not fully reflect current legitimate

business practices.

In response to these problems, the Service now proposes to amend

its regulations at 8 CFR 214.2(h)(2)(i)(B) and at 8 CFR

214.2(h)(2)(i)(F) to allow certain petitioners to submit a general

statement describing the locations where the alien is to be employed,

thereby eliminating the necessity of submitting a complete itinerary. A

complete itinerary must be submitted only in those instances where the

employer is aware of the actual itinerary or where the petitioner is an

agent that does not actually employ the beneficiary but merely

represents the alien and the alien's employer.

In those instances where the employer does not yet know the alien's

complete itinerary at the time the petition is filed, the employer must

submit, in lieu of a complete itinerary, a list of the places where it

knows the beneficiary will definitely be employed, together with a

description of the alien's job duties at those locations. In addition,

the employer must submit, to the extent possible, a list describing the

alien's possible places of employment and the duties which the alien

would perform at such locations. The employer may also be asked to

submit a letter with the petition describing its past hiring practices,

including a list of past places where it has employed similarly

situated persons. The letter must describe the employer's tentative

plans to use the beneficiary in an H-1B capacity in the future.

However, the absence of a past hiring practice is not a bar to the

approval of the petition. Petitions filed without any itinerary may not

be approved since this type of petition involves purely speculative

employment. Of course, the petitioner

[[Page 30420]]

must also submit all other documentary evidence required by the

regulation for H-1B classification.

It is important to note that this proposed rule affects only those

entities which are the actual employer of the alien, such as employment

contractors and direct employers. In this regard, an employment

contractor is one which employs the alien but assigns the alien to work

at a different location than the contractor's place of business, based

on the terms of a contract with a person or entity seeking the

employer's services. A direct employer is one which hires the alien and

assigns the alien to work at the employer's place of business. In both

instances, the petitioner is the employer of the alien and retains the

ability to hire and fire the alien.

An agent who represents both the alien and the alien's employer is

not the alien's employer and is required under this proposed rule to

submit a complete itinerary. A typical example of this type of agency

is the sports agent who has a contract with a sports star and who

solicits potential employers in order to obtain the best deal for the

alien. Recruitment agencies and entities which merely locate an alien

for employers are not the actual employer of the alien and do not fit

the Service's definition of an agent. As a result they may not file an

H-1B petition.

Historically, the Service has not granted H-1B classification on

the basis of speculative, or undetermined, prospective employment. The

H-1B classification is not intended as a vehicle for an alien to engage

in a job search within the United States, or for employers to bring in

temporary foreign workers to meet possible workforce needs arising from

potential business expansions or the expectation of potential new

customers or contracts. To determine whether an alien is properly

classifiable as an H-1B nonimmigrant under the statute, the Service

must first examine the duties of the position to be occupied to

ascertain whether the duties of the position require the attainment of

a specific bachelor's degree. See section 214(i) of the Immigration and

Nationality Act (the ``Act''). The Service must then determine whether

the alien has the appropriate degree for the occupation. In the case of

speculative employment, the Service is unable to perform either part of

this two-prong analysis and, therefore, is unable to adjudicate

properly a request for H-1B classification. Moreover, there is no

assurance that the alien will engage in a specialty occupation upon

arrival in this country.

To ensure that petitioners will not use the H-1B classification for

speculative employment, this proposed regulation would require

petitioners to establish that they, in fact, have employment in a

specialty occupation available for the alien at the time that the

petition is initially filed. Under this proposed rule, the petitioner

would be required to establish, both through the submission of evidence

relating to its past employment practices and through the submission of

evidence relating to its employment plans for the beneficiary, that the

alien will, in fact, commence work in a speciality occupation

immediately upon admission in H classification. The petitioner must be

able to demonstrate its need for the alien's services within the

specialty occupation described in the petition when the petition is

filed. It should be noted that this proposed regulation would not

relieve the petitioner of its responsibility to file an amended

petition when required, for example, when the beneficiary's transfer to

a new work site necessitates the filing of a new labor condition

application or when the beneficiary is required to obtain a new state

license in order to commence employment at the new location. In light

of the existing statutory requirements for H-1B classification and the

Department of Labor's regulations regarding labor condition

applications, the Service is confident that the proposed regulation

would ensure that U.S. workers continue to receive protection from

employers who might attempt to abuse the H-1B nonimmigrant

classification.

Finally, as previously indicated, the regulatory requirement

relating to the submission of a complete itinerary was geared primarily

for the entertainment industry, which, in light of changes under the

Immigration Act of 1990, generally no longer uses the H-1B nonimmigrant

classification. While it is preferable that all H-1B petitions be

accompanied by complete itineraries listing the dates and places of the

alien's employment, the Service recognizes such an across-the-board

requirement is no longer practical in today's business environment.

It should be noted that a petition filed by an agent who is not the

actual employer of the alien, as described in 8 CFR

214.2(h)(2)(i)(F)(1), must be accompanied by an itinerary. The Service

wishes to retain strict control over petitions filed under these

circumstances since, as noted above, this type of agent, unlike an

employment contractor, is not the actual employer of the alien. In such

a case, unless the agent submits a complete itinerary, the Service

cannot be assured that the alien will be employed continuously as a

specialty worker following admission to this country. Moreover, in such

a situation, the Service cannot approve the H classification since

there would not exist a valid labor condition application for each

location where the alien will be employed.

The Service recognizes that implementation of this rule would

remove some of the controls which it currently has over prospective H-

1B employers at the time they initially file their petitions. To ensure

that employers have complied with the terms of the initial petition and

supporting labor condition application, the Service proposes to amend

its regulations at 8 CFR 214.2(h)(15)(ii)(B)(1) relating to extensions

of H-1B petitions to include clear language providing Service directors

with the authority to require petitioners to submit evidence regarding

the alien beneficiary's employment activities under the initial or

prior approved petition or petitions.

The Service also proposes to revise 8 CFR 214.2(h)(2)(i)(E) to

provide concrete examples of certain common situations where an amended

H-1B petition need or need not be filed. While the examples are by no

means intended to be exhaustive, the Service believes that such

clarification is in the public interest. It should be noted that the

Service has previously provided guidance to the public on this issue

through a policy memorandum dated October 22, 1992, signed by James J.

Hogan, Executive Associate Commissioner, Operations. Hence, the

examples described in the proposed regulation merely codify

longstanding Service policy and practice.

The proposed rule addresses the following situations. First, where

an employer is required, under relevant Department of Labor

regulations, to file a new labor condition application, such as

following certain temporary or permanent transfers, the employer will

also be required to file an amended petition. On the other hand, when

an H-1B nonimmigrant is transferred by an employer to another work site

within the area covered by the supporting labor condition application,

and there are no other changes in the nature or terms of the H-1B

nonimmigrant's employment, the employer need not file an amended

petition. Second, an employer will be required to file an amended

petition where the alien's duties change from one specialty occupation

to another. An employer need not file an amended petition, however,

where there is a mere

[[Page 30421]]

change in the petitioner's name, without a change in the underlying

nature or terms of the H-1B employment. In such a situation, the

petitioner may simply notify the Service of its name change when and if

it files an application to extend the alien's nonimmigrant stay. The

Service is amenable to considering additional suggestions from the

public for streamlining the amended petition process.

The Service proposes to amend 8 CFR 214.2(h)(11) (i), (ii), and

(iii) to indicate that a petition for an H nonimmigrant alien will be

automatically revoked if the petitioner notifies the Service that the

beneficiary is no longer employed by the petitioning entity. Under the

current regulation, when the petitioner notifies the Service that the

beneficiary is no longer employed by it in the capacity specified in

the petition, the Service is required to send the petitioner a notice

of intent to revoke the petition. (See 8 CFR 214.2(h)(11)(iii)(A)(1).)

This process requires the petitioner to respond to the notice of

intent, and then for the Service to take action based on the

petitioner's subsequent response. Since the petitioner is the entity

which supplied the Service with the information concerning the alien's

employment, the current procedure creates unnecessary burdens on both

the petitioner and the Service and, therefore, appears to be

inappropriate. Moreover, this proposed change will bring the H

regulation into conformity with the O and P regulations in this regard.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by approving it, certifies that the rule

will not have a significant economic impact on a substantial number of

small entities. This regulation eases certain requirements which some

businesses find burdensome by allowing various petitioners the option

of submitting a general statement describing the locations where the

beneficiary is to be employed, along with other supporting

documentation, in lieu of submitting a complete itinerary when filing

an H-1B petition.

In addition, the proposed rule also eases other filing requirements

associated with the submittal of an H-1B petition by allowing a

petitioner the option of submitting a required labor condition

application from the Department of Labor after the petition has been

filed with the Service. Finally, the regulation also eliminates the

requirement that a petitioner respond to a notice of intent to revoke a

petition in instances where the petitioner initiated the revocation

process by notifying the Service that the beneficiary is no longer

employed by the petitioner.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration

and Naturalization Service, to be a ``significant regulatory action''

under Executive Order 12866, section 3(f), Regulatory Planning and

Review. Accordingly, this regulation has been submitted to the Office

of Management and Budget for review.

Executive Order 12612

The regulation proposed herein will not have substantial direct

effects on the States, on the relationship between the National

Government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this rule

does not have sufficient Federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order 12988

This proposed rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

The information collection requirement contained in this rule has

been cleared by the Office of Management and Budget (OMB) under the

provisions of the Paperwork Reduction Act. The OMB clearance number for

this collection is 1115-0168.

List of Subjects in 8 CFR Part 214

Administrative practice and procedures, Aliens, Employment,

Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

1. The authority citation for part 214 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,

1281, 1282; 8 CFR part 2.

2. Section 214.2 is amended by:

a. Revising paragraph (h)(2)(i)(B);

b. Revising paragraph (h)(2)(i)(E);

c. Revising paragraph (h)(2)(i)(F);

d. Revising paragraph (h)(4)(i)(B)(1);

e. Revising paragraph (h)(4)(iii)(B)(1);

f. Revising paragraph (h)(11) (i), (ii), and (iii); and by

h. Revising paragraph (h)(15)(ii)(B)(1) to read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(h) * * *

(2) * * *

(i) * * *

(B) Services or training in more than one location.--(1) H-1B

petitions. An H-1B petition which require services to be performed or

training to be received in more than one location must include, to the

extent possible, a complete itinerary with the dates and locations of

the services or training to be performed. The petition must be filed

with the Service Center having jurisdiction over the place where the

petitioner is located. The address which the petitioner specifies as

its location on the petition shall be where the petitioner is located

for purposes of this paragraph. If the petitioner has not yet

determined all of the locations where the beneficiary might be employed

at the time of filing, the petitioner must provide an itinerary of all

definite employment and provide a description of any proposed or

possible employment for the period of time covered by the petition.

Petitions filed by an agent must also comport with 8 CFR

214.2(h)(2)(i)(F).

(2) Other H petitions. A petition for an H-2A, H-2B, or H-3

nonimmigrant alien which requires services to be performed or training

to be received in

[[Page 30422]]

more than one location must include a complete itinerary with the dates

and locations of the services or training to be performed. The petition

must be filed with the Service Center having jurisdiction over the area

where the petitioner is located. The address which the petitioner

specifies on the petition as its location shall be where the petitioner

is located for purposes of this paragraph.

* * * * *

(E) Amended petition--(1) General. A nonimmigrant H petitioner

which continues to employ the beneficiary shall file an amended

petition on Form I-129, with fee, with the Service Center where the

original petition was filed to reflect any material changes in the

terms and conditions of the H nonimmigrant's employment or training, as

specified in the original approved petition. An amended H-1B petition

must be accompanied by a current or new labor condition application

certified by the Department of Labor. In the case of amended H-2A or H-

2B petitions, the amended petition must be accompanied by the

appropriate Department of Labor determination.

(2) H-1B petitions. An amended H-1B petition shall be filed by the

petitioner in all cases where the petitioner is required, under 20 CFR

part 655, to obtain a new certification of filing of a labor condition

application. An amended H-1B petition must also be filed where there is

a change in the beneficiary's duties from one specialty occupation to

another specialty occupation. A change in the name of the petitioning

entity, standing alone, is not a material change and does not require

the filing of an amended petition. As these examples are not all-

inclusive, it is the responsibility of the petitioner to determine

whether, in a particular case, these exists a material change in the

terms and conditions of the H nonimmigrant alien's employment or

training necessitating the filing of an amended petition.

(F) Agents as petitioners. A United States agent may file a

petition in cases involving workers who are traditionally self-employed

or workers who use agents to arrange short-term employment on their

behalf with numerous employers, and in cases where a foreign employer

authorizes the agent to act on its behalf. A United States agent may

be: the actual employer of the beneficiary, the representative of both

the employer and the beneficiary, or, a person or entity authorized by

the employer to act for, or in place of, the employer as its agent. A

petition filed by a United States agent must also comply with the

provisions of 8 CFR 214.2(h)(2)(i)(B) and is subject to the following

conditions:

(1) An agent performing the function of an employer, such as where

the agent acts as an employment contractor, should provide an itinerary

of all definite employment and provide a description of any proposed or

possible employment for the period of time covered by the petition.

Such an agent need not submit a complete itinerary. A petition filed by

such an agent/employer must guarantee the wages and other terms and

conditions of employment by contractual agreement with the beneficiary

or beneficiaries of the petition.

(2) A person or company in business as an agent may file the H

petition involving multiple employers as the representative of both the

employers and the beneficiary or beneficiaries if the supporting

documentation includes a complete itinerary of services or engagements,

the agent has fully informed both the employers and the beneficiaries

of his or her dual representation, and the agent fully complies with

the requirements of 8 CFR part 292. The itinerary shall specify the

dates of each service or engagement, the names and addresses of the

actual employers, and the names and addresses of the establishments,

venues, or locations where the services will be performed. In

questionable cases, a contract between the employers and the

beneficiary or beneficiaries may be required. The burden is on the

agent to explain the terms and conditions of the employment and to

provide any required documentation.

(3) A foreign employer who, through a United States agent, files a

petition for an H nonimmigrant alien is responsible for complying with

all of the employer sanctions provisions of section 274A of the Act and

8 CFR part 274a.

* * * * *

(4) * * *

(i) * * *

(B) General requirements for petitions involving a specialty

occupation. (1) Before filing a petition for H-1B classification in a

specialty occupation, the petitioner should obtain a certification from

the Department of Labor that it has filed a labor condition application

in the occupational specialty in which the alien(s) will be employed.

If the labor condition application is not initially submitted with the

petition, the petitioner shall be given an opportunity to obtain a

certified labor condition application from the Secretary of Labor and

to submit the certified labor condition application to the Service.

Under no circumstances, however, may the Service approve the petition

prior to submission of a certified labor condition application. The

fact that the certification date on the labor condition application may

be later than the initial filing date of the petition is not a basis on

which to deny the petition.

* * * * *

(iii) * * *

(B) * * *

(1) A certification from the Department of Labor that the

petitioner has filed a labor condition application with the Secretary

of Labor as required under 20 CFR part 655. If the labor condition

application is not initially submitted with the petition, the

petitioner shall be given an opportunity to obtain a certified labor

condition application from the Secretary of Labor and to submit the

certified labor condition application to the Service. In all cases, a

certified labor condition application must be submitted to the Service

before the petition may be adjudicated. The fact that the certification

date on the labor condition application may be later than the initial

filing date of the petition does not warrant the denial of the

petition.

* * * * *

(11) Revocation of approval of petition (i) General. The director

may revoke a petition at any time, even after the expiration of the

petition.

(ii) Automatic revocation. The approval of any petition is

automatically revoked if the petitioner goes out of business, files a

written withdrawal of the petition, or notifies the Service pursuant to

8 CFR part 214 that the beneficiary is no longer employed by the

petitioner.

(iii) Revocation on notice. (A) Grounds for revocation. The

director shall send to the petitioner a notice of intent to revoke the

petition in relevant part if he or she finds that:

(1) Other than through notification in paragraph (h)(11)(ii) of

this section, the beneficiary is no longer employed by the petitioner

in the capacity specified in the petition, or if the beneficiary is no

longer receiving training as specified in the petition;

(2) The statement of facts contained in the petition was not true

and correct;

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

petition;

(4) The petitioner violated requirements of section 101(a)(15)(H)

of the Act or paragraph (h) of this section; or

(5) The approval of the petition violated paragraph (h) of this

section or involved gross error.

[[Page 30423]]

(B) Notice and decision. The notice of intent to revoke shall

contain a detailed statement of the grounds for the revocation and the

time period allowed for the petitioner's rebuttal. The petitioner may

submit evidence in rebuttal within 30 days of receipt of the notice.

The director shall consider all relevant evidence presented in deciding

whether to revoke the petition in whole or in part. If the petition is

revoked in part, the remainder of the petition shall remain approved

and a revised approval notice shall be sent to the petitioner with the

revocation notice.

* * * * *

(15) * * *

(ii) * * *

(A) * * *

(B) H-1B extension of stay--(1) Alien in a specialty occupation or

an alien of distinguished merit and ability in the field of fashion

modeling. An extension of stay may be authorized for a period of up to

3 years for a beneficiary of an H-1B petition in a specialty occupation

or an alien of distinguished merit and ability. The alien's total

period of stay may not exceed 6 years. The request for an extension

must be accompanied by either a new certification from the Department

of Labor valid for the extension period requested, or a photocopy of

the prior certification from the Department of Labor indicating that

the petitioner has on file a labor condition application valid for the

period of time requested by the petitioner for the particular

occupation. The director may require the petitioner to submit any

evidence which in the director's discretion may be necessary to

establish that the petitioner has employed the alien pursuant to the

terms of the prior petition(s) and labor condition application(s).

* * * * *

Dated: May 29, 1998.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 98-14785 Filed 6-3-98; 8:45 am]

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