Preliminary Petition Documents

By December 11, 2016Immigration

(1) General considerations. Nonimmigrant status under
this section cannot be granted unless a petition to classify
the worker or workers is filed by the importing employer
and is approved by the Attorney General, after consultation
with the appropriate agencies of the Government, usually
the Department of Labor. Approval of the petition merely
finds the beneficiary entitled to the claimed H status,
and the consul thereafter determines the alien’s admissi
bility as a bona fide nonimmigrant.18 Consultation usually
occurs only in the H-2 cases, and is accomplished through
the labor certification process.

The petition is submitted on Form I-129B, in duplicate,
to the district director who has jurisdiction over the place,
or one of the places, where the services are to be performed
or the training is to be received.

(2) Workers of distinguished merit and ability. A peti
tion on behalf of an H-l alien must be supported by docu
ments attesting to his distinguished merit and ability. Such
documents should include a detailed description of his ex
ceptional qualifications, supported by certifications, affida
vits, degrees, diplomas, writing, reviews, and any other
appropriate evidence.18 There is no requirement for a labor
certification from the Department of Labor in connection
with an H-l petition, and possible adverse effect on Ameri
can workers is not a relevant consideration in relation to
such a petition.

(3) Other temporary workers who will not displace
American labor. A petition to import H-2 aliens should be
supported by the following documents.

(a) Either a certification from the Department of Labor
that comparable workers cannot be found in this
country, and that their employment will not ad
versely affect wages and working conditions in
the United States, or a notice that such a certificacation
cannot bo made.

(b) A detailed description of the situation which makes
the importation of the temporary workers neces
sary, and a statement whether the need is tem
porary or seasonal and whether it is expected to
recur.

(4) Alien trainees. A petition for an alien trainee (H-3)
must be accompanied by a statement describing the train
ing, the position for which he will be trained, the proportion
of time that will be devoted to productive employment, to
classroom instruction, and to on-the-job training, whether
such training can be obtained in the alien’s country, and an
explanation of the need for furnishing the training in the
United States.
The source of the trainee’s remuneration
and whether his training benefits the petitioner are im
material, but the trainee is not permitted to engage in
productive employment which will displace a United States
resident. There is no requirement that a certification from
the Department of Labor be obtained for an H-3 trainee.

Francisco Hernandez

Author Francisco Hernandez

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