Temporary Alien Workers Seeking H-1B, O, and P Classifications Under the Immigration and Nationality Act; Final Rule

SUMMARY: This final rule implements certain provisions of the

Miscellaneous and Technical Immigration and Naturalization Amendments

of 1991 as it relates to temporary alien workers seeking nonimmigrant

classification and admission to the United States under sections

101(a)(15) (H), (O), and (P) of the Immigration and Nationality Act

(Act). These amendments altered, among other things, the eligibility

requirements for the H-1B, O, and P nonimmigrant classifications. This

rule contains the new procedures required for these classifications and

conforms Service policy to the intent of Congress as it relates to

these classifications. This rule sets forth the new filing procedures

and eligibility standards, and clarifies for businesses and the general

public the requirements for classification and admission.

EFFECTIVE DATE: August 15, 1994.

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) 514-3946.

SUPPLEMENTARY INFORMATION: The Immigration Act of 1990 (IMMACT), Public

Law 101-649, November 29, 1990, created, among other things, the O and

P nonimmigrant classifications. These nonimmigrant classifications were

to become effective on October 1, 1991, but the full implementation of

these classifications was delayed until April 1, 1992 by the enactment

of the Armed Forces Immigration Adjustment Act of 1991 (Pub. L. 102-

110) which was signed into law on October 1, 1991. In response to

concerns voiced by the public and other interested parties, the

Miscellaneous and Technical Immigration and Naturalization Amendments

of 1991, Pub. L. 102-232, dated December 12, 1991, was enacted which

altered the eligibility requirements for certain portions of the O and

P nonimmigrant classifications as contained in IMMACT and, in addition,

added fashion models of distinguished merit and ability to the H-1B

classification.

On April 9, 1992, at 57 FR 12179-12190, the Immigration and

Naturalization Service (Service) published an interim rule with request

for comments in order to implement the provisions of Pub. L. 102-232.

Interested persons were invited to submit written comments on or before

June 8, 1992.

This final rule amends the Service's regulations at 8 CFR 214.2 to

reflect the changes made by the Miscellaneous and Technical Immigration

and Naturalization Amendments of 1991, Public Law 102-232, December 12,

1991. The changes are discussed below. For the sake of convenience, the

entire O and P regulations have been reprinted here.

Discussion of Comments on the Interim Regulations

The Service received 192 comments on the interim rule. Many of

these commenters addressed more than one issue in their comments. The

vast majority of the comments dealt with the O and P classifications.

Only eight comments were received which addressed the H-1B

classification. A number of commenters offered suggestions and

improvements for the interim rule, many of which have been adopted in

the final rule. The following discussion groups the comments into the

various nonimmigrant classifications, discusses the issues raised,

provides the Service's position on the issues and, finally, indicates

the revisions adopted in the final rule, based on the public's

concerns. A general provision section is also included in which topics

relating to both the O and P classifications, such as filing by agents

and the consultation process, are discussed. The final rule also

contains a number of changes which were implemented as a result of the

monitoring of the actual operation of the interim rule.

H-1B Nonimmigrant Classification

Occupations Included in the H-1B Classification--Sec. 214.2(h)(1)(i)

Seven commenters suggested that the Service include in the

definition of the H-1B classification a number of support occupations

normally encountered in the field of fashion modeling, such as hair

stylists and make-up artists. Nothing in the statute or the legislative

history indicates that Congress intended to include support occupations

in the H-1B classification. The statute clearly limits the H-1B

classification to aliens employed in a specialty occupation and to

fashion models of distinguished merit and ability. Therefore, the

Service cannot adopt this suggestion.

It should be noted that aliens employed in such fields as hair-

styling may be able to obtain nonimmigrant classification under the O-1

classification or under the H-2B classification if eligible. The

admission of these aliens into the United States is not precluded by

the fact that they are not statutorily eligible for H-1B

classification.

Evidentiary Criteria for Petitions for Fashion Models of Distinguished

Merit and Ability--Sec. 214.2(h)(4)(vii)

The other comment received concerning the H-1B classification

stated that the evidentiary criteria relating to the beneficiary's

requirements for classification as an H-1B fashion model did not

accurately reflect the nature of the industry. For example, the

commenter stated that, generally speaking, awards are not available to

fashion models and should not be listed as a criterion for establishing

that a fashion model is of distinguished merit and ability. The final

rule adopts the evidentiary criteria suggested by the commenter. The

Service believes that the regulation now lists evidentiary criteria

which are more appropriate to the industry.

O Nonimmigrant Category

Prior to discussing the comments relating to the O nomimmigrant

classification, it must be noted that the final rule contains a number

of adjustments in terminology. In the interim rule, the Service labeled

the list of the types of evidence that a petitioner could submit to

establish an alien's eligibility as ``standards'' for the

classification. For example, in the interim rule, the heading of

Sec. 214.2(o)(3)(iv) was entitled ``Standards for an O-1 alien of

extraordinary ability in the fields of science * * *''. The paragraph

then proceeded to list the types of evidence that a petitioner could

submit to establish the alien was of O-1 caliber. In reality, the

standard for an alien of extraordinary ability in the O-1

classification is that the alien is one of the small percentage of

individuals who have risen to the very top of their field of endeavor.

The evidence submitted by the petitioner is not the standard for the

classification, but merely the mechanism to establish whether the

standard has been met. The paragraph headings for

Sec. 214.2(o)(3)(iii), (iv), and (v) have been amended to reflect this

change in terminology.

The Service has also received comments that the interim rule is

complicated as it appears to require a petitioner to submit two

separate sets of evidence to establish the beneficiary's eligibility.

In fact, the interim rule at Sec. 214.2(o)(3) sets forth the

evidentiary requirements for the classification while Sec. 214.2(o)(6)

describes the type of evidence which may be submitted to meet this

requirement. However, in order to remove any ambiguity in this matter,

the Service has amended the interim rule by changing the heading of the

paragraph (o)(6), which provides a description of the evidence to be

submitted, and moving it to paragraph (o)(2)(iii) in the final rule. As

a result of this change, it should be clear to the public that the

purpose of this particular paragraph is merely to provide a description

of the types of evidence which may be submitted by a petitioner. For

further clarification, the final rule also contains a new paragraph at

(o)(2)(ii) which contains a general summary of the evidence required to

be submitted for an O petition.

The five fields of activity included in the statute (sciences,

arts, education, business, and athletics) are sufficiently broad so

that aliens employed in most occupations within these fields may be

classified as O-1 nonimmigrant aliens provided, of course, that such

classification is not precluded by statute or regulation and the alien

is eligible for such classification.

Form of Documentation--Sec. 214.2(o)(2)(iii)(A)

Twenty-five commenters suggested that the Service's requirement

that the person in charge of an institution, firm, establishment, or

organization where the beneficiary's work was performed should not be

solely responsible for executing the documents submitted in support of

an O petition. The commenters suggested that a responsible person, not

necessarily the person in charge, should be permitted to endorse the

supporting documentation. The Service agrees with this suggestion and

the final rule will be amended to require that documentary evidence

need only be endorsed by a responsible person at the organization,

firm, institution, or establishment where the work was performed, and

not necessarily the person in charge.

Services for More than One Employer--Sec. 214.2(o)(2)(iv)(B)

One individual suggested that the final rule contain a provision

allowing an O-1 alien to work concurrently for two employers without

the employers filing separate petitions for the alien. The statute

requires that, prior to according an alien O-1 status, the Attorney

General must determine if the alien will continue to be employed in the

area of the extraordinary ability or achievement. This determination

cannot be made unless each employer files a petition for the alien.

Further, although approval of an O nonimmigrant petition does not

involve a test of the U.S. labor market, the statute clearly requires

that labor organizations, peer groups, and, in some cases, management

organizations, must be consulted prior to according an alien O

classification. In order to ensure that these criteria are met,

separate petitions must be field by each employer. Therefore, this

comment will not be adopted.

Change of Employer--Sec. 214.2(o)(2)(iv)(C)

This paragraph has been amended in the final rule to reflect that

when an O alien changes employers, the new employer must also seek an

extension of the alien's stay. This alteration makes the O regulation

consistent with the P regulation.

The language contained in the interim rule has also been amended to

reflect that in those situations where the petition was filed by an

agent and the alien changes employers, the agent must file an amended

petition reflecting the change. The agent must also file for an

extension of stay. The language contained in the interim rule did not

accommodate this situation.

Amended Petitions--Sec. 214.2(o)(2)(iv)(D)

The language contained in the interim rule has been amended to

reflect that a petitioner may add additional performances, events, or

competitions to a valid O petition without filing an amended petition.

This amendment was adopted by the Service as a result of comments

received from the public as a result of the operation of the interim

rule.

Definitions of terms found in the O-1 Nonimmigrant Category--

Sec. 214.2(o)(3)(ii)

One commenter suggested that chefs should be included in the

definition of the term ``arts''. Since a chef requires skill and

creative imagination in order to ``create'' dishes and meals, the

Service will include culinary arts within the definition of the term

``arts''. Of course, a chef would have to meet the regulatory standards

required for classification as an O-1 artist.

Fourteen commenters also recommended that the term arts should

include not only principal creators and performers, but other essential

persons such as, but not limited to, directors, set designers, and

choreographers. Since there is legislative support for this suggestion

at 137 Cong. Rec. S18247 (daily ed. Nov. 26, 1991), this suggestion

will be adopted.

One commenter suggested that the definition of arts should

specifically include those aliens involved in live musical performances

and their embodiment in sound recordings. The suggestion will not be

adopted since these entertainers are already included in the definition

of arts as they are, obviously, performing artists. It should be noted

that it is not feasible to list every occupation in the regulation

which can be considered to fall within the very broad field of arts.

Forty-four commenters suggested that the final rule include a

definition of the term ``event'' to provide guidance to petitioners as

to what activities are covered by the petition. In response to these

comments, the final rule now contains a definition of the term

``event''. The definition recognizes that short vacations often occur

during an event or performance which are incidental and/or related to

the event or performance. The Service will not include the term

``layoffs'' in the definition of the term ``event'', as the term

commonly implies a negative and adverse action of unemployment.

However, the definition will include language which allows for short

stopovers between performances, such as in a tour. The Service believes

that business events are adequately considered in the definition as

business projects.

In response to a comment that the definition of the term

extraordinary ability found in the interim rule was confusing, the

definition has been amended in the final rule. For clarification, the

final rule contains a definition of the term ``extraordinary ability in

the field of arts'' and a separate definition of ``extraordinary

ability in the field of science, education, business, or athletics''.

For further clarification, the definition of the term ``distinction''

found in the interim rule has been included in the definition of the

term ``extraordinary ability in the field of arts''.

Two commenters recommend that the definition of peer group be

altered to be less restrictive. The definition of peer group contained

in the interim rule required that the members of the peer group be of

``similar standing with the alien''. Due to the high standards for the

O-1 category in the fields of science, business, education, and

athletics, it would be very difficult for prospective petitioners to

find a group of individuals who were of similar standing with the

beneficiary. Therefore,the definition of the term ``peer group'' has

been modified in the final rule to remove this phrase.

One commenter, citing section 214(c)(6)(A)(i) of the act, suggested

that the definition of peer group be amended to indicate that a peer

group could be a person or persons of the alien's choosing with

expertise in the alien's particular field of endeavor. The Service has

interpreted this particular section of law as allowing petitioners to

submit a consultation in the case of an O-1 alien of extraordinary

ability from either a peer group or a person or persons of its

choosing. It is the Service's opinion that the term ``person or persons

of its choosing'' was placed into the statute as an alternate source

for a consultation and was not included as a definition of the term

``peer group.'' Therefore, this comment will not be adopted.

Criteria for Establishing That a Position Requires the Services of an

Alien of Extraordinary Ability or Achievement--Sec. 214.2(o)(3)(iii)

Two commenters recommended that the criteria for establishing a

position requiring the services of an O-1 nonimmigrant alien should be

amended since such criteria relate more to the petitioner than the

actual position itself. In addition, one commenter suggested that there

is no statutory support for the requirement than an O-1 alien be coming

to perform services requiring an alien of O-1 caliber. The commenter

noted that the statute merely requires that the O-1 alien be coming to

perform services in the area of extraordinary ability.

After careful consideration, the Service agrees that there is no

statutory support for the requirement that an O-1 alien must be coming

to the U.S. to perform services requiring an alien of O-1 caliber. As a

result, this paragraph has been deleted from the final rule. The alien,

however, must be coming to perform services in the area of

extraordinary ability as is required in the statutory definition of the

classification.

Evidentiary Criteria for an O-1 Alien of Extraordinary Ability in the

Fields of Science, Education, Business, or Athletics--

Sec. 214.2(o)(e)(iv)

Eighteen comments were received relating to the criteria for an

alien of extraordinary ability in the fields of science, education,

business, or athletics. One commenter suggested that a businessman

could not obtain classification as an O-1 alien since the criteria for

the classification did not readily accommodate individuals in the field

of business. It is the opinion of the Service that the evidentiary

criteria for aliens of extraordinary ability do accommodate business

people. An O-1 business person, i.e., a business person who is at the

very peak of his or her occupation, would, in all likelihood, be able

to meet many of the evidentiary criteria listed in the regulation. Also

the ``catch-all'' category at Sec. 214.2(o)(3)(iv)(C) allows for the

submission of additional evidence not covered by the other criteria.

One commenter suggested that all hockey players in the National

Hockey League should be eligible for O-1 classification. The Service

cannot adopt this suggestion since extraordinary ability can only be

accorded to the small percentage of individuals who have risen to the

very top of their field of endeavor.

Fourteen commenters suggested that comparable evidence should be

defined as ``evidence appropriate to, and recognized within the

field.'' The Service will not incorporate this suggestion into the

final rule since it is not necessary. Clearly, any evidence submitted

in support of an O-1 petition must relate to the alien's field of

endeavor and be recognized in that field of endeavor or else it is of

no value in the adjudication of the petition.

Four commenters also suggested that the comparable evidence

criteria be eliminated as it compromises the other more specific

criteria. The Service will not adopt this suggestion as the comparable

evidence criteria merely allows petitioners in cases where the

beneficiary is employed in an unusual or obscure field of endeavor to

submit alternate, but equivalent, forms of evidence.

One commenter suggested that the O-1 criteria for university and

college professors are excessive and should be altered. The Service

will not adopt this suggestion since the O-1 category is reserved for

those aliens who have reached the very top of their occupation or

profession. The standard for the classification as created by Congress

was designed to be extremely high and limited to only the best

individuals employed in a particular field.

Evidentiary Criteria for an O-1 Alien of Extraordinary Ability in the

Field of Arts--Sec. 214.2(o)(3)(v)

Under the statute, the standard for an O-1 artist is significantly

lower than the standard for an alien of extraordinary ability in the

fields of science, education, business, or athletics. Petitioners are

required to establish only that the O-1 artist is prominent in his or

her field of endeavor. Eligibility for O-1 classification in the field

of arts is not limited to those aliens who have reached the very top of

their professions as is required in the fields of science, business,

education, or athletics. In order to establish an alien as an O-1 alien

of extraordinary ability in the field of arts, the petitioner must

submit evidence that the beneficiary has received, or been nominated

for, a major international or national award or submit evidence

relating to three of six other criteria. The regulation also allows the

submission of comparable evidence if the six listed criteria cannot be

met.

A number of comments were received addressing the evidentiary

criteria for the classification. Many of the comments suggested that

the criteria be altered in some fashion. One commenter suggested that

the criteria for this category were duplicative and that by meeting one

criterion, the alien would actually meet two. Thirteen commenters

suggested that the interim regulation should be altered to provide that

second or third place finishes in a prestigious competition qualify an

alien as an O-1. Thirteen commenters also suggested that the receipt of

lesser awards than those specified in the regulation should be a

separate criterion in the regulation. One commenter stated that

additional awards should be listed in the regulation for aliens

employed in the recording industry.

The Service will not adopt any of the foregoing suggestions. It is

recognized that a number of the criteria listed in the regulation are

similar to one another, but it must also be noted that no two are

identical. Further, the Service's decision in a particular case is also

dependent upon the quality of the evidence submitted by the petitioner,

not just the quantity of evidence. The mere fact that the petitioner

has submitted evidence relating to three of the criteria as required by

the regulation does not necessarily establish that the alien is

eligible for O-1 classification.

The interim regulation also provides that O-1 eligibility can be

established if the alien has been nominated for a significant national

or international award. Thus, second and third place finishes are

already contemplated in the regulation.

It must be noted that the awards listed in the regulation are

provided merely as examples and are not all-inclusive. Other major

national or international awards will also be considered by the Service

in determining the alien's eligibility. The listing of every major

national award in every field of endeavor is, therefore, not necessary.

Finally, pursuant to Sec. 214.2(o)(3)(v)(C), it is understood that, in

certain cases, a petitioner may submit evidence that the beneficiary

has been the recipient of less significant awards in support of the

petition.

Two commenters also recommended that the interim rule be amended to

reflect that the salary of the proposed position should be high in

relation to others in the field. Since, in some cases, the proffered

salary may be indicative of the alien's level of recognition, the final

rule has been amended to include language indicating that the alien's

salary may be used as a criteria in establishing the alien's

eligibility for O-1 classification. However, the Service recognizes

that situations may arise where an O-1 alien is coming legitimately to

the U.S. to perform services in a position where there is little or no

salary. For example, an O-1 entertainer may be invited to come to the

U.S. to perform at a charity event and receive no remuneration. The

alien is still of O-1 caliber even though the proffered salary may be

minimal. As a result, the alien's salary may be considered by the

Service in determining the alien's eligibility but a high salary is not

a mandatory requirement for establishing eligibility.

One commenter stated that the term ``critical role'' should be

removed from the eligibility criteria for an O-1 alien since it was not

contained in the pre-IMMACT H-1B regulations. The commenter noted that

Congress desired that the criteria for aliens of extraordinary ability

in the arts mirror the prior H-1B criteria for prominent aliens. The

Service will not adopt this suggestion as the inclusion of this term

does not alter or lessen the criteria for the classification in any

meaningful fashion. The term merely expands and explains the criteria.

Evidentiary Criteria for Aliens of Extraordinary Achievement in the

Field of Motion Picture and Television--Sec. 214.1(o)(3)(vi)

Three commenters suggested that the standard for aliens of

extraordinary achievement in the motion picture and television industry

should be higher than the standard for aliens of extraordinary ability

in the arts. In the interim rule, the Service linked these two

categories together. The Service now agrees that the standards for

these two classifications are different and will incorporate this

suggestion into the final rule.

One of the significant changes contained in Pub. L. 102-232 was

that Congress provided a statutory definition to extraordinary ability

in the arts. Congress has defined this term as ``distinction'', which

has been interpreted by the Service to mean ``prominence'', See 137

Cong. Rec. S18247 (daily ed., Nov. 16, 1991). This statutory change

effectively lowered the standard for aliens in the field of arts

originally contained in IMMACT and differentiated the standard for

artists for extraordinary ability from other aliens of extraordinary

ability. However, Pub. L. 102-232 did not lower the standard for aliens

of extraordinary achievement in the motion picture and television

industry but left the standard intact. Thus, the Service can no longer

link these two categories of aliens together since the categories now

have different standards.

As a result, the final rule has been modified to reflect that an

alien of extraordinary achievement in the field of motion pictures or

television must meet a higher standard than that for an alien of

extraordinary ability in the field of arts, namely, the prominence

standard. The Service has defined the standard for aliens of

extraordinary achievement in the field of motion pictures and

television in the final rule as a very high level of accomplishment

evidenced by a degree of skill and recognition significantly above that

ordinarily encountered. The alien must be outstanding or notable in the

field of endeavor. An alien who is merely well-known, i.e., a prominent

alien, would not qualify for this category.

It should be noted that the evidentiary criteria for aliens of

extraordinary ability in the arts and for aliens of extraordinary

achievement in the motion picture or television industry are the same.

However, this does not mean the standards for the classification are

the same. Again, the standard for the classification relates to the

definition of the classification, not to the evidence submitted by the

petitioner. Thus, while the Service will examine the same evidence for

these two classifications, it will weight the evidence differently, and

requires aliens of extraordinary achievement in the motion picture and

television industry to meet a higher standard than aliens of

extraordinary ability in the field of arts.

The effect of these regulatory and statutory changes is that there

are now three distinct categories of aliens in the O-1 classification.

One classification relates to aliens of extraordinary ability in the

fields of science, education, business, or athletics. The standard for

this classification is that the alien is one of the small percentage of

persons who have risen to the top of this profession. The second

classification relates to O-1 aliens of extraordinary ability in the

field of arts. The standard for this classification is that the alien

is prominent. The third category within the classification relates to

aliens who are of extraordinary achievement in the field of motion

pictures or television. The standard for this classification is that

the alien is outstanding in his or her field, but not necessarily at

the very top of the profession.

In order to effectuate this change, the final rule now contains a

new paragraph at (o)(3)(vi) containing the criteria for O-1 aliens of

extraordinary achievement in the field of motion pictures and

television.

One commenter suggested that the standards for the categories

within the O-1 classification do not reflect that the aliens must have

sustained national or international acclaim. The Service believes that

the descriptions of the classifications at Sec. 214.1(o)1)(ii)

accurately reflect Congressional intent since the regulatory language

is taken directly from the statute.

Petition for an O-2 Accompanying Alien--Sec. 214.2(o)(4)

One commenter suggested that the reference to U.S. workers be

deleted from the regulation as it was not contained in the statute. The

statute requires that 0-2 aliens have critical skills and experience

with the 0-1 alien which are not of a general nature and which are not

possessed by other individuals. On the other hand, the interim rule

merely requires that the petitioner establish that the alien have

critical skills which are not possessed by a U.S. worker. The

regulatory standard is, in effect, a lesser standard than that required

by the statute. As a practical matter, the U.S. worker standard can be

more easily established by a prospective petitioner than a worldwide

worker standard because of the availability of the consultation

process. Therefore, the Service will not adopt this suggestion since it

would further complicate the petitioning process by requiring

petitioners desiring to import essential support personnel to establish

that the alien's skills and knowledge are not possessed by anyone else

in the world. Clearly, Congressional intent in this area was to protect

U.S. workers, not workers in other countries.

One commenter recommended that the Service should require that an

accompanying alien have at least three years of experience with the 0-1

alien before accompanying alien status can be granted. The Service will

not adopt this suggestion as it does not provide sufficient flexibility

to accommodate aliens employed in the entertainment and sports fields.

Consultation Process for O Nonimmigrants--Sec. 214.2(o)(5)

A large number of comments were received from the public concerning

the consultation process. This portion of the preamble discusses only

those comments which relate to the consultation process for O

petitions. The comments which relate to both the O and P

classifications are discussed in the ``general'' discussion section of

the preamble below.

Although a number of commenters have suggested otherwise, the

Service strongly believes its interpretation of the consultation

requirement as contained in IMMACT is correct and proper. The Service

recognizes that the process is sometimes cumbersome and time-consuming.

Further, the Service is aware that in some places, e.g., Puerto Rico,

an appropriate consulting entity may not exist. However, the

consultation process is a requirement of the Act which provides the

Service with valuable information in the adjudication of certain

petitions. The Service has used the consultation process in order to

obtain information from expert sources, e.g., management organizations

and labor organizations, concerning the nature of the proffered

position as well as the credentials of the beneficiary. The final rule

incorporates many of the suggestions provided by commenters. The

suggestions which were adopted should make the process easier for the

public to use.

Seventy-four commenters recommended that, in the case of an alien

of extraordinary ability, an advisory opinion could be submitted in

support of the petition by an expert in addition to a peer group or

labor organization. Since this is provided for in the Act at section

214(c)(6)(A)(i), this suggestion will be adopted in the final rule.

Section 214.2(o)(5)(ii) has been amended to reflect this change.

One commenter recommended that the waiver provision contained in

paragraph (o)(5)(ii)(B) should be applied to all O-1 nonimmigrant

aliens if they seek readmission to the United States to work in the

same occupation. The waiver provision as described in the interim rule

relates only to aliens of extraordinary ability in the field of arts.

The Service will not adopt this suggestion since the consultation

process is a statutory requirement and the waiver provision, found at

section 214(c)(3) of the Act, is specifically limited to aliens of

extraordinary ability in the field of arts. The Service does not have

the authority to waive the consultation unless specifically provided

for in the Act.

One commenter stated that the final rule should contain language

providing that it is the petitioner's responsibility when requesting

this waiver to provide a copy of the prior consultation and to

specifically request the waiver in writing. The Service will adopt this

suggestion and the final rule will be amended accordingly.

Ninety-four commenters stated that, in order to comply with section

214(c)(6)(B) of the Act, labor organizations should be able to respond

to the Service's request for a written advisory opinion merely with a

letter of no objection as opposed to a full discussion of the

beneficiary's credentials and the proffered position. The commenters

noted that in many cases involving petitions filed in the entertainment

field, time is a crucial factor and a more detailed consultation could

delay the adjudication of the petition. The Service agrees with this

suggestion. This suggestion will be adopted and the final rule will be

amended accordingly. Labor organizations may respond to the Service's

request for a consultation with a simple letter of no objection if the

labor organization has no objection to the approval of the petition.

However, if the labor organization objects to the approval of the

petition, the consultation must contain a detailed response to the

Service's request for consultation.

It should be noted that petitions for 0-1 artists which are filed

without a consultation from a labor organization will require

additional time to adjudicate since the Service will be required to

contact the national office of the appropriate labor organization. For

this reason, petitioners in 0-1 cases should consider obtaining a

consultation from a labor organization prior to filing the petition

although not required to do so by statute.

In response to comments from field offices, paragraph(o)(5)(ii)(E),

which relates to the process for obtaining expedited consultations, has

been altered to remove the reference to peer groups. Pursuant to

section 214(c)(6)(B) of the Act, since the Service is required to

consult with a labor organization in those instances where a petition

is accompanied only by a peer group consultation, the Service would

not, as a matter of general practice, consult with a peer group prior

to adjudicating a petition. Section 214(c)(6)(B) of the Act was drafted

by Congress to ensure that organized labor could be provided with an

opportunity to comment on a prospective employment situation. Congress

did not intend to provide peer groups with the same opportunity since

the provision is not contained in statute. However, Service officers

have the discretion to contact a peer group prior to adjudicating a

petition if it is deemed appropriate.

One commenter recommended that separate consultations should not be

required for 0-2 nonimmigrant aliens. This comment will not be adopted

since the Act requires that all petitions for 0-2 nonimmigrant aliens

be accompanied by a consultation from a labor organization or a

management organization with expertise in the specific field involved.

Admission Periods for O Nonimmigrants--Sec. 214.2(o)(10)

One commenter suggested that there should be no regulatory limit on

the length of admission for an O nonimmigrant alien. The suggestion

cannot be adopted since the period of stay for an O nonimmigrant is

limited by the Act to the period of time required by the alien to

complete the event or events described on the petition. An 0-1

classification may not be granted to an alien to enter the United

States to free lance in the open market. An 0-1 alien must be coming to

the United States for specific events.

The three-year period of time listed in the final rule relates only

to the alien's initial period of admission. The alien's total period of

stay in the United States will be limited to the duration of the event.

There is no maximum time limit on the O-1's total stay in the United

States.

The P Nonimmigrant Classification

Prior to discussing the comments for the P nonimmigrant

classification, it must be noted that this portion of the final rule

contains the same changes in terminology relating to standards and

evidentiary criteria as in the O classification. The final rule no

longer refers to the evidentiary criteria for a particular

classification as the ``standards'' for the classification. The

standard for a classification is not the evidentiary criteria for the

classification, but the definition of the classification itself. The

appropriate paragraph headings have been amended to reflect this change

in terminology.

The final rule also contains a new paragraph Sec. 214.2(p)(2)(ii)

which summarizes the evidence required to be submitted with a P

petition and a new paragraph (p)(2)(iii) which describes the evidence

which can be submitted with a P petition. The addition of these two

paragraphs should clarify the documentary requirements for the

nonimmigrant classification.

Filing of Petitions--Sec. 214.2(p)(2)(i)

In order to accommodate the situation where a P-1 entertainment

group will be performing in the United States without receiving a

salary, (e.g., performing in a benefit show) language has been added to

the final rule indicating that a U.S. sponsor may also file a P-1

petition.

Since the publication of the interim rule, a number of individuals

have inquired as to whether an individual entertainer could be

petitioned for by a U.S.-based entertainment group under the P-1

classification. Also, one commenter suggested that the Service should

not apply the 75 percent rule to U.S.-based entertainment groups. The

Service has decided to address these issues in a separate rule.

A number of commenters stated that it was not clear whether an

agent could file a P petition. The final rule contains language

clarifying that P petitions may be filed by established U.S. agents.

Change of Employer--Sec. 214.2(p)(2)(iv)(C)

In order to accommodate those situations where an agent files a

petition and where the alien change employers, this paragraph has been

amended to reflect that the agent should file an amended petition with

information relating to the new employer. The agent must also request

an extension of the alien's stay.

Amended of Petitions--Sec. 214.2(p)(2)(iv)(D)

The language contained in the interim rule has been amended to

reflect that a petitioner may add similar performances during the

validity of a P petition without the necessity of filing an amended

petition. This amendment was adopted by the Service as a result of

public comments during the operation of the interim rule.

Multiple Beneficiaries--Sec. 214.2(p)(2)(iv)(F)

The interim rule contained the requirement that essential support

personnel could not be included on the petition for the principal alien

or aliens but, instead, should be filed on a separate petition. Sixty-

nine commenters suggested that this procedure resulted in an

unnecessary expense to petitioners who were required to submit two

petitions for almost every entertainment act. These commenters

suggested that in order to avoid this unnecessary expense, essential

support personnel should be included in the petition for the principal

alien. The Service is aware of the expense involved in filing these

petitions but cannot adopt the suggestion. The Service is required by

the Act to furnish an annual report to Congress addressing the

occupations contained in P petitions. The only way that the Service can

properly track these occupations is to require the submission of

separate petitions for essential support personnel.

Definitions Found in the P Classification--Sec. 214.2(p)(3)

Event, Competition, or Performance

One commenter suggested that the definition of the term ``event''

as contained in the interim final rule be amended to include the

duration of the alien's contract. The Service agrees with this

suggestion and will adopt it in the final rule.

Another commenter suggested that the definition of event should be

expanded for hockey players and other athletes. The Service believes

the definition contained in the interim final rule is broad enough and,

as written, contemplates an entire season or the length of the alien's

contract, if longer than the season.

Labor Organization

Forty-four commenters suggested that the final rule contain a

definition of the term ``labor organization''. The Service does not

believe that such a definition is necessary because the term ``labor

organization'' as used in the interim rule is the common, every-day

usage of the term. Where the Service uses the common, every-day

definition of a term, it need not be incorporated into the regulation.

Essential Support Personnel

A number of comments were also received from the public concerning

the Service's definition of essential support personnel. As written in

the interim rule, essential support personnel are highly skilled,

essential workers who are determined to be an integral part of a P

nonimmigrant's performance which cannot be performed by a U.S. worker.

The rule requires that the support alien have prior experience with the

principal alien.

Eighteen commenters suggested that the Service delete the

requirement that essential support personnel have experience with the

principal alien and three commenters stated that the requirements for

the support aliens were too high. Forty-one commenters also suggested

that the reference to U.S. workers should be removed.

The Service will not modify the definition of essential support

personnel. The requirement that the essential support personnel have

experience with the principal alien is based on the language found in

the Act describing the P-1 classification. The Act requires that P-1

classification may be granted to an alien entertainer who performs with

or is an integral and essential part of the performance of a group. It

is the Service's view that in order to become an integral and essential

part of the performance, the essential support personnel must have had

experience with the group.

In order to clarify the final rule regarding essential support

personnel, two new paragraphs have been added at (p)(6)(iii) and at

(p)(7)(iii) which discuss petitions for essential support personnel for

the P-2 and P-3 categories.

Evidentiary Criteria for an Internationally Recognized Athlete or

Athletic Team Sec. 214.2(p)(4)(ii)(B)

One commenter suggested that a major league contract should be

sufficient evidence to establish P-1 classification. The Service agrees

with this suggestion to a certain extent and has made arrangements with

the National Hockey League as well as Major League Baseball to

establish guidelines for these sports separate from, but consistent

with, the regulatory criteria. These guidelines will be published in

the Service's operations instructions.

Since the implementation of the interim rule, the Service has

received a number of questions from the public as to how the

evidentiary criteria for the classification relate to amateur athletes.

The Service has crafted the rules relating to P-1 athletes with the

professional athlete in mind. Amateur athletes are properly

classifiable under the B-1 nonimmigrant classification and, as a

result, the criteria contained in the regulation may not accommodate

them.

In order to accommodate those sports where the athlete is not

required to sign a written contract, the final rule contains language

indicating that a written contract need not be submitted if such

contracts are not normally used in the particular sport.

Evidentiary Criteria for Members of Internationally Recognized

Entertainment Groups--Sec. 214.2(p)(4)(iii)(B)

In order to establish eligibility for P-1 status, the petitioner

must demonstrate that the group is internationally recognized. The

interim final rule provides that a petitioner can establish the group's

eligibility by submission of evidence that the aliens have received or

been nominated for a significant international award or prize. In lieu

of the above, petitioners may also submit three forms of evidence from

a list of six items to establish eligibility.

Forty-one commenters suggested that the final rule contain a

``catch-all'' category as contained in the O-1 regulation to

accommodate those instances where the evidence required by the

regulation cannot be obtained for the particular industry in which the

alien is employed. The suggestion will not be adopted since this

portion of the P-1 classification relates only to the field of

entertainment. The six evidentiary criteria listed in the regulation

should accommodate all aliens employed in the field of entertainment.

The ``catch-all'' category was placed in the O-1 regulation since the

regulation addressed the field of arts, a much broader field than the

field of entertainment.

One commenter suggested that an alien's nomination for a

significant award should not be a criterion for establishing P-1

classification an that only the actual winner of the award should be

able to use this criterion. Prior to the publication of the interim

rule, the Service entered into lengthy meetings with organized labor

and with management organizations in the entertainment field to develop

the criteria for this classification consistent, of course, with

Congressional intent. The criteria listed in the regulation are the end

result of those meetings and are agreeable to both sides. It is the

opinion of the Service that the criteria contained in the interim rule

are fair and equitable and should not be altered.

One commenter suggested that an entertainment group should be

required to establish that it has been internationally recognized for a

period of 1 year. The suggestion cannot be adopted as it has no support

in the Act. The Act merely requires that it be established for 75

percent of the group has been performing regularly for a period of 1

year and that the group is internationally recognized for a sustained

and substantial period of time. There is no statutory requirement that

the group be internationally recognized for a period of 1 year.

One commenter stated that newer entertainment groups would have

difficulty meeting the evidentiary criteria for the P-1 classification.

This statement is accurate since the clear language of the Act

indicates that a P-1 entertainment group must have been internationally

recognized for a sustained and substantial period of time. Congress

intended that only those entertainment groups which had achieved a

certain level of fame would be eligible for the classification.

Entertainment groups which do not have the required international

recognition may be petitioned for under the H-2B classification, which

does not have a qualitative standard.

The interim final rule requires that 75 percent of the members of

an entertainment group must be employed on a regular basis by the

group. One commenter suggested that this language should be changed to

reflect that only intermittent employment with the group should be

required for P-1 classification. The Service cannot adopt this

suggestion since the Act requires that the group be together for a

sustained and substantial period of time. Sustained employment with the

group cannot be interpreted as intermittent. While a group is not

required to perform on a continual basis, it must be established that

when the group does perform, 75 percent of the members of the group are

regular performers with the group.

Thirteen commenters object to the requirement that petitioners are

required to list every member of the group on the petition when it is

filed. This comment will not be adopted since the Service must have all

the group members listed on the petition in order to verify that 75

percent of the group has been performing together on a regular basis.

Additionally, consular posts use the list of names provided on the

petition to issue visas and the Service uses the list to issue entry

documents to the aliens at Ports-of-Entry.

The interim rule contains the language that the group, under the

name listed on the petition, must have been performing regularly for a

period of 1 year. Twenty-two commenters suggested that a petitioner

should be required only to establish that the group is substantially

the same, even though the group name may be different. In response to

this suggestion, the Service will remove this requirement from the

regulation. A group may be accorded P-1 status based on its recognition

under a prior name provided the group is currently of P-1 caliber and

75 percent of the members of the group have been performing regularly

for a period of 1 year.

One commenter also recommended that the interim rule be amended to

reflect that the salary of the proposed position should be high in

relation to others in the field. Since, in some cases, the proffered

salary may be indicative of the P-1 group's level of recognition, the

final rule has been amended to include language indicating that the

group's salary may be used as a criteria in establishing the

eligibility for P-1 classification. However, the Service recognizes

that situations may arise where a P-1 alien is coming legitimately to

the U.S. to perform services in a position where there is little or no

salary. For example, a P-1 entertainment group may be invited to come

to the U.S. to perform at a charity event and receive no remuneration.

The group is still of P-1 caliber even though the salary may be

minimal. As a result, while salary may be considered by the Service in

determining the alien's eligibility, a high salary is not a mandatory

regulatory requirement for establishing eligibility.

One commenter suggested that the criteria for the P classification

were duplicative and do not reflect international recognition. As

discussed under O nonimmigrant classification, some of the criteria are

similar but no two are identical. It is the opinion of the Service that

if the criteria as contained in the interim rule are met, the alien or

aliens have international recognition. Therefore, this suggestion will

not be adopted.

Alien Circus Personnel--Sec. 214.2(p)(4)(iii)(C)

P-1 circus personnel are exempt from the international recognition

requirement and the 1-year group membership requirement. Sixteen

commenters stated that the language contained in the interim rule did

not clearly state this and suggested that the actual statutory language

be used in its place. In order to avoid any possible confusion

concerning this issue, the Service will adopt this suggestion and amend

the final rule to indicate that circus personnel are exempt from both

the 1-year group membership requirement and the international

recognition requirement. It must established by the petitioner that the

circus for which the aliens are coming to perform is recognized

nationally. It must also be remembered that 0-1 circus performers must

meet the standard for that classification, not the P-1 classification.

The P-2 Nonimmigrant Classification--Sec. 214.2(p)(5)

The P-2 classification relates to aliens who are coming to the

United States under a reciprocal exchange program agreement between an

organization in the United States and an organization or organizations

in a foreign country. Such a reciprocal exchange program agreement can

be between management groups. Although Sec. 214.2(p)(5) was promulgated

as a final rule on December 2, 1991, 56 Fed. Reg. 61135, 28 comments

were received relating to the P-2 classification. Twenty-six commenters

suggested that the Service remove the requirement from the final rule

that the P-2 alien be experienced since the requirement was not

contained in the Act. The Service agrees with this suggestion and will

remove the requirement from the final rule. Petitioners in P-2 cases

are not required to establish that the aliens involved in the

reciprocal exchange are experienced.

One commenter suggested that petitions for P-2 nonimmigrant aliens

should be approved for a period of 3 months since a significant number

of P-2 nonimmigrant aliens would be entering the United States for

numerous short-term engagements. The commenter noted that petitioners

for P-2 nonimmigrant aliens would be required to file numerous, repeat

petitions to accommodate all the various events in which the same alien

would be engaged over a short period of time. The commenter suggested

that, in order to facilitate the use of the P-2 classification, the

Service should grant P-2 petitions for a period of 3 months regardless

of the nature of the supporting event.

The Service cannot ignore the statutory requirement that a P-2

alien must be coming to the United States to perform in a specific

event or events. However, in order to accommodate the situation

described by the commenter, the Service will consider the period of the

reciprocal exchange agreement to be the event and not the underlying

performances. As a result, P-2 petitions may be initially approved for

the duration of the reciprocal exchange agreement, not to exceed 1

year. The definition of the term ``event'' has been altered to reflect

this change.

One organization also suggested that the U.S. labor organization

involved in the reciprocal exchange agreement be permitted to file the

petition since P-2 aliens are normally working for more than one

employer in the United States. In order to accommodate the special

circumstances of the P-2 nonimmigrant classification, the Service will

allow the U.S. labor organization which is party to the reciprocal

exchange agreement to file the P-2 petitions using the same guidelines

which relate to the filing of P petitions by establishing U.S. agents

described in 8 CFR 214.2(p)(iv)(E).

The P-3 Nonimmigrant Classification--Sec. 214.2(p)(6)

The P-3 classification relates to aliens, either individually or as

part of a group, who are coming to the United States solely to perform,

teach, or coach under a culturally unique program. A number of

commenters stated that the standard and criteria for this

classification as contained in the interim rule were very restrictive

and imposed a number of requirements and qualitative standards which

had no statutory basis. For example, eight commenters noted that there

was no statutory support for the concept that P-3 aliens had to have

achieved international acclaim while fifty-eight commenters stated that

there was no statutory requirement that P-3 beneficiaries must perform

for cultural, governmental, or educational institutions.

The Service has carefully reviewed the many comments received

concerning the P-3 nonimmigrant classification and has made a number of

changes in the final rule to incorporate these suggestions. The final

rule requires only that the P-3 alien be coming to the United States

solely to perform, teach, or coach in culturally unique events. The

petitioner may be a commercial producer and there is no longer a

requirement that the events must be performed at cultural,

governmental, or education institutions.

However, all of the events in which the aliens will be performing

must be culturally unique. Consistent with the interim rule, there is

no requirement that a P-3 group have performed together for any

specific period of time.

The documentary requirements for a P-3 petition have also been

amended in response to the comments. Petitioners merely have to submit

evidence addressing the cultural uniqueness of the performance and

evidence that all performances are culturally unique. The qualitative

standards contained in the interim rule for P-3 nonimmigrant aliens

have been removed.

One commenter suggested that consultations for P-3 petitions should

not be required as it should be assumed that there are no consulting

organizations for P-3 petitions due to the uniqueness of the

performances or the art form. The Service cannot adopt this suggestion

since the consultation from a labor organization will provide the

Service with the important information necessary to make the

determination as to whether the performance is, in fact, culturally

unique.

Seven commenters suggested that the regulations were too

restrictive with respect to folk and traditional artists. As stated

earlier, the documentary requirements relating to P-3 petitions

contained in the interim rule have been altered. These alterations

should make it easier for prospective petitioners to petition for folk

or traditional artists. Petitioners must still establish, however, that

the folk music is culturally unique.

Consultation Process for P Nonimmigrants--Sec. 214.2(p)(7)

This section addresses the comments received from the public

relating specifically to the consultation process for P nonimmigrant

aliens. Comments relating to both the O and P classifications are

discussed in the general comment section.

The interim rule provides that where petitions for O-1 aliens of

extraordinary ability are filed without a consultation from an

appropriate labor organization, the Service is required to notify the

national office of the appropriate labor organization within 5 days of

the receipt of the petition. The labor organization then has 15 days to

respond to the request. After the labor organization responds, the

Service then has 14 days to adjudicate the petition. Forty-one

commenters suggested that the ``5-day rule'' should be applied to P-1

and P-3 nonimmigrant petitions. The Service cannot adopt this

suggestion since it is not appropriate to the P nonimmigrant category.

By statute, all petitions for P nonimmigrant aliens must be accompanied

by a consultation from a labor organization. As a result, the Service

would not have a reason to notify a labor organization to obtain an

opinion since it would have been submitted by the petitioner.

Forty-four commenters stated that the final rule should apply the

14-day adjudication timeframe discussed in the previous paragraph to

petitions filed for the P-1 and P-3 nonimmigrant classifications. The

Service does not wish to apply an arbitrary timeframe on the processing

of P petitions since it will serve no useful purpose. When local

conditions at a particular Service Center adversely affect the

processing time for P petitions, the Service believes that an arbitrary

timeframe will do little to correct the situation. The Service is aware

of the importance of the timely adjudication of P petitions and will do

everything possible to ensure that they are adjudicated in a reasonable

fashion.

Two commenters stated that labor organizations should not extract

agreements from petitioners and beneficiaries prior to providing the

required consultations. The monitoring of the negotiations between the

petitioner, the beneficiary, and the consulting organization is beyond

the scope of the Service's authority. While the Service has no policing

authority under the legislation in this area, it obviously does not

condone any consulting entity requiring a petitioner or beneficiary to

enter into an agreement outside of normal industry practices prior to

providing the consultation.

Two commenters stated that the consultation process allows labor

unions, not the petitioner, to decide who should be employed. The

Service disagrees with this statement since the consultation is an

advisory opinion and is not binding on the Service. Service officers

are not bound by the opinions of the consulting organization. The Act

clearly states that it is the Service, not the consulting organization,

which decides whether or not a petition for an O or P should be

approved.

Twenty-nine commenters suggested that the final rule should contain

a regulatory provision describing the procedure for establishing that a

labor organization does not exist and, further, that the regulation

should include an appeal procedure to determine if, in fact, a labor

organization exists. The Service does not wish to add a provision into

the final regulation establishing a formal procedure for determining if

a labor organization exists since the procedure may differ for various

fields of endeavor. It would seem, however, that the easiest method of

establishing the nonexistence of a labor organization would be to

submit affidavits or letters from practitioners in the field or from a

related labor organization stating that a labor organization does not

exist. The Service, obviously, has the final say as to whether the

evidence submitted is sufficient to establish the non-existence of a

labor organization.

One commenter suggested that there should be a regulatory provision

waiving the consultation for a period of 1 year for P-1 aliens where

there has been a previous consultation and the alien is returning to

the United States to perform in a similar role.

The Service will not adopt this suggestion since there is no

statutory support for a waiver of the consultation process in this

instance.

In view of the special provisions relating to circus personnel

contained in the Act, a new paragraph at (p)(7)(iii) has been added in

the final rule to address the consultation requirements for this class

of alien. Consultations for circus personnel should address the

national recognition of the petitioning circus or any other aspect of

the petition which the labor organization deems appropriate.

General Comments Relating to Both the O and P Classifications

Twenty-nine commenters stated that there should be no restrictions

on foreign entertainers entering the United States. The commenters

opined that the implementation of the regulations will cause harm to

the U.S. entertainment industry since foreign countries will take

reprisal actions against U.S. workers abroad.

It is the opinion of the Service that the restrictions contained in

this final rule reflect the intent of Congress in drafting the

legislation. If Congress had desired to allow for the admission of all

foreign entertainers and athletes without restriction, the statutory

language would have reflected this intent.

It must also be noted that the standards for the various

entertainment categories within the O and P classifications are, for

the most part, the same as the pre-IMMACT H-1B regulations relating to

prominent aliens. The implementation of this rule, therefore, is not a

significant change in policy or operating procedure but a continuation

of past practices. As a result, the Service does not envision the final

rule adversely affecting the entertainment industry.

Petition Extensions

The interim rule contains the requirement that extensions of stay

may be granted in order to continue or complete the event on which the

initial petition was predicated. Forty-seven commenters suggested that

petition extensions should be granted to complete new events. The

Service will not adopt this suggestion. The initial admission of an O

or P nonimmigrant is statutorily limited to specific events or

activities. In adjudicating O and P petitions, the Service is required

to examine the event or events listed on the petition as well as the

evidence relating to the qualifications of the alien to determine if

the petition can be approved. The addition of new events, in most

cases, will require the Service to review these new events to determine

if the petition remains valid. Thus, it follows that new events will

require the filing of a new petition, not an extension of an existing

petition. If the new events are merely additional engagements to the

initial tour, an extension of stay would be appropriate.

Extension Periods for O and P Nonimmigrants

Under the interim rule, extensions for O and P nonimmigrants may be

granted in increments of 1 year. One commenter suggested that

extensions should be granted for longer periods of time, noting the

fees charged by the Service for this adjudication. The 1-year period

for an extension is a device devised by the Service to ensure that the

alien beneficiaries are complying with the terms of the initial

petition. Through experience, the Service has learned that some alien

entertainers have used nonimmigrant classifications to freelance and

seek employment in direct competition with U.S. entertainers. Admission

as an O or P nonimmigrant is limited to a specific event or events. As

a result, this suggestion will not be adopted.

Foreign Film Crews

One commenter suggested that foreign film crews should not be

classified as O nonimmigrants but, instead, should be classified as B-1

nonimmigrant aliens. It has long been the Service's position that

foreign film crews are not eligible for B-1 classification as it cannot

be clearly established that the film will not be shown in the United

States at some future point in time. Thus, foreign film crews cannot

meet the accrual of profits test called for under the B-1 nonimmigrant

classification. See Matter of Hira, 11 I&N Dec. 824, (BIA, 1965).

Foreign film crews must be petitioned for under the O classification.

Consultation Process

As indicated previously, the consultation process generated a great

number of comments from the public. A number of modifications were made

to the consultation process as a result of the comments received from

the public. In addition, the Service has made a number of modifications

in the consultation process as a result of the operation of the interim

rule, which are also discussed in this section. As indicated

previously, the comments relating specifically to the O and P

categories are contained in the discussion relating to those

categories.

In general, all petitions for O and P classifications must be filed

with a consultation from an appropriate consulting entity. In the case

of P nonimmigrants, the petition must be filed with a consultation from

a labor organization having expertise in the alien's field of endeavor.

It does not matter whether the labor organization has entered into a

collective bargaining agreement covering individuals employed in the

alien's field of endeavor, as the Act merely requires that the labor

organization have expertise in the alien's field of endeavor.

For O-1 petitions for aliens of extraordinary ability in the field

of science, business, education, athletics, or arts, a petition must be

accompanied by a consultation from a peer group or other person or

persons (which may include a labor organization) of its choosing with

expertise in the area of the alien's employment. However, if the

petition is filed with a consultation which is not from a labor

organization, the Service is required to notify the national office of

the appropriate union. As as result of this notification process, the

Service strongly suggests that petitioners in the case of O-1 aliens of

extraordinary ability be accompanied by a consultation from a labor

organization so that the Service does not have to add additional time

to the adjudication process to wait for the response from the labor

organization. However, it must be noted that petitioners are not

precluded in this instance from submitting a consultation from a peer

group or other person or persons (which may include a labor

organization) of its choosing with expertise in the area of the alien's

employment.

Petitions for aliens of extraordinary ability in the motion picture

or television field must be filed with two consultations, one from a

labor organization and one from a management organization.

The only exception that the Service makes to these requirements is

in the case of expedited petitions. If the Service determines that a

petitioner's request for expedited processing is warranted,the Service

will obtain the required consultation or consultations on its own and

then adjudicate the petition.

Although not specifically addressed in the Act, petitioners are

required to obtain consultations from United States labor

organizations, peer groups, and management organizations, not foreign

organizations. Foreign organizations, peer groups, and management

organizations would not be aware of employment conditions in the United

States. In addition, where possible, petitioners should obtain

consultations from the national offices of the appropriate labor

organization. Local labor organizations are not equipped to provide

consultations and do not have knowledge of labor market conditions in

other parts of the United States.

Eighty-three commenters stated that it is possible that a

consulting organization may not wish or be able to provide the required

consultation within a satisfactory timeframe. These persons suggested

that the regulations should contain a 15-day timeframe in which a

consulting organization must respond to a petitioner's request for a

consultation prior to filing the petition with the Service.

The Service is concerned that some consulting entities may engage

in dilatory tactics, either intentionally or unintentionally, and not

provide a request consultation to a prospective petitioner within a

reasonable period of time. However, the Service does not wish to impose

a regulatory 15-day timeframe on consulting entities because such a

regulation would be unenforceable and would result in lengthening

petition processing times. There is no mechanism which can be devised

which can accurately determine with certainty whether or not a

consulting entity had been approached by a prospective petitioner and

whether the consulting entity every responded to a petitioner's request

for a consultation. Further, as of this writing, the Service is unaware

of any circumstances where a consulting entity has not provided a

consultation to a prospective petitioner within a satisfactory

timeframe. However, it a situation does develop where a consulting

entity does not provide the required consultation and the alien's

services are urgently needed, petitioners can request that the Service

expedite the processing of the petition.

Thirteen commenters stated that service or management organizations

should be considered the best source of information for petitioners

seeking consultations. Forty-one commenters also suggested that service

organizations should be able to compete in the consultation process.

Management organizations can provide consultations with respect to O

nonimmigrant petitions. However, with regard to P nonimmigrant

petitions, the Act clearly requires that petitioners consult only with

a labor organization. While petitioners for P nonimmigrant aliens may

submit a consultation from a management or service organization in

support of the petition, it is not required by the Act or regulation.

Whether a service organization is, in fact, the best source of

information concerning an alien's achievements in the field is a matter

of conjecture.

The interim rule requires that petitions for O and P nonimmigrant

aliens must be accompanied by a consultation for each separate

occupation listed on the petition. For example, a petition for O-2

accompanying aliens may include a variety of difficult support people.

Fourteen commenters stated that this requirement is burdensome and

should be deleted. The Service will not adopt this suggestion as it

uses the consultation process to obtain information on whether each

occupation included on the petition is truly essential or critical to

the principal alien or aliens. Without the consultation, the Service

would not have sufficient information on which to make a proper

decision on this issue.

The interim rule contains language that, if a petition is denied on

the basis of an adverse consultation, the consultation should be

attached to the Service's formal denial. Fifteen commenters objected to

this provision noting that consultations are merely advisory in nature

and should never be used as the sole basis for the Service's decision.

The Service agrees with this comment and the language will be removed

from the final rule. Petitions for O and P nonimmigrant aliens should

be adjudicated on the total evidence presented by the petitioner. The

consultation is just one piece of evidence which the Service reviews in

its decision and, as noted by the commenters, is purely advisory in

nature.

One commenter suggested that the consultation should focus entirely

on the beneficiary and not the position. The Service does not agree

with this comment. In adjudicating many O and P petitions, the Service

is required to examine the proffered position to determine if the

petition may be approved. The Service uses the information contained in

the consultation in making this decision. For example, in the case of

an O-1 nonimmigrant alien, the Service must examine the position to

determine if the alien will be entering the United States to work in

the area of his ability. Therefore, the suggestion will not be adopted.

Two commenters suggested that consulting entities should be

notified of the Service's decision in a case in which the consulting

entity provided a consultation. The Service has no objection to

notifying the consulting entity of the outcome of a case in which it

has provided a consultation and has instituted a mechanism to inform an

entity of the outcome of a particular case. An entity which has

provided a consultation in a particular case may attach to the petition

a self-addressed post card. After the petition is adjudicated, the post

card will be returned to the entity. It is the responsibility of the

consulting entity to ensure that the post card is submitted to the

Service. The Service will not become involved in disputes between a

consulting entity and a petitioner regarding this process.

The interim rule contains a description of the procedure that the

Service will use to obtain a consultation in a case determined to merit

expeditious processing. The rule indicates that the Service will

telephonically contact the consulting entity and request the

consultation. A number of comments suggested that the Service should

use facsimile capabilities in order to request the appropriate

consultation in order to expedite the process. As a result of this

comment, the Service has amended this portion of the interim rule

removing the reference to telephonic notification. Service Center

Directors now have the discretion to contact the appropriate consulting

entity utilizing the most expeditious method available.

Fifteen commenters stated that the consultation process may violate

the Privacy Act since a consulting organization is often provided with

personal information about both the petitioner and the beneficiary. The

Privacy Act applies only to ``individuals'', which it defines as aliens

lawfully admitted for permanent residence and U.S. citizens, 5 U.S.C.

Sec. 552(a)(1). Moreover, the Privacy Act only applies to records

contained in a ``system of records'', (i.e., records which the Service

retrieves by use of an individual's name and other personal

identifier). This situation does not exist in these circumstances.

The interim rule contained language that the Service would publish

a list of consulting entities in its Operation Instructions. As a guide

to further assist prospective petitioner, the Service will also publish

a list in its Operations Instructions of those fields of endeavor where

it has been determined that no consulting organization exists.

Periods of Admission

Fifty-two commenters suggested that the Service should grant longer

periods of admission than are currently contained in the interim rule.

The Service believes that the periods of admission for O and P

nonimmigrants contained in the interim rule are reasonable and will not

adopt this suggestion. The interim rule indicates that O-1 aliens may

be admitted for the length of the event, not to exceed 3 years. A P

nonimmigrant may be admitted for the length of the event, not to exceed

1 year. Of course, extensions of stay may be granted to complete the

event or events. Except for P-1 athletes, there is no maximum period on

the length of time that an O or P nonimmigrant may remain in the United

States. However, it is rare that a P-1 entertainment group would need

more than a year to complete an event or events. Most entertainment

events are for shorter periods of time and O or P classification may

not be granted to an alien merely to enter the United States to

freelance and seek employment. The O or P nonimmigrant alien is

admitted to the United States to perform in specific events as detailed

on the initial petition.

The Service also realizes that the filing of extensions of stay is

time-consuming. However, the Service uses the extension process as a

mechanism of ensuring that the alien is complying with the terms of his

or her initial admission.

Professional athletes may be initially admitted to the United

States for 5 years and may obtain extensions of stay for an additional

5 years. However, the P-1 athlete's admission is also tied to a

specific event such as a season, tournament, of the duration of the

alien's contract.

Recording the Validity of Approved Petitions

Thirteen commenters suggested that the Service grant petitions

retroactively. The Service will not adopt this suggestion since it

serves no useful purpose. The vast majority of petitions are filed and

approved prior to the actual date of the need for the alien's services.

Petitioners are cautioned by the Service to file petitions well before

the actual date of the need for the alien's services so that the alien

can commence employment when the event begins. Since the Service has

the capability to expedite the processing of an O or P petition in

emergency situations, it is rare that the Service will adjudicate a

petition after the event begins. To allow an alien to engage in

employment prior to the approval of the petition would be contrary to

the statute and would be in conflict with the employer sanctions

provisions of the Act.

In order to accommodate scheduling problems caused by untimely

adjudications, the final rule has been amended to allow Service Center

Directors the discretion to approve a petition beyond the date

requested by the petitioner if such additional time is needed to

complete the event. The final rule now contains language that in those

cases where the petition is approved after the date the event begins,

the approval notice shall ``generally show'' the actual dates requested

by the petitioner. This gives the Service the authority to approve a

petition for a longer period of time than requested initially by the

petitioner to complete the requested event when the approval of the

petition is delayed through Service action or inaction.

Change of Nonimmigrant Status

Twenty-six commenters suggested that the regulations appear to

preclude an O or P nonimmigrant from changing nonimmigrant

classification in the United States. There is nothing in the final rule

to preclude an O or P nonimmigrant alien from changing nonimmigrant

classification pursuant to 8 CFR part 248.

Fees

Forty-nine commenters suggested that the filing fees for the I-129

are too high. The Service has conducted an extensive cost analysis

study and determined that the filing fees for the petition are

consistent with the Service's cost in adjudicating the petition. The

fact that the Service's fees for the adjudication of a petition may be

higher than those in other countries is not a relevant factor. The

filing fee which the Service charges is designed to cover the cost of

adjudication and was not designed to be competitive with fees charged

in other countries.

Listing of Beneficiaries on Form I-797

Fifteen commenters noted that the approval notice, Form I-797, for

O and P petitions contains only the name of one beneficiary even though

the petition may relate to a group of individuals. These commenters

suggested that the I-797 be altered to provide the names of all the

beneficiaries listed on a petition.

Since publication of the interim rule, the Service has responded to

comments relating to this issue and has begun to list more than one

beneficiary on the approval notice.

Multiple Beneficiaries

The interim rule contained the requirement that if the

beneficiaries of a petition were applying for visas at different

consulates or, if visa exempt, at different Ports-of-Entry, separate

petitions with fee must be filed for each consulate or Port-of-Entry.

In order to streamline the petitioning process and cut costs for

petitions involving groups, petitioners are now required to submit only

one petition for the group regardless of where the beneficiaries will

obtain their visas or apply for admission to the United States.

Documentary Requirements

Forty-one individuals stated that the documentary requirements for

the O and P classification are too high. As previously stated, in

drafting this rule, the Service has used the documentary requirements

of the prior regulation where possible and has removed unnecessary

requirements. Since the O and P classifications contain qualitative

standards, the Service must require some sort of evidence to establish

the beneficiary's eligibility. Based on this, the Service does not view

the evidentiary criteria as being excessive.

Fourteen commenters stated that the Service should not require the

submission of a contract in support of an O or P petition since not all

contracts are written. The Service does not require the submission of

written contracts where they do not exist. The interim rule contains

language providing that in the case of O petitions, in a situation

where a written contract does not exist, a written summary of the terms

of the oral agreement may be submitted. This provision was not included

in the interim rule in the case of P petitions, but will be included in

the final rule.

Filing of Petitions

The interim rule contained the provision that petitions for the H,

O, and P nonimmigrant classifications shall be filed only at the three

Service Centers which adjudicate these types of petitions, even in

emergent circumstances. Seventy-four people commented on this

provision, suggesting that the Service allow for emergent filings at

local offices. The commenters indicated that this procedure would

provide petitioners with an ``escape-valve'' to allow them to petition

for aliens on short notice.

The Service proposed this provision to ensure that petitions would

be adjudicated in a consistent fashion and to enable the Service to

track the number of petitions filed for those nonimmigrant

classifications which are subject to numerical limitations. The Service

is aware that situations may develop which will necessitate the filing

of petitions in emergent situations. However, it is believed that these

petitions can be processed in acceptable timeframes at the Service

Centers. The filing limitations are therefore retained in the final

rule.

Sixteen commenters also suggested that the Service describe the

emergent filing process for the Service Centers in the final rule.

Pursuant to section 214(c)(6)(E) of the Act, the interim rule contains

a description of the process that the Service will use in processing

requests for expedited consultations. However, the Service does not

believe that the final regulation is an appropriate forum to detail the

actual filing or mailing process for each of the Service Centers. Each

Service Center has already developed its own system for accepting these

types of cases, a determination based upon local operating conditions.

When these procedures are listed in a regulation, formal rulemaking is

required to alter them. Since the procedures are dependent on local

operating conditions, Service Center Directors need the flexibility to

alter these procedures in a rapid fashion, which cannot be accomplished

if the procedures are formally listed in a regulation.

Twenty-five commenters suggested that O and P beneficiaries be

allowed to petition for themselves. The Service cannot adopt this

suggestion since section 214(c) of the Act requires that O and P

petitions be filed by an importing employer.

The interim rule also generated a great number of comments

concerning the filing of petitions by agents. The Service adopted the

provision permitting filing by agents in order to accommodate those

situations where the beneficiary would be employed in numerous places

by numerous employers. As currently written, the regulation allows

established U.S. agents to file the petition at the agent's place of

business and requires that only one petition be filed by the agent to

cover all the proposed places of employment. It should be noted that

the Act does not specifically provide for filing by agents but requires

that petitions only be filed by an importing employer. However, section

214(c)(5)(B) indicates that agents may, in fact, file a petition, by

discussing the issue of the joint liability of the petitioner and

employer with respect to the alien's return transportation.

Twenty-six commenters suggested that the above-cited provision be

expanded to allow foreign agents to file petitions. The Service is

reluctant to expand this regulatory accommodation to foreign agents.

There is no statutory support for such procedure, and the Service does

not wish to expand the provision to foreign agents whose credentials

may not be easily verifiable. Further, petitioners in the case of O and

P petitions are liable for the alien beneficiary's return

transportation abroad. The alien's ability to avail themselves of this

provision could be reduced by the agent's foreign location.

Eighteen commenters suggested that agents should not be required to

guarantee the beneficiary's wages. Although the interim rule does not

contain such a requirement, language imposing such a requirement was

included in the instructions to the December 11, 1991, edition of Form

I-129. The language will be removed from the instructions to the form,

as it contradicts the regulatory language.

Substitution of Beneficiaries

The interim rule provides that petitioners may substitute

beneficiaries at consular offices for P-1 athletic teams, and P-2 and

P-3 petitions involving groups. Forty-six commenters suggested that the

interim rule be amended to allow for substitutions in the case of P-1

entertainment groups and for O-1 entertainers. The Service will adopt

this suggestion in part. The final rule will be amended to allow for

the substitution of beneficiaries in P-1 entertainment groups. However,

since O-1 petitions relate to individual entertainers, substitutions in

the case of O-1 beneficiaries will not be permitted. A new petition

will be required in the case of an O-1 petition.

The final rule specifically prohibits petitioners from substituting

essential support personnel or O-2 accompanying aliens. The rationale

for this policy is that the petitioner has already established to the

Service that the essential support personnel or accompanying aliens

initially included in the petition are integral and essential to the

performance or have critical skills and experience with the principal

alien or aliens. If these aliens can be substituted on short notice,

their relationship to the principal alien or aliens cannot be

considered significant.

Time Frames for Adjudications

Fourteen commenters suggested that the final rule provide a maximum

timeframe for the adjudication of petitions. The Service believes that

there is little to be gained by imposing a required processing time. As

stated in the preamble to the interim rule, when local conditions at

the Service Centers adversely affect the processing time, an

artificially set time limit will do little to correct the situation.

The Service is aware of the legitimacy of these concerns and will make

every effort to process and adjudicate petitions in a timely manner.

However, such management controls are more properly within the bounds

of policy guidance and operating instructions rather than regulations.

180-Day Filing Window

The interim rule contains the requirement that petitions for O and

P nonimmigrant aliens must be filed no more than 180 calendar days

prior to the need for the alien's services. Twenty-seven commenters

suggested that this restriction be removed.

The purpose of this restriction is to ensure orderly processing of

petitions and to limit the number of amended petitions which might be

necessitated if a petition is approved far in advance of the need for

the beneficiary's services.

The 180-day rule as contained in the interim rule reflects a

continuation of longstanding Service policy. Service experience

indicates that the vast majority of petitions are normally filed within

30 to 60 days prior to the date of actual need. Very few petitions are

filed earlier than 60 days and very seldom has a petitioner indicated a

need to file earlier than 180 days. As a result, the Service will not

adopt this suggestion.

Revocation of Petitions

Twenty-four commenters suggested that petitions for O and P

nonimmigrant aliens should not be revoked if the petitioner goes out of

business since many petitions are filed by agents, not the alien's

employer. The Service agrees with this suggestion and the final rule

will contain the provision that petitions filed by agents shall not be

revoked if the agent goes out of business. However, the Service retains

the authority to revoke the petition if the actual employer goes out of

business.

Employment Prior to Validity of The Petition

The interim regulations contain the provision that an O or P

nonimmigrant may be admitted ten days prior to the validity of the

petition and for ten days after the validity of the petition. During

this period of time, the alien is not permitted to engage in

employment. Fourteen commenters object to this provision stating that

the alien should be granted employment authorization during these two

periods of time. The Service does not wish to adopt this suggestion

since the employment in the O or P classification is, according to the

Act, specific to an event. The O and P category may not be used by an

alien to freelance and seek employment in the U.S. labor market without

prior Service approval. This procedure was incorporated in the

regulation in order to provide additional time to the alien or aliens

to make arrangements and to prepare for the events or activities

covered by the petition. If more time is required by the petitioner to

complete the event, the petitioner may file a request for a petition

extension and an extension of the alien's temporary stay.

Return Transportation Provision

The Act requires that a petitioner must provide assurance that the

alien's or aliens' return transportation will be provided. One

commenter suggested that petitioners should be required to submit a

bond with the petition in order to establish that the return

transportation requirement will be met. The Service does not wish to

require petitioners to submit any more paperwork than is absolutely

required. Further, the administrative cost of posting and processing

bonds would be high resulting, possibly, in higher processing fees for

petitions. As a result, the Service will not adopt this suggestion. The

filing of the petition is sufficient assurance to the Service that this

requirement has been met.

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. The regulation merely modifies certain filing

procedures for petitions under the H, O, and P nonimmigrant

classifications and does not dramatically alter existing filing

procedures.

Executive Order 12866

This rule has been drafted and reviewed in accordance with the

statement of regulatory philosophy and principals of regulation in

Section 1 of Executive Order 12866. The Department of Justice,

Immigration and Naturalization Service, has determined that this rule

is a ``significant regulatory action'' and accordingly it has been

reviewed by the Office of Management and Budget pursuant to Executive

Order 12866.

Executive Order 12612

This regulation 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 12606

The Commissioner of the Immigration and Naturalization Service

certifies that she has addressed this rule in light of the criteria in

Executive Order 12606 and has determined that it will have no effect on

family well-being.

List of Subjects in 8 CFR Part 214

Administrative practice and procedure, Aliens, Authority delegation

(Government agencies), Employment, Organization and functions

(Government agencies), Passports and visas.

Accordingly, part 214 of chapter I of Title 8 of the Code of

Federal Regulations is 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, 1221, 1281,

1282; 8 CFR part 2.

2. Section 214.2 is amended by revising paragraph (h)(4)(vii)(C) to

read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(h) * * *

(4) * * *

(vii) * * *

(C) Beneficiary's requirements. A petitioner may establish that a

beneficiary is a fashion model of distinguished merit and ability by

the submission of two of the following forms of documentation showing

that the alien:

(1) Has achieved national or international recognition and acclaim

for outstanding achievement in his or her field as evidenced by reviews

in major newspapers, trade journals, magazines, or other published

material;

(2) Has performed and will perform services as a fashion model for

employers with a distinguished reputation;

(3) Has received recognition for significant achievements from

organizations, critics, fashion houses, modeling agencies, or other

recognized experts in the field; or

(4) Commands a high salary or other substantial remuneration for

services evidenced by contracts or other reliable evidence.

* * * * *

3. In Sec. 214.2 paragraphs (o) and (p) are revised to read as

follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(o) Aliens of extraordinary ability or achievement.--(1)

Classifications.--(i) General. Under section 101(a)(15)(O) of the Act,

a qualified alien may be authorized to come to the United States to

perform services relating to an event or events if petitioned for by an

employer. Under this nonimmigrant category, the alien may be classified

under section 101(a)(15)(O)(i) of the Act as an alien who has

extraordinary ability in the sciences, arts, education, business, or

athletics, or who has a demonstrated record of extraordinary

achievement in the motion picture or television industry. Under section

101(a)(15)(O)(ii) of the Act, an alien having a residence in a foreign

country which he or she has no intention of abandoning may be

classified as an accompanying alien who is coming to assist in the

artistic or athletic performance of an alien admitted under section

101(a)(15)(O)(i) of the Act. The spouse or child of an alien described

in section 101(a)(15)(O)(i) or (ii) of the Act who is accompanying or

following to join the alien is entitled to classification pursuant to

section 101(a)(15)(O)(iii) of the Act. These classifications are called

the O-1, O-2, and O-3 categories, respectively. The petitioner must

file a petition with the Service for a determination of the alien's

eligibility for O-1 or O-2 classification before the alien may apply

for a visa or seek admission to the United States. This paragraph sets

forth the standards and procedures applicable to these classifications.

(ii) Description of classifications.--(A) An O-1 classification

applies to:

(1) An individual alien who has extraordinary ability in the

sciences, arts, education, business, or athletics which has been

demonstrated by sustained national or international acclaim and who is

coming temporarily to the United States to continue work in the area of

extraordinary ability; or

(2) An alien who has a demonstrated record of extraordinary

achievement in motion picture and/or television productions and who is

coming temporarily to the United States to continue work in the area of

extraordinary achievement.

(B) An O-2 classification applies to an accompanying alien who is

coming temporarily to the United States solely to assist in the

artistic or athletic performance by an O-1. The O-2 alien must:

(1) Be an integral part of the actual performances or events and

posses critical skills and experience with the O-1 alien that are not

of a general nature and which are not possessed by others; or

(2) In the case of a motion picture or television production, have

skills and experience with the O-1 alien which are not of a general

nature and which are critical, either based on a pre-existing and

longstanding working relationship or, if in connection with a specific

production only, because significant production (including pre- and

post-production) will take place both inside and outside the United

States and the continuing participation of the alien is essential to

the successful completion of the production.

(2) Filing of petitions.--(i)--General. A petitioner seeking to

classify an alien as an O-1 or O-2 shall file a petition on Form I-129,

Petition for Nonimmigrant Worker, only with the Service Center which

has jurisdiction in the area where the alien will work. The petition

may not be filed more than six months before the actual need for the

alien's services. An O-1 or O-2 petition will be adjudicated at the

appropriate Service Center, even in emergent situations. Only one

beneficiary may be included on an O-1 petition. The O-2 aliens must be

filed for on a separate petition from the O-1 alien. An O-1 or O-2

petition may be filed by a U.S. employer, a foreign employer, or an

established U.S. agent. An O alien may not petition for himself or

herself.

(ii) Evidence required to accompany a petition. Petitions for O

aliens shall be accompanied by the following:

(A) The evidence specified in the particular section for the

classification;

(B) Copies of any written contracts between the petitioner and the

alien beneficiary or, if there is no written contract, a summary of the

terms of the oral agreement under which the alien will be employed;

(C) An explanation of the nature of the events or activities, the

beginning and ending dates for the events or activities, and a copy of

any itinerary for the events or activities; and

(D) A written advisory opinion(s) from the appropriate consulting

entity or entities.

(iii) Form of documentation. The evidence submitted with an O

petition shall conform to the following:

(A) Affidavits, contracts, awards, and similar documentation must

reflect the nature of the alien's achievement and be executed by an

officer or responsible person employed by the institution, firm,

establishment, or organization where the work was performed.

(B) Affidavits written by present or former employers or recognized

experts certifying to the recognition and extraordinary ability, or in

the case of a motion picture or television production, the

extraordinary achievement of the alien, shall specifically describe the

alien's recognition and ability or achievement in factual terms and set

forth the expertise of the affiant and the manner in which the affiant

acquired such information.

(C) A legible photocopy of a document in support of the petition

may be submitted in lieu of the original. However, the original

document shall be submitted if requested by the Director.

(iv) Other filing situations.--(A) Services in more than one

location. A petition which requires the alien to work in more than one

location must include an itinerary with the dates and locations of work

and must be filed with the Service Center which has jurisdiction in the

area 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 is a

foreign employer with no United States location, the petition shall be

filed with the Service Center having jurisdiction over the area where

the work will begin.

(B) Services for more than one employer. If the beneficiary will

work concurrently for more than one employer within the same time

period, each employer must file a separate petition with the Service

Center that has jurisdiction over the area where the alien will perform

services, unless an established agent files the petition.

(C) Change of employer. If an O-1 or O-2 alien in the United States

seeks to change employers, the new employer must file a petition and a

request to extend the alien's stay with the Service Center having

jurisdiction over the new place of employment. An O-2 alien may change

employers only in conjunction with a change of employers by the

principal O-1 alien. If the O-1 or O-2 petition was filed by an agent,

an amended petition must be filed with evidence relating to the new

employer and a request for an extension of stay.

(D) Amended petition. The petitioner 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 employment or the beneficiary's eligibility as specified

in the original approved petition. In the case of a petition filed for

an artist or entertainer, a petitioner may add additional performances

or engagements during the validity period of the petition without

filing an amended petition, provided the additional performances or

engagements require an alien of O-1 caliber.

(E) Agents as petitioners. An established United States agent may

file a petition in cases involving an alien who is traditionally self-

employed or uses agents to arrange short-term employment in his or her

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

authorizes the agent to act in its behalf. A petition filed by an agent

is subject to the following conditions:

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

petition involving multiple employers as the representative of both the

employers and the beneficiary, if the supporting documentation includes

a complete itinerary of the event or events. The itinerary must 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. A contract

between the employers and the beneficiary is required. The burden is on

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

provide any required documentation.

(2) An agent performing the function of an employer must provide

the contractual agreement between the agent and the beneficiary which

specifies the wage offered and the other terms and conditions of

employment of the beneficiary.

(F) Multiple beneficiaries. More than one O-2 accompanying alien

may be included on a petition if they are assisting the same O-1 alien

for the same events or performances, during the same period of time,

and in the same location.

(3) Petition for alien of extraordinary ability or achievement (O-

1).--(i) General. Extraordinary ability in the sciences, arts,

education, business, or athletics, or extraordinary achievement in the

case of an alien in the motion picture or television industry, must be

established for an individual alien. An O-1 petition must be

accompanied by evidence that the work which the alien is coming to the

United States to continue is in the area of extraordinary ability, and

that the alien meets the criteria in paragraph (o)(3)(iii) or (iv) of

this section.

(ii) Definitions. As used in this paragraph, the term:

Arts includes any field of creative activity or endeavor such as,

but not limited to, fine arts, visual arts, culinary arts, and

performing arts. Aliens engaged in the field of arts include not only

the principal creators and performers but other essential persons such

as, but not limited to, directors, set designers, lighting designers,

sound designers, choreographers, choreologists, conductors,

orchestrators, coaches, arrangers, musical supervisors, costume

designers, makeup artists, flight masters, stage technicians, and

animal trainers.

Event means an activity such as, but not limited to, a scientific

project, conference, convention, lecture series, tour, exhibit,

business project, academic year, or engagement. Such activity may

include short vacations, promotional appearances, and stopovers which

are incidental and/or related to the event. A group of related

activities may also be considered to be an event. In the case of an O-1

athlete, the event could be the alien's contract.

Extraordinary ability in the field of arts means distinction.

Distinction means a high level of achievement in the field of arts

evidenced by a degree of skill and recognition substantially above that

ordinarily encountered to the extent that a person described as

prominent is renowned, leading, or well-known in the field of arts.

Extraordinary ability in the field of science, education, business,

or athletics means a level of expertise indicating that the person is

one of the small percentage who have arisen to the very top of the

field of endeavor.

Extraordinary achievement with respect to motion picture and

television productions, as commonly defined in the industry, means a

very high level of accomplishment in the motion picture or television

industry evidenced by a degree of skill and recognition significantly

above that ordinarily encountered to the extent that the person is

recognized as outstanding, notable, or leading in the motion picture or

television field.

Peer group means a group or organization which is comprised of

practitioners of the alien's occupation. If there is a collective

bargaining representative of an employer's employees in the

occupational classification for which the alien is being sought, such a

representative may be considered the appropriate peer group for

purposes of consultation.

(iii) Evidentiary criteria for an O-1 alien of extraordinary

ability in the fields of science, education, business, or athletics. An

alien of extraordinary ability in the fields of science, education,

business, or athletics must demonstrate sustained national or

international acclaim and recognition for achievements in the field of

expertise by providing evidence of:

(A) Receipt of a major, internationally recognized award, such as

the Nobel Prize; or

(B) At least three of the following forms of documentation:

(1) Documentation of the alien's receipt of nationally or

internationally recognized prizes or awards for excellence in the field

of endeavor;

(2) Documentation of the alien's membership in associations in the

field for which classification is sought, which require outstanding

achievements of their members, as judged by recognized national or

international experts in their disciplines or fields;

(3) Published material in professional or major trade publications

or major media about the alien, relating to the alien's work in the

field for which classification is sought, which shall include the

title, date, and author of such published material, and any necessary

translation;

(4) Evidence of the alien's participation on a panel, or

individually, as a judge of the work of others in the same or in an

allied field of specialization to that for which classification is

sought;

(5) Evidence of the alien's original scientific, scholarly, or

business-related contributions of major significance in the field;

(6) Evidence of the alien's authorship of scholarly articles in the

field, in professional journals, or other major media;

(7) Evidence that the alien has been employed in a critical or

essential capacity for organizations and establishments that have a

distinguished reputation;

(8) Evidence that the alien has either commanded a high salary or

will command a high salary or other remuneration for services,

evidenced by contracts or other reliable evidence.

(C) If the criteria in paragraph (o)(3)(iii) of this section do not

readily apply to the beneficiary's occupation, the petitioner may

submit comparable evidence in order to establish the beneficiary's

eligibility.

(iv) Evidentiary criteria for an O-1 alien of extraordinary ability

in the arts. To qualify as an alien of extraordinary ability in the

field of arts, the alien must be recognized as being prominent in his

or her field of endeavor as demonstrated by the following:

(A) Evidence that the alien has been nominated for, or has been the

recipient of, significant national or international awards or prizes in

the particular field such as an Academy Award, an Emmy, a Grammy, or a

Director's Guild Award; or

(B) At least three of the following forms of documentation:

(1) Evidence that the alien has performed, and will perform,

services as a lead or starring participant in productions or events

which have a distinguished reputation as evidenced by critical reviews,

advertisements, publicity releases, publications contracts, or

endorsements;

(2) Evidence that the alien has achieved national or international

recognition for achievements evidenced by critical reviews or other

published materials by or about the individual in major newspapers,

trade journals, magazines, or other publications;

(3) Evidence that the alien has performed, and will perform, in a

lead, starring, or critical role for organizations and establishments

that have a distinguished reputation evidenced by articles in

newspapers, trade journals, publications, or testimonials;

(4) Evidence that the alien has a record of major commercial or

critically acclaimed successes as evidenced by such indicators as

title, rating, standing in the field, box office receipts, motion

pictures or television ratings, and other occupational achievements

reported in trade journals, major newspapers, or other publications;

(5) Evidence that the alien has received significant recognition

for achievements from organizations, critics, government agencies, or

other recognized experts in the field in which the alien is engaged.

Such testimonials must be in a form which clearly indicates the

author's authority, expertise, and knowledge of the alien's

achievements; or

(6) Evidence that the alien has either commanded a high salary or

will command a high salary or other substantial remuneration for

services in relation to others in the field, as evidenced by contracts

or other reliable evidence; or

(C) If the criteria in paragraph (o)(3)(iv) of this section do not

readily apply to the beneficiary's occupation, the petitioner may

submit comparable evidence in order to establish the beneficiary's

eligibility.

(v) Evidentiary criteria for an alien of extraordinary achievement

in the motion picture or television industry. To qualify as an alien of

extraordinary achievement in the motion picture or television industry,

the alien must be recognized as having a demonstrated record of

extraordinary achievement as evidenced by the following:

(A) Evidence that the alien has been nominated for, or has been the

recipient of, significant national or international awards or prizes in

the particular field such as an Academy Award, an Emmy, a Grammy, or a

Director's Guild Award; or

(B) At least three of the following forms of documentation:

(1) Evidence that the alien has performed, and will perform,

services as a lead or starring participant in productions or events

which have a distinguished reputation as evidenced by critical reviews,

advertisements, publicity releases, publications contracts, or

endorsements;

(2) Evidence that the alien has achieved national or international

recognition for achievements evidenced by critical reviews or other

published materials by or about the individual in major newspapers,

trade journals, magazines, or other publications;

(3) Evidence that the alien has performed, and will perform, in a

lead, starring, or critical role for organizations and establishments

that have a distinguished reputation evidenced by articles in

newspapers, trade journals, publications, or testimonials;

(4) Evidence that the alien has a record of major commercial or

critically acclaimed successes as evidenced by such indicators as

title, rating, standing in the field, box office receipts, motion

picture or television ratings, and other occupational achievements

reported in trade journals, major newspapers, or other publications;

(5) Evidence that the alien has received significant recognition

for achievements from organizations, critics, government agencies, or

other recognized experts in the field in which the alien is engaged.

Such testimonials must be in a form which clearly indicates the

author's authority, expertise, and knowledge of the alien's

achievements; or

(6) Evidence that the alien has either commanded a high salary or

will command a high salary or other substantial remuneration for

services in relation to other in the field, as evidenced by contracts

or other reliable evidence.

(4) Petition for an O-2 accompanying alien.--(i) General. An O-2

accompanying alien provides essential support to an O-1 artist or

athlete. Such aliens may not accompany O-1 aliens in the fields of

science, business, or education. Although the O-2 alien must obtain his

or her own classification, this classification does not entitle him or

her to work separate and apart from the O-1 alien to whom he or she

provides support. An O-2 alien must be petitioned for in conjunction

with the services of the O-1 alien.

(ii) Evidentiary criteria for qualifying as an O-2 accompanying

alien.-- (A) Alien accompanying an O-1 artist or athlete of

extraordinary ability. To qualify as an O-2 accompanying alien, the

alien must be coming to the United States to assist in the performance

of the O-1 alien, be an integral part of the actual performance, and

have critical skills and experience with the O-1 alien which are not of

a general nature and which are not possessed by a U.S. worker.

(B) Alien accompanying an O-1 alien of extraordinary achievement.

To qualify as an O-2 alien accompanying and O-1 alien involved in a

motion picture or television production, the alien must have skills and

experience with the O-1 alien which are not of a general nature and

which are critical based on a pre-existing longstanding working

relationship or, with respect to the specific production, because

significant production (including pre- and post-production work) will

take place both inside and outside the United States and the continuing

participation of the alien is essential to the successful completion of

the production.

(C) The evidence shall establish the current essentiality, critical

skills, and experience of the O-2 alien with the O-1 alien and that the

alien has substantial experience performing the critical skills and

essential support services for the O-1 alien. In the case of a specific

motion picture or television production, the evidence shall establish

that significant production has taken place outside the United States,

and will take place inside the United States, and that the continuing

participation of the alien is essential to the successful completion of

the production.

(5) Consultation.--(i) General.--(A) Consultation with an

appropriate U.S. peer group (which could include a person or persons

with expertise in the field), labor and/or management organization

regarding the nature of the work to be done and the alien's

qualifications is mandatory before a petition for an O-1 or O-2

classification can be approved.

(B) Except as provided in paragraph (o)(5)(i)(E) of this section,

evidence of consultation shall be in the form of a written advisory

opinion from a peer group (which could include a person or persons with

expertise in the field), labor and/or management organization with

expertise in the specific field involved.

(C) Except as provided in paragraph (o)(5)(i)(E) of this section,

the petitioner shall obtain a written advisory opinion from a peer

group (which could include a person or persons with expertise in the

field), labor, and/or management organization with expertise in the

specific field involved. The advisory opinion shall be submitted along

with the petition when the petition is filed. If the advisory opinion

is not favorable to the petitioner, the advisory opinion must set forth

a specific statement of facts which supports the conclusion reached in

the opinion. Advisory opinions must be submitted in writing and must be

signed by an authorized official of the group or organization.

(D) Except as provided in paragraph (o)(5)(i)(E) and (G) of this

section, written evidence of consultation shall be included in the

record in every approved O petition. Consultations are advisory and are

not binding on the Service.

(E) In a case where the alien will be employed in the field of

arts, entertainment, or athletics, and the Service has determined that

a petition merits expeditious handling, the Service shall contact the

appropriate labor and/or management organization and request an

advisory opinion if one is not submitted by the petitioner. The labor

and/or management organization shall have 24 hours to respond to the

Service's request. The Service shall adjudicate the petition after

receipt of the response from the consulting organization. The labor

and/or management organization shall then furnish the Service with a

written advisory opinion within 5 days of the initiating request. If

the labor and/or management organization fails to respond within 24

hours, the Service shall render a decision on the petition without the

advisory opinion.

(F) In a routine processing case where the petition is accompanied

by a written opinion from a peer group, but the peer group is not a

labor organization, the Director will forward a copy of the petition

and all supporting documentation to the national office of the

appropriate labor organization within 5 days of receipt of the

petition. If there is a collective bargaining representative of an

employer's employees in the occupational classification for which the

alien is being sought, that representative shall be the appropriate

labor organization for purposes of this section. The labor organization

will then have 15 days from receipt of the petition and supporting

documents to submit to the Service a written advisory opinion, comment,

or letter of no objection. Once the 15-day period has expired, the

Director shall adjudicate the petition in no more than 14 days. The

Director may shorten this time in his or her discretion for emergency

reasons, if no unreasonable burden would be imposed on any participant

in the process. If the labor organization does not respond within 15

days, the Director will render a decision on the record without the

advisory opinion.

(G) In those cases where it is established by the petitioner that

an appropriate peer group, including a labor organization, does not

exist, the Service shall render a decision on the evidence of record.

(ii) Consultation requirements for an O-1 alien for extraordinary

ability.--(A) Content. Consultation with a peer group in the area of

the alien's ability (which may include a labor organization), or a

person or persons with expertise in the area of the alien's ability, is

required in an O-1 petition for an alien of extraordinary ability. If

the advisory opinion is not favorable to the petitioner, the advisory

opinion must set forth a specific statement of facts which supports the

conclusion reached in the opinion. If the advisory opinion is favorable

to the petitioner, it should describe the alien's ability and

achievements in the field of endeavor, describe the nature of the

duties to be performed, and state whether the position requires the

services of an alien of extraordinary ability. A consulting

organization may also submit a letter of no objection in lieu of the

above if it has no objection to the approval of the petition.

(B) Waiver of consultation of certain aliens of extraordinary

ability in the field of arts. Consultation for an alien of

extraordinary ability in the field of arts shall be waived by the

Director in those instances where the alien seeks readmission to the

United States to perform similar services within 2 years of the date of

a previous consultation. The director shall, within 5 days of granting

the waiver, forward a copy of the petition and supporting documentation

to the national office of an appropriate labor organization.

Petitioners desiring to avail themselves of the waiver should submit a

copy of the prior consultation with the petition and advise the

Director of the waiver request.

(iii) Consultation requirements for an O-1 alien of extraordinary

achievement. In the case of an alien of extraordinary achievement who

will be working on a motion picture or television production,

consultation shall be made with the appropriate union representing the

alien's occupational peers and a management organization in the area of

the alien's ability. If an advisory opinion is not favorable to the

petitioner, the advisory opinion must set forth a specific statement of

facts which supports the conclusion reached in the opinion. If the

advisory opinion is favorable to the petitioner, the written advisory

opinion from the labor and management organizations should describe the

alien's achievements in the motion picture or television field and

state whether the position requires the services of an alien of

extraordinary achievement. If a consulting organization has no

objection to the approval of the petition, the organization may submit

a letter of no objection in lieu of the above.

(iv) Consultation requirements for an O-2 accompanying alien.

Consultation with a labor organization with expertise in the skill area

involved is required for an O-2 alien accompanying an O-1 alien of

extraordinary ability. In the case of an O-2 alien seeking entry for a

motion picture or television production, consultation with a labor

organization and a management organization in the area of the alien's

ability is required. If an advisory opinion is not favorable to the

petitioner, the advisory opinion must set forth a specific statement of

facts which supports the conclusion reached in the opinion. If the

advisory opinion is favorable to the petitioner, the opinion provided

by the labor and/or management organization should describe the alien's

essentiality to, and working relationship with, the O-1 artist or

athlete and state whether there are available U.S. workers who can

perform the support services. If the alien will accompany an O-1 alien

involved in a motion picture or television production, the advisory

opinion should address the alien's skills and experience wit the O-1

alien and whether the alien has a pre-existing longstanding working

relationship with the O-1 alien, or whether significant production will

take place in the United States and abroad and if the continuing

participation of the alien is essential to the successful completion of

the production. A consulting organization may also submit a letter of

no objection in lieu of the above if it has no objection to the

approval of the petition.

(v) Organizations agreeing to provide advisory opinions. The

Service will list in its Operations Instructions for O classification

those peer groups, labor organizations, and/or management organizations

which have agreed to provide advisory opinions to the Service and/or

petitioners. The list will not be an exclusive or exhaustive list. The

Service and petitioners may use other sources, such as publications, to

identify appropriate peer groups, labor organizations, and management

organizations. Additionally, the Service will list in its Operations

Instructions those occupations or fields of endeavor where the

nonexistence of an appropriate consulting entity has been verified.

(6) Approval and validity of petition.--(1) Approval. The

Director shall consider all of the evidence submitted and such other

evidence as may be independently required to assist in the

adjudication. The Director shall notify the petitioner of the approval

of the petition on Form I-797, Notice of Action. The approval notice

shall include the alien beneficiary name, the classification, and the

petition's period of validity.

(ii) Recording the validity of petitions. Procedures for recording

the validity period of petitions are as follows;

(A) If a new O petition is approved before the date the petitioner

indicates the services will begin, the approved petition and approval

notice shall show the actual dates requested by the petitioner, not to

exceed the limit specified by paragraph (o)(6)(iii) of this section or

other Service policy.

(B) If a new 0 petition is approved after the date the petitioner

indicates the services will begin, the approved petition and approval

notice shall generally show a validity period commencing with the date

of approval and ending with the date requested by the petitioner, not

to exceed the limit specified by paragraph (o)(6)(iii) of this section

or other Service policy.

(C) If the period of services requested by the petitioner exceeds

the limit specified in paragraph (o)(6)(iii) of this section, the

petition shall be approved only up to the limit specified in that

paragraph.

(iii) Validity.--(A) O-1 petition. An approved petition for an

alien classified under section 101(a)(15)(O)(i) of the Act shall be

valid for a period of time determined by the Director to be necessary

to accomplish the event or activity, not to exceed 3 years.

(B) O-2 petition. An approved petition for an alien classified

under section 101(a)(15)(O)(ii) of the Act shall be valid for a period

of time determined to be necessary to assist the O-1 alien to

accomplish the event or activity, not to exceed 3 years.

(iv) Spouse and dependents. The spouse and unmarried minor children

of the O-1 or O-2 alien beneficiary are entitled to O-3 nonimmigrant

classification, subject to the same period of admission and limitations

as the alien beneficiary, if they are accompanying or following to join

the alien beneficiary in the United States. Neither the spouse nor a

child of the alien beneficiary may accept employment unless he or she

has been granted employment authorization.

(7) Denial of petition.--(i) Notice of intent to deny. When an

adverse decision is proposed on the basis of derogatory information of

which the petitioner is unaware, the Director shall notify the

petitioner of the intent to deny the petition and the basis for the

denial. The petitioner may inspect and rebut the evidence and will be

granted a period of 30 days from the date of the notice in which to do

so. All relevant rebuttal material will be considered in making a final

decision.

(ii) Notice of denial. The petitioner shall be notified of the

decision, the reasons for the denial, and the right to appeal the

denial under 8 CFR part 103.

(8) Revocation of approval of petition.--(i) General. (A) The

petitioner shall immediately notify the Service of any changes in the

terms and conditions of employment of a beneficiary which may affect

eligibility under section 101(a)(15)(O) of the Act and paragraph (o) of

this section. An amended petition should be filed when the petitioner

continues to employ the beneficiary. If the petitioner no longer

employs the beneficiary, the petitioner shall send a letter explaining

the change(s) to the Director who approved the petition.

(B) The Director may revoke a petition at any time, even after the

validity of the petition has expired.

(ii) Automatic revocation. The approval of an unexpired petition is

automatically revoked if the petitioner, or the named employer in a

petition filed by an agent, goes out of business, files a written

withdrawal of the petition, or notifies the Service that the

beneficiary is no longer employed by the practitioner.

(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 is determined that:

(1) The beneficiary is no longer employed by the petitioner in the

capacity specified in the petition;

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

and correct;

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

petition;

(4) The petitioner violated the requirements of section

101(a)(15)(O) of the Act or paragraph (o) of this section; or

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

section or involved gross error.

(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 the date of the notice.

The Director shall consider all relevant evidence presented in deciding

whether to revoke the petition.

(9) Appeal of a denial or a revocation of a petition.--(i) Denial.

A denied petition may be appealed under 8 CFR part 103.

(ii) Revocation. A petition that has been revoked on notice may be

appealed under 8 CFR part 103. Automatic revocations may not be

appealed.

(10) Admission. A beneficiary may be admitted to the United States

for the validity period of the petition, plus a period of up to 10 days

before the validity period begins and 10 days after the validity period

ends. The beneficiary may only engage in employment during the validity

period of the petition.

(11) Extention of visa petition validity. The petitioner shall file

a request to extend the validity of the original petition under section

101(a)(15)(O) of the Act on Form I-129, Petition for a Nonimmigrant

Worker, in order to continue or complete the same activities or events

specified in the original petition. Supporting documents are not

required unless requested by the Director. A petition extension may be

filed only if the validity of the original petition has not expired.

(12) Extension of stay.--(i) Extension procedure. The petitioner

shall request extension of the alien's stay to continue or complete the

same event or activity by filing Form I-129, accompanied by a statement

explaining the reasons for the extension. The petitioner must also

request a petition extension. The dates of extension shall be the same

for the petition and the beneficiary's extension of stay. The alien

beneficiary must be physically present in the United States at the time

of filing of the extension of stay. Even though the request to extend

the petition and the alien's stay are combined on the petition, the

Director shall make a separate determination on each. If the alien

leaves the United States for business or personal reasons while the

extension requests are pending, the petitioner may request the Director

to cable notification of approval of the petition extension to the

consular office abroad where the alien will apply for a visa.

(ii) Extension period. An extension of stay may be authorized in

increments of up to 1 year for an O-1 or O-2 beneficiary to continue or

complete the same event or activity for which he or she was admitted

plus an additional 10 days to allow the beneficiary to get his or her

personal affairs in order.

(iii) Denial of an extension of stay. The denial of the request for

the alien's extension of temporary stay may not be appealed.

(13) Effect of approval of a permanent labor certification or

filing of a preference petition on O classification. The approval of a

permanent labor certification or the filing of a preference petition

for an alien shall not be a basis for denying an O-1 petition, a

request to extend such a petition, or the alien's application for

admission, change of status, or extension of stay. The alien may

legitimately come to the United States for a temporary period as an O-1

nonimmigrant and depart voluntarily at the end of his or her authorized

stay and, at the same time, lawfully seek to become a permanent

resident of the United States.

(14) Effect of a strike.--(i) If the Secretary of Labor certifies

to the Commissioner that a strike or other labor dispute involving a

work stoppage of workers is in progress in the occupation at the place

where the beneficiary is to be employed, and that the employment of the

beneficiary would adversely affect the wages and working conditions of

U.S. citizens and lawful resident workers:

(A) A petition to classify an alien as a nonimmigrant as defined in

section 101(a)(15)(O) of the Act shall be denied; or

(B) If a petition has been approved, but the alien has not yet

entered the United States, or has entered the United States but has not

commenced employment, the approval of the petition is automatically

suspended, and the application for admission on the basis of the

petition shall be denied.

(ii) If there is a strike or other labor dispute involving a work

stoppage of workers in progress, but such strike or other labor dispute

is not certified under paragraph (o)(14)(i) of this section, the

Commissioner shall not deny a petition or suspend an approved petition.

(iii) If the alien has already commenced employment in the United

States under an approved petition and is participating in a strike or

labor dispute involving a work stoppage of workers, whether or not such

strike or other labor dispute has been certified by the Secretary of

Labor, the alien shall not be deemed to be failing to maintain his or

her status solely on account of past, present, or future participation

in a strike or other labor dispute involving a work stoppage of workers

but is subject to the following terms and conditions:

(A) The alien shall remain subject to all applicable provisions of

the Immigration and Nationality Act and regulations promulgated

thereunder in the same manner as are all other O nonimmigrants;

(B) The status and authorized period of stay of such an alien is

not modified or extended in any way by virtue of his or her

participation in a strike or other labor dispute involving a work

stoppage of workers; and

(C) Although participation by an O nonimmigrant alien in a strike

or other labor dispute involving a work stoppage of workers will not

constitute a ground for deportation, and alien who violates his or her

status or who remains in the United States after his or her authorized

period of stay has expired will be subject to deportation.

(15) Use of approval notice, Form I-797. The Service shall notify

the petitioner of Form I-797 whenever a visa petition or an extension

of a visa petition is approved under the O classification. The

beneficiary of an O petition who does not require a nonimmigrant visa

may present a copy of the approval notice at a Port-of-Entry to

facilitate entry into the United States. A beneficiary who is required

to present a visa for admission, and who visa will have expired before

the date of his or her intended return, may use Form I-797 to apply for

a new or revalidated visa during the validity period of the petition. A

copy of Form I-797 shall be retained by the beneficiary and presented

during the validity of the petition when reentering the United States

to resume the same employment with the same petitioner.

(16) Return transportation requirement. In the case of an alien who

enters the United States under section 101(a)(15(O) of the Act and

whose employment terminates for reasons other than voluntary

resignation, the employer whose offer of employment formed the basis of

such nonimmigrant status and the petitioner are jointly and severally

liable for the reasonable cost of return transportation of the alien

abroad. For the purposes of this paragraph, the term ``abroad'' means

the alien's last place of residence prior to his or her entry into the

United States.

(p) Artists, athletes, and entertainers--(1) Classifications.--(i)

General. Under section 101(a)(15)(P) of the Act, an alien having a

residence in a foreign country which he or she has not intention or

abandoning may be authorized to come to the United States temporarily

to perform services for an employer or a sponsor. Under the

nonimmigrant category, the alien may be classified under section

101(a)(15)(P)(i) of the Act as an alien who is coming to the United

States to perform services as an internationally recognized athlete,

individually or as part of a group or team, or member of an

internationally recognized entertainment group; under section

101(a)(15)(P)(ii) of the Act, who is coming to perform as an artist or

entertainer under a reciprocal exchange program; under section

101(a)(15)(P)(iii) of the Act, as an alien who is coming solely to

perform, teach, or coach under a program that is culturally unique; or

under section 101(a)(15)(P)(iv) of the Act, as the spouse or child of

an alien described in section 101(a)(15)(P) (i), (ii), or (iii) of the

Act who is accompanying or following to join the alien. These

classifications are called P-1, P-2, P-3, and P-4 respectively. The

employer or sponsor must file a petition with the Service for review of

the services to be performed and for determination of the alien's

eligibility for P-1, P-2, or P-3 classification before the alien may

apply for a visa or seek admission to the United States. This paragraph

sets forth the standards and procedures applicable to these

classifications.

(ii) Description of classification--(A) A P-1 classification

applies to an alien who is coming temporarily to the United States:

(1) To perform at specific athletic competition as an athlete,

individually or as part of a group or team, at an internationally

recognized level or performance, or

(2) To perform with, or as an integral and essential part of the

performance of, and entertainment group that has been recognized

internationally as being outstanding in the discipline for a sustained

and substantial period of time, and who has had a sustained and

substantial relationship with the group (ordinarily for at least 1

year) and provides functions integral to the performance of the group.

(B) A P-2 classification applies to an alien who is coming

temporarily to the United States to perform as an artist or

entertainer, individually or as part of a group, or to perform as an

integral part of the performance of such a group, and who seeks to

perform under a reciprocal exchange program which is between an

organization or organizations in the United States and an organization

or organizations in one or more foreign states, and which provides for

the temporary exchange of artists and entertainers, or groups of

artists and entertainers.

(C) A P-3 classification applies to an alien artist or entertainer

who is coming temporarily to the United States, either individually or

as part of a group, or as an integral part of the performance of the

group, to perform, teach, or coach under a commercial or noncommercial

program that is culturally unique.

(2) Filing of petitions(i) General. A P-1 petition for an athlete

or entertainment group shall be filed by a U.S. employer or sponsoring

organization, a foreign employer, or an established U.S. agent. A P-2

petition for an artist or entertainer in a reciprocal exchange program

shall be filed by the U.S. labor organization which negotiated the

reciprocal exchange agreement, the sponsoring organization, or an

employer in the United States. A P-3 petition for an artist or

entertainer in a culturally unique program shall be filed by the

sponsoring organization or an employer in the United States. Essential

support personnel may not be included on the petition filed for the

principal alien(s). These aliens require a separate petition. The

petitioner shall file a P petition on Form I-129, Petition for

Nonimmigrant Worker, with the Service Center which has jurisdiction in

the area where the alien will work. The petition may not be filed more

than 6 months before the actual need for the alien's services. A P-1,

P-2, or P-3 petition shall be adjudicated at the appropriate Service

Center, even in emergent situations.

(ii) Evidence required to accompany a petition for a P

nonimmigrant. Petitions for P nonimmigrant aliens shall be accompanied

by the following:

(A) The evidence specified in the specific section of this part for

the classification;

(B) Copies of any written contracts between the petitioner and the

alien beneficiary or, if there is no written contract, a summary of the

terms of the oral agreement under which the alien(s) will be employed;

(C) An explanation of the nature of the events or activities, the

beginning and ending dates for the events or activities, and a copy of

any itinerary for the events or activities; and

(D) A written consultation from a labor organization.

(iii) Form of documentation. The evidence submitted with an P

petition should conform to the following:

(A) Affidavits, contracts, awards, and similar documentation must

reflect the nature of the alien's achievement and be executed by an

officer or responsible person employed by the institution,

establishment, or organization where the work has performed.

(B) Affidavits written by present or former employers or recognized

experts certifying to the recognition and extraordinary ability, or, in

the case of a motion picture or television production, the

extraordinary achievement of the alien, which shall specifically

describe the alien's recognition and ability or achievement in factual

terms. The affidavit must also set forth the expertise of the affiant

and the manner in which the affiant acquired such information.

(C) A legible copy of a document in support of the petition may be

submitted in lieu of the original. However, the original document shall

be submitted if requested by the Director.

(iv) Other filing situations--(A) Services in more than one

location. A petition which requires the alien to work in more than one

location (e.g., a tour) must include an itinerary with the dates and

locations of the performances and must be filed with the Service Center

which has jurisdiction in the area 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

(p). If the petitioner is a foreign employer with no United States

location, the petition shall be filed with the Service Center that has

jurisdiction over the area where the employment will begin.

(B) Services for more than one employer. If the beneficiary(ies)

will work for more than one employer within the same time period, each

employer must file a separate petition with the Service Center that has

jurisdiction over the area where the alien will perform the services,

unless an established agent files the petition pursuant to paragraph

(p)(2)(iv) of this section.

(C) Change of employer. If a P-1, P-2, or P-3 alien in the United

States seeks to change employers or sponsors, the new employer or

sponsor must file both a petition and a request to extend the alien's

stay in the United States. If the petition was initially filed by an

agent, an amended petition must be filed with information relating to

the new employer and with a request for an extension of stay.

(D) Amended petition. The petitioner shall file an amended

petition, with fee, with the Service Center where the original petition

was filed to reflect any material changes in the terms and conditions

of employment or the beneficiary's eligibility as specified in the

original approved petition. A petitioner may add additional similar or

comparable performances, engagements, or competitions during the

validity period of the petition without filing an amended petition.

(E) Agents as petitioners. An established U.S. agent may file a

petition in cases involving workers who traditionally are self-employed

or 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 in its behalf. A petition filed by an agent is subject

to the following conditions:

(1) A person or company in business as an agent may file the P

petition involving multiple employers as the representative of both the

employers and the beneficiary(ies) if the supporting documentation

includes a complete itinerary of services or engagements. 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 employer(s)

and the beneficiary(ies) may be required. The burden is on the agent to

explain the terms and conditions of the employment and to provide any

required documentation.

(2) An agent performing the function of an employer must specify

the wage offered and the other terms and conditions of employment by

contractual agreement with the beneficiary(ies). The agent/employer

must also provide an itinerary of definite employment and information

on any other services planned for the period of time requested.

(F) Multiple beneficiaries. More than one beneficiary may be

included in a P petition if they are members of a group seeking

classification based on the reputation of the group as an entity, or if

they will provide essential support to P-1, P-2, or P-3 beneficiaries

performing in the same location and in the same occupation.

(G) Named beneficiaries. Petitions for P classification must

include the names of beneficiaries and other required information at

the time of filing.

(H) Substitution of beneficiaries. Beneficiaries may be substituted

for P-1, P-2, and P-3 petitions for groups. To request substitution,

the petitioner shall submit a letter requesting such substitution,

along with a copy of the petitioner's approval notice, to the consular

office at which the alien will apply for a visa or the Port-of-Entry

where the alien will apply for admission. Essential support personnel

may not be substituted at consular offices or at Ports-of-Entry.

(3) Definitions. As used in this paragraph, the term:

Arts includes fields of creative activity or endeavor such as, but

not limited to, fine arts, visual arts, and performing arts.

Competition, event, or performance means an activity such as an

athletic competition, athletic season, tournament, tour, exhibit,

project, entertainment event, or engagement. Such activity could

include short vacations, promotional appearances for the petitioning

employer relating to the competition, event, or performance, and

stopovers which are incidental and/or related to the activity. An

athletic competition or entertainment event could include an entire

season of performances A group of related activities will also be

considered an event. In the case of a P-2 petition, the event may be

the duration of the reciprocal exchange agreement. In the case of a P-1

athlete, the event may be the duration of the lien's contract.

Contract means the written agreement between the petitioner and the

beneficiary(ies) that explains the terms and conditions of employment.

The contract shall describe the services to be performed, and specify

the wages, hours of work, working conditions, and any fringe benefits.

Culturally unique means a style of artistic expression,

methodology, or medium which is unique to a particular country, nation,

society, class, ethnicity, religion, tribe, or other group of persons.

Essential support alien means a highly skilled, essential person

determined by the Director to be an integral part of the performance of

a P-1, P-2, or P-3 alien because he or she performs support services

which cannot be readily performed by a United States worker and which

are essential to the successful performance of services by the P-1, P-

2, alien. Such alien must have appropriate qualifications to perform

the services, critical knowledge of the specific services to be

performed, and experience in providing such support to the P-1, P-2, or

P-3 alien.

Group means two or more persons established as one entity or unit

to perform or to provide a service.

Internationally recognized means having a high level of achievement

in a field evidenced by a degree of skill and recognition substantially

above that ordinarily encountered, to the extent that such achievement

is renowned, leading, or well-known in more than one country.

Member of a group means a person who is actually performing the

entertainment services.

Sponsor means an established organization in the United States

which will not directly employ a P-1, P-2, or P-3 alien but will assume

responsibility for the accuracy of the terms and conditions specified

in the petition.

Team means two or more persons organized to perform together as a

competitive unit in a competitive event.

(4) Petition for an internationally recognized athlete or member of

an internationally recognized entertainment group (P-1)--(i) Types of

classification.--(A) P-1 classification as an athlete in an individual

capacity. A P-1 classification may be granted to an alien who is an

internationally recognized athlete based on his or her own reputation

and achievements as an individual. The alien must be coming to the

United States to perform services which require an internationally

recognized athlete.

(B) P-1 classification as a member of an entertainment group or an

athletic team. An entertainment group or athletic team consists of two

or more persons who function as a unit. The entertainment group or

athletic team as a unit must be internationally recognized as

outstanding in the discipline and must be coming to perform services

which require an internationally recognized entertainment group or

athletic team. A person who is a member of an internationally

recognized entertainment group or athletic team may be granted P-1

classification based on that relationship, but may not perform services

separate and apart from the entertainment group or athletic team. An

entertainment group must have been established for a minimum of 1 year,

and 75 percent of the members of the group must have been performing

entertainment services for the group for a minimum of 1 year.

(ii) Criteria and documentary requirements for P-1 athletes--(A)

General. A P-1 athlete must have an internationally recognized

reputation as an international athlete or he or she must be a member of

a foreign team that is internationally recognized. The athlete or team

must be coming to the United States to participate in an athletic

competition which has a distinguished reputation and which requires

participation of an athlete or athletic team that has an international

reputation.

(B) Evidentiary requirements for an internationally recognized

athlete or athletic team. A petition for an athletic team must be

accompanied by evidence that the team as a unit has achieved

international recognition in the sport. Each member of the team is

accorded P-1 classification based on the international reputation of

the team. A petition for an athlete who will compete individually or as

a member of a U.S. team must be accompanied by evidence that the

athlete has achieved international recognition in the sport based on

his or her reputation. A petition for a P-1 athlete or athletic team

shall include:

(1) A tendered contract with a major United States sports league or

team, or a tendered contract in an individual sport commensurate with

international recognition in that sport, if such contracts are normally

executed in the sport, and

(2) Documentation of at least two of the following:

(i) Evidence of having participated to a significant extent in a

prior season with a major United States sports league;

(ii) Evidence of having participated in international competition

with a national team;

(iii) Evidence of having participated to a significant extent in a

prior season for a U.S. college or university in intercollegiate

competition;

(iv) A written statement from an official of the governing body of

the sport which details how the alien or team is internationally

recognized;

(v) A written statement from a member of the sports media or a

recognized expert in the sport which details how the alien or team is

internationally recognized;

(vi) Evidence that the individual or team is ranked if the sport

has international rankings; or

(vii) Evidence that the alien or team has received a significant

honor or award in the sport.

(iii) Criteria and documentary requirements for members of an

internationally recognized entertainment group--(A) General. A P-1

classification shall be accorded to an entertainment group to perform

as a unit based on the international reputation of the group.

Individual entertainers shall not be accorded P-1 classification to

perform separate and apart from a group. Except as provided in

paragraph (p)(4)(iii)(C)(2) of this section, it must be established

that the group has been internationally recognized as outstanding in

the discipline for a sustained and substantial period of time. Seventy-

five percent of the members of the group must have had a sustained and

substantial relationship with the group for at least 1 year and must

provide functions integral to the group's performance.

(B) Evidentiary criteria for members of internationally recognized

entertainment groups. A petition for P-1 classification for the members

of an entertainment group shall be accompanied by:

(1) Evidence that the group has been established and performing

regularly for a period of at least 1 year;

(2) A statement from the petitioner listing each member of the

group and the exact dates for which each member has been employed on a

regular basis by the group; and

(3) Evidence that the group has been internationally recognized in

the discipline for a sustained and substantial period of time. This may

be demonstrated by the submission of evidence of the group's nomination

or receipt of significant international awards or prices for

outstanding achievement in its field or by three of the following

different types of documentation:

(i) Evidence that the group has performed, and will perform, as a

starring or leading entertainment group in productions or events which

have a distinguished reputation as evidenced by critical reviews,

advertisements, publicity releases, publications, contracts, or

endorsements;

(ii) Evidence that the group has achieved international recognition

and acclaim for outstanding achievement in its field as evidenced by

reviews in major newspapers, trade journals, magazines, or other

published material;

(iii) Evidence that the group has performed, and will perform,

services as a leading or starring group for organizations and

establishments that have a distinguished reputation evidenced by

articles in newspapers, trade journals, publications, or testimonials;

(iv) Evidence that the group has a record of major commercial or

critically acclaimed successes, as evidenced by such indicators as

ratings; standing in the field; box office receipts; record, cassette,

or video sales; and other achievements in the field as reported in

trade journals, major newspapers, or other publications;

(v) Evidence that the group has achieved significant recognition

for achievements from organizations, critics, government agencies, or

other recognized experts in the field. Such testimonials must be in a

form that clearly indicates the author's authority, expertise, and

knowledge of the alien's achievements; or

(vi) Evidence that the group has either commanded a high salary or

will command a high salary or other substantial remuneration for

services comparable to other similarly situated in the field as

evidenced by contracts or other reliable evidence.

(C) Special provisions for certain entertainment groups.--(1) Alien

circus personnel. The 1-year group membership requirement and the

international recognition requirement are not applicable to alien

circus personnel who perform as part of a circus or circus group, or

who constitute an integral and essential part of the performance of

such circus or circus group, provided that the alien or aliens are

coming to join a circus that has been recognized nationally as

outstanding for a sustained and substantial period of time or as part

of such a circus.

(2) Certain nationally known entertainment groups. The Director may

waive the international recognition requirement in the case of an

entertainment group which has been recognized nationally as being

outstanding in its discipline for a sustained and substantial period of

time in consideration of special circumstances. An example of a special

circumstances would be when an entertainment group may find it

difficult to demonstrate recognition in more than one country due to

such factors as limited access to news media or consequences of

geography.

(3) Waiver of 1-year relationship in exigent circumstances. The

Director may waive the 1-year relationship requirement for an alien

who, because of illness or unanticipated and exigent circumstances,

replaces an essential member of a P-1 entertainment group or an alien

who augments the group by performing a critical role. The Department of

State is hereby delegated the authority to waive the 1-year

relationship requirement in the case of consular substitutions

involving P-1 entertainment groups.

(iv) P-1 classification as an essential support alien.--(A)

General. An essential support alien as defined in paragraph (p)(3) of

this section may be granted P-1 classification based on a support

relationship with an individual P-1 athlete, P-1 athletic team, or a P-

1 entertainment group.

(B) Evidentiary criteria for a P-1 essential support petition. A

petition for P-1 essential support personnel must be accompanied by:

(1) A consultation from a labor organization with expertise in the

area of the alien's skill;

(2) A statement describing the alien(s) prior essentiality,

critical skills, and experience with the principal alien(s); and

(3) A copy of the written contract or a summary of the terms of the

oral agreement between the alien(s) and the employer.

(5) Petition for an artist or entertainer under a reciprocal

exchange program (P-2)--(i) General. (A) A P-2 classification shall be

accorded to artists or entertainers, individually or as a group, who

will be performing under a reciprocal exchange program which is between

an organization or organizations in the United States, which may

include a management organization, and an organization or organizations

in one or more foreign states and which provides for the temporary

exchange of artists and entertainers, or groups of artists and

entertainers.

(B) The exchange of artists or entertainers shall be similar in

terms of caliber of artists or entertainers, terms and conditions of

employment, such as length of em

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