Foreign Employers Seeking To Employ Temporary Alien Workers in the H, O, and P Nonimmigrant Classifications

SUMMARY: This proposed rule amends the Immigration and Naturalization

Service (Service) regulations by precluding foreign employers from

directly filing petitions for O and P nonimmigrant aliens. Prospective

foreign employers seeking to use these classifications will be required

to employ the services of an established United States agent in order

to file a petition for an O or P nonimmigrant. This proposal also

amends the H nonimmigrant regulations by requiring foreign employers

seeking to petition for H-2B nonimmigrants to use the services of an

established United States agent, removes the current reference to the

term ``representative,'' and codifies existing policy with regard to

the filing of nonimmigrant petitions for certain professional athletes.

This is intended to bring the H, O, and P nonimmigrant regulations into

conformity with the employer sanctions provisions of section 274A of

the Immigration and Nationality Act (Act).

DATES: Written comments must be submitted on or before October 14,

1994.

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

Records Systems Division, Director, Policy Directives and Instructions

Branch, Immigration and Naturalization Service, 425 I Street, NW., room

5307, Washington, DC 20536. To ensure proper handling, please reference

the INS number 1653-94 on your correspondence.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Senior Immigration

Examiner, Adjudications Division, Immigration and Naturalization

Service, 425 I Street, NW., room 3214, Washington, DC 20536, telephone

(202) 514-3240.

SUPPLEMENTARY INFORMATION: The employer sanctions provisions of the

Immigration and Nationality Act were created by the Immigration Reform

and Control Act of 1986, Pub. L. 99-603, which, among other things,

contains provisions making it unlawful for a person or entity to hire

an alien knowing the alien is not entitled to engage in employment.

Public law 99-603 also requires the employer to examine certain

documentation in order to verify an individual's identity and

eligibility to work in the United States. Civil and criminal penalties

may be imposed upon employers which do not comply with the employer

sanctions provisions.

The Service has historically allowed foreign employers to file

petitions for certain nonimmigrant workers. However, in view of the

fact that the Service cannot enforce the sanctions provisions of Pub.

L. 99-603 if the employer does not have a presence in the United

States, it has been determined that foreign employers should be

precluded from directly filing petitions for aliens in the O and P

nonimmigrant classifications. Foreign employers will still be able to

use the O and P nonimmigrant classifications but the foreign employers

will be required to use the services of an established United States

agent in order to file the petition for the alien. Through their United

States agent, foreign employers will be responsible for complying with

the provisions of section 274A of the Act. The description of an agent

has also been modified in this rule to accommodate this change in

policy.

The ``30-day rule''

In September 1988, the Service adopted a policy with regard to

major league sports teams which allowed professional athletes traded

between U.S.-based sports teams to play for the new team prior to the

filing of the appropriate petition, provided that the new team filed a

petition with the Service within 30 days of the trade. Since a single

athlete can have a significant impact on a team's performance, and

recognizing the length of time required to process certain I-129

petitions, the Service adopted a policy allowing players to play for

the new team prior to the filing of the petition. This proposed rule

will amend the regulations to include that policy.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. Sec. 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 requires foreign

employers to use the services of an established United States agent to

file petitions for certain nonimmigrant aliens and codifies existing

policy with respect to the filing of nonimmigrant petitions for certain

professional athletes.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under Executive Order 12866, Sec. 3(f), regulatory

Planning and Review, and the Office of Management and Budget has waived

its review process under Sec. 6(a)(3)(A).

Executive Order 12612

The regulation proposed herein will not have substantial direct

effects on the States, on the relationship between the National

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

responsibilities among the various levels of government. Therefore, in

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

does not have sufficient Federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order 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.

Paperwork Reduction Act

The information collection requirements contained in this rule have

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

provisions of the Paperwork Reduction Act. The clearance number for

this collection is contained in 8 CFR 299.5, Display of Control

Numbers.

List of Subjects

8 CFR Part 214

Administrative practice and procedures, Aliens, Employment,

Organization and functions (Government agencies).

8 CFR Part 274a

Administrative practice and procedures, Aliens, Employment,

Organization and functions (Government agencies).

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

Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

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

follows:

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

1281, 1282; 8 CFR part 2.

2. Section 214.2 is amended by:

a. Adding a new paragraph (h)(2)(i)(F)(3);

b. Revising paragraph (h)(6)(iii)(B); and by

c. Adding a new paragraph (h)(6)(vii), to read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(h) * * *

(2) * * *

(i) * * *

(F) * * *

(3) A foreign employer who, through an established United States

agent, files a petition for an H nonimmigrant alien is responsible for

complying with the employer sanctions provisions of section 274A of the

Act and 8 CFR part 274a.

* * * * *

(6) * * *

(iii) * * *

(B) An H-2B petitioner shall be a United States employer, an

established United States agent, or a foreign employer filing through

an established United States agent. A foreign employer may not directly

petition for an H-2B nonimmigrant but must use the services of an

established United States agent to file a petition for an H-2B

nonimmigrant. The petitioning employer shall consider available U.S.

workers for the temporary services or labor, and shall offer terms and

conditions of employment which are consistent with the nature of the

occupation, activity, and industry in the United States.

* * * * *

(vii) Traded professional H-2B athletes. In the case of a

professional H-2B athlete who is traded from one U.S.-based

organization to another organization, employment authorization for the

player will automatically continue for a period of 30 days after the

player's acquisition by the new organization within which time the new

organization is expected to file a new Form I-129 is not filed within

30 days, employment authorization will cease. If the new petition is

denied, employment authorization will cease.

* * * * *

3. Section 214.2 is amended by:

a. Revising paragraph (o)(2)(i);

b. Revising paragraph (o)(2)(iv)(A);

c. Adding a new paragraph (o)(2)(iv)(E)(3); and by

d. Adding a new paragraph (o)(2)(iv)(G), to read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(o) * * *

(2) Filing of petitions. (i) General. Except as provided for in

paragraph (o)(2)(iv)(A) of this section, a petitioner seeking to

classify an alien as an O-1 or O-2 nonimmigrant shall file a petition

on Form I-129, Petition for a 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. An O-1 or O-2 petition shall be adjudicated

at the appropriate Service Center, even in emergency situations. Only

one beneficiary may be included on an O-1 petition. O-2 aliens must be

filed for on a separate petition from the O-1 alien. An O-1 or O-2

petition may only be filed by a United States employer, an established

United States agent, or a foreign employer through an established

United States agent. A foreign employer may not directly petition for

an O nonimmigrant alien but instead must use the services of an

established United States agent to file a petition for an O

nonimmigrant. An O alien may not petition for himself or herself.

* * * * *

(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.

* * * * *

(E) * * *

(3) A foreign employer who, through an established United States

agent, files a petition for an O nonimmigrant alien is responsible for

complying with the employer sanctions provisions of section 274A of the

Act and 8 CFR part 274a.

* * * * *

(G) Traded professional O-1 athletes. In the case of a professional

O-1 athlete who is traded from one U.S.-based organization to another

organization, employment authorization for the player will

automatically continue for a period of 30 days after acquisition by the

new organization within which time the new organization is expected to

file a new Form I-129. If a new Form I-129 is not filed within 30 days,

employment authorization will cease. If the new petition is denied,

employment authorization will cease.

* * * * *

4. Section 214.2 is amended by:

a. Revising paragraph (p)(2)(i); and by

b. Revising paragraph (p)(2)iv), to read as follows;

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(p) * * *

(2) Filing of petitions--(i) General. A P-1 petition for an athlete

or entertainment group shall be filed by a United States employer, a

United States sponsoring organization, an established United States

agent, or a foreign employer through an established United States

agent. Foreign employers seeking to employ a P-1 alien may not directly

petition for the alien but must use the services of an established

United States agent. A P-2 petition for an artist or entertainer in a

reciprocal exchange program shall be filed by the United States 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. Except as provided for in paragraph (p)(2)(iv)(A) of

this section, the petitioner shall file a P petition on Form I-129,

Petition for Nonimmigration 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 emergency situations.

* * * * *

(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 jurisdication 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.

(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)(E) of this section.

(C) Change of employer.--(1) General. 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. The alien may not commence

employment with the new employer or sponsor until the petition and

request for extension have been approved.

(2) Traded P-1 athletes. In the case of a professional P-1 athlete

who is traded from one U.S.-based organization to another organization,

employment authorization for the player will automatically continue for

a period of 30 days after acquisition by the new organization within

which time the new organization is expected to file a new Form I-129

for P-1 nonimmigrant classification. If a new Form I-129 is not filed

within 30 days, employment authorization will cease. If the new

petition is denied, employment authorization will cease.

(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 United States agent may

file a petition in cases involving workers who traditionally are self-

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

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

authorizes the agent to act on its behalf. A 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 supported 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.

(3) A foreign employer who, through an established United States

agent, files a petition for a P nonimmigrant alien is responsible for

complying with the employer sanctions provisions of section 274A of the

Act and 8 CFR part 274a.

(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 in 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. In

order to add additional new essential support personnel, a new I-129

petition must be filed with the appropriate Service Center.

* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

5. The authority citation for part 274a continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

6. Section 274a.12 is amended by:

a. Revising paragraph (b)(9);

b. Revising paragraph (b)(13); and by

c. Revising paragraph (b)(14), to read as follows:

Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *

(b) * * *

(9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3),

pursuant to Sec. 214.2(h) of this chapter. An alien in this status may

be employed only by the petitioner through whom the status was

obtained. In the case of a professional H-2B athlete who is traded from

one U.S.-based organization to another organization, employment

authorization for the player will automatically continue for a period

of 30 days after acquisition by the new organization within which time

the new organization is expected to file a new Form I-129 petition for

H-2B classification. If a new Form I-129 is not filed within 30 days,

employment authorization will cease. If the new petition is denied,

employment authorization will cease;

* * * * *

(13) An alien having extraordinary ability in the sciences, arts,

education, business, or athletics (O-1), and an accompanying alien (O-

2), pursuant to Sec. 214.2(o) of this chapter. An alien in this status

may be employed only by the petitioner through whom the status was

obtained. In the case of a professional O-1 athlete who is trade from

one U.S.-based organization to another organization, employment

authorization for the player will automatically continue for a period

of 30 days after the acquisition by the new organization within which

time the new organization is expected to file a new Form I-129 petition

for O nonimmigrant classification. If a new Form I-129 is not filed

within 30 days, employment authorization will cease. If the new

petition is denied, employment authorization will cease;

(14) An athlete, artist, or entertainer (P-1, P-2, or P-3),

pursuant to Sec. 214.2(p) of this chapter. An alien in this status may

be employed only by the petitioner through whom the status was

obtained. In the case of a professional P-1 athlete who is traded from

one U.S.-based organization to another organization, employment

authorization for the player will automatically continue for a period

of 30 days after the acquisition by the new organization within which

time the new organization is expected to file a new Form I-129 for P-1

nonimmigrant classification. If a new Form I-129 is not filed within 30

days, employment authorization will cease. If the new petition is

denied, employment authorization will cease;

* * * * *

Dated: May 13, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-19673 Filed 8-12-94; 8:45 am]

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