# Foreign Employers Seeking To Employ Temporary Alien Workers in the H, O, and P Nonimmigrant Classifications > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-19673 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** August 15, 1994 ## Text 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] BILLING CODE 4410-10-M --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-19673. Public record. Not legal advice.