Nonimmigrant Classes; NATO-1, 2, 3, 4, 5, 6, and 7; Control of Employment of Aliens

summary: This document proposes to amend the regulations of the

Immigration and Naturalization Service (``Service'') relating to

employment authorization for certain dependents of principal aliens

classified as NATO-1, 2, 3, 4, 5, 6, and 7 nonimmigrants. This action

is being taken to expand and secure employment opportunities on the

basis of reciprocity for dependents of United States military personnel

and certain Department of Defense civilian personnel stationed in NATO

member countries. Because of the diplomatic and international affairs

considerations involved in NATO matters, this rule parallels, to the

extent possible, the regulations governing employment authorization for

certain dependents of foreign government diplomats, officials, and

employees assigned to official duty in the United States and classified

as A-1 and A-2 nonimmigrants and their A-3 servants.

dates: Written comments must be received on or before March 9, 1994.

addresses: Please submit written comments in triplicate to the Records

System Division, Director, Policy Directives and Instructions Branch,

Immigration and Naturalization Service, room 5307, 425 I Street, NW.,

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

Number 1328-93 on your correspondence.

for further information contact: Jack Tabaka, Senior Immigration

Examiner, Immigration and Naturalization Service, 425 I Street, NW.,

room 7122, Washington, DC 20536, Telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Interagency Collaboration in Drafting This Rule

The Department of State, the Department of Defense, and the Office

of NATO's Supreme Allied Commander, Atlantic (SACLANT) have

collaborated closely with the Service in developing this rule, which

balances diplomatic and international affairs considerations,

administrative requirements, and proper enforcement concerns.

Scope

The rule applies to certain dependents of NATO military personnel,

who typically serve a three-year tour of duty with SACLANT, the major

NATO command headquarters in Norfolk, VA. It also applies to certain

dependents of NATO civilian employees and officials, who typically work

at SACLANT for extended periods. Additionally, the rule applies to

certain dependents of the small number of NATO personnel who may be

stationed in other locations in the United States and to the servants

of NATO military and civilian personnel.

Purpose

This rule is being published in order to expand and secure

employment opportunities on the basis of reciprocity for dependents of

United States military personnel and certain Department of Defense

civilian personnel stationed in NATO member countries. All parties

which collaborated in the drafting of this rule agree that expanding

employment opportunities in the United States for NATO-1 through NATO-6

dependents will further this goal.

Backgound

Under current regulations, a NATO dependent can apply for

employment authorization in the United States only if he or she is

covered under the terms of a bilateral agreement. A bilateral agreement

is a written, signed agreement between the United States and a foreign

country. It provides for employment authorization for certain

dependents of United States government personnel assigned to official

duty in the foreign country whose government entered into the

agreement. In turn, it provides for employment authorization for

certain dependents of personnel of the foreign government who are

assigned to official duty in the United States.

This rule expands the eligibility to apply for employment

authorization to certain NATO-1, 2, 3, 4, 5, and 6 dependents covered

by the terms of de facto arrangements and to certain dependents of

SACLANT employees. A de facto arrangement is in effect when it is

determined that a foreign country allows appropriate employment ``on

the local economy'' for certain dependents of United States government

personnel assigned to official duty in that foreign country. Based on

that determination, certain dependents of foreign government personnel

assigned to official duty in the United States may apply for employment

authorization.

Reciprocity has become an issue in the context of renegotiation of

the rights and privileges of United States dependents within the NATO

area. NATO member host countries are increasingly unwilling to continue

dependent employment privileges absent similar treatment for their

dependents in the United States. This rule is intended to provide for

such treatment to the extent that de facto privileges are continued or

established for dependents of United States military personnel and

certain Department of Defense civilian personnel in NATO member states.

Given the high cost of living in some countries where U.S.

personnel are stationed, and the limited number of jobs available on

United States bases abroad, the freedom to work ``on the economy''

abroad can be extremely important to United States families.

Further, one of the real stresses on military family life is the

constant disruption of the spouse's career that is occasioned by

household moves every few years. When the spouse is barred from

employment overseas the stress on the family can be considerable.

Rule Parallels Regulations Governing Diplomatic Dependents

Because of the diplomatic and international affairs considerations

involved in NATO matters, this rule parallels, to the extent possible,

the regulations governing employment authorization for dependents of

foreign government diplomats, officials, and employees assigned to

official duty in the United States and classified as A-1 and A-2

nonimmigrants.

Changes

In addition to expanding the eligibility to apply for employment

authorization to NATO-1, 2, 3, 4, 5, and 6 dependents covered by the

terms of de facto arrangements, this rule incorporates the following

changes:

8 CFR 214.2(s)(1) defines the various NATO nonimmigrant

classifications. Additionally, since this rule parallels the

regulations governing ``A'' nonimmigrants, and since A-3 and NATO-7

classifications are comparable, this rule makes the NATO-7 periods of

admission and extension of stay parallel the periods for A-3

nonimmigrants.

8 CFR 214.2(s)(2) defines the term dependent of a NATO-1 through

NATO-6 for purposes of employment in the United States. This definition

parallels the definition of dependent used in the regulation governing

employment authorization of dependents of foreign government diplomats,

officials, and employees assigned to official duty in the United States

and classified as A-1 and A-2 nonimmigrants.

8 CFR 214.2(s)(3) defines dependent employment requirements based

on formal bilateral employment agreements and informal de facto

reciprocal arrangements.

8 CFR 214.2(s)(4) specifies that the applicability of the bilateral

agreement or the de facto arrangement is based on the NATO member state

which employs the principal alien. Additionally, under a de facto

arrangement, the principal must be a national of the employing NATO

member state. Dependents of SACLANT employees are also eligible to

apply for employment authorization under terms of applicable bilateral

agreements or de facto arrangements.

8 CFR 214.2(s)(5) details dependent employment application

procedures.

8 CFR 214.2(s)(6) extends the period for dependent employment

authorization up to three years.

8 CFR 214.2(s)(7) requires that NATO dependents must pay taxes and

Social Security on their earnings, and clarifies that they have no

criminal, civil, or administrative immunities regarding matters arising

from their employment.

8 CFR 214.2(s)(8) clarifies that there is no appeal from a denial

of employment authorization.

8 CFR 214.2(s)(9) discusses unauthorized employment and resultant

penalties.

8 CFR 214.2(s)(10) discusses NATO-7 dependents. Since this rule

parallels the regulations governing ``A'' nonimmigrants which preclude

employment by A-3 dependents, and since A-3 and NATO-7 classifications

are comparable, this rule eliminates future grants of employment

authorization for NATA-7 dependents, but allows those NATA-7 dependents

currently with employment authorization to continue until the

expiration of such authorization.

Finally, this rule amends 8 CFR 274a.12(c)(7) by eliminating future

grants of employment authorization for NATA-7 dependents.

In accordance with 5 U.S.C. 605(b), the Commissioner of the

Immigration and Naturalization Service certifies that this rule will

not have a significant adverse economic impact on a substantial number

of small entities. This rule is not a major rule within the meaning of

section 1(b) of E.O. 12291, nor does this rule have Federalism

implications warranting the preparation of a Federalism Assessment in

accordance with E.O. 12612.

The information collection requirement contained in this regulation

has been submitted to the Office of Budget and Management (OMB) under

the provisions of the Paperwork Reduction Act, for review and

clearance.

List of Subjects

8 CFR Part 214

Administrative practice and procedures, Aliens, Authority

delegation (government agencies), Employment.

8 CFR Part 274a

Administrative practice and procedures, Aliens, Employment.

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, 1221, 1281,

1282; 8 CFR part 2.

2. In Sec. 214.2, paragraph (s) is revised to read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(s) NATO nonimmigrant aliens--(1) General.--(1) Background.

Nonimmigrant aliens classified as NATO-1 through NATO-5 are officials

of NATO, the members of the armed forces of a country signatory to the

Agreement Between the Parties to the North Atlantic Treaty Regarding

the Status of Their Forces signed in London, June 1951 (NATO Status of

Forces Agreement), who are entering in accordance with that agreement

or the Protocol on the Status of International Military Headquarters

set up pursuant to the North Atlantic Treaty (Paris Protocol), and

members of their immediate families. Aliens classified as NATO-6 are

civilian employees either of a force entering in accordance with the

NATO Status of Forces Agreement or of an allied headquarters (Supreme

Allied Commander, Atlantic, SACLANT) set up pursuant to the Paris

Protocol and members of their immediate families. Servants or

attendants of aliens classified as NATO-1 through NATO-6 are classified

as NATO-7, as are members of the immediate families of such servants or

attendants.

(ii) Admission and extension of stay. NATO-1 through NATO-5 aliens

are normally exempt from inspection under 8 CFR 235.1(c). NATO-6 aliens

may be authorized admission for duration of status. Aliens classified

as NATO-7 may be admitted for not more than three years and may be

granted extensions of temporary stay in increments of not more than two

years. In addition, an application for extension of temporary stay for

a NATO-7 alien must be accompanied by a statement signed by the

employing official stating that he or she intends to continue to employ

the NATO-7 applicant and describing the work the applicant will

perform.

(2) Definition of a dependent of a NATO-1, 2, 3, 4, 5, or 6. For

purposes of employment in the United States, the term dependent of a

NATO-1, 2, 3, 4, 5, or 6 principal alien, as used in this paragraph,

means any of the following immediate members of the family habitually

residing in the same household as the NATO-1, 2, 3, 4, 5, or 6

principal alien assigned to official duty in the United States:

(i) Spouse;

(ii) Unmarried children under the age of 21;

(iii) Unmarried sons or daughters under the age of 23 who are in

full-time attendance as students at post-secondary educational

institutions;

(iv) Unmarried sons or daughters under the age of 25 who are in

full-time attendance as students at post-secondary educational

institutions if a formal bilateral employment agreement permitting

their employment in the United States was signed prior to November 21,

1988, and such bilateral employment agreement does not specify age 23

as the maximum age for employment of such sons and daughters. The

Department of State advises that bilateral agreements with Canada,

Denmark, Norway, and France fit this classification with respect to

dependents of members of the force and members of the civilian

component thereof;

(v) Unmarried sons or daughters who are physically or mentally

disabled to the extent that they cannot adequately care for themselves

or cannot establish, maintain, or re-establish their own households.

The Service may require medical certification(s) as it deems necessary

to document such mental or physical disability.

(3) Dependent employment requirements based on formal bilateral

employment agreements and informal de facto reciprocal arrangements--

(i) Formal bilateral employment agreements. The Department of State's

Family Liaison Office shall maintain a listing of NATO member states

which have entered into formal bilateral employment agreements that

include NATO personnel. A dependent of a NATO-1, 2, 3, 4, 5, or 6

principal alien assigned to official duty in the United States may

accept, or continue in, unrestricted employment based on such formal

bilateral agreements upon favorable recommendation by SACLANT or the

Department of Defense, pursuant to paragraph (s)(5)(i)(H) of this

section, and issuance of employment authorization documentation by the

Service in accordance with 8 CFR part 274a. The application procedures

are set forth in paragraph (s)(5) of this section.

(ii) Informal de facto reciprocal arrangements. For purposes of

this section, an informal de facto reciprocal arrangement exists when

the Department of Defense [the Office of the Secretary of Defense,

Foreign Military Rights Affairs (OSD/FMRA)] certifies, with the

Department of State concurrence, that a NATO member state allows

appropriate employment in the local economy for dependents of members

of the force and members of the civilian component of the United States

assigned to duty in the NATO member state. OSD/FMRA and the Department

of State's Family Liaison Office shall maintain a listing of countries

with which such reciprocity exists. Dependents of a NATO-1, 2, 3, 4, 5,

or 6 principal alien assigned to official duty in the United States may

be authorized to accept, or continue in, employment based upon informal

de facto arrangements upon favorable recommendation by SACLANT or the

Department of Defense, pursuant to paragraph (s)(5)(i)(H) of this

section, and issuance of employment authorization by the Service in

accordance with 8 CFR part 274a. Additionally, the application

procedures set forth in paragraph (s)(5) of this section must be

complied with, and the following conditions must be met:

(A) Both the principal alien and the dependent requesting

employment are maintaining NATO-1, 2, 3, 4, 5, or 6 status, as

appropriate;

(B) The principal alien's total length of assignment in the United

States is expected to last more than six months;

(C) Employment of a similar nature for dependents of members of the

force and members of the civilian component of the United States

assigned to official duty in the NATO member state employing the

principal alien is not prohibited by that NATO member state's

government;

(D) The proposed employment is not in an occupation listed in the

Department of Labor's Schedule B (20 CFR part 656), or otherwise

determined by the Department of Labor to be one for which there is an

oversupply of qualified United States workers in the area of proposed

employment. This Schedule B restriction does not apply to a dependent

son or daughter who is a full-time student if the employment is part-

time, consisting of not more than 20 hours per week, and/or if it is

temporary employment of not more than 12 weeks during school holiday

periods; and

(E) The proposed employment is not contrary to the interest of the

United States. Employment contrary to the interest of the United States

includes, but is not limited to, the employment of NATO-1, 2, 3, 4, 5,

or 6 dependents: who have criminal records; who have violated United

States immigration laws or regulations, or visa laws or regulations;

who have worked illegally in the United States; and/or who cannot

establish that they have paid taxes and social security on income from

current or previous United States employment.

(iii) The Department of State shall inform the Service (U.S.

Immigration and Naturalization Service; Headquarters, Adjudications;

Attention: Chief, Nonimmigrant Branch; 425 I Street NW., Washington, DC

20536) of any additions or changes to the formal bilateral employment

agreements and informal de facto reciprocal arrangements.

(4) Applicability of a formal bilateral agreement or an informal de

facto arrangement for NATO-1, 2, 3, 4, 5, or 6 dependents. The

applicability of a formal bilateral agreement shall be based on the

NATO member state which employs the principal alien and not on the

nationality of the principal alien or dependent. The applicability of

an informal de facto arrangement shall be based on the NATO member

state which employs the principal alien, and the principal alien also

must be a national of the NATO member state which employs him or her in

the United States. A dependent of a SACLANT employee who is a national

of a NATO member state, which has a bilateral dependent employment

agreement with the United States which includes NATO members, shall be

eligible to apply for employment authorization under terms of that

agreement. A dependent of a SACLANT employee who is a national of a

NATO member state, which has a de facto dependent employment

arrangement with the United States which includes NATO members, shall

be eligible to apply for employment authorization under terms of that

de facto arrangement.

(5) Application procedures. The following procedures are required

for dependent employment applications under bilateral agreements and de

facto arrangements:

(i) The dependent shall submit to the Service a completed Form I-

765 with the fee as required in Sec. 103.7(b)(1) of this chapter and a

letter from SACLANT or the Department of Defense, certified pursuant to

paragraph (s)(5)(i)(H) of this section. The letter shall include the

following information:

(A) The name of the applicant and his or her date of birth and

nationality;

(B) The applicant's immigration status;

(C) The name of the principal alien and his or her nationality;

(D) The principal alien's immigration status and his or her

relationship to the applicant;

(E) The date the principal alien's tour of duty in the United

States is expected to be completed;

(F) Whether the employment request is based on a bilateral

agreement or a de facto arrangement and the country with which such

agreement or arrangement has been made;

(G) Whether the applicant is a full-time, post-secondary student;

(H) A certification by the preparer of the letter which states: ``I

certify that the above information is true and correct to the best of

my knowledge and according to the official records of this command, and

I favorably recommend that the application be approved.'' The

certification shall also include the name, rank and title of the

certifying officer; his or her commercial phone number and command; and

the date of certification. A letter for an applicant whose principal

alien is assigned to NATO in the Norfolk, Virginia area shall be signed

and certified by an authorized legal officer attached to the Supreme

Allied Commander Atlantic (SACLANT). SACLANT shall keep copies of each

application and letter for three years from the date of the letter's

issuance. A letter for applicants whose NATO principal alien is

assigned elsewhere in the United States shall be signed and certified

by the legal officer at the base or command to which the NATO principal

alien is assigned. The legal officer shall send a copy of each

application and letter to the Office of the Secretary of Defense,

Foreign Military Rights Affairs [(OSD/FMRA), 4D830 Pentagon,

Washington, DC 20201] which shall keep copies of each application and

letter for three years from the date of the letter's issuance; and,

(I) Certain bilateral dependent employment agreements contain a

numerical limitation on the number of dependents authorized to work. If

this is the case, the certifying officer must consult with the

Department of State's Office of Protocol to confirm that this numerical

limitation has not been reached prior to transmitting any such

dependent employment application to the Service. The countries with

such limitations are indicated on the bilateral/de facto dependent

employment listing issued by the Department of State's Family Liaison

Office.

(ii) A dependent applying under the terms of a de facto arrangement

must also attach a statement from the prospective employer which

includes the dependent's name, a description of the position offered

and the duties to be performed, the salary offered, and verification

that the dependent possesses the qualifications for the position.

(iii) A dependent applying under paragraph (s)(2) (iii) or (iv) of

this section must also submit a certified statement from the post-

secondary educational institution confirming that he or she is pursuing

studies on a full-time basis.

(iv) A dependent applying under paragraph (s)(2)(v) of this section

must also submit medical certification regarding his or her condition.

The certification should identify the dependent and the certifying

physician and give the physician's phone number; identify the

condition, describe the symptoms and provide a prognosis; and certify

that the dependent is unable to maintain a home of his or her own.

(v) The Service may require additional supporting documentation,

but only after consultation with SACLANT, the Department of Defense,

and the Department of State.

(6) Period of time for which employment may be authorized. If

approved, an application to accept or continue employment under this

paragraph shall be granted in increments of not more than three years

each.

(7) Income tax, Social Security liability; non-enjoyment of

immunity. Dependents who are granted employment authorization under

this paragraph are responsible for payment of federal, state, and local

income taxes, employment and related taxes and Social Security

contributions on any remuneration received. Such dependents do not

enjoy any criminal, civil, or administrative immunity with respect to

matters arising out of their employment

(8) No appeal. There shall be no appeal from a denial of permission

to accept or continue employment under this paragraph.

(9) Unauthorized employment. An alien classified as a NATO-1

through NATO-7 who is not a principal alien and who engages in

employment outside the scope of, or in a manner contrary to, this

paragraph may be considered in violation of status pursuant to section

241(a)(1)(C)(i) of the Act. An alien who is classified under a NATO-1

through NATO-7 who is a principal alien and who engages in employment

outside the scope of his or her official position may be considered in

violation of status pursuant to section 241(a)(1)(C)(i) of the Act.

(10) Dependents or family members of principal aliens classified

NATO-7. A dependent or family member of a principal alien classified as

a NATO-7 may not be employed in the United States under this paragraph.

A dependent or family member of a principal alien classified as a NATO-

7 granted employment authorization under prior regulations may continue

in such employment until that authorization expires.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

follows:

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

4. In Sec. 274a.12, paragraph (c)(7) is revised to read as follows:

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

* * * * *

(c) * * *

(7) A dependent of an alien classified as NATO-1 through NATO-6

pursuant to Sec. 214.2 of this chapter;

* * * * *

Dated: February 1, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-2643 Filed 2-4-94; 8:45 am]

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