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

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 274a

[INS 1653-94]

RIN 1115-AC72

Foreign Employers Seeking To Employ Temporary Alien Workers in

the H, O, and P Nonimmigrant Classifications

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the Immigration and Naturalization Service

(the Service) regulations by precluding foreign employers from directly

filing petitions for O and P nonimmigrant aliens. Prospective foreign

employers seeking to file petitions in these two classifications will

be required to use the services of an agent in the United States. This

rule also amends the H nonimmigrant regulations by requiring foreign

employers seeking to petition for H-2B nonimmigrant aliens to use the

services of an agent in the United States, removes the current

reference to the term ``representative'' from the H-2B regulations,

expands the definition of an agent with respect to the H, O, and P

nonimmigrant classifications, and codifies existing policy with regard

to the filing of nonimmigrant petitions for certain professional

athletes. This rule brings the H, O, and P nonimmigrant regulations

into conformity with the employer sanctions provisions of section 274A

of the Immigration and Nationality Act (``the Act'').

EFFECTIVE DATE: April 16, 1997.

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) 514-3240.

SUPPLEMENTARY INFORMATION: The employer sanctions provisions of the

Immigration and Nationality Act were created by the Immigration Reform

and Control Act of 1986, Public Law 99-603, and are codified in section

274A of the Act, as amended. Among other things, section 274A of the

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

hire an alien knowing the alien is not entitled to engage in

employment. Section 274A of the Act 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 who do not

[[Page 18509]]

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

Act.

The Service has historically allowed foreign employers, i.e., those

employers not amenable to service of process in the United States, to

file petitions for certain nonimmigrant workers. However, in order for

the Service to enforce the sanctions provisions of section 274A of the

Act in an effective manner, an employer must have a legal presence in

the United States for purposes of service of legal process. It has,

therefore, been determined that, as in the case of the H nonimmigrant

classification, 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 petition for

an O and P nonimmigrant alien but will be required to use a United

States agent to file the petition on their behalf. Through their United

States agent, foreign employers will be responsible for complying with

the provisions of section 274A of the Act. In order to accommodate the

needs of those businesses which will use these classifications and, at

the same time, effectively enforce the sanctions provisions, the

definition of an agent found at 8 CFR 214.2(h)(2)(i)(F), 8 CFR

214.2(o)(2)(iv)(E), and 8 CFR 214.2(p)(2)(iv)(E) has been amended by

this rule to include business representatives.

On August 15, 1994, the Service published in the Federal Register

at 59 FR 41843 a proposed rule with requests for comments. Interested

persons were invited to submit written comments on or before October

14, 1994.

Discussion of Comments on the Proposed Rule

The Service received four comments on the proposed rule. Each of

the comments contained a discussion of a number of different issues. As

a result, the number of issues discussed exceeds the total number of

comments received. The commenters offered a number of suggestions and

improvements for the final rule, some of which have been adopted. The

following discussion addresses the issues raised by the specific issue

proposed in the rule, provides the Service's position on the issues,

and indicates the revisions adopted in the final rule based on the

public's comments.

Proposal Number One--The ``30-Day Rule''

The Service proposed to codify its longstanding policy with respect

to sports teams which allows professional athletes traded between teams

to play for the new team prior to the filing of the appropriate

petition, provided that the new team files 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. Since no negative comments were received with

respect to this particular proposal, the proposal will be adopted in

the final rule.

One commenter did, however, note that 8 CFR 214.2(h)(6)(vii), which

discusses the ``30-day rule,'' contained a typographical error. The

error has been corrected in this final rule.

The Service has clarified the rule in two respects. First, the

references in the proposed rule to ``U.S.-based'' organizations have

been deleted, in order to avoid any confusion regarding whether a team

employing a professional athlete pursuant to an H-2B, O-1, or P-1

petition is ``U.S.-based'' or not (for example, a minor league

affiliate in the United States of a foreign major league franchise).

The final rule applies to any trade of an alien professional athlete in

an H-2B, O-1, or P-1 classification. Second, the Service has clarified

that an athlete to whom the final rule applies will remain in status,

and will be eligible to be employed by the team to which the athlete is

traded, after the expiration of 30 days following the trade until the

Form I-129 is adjudicated, as long as the new petition is filed within

the 30-day time frame provided by the rule.

Proposal Number Two--Foreign Employers Filing O, P, and H-2B Petitions

All four of the commenters opposed the Service's proposal that

foreign employers be precluded from filing O and P nonimmigrant

petitions directly with the Service. The commenters raised seven

separate arguments as to why the Service should not implement this

proposal. All four of the commenters, however, suggested that, if the

proposal was adopted, the term ``established U.S. agent'' contained in

the proposed rule should be modified or altered to allow business

entities in the United States which are related to the foreign employer

to be classified as an agent and have the ability to file the petition.

After a careful review of the comments received from the public

concerning this proposal, the Service will adopt without change the

proposal contained in the proposed rule with respect to the filing of O

or P petitions by foreign employers. It is the opinion of the Service

that the adoption of the proposal does nothing more than reflect the

intent of Congress when the employer sanction provisions were enacted.

The purpose of this rule is to prevent abuses of section 274A of the

Act by ensuring that the Service can enforce the section 274A

provisions against foreign employers to the same extent as it currently

does against domestic employers.

However, the Service will accept the suggestion of the commenters

and modify the regulatory definition of the term ``United States

agent'' to accommodate the needs of foreign employers. The final rule

clarifies the definition of ``United States agent'' by specifying that

general legal agency relationships satisfy this requirement. The

proposed rule failed to state clearly that foreign employers are

permitted to use an ``agent'' as commonly defined in legal agency

terms. The final rule recognizes that the term ``agent'' need not be

limited to a person or entity who has entered into a formal agency

agreement with the employer. An ``agent'' can be someone authorized to

represent and act for another, to transact business for another, or

manage another's affairs. A United States agent filing a petition on

behalf of a foreign employer must, however, be authorized by the

foreign employer to file the petition, and to accept service of process

in the United States in any proceeding under section 274A of the Act,

on behalf of the foreign employer.

The Service has also clarified the final rule by defining ``foreign

employer'' for purposes of the rule as ``any employer who is not

amenable to the service of process in the United States.'' This

definition is intended to include all employers of H-2B, O, or P aliens

who are not amenable to service of process within the United States for

any reason.

Discussion of the Specific Comments Raised in Objection to Proposal

Number Two

The following discussion addresses each of the seven reasons raised

by the commenters as to why the proposal that foreign employers should

not be permitted to file an H, O, or P petition directly should not be

adopted.

One commenter suggested that if the Service required foreign

employers to use an agent in the United States to file an O or P

petition, foreign countries would retaliate against U.S. workers abroad

in some fashion.

It is the opinion of the Service that the employer sanctions

provisions must be enforced with equal effect with respect

[[Page 18510]]

to all persons or entities, regardless of whether they are foreign or

domestic, which employ aliens in the United States. While it is

theoretically possible that certain countries may retaliate against the

United States for enforcing these statutory provisions, the Service is

required to follow the intent of Congress in enacting section 274A of

the Act and safeguard against unauthorized employment in this country.

The Service received comments expressing similar fears at the time

it published its interim rule relating to the O and P classifications

following enactment of the Immigration Act of 1990 (IMMACT 90).

Specifically, the commenters suggested at the time that, as drafted,

the Service's regulations would result in retaliatory actions towards

U.S. workers abroad. Such fears have proven to be unfounded. In fact,

more than 4 years after the effective date of IMMACT 90, the Service is

unaware of any instances of retaliatory actions taken by foreign

countries against United States entertainers and athletes abroad.

The Service received two comments which stated that requiring a

foreign company to create a legal relationship with an agent within the

United States will discourage foreign employers from filming and

otherwise working in the United States, thereby harming the U.S.

economy and jeopardizing American workers' jobs.

The Service believes that, as a practical matter, this rule is not

onerous and will not have a negative effect upon such foreign employers

or an adverse effect upon the U.S. economy. One of the commenters

acknowledged that foreign companies are required to comply with all

United States laws, including section 274A of the Act, and, in most

cases, already have either a direct presence within the United States

or an existing relationship with a United States entity. Far from

imposing undue burdens on foreign companies, this regulation is

intended only to ensure that employers who are not amenable to the

service of process in the United States are held to the same standard

of conduct as all other employers with respect to section 274A of the

Act, by providing the Service with a mechanism for ensuring adequate

service of process on such employers. In this regard, this regulation

is similar to the laws of many states which require outside businesses

to have a registered agent for service of legal process.

Further, because this rule expands the term ``United States agent''

to include a business representative, the Service believes most foreign

employers will be able to continue their activities with very little or

no additional burden or inconvenience. Foreign employers will, as a

general rule, already have an agency relationship in place in the

United States.

One commenter suggested that adoption of this proposal would

discourage foreign employers from complying with U.S. immigration laws.

It is the opinion of the Service that the vast majority of

individuals are honest and will comply with the law and applicable

regulations. Further, as indicated in the discussion of the prior

comment, the definition of agent has been modified by this rule and, as

a result, compliance with the proposal will not be difficult to

achieve.

One commenter stated that the rule should not be adopted since it

was never anticipated by Congress that a foreign movie production

company merely using United States-based venues to film a movie would

be required to complete an employment verification eligibility form

(Form I-9) for its O-1 and H-2B nonimmigrant employees. In drafting

section 274A of the Act, Congress did not differentiate among employers

based upon their country of license or registry. The implementation of

this rule does not alter the existing responsibilities of all

employers, domestic or foreign, to comply with section 274A of the Act

with respect to employment within the United States.

Two commenters suggested that requiring the employer of an O or P

nonimmigrant alien to complete a Form I-9 is superfluous since the

employer has already received Service approval to work in the United

States. The employment verification provisions are statutory and,

therefore, the Service lacks the authority to waive this requirement.

Moreover, since foreign employers have always been responsible for

complying with the employer sanctions provisions of the Act, this rule

does not add any additional verification requirements.

One commenter stated that there is no evidence that foreign

employers are violating section 274A of the Act or that the Service is

unable to take enforcement actions against them. Moreover, the

commenter stated, if the foreign employer is still to remain liable for

section 274A violations, then the foreign employers should be able to

file O and P petitions directly. The Service is required to enact

regulations which enable it to execute its various duties and

responsibilities. Evidence of abuse is not a prerequisite for

promulgating rules. As noted above, this rule is designed to ensure

compliance with section 274A of the Act by providing a means of

enforcing this section with respect to foreign as well as domestic

employers. Direct filing of O and P petitions by foreign employers not

amenable to service of process within the United States defeats this

purpose, since, in certain cases, the Service may be unable to pursue

actions against such employers for violations of section 274A of the

Act. Foreign employers who benefit from this privilege must be held

fully accountable for complying with our laws by rendering themselves

amenable to service of process in enforcement actions. Since all

employers, domestic or foreign, who use agents to fulfill their section

274A duties remain liable for violations, this rule will ensure

effective enforcement against violating employers.

One commenter suggested that the language of the proposed rule does

not solve enforcement problems with respect to section 274A.

Specifically, the commenter questioned how the use of an agent could

enhance the Service's enforcement if the agent itself has no liability

under the Act. The commenter argued that, if the agent has no

liability, then that contradicts 8 CFR part 274a unless the agents are

not recruiters or referrers for a fee. See section 274A of the Act.

Alternatively, if there is no existing liability, the commenter added,

then the Service cannot argue that it is being hampered in its ability

to enforce the employer sanctions provisions of the Act.

A person or entity acting as an agent may be subject to liability

under section 274A for acts or omissions committed in that capacity.

The issue, however, is not whether the agent is subject to section 274A

of the Act, but whether the foreign employer can be served with process

in a section 274A proceeding. As this commenter correctly indicates,

foreign employers were, and continue to be, responsible for complying

with section 274A of the Act. This rule does not expand or alter the

requirements or liability imposed by section 274A of the Act. Foreign

employers with a legal presence in the United States are subject to the

Service's enforcement powers. Unfortunately, foreign employers not

physically present in the United States who use the privilege of

directly petitioning for O and P visas may presently be able to avoid

Service enforcement of section 274A because of difficulties in serving

process on the employer abroad. It is necessary, therefore, to ensure

that these foreign employers can be held accountable for complying with

section 274A of the Act in the same manner as all other employers. This

rule accomplishes that goal by using well-established agency

[[Page 18511]]

principles, i.e., requiring the foreign employer to have an agent

within the United States able to file the petition, and to accept

service of process in any section 274A proceeding, on the employer's

behalf.

Employers have always been able to delegate or contract their

section 274A responsibilities to an agent, while still remaining fully

liable for any violations. This rule does not change that. A foreign

employer is free to delegate its section 274A compliance

responsibilities to the agent filing the petition on its behalf, to

another agent, or to carry out those responsibilities itself. The final

rule requires only a limited agency for the purpose of filing the

petition, and accepting service of process in section 274A proceedings,

on behalf of the foreign employer. For purposes of this regulation, the

term ``service of process'' is intended to include any method of

commencing enforcement activity of proceedings that involves notice to

the employer, including notices of inspection of Forms I-9, subpoenas,

Notices of Intent to Fine, or complaints.

Another commenter stated that the sole effect of adopting the

proposed rule would be to enhance the Service's ability to enforce

employer sanctions provisions against a foreign employer who seeks to

employ an O or P nonimmigrant alien. The purpose of the proposal with

respect to foreign employers was to require those employers to comply

with the same rules and regulations as all employers regardless of the

nationality of their employees. Therefore, the commenter's statement is

accurate.

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 majority of foreign employers who petition for

nonimmigrant workers already have established a presence in the United

States or use the services of a United States agent. Therefore, the

number of small entities affected by this rule would be minimal.

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, section 3(f),

regulatory Planning and Review, and the Office of Management and Budget

has waived its review process under section 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.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

Paperwork Reduction Act

This final rule does not impose any new reporting or recordkeeping

requirements. The information collection requirements contained in this

rule were previously 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 amended by 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. Revising paragraph (h)(2)(i)(F);

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) Agents as petitioners. A United States agent may file a

petition in cases involving workers who are traditionally self-employed

or workers 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 United States agent may

be: the actual employer of the beneficiary, the representative of both

the employer and the beneficiary, or, a person or entity authorized by

the employer to act for, or in place of, the employer as it agent. A

petition filed by a United States agent is subject to the following

conditions;

(1) An agent performing the function of an employer must guarantee

the wages and other terms and conditions of employment by contractual

agreement with the beneficiary or beneficiaries of the petition. The

agent/employer must also provide an itinerary of definite employment

and information on any other services planned for the period of time

requested.

(2) A person or company in business as an agent may file the H

petition involving multiple employers as the representative of both the

employers and the beneficiary or beneficiaries 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 establishment, venues,

[[Page 18512]]

or locations where the services will be performed. In questionable

cases, a contract between the employers and the beneficiary or

beneficiaries may be required. The burden is on the agent to explain

the terms and conditions of the employment and to provide any required

documentation.

(3) A foreign employer who, through a United States agent, files a

petition for an H nonimmigrant alien is responsible for complying with

all of 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, a United

States agent, or a foreign employer filing through a United States

agent. For purposes of paragraph (h) of this section, a foreign

employer is any employer who is not amendable to service of process in

the United States. A foreign employer may not directly petition for an

H-2B nonimmigrant but must use the services of a United States agent to

file a petition for an H-2B nonimmigrant. A United States agent

petitioning on behalf of a foreign employer must be authorized to file

the petition, and to accept service of process in the United States in

proceedings under section 274A of the Act, on behalf of the employer.

The petitioning employer shall consider available United States 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 organization or

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 for H-2B nonimmigrant

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

employment authorization will cease. If a new Form I-129 is filed

within 30 days, the professional athlete shall be deemed to be in valid

H-2B status, and employment shall continue to be authorized, until the

petition is adjudicated. 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. Revising paragraph (o)(2)(iv)(E); 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, a United States

agent, or a foreign employer through a United States agent. For

purposes of paragraph (o) of this section, a foreign employer is any

employer who is not amenable to service of process in the United

States. A foreign employer may not directly petition for an O

nonimmigrant alien but instead must use the services of a United States

agent to file a petition for an O nonimmigrant alien. A United States

agent petitioning on behalf of a foreign employer must be authorized to

file the petition, and to accept services of process in the United

States in proceedings under section 274A of the Act, on behalf of the

foreign employer. 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) Agents as petitioners. A United States agent may file a

petition in cases involving workers who are traditionally self-employed

or workers 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 in its behalf. A United States agent may

be: The actual employer of the beneficiary, the representative of both

the employer and the beneficiary; or, a person or entity authorized by

the employer to act for, or in place of, the employer as its agent. A

petition filed by an agent is subject to the following conditions:

(1) 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.

(2) 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.

(3) A foreign employer who, through a United States agent, files a

petition for an O nonimmigrant alien is responsible for complying with

all of 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 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 a new Form I-129 is filed

within 30 days, the professional athlete shall be deemed to be in valid

O-1 status, and employment shall continue to be authorized, until the

petition is adjudicated. 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;

[[Page 18513]]

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, a United States agent, or a

foreign employer through a United States agent. For purposes of

paragraph (p) of this section, a foreign employer is any employer who

is not amenable to service of process in the United States. Foreign

employers seeking to employ a P-1 alien may not directly petition for

the alien but must use a United States agent. A United States agent

petitioning on behalf of a foreign employer must be authorized to file

the petition, and to accept service of process in the United States in

proceedings under section 274A of the Act, on behalf of the foreign

employer. 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 a United States employer. A P-3 petition for an artist

or entertainer in a culturally unique program shall be filed by the

sponsoring organization or a United States employer. 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 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 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 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.

(B) Servcies for more than one employer. If the beneficiary or

beneficiaries 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 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 professional P-1 athletes. In the case of a professional

P-1 athlete who is traded from one 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 a new Form I-129 is filed within 30 days, the professional

athlete shall be deemed to be in valid P-1 status, and employment shall

continue to be authorized, until the petition is adjudicated. 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 performance, engagements, or competitions during the

validity period of the petition without filing an amended petition.

(E) Agents as petitioners. A United States agent may file a

petition in cases involving workers who are traditionally self-employed

or workers 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 United States agent may

be: the actual employer of the beneficiary; the representative of both

the employer and the beneficiary; or, a person or entity authorized by

the employer to act for, or in place of, the employer as its agent. A

petition filed by an United States agent is subject to the following

conditions:

(1) 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 or beneficiaries. The agent/

employer must also provide an itinerary of definite employment and

information on any other services planned for the period of time

requested.

(2) 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 or beneficiaries 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, the names and

addresses of the establishment, venues, or locations where the services

will be performed. In questionable cases, a contract between the

employer(s) and the beneficiary or beneficiaries may be required. The

burden is on the agent to explain the terms and conditions of the

employment and to provide any required documentation.

(3) A foreign employer who, through a United States agent, files a

petition for a P nonimmigrant alien is responsible for complying with

all of 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. A petitioner may request

substitution of beneficiaries in approved 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.

* * * * *

[[Page 18514]]

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. 174a.12 Clauses 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 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 to petition for H-2B

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

employment authorization will cease. If a new Form I-129 is filed

within 30 days, the professional athlete's employment authorization

will continue until the petition is adjudicated. 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 traded from

one 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 a new Form I-129 is filed

within 30 days, the professional athlete's employment authorization

will continue until the petition is adjudicated. 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 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 a new Form I-129 is filed

within 30 days, the professional athlete's employment authorization

will continue until the petition is adjudicated. If the new petition is

denied, employment authorization will cease;

* * * * *

Dated: February 13, 1997.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 97-9814 Filed 4-15-97; 8:45 am]

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