[Federal Register Volume 59, Number 25 (Monday, February 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2643]


[[Page Unknown]]

[Federal Register: February 7, 1994]


                                                    VOL. 59, NO. 25

                                           Monday, February 7, 1994
=======================================================================

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 274a

[INS No. 1328-93]
RIN 1115-AB52

 

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

agency: Immigration and Naturalization Service, Justice.

action: Proposed rule.

-----------------------------------------------------------------------

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]
BILLING CODE 4410-10-M