[Federal Register Volume 59, Number 156 (Monday, August 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16674]


[[Page Unknown]]

[Federal Register: August 15, 1994]


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Part II





Department of Justice





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Immigration and Naturalization Service



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8 CFR Part 214




Temporary Alien Workers Seeking H-1B, O, and P Classifications Under 
the Immigration and Nationality Act; Final Rule



8 CFR Parts 214 and 274a



Foreign Employers Seeking to Employ Temporary Alien Workers in the H, 
O, and P Classifications; Proposed Rule
DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS NO. 1454-93]
RIN 1115-AC72

 
Temporary Alien Workers Seeking H-1B, O, and P Classifications 
Under the Immigration and Nationality Act

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule implements certain provisions of the 
Miscellaneous and Technical Immigration and Naturalization Amendments 
of 1991 as it relates to temporary alien workers seeking nonimmigrant 
classification and admission to the United States under sections 
101(a)(15) (H), (O), and (P) of the Immigration and Nationality Act 
(Act). These amendments altered, among other things, the eligibility 
requirements for the H-1B, O, and P nonimmigrant classifications. This 
rule contains the new procedures required for these classifications and 
conforms Service policy to the intent of Congress as it relates to 
these classifications. This rule sets forth the new filing procedures 
and eligibility standards, and clarifies for businesses and the general 
public the requirements for classification and admission.

EFFECTIVE DATE: August 15, 1994.

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) 514-3946.

SUPPLEMENTARY INFORMATION: The Immigration Act of 1990 (IMMACT), Public 
Law 101-649, November 29, 1990, created, among other things, the O and 
P nonimmigrant classifications. These nonimmigrant classifications were 
to become effective on October 1, 1991, but the full implementation of 
these classifications was delayed until April 1, 1992 by the enactment 
of the Armed Forces Immigration Adjustment Act of 1991 (Pub. L. 102-
110) which was signed into law on October 1, 1991. In response to 
concerns voiced by the public and other interested parties, the 
Miscellaneous and Technical Immigration and Naturalization Amendments 
of 1991, Pub. L. 102-232, dated December 12, 1991, was enacted which 
altered the eligibility requirements for certain portions of the O and 
P nonimmigrant classifications as contained in IMMACT and, in addition, 
added fashion models of distinguished merit and ability to the H-1B 
classification.
    On April 9, 1992, at 57 FR 12179-12190, the Immigration and 
Naturalization Service (Service) published an interim rule with request 
for comments in order to implement the provisions of Pub. L. 102-232. 
Interested persons were invited to submit written comments on or before 
June 8, 1992.
    This final rule amends the Service's regulations at 8 CFR 214.2 to 
reflect the changes made by the Miscellaneous and Technical Immigration 
and Naturalization Amendments of 1991, Public Law 102-232, December 12, 
1991. The changes are discussed below. For the sake of convenience, the 
entire O and P regulations have been reprinted here.

Discussion of Comments on the Interim Regulations

    The Service received 192 comments on the interim rule. Many of 
these commenters addressed more than one issue in their comments. The 
vast majority of the comments dealt with the O and P classifications. 
Only eight comments were received which addressed the H-1B 
classification. A number of commenters offered suggestions and 
improvements for the interim rule, many of which have been adopted in 
the final rule. The following discussion groups the comments into the 
various nonimmigrant classifications, discusses the issues raised, 
provides the Service's position on the issues and, finally, indicates 
the revisions adopted in the final rule, based on the public's 
concerns. A general provision section is also included in which topics 
relating to both the O and P classifications, such as filing by agents 
and the consultation process, are discussed. The final rule also 
contains a number of changes which were implemented as a result of the 
monitoring of the actual operation of the interim rule.

H-1B Nonimmigrant Classification

Occupations Included in the H-1B Classification--Sec. 214.2(h)(1)(i)
    Seven commenters suggested that the Service include in the 
definition of the H-1B classification a number of support occupations 
normally encountered in the field of fashion modeling, such as hair 
stylists and make-up artists. Nothing in the statute or the legislative 
history indicates that Congress intended to include support occupations 
in the H-1B classification. The statute clearly limits the H-1B 
classification to aliens employed in a specialty occupation and to 
fashion models of distinguished merit and ability. Therefore, the 
Service cannot adopt this suggestion.
    It should be noted that aliens employed in such fields as hair-
styling may be able to obtain nonimmigrant classification under the O-1 
classification or under the H-2B classification if eligible. The 
admission of these aliens into the United States is not precluded by 
the fact that they are not statutorily eligible for H-1B 
classification.
Evidentiary Criteria for Petitions for Fashion Models of Distinguished 
Merit and Ability--Sec. 214.2(h)(4)(vii)
    The other comment received concerning the H-1B classification 
stated that the evidentiary criteria relating to the beneficiary's 
requirements for classification as an H-1B fashion model did not 
accurately reflect the nature of the industry. For example, the 
commenter stated that, generally speaking, awards are not available to 
fashion models and should not be listed as a criterion for establishing 
that a fashion model is of distinguished merit and ability. The final 
rule adopts the evidentiary criteria suggested by the commenter. The 
Service believes that the regulation now lists evidentiary criteria 
which are more appropriate to the industry.
O Nonimmigrant Category
    Prior to discussing the comments relating to the O nomimmigrant 
classification, it must be noted that the final rule contains a number 
of adjustments in terminology. In the interim rule, the Service labeled 
the list of the types of evidence that a petitioner could submit to 
establish an alien's eligibility as ``standards'' for the 
classification. For example, in the interim rule, the heading of 
Sec. 214.2(o)(3)(iv) was entitled ``Standards for an O-1 alien of 
extraordinary ability in the fields of science * * *''. The paragraph 
then proceeded to list the types of evidence that a petitioner could 
submit to establish the alien was of O-1 caliber. In reality, the 
standard for an alien of extraordinary ability in the O-1 
classification is that the alien is one of the small percentage of 
individuals who have risen to the very top of their field of endeavor. 
The evidence submitted by the petitioner is not the standard for the 
classification, but merely the mechanism to establish whether the 
standard has been met. The paragraph headings for 
Sec. 214.2(o)(3)(iii), (iv), and (v) have been amended to reflect this 
change in terminology.
    The Service has also received comments that the interim rule is 
complicated as it appears to require a petitioner to submit two 
separate sets of evidence to establish the beneficiary's eligibility. 
In fact, the interim rule at Sec. 214.2(o)(3) sets forth the 
evidentiary requirements for the classification while Sec. 214.2(o)(6) 
describes the type of evidence which may be submitted to meet this 
requirement. However, in order to remove any ambiguity in this matter, 
the Service has amended the interim rule by changing the heading of the 
paragraph (o)(6), which provides a description of the evidence to be 
submitted, and moving it to paragraph (o)(2)(iii) in the final rule. As 
a result of this change, it should be clear to the public that the 
purpose of this particular paragraph is merely to provide a description 
of the types of evidence which may be submitted by a petitioner. For 
further clarification, the final rule also contains a new paragraph at 
(o)(2)(ii) which contains a general summary of the evidence required to 
be submitted for an O petition.
    The five fields of activity included in the statute (sciences, 
arts, education, business, and athletics) are sufficiently broad so 
that aliens employed in most occupations within these fields may be 
classified as O-1 nonimmigrant aliens provided, of course, that such 
classification is not precluded by statute or regulation and the alien 
is eligible for such classification.
Form of Documentation--Sec. 214.2(o)(2)(iii)(A)
    Twenty-five commenters suggested that the Service's requirement 
that the person in charge of an institution, firm, establishment, or 
organization where the beneficiary's work was performed should not be 
solely responsible for executing the documents submitted in support of 
an O petition. The commenters suggested that a responsible person, not 
necessarily the person in charge, should be permitted to endorse the 
supporting documentation. The Service agrees with this suggestion and 
the final rule will be amended to require that documentary evidence 
need only be endorsed by a responsible person at the organization, 
firm, institution, or establishment where the work was performed, and 
not necessarily the person in charge.
Services for More than One Employer--Sec. 214.2(o)(2)(iv)(B)
    One individual suggested that the final rule contain a provision 
allowing an O-1 alien to work concurrently for two employers without 
the employers filing separate petitions for the alien. The statute 
requires that, prior to according an alien O-1 status, the Attorney 
General must determine if the alien will continue to be employed in the 
area of the extraordinary ability or achievement. This determination 
cannot be made unless each employer files a petition for the alien. 
Further, although approval of an O nonimmigrant petition does not 
involve a test of the U.S. labor market, the statute clearly requires 
that labor organizations, peer groups, and, in some cases, management 
organizations, must be consulted prior to according an alien O 
classification. In order to ensure that these criteria are met, 
separate petitions must be field by each employer. Therefore, this 
comment will not be adopted.
Change of Employer--Sec. 214.2(o)(2)(iv)(C)
    This paragraph has been amended in the final rule to reflect that 
when an O alien changes employers, the new employer must also seek an 
extension of the alien's stay. This alteration makes the O regulation 
consistent with the P regulation.
    The language contained in the interim rule has also been amended to 
reflect that in those situations where the petition was filed by an 
agent and the alien changes employers, the agent must file an amended 
petition reflecting the change. The agent must also file for an 
extension of stay. The language contained in the interim rule did not 
accommodate this situation.
Amended Petitions--Sec. 214.2(o)(2)(iv)(D)
    The language contained in the interim rule has been amended to 
reflect that a petitioner may add additional performances, events, or 
competitions to a valid O petition without filing an amended petition. 
This amendment was adopted by the Service as a result of comments 
received from the public as a result of the operation of the interim 
rule.
Definitions of terms found in the O-1 Nonimmigrant Category--
Sec. 214.2(o)(3)(ii)
    One commenter suggested that chefs should be included in the 
definition of the term ``arts''. Since a chef requires skill and 
creative imagination in order to ``create'' dishes and meals, the 
Service will include culinary arts within the definition of the term 
``arts''. Of course, a chef would have to meet the regulatory standards 
required for classification as an O-1 artist.
    Fourteen commenters also recommended that the term arts should 
include not only principal creators and performers, but other essential 
persons such as, but not limited to, directors, set designers, and 
choreographers. Since there is legislative support for this suggestion 
at 137 Cong. Rec. S18247 (daily ed. Nov. 26, 1991), this suggestion 
will be adopted.
    One commenter suggested that the definition of arts should 
specifically include those aliens involved in live musical performances 
and their embodiment in sound recordings. The suggestion will not be 
adopted since these entertainers are already included in the definition 
of arts as they are, obviously, performing artists. It should be noted 
that it is not feasible to list every occupation in the regulation 
which can be considered to fall within the very broad field of arts.
    Forty-four commenters suggested that the final rule include a 
definition of the term ``event'' to provide guidance to petitioners as 
to what activities are covered by the petition. In response to these 
comments, the final rule now contains a definition of the term 
``event''. The definition recognizes that short vacations often occur 
during an event or performance which are incidental and/or related to 
the event or performance. The Service will not include the term 
``layoffs'' in the definition of the term ``event'', as the term 
commonly implies a negative and adverse action of unemployment. 
However, the definition will include language which allows for short 
stopovers between performances, such as in a tour. The Service believes 
that business events are adequately considered in the definition as 
business projects.
    In response to a comment that the definition of the term 
extraordinary ability found in the interim rule was confusing, the 
definition has been amended in the final rule. For clarification, the 
final rule contains a definition of the term ``extraordinary ability in 
the field of arts'' and a separate definition of ``extraordinary 
ability in the field of science, education, business, or athletics''. 
For further clarification, the definition of the term ``distinction'' 
found in the interim rule has been included in the definition of the 
term ``extraordinary ability in the field of arts''.
    Two commenters recommend that the definition of peer group be 
altered to be less restrictive. The definition of peer group contained 
in the interim rule required that the members of the peer group be of 
``similar standing with the alien''. Due to the high standards for the 
O-1 category in the fields of science, business, education, and 
athletics, it would be very difficult for prospective petitioners to 
find a group of individuals who were of similar standing with the 
beneficiary. Therefore,the definition of the term ``peer group'' has 
been modified in the final rule to remove this phrase.
    One commenter, citing section 214(c)(6)(A)(i) of the act, suggested 
that the definition of peer group be amended to indicate that a peer 
group could be a person or persons of the alien's choosing with 
expertise in the alien's particular field of endeavor. The Service has 
interpreted this particular section of law as allowing petitioners to 
submit a consultation in the case of an O-1 alien of extraordinary 
ability from either a peer group or a person or persons of its 
choosing. It is the Service's opinion that the term ``person or persons 
of its choosing'' was placed into the statute as an alternate source 
for a consultation and was not included as a definition of the term 
``peer group.'' Therefore, this comment will not be adopted.
Criteria for Establishing That a Position Requires the Services of an 
Alien of Extraordinary Ability or Achievement--Sec. 214.2(o)(3)(iii)
    Two commenters recommended that the criteria for establishing a 
position requiring the services of an O-1 nonimmigrant alien should be 
amended since such criteria relate more to the petitioner than the 
actual position itself. In addition, one commenter suggested that there 
is no statutory support for the requirement than an O-1 alien be coming 
to perform services requiring an alien of O-1 caliber. The commenter 
noted that the statute merely requires that the O-1 alien be coming to 
perform services in the area of extraordinary ability.
    After careful consideration, the Service agrees that there is no 
statutory support for the requirement that an O-1 alien must be coming 
to the U.S. to perform services requiring an alien of O-1 caliber. As a 
result, this paragraph has been deleted from the final rule. The alien, 
however, must be coming to perform services in the area of 
extraordinary ability as is required in the statutory definition of the 
classification.
Evidentiary Criteria for an O-1 Alien of Extraordinary Ability in the 
Fields of Science, Education, Business, or Athletics--
Sec. 214.2(o)(e)(iv)
    Eighteen comments were received relating to the criteria for an 
alien of extraordinary ability in the fields of science, education, 
business, or athletics. One commenter suggested that a businessman 
could not obtain classification as an O-1 alien since the criteria for 
the classification did not readily accommodate individuals in the field 
of business. It is the opinion of the Service that the evidentiary 
criteria for aliens of extraordinary ability do accommodate business 
people. An O-1 business person, i.e., a business person who is at the 
very peak of his or her occupation, would, in all likelihood, be able 
to meet many of the evidentiary criteria listed in the regulation. Also 
the ``catch-all'' category at Sec. 214.2(o)(3)(iv)(C) allows for the 
submission of additional evidence not covered by the other criteria.
    One commenter suggested that all hockey players in the National 
Hockey League should be eligible for O-1 classification. The Service 
cannot adopt this suggestion since extraordinary ability can only be 
accorded to the small percentage of individuals who have risen to the 
very top of their field of endeavor.
    Fourteen commenters suggested that comparable evidence should be 
defined as ``evidence appropriate to, and recognized within the 
field.'' The Service will not incorporate this suggestion into the 
final rule since it is not necessary. Clearly, any evidence submitted 
in support of an O-1 petition must relate to the alien's field of 
endeavor and be recognized in that field of endeavor or else it is of 
no value in the adjudication of the petition.
    Four commenters also suggested that the comparable evidence 
criteria be eliminated as it compromises the other more specific 
criteria. The Service will not adopt this suggestion as the comparable 
evidence criteria merely allows petitioners in cases where the 
beneficiary is employed in an unusual or obscure field of endeavor to 
submit alternate, but equivalent, forms of evidence.
    One commenter suggested that the O-1 criteria for university and 
college professors are excessive and should be altered. The Service 
will not adopt this suggestion since the O-1 category is reserved for 
those aliens who have reached the very top of their occupation or 
profession. The standard for the classification as created by Congress 
was designed to be extremely high and limited to only the best 
individuals employed in a particular field.
Evidentiary Criteria for an O-1 Alien of Extraordinary Ability in the 
Field of Arts--Sec. 214.2(o)(3)(v)
    Under the statute, the standard for an O-1 artist is significantly 
lower than the standard for an alien of extraordinary ability in the 
fields of science, education, business, or athletics. Petitioners are 
required to establish only that the O-1 artist is prominent in his or 
her field of endeavor. Eligibility for O-1 classification in the field 
of arts is not limited to those aliens who have reached the very top of 
their professions as is required in the fields of science, business, 
education, or athletics. In order to establish an alien as an O-1 alien 
of extraordinary ability in the field of arts, the petitioner must 
submit evidence that the beneficiary has received, or been nominated 
for, a major international or national award or submit evidence 
relating to three of six other criteria. The regulation also allows the 
submission of comparable evidence if the six listed criteria cannot be 
met.
    A number of comments were received addressing the evidentiary 
criteria for the classification. Many of the comments suggested that 
the criteria be altered in some fashion. One commenter suggested that 
the criteria for this category were duplicative and that by meeting one 
criterion, the alien would actually meet two. Thirteen commenters 
suggested that the interim regulation should be altered to provide that 
second or third place finishes in a prestigious competition qualify an 
alien as an O-1. Thirteen commenters also suggested that the receipt of 
lesser awards than those specified in the regulation should be a 
separate criterion in the regulation. One commenter stated that 
additional awards should be listed in the regulation for aliens 
employed in the recording industry.
    The Service will not adopt any of the foregoing suggestions. It is 
recognized that a number of the criteria listed in the regulation are 
similar to one another, but it must also be noted that no two are 
identical. Further, the Service's decision in a particular case is also 
dependent upon the quality of the evidence submitted by the petitioner, 
not just the quantity of evidence. The mere fact that the petitioner 
has submitted evidence relating to three of the criteria as required by 
the regulation does not necessarily establish that the alien is 
eligible for O-1 classification.
    The interim regulation also provides that O-1 eligibility can be 
established if the alien has been nominated for a significant national 
or international award. Thus, second and third place finishes are 
already contemplated in the regulation.
    It must be noted that the awards listed in the regulation are 
provided merely as examples and are not all-inclusive. Other major 
national or international awards will also be considered by the Service 
in determining the alien's eligibility. The listing of every major 
national award in every field of endeavor is, therefore, not necessary. 
Finally, pursuant to Sec. 214.2(o)(3)(v)(C), it is understood that, in 
certain cases, a petitioner may submit evidence that the beneficiary 
has been the recipient of less significant awards in support of the 
petition.
    Two commenters also recommended that the interim rule be amended to 
reflect that the salary of the proposed position should be high in 
relation to others in the field. Since, in some cases, the proffered 
salary may be indicative of the alien's level of recognition, the final 
rule has been amended to include language indicating that the alien's 
salary may be used as a criteria in establishing the alien's 
eligibility for O-1 classification. However, the Service recognizes 
that situations may arise where an O-1 alien is coming legitimately to 
the U.S. to perform services in a position where there is little or no 
salary. For example, an O-1 entertainer may be invited to come to the 
U.S. to perform at a charity event and receive no remuneration. The 
alien is still of O-1 caliber even though the proffered salary may be 
minimal. As a result, the alien's salary may be considered by the 
Service in determining the alien's eligibility but a high salary is not 
a mandatory requirement for establishing eligibility.
    One commenter stated that the term ``critical role'' should be 
removed from the eligibility criteria for an O-1 alien since it was not 
contained in the pre-IMMACT H-1B regulations. The commenter noted that 
Congress desired that the criteria for aliens of extraordinary ability 
in the arts mirror the prior H-1B criteria for prominent aliens. The 
Service will not adopt this suggestion as the inclusion of this term 
does not alter or lessen the criteria for the classification in any 
meaningful fashion. The term merely expands and explains the criteria.
Evidentiary Criteria for Aliens of Extraordinary Achievement in the 
Field of Motion Picture and Television--Sec. 214.1(o)(3)(vi)
    Three commenters suggested that the standard for aliens of 
extraordinary achievement in the motion picture and television industry 
should be higher than the standard for aliens of extraordinary ability 
in the arts. In the interim rule, the Service linked these two 
categories together. The Service now agrees that the standards for 
these two classifications are different and will incorporate this 
suggestion into the final rule.
    One of the significant changes contained in Pub. L. 102-232 was 
that Congress provided a statutory definition to extraordinary ability 
in the arts. Congress has defined this term as ``distinction'', which 
has been interpreted by the Service to mean ``prominence'', See 137 
Cong. Rec. S18247 (daily ed., Nov. 16, 1991). This statutory change 
effectively lowered the standard for aliens in the field of arts 
originally contained in IMMACT and differentiated the standard for 
artists for extraordinary ability from other aliens of extraordinary 
ability. However, Pub. L. 102-232 did not lower the standard for aliens 
of extraordinary achievement in the motion picture and television 
industry but left the standard intact. Thus, the Service can no longer 
link these two categories of aliens together since the categories now 
have different standards.
    As a result, the final rule has been modified to reflect that an 
alien of extraordinary achievement in the field of motion pictures or 
television must meet a higher standard than that for an alien of 
extraordinary ability in the field of arts, namely, the prominence 
standard. The Service has defined the standard for aliens of 
extraordinary achievement in the field of motion pictures and 
television in the final rule as a very high level of accomplishment 
evidenced by a degree of skill and recognition significantly above that 
ordinarily encountered. The alien must be outstanding or notable in the 
field of endeavor. An alien who is merely well-known, i.e., a prominent 
alien, would not qualify for this category.
    It should be noted that the evidentiary criteria for aliens of 
extraordinary ability in the arts and for aliens of extraordinary 
achievement in the motion picture or television industry are the same. 
However, this does not mean the standards for the classification are 
the same. Again, the standard for the classification relates to the 
definition of the classification, not to the evidence submitted by the 
petitioner. Thus, while the Service will examine the same evidence for 
these two classifications, it will weight the evidence differently, and 
requires aliens of extraordinary achievement in the motion picture and 
television industry to meet a higher standard than aliens of 
extraordinary ability in the field of arts.
    The effect of these regulatory and statutory changes is that there 
are now three distinct categories of aliens in the O-1 classification. 
One classification relates to aliens of extraordinary ability in the 
fields of science, education, business, or athletics. The standard for 
this classification is that the alien is one of the small percentage of 
persons who have risen to the top of this profession. The second 
classification relates to O-1 aliens of extraordinary ability in the 
field of arts. The standard for this classification is that the alien 
is prominent. The third category within the classification relates to 
aliens who are of extraordinary achievement in the field of motion 
pictures or television. The standard for this classification is that 
the alien is outstanding in his or her field, but not necessarily at 
the very top of the profession.
    In order to effectuate this change, the final rule now contains a 
new paragraph at (o)(3)(vi) containing the criteria for O-1 aliens of 
extraordinary achievement in the field of motion pictures and 
television.
    One commenter suggested that the standards for the categories 
within the O-1 classification do not reflect that the aliens must have 
sustained national or international acclaim. The Service believes that 
the descriptions of the classifications at Sec. 214.1(o)1)(ii) 
accurately reflect Congressional intent since the regulatory language 
is taken directly from the statute.
Petition for an O-2 Accompanying Alien--Sec. 214.2(o)(4)
    One commenter suggested that the reference to U.S. workers be 
deleted from the regulation as it was not contained in the statute. The 
statute requires that 0-2 aliens have critical skills and experience 
with the 0-1 alien which are not of a general nature and which are not 
possessed by other individuals. On the other hand, the interim rule 
merely requires that the petitioner establish that the alien have 
critical skills which are not possessed by a U.S. worker. The 
regulatory standard is, in effect, a lesser standard than that required 
by the statute. As a practical matter, the U.S. worker standard can be 
more easily established by a prospective petitioner than a worldwide 
worker standard because of the availability of the consultation 
process. Therefore, the Service will not adopt this suggestion since it 
would further complicate the petitioning process by requiring 
petitioners desiring to import essential support personnel to establish 
that the alien's skills and knowledge are not possessed by anyone else 
in the world. Clearly, Congressional intent in this area was to protect 
U.S. workers, not workers in other countries.
    One commenter recommended that the Service should require that an 
accompanying alien have at least three years of experience with the 0-1 
alien before accompanying alien status can be granted. The Service will 
not adopt this suggestion as it does not provide sufficient flexibility 
to accommodate aliens employed in the entertainment and sports fields.
Consultation Process for O Nonimmigrants--Sec. 214.2(o)(5)
    A large number of comments were received from the public concerning 
the consultation process. This portion of the preamble discusses only 
those comments which relate to the consultation process for O 
petitions. The comments which relate to both the O and P 
classifications are discussed in the ``general'' discussion section of 
the preamble below.
    Although a number of commenters have suggested otherwise, the 
Service strongly believes its interpretation of the consultation 
requirement as contained in IMMACT is correct and proper. The Service 
recognizes that the process is sometimes cumbersome and time-consuming. 
Further, the Service is aware that in some places, e.g., Puerto Rico, 
an appropriate consulting entity may not exist. However, the 
consultation process is a requirement of the Act which provides the 
Service with valuable information in the adjudication of certain 
petitions. The Service has used the consultation process in order to 
obtain information from expert sources, e.g., management organizations 
and labor organizations, concerning the nature of the proffered 
position as well as the credentials of the beneficiary. The final rule 
incorporates many of the suggestions provided by commenters. The 
suggestions which were adopted should make the process easier for the 
public to use.
    Seventy-four commenters recommended that, in the case of an alien 
of extraordinary ability, an advisory opinion could be submitted in 
support of the petition by an expert in addition to a peer group or 
labor organization. Since this is provided for in the Act at section 
214(c)(6)(A)(i), this suggestion will be adopted in the final rule. 
Section 214.2(o)(5)(ii) has been amended to reflect this change.
    One commenter recommended that the waiver provision contained in 
paragraph (o)(5)(ii)(B) should be applied to all O-1 nonimmigrant 
aliens if they seek readmission to the United States to work in the 
same occupation. The waiver provision as described in the interim rule 
relates only to aliens of extraordinary ability in the field of arts. 
The Service will not adopt this suggestion since the consultation 
process is a statutory requirement and the waiver provision, found at 
section 214(c)(3) of the Act, is specifically limited to aliens of 
extraordinary ability in the field of arts. The Service does not have 
the authority to waive the consultation unless specifically provided 
for in the Act.
    One commenter stated that the final rule should contain language 
providing that it is the petitioner's responsibility when requesting 
this waiver to provide a copy of the prior consultation and to 
specifically request the waiver in writing. The Service will adopt this 
suggestion and the final rule will be amended accordingly.
    Ninety-four commenters stated that, in order to comply with section 
214(c)(6)(B) of the Act, labor organizations should be able to respond 
to the Service's request for a written advisory opinion merely with a 
letter of no objection as opposed to a full discussion of the 
beneficiary's credentials and the proffered position. The commenters 
noted that in many cases involving petitions filed in the entertainment 
field, time is a crucial factor and a more detailed consultation could 
delay the adjudication of the petition. The Service agrees with this 
suggestion. This suggestion will be adopted and the final rule will be 
amended accordingly. Labor organizations may respond to the Service's 
request for a consultation with a simple letter of no objection if the 
labor organization has no objection to the approval of the petition. 
However, if the labor organization objects to the approval of the 
petition, the consultation must contain a detailed response to the 
Service's request for consultation.
    It should be noted that petitions for 0-1 artists which are filed 
without a consultation from a labor organization will require 
additional time to adjudicate since the Service will be required to 
contact the national office of the appropriate labor organization. For 
this reason, petitioners in 0-1 cases should consider obtaining a 
consultation from a labor organization prior to filing the petition 
although not required to do so by statute.
    In response to comments from field offices, paragraph(o)(5)(ii)(E), 
which relates to the process for obtaining expedited consultations, has 
been altered to remove the reference to peer groups. Pursuant to 
section 214(c)(6)(B) of the Act, since the Service is required to 
consult with a labor organization in those instances where a petition 
is accompanied only by a peer group consultation, the Service would 
not, as a matter of general practice, consult with a peer group prior 
to adjudicating a petition. Section 214(c)(6)(B) of the Act was drafted 
by Congress to ensure that organized labor could be provided with an 
opportunity to comment on a prospective employment situation. Congress 
did not intend to provide peer groups with the same opportunity since 
the provision is not contained in statute. However, Service officers 
have the discretion to contact a peer group prior to adjudicating a 
petition if it is deemed appropriate.
    One commenter recommended that separate consultations should not be 
required for 0-2 nonimmigrant aliens. This comment will not be adopted 
since the Act requires that all petitions for 0-2 nonimmigrant aliens 
be accompanied by a consultation from a labor organization or a 
management organization with expertise in the specific field involved.
Admission Periods for O Nonimmigrants--Sec. 214.2(o)(10)
    One commenter suggested that there should be no regulatory limit on 
the length of admission for an O nonimmigrant alien. The suggestion 
cannot be adopted since the period of stay for an O nonimmigrant is 
limited by the Act to the period of time required by the alien to 
complete the event or events described on the petition. An 0-1 
classification may not be granted to an alien to enter the United 
States to free lance in the open market. An 0-1 alien must be coming to 
the United States for specific events.
    The three-year period of time listed in the final rule relates only 
to the alien's initial period of admission. The alien's total period of 
stay in the United States will be limited to the duration of the event. 
There is no maximum time limit on the O-1's total stay in the United 
States.

The P Nonimmigrant Classification

    Prior to discussing the comments for the P nonimmigrant 
classification, it must be noted that this portion of the final rule 
contains the same changes in terminology relating to standards and 
evidentiary criteria as in the O classification. The final rule no 
longer refers to the evidentiary criteria for a particular 
classification as the ``standards'' for the classification. The 
standard for a classification is not the evidentiary criteria for the 
classification, but the definition of the classification itself. The 
appropriate paragraph headings have been amended to reflect this change 
in terminology.
    The final rule also contains a new paragraph Sec. 214.2(p)(2)(ii) 
which summarizes the evidence required to be submitted with a P 
petition and a new paragraph (p)(2)(iii) which describes the evidence 
which can be submitted with a P petition. The addition of these two 
paragraphs should clarify the documentary requirements for the 
nonimmigrant classification.
Filing of Petitions--Sec. 214.2(p)(2)(i)
    In order to accommodate the situation where a P-1 entertainment 
group will be performing in the United States without receiving a 
salary, (e.g., performing in a benefit show) language has been added to 
the final rule indicating that a U.S. sponsor may also file a P-1 
petition.
    Since the publication of the interim rule, a number of individuals 
have inquired as to whether an individual entertainer could be 
petitioned for by a U.S.-based entertainment group under the P-1 
classification. Also, one commenter suggested that the Service should 
not apply the 75 percent rule to U.S.-based entertainment groups. The 
Service has decided to address these issues in a separate rule.
    A number of commenters stated that it was not clear whether an 
agent could file a P petition. The final rule contains language 
clarifying that P petitions may be filed by established U.S. agents.
Change of Employer--Sec. 214.2(p)(2)(iv)(C)
    In order to accommodate those situations where an agent files a 
petition and where the alien change employers, this paragraph has been 
amended to reflect that the agent should file an amended petition with 
information relating to the new employer. The agent must also request 
an extension of the alien's stay.
Amended of Petitions--Sec. 214.2(p)(2)(iv)(D)
    The language contained in the interim rule has been amended to 
reflect that a petitioner may add similar performances during the 
validity of a P petition without the necessity of filing an amended 
petition. This amendment was adopted by the Service as a result of 
public comments during the operation of the interim rule.
Multiple Beneficiaries--Sec. 214.2(p)(2)(iv)(F)
    The interim rule contained the requirement that essential support 
personnel could not be included on the petition for the principal alien 
or aliens but, instead, should be filed on a separate petition. Sixty-
nine commenters suggested that this procedure resulted in an 
unnecessary expense to petitioners who were required to submit two 
petitions for almost every entertainment act. These commenters 
suggested that in order to avoid this unnecessary expense, essential 
support personnel should be included in the petition for the principal 
alien. The Service is aware of the expense involved in filing these 
petitions but cannot adopt the suggestion. The Service is required by 
the Act to furnish an annual report to Congress addressing the 
occupations contained in P petitions. The only way that the Service can 
properly track these occupations is to require the submission of 
separate petitions for essential support personnel.

Definitions Found in the P Classification--Sec. 214.2(p)(3)

Event, Competition, or Performance
    One commenter suggested that the definition of the term ``event'' 
as contained in the interim final rule be amended to include the 
duration of the alien's contract. The Service agrees with this 
suggestion and will adopt it in the final rule.
    Another commenter suggested that the definition of event should be 
expanded for hockey players and other athletes. The Service believes 
the definition contained in the interim final rule is broad enough and, 
as written, contemplates an entire season or the length of the alien's 
contract, if longer than the season.
Labor Organization
    Forty-four commenters suggested that the final rule contain a 
definition of the term ``labor organization''. The Service does not 
believe that such a definition is necessary because the term ``labor 
organization'' as used in the interim rule is the common, every-day 
usage of the term. Where the Service uses the common, every-day 
definition of a term, it need not be incorporated into the regulation.
Essential Support Personnel
    A number of comments were also received from the public concerning 
the Service's definition of essential support personnel. As written in 
the interim rule, essential support personnel are highly skilled, 
essential workers who are determined to be an integral part of a P 
nonimmigrant's performance which cannot be performed by a U.S. worker. 
The rule requires that the support alien have prior experience with the 
principal alien.
    Eighteen commenters suggested that the Service delete the 
requirement that essential support personnel have experience with the 
principal alien and three commenters stated that the requirements for 
the support aliens were too high. Forty-one commenters also suggested 
that the reference to U.S. workers should be removed.
    The Service will not modify the definition of essential support 
personnel. The requirement that the essential support personnel have 
experience with the principal alien is based on the language found in 
the Act describing the P-1 classification. The Act requires that P-1 
classification may be granted to an alien entertainer who performs with 
or is an integral and essential part of the performance of a group. It 
is the Service's view that in order to become an integral and essential 
part of the performance, the essential support personnel must have had 
experience with the group.
    In order to clarify the final rule regarding essential support 
personnel, two new paragraphs have been added at (p)(6)(iii) and at 
(p)(7)(iii) which discuss petitions for essential support personnel for 
the P-2 and P-3 categories.

Evidentiary Criteria for an Internationally Recognized Athlete or 
Athletic Team Sec. 214.2(p)(4)(ii)(B)

    One commenter suggested that a major league contract should be 
sufficient evidence to establish P-1 classification. The Service agrees 
with this suggestion to a certain extent and has made arrangements with 
the National Hockey League as well as Major League Baseball to 
establish guidelines for these sports separate from, but consistent 
with, the regulatory criteria. These guidelines will be published in 
the Service's operations instructions.
    Since the implementation of the interim rule, the Service has 
received a number of questions from the public as to how the 
evidentiary criteria for the classification relate to amateur athletes. 
The Service has crafted the rules relating to P-1 athletes with the 
professional athlete in mind. Amateur athletes are properly 
classifiable under the B-1 nonimmigrant classification and, as a 
result, the criteria contained in the regulation may not accommodate 
them.
    In order to accommodate those sports where the athlete is not 
required to sign a written contract, the final rule contains language 
indicating that a written contract need not be submitted if such 
contracts are not normally used in the particular sport.

Evidentiary Criteria for Members of Internationally Recognized 
Entertainment Groups--Sec. 214.2(p)(4)(iii)(B)

    In order to establish eligibility for P-1 status, the petitioner 
must demonstrate that the group is internationally recognized. The 
interim final rule provides that a petitioner can establish the group's 
eligibility by submission of evidence that the aliens have received or 
been nominated for a significant international award or prize. In lieu 
of the above, petitioners may also submit three forms of evidence from 
a list of six items to establish eligibility.
    Forty-one commenters suggested that the final rule contain a 
``catch-all'' category as contained in the O-1 regulation to 
accommodate those instances where the evidence required by the 
regulation cannot be obtained for the particular industry in which the 
alien is employed. The suggestion will not be adopted since this 
portion of the P-1 classification relates only to the field of 
entertainment. The six evidentiary criteria listed in the regulation 
should accommodate all aliens employed in the field of entertainment. 
The ``catch-all'' category was placed in the O-1 regulation since the 
regulation addressed the field of arts, a much broader field than the 
field of entertainment.
    One commenter suggested that an alien's nomination for a 
significant award should not be a criterion for establishing P-1 
classification an that only the actual winner of the award should be 
able to use this criterion. Prior to the publication of the interim 
rule, the Service entered into lengthy meetings with organized labor 
and with management organizations in the entertainment field to develop 
the criteria for this classification consistent, of course, with 
Congressional intent. The criteria listed in the regulation are the end 
result of those meetings and are agreeable to both sides. It is the 
opinion of the Service that the criteria contained in the interim rule 
are fair and equitable and should not be altered.
    One commenter suggested that an entertainment group should be 
required to establish that it has been internationally recognized for a 
period of 1 year. The suggestion cannot be adopted as it has no support 
in the Act. The Act merely requires that it be established for 75 
percent of the group has been performing regularly for a period of 1 
year and that the group is internationally recognized for a sustained 
and substantial period of time. There is no statutory requirement that 
the group be internationally recognized for a period of 1 year.
    One commenter stated that newer entertainment groups would have 
difficulty meeting the evidentiary criteria for the P-1 classification. 
This statement is accurate since the clear language of the Act 
indicates that a P-1 entertainment group must have been internationally 
recognized for a sustained and substantial period of time. Congress 
intended that only those entertainment groups which had achieved a 
certain level of fame would be eligible for the classification. 
Entertainment groups which do not have the required international 
recognition may be petitioned for under the H-2B classification, which 
does not have a qualitative standard.
    The interim final rule requires that 75 percent of the members of 
an entertainment group must be employed on a regular basis by the 
group. One commenter suggested that this language should be changed to 
reflect that only intermittent employment with the group should be 
required for P-1 classification. The Service cannot adopt this 
suggestion since the Act requires that the group be together for a 
sustained and substantial period of time. Sustained employment with the 
group cannot be interpreted as intermittent. While a group is not 
required to perform on a continual basis, it must be established that 
when the group does perform, 75 percent of the members of the group are 
regular performers with the group.
    Thirteen commenters object to the requirement that petitioners are 
required to list every member of the group on the petition when it is 
filed. This comment will not be adopted since the Service must have all 
the group members listed on the petition in order to verify that 75 
percent of the group has been performing together on a regular basis. 
Additionally, consular posts use the list of names provided on the 
petition to issue visas and the Service uses the list to issue entry 
documents to the aliens at Ports-of-Entry.
    The interim rule contains the language that the group, under the 
name listed on the petition, must have been performing regularly for a 
period of 1 year. Twenty-two commenters suggested that a petitioner 
should be required only to establish that the group is substantially 
the same, even though the group name may be different. In response to 
this suggestion, the Service will remove this requirement from the 
regulation. A group may be accorded P-1 status based on its recognition 
under a prior name provided the group is currently of P-1 caliber and 
75 percent of the members of the group have been performing regularly 
for a period of 1 year.
    One commenter also recommended that the interim rule be amended to 
reflect that the salary of the proposed position should be high in 
relation to others in the field. Since, in some cases, the proffered 
salary may be indicative of the P-1 group's level of recognition, the 
final rule has been amended to include language indicating that the 
group's salary may be used as a criteria in establishing the 
eligibility for P-1 classification. However, the Service recognizes 
that situations may arise where a P-1 alien is coming legitimately to 
the U.S. to perform services in a position where there is little or no 
salary. For example, a P-1 entertainment group may be invited to come 
to the U.S. to perform at a charity event and receive no remuneration. 
The group is still of P-1 caliber even though the salary may be 
minimal. As a result, while salary may be considered by the Service in 
determining the alien's eligibility, a high salary is not a mandatory 
regulatory requirement for establishing eligibility.
    One commenter suggested that the criteria for the P classification 
were duplicative and do not reflect international recognition. As 
discussed under O nonimmigrant classification, some of the criteria are 
similar but no two are identical. It is the opinion of the Service that 
if the criteria as contained in the interim rule are met, the alien or 
aliens have international recognition. Therefore, this suggestion will 
not be adopted.

Alien Circus Personnel--Sec. 214.2(p)(4)(iii)(C)

    P-1 circus personnel are exempt from the international recognition 
requirement and the 1-year group membership requirement. Sixteen 
commenters stated that the language contained in the interim rule did 
not clearly state this and suggested that the actual statutory language 
be used in its place. In order to avoid any possible confusion 
concerning this issue, the Service will adopt this suggestion and amend 
the final rule to indicate that circus personnel are exempt from both 
the 1-year group membership requirement and the international 
recognition requirement. It must established by the petitioner that the 
circus for which the aliens are coming to perform is recognized 
nationally. It must also be remembered that 0-1 circus performers must 
meet the standard for that classification, not the P-1 classification.

The P-2 Nonimmigrant Classification--Sec. 214.2(p)(5)

    The P-2 classification relates to aliens who are coming to the 
United States under a reciprocal exchange program agreement between an 
organization in the United States and an organization or organizations 
in a foreign country. Such a reciprocal exchange program agreement can 
be between management groups. Although Sec. 214.2(p)(5) was promulgated 
as a final rule on December 2, 1991, 56 Fed. Reg. 61135, 28 comments 
were received relating to the P-2 classification. Twenty-six commenters 
suggested that the Service remove the requirement from the final rule 
that the P-2 alien be experienced since the requirement was not 
contained in the Act. The Service agrees with this suggestion and will 
remove the requirement from the final rule. Petitioners in P-2 cases 
are not required to establish that the aliens involved in the 
reciprocal exchange are experienced.
    One commenter suggested that petitions for P-2 nonimmigrant aliens 
should be approved for a period of 3 months since a significant number 
of P-2 nonimmigrant aliens would be entering the United States for 
numerous short-term engagements. The commenter noted that petitioners 
for P-2 nonimmigrant aliens would be required to file numerous, repeat 
petitions to accommodate all the various events in which the same alien 
would be engaged over a short period of time. The commenter suggested 
that, in order to facilitate the use of the P-2 classification, the 
Service should grant P-2 petitions for a period of 3 months regardless 
of the nature of the supporting event.
    The Service cannot ignore the statutory requirement that a P-2 
alien must be coming to the United States to perform in a specific 
event or events. However, in order to accommodate the situation 
described by the commenter, the Service will consider the period of the 
reciprocal exchange agreement to be the event and not the underlying 
performances. As a result, P-2 petitions may be initially approved for 
the duration of the reciprocal exchange agreement, not to exceed 1 
year. The definition of the term ``event'' has been altered to reflect 
this change.
    One organization also suggested that the U.S. labor organization 
involved in the reciprocal exchange agreement be permitted to file the 
petition since P-2 aliens are normally working for more than one 
employer in the United States. In order to accommodate the special 
circumstances of the P-2 nonimmigrant classification, the Service will 
allow the U.S. labor organization which is party to the reciprocal 
exchange agreement to file the P-2 petitions using the same guidelines 
which relate to the filing of P petitions by establishing U.S. agents 
described in 8 CFR 214.2(p)(iv)(E).

The P-3 Nonimmigrant Classification--Sec. 214.2(p)(6)

    The P-3 classification relates to aliens, either individually or as 
part of a group, who are coming to the United States solely to perform, 
teach, or coach under a culturally unique program. A number of 
commenters stated that the standard and criteria for this 
classification as contained in the interim rule were very restrictive 
and imposed a number of requirements and qualitative standards which 
had no statutory basis. For example, eight commenters noted that there 
was no statutory support for the concept that P-3 aliens had to have 
achieved international acclaim while fifty-eight commenters stated that 
there was no statutory requirement that P-3 beneficiaries must perform 
for cultural, governmental, or educational institutions.
    The Service has carefully reviewed the many comments received 
concerning the P-3 nonimmigrant classification and has made a number of 
changes in the final rule to incorporate these suggestions. The final 
rule requires only that the P-3 alien be coming to the United States 
solely to perform, teach, or coach in culturally unique events. The 
petitioner may be a commercial producer and there is no longer a 
requirement that the events must be performed at cultural, 
governmental, or education institutions.
    However, all of the events in which the aliens will be performing 
must be culturally unique. Consistent with the interim rule, there is 
no requirement that a P-3 group have performed together for any 
specific period of time.
    The documentary requirements for a P-3 petition have also been 
amended in response to the comments. Petitioners merely have to submit 
evidence addressing the cultural uniqueness of the performance and 
evidence that all performances are culturally unique. The qualitative 
standards contained in the interim rule for P-3 nonimmigrant aliens 
have been removed.
    One commenter suggested that consultations for P-3 petitions should 
not be required as it should be assumed that there are no consulting 
organizations for P-3 petitions due to the uniqueness of the 
performances or the art form. The Service cannot adopt this suggestion 
since the consultation from a labor organization will provide the 
Service with the important information necessary to make the 
determination as to whether the performance is, in fact, culturally 
unique.
    Seven commenters suggested that the regulations were too 
restrictive with respect to folk and traditional artists. As stated 
earlier, the documentary requirements relating to P-3 petitions 
contained in the interim rule have been altered. These alterations 
should make it easier for prospective petitioners to petition for folk 
or traditional artists. Petitioners must still establish, however, that 
the folk music is culturally unique.

Consultation Process for P Nonimmigrants--Sec. 214.2(p)(7)

    This section addresses the comments received from the public 
relating specifically to the consultation process for P nonimmigrant 
aliens. Comments relating to both the O and P classifications are 
discussed in the general comment section.
    The interim rule provides that where petitions for O-1 aliens of 
extraordinary ability are filed without a consultation from an 
appropriate labor organization, the Service is required to notify the 
national office of the appropriate labor organization within 5 days of 
the receipt of the petition. The labor organization then has 15 days to 
respond to the request. After the labor organization responds, the 
Service then has 14 days to adjudicate the petition. Forty-one 
commenters suggested that the ``5-day rule'' should be applied to P-1 
and P-3 nonimmigrant petitions. The Service cannot adopt this 
suggestion since it is not appropriate to the P nonimmigrant category. 
By statute, all petitions for P nonimmigrant aliens must be accompanied 
by a consultation from a labor organization. As a result, the Service 
would not have a reason to notify a labor organization to obtain an 
opinion since it would have been submitted by the petitioner.
    Forty-four commenters stated that the final rule should apply the 
14-day adjudication timeframe discussed in the previous paragraph to 
petitions filed for the P-1 and P-3 nonimmigrant classifications. The 
Service does not wish to apply an arbitrary timeframe on the processing 
of P petitions since it will serve no useful purpose. When local 
conditions at a particular Service Center adversely affect the 
processing time for P petitions, the Service believes that an arbitrary 
timeframe will do little to correct the situation. The Service is aware 
of the importance of the timely adjudication of P petitions and will do 
everything possible to ensure that they are adjudicated in a reasonable 
fashion.
    Two commenters stated that labor organizations should not extract 
agreements from petitioners and beneficiaries prior to providing the 
required consultations. The monitoring of the negotiations between the 
petitioner, the beneficiary, and the consulting organization is beyond 
the scope of the Service's authority. While the Service has no policing 
authority under the legislation in this area, it obviously does not 
condone any consulting entity requiring a petitioner or beneficiary to 
enter into an agreement outside of normal industry practices prior to 
providing the consultation.
    Two commenters stated that the consultation process allows labor 
unions, not the petitioner, to decide who should be employed. The 
Service disagrees with this statement since the consultation is an 
advisory opinion and is not binding on the Service. Service officers 
are not bound by the opinions of the consulting organization. The Act 
clearly states that it is the Service, not the consulting organization, 
which decides whether or not a petition for an O or P should be 
approved.
    Twenty-nine commenters suggested that the final rule should contain 
a regulatory provision describing the procedure for establishing that a 
labor organization does not exist and, further, that the regulation 
should include an appeal procedure to determine if, in fact, a labor 
organization exists. The Service does not wish to add a provision into 
the final regulation establishing a formal procedure for determining if 
a labor organization exists since the procedure may differ for various 
fields of endeavor. It would seem, however, that the easiest method of 
establishing the nonexistence of a labor organization would be to 
submit affidavits or letters from practitioners in the field or from a 
related labor organization stating that a labor organization does not 
exist. The Service, obviously, has the final say as to whether the 
evidence submitted is sufficient to establish the non-existence of a 
labor organization.
    One commenter suggested that there should be a regulatory provision 
waiving the consultation for a period of 1 year for P-1 aliens where 
there has been a previous consultation and the alien is returning to 
the United States to perform in a similar role.
    The Service will not adopt this suggestion since there is no 
statutory support for a waiver of the consultation process in this 
instance.
    In view of the special provisions relating to circus personnel 
contained in the Act, a new paragraph at (p)(7)(iii) has been added in 
the final rule to address the consultation requirements for this class 
of alien. Consultations for circus personnel should address the 
national recognition of the petitioning circus or any other aspect of 
the petition which the labor organization deems appropriate.

General Comments Relating to Both the O and P Classifications

    Twenty-nine commenters stated that there should be no restrictions 
on foreign entertainers entering the United States. The commenters 
opined that the implementation of the regulations will cause harm to 
the U.S. entertainment industry since foreign countries will take 
reprisal actions against U.S. workers abroad.
    It is the opinion of the Service that the restrictions contained in 
this final rule reflect the intent of Congress in drafting the 
legislation. If Congress had desired to allow for the admission of all 
foreign entertainers and athletes without restriction, the statutory 
language would have reflected this intent.
    It must also be noted that the standards for the various 
entertainment categories within the O and P classifications are, for 
the most part, the same as the pre-IMMACT H-1B regulations relating to 
prominent aliens. The implementation of this rule, therefore, is not a 
significant change in policy or operating procedure but a continuation 
of past practices. As a result, the Service does not envision the final 
rule adversely affecting the entertainment industry.

Petition Extensions

    The interim rule contains the requirement that extensions of stay 
may be granted in order to continue or complete the event on which the 
initial petition was predicated. Forty-seven commenters suggested that 
petition extensions should be granted to complete new events. The 
Service will not adopt this suggestion. The initial admission of an O 
or P nonimmigrant is statutorily limited to specific events or 
activities. In adjudicating O and P petitions, the Service is required 
to examine the event or events listed on the petition as well as the 
evidence relating to the qualifications of the alien to determine if 
the petition can be approved. The addition of new events, in most 
cases, will require the Service to review these new events to determine 
if the petition remains valid. Thus, it follows that new events will 
require the filing of a new petition, not an extension of an existing 
petition. If the new events are merely additional engagements to the 
initial tour, an extension of stay would be appropriate.

Extension Periods for O and P Nonimmigrants

    Under the interim rule, extensions for O and P nonimmigrants may be 
granted in increments of 1 year. One commenter suggested that 
extensions should be granted for longer periods of time, noting the 
fees charged by the Service for this adjudication. The 1-year period 
for an extension is a device devised by the Service to ensure that the 
alien beneficiaries are complying with the terms of the initial 
petition. Through experience, the Service has learned that some alien 
entertainers have used nonimmigrant classifications to freelance and 
seek employment in direct competition with U.S. entertainers. Admission 
as an O or P nonimmigrant is limited to a specific event or events. As 
a result, this suggestion will not be adopted.

Foreign Film Crews

    One commenter suggested that foreign film crews should not be 
classified as O nonimmigrants but, instead, should be classified as B-1 
nonimmigrant aliens. It has long been the Service's position that 
foreign film crews are not eligible for B-1 classification as it cannot 
be clearly established that the film will not be shown in the United 
States at some future point in time. Thus, foreign film crews cannot 
meet the accrual of profits test called for under the B-1 nonimmigrant 
classification. See Matter of Hira, 11 I&N Dec. 824, (BIA, 1965). 
Foreign film crews must be petitioned for under the O classification.

Consultation Process

    As indicated previously, the consultation process generated a great 
number of comments from the public. A number of modifications were made 
to the consultation process as a result of the comments received from 
the public. In addition, the Service has made a number of modifications 
in the consultation process as a result of the operation of the interim 
rule, which are also discussed in this section. As indicated 
previously, the comments relating specifically to the O and P 
categories are contained in the discussion relating to those 
categories.
    In general, all petitions for O and P classifications must be filed 
with a consultation from an appropriate consulting entity. In the case 
of P nonimmigrants, the petition must be filed with a consultation from 
a labor organization having expertise in the alien's field of endeavor. 
It does not matter whether the labor organization has entered into a 
collective bargaining agreement covering individuals employed in the 
alien's field of endeavor, as the Act merely requires that the labor 
organization have expertise in the alien's field of endeavor.
    For O-1 petitions for aliens of extraordinary ability in the field 
of science, business, education, athletics, or arts, a petition must be 
accompanied by a consultation from a peer group or other person or 
persons (which may include a labor organization) of its choosing with 
expertise in the area of the alien's employment. However, if the 
petition is filed with a consultation which is not from a labor 
organization, the Service is required to notify the national office of 
the appropriate union. As as result of this notification process, the 
Service strongly suggests that petitioners in the case of O-1 aliens of 
extraordinary ability be accompanied by a consultation from a labor 
organization so that the Service does not have to add additional time 
to the adjudication process to wait for the response from the labor 
organization. However, it must be noted that petitioners are not 
precluded in this instance from submitting a consultation from a peer 
group or other person or persons (which may include a labor 
organization) of its choosing with expertise in the area of the alien's 
employment.
    Petitions for aliens of extraordinary ability in the motion picture 
or television field must be filed with two consultations, one from a 
labor organization and one from a management organization.
    The only exception that the Service makes to these requirements is 
in the case of expedited petitions. If the Service determines that a 
petitioner's request for expedited processing is warranted,the Service 
will obtain the required consultation or consultations on its own and 
then adjudicate the petition.
    Although not specifically addressed in the Act, petitioners are 
required to obtain consultations from United States labor 
organizations, peer groups, and management organizations, not foreign 
organizations. Foreign organizations, peer groups, and management 
organizations would not be aware of employment conditions in the United 
States. In addition, where possible, petitioners should obtain 
consultations from the national offices of the appropriate labor 
organization. Local labor organizations are not equipped to provide 
consultations and do not have knowledge of labor market conditions in 
other parts of the United States.
    Eighty-three commenters stated that it is possible that a 
consulting organization may not wish or be able to provide the required 
consultation within a satisfactory timeframe. These persons suggested 
that the regulations should contain a 15-day timeframe in which a 
consulting organization must respond to a petitioner's request for a 
consultation prior to filing the petition with the Service.
    The Service is concerned that some consulting entities may engage 
in dilatory tactics, either intentionally or unintentionally, and not 
provide a request consultation to a prospective petitioner within a 
reasonable period of time. However, the Service does not wish to impose 
a regulatory 15-day timeframe on consulting entities because such a 
regulation would be unenforceable and would result in lengthening 
petition processing times. There is no mechanism which can be devised 
which can accurately determine with certainty whether or not a 
consulting entity had been approached by a prospective petitioner and 
whether the consulting entity every responded to a petitioner's request 
for a consultation. Further, as of this writing, the Service is unaware 
of any circumstances where a consulting entity has not provided a 
consultation to a prospective petitioner within a satisfactory 
timeframe. However, it a situation does develop where a consulting 
entity does not provide the required consultation and the alien's 
services are urgently needed, petitioners can request that the Service 
expedite the processing of the petition.
    Thirteen commenters stated that service or management organizations 
should be considered the best source of information for petitioners 
seeking consultations. Forty-one commenters also suggested that service 
organizations should be able to compete in the consultation process. 
Management organizations can provide consultations with respect to O 
nonimmigrant petitions. However, with regard to P nonimmigrant 
petitions, the Act clearly requires that petitioners consult only with 
a labor organization. While petitioners for P nonimmigrant aliens may 
submit a consultation from a management or service organization in 
support of the petition, it is not required by the Act or regulation. 
Whether a service organization is, in fact, the best source of 
information concerning an alien's achievements in the field is a matter 
of conjecture.
    The interim rule requires that petitions for O and P nonimmigrant 
aliens must be accompanied by a consultation for each separate 
occupation listed on the petition. For example, a petition for O-2 
accompanying aliens may include a variety of difficult support people. 
Fourteen commenters stated that this requirement is burdensome and 
should be deleted. The Service will not adopt this suggestion as it 
uses the consultation process to obtain information on whether each 
occupation included on the petition is truly essential or critical to 
the principal alien or aliens. Without the consultation, the Service 
would not have sufficient information on which to make a proper 
decision on this issue.
    The interim rule contains language that, if a petition is denied on 
the basis of an adverse consultation, the consultation should be 
attached to the Service's formal denial. Fifteen commenters objected to 
this provision noting that consultations are merely advisory in nature 
and should never be used as the sole basis for the Service's decision. 
The Service agrees with this comment and the language will be removed 
from the final rule. Petitions for O and P nonimmigrant aliens should 
be adjudicated on the total evidence presented by the petitioner. The 
consultation is just one piece of evidence which the Service reviews in 
its decision and, as noted by the commenters, is purely advisory in 
nature.
    One commenter suggested that the consultation should focus entirely 
on the beneficiary and not the position. The Service does not agree 
with this comment. In adjudicating many O and P petitions, the Service 
is required to examine the proffered position to determine if the 
petition may be approved. The Service uses the information contained in 
the consultation in making this decision. For example, in the case of 
an O-1 nonimmigrant alien, the Service must examine the position to 
determine if the alien will be entering the United States to work in 
the area of his ability. Therefore, the suggestion will not be adopted.
    Two commenters suggested that consulting entities should be 
notified of the Service's decision in a case in which the consulting 
entity provided a consultation. The Service has no objection to 
notifying the consulting entity of the outcome of a case in which it 
has provided a consultation and has instituted a mechanism to inform an 
entity of the outcome of a particular case. An entity which has 
provided a consultation in a particular case may attach to the petition 
a self-addressed post card. After the petition is adjudicated, the post 
card will be returned to the entity. It is the responsibility of the 
consulting entity to ensure that the post card is submitted to the 
Service. The Service will not become involved in disputes between a 
consulting entity and a petitioner regarding this process.
    The interim rule contains a description of the procedure that the 
Service will use to obtain a consultation in a case determined to merit 
expeditious processing. The rule indicates that the Service will 
telephonically contact the consulting entity and request the 
consultation. A number of comments suggested that the Service should 
use facsimile capabilities in order to request the appropriate 
consultation in order to expedite the process. As a result of this 
comment, the Service has amended this portion of the interim rule 
removing the reference to telephonic notification. Service Center 
Directors now have the discretion to contact the appropriate consulting 
entity utilizing the most expeditious method available.
    Fifteen commenters stated that the consultation process may violate 
the Privacy Act since a consulting organization is often provided with 
personal information about both the petitioner and the beneficiary. The 
Privacy Act applies only to ``individuals'', which it defines as aliens 
lawfully admitted for permanent residence and U.S. citizens, 5 U.S.C. 
Sec. 552(a)(1). Moreover, the Privacy Act only applies to records 
contained in a ``system of records'', (i.e., records which the Service 
retrieves by use of an individual's name and other personal 
identifier). This situation does not exist in these circumstances.
    The interim rule contained language that the Service would publish 
a list of consulting entities in its Operation Instructions. As a guide 
to further assist prospective petitioner, the Service will also publish 
a list in its Operations Instructions of those fields of endeavor where 
it has been determined that no consulting organization exists.

Periods of Admission

    Fifty-two commenters suggested that the Service should grant longer 
periods of admission than are currently contained in the interim rule. 
The Service believes that the periods of admission for O and P 
nonimmigrants contained in the interim rule are reasonable and will not 
adopt this suggestion. The interim rule indicates that O-1 aliens may 
be admitted for the length of the event, not to exceed 3 years. A P 
nonimmigrant may be admitted for the length of the event, not to exceed 
1 year. Of course, extensions of stay may be granted to complete the 
event or events. Except for P-1 athletes, there is no maximum period on 
the length of time that an O or P nonimmigrant may remain in the United 
States. However, it is rare that a P-1 entertainment group would need 
more than a year to complete an event or events. Most entertainment 
events are for shorter periods of time and O or P classification may 
not be granted to an alien merely to enter the United States to 
freelance and seek employment. The O or P nonimmigrant alien is 
admitted to the United States to perform in specific events as detailed 
on the initial petition.
    The Service also realizes that the filing of extensions of stay is 
time-consuming. However, the Service uses the extension process as a 
mechanism of ensuring that the alien is complying with the terms of his 
or her initial admission.
    Professional athletes may be initially admitted to the United 
States for 5 years and may obtain extensions of stay for an additional 
5 years. However, the P-1 athlete's admission is also tied to a 
specific event such as a season, tournament, of the duration of the 
alien's contract.

Recording the Validity of Approved Petitions

    Thirteen commenters suggested that the Service grant petitions 
retroactively. The Service will not adopt this suggestion since it 
serves no useful purpose. The vast majority of petitions are filed and 
approved prior to the actual date of the need for the alien's services. 
Petitioners are cautioned by the Service to file petitions well before 
the actual date of the need for the alien's services so that the alien 
can commence employment when the event begins. Since the Service has 
the capability to expedite the processing of an O or P petition in 
emergency situations, it is rare that the Service will adjudicate a 
petition after the event begins. To allow an alien to engage in 
employment prior to the approval of the petition would be contrary to 
the statute and would be in conflict with the employer sanctions 
provisions of the Act.
    In order to accommodate scheduling problems caused by untimely 
adjudications, the final rule has been amended to allow Service Center 
Directors the discretion to approve a petition beyond the date 
requested by the petitioner if such additional time is needed to 
complete the event. The final rule now contains language that in those 
cases where the petition is approved after the date the event begins, 
the approval notice shall ``generally show'' the actual dates requested 
by the petitioner. This gives the Service the authority to approve a 
petition for a longer period of time than requested initially by the 
petitioner to complete the requested event when the approval of the 
petition is delayed through Service action or inaction.

Change of Nonimmigrant Status

    Twenty-six commenters suggested that the regulations appear to 
preclude an O or P nonimmigrant from changing nonimmigrant 
classification in the United States. There is nothing in the final rule 
to preclude an O or P nonimmigrant alien from changing nonimmigrant 
classification pursuant to 8 CFR part 248.

Fees

    Forty-nine commenters suggested that the filing fees for the I-129 
are too high. The Service has conducted an extensive cost analysis 
study and determined that the filing fees for the petition are 
consistent with the Service's cost in adjudicating the petition. The 
fact that the Service's fees for the adjudication of a petition may be 
higher than those in other countries is not a relevant factor. The 
filing fee which the Service charges is designed to cover the cost of 
adjudication and was not designed to be competitive with fees charged 
in other countries.

Listing of Beneficiaries on Form I-797

    Fifteen commenters noted that the approval notice, Form I-797, for 
O and P petitions contains only the name of one beneficiary even though 
the petition may relate to a group of individuals. These commenters 
suggested that the I-797 be altered to provide the names of all the 
beneficiaries listed on a petition.
    Since publication of the interim rule, the Service has responded to 
comments relating to this issue and has begun to list more than one 
beneficiary on the approval notice.

Multiple Beneficiaries

    The interim rule contained the requirement that if the 
beneficiaries of a petition were applying for visas at different 
consulates or, if visa exempt, at different Ports-of-Entry, separate 
petitions with fee must be filed for each consulate or Port-of-Entry. 
In order to streamline the petitioning process and cut costs for 
petitions involving groups, petitioners are now required to submit only 
one petition for the group regardless of where the beneficiaries will 
obtain their visas or apply for admission to the United States.

Documentary Requirements

    Forty-one individuals stated that the documentary requirements for 
the O and P classification are too high. As previously stated, in 
drafting this rule, the Service has used the documentary requirements 
of the prior regulation where possible and has removed unnecessary 
requirements. Since the O and P classifications contain qualitative 
standards, the Service must require some sort of evidence to establish 
the beneficiary's eligibility. Based on this, the Service does not view 
the evidentiary criteria as being excessive.
    Fourteen commenters stated that the Service should not require the 
submission of a contract in support of an O or P petition since not all 
contracts are written. The Service does not require the submission of 
written contracts where they do not exist. The interim rule contains 
language providing that in the case of O petitions, in a situation 
where a written contract does not exist, a written summary of the terms 
of the oral agreement may be submitted. This provision was not included 
in the interim rule in the case of P petitions, but will be included in 
the final rule.

Filing of Petitions

    The interim rule contained the provision that petitions for the H, 
O, and P nonimmigrant classifications shall be filed only at the three 
Service Centers which adjudicate these types of petitions, even in 
emergent circumstances. Seventy-four people commented on this 
provision, suggesting that the Service allow for emergent filings at 
local offices. The commenters indicated that this procedure would 
provide petitioners with an ``escape-valve'' to allow them to petition 
for aliens on short notice.
    The Service proposed this provision to ensure that petitions would 
be adjudicated in a consistent fashion and to enable the Service to 
track the number of petitions filed for those nonimmigrant 
classifications which are subject to numerical limitations. The Service 
is aware that situations may develop which will necessitate the filing 
of petitions in emergent situations. However, it is believed that these 
petitions can be processed in acceptable timeframes at the Service 
Centers. The filing limitations are therefore retained in the final 
rule.
    Sixteen commenters also suggested that the Service describe the 
emergent filing process for the Service Centers in the final rule. 
Pursuant to section 214(c)(6)(E) of the Act, the interim rule contains 
a description of the process that the Service will use in processing 
requests for expedited consultations. However, the Service does not 
believe that the final regulation is an appropriate forum to detail the 
actual filing or mailing process for each of the Service Centers. Each 
Service Center has already developed its own system for accepting these 
types of cases, a determination based upon local operating conditions. 
When these procedures are listed in a regulation, formal rulemaking is 
required to alter them. Since the procedures are dependent on local 
operating conditions, Service Center Directors need the flexibility to 
alter these procedures in a rapid fashion, which cannot be accomplished 
if the procedures are formally listed in a regulation.
    Twenty-five commenters suggested that O and P beneficiaries be 
allowed to petition for themselves. The Service cannot adopt this 
suggestion since section 214(c) of the Act requires that O and P 
petitions be filed by an importing employer.
    The interim rule also generated a great number of comments 
concerning the filing of petitions by agents. The Service adopted the 
provision permitting filing by agents in order to accommodate those 
situations where the beneficiary would be employed in numerous places 
by numerous employers. As currently written, the regulation allows 
established U.S. agents to file the petition at the agent's place of 
business and requires that only one petition be filed by the agent to 
cover all the proposed places of employment. It should be noted that 
the Act does not specifically provide for filing by agents but requires 
that petitions only be filed by an importing employer. However, section 
214(c)(5)(B) indicates that agents may, in fact, file a petition, by 
discussing the issue of the joint liability of the petitioner and 
employer with respect to the alien's return transportation.
    Twenty-six commenters suggested that the above-cited provision be 
expanded to allow foreign agents to file petitions. The Service is 
reluctant to expand this regulatory accommodation to foreign agents. 
There is no statutory support for such procedure, and the Service does 
not wish to expand the provision to foreign agents whose credentials 
may not be easily verifiable. Further, petitioners in the case of O and 
P petitions are liable for the alien beneficiary's return 
transportation abroad. The alien's ability to avail themselves of this 
provision could be reduced by the agent's foreign location.
    Eighteen commenters suggested that agents should not be required to 
guarantee the beneficiary's wages. Although the interim rule does not 
contain such a requirement, language imposing such a requirement was 
included in the instructions to the December 11, 1991, edition of Form 
I-129. The language will be removed from the instructions to the form, 
as it contradicts the regulatory language.

Substitution of Beneficiaries

    The interim rule provides that petitioners may substitute 
beneficiaries at consular offices for P-1 athletic teams, and P-2 and 
P-3 petitions involving groups. Forty-six commenters suggested that the 
interim rule be amended to allow for substitutions in the case of P-1 
entertainment groups and for O-1 entertainers. The Service will adopt 
this suggestion in part. The final rule will be amended to allow for 
the substitution of beneficiaries in P-1 entertainment groups. However, 
since O-1 petitions relate to individual entertainers, substitutions in 
the case of O-1 beneficiaries will not be permitted. A new petition 
will be required in the case of an O-1 petition.
    The final rule specifically prohibits petitioners from substituting 
essential support personnel or O-2 accompanying aliens. The rationale 
for this policy is that the petitioner has already established to the 
Service that the essential support personnel or accompanying aliens 
initially included in the petition are integral and essential to the 
performance or have critical skills and experience with the principal 
alien or aliens. If these aliens can be substituted on short notice, 
their relationship to the principal alien or aliens cannot be 
considered significant.

Time Frames for Adjudications

    Fourteen commenters suggested that the final rule provide a maximum 
timeframe for the adjudication of petitions. The Service believes that 
there is little to be gained by imposing a required processing time. As 
stated in the preamble to the interim rule, when local conditions at 
the Service Centers adversely affect the processing time, an 
artificially set time limit will do little to correct the situation. 
The Service is aware of the legitimacy of these concerns and will make 
every effort to process and adjudicate petitions in a timely manner. 
However, such management controls are more properly within the bounds 
of policy guidance and operating instructions rather than regulations.

180-Day Filing Window

    The interim rule contains the requirement that petitions for O and 
P nonimmigrant aliens must be filed no more than 180 calendar days 
prior to the need for the alien's services. Twenty-seven commenters 
suggested that this restriction be removed.
    The purpose of this restriction is to ensure orderly processing of 
petitions and to limit the number of amended petitions which might be 
necessitated if a petition is approved far in advance of the need for 
the beneficiary's services.
    The 180-day rule as contained in the interim rule reflects a 
continuation of longstanding Service policy. Service experience 
indicates that the vast majority of petitions are normally filed within 
30 to 60 days prior to the date of actual need. Very few petitions are 
filed earlier than 60 days and very seldom has a petitioner indicated a 
need to file earlier than 180 days. As a result, the Service will not 
adopt this suggestion.

Revocation of Petitions

    Twenty-four commenters suggested that petitions for O and P 
nonimmigrant aliens should not be revoked if the petitioner goes out of 
business since many petitions are filed by agents, not the alien's 
employer. The Service agrees with this suggestion and the final rule 
will contain the provision that petitions filed by agents shall not be 
revoked if the agent goes out of business. However, the Service retains 
the authority to revoke the petition if the actual employer goes out of 
business.

Employment Prior to Validity of The Petition

    The interim regulations contain the provision that an O or P 
nonimmigrant may be admitted ten days prior to the validity of the 
petition and for ten days after the validity of the petition. During 
this period of time, the alien is not permitted to engage in 
employment. Fourteen commenters object to this provision stating that 
the alien should be granted employment authorization during these two 
periods of time. The Service does not wish to adopt this suggestion 
since the employment in the O or P classification is, according to the 
Act, specific to an event. The O and P category may not be used by an 
alien to freelance and seek employment in the U.S. labor market without 
prior Service approval. This procedure was incorporated in the 
regulation in order to provide additional time to the alien or aliens 
to make arrangements and to prepare for the events or activities 
covered by the petition. If more time is required by the petitioner to 
complete the event, the petitioner may file a request for a petition 
extension and an extension of the alien's temporary stay.

Return Transportation Provision

    The Act requires that a petitioner must provide assurance that the 
alien's or aliens' return transportation will be provided. One 
commenter suggested that petitioners should be required to submit a 
bond with the petition in order to establish that the return 
transportation requirement will be met. The Service does not wish to 
require petitioners to submit any more paperwork than is absolutely 
required. Further, the administrative cost of posting and processing 
bonds would be high resulting, possibly, in higher processing fees for 
petitions. As a result, the Service will not adopt this suggestion. The 
filing of the petition is sufficient assurance to the Service that this 
requirement has been met.

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 regulation merely modifies certain filing 
procedures for petitions under the H, O, and P nonimmigrant 
classifications and does not dramatically alter existing filing 
procedures.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with the 
statement of regulatory philosophy and principals of regulation in 
Section 1 of Executive Order 12866. The Department of Justice, 
Immigration and Naturalization Service, has determined that this rule 
is a ``significant regulatory action'' and accordingly it has been 
reviewed by the Office of Management and Budget pursuant to Executive 
Order 12866.

Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12606

    The Commissioner of the Immigration and Naturalization Service 
certifies that she has addressed this rule in light of the criteria in 
Executive Order 12606 and has determined that it will have no effect on 
family well-being.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens, Authority delegation 
(Government agencies), Employment, Organization and functions 
(Government agencies), Passports and visas.

    Accordingly, part 214 of chapter I of Title 8 of the Code of 
Federal Regulations is 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. Section 214.2 is amended by revising paragraph (h)(4)(vii)(C) to 
read as follows:


Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (4) * * *
    (vii) * * *
    (C) Beneficiary's requirements. A petitioner may establish that a 
beneficiary is a fashion model of distinguished merit and ability by 
the submission of two of the following forms of documentation showing 
that the alien:
    (1) Has achieved national or international recognition and acclaim 
for outstanding achievement in his or her field as evidenced by reviews 
in major newspapers, trade journals, magazines, or other published 
material;
    (2) Has performed and will perform services as a fashion model for 
employers with a distinguished reputation;
    (3) Has received recognition for significant achievements from 
organizations, critics, fashion houses, modeling agencies, or other 
recognized experts in the field; or
    (4) Commands a high salary or other substantial remuneration for 
services evidenced by contracts or other reliable evidence.
* * * * *
    3. In Sec. 214.2 paragraphs (o) and (p) are revised to read as 
follows:


Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (o) Aliens of extraordinary ability or achievement.--(1) 
Classifications.--(i) General. Under section 101(a)(15)(O) of the Act, 
a qualified alien may be authorized to come to the United States to 
perform services relating to an event or events if petitioned for by an 
employer. Under this nonimmigrant category, the alien may be classified 
under section 101(a)(15)(O)(i) of the Act as an alien who has 
extraordinary ability in the sciences, arts, education, business, or 
athletics, or who has a demonstrated record of extraordinary 
achievement in the motion picture or television industry. Under section 
101(a)(15)(O)(ii) of the Act, an alien having a residence in a foreign 
country which he or she has no intention of abandoning may be 
classified as an accompanying alien who is coming to assist in the 
artistic or athletic performance of an alien admitted under section 
101(a)(15)(O)(i) of the Act. The spouse or child of an alien described 
in section 101(a)(15)(O)(i) or (ii) of the Act who is accompanying or 
following to join the alien is entitled to classification pursuant to 
section 101(a)(15)(O)(iii) of the Act. These classifications are called 
the O-1, O-2, and O-3 categories, respectively. The petitioner must 
file a petition with the Service for a determination of the alien's 
eligibility for O-1 or O-2 classification before the alien may apply 
for a visa or seek admission to the United States. This paragraph sets 
forth the standards and procedures applicable to these classifications.
    (ii) Description of classifications.--(A) An O-1 classification 
applies to:
    (1) An individual alien who has extraordinary ability in the 
sciences, arts, education, business, or athletics which has been 
demonstrated by sustained national or international acclaim and who is 
coming temporarily to the United States to continue work in the area of 
extraordinary ability; or
    (2) An alien who has a demonstrated record of extraordinary 
achievement in motion picture and/or television productions and who is 
coming temporarily to the United States to continue work in the area of 
extraordinary achievement.
    (B) An O-2 classification applies to an accompanying alien who is 
coming temporarily to the United States solely to assist in the 
artistic or athletic performance by an O-1. The O-2 alien must:
    (1) Be an integral part of the actual performances or events and 
posses critical skills and experience with the O-1 alien that are not 
of a general nature and which are not possessed by others; or
    (2) In the case of a motion picture or television production, have 
skills and experience with the O-1 alien which are not of a general 
nature and which are critical, either based on a pre-existing and 
longstanding working relationship or, if in connection with a specific 
production only, because significant production (including pre- and 
post-production) will take place both inside and outside the United 
States and the continuing participation of the alien is essential to 
the successful completion of the production.
    (2) Filing of petitions.--(i)--General. A petitioner seeking to 
classify an alien as an O-1 or O-2 shall file a petition on Form I-129, 
Petition for Nonimmigrant Worker, only with the Service Center which 
has jurisdiction in the area where the alien will work. The petition 
may not be filed more than six months before the actual need for the 
alien's services. An O-1 or O-2 petition will be adjudicated at the 
appropriate Service Center, even in emergent situations. Only one 
beneficiary may be included on an O-1 petition. The O-2 aliens must be 
filed for on a separate petition from the O-1 alien. An O-1 or O-2 
petition may be filed by a U.S. employer, a foreign employer, or an 
established U.S. agent. An O alien may not petition for himself or 
herself.
    (ii) Evidence required to accompany a petition. Petitions for O 
aliens shall be accompanied by the following:
    (A) The evidence specified in the particular section for the 
classification;
    (B) Copies of any written contracts between the petitioner and the 
alien beneficiary or, if there is no written contract, a summary of the 
terms of the oral agreement under which the alien will be employed;
    (C) An explanation of the nature of the events or activities, the 
beginning and ending dates for the events or activities, and a copy of 
any itinerary for the events or activities; and
    (D) A written advisory opinion(s) from the appropriate consulting 
entity or entities.
    (iii) Form of documentation. The evidence submitted with an O 
petition shall conform to the following:
    (A) Affidavits, contracts, awards, and similar documentation must 
reflect the nature of the alien's achievement and be executed by an 
officer or responsible person employed by the institution, firm, 
establishment, or organization where the work was performed.
    (B) Affidavits written by present or former employers or recognized 
experts certifying to the recognition and extraordinary ability, or in 
the case of a motion picture or television production, the 
extraordinary achievement of the alien, shall specifically describe the 
alien's recognition and ability or achievement in factual terms and set 
forth the expertise of the affiant and the manner in which the affiant 
acquired such information.
    (C) A legible photocopy of a document in support of the petition 
may be submitted in lieu of the original. However, the original 
document shall be submitted if requested by the Director.
    (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. If the petitioner is a 
foreign employer with no United States location, the petition shall be 
filed with the Service Center having jurisdiction over the area where 
the work will begin.
    (B) Services for more than one employer. If the beneficiary will 
work concurrently 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 
services, unless an established agent files the petition.
    (C) Change of employer. If an O-1 or O-2 alien in the United States 
seeks to change employers, the new employer must file a petition and a 
request to extend the alien's stay with the Service Center having 
jurisdiction over the new place of employment. An O-2 alien may change 
employers only in conjunction with a change of employers by the 
principal O-1 alien. If the O-1 or O-2 petition was filed by an agent, 
an amended petition must be filed with evidence relating to the new 
employer and a request for an extension of stay.
    (D) Amended petition. The petitioner shall file an amended petition 
on Form I-129, 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. In the case of a petition filed for 
an artist or entertainer, a petitioner may add additional performances 
or engagements during the validity period of the petition without 
filing an amended petition, provided the additional performances or 
engagements require an alien of O-1 caliber.
    (E) Agents as petitioners. An established United States agent may 
file a petition in cases involving an alien who is traditionally self-
employed or uses agents to arrange short-term employment in his or her 
behalf with numerous employers, and in cases where a foreign employer 
authorizes the agent to act in its behalf. A petition filed by an agent 
is subject to the following conditions:
    (1) A person or company in business as an agent may file the 
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.
    (2) 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.
    (F) Multiple beneficiaries. More than one O-2 accompanying alien 
may be included on a petition if they are assisting the same O-1 alien 
for the same events or performances, during the same period of time, 
and in the same location.
    (3) Petition for alien of extraordinary ability or achievement (O-
1).--(i) General. Extraordinary ability in the sciences, arts, 
education, business, or athletics, or extraordinary achievement in the 
case of an alien in the motion picture or television industry, must be 
established for an individual alien. An O-1 petition must be 
accompanied by evidence that the work which the alien is coming to the 
United States to continue is in the area of extraordinary ability, and 
that the alien meets the criteria in paragraph (o)(3)(iii) or (iv) of 
this section.
    (ii) Definitions. As used in this paragraph, the term:
    Arts includes any field of creative activity or endeavor such as, 
but not limited to, fine arts, visual arts, culinary arts, and 
performing arts. Aliens engaged in the field of arts include not only 
the principal creators and performers but other essential persons such 
as, but not limited to, directors, set designers, lighting designers, 
sound designers, choreographers, choreologists, conductors, 
orchestrators, coaches, arrangers, musical supervisors, costume 
designers, makeup artists, flight masters, stage technicians, and 
animal trainers.
    Event means an activity such as, but not limited to, a scientific 
project, conference, convention, lecture series, tour, exhibit, 
business project, academic year, or engagement. Such activity may 
include short vacations, promotional appearances, and stopovers which 
are incidental and/or related to the event. A group of related 
activities may also be considered to be an event. In the case of an O-1 
athlete, the event could be the alien's contract.
    Extraordinary ability in the field of arts means distinction. 
Distinction means a high level of achievement in the field of arts 
evidenced by a degree of skill and recognition substantially above that 
ordinarily encountered to the extent that a person described as 
prominent is renowned, leading, or well-known in the field of arts.
    Extraordinary ability in the field of science, education, business, 
or athletics means a level of expertise indicating that the person is 
one of the small percentage who have arisen to the very top of the 
field of endeavor.
    Extraordinary achievement with respect to motion picture and 
television productions, as commonly defined in the industry, means a 
very high level of accomplishment in the motion picture or television 
industry evidenced by a degree of skill and recognition significantly 
above that ordinarily encountered to the extent that the person is 
recognized as outstanding, notable, or leading in the motion picture or 
television field.
    Peer group means a group or organization which is comprised of 
practitioners of the alien's occupation. If there is a collective 
bargaining representative of an employer's employees in the 
occupational classification for which the alien is being sought, such a 
representative may be considered the appropriate peer group for 
purposes of consultation.
    (iii) Evidentiary criteria for an O-1 alien of extraordinary 
ability in the fields of science, education, business, or athletics. An 
alien of extraordinary ability in the fields of science, education, 
business, or athletics must demonstrate sustained national or 
international acclaim and recognition for achievements in the field of 
expertise by providing evidence of:
    (A) Receipt of a major, internationally recognized award, such as 
the Nobel Prize; or
    (B) At least three of the following forms of documentation:
    (1) Documentation of the alien's receipt of nationally or 
internationally recognized prizes or awards for excellence in the field 
of endeavor;
    (2) Documentation of the alien's membership in associations in the 
field for which classification is sought, which require outstanding 
achievements of their members, as judged by recognized national or 
international experts in their disciplines or fields;
    (3) Published material in professional or major trade publications 
or major media about the alien, relating to the alien's work in the 
field for which classification is sought, which shall include the 
title, date, and author of such published material, and any necessary 
translation;
    (4) Evidence of the alien's participation on a panel, or 
individually, as a judge of the work of others in the same or in an 
allied field of specialization to that for which classification is 
sought;
    (5) Evidence of the alien's original scientific, scholarly, or 
business-related contributions of major significance in the field;
    (6) Evidence of the alien's authorship of scholarly articles in the 
field, in professional journals, or other major media;
    (7) Evidence that the alien has been employed in a critical or 
essential capacity for organizations and establishments that have a 
distinguished reputation;
    (8) Evidence that the alien has either commanded a high salary or 
will command a high salary or other remuneration for services, 
evidenced by contracts or other reliable evidence.
    (C) If the criteria in paragraph (o)(3)(iii) of this section do not 
readily apply to the beneficiary's occupation, the petitioner may 
submit comparable evidence in order to establish the beneficiary's 
eligibility.
    (iv) Evidentiary criteria for an O-1 alien of extraordinary ability 
in the arts. To qualify as an alien of extraordinary ability in the 
field of arts, the alien must be recognized as being prominent in his 
or her field of endeavor as demonstrated by the following:
    (A) Evidence that the alien has been nominated for, or has been the 
recipient of, significant national or international awards or prizes in 
the particular field such as an Academy Award, an Emmy, a Grammy, or a 
Director's Guild Award; or
    (B) At least three of the following forms of documentation:
    (1) Evidence that the alien has performed, and will perform, 
services as a lead or starring participant in productions or events 
which have a distinguished reputation as evidenced by critical reviews, 
advertisements, publicity releases, publications contracts, or 
endorsements;
    (2) Evidence that the alien has achieved national or international 
recognition for achievements evidenced by critical reviews or other 
published materials by or about the individual in major newspapers, 
trade journals, magazines, or other publications;
    (3) Evidence that the alien has performed, and will perform, in a 
lead, starring, or critical role for organizations and establishments 
that have a distinguished reputation evidenced by articles in 
newspapers, trade journals, publications, or testimonials;
    (4) Evidence that the alien has a record of major commercial or 
critically acclaimed successes as evidenced by such indicators as 
title, rating, standing in the field, box office receipts, motion 
pictures or television ratings, and other occupational achievements 
reported in trade journals, major newspapers, or other publications;
    (5) Evidence that the alien has received significant recognition 
for achievements from organizations, critics, government agencies, or 
other recognized experts in the field in which the alien is engaged. 
Such testimonials must be in a form which clearly indicates the 
author's authority, expertise, and knowledge of the alien's 
achievements; or
    (6) Evidence that the alien has either commanded a high salary or 
will command a high salary or other substantial remuneration for 
services in relation to others in the field, as evidenced by contracts 
or other reliable evidence; or
    (C) If the criteria in paragraph (o)(3)(iv) of this section do not 
readily apply to the beneficiary's occupation, the petitioner may 
submit comparable evidence in order to establish the beneficiary's 
eligibility.
    (v) Evidentiary criteria for an alien of extraordinary achievement 
in the motion picture or television industry. To qualify as an alien of 
extraordinary achievement in the motion picture or television industry, 
the alien must be recognized as having a demonstrated record of 
extraordinary achievement as evidenced by the following:
    (A) Evidence that the alien has been nominated for, or has been the 
recipient of, significant national or international awards or prizes in 
the particular field such as an Academy Award, an Emmy, a Grammy, or a 
Director's Guild Award; or
    (B) At least three of the following forms of documentation:
    (1) Evidence that the alien has performed, and will perform, 
services as a lead or starring participant in productions or events 
which have a distinguished reputation as evidenced by critical reviews, 
advertisements, publicity releases, publications contracts, or 
endorsements;
    (2) Evidence that the alien has achieved national or international 
recognition for achievements evidenced by critical reviews or other 
published materials by or about the individual in major newspapers, 
trade journals, magazines, or other publications;
    (3) Evidence that the alien has performed, and will perform, in a 
lead, starring, or critical role for organizations and establishments 
that have a distinguished reputation evidenced by articles in 
newspapers, trade journals, publications, or testimonials;
    (4) Evidence that the alien has a record of major commercial or 
critically acclaimed successes as evidenced by such indicators as 
title, rating, standing in the field, box office receipts, motion 
picture or television ratings, and other occupational achievements 
reported in trade journals, major newspapers, or other publications;
    (5) Evidence that the alien has received significant recognition 
for achievements from organizations, critics, government agencies, or 
other recognized experts in the field in which the alien is engaged. 
Such testimonials must be in a form which clearly indicates the 
author's authority, expertise, and knowledge of the alien's 
achievements; or
    (6) Evidence that the alien has either commanded a high salary or 
will command a high salary or other substantial remuneration for 
services in relation to other in the field, as evidenced by contracts 
or other reliable evidence.
    (4) Petition for an O-2 accompanying alien.--(i) General. An O-2 
accompanying alien provides essential support to an O-1 artist or 
athlete. Such aliens may not accompany O-1 aliens in the fields of 
science, business, or education. Although the O-2 alien must obtain his 
or her own classification, this classification does not entitle him or 
her to work separate and apart from the O-1 alien to whom he or she 
provides support. An O-2 alien must be petitioned for in conjunction 
with the services of the O-1 alien.
    (ii) Evidentiary criteria for qualifying as an O-2 accompanying 
alien.-- (A) Alien accompanying an O-1 artist or athlete of 
extraordinary ability. To qualify as an O-2 accompanying alien, the 
alien must be coming to the United States to assist in the performance 
of the O-1 alien, be an integral part of the actual performance, and 
have critical skills and experience with the O-1 alien which are not of 
a general nature and which are not possessed by a U.S. worker.
    (B) Alien accompanying an O-1 alien of extraordinary achievement. 
To qualify as an O-2 alien accompanying and O-1 alien involved in a 
motion picture or television production, the alien must have skills and 
experience with the O-1 alien which are not of a general nature and 
which are critical based on a pre-existing longstanding working 
relationship or, with respect to the specific production, because 
significant production (including pre- and post-production work) will 
take place both inside and outside the United States and the continuing 
participation of the alien is essential to the successful completion of 
the production.
    (C) The evidence shall establish the current essentiality, critical 
skills, and experience of the O-2 alien with the O-1 alien and that the 
alien has substantial experience performing the critical skills and 
essential support services for the O-1 alien. In the case of a specific 
motion picture or television production, the evidence shall establish 
that significant production has taken place outside the United States, 
and will take place inside the United States, and that the continuing 
participation of the alien is essential to the successful completion of 
the production.
    (5) Consultation.--(i) General.--(A) Consultation with an 
appropriate U.S. peer group (which could include a person or persons 
with expertise in the field), labor and/or management organization 
regarding the nature of the work to be done and the alien's 
qualifications is mandatory before a petition for an O-1 or O-2 
classification can be approved.
    (B) Except as provided in paragraph (o)(5)(i)(E) of this section, 
evidence of consultation shall be in the form of a written advisory 
opinion from a peer group (which could include a person or persons with 
expertise in the field), labor and/or management organization with 
expertise in the specific field involved.
    (C) Except as provided in paragraph (o)(5)(i)(E) of this section, 
the petitioner shall obtain a written advisory opinion from a peer 
group (which could include a person or persons with expertise in the 
field), labor, and/or management organization with expertise in the 
specific field involved. The advisory opinion shall be submitted along 
with the petition when the petition is filed. If the advisory opinion 
is not favorable to the petitioner, the advisory opinion must set forth 
a specific statement of facts which supports the conclusion reached in 
the opinion. Advisory opinions must be submitted in writing and must be 
signed by an authorized official of the group or organization.
    (D) Except as provided in paragraph (o)(5)(i)(E) and (G) of this 
section, written evidence of consultation shall be included in the 
record in every approved O petition. Consultations are advisory and are 
not binding on the Service.
    (E) In a case where the alien will be employed in the field of 
arts, entertainment, or athletics, and the Service has determined that 
a petition merits expeditious handling, the Service shall contact the 
appropriate labor and/or management organization and request an 
advisory opinion if one is not submitted by the petitioner. The labor 
and/or management organization shall have 24 hours to respond to the 
Service's request. The Service shall adjudicate the petition after 
receipt of the response from the consulting organization. The labor 
and/or management organization shall then furnish the Service with a 
written advisory opinion within 5 days of the initiating request. If 
the labor and/or management organization fails to respond within 24 
hours, the Service shall render a decision on the petition without the 
advisory opinion.
    (F) In a routine processing case where the petition is accompanied 
by a written opinion from a peer group, but the peer group is not a 
labor organization, the Director will forward a copy of the petition 
and all supporting documentation to the national office of the 
appropriate labor organization within 5 days of receipt of the 
petition. If there is a collective bargaining representative of an 
employer's employees in the occupational classification for which the 
alien is being sought, that representative shall be the appropriate 
labor organization for purposes of this section. The labor organization 
will then have 15 days from receipt of the petition and supporting 
documents to submit to the Service a written advisory opinion, comment, 
or letter of no objection. Once the 15-day period has expired, the 
Director shall adjudicate the petition in no more than 14 days. The 
Director may shorten this time in his or her discretion for emergency 
reasons, if no unreasonable burden would be imposed on any participant 
in the process. If the labor organization does not respond within 15 
days, the Director will render a decision on the record without the 
advisory opinion.
    (G) In those cases where it is established by the petitioner that 
an appropriate peer group, including a labor organization, does not 
exist, the Service shall render a decision on the evidence of record.
    (ii) Consultation requirements for an O-1 alien for extraordinary 
ability.--(A) Content. Consultation with a peer group in the area of 
the alien's ability (which may include a labor organization), or a 
person or persons with expertise in the area of the alien's ability, is 
required in an O-1 petition for an alien of extraordinary ability. If 
the advisory opinion is not favorable to the petitioner, the advisory 
opinion must set forth a specific statement of facts which supports the 
conclusion reached in the opinion. If the advisory opinion is favorable 
to the petitioner, it should describe the alien's ability and 
achievements in the field of endeavor, describe the nature of the 
duties to be performed, and state whether the position requires the 
services of an alien of extraordinary ability. A consulting 
organization may also submit a letter of no objection in lieu of the 
above if it has no objection to the approval of the petition.
    (B) Waiver of consultation of certain aliens of extraordinary 
ability in the field of arts. Consultation for an alien of 
extraordinary ability in the field of arts shall be waived by the 
Director in those instances where the alien seeks readmission to the 
United States to perform similar services within 2 years of the date of 
a previous consultation. The director shall, within 5 days of granting 
the waiver, forward a copy of the petition and supporting documentation 
to the national office of an appropriate labor organization. 
Petitioners desiring to avail themselves of the waiver should submit a 
copy of the prior consultation with the petition and advise the 
Director of the waiver request.
    (iii) Consultation requirements for an O-1 alien of extraordinary 
achievement. In the case of an alien of extraordinary achievement who 
will be working on a motion picture or television production, 
consultation shall be made with the appropriate union representing the 
alien's occupational peers and a management organization in the area of 
the alien's ability. If an advisory opinion is not favorable to the 
petitioner, the advisory opinion must set forth a specific statement of 
facts which supports the conclusion reached in the opinion. If the 
advisory opinion is favorable to the petitioner, the written advisory 
opinion from the labor and management organizations should describe the 
alien's achievements in the motion picture or television field and 
state whether the position requires the services of an alien of 
extraordinary achievement. If a consulting organization has no 
objection to the approval of the petition, the organization may submit 
a letter of no objection in lieu of the above.
    (iv) Consultation requirements for an O-2 accompanying alien. 
Consultation with a labor organization with expertise in the skill area 
involved is required for an O-2 alien accompanying an O-1 alien of 
extraordinary ability. In the case of an O-2 alien seeking entry for a 
motion picture or television production, consultation with a labor 
organization and a management organization in the area of the alien's 
ability is required. If an advisory opinion is not favorable to the 
petitioner, the advisory opinion must set forth a specific statement of 
facts which supports the conclusion reached in the opinion. If the 
advisory opinion is favorable to the petitioner, the opinion provided 
by the labor and/or management organization should describe the alien's 
essentiality to, and working relationship with, the O-1 artist or 
athlete and state whether there are available U.S. workers who can 
perform the support services. If the alien will accompany an O-1 alien 
involved in a motion picture or television production, the advisory 
opinion should address the alien's skills and experience wit the O-1 
alien and whether the alien has a pre-existing longstanding working 
relationship with the O-1 alien, or whether significant production will 
take place in the United States and abroad and if the continuing 
participation of the alien is essential to the successful completion of 
the production. A consulting organization may also submit a letter of 
no objection in lieu of the above if it has no objection to the 
approval of the petition.
    (v) Organizations agreeing to provide advisory opinions. The 
Service will list in its Operations Instructions for O classification 
those peer groups, labor organizations, and/or management organizations 
which have agreed to provide advisory opinions to the Service and/or 
petitioners. The list will not be an exclusive or exhaustive list. The 
Service and petitioners may use other sources, such as publications, to 
identify appropriate peer groups, labor organizations, and management 
organizations. Additionally, the Service will list in its Operations 
Instructions those occupations or fields of endeavor where the 
nonexistence of an appropriate consulting entity has been verified.
    (6)  Approval and validity of petition.--(1)  Approval. The 
Director shall consider all of the evidence submitted and such other 
evidence as may be independently required to assist in the 
adjudication. The Director shall notify the petitioner of the approval 
of the petition on Form I-797, Notice of Action. The approval notice 
shall include the alien beneficiary name, the classification, and the 
petition's period of validity.
    (ii) Recording the validity of petitions. Procedures for recording 
the validity period of petitions are as follows;
    (A) If a new O petition is approved before the date the petitioner 
indicates the services will begin, the approved petition and approval 
notice shall show the actual dates requested by the petitioner, not to 
exceed the limit specified by paragraph (o)(6)(iii) of this section or 
other Service policy.
    (B) If a new 0 petition is approved after the date the petitioner 
indicates the services will begin, the approved petition and approval 
notice shall generally show a validity period commencing with the date 
of approval and ending with the date requested by the petitioner, not 
to exceed the limit specified by paragraph (o)(6)(iii) of this section 
or other Service policy.
    (C) If the period of services requested by the petitioner exceeds 
the limit specified in paragraph (o)(6)(iii) of this section, the 
petition shall be approved only up to the limit specified in that 
paragraph.
    (iii) Validity.--(A) O-1 petition. An approved petition for an 
alien classified under section 101(a)(15)(O)(i) of the Act shall be 
valid for a period of time determined by the Director to be necessary 
to accomplish the event or activity, not to exceed 3 years.
    (B) O-2 petition. An approved petition for an alien classified 
under section 101(a)(15)(O)(ii) of the Act shall be valid for a period 
of time determined to be necessary to assist the O-1 alien to 
accomplish the event or activity, not to exceed 3 years.
    (iv) Spouse and dependents. The spouse and unmarried minor children 
of the O-1 or O-2 alien beneficiary are entitled to O-3 nonimmigrant 
classification, subject to the same period of admission and limitations 
as the alien beneficiary, if they are accompanying or following to join 
the alien beneficiary in the United States. Neither the spouse nor a 
child of the alien beneficiary may accept employment unless he or she 
has been granted employment authorization.
    (7) Denial of petition.--(i) Notice of intent to deny. When an 
adverse decision is proposed on the basis of derogatory information of 
which the petitioner is unaware, the Director shall notify the 
petitioner of the intent to deny the petition and the basis for the 
denial. The petitioner may inspect and rebut the evidence and will be 
granted a period of 30 days from the date of the notice in which to do 
so. All relevant rebuttal material will be considered in making a final 
decision.
    (ii) Notice of denial. The petitioner shall be notified of the 
decision, the reasons for the denial, and the right to appeal the 
denial under 8 CFR part 103.
    (8) Revocation of approval of petition.--(i) General. (A) The 
petitioner shall immediately notify the Service of any changes in the 
terms and conditions of employment of a beneficiary which may affect 
eligibility under section 101(a)(15)(O) of the Act and paragraph (o) of 
this section. An amended petition should be filed when the petitioner 
continues to employ the beneficiary. If the petitioner no longer 
employs the beneficiary, the petitioner shall send a letter explaining 
the change(s) to the Director who approved the petition.
    (B) The Director may revoke a petition at any time, even after the 
validity of the petition has expired.
    (ii) Automatic revocation. The approval of an unexpired petition is 
automatically revoked if the petitioner, or the named employer in a 
petition filed by an agent, goes out of business, files a written 
withdrawal of the petition, or notifies the Service that the 
beneficiary is no longer employed by the practitioner.
    (iii) Revocation on notice.--(A) Grounds for revocation. The 
Director shall send to the petitioner a notice of intent to revoke the 
petition in relevant part if is determined that:
    (1) The beneficiary is no longer employed by the petitioner in the 
capacity specified in the petition;
    (2) The statement of facts contained in the petition was not true 
and correct;
    (3) The petitioner violated the terms or conditions of the approved 
petition;
    (4) The petitioner violated the requirements of section 
101(a)(15)(O) of the Act or paragraph (o) of this section; or
    (5) The approval of the petition violated paragraph (o) of this 
section or involved gross error.
    (B) Notice and decision. The notice of intent to revoke shall 
contain a detailed statement of the grounds for the revocation and the 
time period allowed for the petitioner's rebuttal. The petitioner may 
submit evidence in rebuttal within 30 days of the date of the notice. 
The Director shall consider all relevant evidence presented in deciding 
whether to revoke the petition.
    (9) Appeal of a denial or a revocation of a petition.--(i) Denial. 
A denied petition may be appealed under 8 CFR part 103.
    (ii) Revocation. A petition that has been revoked on notice may be 
appealed under 8 CFR part 103. Automatic revocations may not be 
appealed.
    (10) Admission. A beneficiary may be admitted to the United States 
for the validity period of the petition, plus a period of up to 10 days 
before the validity period begins and 10 days after the validity period 
ends. The beneficiary may only engage in employment during the validity 
period of the petition.
    (11) Extention of visa petition validity. The petitioner shall file 
a request to extend the validity of the original petition under section 
101(a)(15)(O) of the Act on Form I-129, Petition for a Nonimmigrant 
Worker, in order to continue or complete the same activities or events 
specified in the original petition. Supporting documents are not 
required unless requested by the Director. A petition extension may be 
filed only if the validity of the original petition has not expired.
    (12) Extension of stay.--(i) Extension procedure. The petitioner 
shall request extension of the alien's stay to continue or complete the 
same event or activity by filing Form I-129, accompanied by a statement 
explaining the reasons for the extension. The petitioner must also 
request a petition extension. The dates of extension shall be the same 
for the petition and the beneficiary's extension of stay. The alien 
beneficiary must be physically present in the United States at the time 
of filing of the extension of stay. Even though the request to extend 
the petition and the alien's stay are combined on the petition, the 
Director shall make a separate determination on each. If the alien 
leaves the United States for business or personal reasons while the 
extension requests are pending, the petitioner may request the Director 
to cable notification of approval of the petition extension to the 
consular office abroad where the alien will apply for a visa.
    (ii) Extension period. An extension of stay may be authorized in 
increments of up to 1 year for an O-1 or O-2 beneficiary to continue or 
complete the same event or activity for which he or she was admitted 
plus an additional 10 days to allow the beneficiary to get his or her 
personal affairs in order.
    (iii) Denial of an extension of stay. The denial of the request for 
the alien's extension of temporary stay may not be appealed.
    (13) Effect of approval of a permanent labor certification or 
filing of a preference petition on O classification. The approval of a 
permanent labor certification or the filing of a preference petition 
for an alien shall not be a basis for denying an O-1 petition, a 
request to extend such a petition, or the alien's application for 
admission, change of status, or extension of stay. The alien may 
legitimately come to the United States for a temporary period as an O-1 
nonimmigrant and depart voluntarily at the end of his or her authorized 
stay and, at the same time, lawfully seek to become a permanent 
resident of the United States.
    (14) Effect of a strike.--(i) If the Secretary of Labor certifies 
to the Commissioner that a strike or other labor dispute involving a 
work stoppage of workers is in progress in the occupation at the place 
where the beneficiary is to be employed, and that the employment of the 
beneficiary would adversely affect the wages and working conditions of 
U.S. citizens and lawful resident workers:
    (A) A petition to classify an alien as a nonimmigrant as defined in 
section 101(a)(15)(O) of the Act shall be denied; or
    (B) If a petition has been approved, but the alien has not yet 
entered the United States, or has entered the United States but has not 
commenced employment, the approval of the petition is automatically 
suspended, and the application for admission on the basis of the 
petition shall be denied.
    (ii) If there is a strike or other labor dispute involving a work 
stoppage of workers in progress, but such strike or other labor dispute 
is not certified under paragraph (o)(14)(i) of this section, the 
Commissioner shall not deny a petition or suspend an approved petition.
    (iii) If the alien has already commenced employment in the United 
States under an approved petition and is participating in a strike or 
labor dispute involving a work stoppage of workers, whether or not such 
strike or other labor dispute has been certified by the Secretary of 
Labor, the alien shall not be deemed to be failing to maintain his or 
her status solely on account of past, present, or future participation 
in a strike or other labor dispute involving a work stoppage of workers 
but is subject to the following terms and conditions:
    (A) The alien shall remain subject to all applicable provisions of 
the Immigration and Nationality Act and regulations promulgated 
thereunder in the same manner as are all other O nonimmigrants;
    (B) The status and authorized period of stay of such an alien is 
not modified or extended in any way by virtue of his or her 
participation in a strike or other labor dispute involving a work 
stoppage of workers; and
    (C) Although participation by an O nonimmigrant alien in a strike 
or other labor dispute involving a work stoppage of workers will not 
constitute a ground for deportation, and alien who violates his or her 
status or who remains in the United States after his or her authorized 
period of stay has expired will be subject to deportation.
    (15) Use of approval notice, Form I-797. The Service shall notify 
the petitioner of Form I-797 whenever a visa petition or an extension 
of a visa petition is approved under the O classification. The 
beneficiary of an O petition who does not require a nonimmigrant visa 
may present a copy of the approval notice at a Port-of-Entry to 
facilitate entry into the United States. A beneficiary who is required 
to present a visa for admission, and who visa will have expired before 
the date of his or her intended return, may use Form I-797 to apply for 
a new or revalidated visa during the validity period of the petition. A 
copy of Form I-797 shall be retained by the beneficiary and presented 
during the validity of the petition when reentering the United States 
to resume the same employment with the same petitioner.
    (16) Return transportation requirement. In the case of an alien who 
enters the United States under section 101(a)(15(O) of the Act and 
whose employment terminates for reasons other than voluntary 
resignation, the employer whose offer of employment formed the basis of 
such nonimmigrant status and the petitioner are jointly and severally 
liable for the reasonable cost of return transportation of the alien 
abroad. For the purposes of this paragraph, the term ``abroad'' means 
the alien's last place of residence prior to his or her entry into the 
United States.
    (p) Artists, athletes, and entertainers--(1) Classifications.--(i) 
General. Under section 101(a)(15)(P) of the Act, an alien having a 
residence in a foreign country which he or she has not intention or 
abandoning may be authorized to come to the United States temporarily 
to perform services for an employer or a sponsor. Under the 
nonimmigrant category, the alien may be classified under section 
101(a)(15)(P)(i) of the Act as an alien who is coming to the United 
States to perform services as an internationally recognized athlete, 
individually or as part of a group or team, or member of an 
internationally recognized entertainment group; under section 
101(a)(15)(P)(ii) of the Act, who is coming to perform as an artist or 
entertainer under a reciprocal exchange program; under section 
101(a)(15)(P)(iii) of the Act, as an alien who is coming solely to 
perform, teach, or coach under a program that is culturally unique; or 
under section 101(a)(15)(P)(iv) of the Act, as the spouse or child of 
an alien described in section 101(a)(15)(P) (i), (ii), or (iii) of the 
Act who is accompanying or following to join the alien. These 
classifications are called P-1, P-2, P-3, and P-4 respectively. The 
employer or sponsor must file a petition with the Service for review of 
the services to be performed and for determination of the alien's 
eligibility for P-1, P-2, or P-3 classification before the alien may 
apply for a visa or seek admission to the United States. This paragraph 
sets forth the standards and procedures applicable to these 
classifications.
    (ii) Description of classification--(A) A P-1 classification 
applies to an alien who is coming temporarily to the United States:
    (1) To perform at specific athletic competition as an athlete, 
individually or as part of a group or team, at an internationally 
recognized level or performance, or
    (2) To perform with, or as an integral and essential part of the 
performance of, and entertainment group that has been recognized 
internationally as being outstanding in the discipline for a sustained 
and substantial period of time, and who has had a sustained and 
substantial relationship with the group (ordinarily for at least 1 
year) and provides functions integral to the performance of the group.
    (B) A P-2 classification applies to an alien who is coming 
temporarily to the United States to perform as an artist or 
entertainer, individually or as part of a group, or to perform as an 
integral part of the performance of such a group, and who seeks to 
perform under a reciprocal exchange program which is between an 
organization or organizations in the United States and an organization 
or organizations in one or more foreign states, and which provides for 
the temporary exchange of artists and entertainers, or groups of 
artists and entertainers.
    (C) A P-3 classification applies to an alien artist or entertainer 
who is coming temporarily to the United States, either individually or 
as part of a group, or as an integral part of the performance of the 
group, to perform, teach, or coach under a commercial or noncommercial 
program that is culturally unique.
    (2) Filing of petitions(i) General. A P-1 petition for an athlete 
or entertainment group shall be filed by a U.S. employer or sponsoring 
organization, a foreign employer, or an established U.S. agent. A P-2 
petition for an artist or entertainer in a reciprocal exchange program 
shall be filed by the U.S. labor organization which negotiated the 
reciprocal exchange agreement, the sponsoring organization, or an 
employer in the United States. A P-3 petition for an artist or 
entertainer in a culturally unique program shall be filed by the 
sponsoring organization or an employer in the United States. Essential 
support personnel may not be included on the petition filed for the 
principal alien(s). These aliens require a separate petition. 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 emergent situations.
    (ii) Evidence required to accompany a petition for a P 
nonimmigrant. Petitions for P nonimmigrant aliens shall be accompanied 
by the following:
    (A) The evidence specified in the specific section of this part for 
the classification;
    (B) Copies of any written contracts between the petitioner and the 
alien beneficiary or, if there is no written contract, a summary of the 
terms of the oral agreement under which the alien(s) will be employed;
    (C) An explanation of the nature of the events or activities, the 
beginning and ending dates for the events or activities, and a copy of 
any itinerary for the events or activities; and
    (D) A written consultation from a labor organization.
    (iii) Form of documentation. The evidence submitted with an P 
petition should conform to the following:
    (A) Affidavits, contracts, awards, and similar documentation must 
reflect the nature of the alien's achievement and be executed by an 
officer or responsible person employed by the institution, 
establishment, or organization where the work has performed.
    (B) Affidavits written by present or former employers or recognized 
experts certifying to the recognition and extraordinary ability, or, in 
the case of a motion picture or television production, the 
extraordinary achievement of the alien, which shall specifically 
describe the alien's recognition and ability or achievement in factual 
terms. The affidavit must also set forth the expertise of the affiant 
and the manner in which the affiant acquired such information.
    (C) A legible copy of a document in support of the petition may be 
submitted in lieu of the original. However, the original document shall 
be submitted if requested by the Director.
    (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 
(p). If the petitioner is a foreign employer with no United States 
location, the petition shall be filed with the Service Center that has 
jurisdiction over the area where the employment will begin.
    (B) Services for more than one employer. If the beneficiary(ies) 
will work for more than one employer within the same time period, each 
employer must file a separate petition with the Service Center that has 
jurisdiction over the area where the alien will perform the services, 
unless an established agent files the petition pursuant to paragraph 
(p)(2)(iv) of this section.
    (C) Change of employer. 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. If the petition was initially filed by an 
agent, an amended petition must be filed with information relating to 
the new employer and with a request for an extension of stay.
    (D) Amended petition. The petitioner shall file an amended 
petition, with fee, with the Service Center where the original petition 
was filed to reflect any material changes in the terms and conditions 
of employment or the beneficiary's eligibility as specified in the 
original approved petition. A petitioner may add additional similar or 
comparable performances, engagements, or competitions during the 
validity period of the petition without filing an amended petition.
    (E) Agents as petitioners. An established U.S. agent may file a 
petition in cases involving workers who traditionally are self-employed 
or 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 petition filed by an agent is subject 
to the following conditions:
    (1) A person or company in business as an agent may file the P 
petition involving multiple employers as the representative of both the 
employers and the beneficiary(ies) if the 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 
establishments, venues, or locations where the services will be 
performed. In questionable cases, a contract between the employer(s) 
and the beneficiary(ies) may be required. The burden is on the agent to 
explain the terms and conditions of the employment and to provide any 
required documentation.
    (2) An agent performing the function of an employer must specify 
the wage offered and the other terms and conditions of employment by 
contractual agreement with the beneficiary(ies). The agent/employer 
must also provide an itinerary of definite employment and information 
on any other services planned for the period of time requested.
    (F) Multiple beneficiaries. More than one beneficiary may be 
included in a P petition if they are members of a group seeking 
classification based on the reputation of the group as an entity, or if 
they will provide essential support to P-1, P-2, or P-3 beneficiaries 
performing in the same location and in the same occupation.
    (G) Named beneficiaries. Petitions for P classification must 
include the names of beneficiaries and other required information at 
the time of filing.
    (H) Substitution of beneficiaries. Beneficiaries may be substituted 
for 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.
    (3) Definitions. As used in this paragraph, the term:
    Arts includes fields of creative activity or endeavor such as, but 
not limited to, fine arts, visual arts, and performing arts.
    Competition, event, or performance means an activity such as an 
athletic competition, athletic season, tournament, tour, exhibit, 
project, entertainment event, or engagement. Such activity could 
include short vacations, promotional appearances for the petitioning 
employer relating to the competition, event, or performance, and 
stopovers which are incidental and/or related to the activity. An 
athletic competition or entertainment event could include an entire 
season of performances A group of related activities will also be 
considered an event. In the case of a P-2 petition, the event may be 
the duration of the reciprocal exchange agreement. In the case of a P-1 
athlete, the event may be the duration of the lien's contract.
    Contract means the written agreement between the petitioner and the 
beneficiary(ies) that explains the terms and conditions of employment. 
The contract shall describe the services to be performed, and specify 
the wages, hours of work, working conditions, and any fringe benefits.
    Culturally unique means a style of artistic expression, 
methodology, or medium which is unique to a particular country, nation, 
society, class, ethnicity, religion, tribe, or other group of persons.
    Essential support alien means a highly skilled, essential person 
determined by the Director to be an integral part of the performance of 
a P-1, P-2, or P-3 alien because he or she performs support services 
which cannot be readily performed by a United States worker and which 
are essential to the successful performance of services by the P-1, P-
2, alien. Such alien must have appropriate qualifications to perform 
the services, critical knowledge of the specific services to be 
performed, and experience in providing such support to the P-1, P-2, or 
P-3 alien.
    Group means two or more persons established as one entity or unit 
to perform or to provide a service.
    Internationally recognized means having a high level of achievement 
in a field evidenced by a degree of skill and recognition substantially 
above that ordinarily encountered, to the extent that such achievement 
is renowned, leading, or well-known in more than one country.
    Member of a group means a person who is actually performing the 
entertainment services.
    Sponsor means an established organization in the United States 
which will not directly employ a P-1, P-2, or P-3 alien but will assume 
responsibility for the accuracy of the terms and conditions specified 
in the petition.
    Team means two or more persons organized to perform together as a 
competitive unit in a competitive event.
    (4) Petition for an internationally recognized athlete or member of 
an internationally recognized entertainment group (P-1)--(i) Types of 
classification.--(A) P-1 classification as an athlete in an individual 
capacity. A P-1 classification may be granted to an alien who is an 
internationally recognized athlete based on his or her own reputation 
and achievements as an individual. The alien must be coming to the 
United States to perform services which require an internationally 
recognized athlete.
    (B) P-1 classification as a member of an entertainment group or an 
athletic team. An entertainment group or athletic team consists of two 
or more persons who function as a unit. The entertainment group or 
athletic team as a unit must be internationally recognized as 
outstanding in the discipline and must be coming to perform services 
which require an internationally recognized entertainment group or 
athletic team. A person who is a member of an internationally 
recognized entertainment group or athletic team may be granted P-1 
classification based on that relationship, but may not perform services 
separate and apart from the entertainment group or athletic team. An 
entertainment group must have been established for a minimum of 1 year, 
and 75 percent of the members of the group must have been performing 
entertainment services for the group for a minimum of 1 year.
    (ii) Criteria and documentary requirements for P-1 athletes--(A) 
General. A P-1 athlete must have an internationally recognized 
reputation as an international athlete or he or she must be a member of 
a foreign team that is internationally recognized. The athlete or team 
must be coming to the United States to participate in an athletic 
competition which has a distinguished reputation and which requires 
participation of an athlete or athletic team that has an international 
reputation.
    (B) Evidentiary requirements for an internationally recognized 
athlete or athletic team. A petition for an athletic team must be 
accompanied by evidence that the team as a unit has achieved 
international recognition in the sport. Each member of the team is 
accorded P-1 classification based on the international reputation of 
the team. A petition for an athlete who will compete individually or as 
a member of a U.S. team must be accompanied by evidence that the 
athlete has achieved international recognition in the sport based on 
his or her reputation. A petition for a P-1 athlete or athletic team 
shall include:
    (1) A tendered contract with a major United States sports league or 
team, or a tendered contract in an individual sport commensurate with 
international recognition in that sport, if such contracts are normally 
executed in the sport, and
    (2) Documentation of at least two of the following:
    (i) Evidence of having participated to a significant extent in a 
prior season with a major United States sports league;
    (ii) Evidence of having participated in international competition 
with a national team;
    (iii) Evidence of having participated to a significant extent in a 
prior season for a U.S. college or university in intercollegiate 
competition;
    (iv) A written statement from an official of the governing body of 
the sport which details how the alien or team is internationally 
recognized;
    (v) A written statement from a member of the sports media or a 
recognized expert in the sport which details how the alien or team is 
internationally recognized;
    (vi) Evidence that the individual or team is ranked if the sport 
has international rankings; or
    (vii) Evidence that the alien or team has received a significant 
honor or award in the sport.
    (iii) Criteria and documentary requirements for members of an 
internationally recognized entertainment group--(A) General. A P-1 
classification shall be accorded to an entertainment group to perform 
as a unit based on the international reputation of the group. 
Individual entertainers shall not be accorded P-1 classification to 
perform separate and apart from a group. Except as provided in 
paragraph (p)(4)(iii)(C)(2) of this section, it must be established 
that the group has been internationally recognized as outstanding in 
the discipline for a sustained and substantial period of time. Seventy-
five percent of the members of the group must have had a sustained and 
substantial relationship with the group for at least 1 year and must 
provide functions integral to the group's performance.
    (B) Evidentiary criteria for members of internationally recognized 
entertainment groups. A petition for P-1 classification for the members 
of an entertainment group shall be accompanied by:
    (1) Evidence that the group has been established and performing 
regularly for a period of at least 1 year;
    (2) A statement from the petitioner listing each member of the 
group and the exact dates for which each member has been employed on a 
regular basis by the group; and
    (3) Evidence that the group has been internationally recognized in 
the discipline for a sustained and substantial period of time. This may 
be demonstrated by the submission of evidence of the group's nomination 
or receipt of significant international awards or prices for 
outstanding achievement in its field or by three of the following 
different types of documentation:
    (i) Evidence that the group has performed, and will perform, as a 
starring or leading entertainment group in productions or events which 
have a distinguished reputation as evidenced by critical reviews, 
advertisements, publicity releases, publications, contracts, or 
endorsements;
    (ii) Evidence that the group has achieved international recognition 
and acclaim for outstanding achievement in its field as evidenced by 
reviews in major newspapers, trade journals, magazines, or other 
published material;
    (iii) Evidence that the group has performed, and will perform, 
services as a leading or starring group for organizations and 
establishments that have a distinguished reputation evidenced by 
articles in newspapers, trade journals, publications, or testimonials;
    (iv) Evidence that the group has a record of major commercial or 
critically acclaimed successes, as evidenced by such indicators as 
ratings; standing in the field; box office receipts; record, cassette, 
or video sales; and other achievements in the field as reported in 
trade journals, major newspapers, or other publications;
    (v) Evidence that the group has achieved significant recognition 
for achievements from organizations, critics, government agencies, or 
other recognized experts in the field. Such testimonials must be in a 
form that clearly indicates the author's authority, expertise, and 
knowledge of the alien's achievements; or
    (vi) Evidence that the group has either commanded a high salary or 
will command a high salary or other substantial remuneration for 
services comparable to other similarly situated in the field as 
evidenced by contracts or other reliable evidence.
    (C) Special provisions for certain entertainment groups.--(1) Alien 
circus personnel. The 1-year group membership requirement and the 
international recognition requirement are not applicable to alien 
circus personnel who perform as part of a circus or circus group, or 
who constitute an integral and essential part of the performance of 
such circus or circus group, provided that the alien or aliens are 
coming to join a circus that has been recognized nationally as 
outstanding for a sustained and substantial period of time or as part 
of such a circus.
    (2) Certain nationally known entertainment groups. The Director may 
waive the international recognition requirement in the case of an 
entertainment group which has been recognized nationally as being 
outstanding in its discipline for a sustained and substantial period of 
time in consideration of special circumstances. An example of a special 
circumstances would be when an entertainment group may find it 
difficult to demonstrate recognition in more than one country due to 
such factors as limited access to news media or consequences of 
geography.
    (3) Waiver of 1-year relationship in exigent circumstances. The 
Director may waive the 1-year relationship requirement for an alien 
who, because of illness or unanticipated and exigent circumstances, 
replaces an essential member of a P-1 entertainment group or an alien 
who augments the group by performing a critical role. The Department of 
State is hereby delegated the authority to waive the 1-year 
relationship requirement in the case of consular substitutions 
involving P-1 entertainment groups.
    (iv) P-1 classification as an essential support alien.--(A) 
General. An essential support alien as defined in paragraph (p)(3) of 
this section may be granted P-1 classification based on a support 
relationship with an individual P-1 athlete, P-1 athletic team, or a P-
1 entertainment group.
    (B) Evidentiary criteria for a P-1 essential support petition. A 
petition for P-1 essential support personnel must be accompanied by:
    (1) A consultation from a labor organization with expertise in the 
area of the alien's skill;
    (2) A statement describing the alien(s) prior essentiality, 
critical skills, and experience with the principal alien(s); and
    (3) A copy of the written contract or a summary of the terms of the 
oral agreement between the alien(s) and the employer.
    (5) Petition for an artist or entertainer under a reciprocal 
exchange program (P-2)--(i) General. (A) A P-2 classification shall be 
accorded to artists or entertainers, individually or as a group, who 
will be performing under a reciprocal exchange program which is between 
an organization or organizations in the United States, which may 
include a management organization, and an organization or organizations 
in one or more foreign states and which provides for the temporary 
exchange of artists and entertainers, or groups of artists and 
entertainers.
    (B) The exchange of artists or entertainers shall be similar in 
terms of caliber of artists or entertainers, terms and conditions of 
employment, such as length of employment, and numbers of artists or 
entertainers involved in the exchange. However, this requirement does 
not preclude an individual for group exchange.
    (C) An alien who is an essential support person as defined in 
paragraph (p)(3) of this section may be accorded P-2 classification 
based on a support relationship to a P-2 artist or entertainer under a 
reciprocal exchange program.
    (ii) Evidentiary requirements for petition involving a reciprocal 
exchange program. A petition for P-2 classification shall be 
accompanied by:
    (A) A copy of the formal reciprocal exchange agreement between the 
U.S. organization or organizations which sponsor the aliens and an 
organization or organizations in a foreign country which will receive 
the U.S. artist or entertainers;
    (B) A statement from the sponsoring organization describing the 
reciprocal exchange of U.S. artists or entertainers as it relates to 
the specific petition for which P-2 classification is being sought;
    (C) Evidence that an appropriate labor organization in the United 
States was involved in negotiating, or has concurred with, the 
reciprocal exchange of U.S. and foreign artists or entertainers; and
    (D) Evidence that the aliens for whom P-2 classification is being 
sought and the U.S. artists or entertainers subject to the reciprocal 
exchange agreement are artists or entertainers with comparable skills, 
and that the terms and conditions of employment are similar.
    (iii) P-2 classification as an essential support alien.--(A) 
General. An essential support alien as defined in paragraph (p)(3) of 
this section may be granted P-2 classification based on a support 
relationship with a P-2 entertainer or P-2 entertainment group.
    (B) Evidentiary criteria for a P-2 essential support petition. A 
petition for P-2 essential support personnel must be accompanied by:
    (1) A consultation from a labor organization with expertise in the 
area of the alien's skill;
    (2) A statement describing the alien(s) prior essentiality, 
critical skills, and experience with the principal alien(s); and
    (3) A copy of the written contract or a summary of the terms of the 
oral agreement between the alien(s) and the employer.
    (6) Petition for an artist or entertainer under a culturally unique 
program--(i)--General. (A) A P-3 classification may be accorded to 
artists or entertainers, individually or as a group, coming to the 
United States for the purpose of developing, interpreting, 
representing, coaching, or teaching a unique or traditional ethnic, 
folk, cultural, musical, theatrical, or artistic performance or 
presentation.
    (B) The artist or entertainer must be coming to the United States 
to participate in a cultural event or events which will further the 
understanding or development of his or her art form. The program may be 
of a commercial or noncommercial nature.
    (ii) Evidentiary criteria for a petition involving a culturally 
unique program. A petition for P-3 classification shall be accompanied 
by:
    (A) Affidavits, testimonials, or letters from recognized experts 
attesting to the authenticity of the alien's or the group's skills in 
performing, presenting, coaching, or teaching the unique or traditional 
art form and giving the credentials of the expert, including the basis 
of his or her knowledge of the alien's or group's skill, or
    (B) Documentation that the performance of the alien or group is 
culturally unique, as evidence by reviews in newspapers, journals, or 
other published materials; and
    (C) Evidence that all of the performances or presentations will be 
culturally unique events.
    (iii) P-3 classification as an essential support alien.--(A) 
General. An essential support alien as defined in paragraph (p)(3) of 
this section may be granted P-3 classification based on a support 
relationship with a P-3 entertainer or P-3 entertainment group.
    (B) Evidentiary criteria for a P-3 essential support petition. A 
petition for P-3 essential support personnel must be accompanied by:
    (1) A consultation from a labor organization with expertise in the 
area of the alien's skill;
    (2) A statement describing the alien(s) prior essentiality, 
critical skills and experience with the principal alien(s); and
    (3) A copy of the written contract or a summary of the terms of the 
oral agreement between the alien(s) and the employer.
    (7) Consultation--(i) General. (A) Consultation with an appropriate 
labor organization regarding the nature of the work to be done and the 
alien's qualifications is mandatory before a petition for P-1, P-2, or 
P-3 classification can be approved.
    (C) Except as provided in paragraph (p)(7)(i)(E) of this section, 
the petitioner shall obtain a written advisory opinion from an 
appropriate labor organization. The advisory opinion shall be submitted 
along with the petition when the petition is filed. If the advisory 
opinion is not favorable to the petitioner, the advisory opinion must 
set forth a specific statement of facts which support the conclusion 
reached in the opinion. Advisory opinions must be submitted in writing 
and signed by an authorized official of the organization.
    (D) Except as provided in paragraph (p)(7)(i) (E) and (F) of this 
section, written evidence of consultation shall be included in the 
record of every approved petition. Consultations are advisory and are 
not binding on the Service.
    (E) In a case where the Service has determined that a petition 
merits expeditious handling, the Service shall contact the labor 
organization and request an advisory opinion if one is not submitted by 
the petitioner. The labor organization shall have 24 hours to respond 
to the Service's request. The Service shall adjudicate the petition 
after receipt of the response from the labor organization. The labor 
organization shall then furnish the Service with a written advisory 
opinion within 5 working days of the request. If the labor organization 
fails to respond within 24 hours, the Service shall render a decision 
on the petition without the advisory opinion.
    (F) In those cases where it is established by the petitioner that 
an appropriate labor organization does not exist, the Service shall 
render a decision on the evidence of record.
    (ii)  Consultation requirements for P-1 athletes and entertainment 
groups. Consultation with a labor organization that has expertise in 
the area of the alien's sport or entertainment field is required in the 
case of a P-1 petition. If the advisory opinion is not favorable to the 
petitioner, the advisory opinion must set forth a specific statement of 
facts which support the conclusion reached in the opinion. If the 
advisory opinion provided by the labor organization is favorable to the 
petitioner it should evaluate and/or describe the alien's or group's 
ability and achievements in the field of endeavor, comment on whether 
the alien or group is internationally recognized for achievements, and 
state whether the services the alien or group is coming to perform are 
appropriate for an internationally recognized athlete or entertainment 
group. In lieu of the above, a labor organization may submit a letter 
of no objection if it has no objection to the approval of the petition.
    (iii) Consultation requirements for P-1 circus personnel. The 
advisory opinion provided by the labor organization should comment on 
whether the circus which will employ the alien has national recognition 
as well as any other aspect of the beneficiary's or beneficiaries' 
qualifications which the labor organization deems appropriate. If the 
advisory opinion is not favorable to the petitioner, it must set forth 
a specific statement of facts which support the conclusion reached in 
the opinion. In lieu of the above, a labor organization may submit a 
letter of no objection if it has no objection to the approval of the 
petition.
    (iv) Consultation requirements for P-2 alien in a reciprocal 
exchange program. In P-2 petitions where an artist or entertainer is 
coming to the United States under a reciprocal exchange program, 
consultation with the appropriate labor organization is required to 
verify the existence of a viable exchange program. The advisory opinion 
from the labor organization shall comment on the bona fides of the 
reciprocal exchange program and specify whether the exchange meets the 
requirements of paragraph (p)(5) of this section. If the advisory 
opinion is not favorable to the petitioner, it must also set forth a 
specific statement of facts which support the conclusion reached in the 
opinion.
    (v) Consultation requirements for P-3 in a culturally unique 
program. Consultation with an appropriate labor organization is 
required for P-3 petitions involving aliens in culturally unique 
programs. If the advisory opinion is favorable to the petitioner, it 
should evaluate the cultural uniqueness of the alien's skills, state 
whether the events are cultural in nature, and state whether the event 
or activity is appropriate for P-3 classification. If the advisory 
opinion is not favorable to the petitioner, it must also set forth a 
specific statement of facts which support the conclusion reached in the 
opinion. In lieu of the above, a labor organization may submit a letter 
of no objection if it has no objection to the approval of the petition.
    (vi) Consultation requirements for essential support aliens. 
Written consultation on petitions for P-1, P-2, or P-3 essential 
support aliens must be made with a labor organization with expertise in 
the skill area involved. If the advisory opinion provided by the labor 
organization is favorable to the petitioner, it must evaluate the 
alien's essentiality to and working relationship with the artist or 
entertainer, and state whether United States workers are available who 
can perform the support services. If the advisory opinion is not 
favorable to the petitioner, it must also set forth a specific 
statement of facts which support the conclusion reached in the opinion. 
A labor organization may submit a letter of no objection if it has no 
objection to the approval of the petition.
    (vii) Labor organizations agreeing to provide consultations. The 
Service shall list in its Operations Instructions for P classification 
those organizations which have agreed to provide advisory opinions to 
the Service and/or petitioners. The list will not be an exclusive or 
exhaustive list. The Service and petitioners may use other sources, 
such as publications, to identify appropriate labor organizations. The 
Service will also list in its Operations Instructions those occupations 
or fields of endeavor where it has been determined by the Service that 
no appropriate labor organization exists.
    (i) Approval and validity of petition--(i) Approval. The Director 
shall consider all the evidence submitted and such other evidence as he 
or she may independently require to assist in his or her adjudication. 
The Director shall notify the petitioner of the approval of the 
petition on Form I-797, Notice of Action. The approval notice shall 
include the alien beneficiary's name and classification and the 
petition's period of validity.
    (ii) Recording the validity of petitions. Procedures for recording 
the validity period of petitions are:
    (A) If a new P petition is approved before the date the petitioner 
indicates the services will begin, the approved petition and approval 
notice shall show the actual dates requested by the petitioner as the 
validity period, not to exceed the limit specified in paragraph 
(p)(8)(iii) of this section or other Service policy.
    (B) If a new P petition is approved after the date the petitioner 
indicates the services will begin, the approved petition and approval 
notice shall generally show a validity period commencing with the date 
of approval and ending with the date requested by the petitioner, not 
to exceed the limit specified in paragraph (p)(8)(iii) of this section 
or other Service policy.
    (C) If the period of services requested by the petitioner exceeds 
the limit specified in paragraph (p)(8)(iii) of this section, the 
petition shall be approved only up to the limit specified in that 
paragraph.
    (iii) Validity. The approval period of a P petition shall conform 
to the limits prescribed as follows:
    (A) P-1 petition for athletes. An approved petition for an 
individual athlete classified under section 101(a)(15)(P)(i) of the Act 
shall be valid for a period up to 5 years. An approved petition for an 
athletic team classified under section 101(a)(15)(P)(i) of the Act 
shall be valid for a period of time determined by the Director to 
complete the competition or event for which the alien team is being 
admitted, not to exceed 1 year.
    (B) P-1 petition for an entertainment group. An approved petition 
for an entertainment group classified under section 101(a)(15)(P)(i) of 
the Act shall be valid for a period of time determined by the Director 
to be necessary to complete the performance or event for which the 
group is being admitted, not to exceed 1 year.
    (C) P-2 and P-3 petitions for artists or entertainers. An approved 
petition for an artist or entertainer under section 101(a)(15)(P)(ii) 
or (iii) of the Act shall be valid for a period of time determined by 
the Director to be necessary to complete the event, activity, or 
performance for which the P-2 or P-3 alien is admitted, not to exceed 1 
year.
    (D) Spouse and dependents. The spouse and unmarried minor children 
of a P-1, P-2, or P-3 alien beneficiary are entitled to P-4 
nonimmigrant classification, subject to the same period of admission 
and limitations as the alien beneficiary, if they are accompanying or 
following to join the alien beneficiary in the United States. Neither 
the spouse nor a child of the alien beneficiary may accept employment 
unless he or she has been granted employment authorization.
    (E) Essential support aliens. Petitions for essential support 
personnel to P-1, P-2, and P-3 aliens shall be valid for a period of 
time determined by the Director to be necessary to complete the event, 
activity, or performance for which the P-1, P-2, or P-3 alien is 
admitted, not to exceed 1 year.
    (9) Denial of petition--(i) Notice of intent to deny. When an 
adverse decision is proposed on the basis of derogatory information of 
which the petitioner is unaware, the Director shall notify the 
petitioner of the intent to deny the petition and the basis for the 
denial. The petitioner may inspect and rebut the evidence and will be 
granted a period of 30 days from the date of the notice in which to do 
so. All relevant rebuttal material will be considered in making a final 
decision.
    (ii) Notice of denial. The petitioner shall be notified of the 
decision, the reasons for the denial, and the right to appeal the 
denial under 8 CFR part 103. There is no appeal from a decision to deny 
an extension of stay to the alien or a change of nonimmigrant status.
    (10) Revocation of approval of petition--(i) General. (A) The 
petitioner shall immediately notify the Service of any changes in the 
terms and conditions of employment of a beneficiary which may affect 
eligibility under section 101(a)(15)(P) of the Act and paragraph (p) of 
this section. An amended petition should be filed when the petitioner 
continues to employ the beneficiary. If the petitioner no longer 
employs the beneficiary, the petitioner shall send a letter explaining 
the change(s) to the Director who approved the petition.
    (B) The Director may revoke a petition at any time, even after the 
validity of the petition has expired.
    (ii) Automatic revocation. The approval of an unexpired petition is 
automatically revoked if the petitioner, or the employer in a petition 
filed by an agent, goes out of business, files a written withdrawal of 
the petition, or notifies the Service that the beneficiary is no longer 
employed by the petitioner.
    (iii) Revocation on notice--(A) Grounds for revocation. The 
Director shall send to the petitioner a notice of intent to revoke the 
petition in relevant part if he or she finds that:
    (1) The beneficiary is no longer employed by the petitioner in the 
capacity specified in the petition;
    (2) The statement of facts contained in the petition were not true 
and correct;
    (3) The petitioner violated the terms or conditions of the approved 
petition;
    (4) The petitioner violated requirements of section 101(a)(15)(P) 
of the Act or paragraph (p) of this section; or
    (5) The approval of the petition violated paragraph (p) of this 
section or involved gross error.
    (B) Notice and decision. The notice of intent to revoke shall 
contain a detailed statement of the grounds for the revocation and the 
time period allowed for the petitioner's rebuttal. The petitioner may 
submit evidence in rebuttal within 30 days of the date of the notice. 
The Director shall consider all relevant evidence presented in deciding 
whether to revoke the petition.
    (11) Appeal of a denial or a revocation of a petition--(i) Denial. 
A denied petition may be appealed under 8 CFR part 103.
    (ii) Revocation. A petition that has been revoked on notice may be 
appealed under 8 CFR part 103. Automatic revocations may not be 
appealed.
    (12) Admission. A beneficiary may be admitted to the United States 
for the validity period of the petition, plus a period of up to 10 days 
before the validity period begins and 10 days after the validity period 
ends. The beneficiary may not work except during the validity period of 
the petition.
    (13) Extension of visa petition validity. The petitioner shall file 
a request to extend the validity of the original petition under section 
101(a)(15)(P) of the Act on Form I-129 in order to continue or complete 
the same activity or event specified in the original petition. 
Supporting documents are not required unless requested by the Director. 
A petition extension may be filed only if the validity of the original 
petition has not expired.
    (14) Extension of stay--(i) Extension procedure. The petitioner 
shall request extension of the alien's stay to continue or complete the 
same event or activity by filing Form I-129, accompanied by a statement 
explaining the reasons for the extension. The petitioner must also 
request a petition extension. The extension dates shall be the same for 
the petition and the beneficiary's stay. The beneficiary must be 
physically present in the United States at the time the extension of 
stay is filed. Even though the requests to extend the petition and the 
alien's stay are combined on the petition, the Director shall make a 
separate determination on each. If the alien leaves the United States 
for business or personal reasons while the extension requests are 
pending, the petitioner may request the Director to cable notification 
of approval of the petition extension to the consular office abroad 
where the alien will apply for a visa.
    (ii) Extension periods--(A) P-1 individual athlete. An extension of 
stay for a P-1 individual athlete and his or her essential support 
personnel may be authorized for a period up to 5 years for a total 
period of stay not to exceed 10 years.
    (B) Other P-1, P-2, and P-3 aliens. An extension of stay may be 
authorized in increments of 1 year for P-1 athletic teams, 
entertainment groups, aliens in reciprocal exchange programs, aliens in 
culturally unique programs, and their essential support personnel to 
continue or complete the same event or activity for which they were 
admitted.
    (15) Effect of approval of a permanent labor certification or 
filing of a preference petition on P classification. The approval of a 
permanent labor certification or the filing of a preference petition 
for an alien shall not be a basis for denying a P petition, a request 
to extend such a petition, or the alien's admission, change of status, 
or extension of stay. The alien may legitimately come to the United 
States for a temporary period as a P nonimmigrant and depart 
voluntarily at the end of his or her authorized stay and, at the same 
time, lawfully seek to become a permanent resident of the United 
States. This provision does not include essential support personnel.
    (16) Effect of a strike--(i) If the Secretary of Labor certifies to 
the Commissioner that a strike or other labor dispute involving a work 
stoppage of workers is in progress in the occupation at the place where 
the beneficiary is to be employed, and that the employment of the 
beneficiary would adversely affect the wages and working conditions of 
U.S. citizens and lawful resident workers:
    (A) A petition to classify an alien as a nonimmigrant as defined in 
section 101(a)(15)(P) of the Act shall be denied; or
    (B) If a petition has been approved, but the alien has not yet 
entered the United States, or has entered the United States but has not 
commenced employment, the approval of the petition is automatically 
suspended, and the application for admission of the basis of the 
petition shall be denied.
    (ii) If there is a strike or other labor dispute involving a work 
stoppage of workers in progress, but such strike or other labor dispute 
is not certified under paragraph (p)(16)(i) of this section, the 
Commissioner shall not deny a petition or suspend an approved petition.
    (iii) If the alien has already commenced employment in the United 
States under an approved petition and is participating in a strike or 
labor dispute involving a work stoppage of workers, whether or not such 
strike or other labor dispute has been certified by the Secretary of 
Labor, the alien shall not be deemed to be failing to maintain his or 
her status solely on account of past, present, or future participation 
in a strike or other labor dispute involving a work stoppage of workers 
but is subject to the following terms and conditions:
    (A) The alien shall remain subject to all applicable provisions of 
the Immigration and Nationality Act and regulations promulgated 
thereunder in the same manner as all other P nonimmigrant aliens;
    (B) The status and authorized period of stay of such an alien is 
not modified or extended in any way by virtue of his or her 
participation in a strike or other labor dispute involving a work 
stoppage of workers; and
    (C) Although participation by a P nonimmigrant alien in a strike or 
other labor dispute involving a work stoppages of workers will not 
constitute a ground for deportation, an alien who violates his or her 
status or who remains in the United States after his or her authorized 
period of stay has expired, will be subject to deportation.
    (17) Use of approval of notice, Form I-797. The Service has notify 
the petitioner on Form I-797 whenever a visa petition or an extension 
of a visa petition is approved under the P classification. The 
beneficiary of a P petition who does not require a nonimmigrant visa 
may present a copy of the approved notice at a Port-of-Entry to 
facilitate entry into the United States. A beneficiary who is required 
to present a visa for admission, and whose visa expired before the date 
of his or her intended return, may use Form I-797 to apply for a new or 
revalidated visa during the validity period of the petition. The copy 
of Form I-797 shall be retained by the beneficiary and present during 
the validity of the petition when reentering the United States to 
resume the same employment with the same petitioner.
    (18) Return transportation requirement. In the case of an alien who 
enters the United States under section 101(a)(15)(P) of the Act and 
whose employment terminates for reasons other than voluntary 
resignation, the employer whose offer of employment formed the basis of 
suh nonimmigrant status and the petitioner are jointly and severally 
liable for the reasonable cost of return transporation of the alien 
abroad. For the purposes of this paragraph, the term ``abroad'' means 
the alien's last place of residence prior to his or her entry into the 
United States.
 * * * * * * *
    Dated: July 13, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service
[FR Doc. 94-16674 Filed 8-12-94; 8:45 am]
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