[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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