[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: 94-19673]


[[Page Unknown]]

[Federal Register: August 15, 1994]


DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 274a

[INS 1653-94]
RIN 1115-AC72

 

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

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule amends the Immigration and Naturalization 
Service (Service) regulations by precluding foreign employers from 
directly filing petitions for O and P nonimmigrant aliens. Prospective 
foreign employers seeking to use these classifications will be required 
to employ the services of an established United States agent in order 
to file a petition for an O or P nonimmigrant. This proposal also 
amends the H nonimmigrant regulations by requiring foreign employers 
seeking to petition for H-2B nonimmigrants to use the services of an 
established United States agent, removes the current reference to the 
term ``representative,'' and codifies existing policy with regard to 
the filing of nonimmigrant petitions for certain professional athletes. 
This is intended to bring the H, O, and P nonimmigrant regulations into 
conformity with the employer sanctions provisions of section 274A of 
the Immigration and Nationality Act (Act).

DATES: Written comments must be submitted on or before October 14, 
1994.

ADDRESSES: Please submit written comments, in triplicate, to the 
Records Systems Division, Director, Policy Directives and Instructions 
Branch, Immigration and Naturalization Service, 425 I Street, NW., room 
5307, Washington, DC 20536. To ensure proper handling, please reference 
the INS number 1653-94 on your correspondence.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Senior Immigration 
Examiner, Adjudications Division, Immigration and Naturalization 
Service, 425 I Street, NW., room 3214, Washington, DC 20536, telephone 
(202) 514-3240.

SUPPLEMENTARY INFORMATION: The employer sanctions provisions of the 
Immigration and Nationality Act were created by the Immigration Reform 
and Control Act of 1986, Pub. L. 99-603, which, among other things, 
contains provisions making it unlawful for a person or entity to hire 
an alien knowing the alien is not entitled to engage in employment. 
Public law 99-603 also requires the employer to examine certain 
documentation in order to verify an individual's identity and 
eligibility to work in the United States. Civil and criminal penalties 
may be imposed upon employers which do not comply with the employer 
sanctions provisions.
    The Service has historically allowed foreign employers to file 
petitions for certain nonimmigrant workers. However, in view of the 
fact that the Service cannot enforce the sanctions provisions of Pub. 
L. 99-603 if the employer does not have a presence in the United 
States, it has been determined that foreign employers should be 
precluded from directly filing petitions for aliens in the O and P 
nonimmigrant classifications. Foreign employers will still be able to 
use the O and P nonimmigrant classifications but the foreign employers 
will be required to use the services of an established United States 
agent in order to file the petition for the alien. Through their United 
States agent, foreign employers will be responsible for complying with 
the provisions of section 274A of the Act. The description of an agent 
has also been modified in this rule to accommodate this change in 
policy.

The ``30-day rule''

    In September 1988, the Service adopted a policy with regard to 
major league sports teams which allowed professional athletes traded 
between U.S.-based sports teams to play for the new team prior to the 
filing of the appropriate petition, provided that the new team filed a 
petition with the Service within 30 days of the trade. Since a single 
athlete can have a significant impact on a team's performance, and 
recognizing the length of time required to process certain I-129 
petitions, the Service adopted a policy allowing players to play for 
the new team prior to the filing of the petition. This proposed rule 
will amend the regulations to include that policy.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. Sec. 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 requires foreign 
employers to use the services of an established United States agent to 
file petitions for certain nonimmigrant aliens and codifies existing 
policy with respect to the filing of nonimmigrant petitions for certain 
professional athletes.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, Sec. 3(f), regulatory 
Planning and Review, and the Office of Management and Budget has waived 
its review process under Sec. 6(a)(3)(A).

Executive Order 12612

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

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.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act. The clearance number for 
this collection is contained in 8 CFR 299.5, Display of Control 
Numbers.

List of Subjects

8 CFR Part 214

    Administrative practice and procedures, Aliens, Employment, 
Organization and functions (Government agencies).

8 CFR Part 274a

    Administrative practice and procedures, Aliens, Employment, 
Organization and functions (Government agencies).

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR part 2.

    2. Section 214.2 is amended by:
    a. Adding a new paragraph (h)(2)(i)(F)(3);
    b. Revising paragraph (h)(6)(iii)(B); and by
    c. Adding a new paragraph (h)(6)(vii), to read as follows:


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

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (F) * * *
    (3) A foreign employer who, through an established United States 
agent, files a petition for an H nonimmigrant alien is responsible for 
complying with the employer sanctions provisions of section 274A of the 
Act and 8 CFR part 274a.
* * * * *
    (6) * * *
    (iii) * * *
    (B) An H-2B petitioner shall be a United States employer, an 
established United States agent, or a foreign employer filing through 
an established United States agent. A foreign employer may not directly 
petition for an H-2B nonimmigrant but must use the services of an 
established United States agent to file a petition for an H-2B 
nonimmigrant. The petitioning employer shall consider available U.S. 
workers for the temporary services or labor, and shall offer terms and 
conditions of employment which are consistent with the nature of the 
occupation, activity, and industry in the United States.
* * * * *
    (vii) Traded professional H-2B athletes. In the case of a 
professional H-2B athlete who is traded from one U.S.-based 
organization to another organization, employment authorization for the 
player will automatically continue for a period of 30 days after the 
player's acquisition by the new organization within which time the new 
organization is expected to file a new Form I-129 is not filed within 
30 days, employment authorization will cease. If the new petition is 
denied, employment authorization will cease.
* * * * *
    3. Section 214.2 is amended by:
    a. Revising paragraph (o)(2)(i);
    b. Revising paragraph (o)(2)(iv)(A);
    c. Adding a new paragraph (o)(2)(iv)(E)(3); and by
    d. Adding a new paragraph (o)(2)(iv)(G), to read as follows:


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

* * * * *
    (o) * * *
    (2) Filing of petitions. (i) General. Except as provided for in 
paragraph (o)(2)(iv)(A) of this section, a petitioner seeking to 
classify an alien as an O-1 or O-2 nonimmigrant shall file a petition 
on Form I-129, Petition for a Nonimmigrant Worker, with the Service 
Center which has jurisdiction in the area where the alien will work. 
The petition may not be filed more than 6 months before the actual need 
for the alien's services. An O-1 or O-2 petition shall be adjudicated 
at the appropriate Service Center, even in emergency situations. Only 
one beneficiary may be included on an O-1 petition. O-2 aliens must be 
filed for on a separate petition from the O-1 alien. An O-1 or O-2 
petition may only be filed by a United States employer, an established 
United States agent, or a foreign employer through an established 
United States agent. A foreign employer may not directly petition for 
an O nonimmigrant alien but instead must use the services of an 
established United States agent to file a petition for an O 
nonimmigrant. An O alien may not petition for himself or herself.
* * * * *
    (iv) Other filing situations--(A) Services in more than one 
location. A petition which requires the alien to work in more than one 
location must include an itinerary with the dates and locations of work 
and must be filed with the Service Center which has jurisdiction in the 
area where the petitioner is located. The address which the petitioner 
specifies as its location on the petition shall be where the petitioner 
is located for purposes of this paragraph.
* * * * *
    (E) * * *
    (3) A foreign employer who, through an established United States 
agent, files a petition for an O nonimmigrant alien is responsible for 
complying with the employer sanctions provisions of section 274A of the 
Act and 8 CFR part 274a.
* * * * *
    (G) Traded professional O-1 athletes. In the case of a professional 
O-1 athlete who is traded from one U.S.-based organization to another 
organization, employment authorization for the player will 
automatically continue for a period of 30 days after acquisition by the 
new organization within which time the new organization is expected to 
file a new Form I-129. If a new Form I-129 is not filed within 30 days, 
employment authorization will cease. If the new petition is denied, 
employment authorization will cease.
* * * * *
    4. Section 214.2 is amended by:
    a. Revising paragraph (p)(2)(i); and by
    b. Revising paragraph (p)(2)iv), to read as follows;


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

* * * * *
    (p) * * *
    (2) Filing of petitions--(i) General. A P-1 petition for an athlete 
or entertainment group shall be filed by a United States employer, a 
United States sponsoring organization, an established United States 
agent, or a foreign employer through an established United States 
agent. Foreign employers seeking to employ a P-1 alien may not directly 
petition for the alien but must use the services of an established 
United States agent. A P-2 petition for an artist or entertainer in a 
reciprocal exchange program shall be filed by the United States labor 
organization which negotiated the reciprocal exchange agreement, the 
sponsoring organization, or 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. Except as provided for in paragraph (p)(2)(iv)(A) of 
this section, the petitioner shall file a P petition on Form I-129, 
Petition for Nonimmigration Worker, with the Service Center which has 
jurisdiction in the area where the alien will work. The petition may 
not be filed more than 6 months before the actual need for the alien's 
services. A P-1, P-2, or P-3 petition shall be adjudicated at the 
appropriate Service Center, even in emergency situations.
* * * * *
    (iv) Other filing situations--(A) Services in more than one 
location. A petition which requires the alien to work in more than one 
location (e.g., a tour must include an itinerary with the dates and 
locations of the performances and must be filed with the Service Center 
which has jurisdication in the area where the petitioner is located. 
The address which the petitioner specifies as its location on the 
petition shall be where the petitioner is located for purposes of this 
paragraph.
    (B) 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)(E) of this section.
    (C) Change of employer.--(1) General. If a P-1, P-2, or P-3 alien 
in the United States seeks to change employers or sponsors, the new 
employer or sponsor must file both a petition and a request to extend 
the alien's stay in the United States. The alien may not commence 
employment with the new employer or sponsor until the petition and 
request for extension have been approved.
    (2) Traded P-1 athletes. In the case of a professional P-1 athlete 
who is traded from one U.S.-based organization to another organization, 
employment authorization for the player will automatically continue for 
a period of 30 days after acquisition by the new organization within 
which time the new organization is expected to file a new Form I-129 
for P-1 nonimmigrant classification. If a new Form I-129 is not filed 
within 30 days, employment authorization will cease. If the new 
petition is denied, employment authorization will cease.
    (D) Amended petition. The petitioner shall file an amended 
petition, with fee, with the Service Center where the original petition 
was filed to reflect any material changes in the terms and conditions 
of employment or the beneficiary's eligibility as specified in the 
original approved petition. A petitioner may add additional, similar or 
comparable performances, engagements, or competitions during the 
validity period of the petition without filing an amended petition.
    (E) Agents as petitioners. An established United States agent may 
file a petition in cases involving workers who traditionally are self-
employed or who use agents to arrange short-term employment on their 
behalf with numerous employers, and in cases where a foreign employer 
authorizes the agent to act on its behalf. A 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 supported 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.
    (3) A foreign employer who, through an established United States 
agent, files a petition for a P nonimmigrant alien is responsible for 
complying with the employer sanctions provisions of section 274A of the 
Act and 8 CFR part 274a.
    (F) Multiple beneficiaries. More than one beneficiary may be 
included in a P petition if they are members of a group seeking 
classification based on the reputation of the group as an entity, or if 
they will provide essential support to P-1, P-2, or P-3 beneficiaries 
performing in the same location and in the same occupation.
    (G) Named beneficiaries. Petitions for P classification must 
include the names of beneficiaries and other required information at 
the time of filing.
    (H) Substitution of beneficiaries. Beneficiaries may be substituted 
for in P-1, P-2, and P-3 petitions for groups. To request substitution, 
the petitioner shall submit a letter requesting such substitution, 
along with a copy of the petitioner's approval notice, to the consular 
office at which the alien will apply for a visa or the Port-of-Entry 
where the alien will apply for admission. Essential support personnel 
may not be substituted at consular offices or at Ports-of-Entry. In 
order to add additional new essential support personnel, a new I-129 
petition must be filed with the appropriate Service Center.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    5. The authority citation for part 274a continues to read as 
follows:

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

    6. Section 274a.12 is amended by:
    a. Revising paragraph (b)(9);
    b. Revising paragraph (b)(13); and by
    c. Revising paragraph (b)(14), to read as follows:


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

* * * * *
    (b) * * *
    (9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), 
pursuant to Sec. 214.2(h) of this chapter. An alien in this status may 
be employed only by the petitioner through whom the status was 
obtained. In the case of a professional H-2B athlete who is traded from 
one U.S.-based organization to another organization, employment 
authorization for the player will automatically continue for a period 
of 30 days after acquisition by the new organization within which time 
the new organization is expected to file a new Form I-129 petition for 
H-2B classification. If a new Form I-129 is not filed within 30 days, 
employment authorization will cease. If the new petition is denied, 
employment authorization will cease;
* * * * *
    (13) An alien having extraordinary ability in the sciences, arts, 
education, business, or athletics (O-1), and an accompanying alien (O-
2), pursuant to Sec. 214.2(o) of this chapter. An alien in this status 
may be employed only by the petitioner through whom the status was 
obtained. In the case of a professional O-1 athlete who is trade from 
one U.S.-based organization to another organization, employment 
authorization for the player will automatically continue for a period 
of 30 days after the acquisition by the new organization within which 
time the new organization is expected to file a new Form I-129 petition 
for O nonimmigrant classification. If a new Form I-129 is not filed 
within 30 days, employment authorization will cease. If the new 
petition is denied, employment authorization will cease;
    (14) An athlete, artist, or entertainer (P-1, P-2, or P-3), 
pursuant to Sec. 214.2(p) of this chapter. An alien in this status may 
be employed only by the petitioner through whom the status was 
obtained. In the case of a professional P-1 athlete who is traded from 
one U.S.-based organization to another organization, employment 
authorization for the player will automatically continue for a period 
of 30 days after the acquisition by the new organization within which 
time the new organization is expected to file a new Form I-129 for P-1 
nonimmigrant classification. If a new Form I-129 is not filed within 30 
days, employment authorization will cease. If the new petition is 
denied, employment authorization will cease;
* * * * *
    Dated: May 13, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-19673 Filed 8-12-94; 8:45 am]
BILLING CODE 4410-10-M