[Federal Register Volume 70, Number 81 (Thursday, April 28, 2005)]
[Proposed Rules]
[Pages 21983-21985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8471]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 70, No. 81 / Thursday, April 28, 2005 / 
Proposed Rules  

[[Page 21983]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2295-03 and DHS-2004-0009]
RIN 1615-AB17


Petitioning Requirements for the O and P Nonimmigrant 
Classifications

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Department of Homeland 
Security (DHS), U.S. Citizenship and Immigration Services (USCIS) 
regulations to enable petitioners to file O and P nonimmigrant 
petitions up to one year prior to the petitioners' need for the alien's 
services. By extending the filing time requirement for O and P 
petitions, USCIS will be able to adjudicate petitions in a timely 
fashion and ensure that, if approvable, such petitions will be approved 
prior to the date of the need for the alien's services, which is often 
dictated by a scheduled event, competition or performance.

DATES: Written comments must be submitted on or before June 27, 2005.

ADDRESSES: You may submit comments, identified by CIS No. 2295-03 or 
DHS 2004-0009, by one of the following methods:
     EPA Federal Partner EDOCKET Web Site: http://www.epa.gov/feddocket. Follow instructions for submitting comments on the Web site.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. When submitting comments 
electronically, please include CIS No. 2295-03 in the subject line of 
the message.
     Mail: The Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. To 
ensure proper handling, please reference CIS No. 2295-03 on your 
correspondence. This mailing address may also be used for paper, disk, 
or CD-ROM submissions.
     Hand Delivery/Courier: U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 111 Massachusetts Avenue, 
NW., 2nd Floor, Washington, DC 20529. Contact telephone number (202) 
272-8377.
    Instructions: All submissions received must include the agency name 
and docket number (if available) or Regulatory Information Number (RIN) 
for this rulemaking. All comments received will be posted without 
change to http://www.epa.gov/feddocket, including any personal 
information provided. For detailed instructions on submitting comments 
and additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.
     Docket: For access to the docket to read background 
documents or comments received, go to http://www.epa.gov/feddocket. You 
may also access the Federal eRulemaking Portal at http://www.regulations.gov. Submitted comments may also be inspected at the 
office of the Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. To 
ensure proper handling, please reference CIS No. 2295-03 on your 
correspondence.

FOR FURTHER INFORMATION CONTACT: Kevin J. Cummings, Adjudications 
Officer, Business and Trade Services Branch/Program and Regulation 
Development, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, 
Washington, DC 20529, telephone (202) 305-3175.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. USCIS also invites comments that relate to the economic, 
environmental, or federalism affects that might result from this 
proposed rule. Comments that will provide the most assistance to USCIS 
in developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change. See ADDRESSES above for information on how to submit comments.

What Is an O and P Nonimmigrant Petition?

    The O and P nonimmigrant classifications include individual aliens 
with extraordinary ability in the arts, sciences, education, business 
or athletics (including those in the motion picture and television 
industry), as well as internationally recognized athletic team members, 
entertainment groups, artists and other entertainers. Petitions for O 
and P nonimmigrant classifications are filed on Form I-129, Petition 
for Nonimmigrant Worker.

What Are the Current Timeframes for Filing O and P Nonimmigrant 
Petitions?

    8 CFR 214.2(o)(2)(i) currently states that an O nonimmigrant 
petition may not be filed more than 6 months before the actual need for 
the alien's services. A P nonimmigrant petition may not be filed more 
than 6 months before the actual need for the alien's services under 8 
CFR 214.2(p)(2)(i).

What Will Be the New Timeframes for Filing O and P Nonimmigrant 
Petitions?

    USCIS is amending its regulations to allow an O or P petitioner to 
file a Form I-129 up to one year, but not earlier than 6 months, before 
the date of the petitioner's need for the alien's services. The rule 
also provides that USCIS may grant exceptions to the filing timeframes 
in emergency situations at the discretion of the USCIS Service Center 
Director, and in special filing situations as determined by USCIS 
Headquarters.

Why Is USCIS Extending the Filing Times for O and P Nonimmigrant 
Petitions?

    Current filing times combined with processing times often result in 
an O or P petition being adjudicated at the same time or later than the 
date of the petitioner's stated need for the alien. This situation 
creates a hardship for petitioners who are seeking to employ the alien 
based on a scheduled performance, competition, or event and who may 
have booked a venue and sold advance tickets. If the petition is not

[[Page 21984]]

approved by the time of the petitioner's stated need, the petitioner 
may be required to cancel a scheduled event or performance, may lose 
funds advanced for booking a venue, and may be liable for the costs 
associated with ticket refunds and various associated costs. By 
extending the filing time requirement for O and P petitions, USCIS will 
be able to adjudicate petitions for O and P nonimmigrants in a timely 
fashion and ensure that, if approvable, such petitions will be approved 
in advance of the date of the scheduled event, competition or 
performance. Moreover, a large percentage of O and P petitioners 
seeking alien performers or athletes often schedule and must plan for 
competitions, events, or performances more than one year in advance, 
further supporting the amendment to the regulations that this rule 
makes.

Why Is USCIS Requiring That O and P Nonimmigrant Petitions Be Filed No 
Earlier Than 6 Months of the Petitioner's Need for the Alien's 
Services?

    USCIS has determined that a large percentage of O and P petitioners 
seeking alien performers or athletes often schedule and plan for events 
more than a year in advance. Thus, filing the Form I-129 within 6 
months of the petitioner's stated need should not be a hardship on 
those U.S. employers seeking O and P nonimmigrants. In addition, filing 
within a 6 month timeframe will ensure that USCIS is able to timely 
adjudicate and, if eligible, approve Form I-129 petitions prior to the 
scheduled event or performance. USCIS recognizes that there may be 
certain instances, and even emergency circumstances, where the U.S. 
employer is unable to file the Form I-129 six months in advance of his 
or her actual need or of the scheduled event or performance. In those 
instances, USCIS will review the specifics of the U.S. employer's case 
and may, in its discretion, permit the U.S. employer to file the O or P 
petition within a shorter timeframe. USCIS intends to use its 
discretion liberally in this regard. USCIS also reminds U.S. employers 
seeking O and P nonimmigrants that premium processing is available for 
these categories. See 8 CFR 103.2(f).

Will USCIS Extend the Filing Timeframes for Other Nonimmigrant 
Classifications Associated With the Form I-129?

    No. At this time, USCIS is satisfied that the petitions for the 
other Form I-129 classifications are processed by the date of the 
petitioner's stated need. Moreover, a large percentage of cases filed 
under these other categories are for ongoing, long-term employment 
rather than one-time performances or specific entertainment events or 
series of events that are usually planned, booked, and funded well in 
advance. In addition, the O and P nonimmigrant classifications do not 
require a current test of the U.S. labor market or a certification from 
the Department of Labor indicating that the hiring of a foreign laborer 
will not result adversely affect the domestic U.S. workforce. Further, 
USCIS is concerned that expanding the filing times for all Form I-129 
petitioners would lead to an increase in cases where the need for the 
alien has not fully materialized and may lead to an increase in 
adjudications of petitions regarding speculative employment.
    USCIS, however, specifically invites comments on whether it should 
extend the filing timeframes for all Form I-129 petitioners. USCIS also 
requests comments on whether such an extension may increase the 
potential for fraud or abuse of the O and P classifications (as well as 
other nonimmigrant categories covered by the Form I-129 petition) and 
suggestions for addressing such fraud or abuse should it occur.

Regulatory Flexibility Act

    DHS has reviewed this regulation in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), and, by approving it, certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities. As stated under the certification required by 
Executive Order 12866, section 1(b)(6), DHS has determined that there 
are no new costs to either the government or the public associated with 
this rule. This rule does not alter any of the substantive petitioning 
requirements related to the Form I-129 or the evidentiary standards for 
establishing eligibility for the O and P nonimmigrant classification. 
This rule will ensure that certain O and P nonimmigrant petitions are 
adjudicated well in advance of the date of the employers' stated need 
and thus prevent employers from having to cancel an event, competition 
or performance either because the petition was denied at the last 
minute, or because the petition was not adjudicated in advance of the 
need. Employers will be less likely to lose booking costs or have to 
issue refunds if they receive a decision on the petition well in 
advance of the event, competition, or performance.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Homeland Security to 
be a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review. Accordingly, this 
regulation has been submitted to the Office of Management and Budget 
(OMB) for review.
    DHS has assessed both the costs and benefits of this rule as 
required by Executive Order 12866, section 1(b)(6) and has determined 
that there are no new costs to either the government or the public 
associated with this rule. The rule does not alter any of the 
substantive petitioning requirements related to the Form I-129 or the 
evidentiary standards for establishing eligibility for the O or P 
nonimmigrant classification. Further, DHS has determined that the 
benefits of this rule justify any de minimus costs that may be incurred 
by the government or public associated with the change in filing time 
frames. The rule will ensure that certain O and P nonimmigrant 
petitions are adjudicated well in advance of the date of the employers' 
stated need and thus prevent employers from having to cancel an event, 
competition or performance either because the petition was denied at 
the last minute, or because the petition was not adjudicated in advance 
of the need. Employers will not lose booking costs or have to issue 
refunds if they receive a decision on the petition well in advance of 
the event, competition, performance,

[[Page 21985]]

etc. Finally, this rule will ensure that employers have sufficient time 
to seek a new beneficiary or beneficiaries in the event a petition is 
denied.

Executive Order 13132

    This rule 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 section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. This rule does not impose any new reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedures, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.
    Accordingly, part 214 of 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, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 
Stat. 3009-708; Section 141 of the Compacts of Free Association with 
the Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 
1931 note, respectively, 8 CFR part 2.
    2. Section 214.2 is amended by:
    a. Revising the second sentence in paragraph (o)(2)(i) and adding a 
new sentence immediately thereafter; and by
    b. Revising the tenth sentence in paragraph (p)(2)(i) and adding a 
new sentence immediately after.
    The revisions read as follows:


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

* * * * *
    (o) * * *
    (2) * * *
    (i) General. * * * The petition may be filed up to one year, but 
not earlier than 6 months, before the actual need for the alien's 
services. Exceptions may be granted in emergency situations at the 
discretion of the USCIS Service Center Director, and in special filing 
situations as determined by USCIS Headquarters. * * *
* * * * *
    (p) * * *
    (2) * * *
    (i) General. * * * The petition may be filed up to one year, but 
not earlier than 6 months before the actual need for the alien's 
services. Exceptions may be granted in emergency situations at the 
discretion of the USCIS Service Center Director, and in special filing 
situations as determined by USCIS Headquarters. * * *
* * * * *

    Dated: April 22, 2005.
Michael Chertoff,
Secretary.
[FR Doc. 05-8471 Filed 4-27-05; 8:45 am]
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