[Federal Register Volume 72, Number 72 (Monday, April 16, 2007)]
[Rules and Regulations]
[Pages 18856-18860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7134]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2295-03; USCIS-2004-0001]
RIN 1615-AB17


Petitioning Requirements for the O and P Nonimmigrant 
Classifications

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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SUMMARY: This final rule amends Department of Homeland Security 
regulations to permit petitioners to file O and P nonimmigrant 
petitions up to one year prior to the petitioner's need for the alien's 
services. This amendment will enable petitioners who are aware of their 
need for the services of an O or P nonimmigrant well in advance of a 
scheduled event, competition, or performance to file their petitions 
under normal processing procedures. This way, petitioners will be 
better assured that they will receive a decision on their petitions in 
a timeframe that will allow them to secure the services of the O or P 
nonimmigrant when such services are needed.

DATES: This rule is effective May 16, 2007.

FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, 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., 3rd Floor, 
Washington, DC 20529, telephone (202) 272-9135.

SUPPLEMENTARY INFORMATION: 

I. Background

    Under the O nonimmigrant classification, a U.S. employer, U.S. 
agent, or a foreign employer through a U.S. agent, may petition for an 
alien who has extraordinary ability in the arts, the sciences, 
education, business or athletics that has been demonstrated by 
sustained national or international acclaim to come to the United 
States temporarily to continue work in the area of extraordinary 
ability. Immigration and Nationality Act (INA) sec. 101(a)(15)(O)(i), 8 
U.S.C. 1101(a)(15)(O)(i); 8 CFR 214.2(o)(1) & (2). In addition, such 
employer or agent also may use the O nonimmigrant classification to 
petition for an alien who has a demonstrated record of extraordinary 
achievement in motion picture or television productions to come to the 
United States temporarily to continue work in the area of extraordinary 
achievement. Id. Under the P nonimmigrant classification, a U.S. 
employer, U.S. sponsoring organization, U.S. agent, or a foreign 
employer through a U.S. agent, may petition for an alien who is coming 
temporarily to the United States to perform at a specific athletic 
competition as an athlete at an internationally recognized level or 
performance, or to perform with an entertainment group that has been 
recognized internationally as being outstanding. INA sec. 
101(a)(15)(P), 8 U.S.C. 1101(a)(15)(P); 8 CFR 214.2(p)(1) & (2). Such 
employer, agent, or sponsor also can use the P nonimmigrant 
classification to petition for an alien to come temporarily to the 
United States to perform as an artist or entertainer under a reciprocal 
exchange program between organizations in the United States and 
organizations in a foreign country. Id. Finally, such employer, agent, 
or sponsor can use the P nonimmigrant classification to petition for an 
alien artist or entertainer to come temporarily to the United States to 
perform, teach, or coach under a commercial or noncommercial program 
that is

[[Page 18857]]

culturally unique. Id. Both the O and P nonimmigrant classifications 
also apply to essential support personnel coming to the United States 
to assist an O or P nonimmigrant in his or her artistic or athletic 
performance. See INA sec. 101(a)(15)(O)(ii), 8 U.S.C. 
1101(a)(15)(O)(ii); 8 CFR 214.2(p)(4)(iv), (5)(iii) & (6)(iii).
    Petitions for the O and P nonimmigrant classifications are filed on 
Form I-129, ``Petition for Nonimmigrant Worker.'' 8 CFR 214.2(o)(2)(i); 
8 CFR 214.2(p)(2)(i). The current regulations governing both O and P 
nonimmigrants preclude the petitioner from filing a Form I-129 more 
than six months before the actual need for the alien's services. 8 CFR 
214.2(o)(2)(i); 8 CFR 214.2(p)(2)(i). The timing of filings by 
petitioners, combined with current U.S. Citizenship and Immigration 
Service (USCIS) processing times, often result in USCIS completing the 
adjudication of an O or P nonimmigrant petition at the same time or 
later than the date of the petitioner's need for the alien. This 
creates a hardship for petitioners who are seeking to employ the alien 
based on a scheduled performance, competition, or event, and who 
already may have booked a venue and sold advance tickets. If the 
petition is not approved by the time of the petitioner's need for the 
alien's services, 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 as well as 
other costs. If petitioners were able to file Forms I-129 for O or P 
nonimmigrant status more than six months in advance of the need for the 
alien's services, USCIS could ensure that adjudication is completed 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.
    For these reasons, USCIS issued a rule proposing to amend 8 CFR 
214.2(o)(2)(i) and 8 CFR 214.2(p)(2)(i) governing the O and P 
nonimmigrant petition filing process. 70 FR 21983-01 (Apr. 28, 2005). 
The proposed rule extended the time period that petitioners may file 
Form I-129 to not more than one year before the date of the 
petitioner's need for the alien's services. 70 FR at 21985. The 
proposed rule also would have required petitioners to submit Forms I-
129 no later than six months before the alien's services were required. 
The proposed rule also provided that USCIS would grant exceptions in 
emergency situations to allow a petitioner to submit a petition later 
than six months at the discretion of the USCIS Service Center Director, 
and in special filing situations as determined by USCIS Headquarters. 
Id.
    USCIS specifically invited comments on whether it should extend the 
one-year maximum/six-month minimum filing timeframes to all 
nonimmigrants for whom Forms I-129 are filed. 70 FR at 21984. USCIS 
also requested comments on whether the extension of the filing time to 
one year would increase the potential for fraud or abuse of the O and P 
classifications and other nonimmigrant categories covered by Form I-
129. USCIS solicited suggestions for addressing such fraud or abuse 
should it occur.
    The comment period for the proposed rule ended June 27, 2005. USCIS 
received a total of 112 comments. Based upon these comments, this final 
rule adopts the proposed rule amending 8 CFR 214.2(o)(2)(i) and 
214.2(p)(2)(i), but without the six-month filing minimum and 
possibility for granting exceptions. The following is a discussion of 
the comments received for the proposed rule.

II. Discussion of Comments

    Of the 112 comments received, 110 comments supported the proposal 
to extend the allowable petition filing time from the current six 
months to one year in advance of the petitioning employer's need for 
the services of the O or P nonimmigrant. However, these commenters also 
expressed their strong objection to the proposed requirement that 
petitions for O and P nonimmigrant status must be filed with USCIS no 
later than six months in advance of the employment need. Of the 
remaining two comments, one comment simply suggested a semantics change 
to the regulatory text. The other comment did not specifically address 
the provisions of the proposed rule and therefore will not be 
addressed.
    A total of fifty-three comments were submitted by performing arts 
organizations, such as theatre companies, symphony and orchestra 
companies, opera companies, dance companies, ballet companies, 
circuses, and dance centers. These comments stated that the filing 
period should simply be extended to one year in advance of the 
employment need, and not impose a six-month minimum filing period. The 
comments noted that the proposed requirement that the petition be filed 
at least six months before the petitioning employer's need for the 
services of the O or P nonimmigrant would cause significant scheduling 
problems. Performing arts organizations emphasized that USCIS must 
reduce the regular processing times, provide updated and accurate forms 
and instructions, and implement uniform policies and training at its 
service centers.
    USCIS received seventeen comments from firms and agencies that are 
involved in the representation, publicity, and management of various 
organizations involved in the performing arts. These firms and agencies 
noted that there are numerous situations where the event is planned 
less than six months prior to the performance. They emphasized that the 
requirement that petitioners file petitions for O and P nonimmigrant 
status at least six months in advance of the employment need has no 
real value.
    In addition, these firms and agencies responded negatively to the 
proposed discretionary authority of USCIS to grant exceptions to the 
timeframes in emergency and special filing situations. They stated that 
through such a provision, USCIS would become the sole arbiter of the 
urgency of an employer's employment needs. USCIS would decide whether 
to grant an exception on a case-by-case basis, leading to an 
inconsistent application of the use of discretion.
    Educational institutions submitted a total of fourteen comments. 
These comments stated simply that USCIS should extend the filing period 
to one year in advance of the employment need, and that USCIS should 
not limit the filing period to six-month filing period between six 
months and one year in advance of the employment need. These 
educational institutions advised that generally academic appointments 
are not finalized more than six months prior to the employment start 
date, as offers are typically made in late spring for academic 
appointments that begin on July 1.
    USCIS received nine comments from national and regional 
associations affiliated with various performing arts organizations, 
including the Motion Picture Association of America. Commenters 
supported extending the allowable petition-filing period to any time up 
to one year in advance of the employment need. However, they also 
stated that the proposed requirement to file such petitions at least 
six months in advance would cause severe hardship to the performing 
arts industry because employment agreements are rarely in place more 
than six months before production begins.
    Eight comments submitted by immigration attorneys also objected to

[[Page 18858]]

the proposed six-month advance filing requirement for petitions. The 
commenters stated that most employers of O and P nonimmigrants do not 
have six months lead time when filing petitions. Therefore, according 
to them, implementation of this rule as proposed would have a damaging 
effect on the U.S. economy by hobbling the arts, sports, film, and 
advertising industries.
    USCIS received one comment from an organization that specializes in 
the movement of international personnel across national borders. This 
comment echoed the concerns of others by stating that the requirement 
to file the petition at least six months in advance of the employment 
need does not reflect the practical realities facing the vast majority 
of petitioners in the fields of science, business, athletics, and 
entertainment. The comment also opposed allowing USCIS to grant 
exceptions to the six-month advance filing requirement by stating that 
such authority would be impractical and insufficient to meet legitimate 
demands. Like the overwhelming majority of comments, however, this 
comment supported the proposal to extend the allowable filing period to 
a maximum of one year in advance of the employment need for O and P 
petitions. The commenter agreed with USCIS that it should not extend 
the filing timeline for petitions in the remaining nonimmigrant visa 
classifications, because the nature of O and P employment is different 
from other nonimmigrant visa classifications. This commenter stated 
that extending the filing timeline for other nonimmigrant categories 
using Form I-129 could lead to fraud and abuse, as well as an increase 
in case filings where the need for the alien's services has not fully 
materialized, particularly in the case of H-1B nonimmigrants who are 
subject to an annual numerical cap on the number of aliens who may be 
granted H-1B nonimmigrant status.\1\ INA sec. 214(g)(1)(A), 8 U.S.C. 
1184(g)(1)(A).
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    \1\ An H-1B nonimmigrant is an alien who is coming to the United 
States to perform services in a specialty occupation; perform 
services of an exceptional nature requiring exceptional merit and 
ability relating to a cooperative research and development project 
or a coproduction project provided for under a Government-to-
Government agreement administered by the Secretary of Defense; or 
perform services as a fashion model of distinguished merit and 
ability. 8 CFR 214.2(h)(1)(ii)(B).
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    The sports industry submitted three comments. USCIS received one 
comment each from Major League Baseball, the Portland Trail Blazers, 
and Nike, Inc. Both Nike, Inc. and the Portland Trail Blazers expressed 
support for the proposed extension of the allowable filing period for O 
and P petitions to a maximum of one year from the current six months. 
The comment from Major League Baseball did not support or oppose the 
proposed extension to a one-year filing period. All three comments from 
the sports industry opposed proposed requirement to file O and P 
petitions at least six months prior to the date of employment.
    The comment from Major League Baseball urged that the six-month 
advance filing requirement be eliminated in its entirety. It also 
pointed out that the needs of Major League Baseball Clubs would always 
call for exceptions under the provisions of the proposed rule. Major 
League Baseball Clubs need O and P nonimmigrant players and staff in 
the United States no later than when spring training begins in February 
each year. However, personnel decisions by Major League Clubs for an 
upcoming season begin at the conclusion of the prior season's World 
Series in October. These personnel decisions continue throughout the 
winter up until, and even during, spring training. Furthermore, players 
who are traded during the course of a season from one club to another 
would not be able to have an O or P petition timely filed on their 
behalf under the provisions of the proposed rule.
    A comment from the Portland Trail Blazers franchise of the National 
Basketball Association (NBA) stated that the team frequently utilizes O 
and P nonimmigrant visas to facilitate the employment of foreign world-
class basketball players. This comment emphasized that the proposed 
requirement that O and P petitions be filed at least six months in 
advance of the employment need is completely unworkable in the NBA. 
When an NBA basketball player is drafted by an NBA team, the team and 
the player's agent will negotiate a contract. Due to the detailed 
nature of these contracts and the high salaries involved, negotiations 
can be exceptionally complex and time-consuming. The comment stated 
that experience has shown that the Portland Trail Blazers has never had 
as much as six months lead time to file an O or P petition once 
contract negotiations are completed. The comment noted that a signed 
contract is a filing requirement for either the O or P classifications, 
and typically the agents and owners of NBA teams agree to the terms and 
sign the contracts only a few weeks prior to the start of training camp 
or the NBA season.
    The comment further stated that the underlying statute created the 
O and P nonimmigrant classifications to assist employers seeking to 
temporarily hire extraordinary foreign workers. The provisions of the 
proposed rule, on the other hand, would restrict the availability of O 
and P nonimmigrant visas, contrary to the spirit of the law. The 
comment asserted that the provisions of the proposed rule would create 
a ``de facto'' six-month waiting period for employers who wish to 
employ extraordinary workers, such as internationally recognized 
basketball players. The comment stated that it is inappropriate for 
USCIS to create such a holding period that is not authorized by the 
statute.
    Nike, Inc., a sports equipment and apparel company, commented that 
the proposed requirement to file O and P petitions at least six months 
in advance of the employer's need for the services of the alien is 
unwarranted, unworkable, and contrary to the best interests of the 
United States. This comment mirrors many of the other comments by 
stating that USCIS should not limit the access of United States 
employers to high-level O and P nonimmigrants because many companies 
cannot identify, in the reasonable course of business, the need for an 
O or P nonimmigrant worker with six months' anticipation.
    USCIS received two comments from research organizations, one from 
Roche Palo Alto LLC, which is a major international pharmaceutical 
company, and the other from the California Institute of Technology. The 
commenters stated their opposition to the proposed requirement that 
employers file O and P petitions at least six months in advance of 
their need for the alien's services. Roche Palo Alto LLC further stated 
that the proposed requirement to file petitions for O and P 
nonimmigrants six months in advance of the petitioner's need could 
detrimentally impact the company's U.S. research programs and force the 
company to consider transferring some of its research programs and 
employees to locations outside the United States to ensure their 
success. The California Institute of Technology expressed approval of 
the proposed extension of the allowable filing period for O and P 
petitions to a maximum of one year. Roche Palo Alto LLC neither 
supported nor rejected this proposal.
    Eight members of Congress submitted one comment. They noted that 
Congress had previously recommended to USCIS that petitioners for O and 
P nonimmigrants should be permitted to file up to one year in advance 
of their employment need for a foreign worker. They also voiced their 
appreciation for USCIS' attempt to act upon this recommendation. 
However, these

[[Page 18859]]

members of Congress strongly urged USCIS to revise the rule to allow 
filing at any time up to one year in advance rather than requiring such 
petitions to be filed at least six months in advance. They reminded 
USCIS that the core problem that must be addressed is the delay in 
processing petitions. They also encouraged USCIS to continue its 
efforts to improve overall processing times and not let the one-year 
filing window become a justification to further delay turnaround time.
    Finally, there were two comments submitted by private individuals, 
each of whom expressed support for extending the allowable petition-
filing period to any time up to one year in advance of the employment 
need. However, these commenters also stated that the proposed 
requirement to file such petitions at least six months in advance would 
cause severe hardship to the performing arts industry because 
employment agreements are rarely in place more than six months before 
production begins.

III. USCIS Response to Comments

    As nearly all comments supported the proposed rule's extension of 
the O and P nonimmigrant petition filing period, USCIS is adopting the 
proposed extension. Therefore, this final rule amends 8 CFR 
214.2(o)(2)(i) and 214.2(p)(2)(i) to provide that petitioners of O and 
P nonimmigrants may file petitions at any time up to a maximum of one 
year in advance of their need for the alien's services.
    USCIS is not adopting the proposed requirement that petitions must 
be filed no sooner than six months prior to the actual need for the 
alien's services. USCIS also is not adopting the concomitant provision 
which permits exceptions in emergent situations at the discretion of 
the USCIS Service Center District Director, or in special filing 
situations at the discretion of USCIS Headquarters.
    As discussed above, USCIS received an overwhelming number of 
comments opposing the six-month filing minimum requirement. Many 
commenters noted that employers do not necessarily make offers of 
employment more than six months prior to the employment start date. 
They also may not be aware of the need for the services of an O or P 
nonimmigrant more than six months in advance of the event, competition, 
or performance. While the proposed rule provided for authority to grant 
exceptions to the six-month filing minimum requirement, some commenters 
expressed concern that such discretionary authority would not be 
applied consistently.
    In determining not to include the six-month advance filing 
limitation in the final rule, USCIS considered the fact that USCIS has 
reduced the number of backlogged petitions and applications, including 
the O and P nonimmigrant petitions, thereby reducing overall processing 
times. See https://egov.immigration.gov/cris/jsps/ptimes.jsp. 
Therefore, there is no longer a need for a six-month minimum period to 
ensure the timely processing of O and P nonimmigrant petitions. USCIS 
still encourages petitioners to file O and P nonimmigrant petitions 
more than six months prior to employment start date when possible. 
Petitioners should routinely check the USCIS Web site, http://www.uscis.gov, to determine the current processing time for the 
petition they intend to file.
    If the need for the services of an O or P nonimmigrant is scheduled 
to occur prior to current processing times, petitioners should consider 
filing their petition with a request for Premium Processing Service to 
guarantee that their petition will be acted upon within fifteen days of 
receipt.
    The final rule does not apply the one-year filing timeframe of this 
final rule to other nonimmigrant classifications associated with Form 
I-129. USCIS is in agreement with the only commenter who commented on 
this point, which was raised in the Supplementary Information to the 
proposed rule. See 70 FR at 21984. The nature of O and P employment is 
different from other nonimmigrant visa classifications. Extending the 
filing period for other nonimmigrant classifications using Form I-129 
may result in the increased potential for fraud and abuse as well as an 
increase in case filings where the need for the alien's services has 
not fully materialized.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    DHS has reviewed this regulation in accordance with 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. 
This rule will help 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 USCIS denied the petition 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. USCIS did not 
receive any comments stating that this regulation would have a negative 
impact on small entities. In addition, the rule will help 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 USCIS denied the petition at the last minute, or because the 
petition was not adjudicated in advance of the need.

B. 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.

C. 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.

D. Executive Order 12866

    This final rule is not a ``significant regulatory action'' under 
Executive Order 12866, section 3(f). Accordingly, this regulation has 
not been submitted to the Office of Management and Budget for review.
    USCIS has assessed both the costs and benefits of this rule 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. The rule will help 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

[[Page 18860]]

either because the petition was denied at the last minute, or because 
the petition was not adjudicated in advance of the need. Employers can 
be confident that they are unlikely to incur unnecessary booking costs 
or be required to issue refunds due to the cancellation of an event 
caused by a failure to receive a decision on the petition. Finally, 
this rule will help those employers who make offers of employment more 
than six months prior to the employment start date to have sufficient 
time to seek a new beneficiary or beneficiaries in the event a petition 
is denied.

E. 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.

F. 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.

G. 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.

0
Accordingly, part 214 of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant 
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187, 
1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32; section 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.


0
2. Section 214.2 is amended by:
0
a. Revising the second sentence in paragraph (o)(2)(i); and by
0
b. Revising the tenth sentence in paragraph (p)(2)(i).
    The revisions read as follows:


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

* * * * *
    (o) * * *
    (2) * * *
    (i) General. * * * The petition may not be filed more than one year 
before the actual need for the alien's services. * * *
* * * * *
    (p) * * *
    (2) * * *
    (i) General. * * * The petition may not be filed more than one year 
before the actual need for the alien's services. * * *
* * * * *

    Dated: March 27, 2007.
Michael Chertoff,
Secretary.
 [FR Doc. E7-7134 Filed 4-13-07; 8:45 am]
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