[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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