[Federal Register Volume 62, Number 73 (Wednesday, April 16, 1997)]
[Rules and Regulations]
[Pages 18508-18514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9814]
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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: Final rule.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(the Service) regulations by precluding foreign employers from directly
filing petitions for O and P nonimmigrant aliens. Prospective foreign
employers seeking to file petitions in these two classifications will
be required to use the services of an agent in the United States. This
rule also amends the H nonimmigrant regulations by requiring foreign
employers seeking to petition for H-2B nonimmigrant aliens to use the
services of an agent in the United States, removes the current
reference to the term ``representative'' from the H-2B regulations,
expands the definition of an agent with respect to the H, O, and P
nonimmigrant classifications, and codifies existing policy with regard
to the filing of nonimmigrant petitions for certain professional
athletes. This rule brings the H, O, and P nonimmigrant regulations
into conformity with the employer sanctions provisions of section 274A
of the Immigration and Nationality Act (``the Act'').
EFFECTIVE DATE: April 16, 1997.
FOR FURTHER INFORMATION CONTACT:
John W. Brown, Adjudications Officer, Adjudications Division,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-3240.
SUPPLEMENTARY INFORMATION: The employer sanctions provisions of the
Immigration and Nationality Act were created by the Immigration Reform
and Control Act of 1986, Public Law 99-603, and are codified in section
274A of the Act, as amended. Among other things, section 274A of the
Act contains provisions making it unlawful for a person or entity to
hire an alien knowing the alien is not entitled to engage in
employment. Section 274A of the Act 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 who do not
[[Page 18509]]
comply with the employer sanctions provisions of section 274A of the
Act.
The Service has historically allowed foreign employers, i.e., those
employers not amenable to service of process in the United States, to
file petitions for certain nonimmigrant workers. However, in order for
the Service to enforce the sanctions provisions of section 274A of the
Act in an effective manner, an employer must have a legal presence in
the United States for purposes of service of legal process. It has,
therefore, been determined that, as in the case of the H nonimmigrant
classification, 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 petition for
an O and P nonimmigrant alien but will be required to use a United
States agent to file the petition on their behalf. Through their United
States agent, foreign employers will be responsible for complying with
the provisions of section 274A of the Act. In order to accommodate the
needs of those businesses which will use these classifications and, at
the same time, effectively enforce the sanctions provisions, the
definition of an agent found at 8 CFR 214.2(h)(2)(i)(F), 8 CFR
214.2(o)(2)(iv)(E), and 8 CFR 214.2(p)(2)(iv)(E) has been amended by
this rule to include business representatives.
On August 15, 1994, the Service published in the Federal Register
at 59 FR 41843 a proposed rule with requests for comments. Interested
persons were invited to submit written comments on or before October
14, 1994.
Discussion of Comments on the Proposed Rule
The Service received four comments on the proposed rule. Each of
the comments contained a discussion of a number of different issues. As
a result, the number of issues discussed exceeds the total number of
comments received. The commenters offered a number of suggestions and
improvements for the final rule, some of which have been adopted. The
following discussion addresses the issues raised by the specific issue
proposed in the rule, provides the Service's position on the issues,
and indicates the revisions adopted in the final rule based on the
public's comments.
Proposal Number One--The ``30-Day Rule''
The Service proposed to codify its longstanding policy with respect
to sports teams which allows professional athletes traded between teams
to play for the new team prior to the filing of the appropriate
petition, provided that the new team files 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. Since no negative comments were received with
respect to this particular proposal, the proposal will be adopted in
the final rule.
One commenter did, however, note that 8 CFR 214.2(h)(6)(vii), which
discusses the ``30-day rule,'' contained a typographical error. The
error has been corrected in this final rule.
The Service has clarified the rule in two respects. First, the
references in the proposed rule to ``U.S.-based'' organizations have
been deleted, in order to avoid any confusion regarding whether a team
employing a professional athlete pursuant to an H-2B, O-1, or P-1
petition is ``U.S.-based'' or not (for example, a minor league
affiliate in the United States of a foreign major league franchise).
The final rule applies to any trade of an alien professional athlete in
an H-2B, O-1, or P-1 classification. Second, the Service has clarified
that an athlete to whom the final rule applies will remain in status,
and will be eligible to be employed by the team to which the athlete is
traded, after the expiration of 30 days following the trade until the
Form I-129 is adjudicated, as long as the new petition is filed within
the 30-day time frame provided by the rule.
Proposal Number Two--Foreign Employers Filing O, P, and H-2B Petitions
All four of the commenters opposed the Service's proposal that
foreign employers be precluded from filing O and P nonimmigrant
petitions directly with the Service. The commenters raised seven
separate arguments as to why the Service should not implement this
proposal. All four of the commenters, however, suggested that, if the
proposal was adopted, the term ``established U.S. agent'' contained in
the proposed rule should be modified or altered to allow business
entities in the United States which are related to the foreign employer
to be classified as an agent and have the ability to file the petition.
After a careful review of the comments received from the public
concerning this proposal, the Service will adopt without change the
proposal contained in the proposed rule with respect to the filing of O
or P petitions by foreign employers. It is the opinion of the Service
that the adoption of the proposal does nothing more than reflect the
intent of Congress when the employer sanction provisions were enacted.
The purpose of this rule is to prevent abuses of section 274A of the
Act by ensuring that the Service can enforce the section 274A
provisions against foreign employers to the same extent as it currently
does against domestic employers.
However, the Service will accept the suggestion of the commenters
and modify the regulatory definition of the term ``United States
agent'' to accommodate the needs of foreign employers. The final rule
clarifies the definition of ``United States agent'' by specifying that
general legal agency relationships satisfy this requirement. The
proposed rule failed to state clearly that foreign employers are
permitted to use an ``agent'' as commonly defined in legal agency
terms. The final rule recognizes that the term ``agent'' need not be
limited to a person or entity who has entered into a formal agency
agreement with the employer. An ``agent'' can be someone authorized to
represent and act for another, to transact business for another, or
manage another's affairs. A United States agent filing a petition on
behalf of a foreign employer must, however, be authorized by the
foreign employer to file the petition, and to accept service of process
in the United States in any proceeding under section 274A of the Act,
on behalf of the foreign employer.
The Service has also clarified the final rule by defining ``foreign
employer'' for purposes of the rule as ``any employer who is not
amenable to the service of process in the United States.'' This
definition is intended to include all employers of H-2B, O, or P aliens
who are not amenable to service of process within the United States for
any reason.
Discussion of the Specific Comments Raised in Objection to Proposal
Number Two
The following discussion addresses each of the seven reasons raised
by the commenters as to why the proposal that foreign employers should
not be permitted to file an H, O, or P petition directly should not be
adopted.
One commenter suggested that if the Service required foreign
employers to use an agent in the United States to file an O or P
petition, foreign countries would retaliate against U.S. workers abroad
in some fashion.
It is the opinion of the Service that the employer sanctions
provisions must be enforced with equal effect with respect
[[Page 18510]]
to all persons or entities, regardless of whether they are foreign or
domestic, which employ aliens in the United States. While it is
theoretically possible that certain countries may retaliate against the
United States for enforcing these statutory provisions, the Service is
required to follow the intent of Congress in enacting section 274A of
the Act and safeguard against unauthorized employment in this country.
The Service received comments expressing similar fears at the time
it published its interim rule relating to the O and P classifications
following enactment of the Immigration Act of 1990 (IMMACT 90).
Specifically, the commenters suggested at the time that, as drafted,
the Service's regulations would result in retaliatory actions towards
U.S. workers abroad. Such fears have proven to be unfounded. In fact,
more than 4 years after the effective date of IMMACT 90, the Service is
unaware of any instances of retaliatory actions taken by foreign
countries against United States entertainers and athletes abroad.
The Service received two comments which stated that requiring a
foreign company to create a legal relationship with an agent within the
United States will discourage foreign employers from filming and
otherwise working in the United States, thereby harming the U.S.
economy and jeopardizing American workers' jobs.
The Service believes that, as a practical matter, this rule is not
onerous and will not have a negative effect upon such foreign employers
or an adverse effect upon the U.S. economy. One of the commenters
acknowledged that foreign companies are required to comply with all
United States laws, including section 274A of the Act, and, in most
cases, already have either a direct presence within the United States
or an existing relationship with a United States entity. Far from
imposing undue burdens on foreign companies, this regulation is
intended only to ensure that employers who are not amenable to the
service of process in the United States are held to the same standard
of conduct as all other employers with respect to section 274A of the
Act, by providing the Service with a mechanism for ensuring adequate
service of process on such employers. In this regard, this regulation
is similar to the laws of many states which require outside businesses
to have a registered agent for service of legal process.
Further, because this rule expands the term ``United States agent''
to include a business representative, the Service believes most foreign
employers will be able to continue their activities with very little or
no additional burden or inconvenience. Foreign employers will, as a
general rule, already have an agency relationship in place in the
United States.
One commenter suggested that adoption of this proposal would
discourage foreign employers from complying with U.S. immigration laws.
It is the opinion of the Service that the vast majority of
individuals are honest and will comply with the law and applicable
regulations. Further, as indicated in the discussion of the prior
comment, the definition of agent has been modified by this rule and, as
a result, compliance with the proposal will not be difficult to
achieve.
One commenter stated that the rule should not be adopted since it
was never anticipated by Congress that a foreign movie production
company merely using United States-based venues to film a movie would
be required to complete an employment verification eligibility form
(Form I-9) for its O-1 and H-2B nonimmigrant employees. In drafting
section 274A of the Act, Congress did not differentiate among employers
based upon their country of license or registry. The implementation of
this rule does not alter the existing responsibilities of all
employers, domestic or foreign, to comply with section 274A of the Act
with respect to employment within the United States.
Two commenters suggested that requiring the employer of an O or P
nonimmigrant alien to complete a Form I-9 is superfluous since the
employer has already received Service approval to work in the United
States. The employment verification provisions are statutory and,
therefore, the Service lacks the authority to waive this requirement.
Moreover, since foreign employers have always been responsible for
complying with the employer sanctions provisions of the Act, this rule
does not add any additional verification requirements.
One commenter stated that there is no evidence that foreign
employers are violating section 274A of the Act or that the Service is
unable to take enforcement actions against them. Moreover, the
commenter stated, if the foreign employer is still to remain liable for
section 274A violations, then the foreign employers should be able to
file O and P petitions directly. The Service is required to enact
regulations which enable it to execute its various duties and
responsibilities. Evidence of abuse is not a prerequisite for
promulgating rules. As noted above, this rule is designed to ensure
compliance with section 274A of the Act by providing a means of
enforcing this section with respect to foreign as well as domestic
employers. Direct filing of O and P petitions by foreign employers not
amenable to service of process within the United States defeats this
purpose, since, in certain cases, the Service may be unable to pursue
actions against such employers for violations of section 274A of the
Act. Foreign employers who benefit from this privilege must be held
fully accountable for complying with our laws by rendering themselves
amenable to service of process in enforcement actions. Since all
employers, domestic or foreign, who use agents to fulfill their section
274A duties remain liable for violations, this rule will ensure
effective enforcement against violating employers.
One commenter suggested that the language of the proposed rule does
not solve enforcement problems with respect to section 274A.
Specifically, the commenter questioned how the use of an agent could
enhance the Service's enforcement if the agent itself has no liability
under the Act. The commenter argued that, if the agent has no
liability, then that contradicts 8 CFR part 274a unless the agents are
not recruiters or referrers for a fee. See section 274A of the Act.
Alternatively, if there is no existing liability, the commenter added,
then the Service cannot argue that it is being hampered in its ability
to enforce the employer sanctions provisions of the Act.
A person or entity acting as an agent may be subject to liability
under section 274A for acts or omissions committed in that capacity.
The issue, however, is not whether the agent is subject to section 274A
of the Act, but whether the foreign employer can be served with process
in a section 274A proceeding. As this commenter correctly indicates,
foreign employers were, and continue to be, responsible for complying
with section 274A of the Act. This rule does not expand or alter the
requirements or liability imposed by section 274A of the Act. Foreign
employers with a legal presence in the United States are subject to the
Service's enforcement powers. Unfortunately, foreign employers not
physically present in the United States who use the privilege of
directly petitioning for O and P visas may presently be able to avoid
Service enforcement of section 274A because of difficulties in serving
process on the employer abroad. It is necessary, therefore, to ensure
that these foreign employers can be held accountable for complying with
section 274A of the Act in the same manner as all other employers. This
rule accomplishes that goal by using well-established agency
[[Page 18511]]
principles, i.e., requiring the foreign employer to have an agent
within the United States able to file the petition, and to accept
service of process in any section 274A proceeding, on the employer's
behalf.
Employers have always been able to delegate or contract their
section 274A responsibilities to an agent, while still remaining fully
liable for any violations. This rule does not change that. A foreign
employer is free to delegate its section 274A compliance
responsibilities to the agent filing the petition on its behalf, to
another agent, or to carry out those responsibilities itself. The final
rule requires only a limited agency for the purpose of filing the
petition, and accepting service of process in section 274A proceedings,
on behalf of the foreign employer. For purposes of this regulation, the
term ``service of process'' is intended to include any method of
commencing enforcement activity of proceedings that involves notice to
the employer, including notices of inspection of Forms I-9, subpoenas,
Notices of Intent to Fine, or complaints.
Another commenter stated that the sole effect of adopting the
proposed rule would be to enhance the Service's ability to enforce
employer sanctions provisions against a foreign employer who seeks to
employ an O or P nonimmigrant alien. The purpose of the proposal with
respect to foreign employers was to require those employers to comply
with the same rules and regulations as all employers regardless of the
nationality of their employees. Therefore, the commenter's statement is
accurate.
Regulatory Flexibility Act
The Commissioner of the immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. The majority of foreign employers who petition for
nonimmigrant workers already have established a presence in the United
States or use the services of a United States agent. Therefore, the
number of small entities affected by this rule would be minimal.
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, section 3(f),
regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 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.
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 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.
Paperwork Reduction Act
This final rule does not impose any new reporting or recordkeeping
requirements. The information collection requirements contained in this
rule were previously 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 amended by 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. Revising paragraph (h)(2)(i)(F);
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) Agents as petitioners. A United States agent may file a
petition in cases involving workers who are traditionally self-employed
or workers 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 United States agent may
be: the actual employer of the beneficiary, the representative of both
the employer and the beneficiary, or, a person or entity authorized by
the employer to act for, or in place of, the employer as it agent. A
petition filed by a United States agent is subject to the following
conditions;
(1) An agent performing the function of an employer must guarantee
the wages and other terms and conditions of employment by contractual
agreement with the beneficiary or beneficiaries of the petition. The
agent/employer must also provide an itinerary of definite employment
and information on any other services planned for the period of time
requested.
(2) A person or company in business as an agent may file the H
petition involving multiple employers as the representative of both the
employers and the beneficiary or beneficiaries if the supporting
documentation includes a complete itinerary of services or engagements.
The itinerary shall specify the dates of each service or engagement,
the names and addresses of the actual employers, and the names and
addresses of the establishment, venues,
[[Page 18512]]
or locations where the services will be performed. In questionable
cases, a contract between the employers and the beneficiary or
beneficiaries may be required. The burden is on the agent to explain
the terms and conditions of the employment and to provide any required
documentation.
(3) A foreign employer who, through a United States agent, files a
petition for an H nonimmigrant alien is responsible for complying with
all of 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, a United
States agent, or a foreign employer filing through a United States
agent. For purposes of paragraph (h) of this section, a foreign
employer is any employer who is not amendable to service of process in
the United States. A foreign employer may not directly petition for an
H-2B nonimmigrant but must use the services of a United States agent to
file a petition for an H-2B nonimmigrant. A United States agent
petitioning on behalf of a foreign employer must be authorized to file
the petition, and to accept service of process in the United States in
proceedings under section 274A of the Act, on behalf of the employer.
The petitioning employer shall consider available United States 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 organization or
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 for H-2B nonimmigrant
classification. If a new Form I-129 is not filed within 30 days,
employment authorization will cease. If a new Form I-129 is filed
within 30 days, the professional athlete shall be deemed to be in valid
H-2B status, and employment shall continue to be authorized, until the
petition is adjudicated. 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. Revising paragraph (o)(2)(iv)(E); 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, a United States
agent, or a foreign employer through a United States agent. For
purposes of paragraph (o) of this section, a foreign employer is any
employer who is not amenable to service of process in the United
States. A foreign employer may not directly petition for an O
nonimmigrant alien but instead must use the services of a United States
agent to file a petition for an O nonimmigrant alien. A United States
agent petitioning on behalf of a foreign employer must be authorized to
file the petition, and to accept services of process in the United
States in proceedings under section 274A of the Act, on behalf of the
foreign employer. 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) Agents as petitioners. A United States agent may file a
petition in cases involving workers who are traditionally self-employed
or workers 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 in its behalf. A United States agent may
be: The actual employer of the beneficiary, the representative of both
the employer and the beneficiary; or, a person or entity authorized by
the employer to act for, or in place of, the employer as its agent. A
petition filed by an agent is subject to the following conditions:
(1) An agent performing the function of an employer must provide
the contractual agreement between the agent and the beneficiary which
specifies the wage offered and the other terms and conditions of
employment of the beneficiary.
(2) A person or company in business as an agent may file the
petition involving multiple employers as the representative of both the
employers and the beneficiary, if the supporting documentation includes
a complete itinerary of the event or events. The itinerary must specify
the dates of each service or engagement, the names and addresses of the
actual employers, and the names and addresses of the establishments,
venues, or locations where the services will be performed. A contract
between the employers and the beneficiary is required. The burden is on
the agent to explain the terms and conditions of the employment and to
provide any required documentation.
(3) A foreign employer who, through a United States agent, files a
petition for an O nonimmigrant alien is responsible for complying with
all of 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 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 a new Form I-129 is filed
within 30 days, the professional athlete shall be deemed to be in valid
O-1 status, and employment shall continue to be authorized, until the
petition is adjudicated. 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;
[[Page 18513]]
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, a United States agent, or a
foreign employer through a United States agent. For purposes of
paragraph (p) of this section, a foreign employer is any employer who
is not amenable to service of process in the United States. Foreign
employers seeking to employ a P-1 alien may not directly petition for
the alien but must use a United States agent. A United States agent
petitioning on behalf of a foreign employer must be authorized to file
the petition, and to accept service of process in the United States in
proceedings under section 274A of the Act, on behalf of the foreign
employer. 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 a United States employer. A P-3 petition for an artist
or entertainer in a culturally unique program shall be filed by the
sponsoring organization or a United States employer. 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 Nonimmigrant Worker, with
the Service Center which has jurisdiction in the area where the alien
will work. The petition may not be filed more than 6 months before the
actual need for the alien's services. A P-1, P-2, or P-3 petition shall
be adjudicated at the appropriate Service Center, even in 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 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.
(B) Servcies for more than one employer. If the beneficiary or
beneficiaries 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 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 professional P-1 athletes. In the case of a professional
P-1 athlete who is traded from one 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 a new Form I-129 is filed within 30 days, the professional
athlete shall be deemed to be in valid P-1 status, and employment shall
continue to be authorized, until the petition is adjudicated. 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 performance, engagements, or competitions during the
validity period of the petition without filing an amended petition.
(E) Agents as petitioners. A United States agent may file a
petition in cases involving workers who are traditionally self-employed
or workers 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 United States agent may
be: the actual employer of the beneficiary; the representative of both
the employer and the beneficiary; or, a person or entity authorized by
the employer to act for, or in place of, the employer as its agent. A
petition filed by an United States agent is subject to the following
conditions:
(1) 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 or beneficiaries. The agent/
employer must also provide an itinerary of definite employment and
information on any other services planned for the period of time
requested.
(2) 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 or beneficiaries if the supporting
documentation includes a complete itinerary of services or engagements.
The itinerary shall specify the dates of each service or engagement,
the names and addresses of the actual employers, the names and
addresses of the establishment, venues, or locations where the services
will be performed. In questionable cases, a contract between the
employer(s) and the beneficiary or beneficiaries may be required. The
burden is on the agent to explain the terms and conditions of the
employment and to provide any required documentation.
(3) A foreign employer who, through a United States agent, files a
petition for a P nonimmigrant alien is responsible for complying with
all of 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. A petitioner may request
substitution of beneficiaries in approved 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.
* * * * *
[[Page 18514]]
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. 174a.12 Clauses 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 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 to petition for H-2B
classification. If a new Form I-129 is not filed within 30 days,
employment authorization will cease. If a new Form I-129 is filed
within 30 days, the professional athlete's employment authorization
will continue until the petition is adjudicated. 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 traded from
one 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 a new Form I-129 is filed
within 30 days, the professional athlete's employment authorization
will continue until the petition is adjudicated. 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 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 a new Form I-129 is filed
within 30 days, the professional athlete's employment authorization
will continue until the petition is adjudicated. If the new petition is
denied, employment authorization will cease;
* * * * *
Dated: February 13, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-9814 Filed 4-15-97; 8:45 am]
BILLING CODE 4410-10-M