DOCUMENT NUMBER: FR 46-94

F E D E R A L R E G I S T E R C I T E : 59 FR 41818 - 41842

DATE PUBLISHED: August 15, 1994

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS NO. 1454-93]

RIN 1115-AC72

Temporary Alien Workers Seeking H-1B, O, and P Classifications

Under the Immigration and Nationality Act

AGENCY : Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This final rule implements certain provisions of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 as it relates to temporary alien workers seeking nonimmigrant classification and admission to the United States under sections 101(a)(15)(H), (O), and (P) of the Immigration and Nationality Act (Act). These amendments altered, among other things, the eligibility requirements for the H-1B, O, and P nonimmigrant classifications. This rule contains the new procedures required f or these classifications and conforms Service policy to the intent of Congress as it relates to these classifications. This rule sets forth the new filing procedures and eligibility standards, and clarifies for businesses and the general public the requirements for classification and admission.

EFFECTIVE DATE: August 15, 1994.

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) 514-3946.

SUPPLEMENTARY INFORMATION: The Immigration Act of 1990 (IMMACT), Public Law 101-649, November 29, 1990, created, among other things, the O and P nonimmigrant classifications. These nonimmigrant classifications were to become effective on October 1, 1991, but the full implementation of these classifications was delayed until April 1, 1992 by the enactment of the Armed Forces Immigration Adjustment Act of 1991 (Pub. L. 102-110) which was signed into law on October 1, 1991. In response to concerns voiced by the public and other in terested parties, the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-232, dated December 12, 1991, was enacted which altered the eligibility requirements for certain portions of the O and P nonimmigrant classifications as contained in IMMACT and, in addition, added fashion models of distinguished merit and ability to the H-1B classification.

On April 9, 1992, at 57 FR 12179-12190, the Immigration and Naturalization Service (Service) published an interim rule with request for comments in order to implement the provisions of Pub. L. 102-232. Interested persons were invited to submit written comments on or before June 8, 1992.

This final rule amends the Service's regulations at 8 CFR 214.2 to reflect the changes made by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Public Law 102-232, December 12, 1991. The changes are discussed below. For the sake of convenience, the entire O and P regulations have been reprinted here.

Discussion of Comments on the Interim Regulations

The Service received 192 comments on the interim rule. Many of these commenters addressed more than one issue in their comments. The vast majority of the comments dealt with the O and P classifications. Only eight comments were received which addressed the H-1B classification. A number of commenters offered suggestions and improvements for the interim rule, many of which have been adopted in the final rule. The following discussion groups the comments into the various nonimmigrant classifications, discu sses the issues raised, provides the Service's position on the issues and, finally, indicates the revisions adopted in the final rule, based on the public's concerns. A general provision section is also included in which topics relating to both the O and P classifications, such as filing by agents and the consultation process, are discussed. The final rule also contains a number of changes which were implemented as a result of the monitoring of the actual operation of the interim rule.

H-1B Nonimmigrant Classification

Occupations Included in the H-1B Classification-Sec. 214.2(h)(1)(i)    

Seven commenters suggested that the Service include in the definition of the H-1B classification a number of support occupations normally encountered in the field of fashion modeling, such as hair stylists and make-up artists. Nothing in the statute or the legislative history indicates that Congress intended to include support occupations in the H-1B classification. The statute clearly limits the H-1B classification to aliens employed in a specialty occupation and to fashion models of distinguished merit and ability. Therefore, the Service cannot adopt this suggestion.

It should be noted that aliens employed in such fields as hair-styling may be able to obtain nonimmigrant classification under the O-1 classification or under the H-2B classification if eligible. The admission of these aliens into the United States is not precluded by the fact that they are not statutorily eligible for H-1B classification.

Evidentiary Criteria for Petitions for Fashion Models of Distinguished Merit and Ability- Sec. 214.2(h)(4)(vii)

The other comment received concerning the H-1B classification stated that the evidentiary criteria relating to the beneficiary's requirements for classification as an H-1B fashion model did not accurately reflect the nature of the industry. For example, the commenter stated that, generally speaking, awards are not available to fashion models and should not be listed as a criterion for establishing that a fashion model is of distinguished merit and ability. The final rule adopts the evidentiary criteria su ggested by the commenter. The Service believes that the regulation now lists evidentiary criteria which are more appropriate to the industry.

O Nonimmigrant Category

Prior to discussing the comments relating to the O nonimmigrant classification, it must be noted that the final rule contains a number of adjustments in terminology. In the interim rule, the Service labeled the list of the types of evidence that a petitioner could submit to establish an alien's eligibility as "standards" for the classification. For example, in the interim rule, the heading of Sec. 214.2(o)(3)(iv) was entitled "Standards for an O-1 alien of extraordinary ability in the fields of science.. .". The paragraph then proceeded to list the types of evidence that a petitioner could submit to establish the alien was of O-1 caliber. In reality, the standard for an alien of extraordinary ability in the O-1 classification is that the alien is one of the small percentage of individuals who have risen to the very top of their field of endeavor. The evidence submitted by the petitioner is not the standard for the classification, but merely the mechanism to establish whether the standard has been met. The paragraph headings for Sec. 214.2(o)(3)(iii), (iv), and (v) have been amended to reflect this change in terminology.

The Service has also received comments that the interim rule is complicated as it appears to require a petitioner to submit two separate sets of evidence to establish the beneficiary's eligibility. In fact, the interim rule at Sec. 214.2(o)(3) sets forth the evidentiary requirements for the classification while Sec. 214.2(o)(6) describes the type of evidence which may be submitted to meet this requirement. However, in order to remove any ambiguity in this matter, the Service has amended the interim rule b y changing the heading of the paragraph (o)(6), which provides a description of the evidence to be submitted, and moving it to paragraph (o)(2)(iii) in the final rule. As a result of this change, it should be clear to the public that the purpose of this particular paragraph is merely to provide a description of the types of evidence which may be submitted by a petitioner. For further clarification, the final rule also contains a new paragraph at (o)(2)(ii) which contains a general summary of the evidence required to be submitted for an O petition.

The five fields of activity included in the statute (sciences, arts, education, business, and athletics) are sufficiently broad so that aliens employed in most occupations within these fields may be classified as O-1 nonimmigrant aliens provided, of course, that such classification is not precluded by statute or regulation and the alien is eligible for such classification.

Form of Documentation-Sec. 214.2(o)(2)(iii)(A).

Twenty-five commenters suggested that the Service's requirement that the person in charge of an institution, firm, establishment, or organization where the beneficiary's work was performed should not be solely responsible for executing the documents submitted in support of an O petition. The commenters suggested that a responsible person, not necessarily the person in charge, should be permitted to endorse the supporting documentation. The Service agrees with this suggestion and the final rule will be ame nded to require that documentary evidence need only be endorsed by a responsible person at the organization, firm, institution, or establishment where the work was performed, and not necessarily the person in charge.

Services for More than One Employer- Sec. 214.2(o)(2)(iv)(B).

One individual suggested that the final rule contain a provision allowing an O-1 alien to work concurrently for two employers without the employers filing separate petitions for the alien. The statute requires that, prior to according an alien O-1 status, the Attorney General must determine if the alien will continue to be employed in the area of the extraordinary ability or achievement. This determination cannot be made unless each employer files a petition for the alien. Further, although approval of a n O nonimmigrant petition does not involve a test of the U.S. labor market, the statute clearly requires that labor organizations, peer groups, and, in some cases, management organizations, must be consulted prior to according an alien O classification. In order to ensure that these criteria are met, separate petitions must be filed by each employer. Therefore, this comment will not be adopted.

Change of Employer- Sec. 214.2(o)(2)(iv)(C).

This paragraph has been amended in the final rule to reflect that when an O alien changes employers, the new employer must also seek an extension of the alien's stay. This alteration makes the O regulation consistent with the P regulation.

The language contained in the interim rule has also been amended to reflect that in those situations where the petition was filed by an agent and the alien changes employers, the agent must file an amended petition reflecting the change. The agent must also file for an extension of stay. The language contained in the interim rule did not accommodate this situation.

Amended Petitions- Sec. 214.2(o)(2)(iv)(D).

The language contained in the interim rule has been amended to reflect that a petitioner may add additional performances, events, or competitions to a valid O petition without filing an amended petition. This amendment was adopted by the Service as a result of comments received from the public as a result of the operation of the interim rule.

Definitions of terms found in the O-1 Nonimmigrant Category -Sec. 214.2(o)(3)(ii).

One commenter suggested that chefs should be included in the definition of the term "arts". Since a chef requires skill and creative imagination in order to "create" dishes and meals, the Service will include culinary arts within the definition of the term "arts". Of course, a chef would have to meet the regulatory standards required for classification as an O-1 artist.

Fourteen commenters also recommended that the term arts should include not only principal creators and performers, but other essential persons such as, but not limited to, directors, set designers, and choreographers. Since there is legislative support for this suggestion at 137 Cong. Rec. S18247 (daily ed. Nov. 26, 1991), this suggestion will be adopted.

One commenter suggested that the definition of arts should specifically include those aliens involved in live musical performances and their embodiment in sound recordings. The suggestion will not be adopted since these entertainers are already included in the definition of arts as they are, obviously, performing artists. It should be noted that it is not feasible to list every occupation in the regulation which can be considered to fall within the very broad field of arts.

Forty-four commenters suggested that the final rule include a definition of the term "event" to provide guidance to petitioners as to what activities are covered by the petition. In response to these comments, the final rule now contains a definition of the term "event". The definition recognizes that short vacations often occur during an event or performance which are incidental and/or related to the event or performance. The Service will not include the term "layoffs" in the definition of the term "eve nt", as the term commonly implies a negative and adverse action of unemployment. However, the definition will include language which allows for short stopovers between performances, such as in a tour. The Service believes that business events are adequately considered in the definition as business projects.

In response to a comment that the definition of the term extraordinary ability found in the interim rule was confusing, the definition has been amended in the final rule. For clarification, the final rule contains a definition of the term "extraordinary ability in the field of arts" and a separate definition of "extraordinary ability in the field of science, education, business, or athletics". For further clarification, the definition of the term "distinction" found in the interim rule has been included i n the definition of the term "extraordinary ability in the field of arts".

Two commenters recommend that the definition of peer group be altered to be less restrictive. The definition of peer group contained in the interim rule required that the members of the peer group be of "similar standing with the alien". Due to the high standards for the O-1 category in the fields of science, business, education, and athletics, it would be very difficult for prospective petitioners to find a group of individuals who were of similar standing with the beneficiary. Therefore, the definition of the term "peer group" has been modified in the final rule to remove this phrase.

One commenter, citing section 214(c)(6)(A)(i) of the Act, suggested that the definition of peer group be amended to indicate that a peer group could be a person or persons of the alien's choosing with expertise in the alien's particular field of endeavor. The Service has interpreted this particular section of law as allowing petitioners to submit a consultation in the case of an O-1 alien of extraordinary ability from either a peer group or a person or persons of its choosing. It is the Service's opinion that the term "person or persons of its choosing" was placed into the statute as an alternate source for a consultation and was not included as a definition of the term "peer group." Therefore, this comment will not be adopted.

Criteria for Establishing That a Position Requires the Services of an Alien of Extraordinary Ability or Achievement-Sec. 214.2(o)(3)(iii).

Two commenters recommended that the criteria for establishing a position requiring the services of an O-1 nonimmigrant alien should be amended since such criteria relate more to the petitioner than the actual position itself. In addition, one commenter suggested that there is no statutory support for the requirement that an O-1 alien be coming to perform services requiring an alien of O-1 caliber. The commenter noted that the statute merely requires that the O-1 alien be coming to perform services in the area of extraordinary ability.

After careful consideration, the Service agrees that there is no statutory support for the requirement that an O-1 alien must be coming to the U.S. to perform services requiring an alien of O-1 caliber. As a result, this paragraph has been deleted from the final rule. The alien, however, must be coming to perform services in the area of extraordinary ability as is required in the statutory definition of the classification.

Evidentiary Criteria for an O-1 Alien of Extraordinary Ability in the Fields of Science, Education, Business, or Athletics- Sec. 214.2(o)(3)(iv).

Eighteen comments were received relating to the criteria for an alien of extraordinary ability in the fields of science, education, business, or athletics. One commenter suggested that a businessman could not obtain classification as an O-1 alien since the criteria for the classification did not readily accommodate individuals in the field of business. It is the opinion of the Service that the evidentiary criteria for aliens of extraordinary ability do accommodate business people. An O-1 business person, i.e. , a business person who is at the very peak of his or her occupation, would, in all likelihood, be able to meet many of the evidentiary criteria listed in the regulation. Also the "catch-all" category at Sec. 214.2(o)(3)(iv)(C) allows for the submission of additional evidence not covered by the other criteria.

One commenter suggested that all hockey players in the National Hockey League should be eligible for O-1 classification. The Service cannot adopt this suggestion since extraordinary ability can only be accorded to the small percentage of individuals who have risen to the very top of their field of endeavor.

Fourteen commenters suggested that comparable evidence should be defined as "evidence appropriate to, and recognized within the field." The Service will not incorporate this suggestion into the final rule since it is not necessary. Clearly, any evidence submitted in support of an O-1 petition must relate to the alien's field of endeavor and be recognized in that field of endeavor or else it is of no value in the adjudication of the petition.

Four commenters also suggested that the comparable evidence criteria be eliminated as it compromises the other more specific criteria. The Service will not adopt this suggestion as the comparable evidence criteria merely allows petitioners in cases where the beneficiary is employed in an unusual or obscure field of endeavor to submit alternate, but equivalent, forms of evidence.

One commenter suggested that the O-1 criteria for university and college professors are excessive and should be altered. The Service will not adopt this suggestion since the O-1 category is reserved for those aliens who have reached the very top of their occupation or profession. The standard for the classification as created by Congress was designed to be extremely high and limited to only the best individuals employed in a particular field.

Evidentiary Criteria for an O-1 Alien of Extraordinary Ability in the Field of Arts- Sec. 214.2(o)(3)(v).

Under the statute, the standard for an O-1 artist is significantly lower than the standard for an alien of extraordinary ability in the fields of science, education, business, or athletics. Petitioners are required to establish only that the O-1 artist is prominent in his or her field of endeavor. Eligibility for O-1 classification in the field of arts is not limited to those aliens who have reached the very top of their professions as is required in the fields of science, business, education, or athletic s. In order to establish an alien as an O-1 alien of extraordinary ability in the field of arts, the petitioner must submit evidence that the beneficiary has received, or been nominated for, a major international or national award or submit evidence relating to three of six other criteria. The regulation also allows the submission of comparable evidence if the six listed criteria cannot be met.

A number of comments were received addressing the evidentiary criteria for the classification. Many of the comments suggested that the criteria be altered in some fashion. One commenter suggested that the criteria for this category were duplicative and that by meeting one criterion, the alien would actually meet two. Thirteen commenters suggested that the interim regulation should be altered to provide that second or third place finishes in a prestigious competition qualify an alien as an O-1. Thirteen commenters also suggested that the receipt of lesser awards than those specified in the regulation should be a separate criterion in the regulation. One commenter stated that additional awards should be listed in the regulation for aliens employed in the recording industry.

The Service will not adopt any of the foregoing suggestions. It is recognized that a number of the criteria listed in the regulation are similar to one another, but it must also be noted that no two are identical. Further, the Service's decision in a particular case is also dependent upon the quality of the evidence submitted by the petitioner, not just the quantity of evidence. The mere fact that the petitioner has submitted evidence relating to three of the criteria as required by the regulation does n ot necessarily establish that the alien is eligible for O-1 classification.

The interim regulation also provides that O-1 eligibility can be established if the alien has been nominated for a significant national or international award. Thus, second and third place finishes are already contemplated in the regulation.

It must be noted that the awards listed in the regulation are provided merely as examples and are not all-inclusive. Other major national or international awards will also be considered by the Service in determining the alien's eligibility. The listing of every major national award in every field of endeavor is, therefore, not necessary. Finally, pursuant to Sec. 214.2(o)(3)(v)(C), it is understood that, in certain cases, a petitioner may submit evidence that the beneficiary has been the recipient of les s significant awards in support of the petition.

Two commenters also recommended that the interim rule be amended to reflect that the salary of the proposed position should be high in relation to others in the field. Since, in some cases, the proffered salary may be indicative of the alien's level of recognition, the final rule has been amended to include language indicating that the alien's salary may be used as a criteria in establishing the alien's eligibility for O-1 classification. However, the Service recognizes that situations may arise where a n O-1 alien is coming legitimately to the U.S. to perform services in a position where there is little or no salary. For example, an O-1 entertainer may be invited to come to the U.S. to perform at a charity event and receive no remuneration. The alien is still of O-1 caliber even though the proffered salary may be minimal. As a result, the alien's salary may be considered by the Service in determining the alien's eligibility but a high salary is not a mandatory requirement for establishing eligibility.

One commenter stated that the term "critical role" should be removed from the eligibility criteria for an O-1 alien since it was not contained in the pre-IMMACT H-1B regulations. The commenter noted that Congress desired that the criteria for aliens of extraordinary ability in the arts mirror the prior H-1B criteria for prominent aliens. The Service will not adopt this suggestion as the inclusion of this term does not alter or lessen the criteria for the classification in any meaningful fashion. The term merely expands and explains the criteria.

Evidentiary Criteria for Aliens of Extraordinary Achievement in the Field of Motion Picture and Television- Sec. 214.2(o)(3)(vi).

Three commenters suggested that the standard for aliens of extraordinary achievement in the motion picture and television industry should be higher than the standard for aliens of extraordinary ability in the arts. In the interim rule, the Service linked these two categories together. The Service now agrees that the standards for these two classifications are different and will incorporate this suggestion into the final rule.

One of the significant changes contained in Pub. L. 102-232 was that Congress provided a statutory definition of extraordinary ability in the arts. Congress has defined this term as "distinction", which has been interpreted by the Service to mean "prominence", See 137 Cong. Rec. S18247 (daily ed., Nov. 16, 1991). This statutory change effectively lowered the standard for aliens in the field of arts originally contained in IMMACT and differentiated the standard for artists of extraordinary ability from other aliens of extraordinary ability. However, Pub. L. 102-232 did not lower the standard for aliens of extraordinary achievement in the motion picture and television industry but left the standard intact. Thus, the Service can no longer link these two categories o f aliens together since the categories now have different standards.

As a result, the final rule has been modified to reflect that an alien of extraordinary achievement in the field of motion pictures or television must meet a higher standard than that for an alien of extraordinary ability in the field of arts, namely, the prominence standard. The Service has defined the standard for aliens of extraordinary achievement in the field of motion pictures and television in the final rule as a very high level of accomplishment evidenced by a degree of skill and recognition signif icantly above that ordinarily encountered. The alien must be outstanding or notable in the field of endeavor. An alien who is merely well-known, i.e. , a prominent alien, would not qualify for this category.

It should be noted that the evidentiary criteria for aliens of extraordinary ability in the arts and for aliens of extraordinary achievement in the motion picture or television industry are the same. However, this does not mean the standards for the classification are the same. Again, the standard for the classification relates to the definition of the classification, not to the evidence submitted by the petitioner. Thus, while the Service will examine the same evidence for these two classifications, it will weigh the evidence differently, and require aliens of extraordinary achievement in the motion picture and television industry to meet a higher standard than aliens of extraordinary ability in the field of arts.

The effect of these regulatory and statutory changes is that there are now three distinct categories of aliens in the O-1 classification. One classification relates to aliens of extraordinary ability in the fields of science, education, business, or athletics. The standard for this classification is that the alien is one of the small percentage of persons who have risen to the top of their profession. The second classification relates to O-1 aliens of extraordinary ability in the field of arts. The stan dard for this classification is that the alien is prominent. The third category within the classification relates to aliens who are of extraordinary achievement in the field of motion pictures or television. The standard for this classification is that the alien is outstanding in his or her field, but not necessarily at the very top of the profession.

In order to effectuate this change, the final rule now contains a new paragraph at (o)(3)(vi) containing the criteria for O-1 aliens of extraordinary achievement in the field of motion pictures and television.

One commenter suggested that the standards for the categories within the O-1 classification do not reflect that the aliens must have sustained national or international acclaim. The Service believes that the descriptions of the classifications at Sec. 214.2(o)(1)(ii) accurately reflect Congressional intent since the regulatory language is taken directly from the statute.