\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1994 \ FEDERAL REGISTER FINAL REGULATIONS - 1994 \ Temporary Alien Workers Seeking H-1B, O, and P Classifications Under the Immigration and Nationality Act [59 FR 41818 - 41842][FR 46-94] \ Petition for an O-2 Accompanying Alien- Sec. 214.2(o)(4).
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Petition for an O-2 Accompanying Alien- Sec. 214.2(o)(4).
One commenter suggested that the reference to U.S. workers be deleted from the regulation as it was not contained in the statute. The statute requires that O-2 aliens have critical skills and experience with the O-1 alien which are not of a general nature and which are not possessed by other individuals. On the other hand, the interim rule merely requires that the petitioner establish that the alien have critical skills which are not possessed by a U.S. worker. The regulatory standard is, in effect, a le
sser standard than that required by the statute. As a practical matter, the U.S. worker standard can be more easily established by a prospective petitioner than a worldwide worker standard because of the availability of the consultation process. Therefore, the Service will not adopt this suggestion since it would further complicate the petitioning process by requiring petitioners desiring to import essential support personnel to establish that the alien's skills and knowledge are not possessed by anyone e
lse in the world. Clearly, Congressional intent in this area was to protect U.S. workers, not workers in other countries.
One commenter recommended that the Service should require that an accompanying alien have at least three years of experience with the O-1 alien before accompanying alien status can be granted. The Service will not adopt this suggestion as it does not provide sufficient flexibility to accommodate aliens employed in the entertainment and sports fields.
Consultation Process for O Nonimmigrants- Sec. 214.2(o)(5).
A large number of comments were received from the public concerning the consultation process. This portion of the preamble discusses only those comments which relate to the consultation process for O petitions. The comments which relate to both the O and P classifications are discussed in the "general" discussion section of the preamble below.
Although a number of commenters have suggested otherwise, the Service strongly believes its interpretation of the consultation requirement as contained in IMMACT is correct and proper. The Service recognizes that the process is sometimes cumbersome and time-consuming. Further, the Service is aware that in some places,
, Puerto Rico, an appropriate consulting entity may not exist. However, the consultation process is a requirement of the Act which provides the Service with valuable information in the adjudication of certain petitions. The Service has used the consultation process in order to obtain information from expert sources,
, management organizations and labor organizations, concerning the nature of the proffered position as well as the credentials of the beneficiary. The final rule incorporates many of the suggestions provided by commenters. The suggestions which were adopted should make the process easier for the public to use.
Seventy-four commenters recommended that, in the case of an alien of extraordinary ability, an advisory opinion could be submitted in support of the petition by an expert in addition to a peer group or labor organization. Since this is provided for in the Act at section 214(c)(6)(A)(i), this suggestion will be adopted in the final rule. Section 214.2(o)(5)(ii) has been amended to reflect this change.
One commenter recommended that the waiver provision contained in paragraph (o)(5)(ii)(B) should be applied to all O-1 nonimmigrant aliens if they seek readmission to the United States to work in the same occupation. The waiver provision as described in the interim rule relates only to aliens of extraordinary ability in the field of arts. The Service will not adopt this suggestion since the consultation process is a statutory requirement and the waiver provision, found at section 214(c)(3) of the Act, is s
pecifically limited to aliens of extraordinary ability in the field of arts. The Service does not have the authority to waive the consultation unless specifically provided for in the Act.
One commenter stated that the final rule should contain language providing that it is the petitioner's responsibility when requesting this waiver to provide a copy of the prior consultation and to specifically request the waiver in writing. The Service will adopt this suggestion and the final rule will be amended accordingly.
Ninety-four commenters stated that, in order to comply with section 214(c)(6)(B) of the Act, labor organizations should be able to respond to the Service's request for a written advisory opinion merely with a letter of no objection as opposed to a full discussion of the beneficiary's credentials and the proffered position. The commenters noted that in many cases involving petitions filed in the entertainment field, time is a crucial factor and a more detailed consultation could delay the adjudication of th
e petition. The Service agrees with this suggestion. This suggestion will be adopted and the final rule will be amended accordingly. Labor organizations may respond to the Service's request for a consultation with a simple letter of no objection if the labor organization has no objection to the approval of the petition. However, if the labor organization objects to the approval of the petition, the consultation must contain a detailed response to the Service's request for consultation.
It should be noted that petitions for O-1 artists which are filed without a consultation from a labor organization will require additional time to adjudicate since the Service will be required to contact the national office of the appropriate labor organization. For this reason, petitioners in O-1 cases should consider obtaining a consultation from a labor organization prior to filing the petition although not required to do so by statute.
In response to comments from field offices, paragraph (o)(5)(ii)(E), which relates to the process for obtaining expedited consultations, has been altered to remove the reference to peer groups. Pursuant to section 214(c)(6)(B) of the Act, since the Service is required to consult with a labor organization in those instances where a petition is accompanied only by a peer group consultation, the Service would not, as a matter of general practice, consult with a peer group prior to adjudicating a petition. Se
ction 214(c)(6)(B) of the Act was drafted by Congress to ensure that organized labor could be provided with an opportunity to comment on a prospective employment situation. Congress did not intend to provide peer groups with the same opportunity since the provision is not contained in statute. However, Service officers have the discretion to contact a peer group prior to adjudicating a petition if it is deemed appropriate.
One commenter recommended that separate consultations should not be required for O-2 nonimmigrant aliens. This comment will not be adopted since the Act requires that all petitions for O-2 nonimmigrant aliens be accompanied by a consultation from a labor organization or a management organization with expertise in the specific field involved.
Admission Periods for O Nonimmigrants- Sec. 214.2(o)(10).
One commenter suggested that there should be no regulatory limit on the length of admission for an O nonimmigrant alien. The suggestion cannot be adopted since the period of stay for an O nonimmigrant is limited by the Act to the period of time required by the alien to complete the event or events described on the petition. An O-1 classification may not be granted to an alien to enter the United States to free lance in the open market. An O-1 alien must be coming to the United States for specific events.
The three-year period of time listed in the final rule relates only to the alien's initial period of admission. The alien's total period of stay in the United States will be limited to the duration of the event. There is no maximum time limit on the O-1's total stay in the United States.
The P Nonimmigrant Classification
Prior to discussing the comments for the P nonimmigrant classification, it must be noted that this portion of the final rule contains the same changes in terminology relating to standards and evidentiary criteria as in the O classification. The final rule no longer refers to the evidentiary criteria for a particular classification as the "standards" for the classification. The standard for a classification is not the evidentiary criteria for the classification, but the definition of the classification it
self. The appropriate paragraph headings have been amended to reflect this change in terminology.
The final rule also contains a new paragraph Sec. 214.2(p)(2)(ii) which summarizes the evidence required to be submitted with a P petition and a new paragraph (p)(2)(iii) which describes the evidence which can be submitted with a P petition. The addition of these two paragraphs should clarify the documentary requirements for the nonimmigrant classification.
Filing of Petitions- Sec. 214.2(p)(2)(i)
In order to accommodate the situation where a P-1 entertainment group will be performing in the United States without receiving a salary, (
, performing in a benefit show) language has been added to the final rule indicating that a U.S. sponsor may also file a P-1 petition.
Since the publication of the interim rule, a number of individuals have inquired as to whether an individual entertainer could be petitioned for by a U.S.-based entertainment group under the P-1 classification. Also, one commenter suggested that the Service should not apply the 75 percent rule to U.S.-based entertainment groups. The Service has decided to address these issues in a separate rule.
A number of commenters stated that it was not clear whether an agent could file a P petition. The final rule contains language clarifying that P petitions may be filed by established U.S. agents.
Change of Employer- Sec.214.2(p)(2)(iv)(C)
In order to accommodate those situations where an agent files a petition and where the alien change employers, this paragraph has been amended to reflect that the agent should file an amended petition with information relating to the new employer. The agent must also request an extension of the alien's stay.
Amended of Petitions- 214.2(p)(2)(iv)(D)
The language contained in the interim rule has been amended to reflect that a petitioner may add similar performances during the validity of a P petition without the necessity of filing an amended petition. This amendment was adopted by the Service as a result of public comments during the operation of the interim rule.
Multiple Beneficiaries- Sec. 214.2(p)(2)(iv)(F).
The interim rule contained the requirement that essential support personnel could not be included on the petition for the principal alien or aliens but, instead, should be filed on a separate petition. Sixty-nine commenters suggested that this procedure resulted in an unnecessary expense to petitioners who were required to submit two petitions for almost every entertainment act. These commenters suggested that in order to avoid this unnecessary expense, essential support personnel should be included in th
e petition for the principal alien. The Service is aware of the expense involved in filing these petitions but cannot adopt the suggestion. The Service is required by the Act to furnish an annual report to Congress addressing the occupations contained in P petitions. The only way that the Service can properly track these occupations is to require the submission of separate petitions for essential support personnel.
Definitions Found in the P Classification- Sec. 214.2(p)(3).
Event, Competition, or Performance
One commenter suggested that the definition of the term "event" as contained in the interim final rule be amended to include the duration of the alien's contract. The Service agrees with this suggestion and will adopt it in the final rule.
Another commenter suggested that the definition of event should be expanded for hockey players and other athletes. The Service believes the definition contained in the interim final rule is broad enough and, as written, contemplates an entire season or the length of the alien's contract, if longer than the season.
Forty-four commenters suggested that the final rule contain a definition of the term "labor organization". The Service does not believe that such a definition is necessary because the term "labor organization" as used in the interim rule is the common, every-day usage of the term. Where the Service uses the common, every-day definition of a term, it need not be incorporated into the regulation.
Essential Support Personnel
A number of comments were also received from the public concerning the Service's definition of essential support personnel. As written in the interim rule, essential support personnel are highly skilled, essential workers who are determined to be an integral part of a P nonimmigrant's performance which cannot be performed by a U.S. worker. The rule requires that the support alien have prior experience with the principal alien.
Eighteen commenters suggested that the Service delete the requirement that essential support personnel have experience with the principal alien and three commenters stated that the requirements for the support aliens were too high. Forty-one commenters also suggested that the reference to U.S. workers should be removed.
The Service will not modify the definition of essential support personnel. The requirement that the essential support personnel have experience with the principal alien is based on the language found in the Act describing the P-1 classification. The Act requires that P-1 classification may be granted to an alien entertainer who performs with or is an integral and essential part of the performance of a group. It is the Service's view that in order to become an integral and essential part of the performanc
e, the essential support personnel must have had experience with the group.
In order to clarify the final rule regarding essential support personnel, two new paragraphs have been added at (p)(6)(iii) and at (p)(7)(iii) which discuss petitions for essential support personnel for the P-2 and P-3 categories.
Evidentiary Criteria for an Internationally Recognized Athlete or Athletic Team- Sec. 214.2(p)(4)(ii)(B).
One commenter suggested that a major league contract should be sufficient evidence to establish P-1 classification. The Service agrees with this suggestion to a certain extent and has made arrangements with the National Hockey League as well as Major League Baseball to establish guidelines for these sports separate from, but consistent with, the regulatory criteria. These guidelines will be published in the Service's operations instructions.
Since the implementation of the interim rule, the Service has received a number of questions from the public as to how the evidentiary criteria for the classification relate to amateur athletes. The Service has crafted the rules relating to P-1 athletes with the professional athlete in mind. Amateur athletes are properly classifiable under the B-1 nonimmigrant classification and, as a result, the criteria contained in the regulation may not accommodate them.
In order to accommodate those sports where the athlete is not required to sign a written contract, the final rule contains language indicating that a written contract need not be submitted if such contracts are not normally used in the particular sport.
Evidentiary Criteria for Members of Internationally Recognized Entertainment Groups- Sec. 214.2(p)(4)(iii)(B).
In order to establish eligibility for P-1 status, the petitioner must demonstrate that the group is internationally recognized. The interim final rule provides that a petitioner can establish the group's eligibility by submission of evidence that the aliens have received or been nominated for a significant international award or prize. In lieu of the above, petitioners may also submit three forms of evidence from a list of six items to establish eligibility.
Forty-one commenters suggested that the final rule contain a "catch-all" category as contained in the O-1 regulation to accommodate those instances where the evidence required by the regulation cannot be obtained for the particular industry in which the alien is employed. The suggestion will not be adopted since this portion of the P-1 classification relates only to the field of entertainment. The six evidentiary criteria listed in the regulation should accommodate all aliens employed in the field of ente
rtainment. The "catch-all" category was placed in the O-1 regulation since the regulation addressed the field of arts, a much broader field than the field of entertainment.
One commenter suggested that an alien's nomination for a significant award should not be a criterion for establishing P-1 classification and that only the actual winner of the award should be able to use this criterion. Prior to the publication of the interim rule, the Service entered into lengthy meetings with organized labor and with management organizations in the entertainment field to develop the criteria for this classification consistent, of course, with Congressional intent. The criteria listed in
the regulation are the end result of those meetings and are agreeable to both sides. It is the opinion of the Service that the criteria contained in the interim rule are fair and equitable and should not be altered.
One commenter suggested that an entertainment group should be required to establish that it has been internationally recognized for a period of 1 year. The suggestion cannot be adopted as it has no support in the Act. The Act merely requires that it be established that 75 percent of the group has been performing regularly for a period of 1 year and that the group is internationally recognized for a sustained and substantial period of time. There is no statutory requirement that the group be international
ly recognized for a period of 1 year.
One commenter stated that newer entertainment groups would have difficulty meeting the evidentiary criteria for the P-1 classification. This statement is accurate since the clear language of the Act indicates that a P-1 entertainment group must have been internationally recognized for a sustained and substantial period of time. Congress intended that only those entertainment groups which had achieved a certain level of fame would be eligible for the classification. Entertainment groups which do not have
the required international recognition may be petitioned for under the H-2B classification, which does not have a qualitative standard.
The interim final rule requires that 75 percent of the members of an entertainment group must be employed on a regular basis by the group. One commenter suggested that this language should be changed to reflect that only intermittent employment with the group should be required for P-1 classification. The Service cannot adopt this suggestion since the Act requires that the group be together for a sustained and substantial period of time. Sustained employment with the group cannot be interpreted as inte
rmittent. While a group is not required to perform on a continual basis, it must be established that when the group does perform, 75 percent of the members of the group are regular performers with the group.
Thirteen commenters object to the requirement that petitioners are required to list every member of the group on the petition when it is filed. This comment will not be adopted since the Service must have all the group members listed on the petition in order to verify that 75 percent of the group has been performing together on a regular basis. Additionally, consular posts use the list of names provided on the petition to issue visas and the Service uses the list to issue entry documents to the aliens at
The interim rule contains the language that the group, under the name listed on the petition, must have been performing regularly for a period of 1 year. Twenty-two commenters suggested that a petitioner should be required only to establish that the group is substantially the same, even though the group name may be different. In response to this suggestion, the Service will remove this requirement from the regulation. A group may be accorded P-1 status based on its recognition under a prior name provided
the group is currently of P-1 caliber and 75 percent of the members of the group have been performing regularly for a period of 1 year.
One commenter 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 P-1 group's level of recognition, the final rule has been amended to include language indicating that the group's salary may be used as a criteria in establishing the eligibility for P-1 classification. However, the Service recognizes that situations may arise where a P-1 al
ien is coming legitimately to the U.S. to perform services in a position where there is little or no salary. For example, a P-1 entertainment group may be invited to come to the U.S. to perform at a charity event and receive no remuneration. The group is still of P-1 caliber even though the salary may be minimal. As a result, while salary may be considered by the Service in determining the alien's eligibility, a high salary is not a mandatory regulatory requirement for establishing eligibility.
One commenter suggested that the criteria for the P classification were duplicative and do not reflect international recognition. As discussed under O nonimmigrant classification, some of the criteria are similar but no two are identical. It is the opinion of the Service that if the criteria as contained in the interim rule are met, the alien or aliens have international recognition. Therefore, this suggestion will not be adopted.
Alien Circus Personnel- Sec. 214.2(p)(4)(iii)(C).
P-1 circus personnel are exempt from the international recognition requirement and the 1-year group membership requirement. Sixteen commenters stated that the language contained in the interim rule did not clearly state this and suggested that the actual statutory language be used in its place. In order to avoid any possible confusion concerning this issue, the Service will adopt this suggestion and amend the final rule to indicate that circus personnel are exempt from both the 1-year group membership req
uirement and the international recognition requirement. It must be established by the petitioner that the circus for which the aliens are coming to perform is recognized nationally. It must also be remembered that O-1 circus performers must meet the standard for that classification, not the P-1 classification.
The P-2 Nonimmigrant Classification- Sec. 214.2(p)(5).
The P-2 classification relates to aliens who are coming to the United States under a reciprocal exchange program agreement between an organization in the United States and an organization or organizations in a foreign country. Such a reciprocal exchange program agreement can be between management groups. Although Sec. 214.2(p)(5) was promulgated as a final rule on December 2, 1991, 56 Fed. Reg. 61135, 28 comments were received relating to the P-2 classification. Twenty-six commenters suggested that the
Service remove the requirement from the final rule that the P-2 alien be experienced since the requirement was not contained in the Act. The Service agrees with this suggestion and will remove the requirement from the final rule. Petitioners in P-2 cases are not required to establish that the aliens involved in the reciprocal exchange are experienced.
One commenter suggested that petitions for P-2 nonimmigrant aliens should be approved for a period of 3 months since a significant number of P-2 nonimmigrant aliens would be entering the United States for numerous short-term engagements. The commenter noted that petitioners for P-2 nonimmigrant aliens would be required to file numerous, repeat petitions to accommodate all the various events in which the same alien would be engaged over a short period of time. The commenter suggested that, in order to faci
litate the use of the P-2 classification, the Service should grant P-2 petitions for a period of 3 months regardless of the nature of the supporting event.
The Service cannot ignore the statutory requirement that a P-2 alien must be coming to the United States to perform in a specific event or events. However, in order to accommodate the situation described by the commenter, the Service will consider the period of the reciprocal exchange agreement to be the event and not the underlying performances. As a result, P-2 petitions may be initially approved for the duration of the reciprocal exchange agreement, not to exceed 1 year. The definition of the term "ev
ent" has been altered to reflect this change.
One organization also suggested that the U.S. labor organization involved in the reciprocal exchange agreement be permitted to file the petition since P-2 aliens are normally working for more than one employer in the United States. In order to accommodate the special circumstances of the P-2 nonimmigrant classification, the Service will allow the U.S. labor organization which is party to the reciprocal exchange agreement to file the P-2 petitions using the same guidelines which relate to the filing of P pe
titions by established U.S. agents described in 8 CFR 214.2(p)(iv)(E).