[Federal Register Volume 59, Number 25 (Monday, February 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2643]
[[Page Unknown]]
[Federal Register: February 7, 1994]
VOL. 59, NO. 25
Monday, February 7, 1994
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 214 and 274a
[INS No. 1328-93]
RIN 1115-AB52
Nonimmigrant Classes; NATO-1, 2, 3, 4, 5, 6, and 7; Control of
Employment of Aliens
agency: Immigration and Naturalization Service, Justice.
action: Proposed rule.
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summary: This document proposes to amend the regulations of the
Immigration and Naturalization Service (``Service'') relating to
employment authorization for certain dependents of principal aliens
classified as NATO-1, 2, 3, 4, 5, 6, and 7 nonimmigrants. This action
is being taken to expand and secure employment opportunities on the
basis of reciprocity for dependents of United States military personnel
and certain Department of Defense civilian personnel stationed in NATO
member countries. Because of the diplomatic and international affairs
considerations involved in NATO matters, this rule parallels, to the
extent possible, the regulations governing employment authorization for
certain dependents of foreign government diplomats, officials, and
employees assigned to official duty in the United States and classified
as A-1 and A-2 nonimmigrants and their A-3 servants.
dates: Written comments must be received on or before March 9, 1994.
addresses: Please submit written comments in triplicate to the Records
System Division, Director, Policy Directives and Instructions Branch,
Immigration and Naturalization Service, room 5307, 425 I Street, NW.,
Washington, DC 20536. To ensure proper handling, please reference INS
Number 1328-93 on your correspondence.
for further information contact: Jack Tabaka, Senior Immigration
Examiner, Immigration and Naturalization Service, 425 I Street, NW.,
room 7122, Washington, DC 20536, Telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Interagency Collaboration in Drafting This Rule
The Department of State, the Department of Defense, and the Office
of NATO's Supreme Allied Commander, Atlantic (SACLANT) have
collaborated closely with the Service in developing this rule, which
balances diplomatic and international affairs considerations,
administrative requirements, and proper enforcement concerns.
Scope
The rule applies to certain dependents of NATO military personnel,
who typically serve a three-year tour of duty with SACLANT, the major
NATO command headquarters in Norfolk, VA. It also applies to certain
dependents of NATO civilian employees and officials, who typically work
at SACLANT for extended periods. Additionally, the rule applies to
certain dependents of the small number of NATO personnel who may be
stationed in other locations in the United States and to the servants
of NATO military and civilian personnel.
Purpose
This rule is being published in order to expand and secure
employment opportunities on the basis of reciprocity for dependents of
United States military personnel and certain Department of Defense
civilian personnel stationed in NATO member countries. All parties
which collaborated in the drafting of this rule agree that expanding
employment opportunities in the United States for NATO-1 through NATO-6
dependents will further this goal.
Backgound
Under current regulations, a NATO dependent can apply for
employment authorization in the United States only if he or she is
covered under the terms of a bilateral agreement. A bilateral agreement
is a written, signed agreement between the United States and a foreign
country. It provides for employment authorization for certain
dependents of United States government personnel assigned to official
duty in the foreign country whose government entered into the
agreement. In turn, it provides for employment authorization for
certain dependents of personnel of the foreign government who are
assigned to official duty in the United States.
This rule expands the eligibility to apply for employment
authorization to certain NATO-1, 2, 3, 4, 5, and 6 dependents covered
by the terms of de facto arrangements and to certain dependents of
SACLANT employees. A de facto arrangement is in effect when it is
determined that a foreign country allows appropriate employment ``on
the local economy'' for certain dependents of United States government
personnel assigned to official duty in that foreign country. Based on
that determination, certain dependents of foreign government personnel
assigned to official duty in the United States may apply for employment
authorization.
Reciprocity has become an issue in the context of renegotiation of
the rights and privileges of United States dependents within the NATO
area. NATO member host countries are increasingly unwilling to continue
dependent employment privileges absent similar treatment for their
dependents in the United States. This rule is intended to provide for
such treatment to the extent that de facto privileges are continued or
established for dependents of United States military personnel and
certain Department of Defense civilian personnel in NATO member states.
Given the high cost of living in some countries where U.S.
personnel are stationed, and the limited number of jobs available on
United States bases abroad, the freedom to work ``on the economy''
abroad can be extremely important to United States families.
Further, one of the real stresses on military family life is the
constant disruption of the spouse's career that is occasioned by
household moves every few years. When the spouse is barred from
employment overseas the stress on the family can be considerable.
Rule Parallels Regulations Governing Diplomatic Dependents
Because of the diplomatic and international affairs considerations
involved in NATO matters, this rule parallels, to the extent possible,
the regulations governing employment authorization for dependents of
foreign government diplomats, officials, and employees assigned to
official duty in the United States and classified as A-1 and A-2
nonimmigrants.
Changes
In addition to expanding the eligibility to apply for employment
authorization to NATO-1, 2, 3, 4, 5, and 6 dependents covered by the
terms of de facto arrangements, this rule incorporates the following
changes:
8 CFR 214.2(s)(1) defines the various NATO nonimmigrant
classifications. Additionally, since this rule parallels the
regulations governing ``A'' nonimmigrants, and since A-3 and NATO-7
classifications are comparable, this rule makes the NATO-7 periods of
admission and extension of stay parallel the periods for A-3
nonimmigrants.
8 CFR 214.2(s)(2) defines the term dependent of a NATO-1 through
NATO-6 for purposes of employment in the United States. This definition
parallels the definition of dependent used in the regulation governing
employment authorization of dependents of foreign government diplomats,
officials, and employees assigned to official duty in the United States
and classified as A-1 and A-2 nonimmigrants.
8 CFR 214.2(s)(3) defines dependent employment requirements based
on formal bilateral employment agreements and informal de facto
reciprocal arrangements.
8 CFR 214.2(s)(4) specifies that the applicability of the bilateral
agreement or the de facto arrangement is based on the NATO member state
which employs the principal alien. Additionally, under a de facto
arrangement, the principal must be a national of the employing NATO
member state. Dependents of SACLANT employees are also eligible to
apply for employment authorization under terms of applicable bilateral
agreements or de facto arrangements.
8 CFR 214.2(s)(5) details dependent employment application
procedures.
8 CFR 214.2(s)(6) extends the period for dependent employment
authorization up to three years.
8 CFR 214.2(s)(7) requires that NATO dependents must pay taxes and
Social Security on their earnings, and clarifies that they have no
criminal, civil, or administrative immunities regarding matters arising
from their employment.
8 CFR 214.2(s)(8) clarifies that there is no appeal from a denial
of employment authorization.
8 CFR 214.2(s)(9) discusses unauthorized employment and resultant
penalties.
8 CFR 214.2(s)(10) discusses NATO-7 dependents. Since this rule
parallels the regulations governing ``A'' nonimmigrants which preclude
employment by A-3 dependents, and since A-3 and NATO-7 classifications
are comparable, this rule eliminates future grants of employment
authorization for NATA-7 dependents, but allows those NATA-7 dependents
currently with employment authorization to continue until the
expiration of such authorization.
Finally, this rule amends 8 CFR 274a.12(c)(7) by eliminating future
grants of employment authorization for NATA-7 dependents.
In accordance with 5 U.S.C. 605(b), the Commissioner of the
Immigration and Naturalization Service certifies that this rule will
not have a significant adverse economic impact on a substantial number
of small entities. This rule is not a major rule within the meaning of
section 1(b) of E.O. 12291, nor does this rule have Federalism
implications warranting the preparation of a Federalism Assessment in
accordance with E.O. 12612.
The information collection requirement contained in this regulation
has been submitted to the Office of Budget and Management (OMB) under
the provisions of the Paperwork Reduction Act, for review and
clearance.
List of Subjects
8 CFR Part 214
Administrative practice and procedures, Aliens, Authority
delegation (government agencies), Employment.
8 CFR Part 274a
Administrative practice and procedures, Aliens, Employment.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as 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, 1221, 1281,
1282; 8 CFR part 2.
2. In Sec. 214.2, paragraph (s) is revised to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(s) NATO nonimmigrant aliens--(1) General.--(1) Background.
Nonimmigrant aliens classified as NATO-1 through NATO-5 are officials
of NATO, the members of the armed forces of a country signatory to the
Agreement Between the Parties to the North Atlantic Treaty Regarding
the Status of Their Forces signed in London, June 1951 (NATO Status of
Forces Agreement), who are entering in accordance with that agreement
or the Protocol on the Status of International Military Headquarters
set up pursuant to the North Atlantic Treaty (Paris Protocol), and
members of their immediate families. Aliens classified as NATO-6 are
civilian employees either of a force entering in accordance with the
NATO Status of Forces Agreement or of an allied headquarters (Supreme
Allied Commander, Atlantic, SACLANT) set up pursuant to the Paris
Protocol and members of their immediate families. Servants or
attendants of aliens classified as NATO-1 through NATO-6 are classified
as NATO-7, as are members of the immediate families of such servants or
attendants.
(ii) Admission and extension of stay. NATO-1 through NATO-5 aliens
are normally exempt from inspection under 8 CFR 235.1(c). NATO-6 aliens
may be authorized admission for duration of status. Aliens classified
as NATO-7 may be admitted for not more than three years and may be
granted extensions of temporary stay in increments of not more than two
years. In addition, an application for extension of temporary stay for
a NATO-7 alien must be accompanied by a statement signed by the
employing official stating that he or she intends to continue to employ
the NATO-7 applicant and describing the work the applicant will
perform.
(2) Definition of a dependent of a NATO-1, 2, 3, 4, 5, or 6. For
purposes of employment in the United States, the term dependent of a
NATO-1, 2, 3, 4, 5, or 6 principal alien, as used in this paragraph,
means any of the following immediate members of the family habitually
residing in the same household as the NATO-1, 2, 3, 4, 5, or 6
principal alien assigned to official duty in the United States:
(i) Spouse;
(ii) Unmarried children under the age of 21;
(iii) Unmarried sons or daughters under the age of 23 who are in
full-time attendance as students at post-secondary educational
institutions;
(iv) Unmarried sons or daughters under the age of 25 who are in
full-time attendance as students at post-secondary educational
institutions if a formal bilateral employment agreement permitting
their employment in the United States was signed prior to November 21,
1988, and such bilateral employment agreement does not specify age 23
as the maximum age for employment of such sons and daughters. The
Department of State advises that bilateral agreements with Canada,
Denmark, Norway, and France fit this classification with respect to
dependents of members of the force and members of the civilian
component thereof;
(v) Unmarried sons or daughters who are physically or mentally
disabled to the extent that they cannot adequately care for themselves
or cannot establish, maintain, or re-establish their own households.
The Service may require medical certification(s) as it deems necessary
to document such mental or physical disability.
(3) Dependent employment requirements based on formal bilateral
employment agreements and informal de facto reciprocal arrangements--
(i) Formal bilateral employment agreements. The Department of State's
Family Liaison Office shall maintain a listing of NATO member states
which have entered into formal bilateral employment agreements that
include NATO personnel. A dependent of a NATO-1, 2, 3, 4, 5, or 6
principal alien assigned to official duty in the United States may
accept, or continue in, unrestricted employment based on such formal
bilateral agreements upon favorable recommendation by SACLANT or the
Department of Defense, pursuant to paragraph (s)(5)(i)(H) of this
section, and issuance of employment authorization documentation by the
Service in accordance with 8 CFR part 274a. The application procedures
are set forth in paragraph (s)(5) of this section.
(ii) Informal de facto reciprocal arrangements. For purposes of
this section, an informal de facto reciprocal arrangement exists when
the Department of Defense [the Office of the Secretary of Defense,
Foreign Military Rights Affairs (OSD/FMRA)] certifies, with the
Department of State concurrence, that a NATO member state allows
appropriate employment in the local economy for dependents of members
of the force and members of the civilian component of the United States
assigned to duty in the NATO member state. OSD/FMRA and the Department
of State's Family Liaison Office shall maintain a listing of countries
with which such reciprocity exists. Dependents of a NATO-1, 2, 3, 4, 5,
or 6 principal alien assigned to official duty in the United States may
be authorized to accept, or continue in, employment based upon informal
de facto arrangements upon favorable recommendation by SACLANT or the
Department of Defense, pursuant to paragraph (s)(5)(i)(H) of this
section, and issuance of employment authorization by the Service in
accordance with 8 CFR part 274a. Additionally, the application
procedures set forth in paragraph (s)(5) of this section must be
complied with, and the following conditions must be met:
(A) Both the principal alien and the dependent requesting
employment are maintaining NATO-1, 2, 3, 4, 5, or 6 status, as
appropriate;
(B) The principal alien's total length of assignment in the United
States is expected to last more than six months;
(C) Employment of a similar nature for dependents of members of the
force and members of the civilian component of the United States
assigned to official duty in the NATO member state employing the
principal alien is not prohibited by that NATO member state's
government;
(D) The proposed employment is not in an occupation listed in the
Department of Labor's Schedule B (20 CFR part 656), or otherwise
determined by the Department of Labor to be one for which there is an
oversupply of qualified United States workers in the area of proposed
employment. This Schedule B restriction does not apply to a dependent
son or daughter who is a full-time student if the employment is part-
time, consisting of not more than 20 hours per week, and/or if it is
temporary employment of not more than 12 weeks during school holiday
periods; and
(E) The proposed employment is not contrary to the interest of the
United States. Employment contrary to the interest of the United States
includes, but is not limited to, the employment of NATO-1, 2, 3, 4, 5,
or 6 dependents: who have criminal records; who have violated United
States immigration laws or regulations, or visa laws or regulations;
who have worked illegally in the United States; and/or who cannot
establish that they have paid taxes and social security on income from
current or previous United States employment.
(iii) The Department of State shall inform the Service (U.S.
Immigration and Naturalization Service; Headquarters, Adjudications;
Attention: Chief, Nonimmigrant Branch; 425 I Street NW., Washington, DC
20536) of any additions or changes to the formal bilateral employment
agreements and informal de facto reciprocal arrangements.
(4) Applicability of a formal bilateral agreement or an informal de
facto arrangement for NATO-1, 2, 3, 4, 5, or 6 dependents. The
applicability of a formal bilateral agreement shall be based on the
NATO member state which employs the principal alien and not on the
nationality of the principal alien or dependent. The applicability of
an informal de facto arrangement shall be based on the NATO member
state which employs the principal alien, and the principal alien also
must be a national of the NATO member state which employs him or her in
the United States. A dependent of a SACLANT employee who is a national
of a NATO member state, which has a bilateral dependent employment
agreement with the United States which includes NATO members, shall be
eligible to apply for employment authorization under terms of that
agreement. A dependent of a SACLANT employee who is a national of a
NATO member state, which has a de facto dependent employment
arrangement with the United States which includes NATO members, shall
be eligible to apply for employment authorization under terms of that
de facto arrangement.
(5) Application procedures. The following procedures are required
for dependent employment applications under bilateral agreements and de
facto arrangements:
(i) The dependent shall submit to the Service a completed Form I-
765 with the fee as required in Sec. 103.7(b)(1) of this chapter and a
letter from SACLANT or the Department of Defense, certified pursuant to
paragraph (s)(5)(i)(H) of this section. The letter shall include the
following information:
(A) The name of the applicant and his or her date of birth and
nationality;
(B) The applicant's immigration status;
(C) The name of the principal alien and his or her nationality;
(D) The principal alien's immigration status and his or her
relationship to the applicant;
(E) The date the principal alien's tour of duty in the United
States is expected to be completed;
(F) Whether the employment request is based on a bilateral
agreement or a de facto arrangement and the country with which such
agreement or arrangement has been made;
(G) Whether the applicant is a full-time, post-secondary student;
(H) A certification by the preparer of the letter which states: ``I
certify that the above information is true and correct to the best of
my knowledge and according to the official records of this command, and
I favorably recommend that the application be approved.'' The
certification shall also include the name, rank and title of the
certifying officer; his or her commercial phone number and command; and
the date of certification. A letter for an applicant whose principal
alien is assigned to NATO in the Norfolk, Virginia area shall be signed
and certified by an authorized legal officer attached to the Supreme
Allied Commander Atlantic (SACLANT). SACLANT shall keep copies of each
application and letter for three years from the date of the letter's
issuance. A letter for applicants whose NATO principal alien is
assigned elsewhere in the United States shall be signed and certified
by the legal officer at the base or command to which the NATO principal
alien is assigned. The legal officer shall send a copy of each
application and letter to the Office of the Secretary of Defense,
Foreign Military Rights Affairs [(OSD/FMRA), 4D830 Pentagon,
Washington, DC 20201] which shall keep copies of each application and
letter for three years from the date of the letter's issuance; and,
(I) Certain bilateral dependent employment agreements contain a
numerical limitation on the number of dependents authorized to work. If
this is the case, the certifying officer must consult with the
Department of State's Office of Protocol to confirm that this numerical
limitation has not been reached prior to transmitting any such
dependent employment application to the Service. The countries with
such limitations are indicated on the bilateral/de facto dependent
employment listing issued by the Department of State's Family Liaison
Office.
(ii) A dependent applying under the terms of a de facto arrangement
must also attach a statement from the prospective employer which
includes the dependent's name, a description of the position offered
and the duties to be performed, the salary offered, and verification
that the dependent possesses the qualifications for the position.
(iii) A dependent applying under paragraph (s)(2) (iii) or (iv) of
this section must also submit a certified statement from the post-
secondary educational institution confirming that he or she is pursuing
studies on a full-time basis.
(iv) A dependent applying under paragraph (s)(2)(v) of this section
must also submit medical certification regarding his or her condition.
The certification should identify the dependent and the certifying
physician and give the physician's phone number; identify the
condition, describe the symptoms and provide a prognosis; and certify
that the dependent is unable to maintain a home of his or her own.
(v) The Service may require additional supporting documentation,
but only after consultation with SACLANT, the Department of Defense,
and the Department of State.
(6) Period of time for which employment may be authorized. If
approved, an application to accept or continue employment under this
paragraph shall be granted in increments of not more than three years
each.
(7) Income tax, Social Security liability; non-enjoyment of
immunity. Dependents who are granted employment authorization under
this paragraph are responsible for payment of federal, state, and local
income taxes, employment and related taxes and Social Security
contributions on any remuneration received. Such dependents do not
enjoy any criminal, civil, or administrative immunity with respect to
matters arising out of their employment
(8) No appeal. There shall be no appeal from a denial of permission
to accept or continue employment under this paragraph.
(9) Unauthorized employment. An alien classified as a NATO-1
through NATO-7 who is not a principal alien and who engages in
employment outside the scope of, or in a manner contrary to, this
paragraph may be considered in violation of status pursuant to section
241(a)(1)(C)(i) of the Act. An alien who is classified under a NATO-1
through NATO-7 who is a principal alien and who engages in employment
outside the scope of his or her official position may be considered in
violation of status pursuant to section 241(a)(1)(C)(i) of the Act.
(10) Dependents or family members of principal aliens classified
NATO-7. A dependent or family member of a principal alien classified as
a NATO-7 may not be employed in the United States under this paragraph.
A dependent or family member of a principal alien classified as a NATO-
7 granted employment authorization under prior regulations may continue
in such employment until that authorization expires.
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
3. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
4. In Sec. 274a.12, paragraph (c)(7) is revised to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(c) * * *
(7) A dependent of an alien classified as NATO-1 through NATO-6
pursuant to Sec. 214.2 of this chapter;
* * * * *
Dated: February 1, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-2643 Filed 2-4-94; 8:45 am]
BILLING CODE 4410-10-M
