E7-7134. Petitioning Requirements for the O and P Nonimmigrant Classifications

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Final rule.

SUMMARY:

This final rule amends Department of Homeland Security regulations to permit petitioners to file O and P nonimmigrant petitions up to one year prior to the petitioner's need for the alien's services. This amendment will enable petitioners who are aware of their need for the services of an O or P nonimmigrant well in advance of a scheduled event, competition, or performance to file their petitions under normal processing procedures. This way, petitioners will be better assured that they will receive a decision on their petitions in a timeframe that will allow them to secure the services of the O or P nonimmigrant when such services are needed.

DATES:

This rule is effective May 16, 2007.

FOR FURTHER INFORMATION CONTACT:

Hiroko Witherow, Adjudications Officer, Business and Trade Services Branch/Program and Regulation Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Under the O nonimmigrant classification, a U.S. employer, U.S. agent, or a foreign employer through a U.S. agent, may petition for an alien who has extraordinary ability in the arts, the sciences, education, business or athletics that has been demonstrated by sustained national or international acclaim to come to the United States temporarily to continue work in the area of extraordinary ability. Immigration and Nationality Act (INA) sec. 101(a)(15)(O)(i), 8 U.S.C. 1101(a)(15)(O)(i); 8 CFR 214.2(o)(1) & (2). In addition, such employer or agent also may use the O nonimmigrant classification to petition for an alien who has a demonstrated record of extraordinary achievement in motion picture or television productions to come to the United States temporarily to continue work in the area of extraordinary achievement. Id. Under the P nonimmigrant classification, a U.S. employer, U.S. sponsoring organization, U.S. agent, or a foreign employer through a U.S. agent, may petition for an alien who is coming temporarily to the United States to perform at a specific athletic competition as an athlete at an internationally recognized level or performance, or to perform with an entertainment group that has been recognized internationally as being outstanding. INA sec. 101(a)(15)(P), 8 U.S.C. 1101(a)(15)(P); 8 CFR 214.2(p)(1) & (2). Such employer, agent, or sponsor also can use the P nonimmigrant classification to petition for an alien to come temporarily to the United States to perform as an artist or entertainer under a reciprocal exchange program between organizations in the United States and organizations in a foreign country. Id. Finally, such employer, agent, or sponsor can use the P nonimmigrant classification to petition for an alien artist or entertainer to come temporarily to the United States to perform, teach, or coach under a commercial or noncommercial program that is culturally unique. Id. Both the O and P nonimmigrant classifications also apply to essential support personnel coming to the United States to assist an O or P nonimmigrant in his or her artistic or athletic performance. See INA sec. 101(a)(15)(O)(ii), 8 U.S.C. 1101(a)(15)(O)(ii); 8 CFR 214.2(p)(4)(iv), (5)(iii) & (6)(iii).

Petitions for the O and P nonimmigrant classifications are filed on Form I-129, “Petition for Nonimmigrant Worker.” 8 CFR 214.2(o)(2)(i); 8 CFR 214.2(p)(2)(i). The current regulations governing both O and P nonimmigrants preclude the petitioner from filing a Form I-129 more than six months before the actual need for the alien's services. 8 CFR 214.2(o)(2)(i); 8 CFR 214.2(p)(2)(i). The timing of filings by petitioners, combined with current U.S. Citizenship and Immigration Service (USCIS) processing times, often result in USCIS completing the adjudication of an O or P nonimmigrant petition at the same time or later than the date of the petitioner's need for the alien. This creates a hardship for petitioners who are seeking to employ the alien based on a scheduled performance, competition, or event, and who already may have booked a venue and sold advance tickets. If the petition is not approved by the time of the petitioner's need for the alien's services, the petitioner may be required to cancel a scheduled event or performance, may lose funds advanced for booking a venue, and may be liable for the costs associated with ticket refunds as well as other costs. If petitioners were able to file Forms I-129 for O or P nonimmigrant status more than six months in advance of the need for the alien's services, USCIS could ensure that adjudication is completed in advance of the date of the scheduled event, competition, or performance. Moreover, a large percentage of O and P petitioners seeking alien performers or athletes often schedule and must plan for competitions, events, or performances more than one year in advance.

For these reasons, USCIS issued a rule proposing to amend 8 CFR 214.2(o)(2)(i) and 8 CFR 214.2(p)(2)(i) governing the O and P nonimmigrant petition filing process. 70 FR 21983-01 (Apr. 28, 2005). The proposed rule extended the time period that petitioners may file Form I-129 to not more than one year before the date of the petitioner's need for the alien's services. 70 FR at 21985. The proposed rule also would have required petitioners to submit Forms I-129 no later than six months before the alien's services were required. The proposed rule also provided that USCIS would grant exceptions in emergency situations to allow a petitioner to submit a petition later than six months at the discretion of the USCIS Service Center Director, and in special filing situations as determined by USCIS Headquarters. Id.

USCIS specifically invited comments on whether it should extend the one-year maximum/six-month minimum filing timeframes to all nonimmigrants for whom Forms I-129 are filed. 70 FR at 21984. USCIS also requested comments on whether the extension of the filing time to one year would increase the potential for fraud or abuse of the O and P classifications and other nonimmigrant categories covered by Form I-129. USCIS solicited suggestions for addressing such fraud or abuse should it occur.

The comment period for the proposed rule ended June 27, 2005. USCIS received a total of 112 comments. Based upon these comments, this final rule adopts the proposed rule amending 8 CFR 214.2(o)(2)(i) and 214.2(p)(2)(i), but without the six-month filing minimum and possibility for granting exceptions. The following is a discussion of the comments received for the proposed rule.

II. Discussion of Comments

Of the 112 comments received, 110 comments supported the proposal to extend the allowable petition filing time from the current six months to one year in advance of the petitioning employer's need for the services of the O or P nonimmigrant. However, these commenters also expressed their strong objection to the proposed requirement that petitions for O and P nonimmigrant status must be filed with USCIS no later than six months in advance of the employment need. Of the remaining two comments, one comment simply suggested a semantics change to the regulatory text. The other comment did not specifically address the provisions of the proposed rule and therefore will not be addressed.

A total of fifty-three comments were submitted by performing arts organizations, such as theatre companies, symphony and orchestra companies, opera companies, dance companies, ballet companies, circuses, and dance centers. These comments stated that the filing period should simply be extended to one year in advance of the employment need, and not impose a six-month minimum filing period. The comments noted that the proposed requirement that the petition be filed at least six months before the petitioning employer's need for the services of the O or P nonimmigrant would cause significant scheduling problems. Performing arts organizations emphasized that USCIS must reduce the regular processing times, provide updated and accurate forms and instructions, and implement uniform policies and training at its service centers.

USCIS received seventeen comments from firms and agencies that are involved in the representation, publicity, and management of various organizations involved in the performing arts. These firms and agencies noted that there are numerous situations where the event is planned less than six months prior to the performance. They emphasized that the requirement that petitioners file petitions for O and P nonimmigrant status at least six months in advance of the employment need has no real value.

In addition, these firms and agencies responded negatively to the proposed discretionary authority of USCIS to grant exceptions to the timeframes in emergency and special filing situations. They stated that through such a provision, USCIS would become the sole arbiter of the urgency of an employer's employment needs. USCIS would decide whether to grant an exception on a case-by-case basis, leading to an inconsistent application of the use of discretion.

Educational institutions submitted a total of fourteen comments. These comments stated simply that USCIS should extend the filing period to one year in advance of the employment need, and that USCIS should not limit the filing period to six-month filing period between six months and one year in advance of the employment need. These educational institutions advised that generally academic appointments are not finalized more than six months prior to the employment start date, as offers are typically made in late spring for academic appointments that begin on July 1.

USCIS received nine comments from national and regional associations affiliated with various performing arts organizations, including the Motion Picture Association of America. Commenters supported extending the allowable petition-filing period to any time up to one year in advance of the employment need. However, they also stated that the proposed requirement to file such petitions at least six months in advance would cause severe hardship to the performing arts industry because employment agreements are rarely in place more than six months before production begins.

Eight comments submitted by immigration attorneys also objected to the proposed six-month advance filing requirement for petitions. The commenters stated that most employers of O and P nonimmigrants do not have six months lead time when filing petitions. Therefore, according to them, implementation of this rule as proposed would have a damaging effect on the U.S. economy by hobbling the arts, sports, film, and advertising industries.

USCIS received one comment from an organization that specializes in the movement of international personnel across national borders. This comment echoed the concerns of others by stating that the requirement to file the petition at least six months in advance of the employment need does not reflect the practical realities facing the vast majority of petitioners in the fields of science, business, athletics, and entertainment. The comment also opposed allowing USCIS to grant exceptions to the six-month advance filing requirement by stating that such authority would be impractical and insufficient to meet legitimate demands. Like the overwhelming majority of comments, however, this comment supported the proposal to extend the allowable filing period to a maximum of one year in advance of the employment need for O and P petitions. The commenter agreed with USCIS that it should not extend the filing timeline for petitions in the remaining nonimmigrant visa classifications, because the nature of O and P employment is different from other nonimmigrant visa classifications. This commenter stated that extending the filing timeline for other nonimmigrant categories using Form I-129 could lead to fraud and abuse, as well as an increase in case filings where the need for the alien's services has not fully materialized, particularly in the case of H-1B nonimmigrants who are subject to an annual numerical cap on the number of aliens who may be granted H-1B nonimmigrant status.^[1] INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A).

The sports industry submitted three comments. USCIS received one comment each from Major League Baseball, the Portland Trail Blazers, and Nike, Inc. Both Nike, Inc. and the Portland Trail Blazers expressed support for the proposed extension of the allowable filing period for O and P petitions to a maximum of one year from the current six months. The comment from Major League Baseball did not support or oppose the proposed extension to a one-year filing period. All three comments from the sports industry opposed proposed requirement to file O and P petitions at least six months prior to the date of employment.

The comment from Major League Baseball urged that the six-month advance filing requirement be eliminated in its entirety. It also pointed out that the needs of Major League Baseball Clubs would always call for exceptions under the provisions of the proposed rule. Major League Baseball Clubs need O and P nonimmigrant players and staff in the United States no later than when spring training begins in February each year. However, personnel decisions by Major League Clubs for an upcoming season begin at the conclusion of the prior season's World Series in October. These personnel decisions continue throughout the winter up until, and even during, spring training. Furthermore, players who are traded during the course of a season from one club to another would not be able to have an O or P petition timely filed on their behalf under the provisions of the proposed rule.

A comment from the Portland Trail Blazers franchise of the National Basketball Association (NBA) stated that the team frequently utilizes O and P nonimmigrant visas to facilitate the employment of foreign world-class basketball players. This comment emphasized that the proposed requirement that O and P petitions be filed at least six months in advance of the employment need is completely unworkable in the NBA. When an NBA basketball player is drafted by an NBA team, the team and the player's agent will negotiate a contract. Due to the detailed nature of these contracts and the high salaries involved, negotiations can be exceptionally complex and time-consuming. The comment stated that experience has shown that the Portland Trail Blazers has never had as much as six months lead time to file an O or P petition once contract negotiations are completed. The comment noted that a signed contract is a filing requirement for either the O or P classifications, and typically the agents and owners of NBA teams agree to the terms and sign the contracts only a few weeks prior to the start of training camp or the NBA season.

The comment further stated that the underlying statute created the O and P nonimmigrant classifications to assist employers seeking to temporarily hire extraordinary foreign workers. The provisions of the proposed rule, on the other hand, would restrict the availability of O and P nonimmigrant visas, contrary to the spirit of the law. The comment asserted that the provisions of the proposed rule would create a “de facto” six-month waiting period for employers who wish to employ extraordinary workers, such as internationally recognized basketball players. The comment stated that it is inappropriate for USCIS to create such a holding period that is not authorized by the statute.

Nike, Inc., a sports equipment and apparel company, commented that the proposed requirement to file O and P petitions at least six months in advance of the employer's need for the services of the alien is unwarranted, unworkable, and contrary to the best interests of the United States. This comment mirrors many of the other comments by stating that USCIS should not limit the access of United States employers to high-level O and P nonimmigrants because many companies cannot identify, in the reasonable course of business, the need for an O or P nonimmigrant worker with six months' anticipation.

USCIS received two comments from research organizations, one from Roche Palo Alto LLC, which is a major international pharmaceutical company, and the other from the California Institute of Technology. The commenters stated their opposition to the proposed requirement that employers file O and P petitions at least six months in advance of their need for the alien's services. Roche Palo Alto LLC further stated that the proposed requirement to file petitions for O and P nonimmigrants six months in advance of the petitioner's need could detrimentally impact the company's U.S. research programs and force the company to consider transferring some of its research programs and employees to locations outside the United States to ensure their success. The California Institute of Technology expressed approval of the proposed extension of the allowable filing period for O and P petitions to a maximum of one year. Roche Palo Alto LLC neither supported nor rejected this proposal.

Eight members of Congress submitted one comment. They noted that Congress had previously recommended to USCIS that petitioners for O and P nonimmigrants should be permitted to file up to one year in advance of their employment need for a foreign worker. They also voiced their appreciation for USCIS' attempt to act upon this recommendation. However, these members of Congress strongly urged USCIS to revise the rule to allow filing at any time up to one year in advance rather than requiring such petitions to be filed at least six months in advance. They reminded USCIS that the core problem that must be addressed is the delay in processing petitions. They also encouraged USCIS to continue its efforts to improve overall processing times and not let the one-year filing window become a justification to further delay turnaround time.

Finally, there were two comments submitted by private individuals, each of whom expressed support for extending the allowable petition-filing period to any time up to one year in advance of the employment need. However, these commenters also stated that the proposed requirement to file such petitions at least six months in advance would cause severe hardship to the performing arts industry because employment agreements are rarely in place more than six months before production begins.

III. USCIS Response to Comments

As nearly all comments supported the proposed rule's extension of the O and P nonimmigrant petition filing period, USCIS is adopting the proposed extension. Therefore, this final rule amends 8 CFR 214.2(o)(2)(i) and 214.2(p)(2)(i) to provide that petitioners of O and P nonimmigrants may file petitions at any time up to a maximum of one year in advance of their need for the alien's services.

USCIS is not adopting the proposed requirement that petitions must be filed no sooner than six months prior to the actual need for the alien's services. USCIS also is not adopting the concomitant provision which permits exceptions in emergent situations at the discretion of the USCIS Service Center District Director, or in special filing situations at the discretion of USCIS Headquarters.

As discussed above, USCIS received an overwhelming number of comments opposing the six-month filing minimum requirement. Many commenters noted that employers do not necessarily make offers of employment more than six months prior to the employment start date. They also may not be aware of the need for the services of an O or P nonimmigrant more than six months in advance of the event, competition, or performance. While the proposed rule provided for authority to grant exceptions to the six-month filing minimum requirement, some commenters expressed concern that such discretionary authority would not be applied consistently.

In determining not to include the six-month advance filing limitation in the final rule, USCIS considered the fact that USCIS has reduced the number of backlogged petitions and applications, including the O and P nonimmigrant petitions, thereby reducing overall processing times. See https://egov.immigration.gov/​cris/​jsps/​ptimes.jsp. Therefore, there is no longer a need for a six-month minimum period to ensure the timely processing of O and P nonimmigrant petitions. USCIS still encourages petitioners to file O and P nonimmigrant petitions more than six months prior to employment start date when possible. Petitioners should routinely check the USCIS Web site, http://www.uscis.gov,, to determine the current processing time for the petition they intend to file.

If the need for the services of an O or P nonimmigrant is scheduled to occur prior to current processing times, petitioners should consider filing their petition with a request for Premium Processing Service to guarantee that their petition will be acted upon within fifteen days of receipt.

The final rule does not apply the one-year filing timeframe of this final rule to other nonimmigrant classifications associated with Form I-129. USCIS is in agreement with the only commenter who commented on this point, which was raised in the Supplementary Information to the proposed rule. See 70 FR at 21984. The nature of O and P employment is different from other nonimmigrant visa classifications. Extending the filing period for other nonimmigrant classifications using Form I-129 may result in the increased potential for fraud and abuse as well as an increase in case filings where the need for the alien's services has not fully materialized.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

DHS has reviewed this regulation in accordance with 5 U.S.C. 605(b), and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule will help ensure that certain O and P nonimmigrant petitions are adjudicated well in advance of the date of the employers' stated need and thus prevent employers from having to cancel an event, competition or performance either because USCIS denied the petition at the last minute, or because the petition was not adjudicated in advance of the need. Employers will be less likely to lose booking costs or have to issue refunds if they receive a decision on the petition well in advance of the event, competition, or performance. USCIS did not receive any comments stating that this regulation would have a negative impact on small entities. In addition, the rule will help ensure that certain O and P nonimmigrant petitions are adjudicated well in advance of the date of the employers' stated need and thus prevent employers from having to cancel an event, competition or performance either because USCIS denied the petition at the last minute, or because the petition was not adjudicated in advance of the need.

B. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

D. Executive Order 12866

This final rule is not a “significant regulatory action” under Executive Order 12866, section 3(f). Accordingly, this regulation has not been submitted to the Office of Management and Budget for review.

USCIS has assessed both the costs and benefits of this rule and has determined that there are no new costs to either the government or the public associated with this rule. The rule does not alter any of the substantive petitioning requirements related to the Form I-129 or the evidentiary standards for establishing eligibility for the O or P nonimmigrant classification. The rule will help ensure that certain O and P nonimmigrant petitions are adjudicated well in advance of the date of the employers' stated need and thus prevent employers from having to cancel an event, competition or performance either because the petition was denied at the last minute, or because the petition was not adjudicated in advance of the need. Employers can be confident that they are unlikely to incur unnecessary booking costs or be required to issue refunds due to the cancellation of an event caused by a failure to receive a decision on the petition. Finally, this rule will help those employers who make offers of employment more than six months prior to the employment start date to have sufficient time to seek a new beneficiary or beneficiaries in the event a petition is denied.

E. Executive Order 13132

This rule will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

F. Executive Order 12988 Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 214

• Administrative practice and procedures
• Aliens
• Employment
• Foreign officials
• Health professions
• Reporting and recordkeeping requirements
• Students

Accordingly, part 214 of chapter I of title 8 of the Code of Federal Regulations is 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, 1102, 1103, 1182, 1184, 1185 (pursuant to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32; section 643, Pub. L. 104-208, 110 Stat. 3009-708; Section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 1931 note, respectively, 8 CFR part 2.

2. Section 214.2 is amended by:

a. Revising the second sentence in paragraph (o)(2)(i); and by

b. Revising the tenth sentence in paragraph (p)(2)(i).

The revisions read as follows:

§ 214.2

Special requirements for admission, extension, and maintenance of status.

* * * * *

(o) * * *

(2) * * *

(i) General. * * * The petition may not be filed more than one year before the actual need for the alien's services. * * *

* * * * *

(p) * * *

(2) * * *

(i) General. * * * The petition may not be filed more than one year before the actual need for the alien's services. * * *

* * * * *

Dated: March 27, 2007.

Michael Chertoff,

Secretary.

Footnotes

1.  An H-1B nonimmigrant is an alien who is coming to the United States to perform services in a specialty occupation; perform services of an exceptional nature requiring exceptional merit and ability relating to a cooperative research and development project or a coproduction project provided for under a Government-to-Government agreement administered by the Secretary of Defense; or perform services as a fashion model of distinguished merit and ability. 8 CFR 214.2(h)(1)(ii)(B).