[Federal Register: April 28, 2005 (Volume 70, Number 81)]
[Proposed Rules]
[Page 21983-21985]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap05-17]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 21983]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2295-03 and DHS-2004-0009]
RIN 1615-AB17
Petitioning Requirements for the O and P Nonimmigrant
Classifications
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Department of Homeland
Security (DHS), U.S. Citizenship and Immigration Services (USCIS)
regulations to enable petitioners to file O and P nonimmigrant
petitions up to one year prior to the petitioners' need for the alien's
services. By extending the filing time requirement for O and P
petitions, USCIS will be able to adjudicate petitions in a timely
fashion and ensure that, if approvable, such petitions will be approved
prior to the date of the need for the alien's services, which is often
dictated by a scheduled event, competition or performance.
DATES: Written comments must be submitted on or before June 27, 2005.
ADDRESSES: You may submit comments, identified by CIS No. 2295-03 or
DHS 2004-0009, by one of the following methods:
EPA Federal Partner EDOCKET Web Site: http://www.epa.gov/feddocket.
Follow instructions for submitting comments on the Web site.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: rfs.regs@dhs.gov. When submitting comments
electronically, please include CIS No. 2295-03 in the subject line of
the message.
Mail: The Director, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. To
ensure proper handling, please reference CIS No. 2295-03 on your
correspondence. This mailing address may also be used for paper, disk,
or CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., 2nd Floor, Washington, DC 20529. Contact telephone number (202)
272-8377.
Instructions: All submissions received must include the agency name
and docket number (if available) or Regulatory Information Number (RIN)
for this rulemaking. All comments received will be posted without
change to http://www.epa.gov/feddocket, including any personal
information provided. For detailed instructions on submitting comments
and additional information on the rulemaking process, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.
Docket: For access to the docket to read background
documents or comments received, go to http://www.epa.gov/feddocket You may also access the Federal eRulemaking Portal at http://www.regulations.gov.
Submitted comments may also be inspected at the
office of the Director, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. To
ensure proper handling, please reference CIS No. 2295-03 on your
correspondence.
FOR FURTHER INFORMATION CONTACT: Kevin J. Cummings, 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., 2nd Floor,
Washington, DC 20529, telephone (202) 305-3175.
SUPPLEMENTARY INFORMATION:
Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. USCIS also invites comments that relate to the economic,
environmental, or federalism affects that might result from this
proposed rule. Comments that will provide the most assistance to USCIS
in developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change. See ADDRESSES above for information on how to submit comments.
What Is an O and P Nonimmigrant Petition?
The O and P nonimmigrant classifications include individual aliens
with extraordinary ability in the arts, sciences, education, business
or athletics (including those in the motion picture and television
industry), as well as internationally recognized athletic team members,
entertainment groups, artists and other entertainers. Petitions for O
and P nonimmigrant classifications are filed on Form I-129, Petition
for Nonimmigrant Worker.
What Are the Current Timeframes for Filing O and P Nonimmigrant
Petitions?
8 CFR 214.2(o)(2)(i) currently states that an O nonimmigrant
petition may not be filed more than 6 months before the actual need for
the alien's services. A P nonimmigrant petition may not be filed more
than 6 months before the actual need for the alien's services under 8
CFR 214.2(p)(2)(i).
What Will Be the New Timeframes for Filing O and P Nonimmigrant
Petitions?
USCIS is amending its regulations to allow an O or P petitioner to
file a Form I-129 up to one year, but not earlier than 6 months, before
the date of the petitioner's need for the alien's services. The rule
also provides that USCIS may grant exceptions to the filing timeframes
in emergency situations at the discretion of the USCIS Service Center
Director, and in special filing situations as determined by USCIS
Headquarters.
Why Is USCIS Extending the Filing Times for O and P Nonimmigrant
Petitions?
Current filing times combined with processing times often result in
an O or P petition being adjudicated at the same time or later than the
date of the petitioner's stated need for the alien. This situation
creates a hardship for petitioners who are seeking to employ the alien
based on a scheduled performance, competition, or event and who may
have booked a venue and sold advance tickets. If the petition is not
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approved by the time of the petitioner's stated need, 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 and various associated costs. By
extending the filing time requirement for O and P petitions, USCIS will
be able to adjudicate petitions for O and P nonimmigrants in a timely
fashion and ensure that, if approvable, such petitions will be approved
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,
further supporting the amendment to the regulations that this rule
makes.
Why Is USCIS Requiring That O and P Nonimmigrant Petitions Be Filed No
Earlier Than 6 Months of the Petitioner's Need for the Alien's
Services?
USCIS has determined that a large percentage of O and P petitioners
seeking alien performers or athletes often schedule and plan for events
more than a year in advance. Thus, filing the Form I-129 within 6
months of the petitioner's stated need should not be a hardship on
those U.S. employers seeking O and P nonimmigrants. In addition, filing
within a 6 month timeframe will ensure that USCIS is able to timely
adjudicate and, if eligible, approve Form I-129 petitions prior to the
scheduled event or performance. USCIS recognizes that there may be
certain instances, and even emergency circumstances, where the U.S.
employer is unable to file the Form I-129 six months in advance of his
or her actual need or of the scheduled event or performance. In those
instances, USCIS will review the specifics of the U.S. employer's case
and may, in its discretion, permit the U.S. employer to file the O or P
petition within a shorter timeframe. USCIS intends to use its
discretion liberally in this regard. USCIS also reminds U.S. employers
seeking O and P nonimmigrants that premium processing is available for
these categories. See 8 CFR 103.2(f).
Will USCIS Extend the Filing Timeframes for Other Nonimmigrant
Classifications Associated With the Form I-129?
No. At this time, USCIS is satisfied that the petitions for the
other Form I-129 classifications are processed by the date of the
petitioner's stated need. Moreover, a large percentage of cases filed
under these other categories are for ongoing, long-term employment
rather than one-time performances or specific entertainment events or
series of events that are usually planned, booked, and funded well in
advance. In addition, the O and P nonimmigrant classifications do not
require a current test of the U.S. labor market or a certification from
the Department of Labor indicating that the hiring of a foreign laborer
will not result adversely affect the domestic U.S. workforce. Further,
USCIS is concerned that expanding the filing times for all Form I-129
petitioners would lead to an increase in cases where the need for the
alien has not fully materialized and may lead to an increase in
adjudications of petitions regarding speculative employment.
USCIS, however, specifically invites comments on whether it should
extend the filing timeframes for all Form I-129 petitioners. USCIS also
requests comments on whether such an extension may increase the
potential for fraud or abuse of the O and P classifications (as well as
other nonimmigrant categories covered by the Form I-129 petition) and
suggestions for addressing such fraud or abuse should it occur.
Regulatory Flexibility Act
DHS has reviewed this regulation in accordance with the Regulatory
Flexibility Act (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. As stated under the certification required by
Executive Order 12866, section 1(b)(6), DHS has determined that there
are no new costs to either the government or the public associated with
this rule. This 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 and P nonimmigrant classification.
This rule will 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 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.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement 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.
Executive Order 12866
This rule is considered by the Department of Homeland Security to
be a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review. Accordingly, this
regulation has been submitted to the Office of Management and Budget
(OMB) for review.
DHS has assessed both the costs and benefits of this rule as
required by Executive Order 12866, section 1(b)(6) 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. Further, DHS has determined that the
benefits of this rule justify any de minimus costs that may be incurred
by the government or public associated with the change in filing time
frames. The rule will 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 will not lose booking costs or have to issue
refunds if they receive a decision on the petition well in advance of
the event, competition, performance,
[[Page 21985]]
etc. Finally, this rule will ensure that employers have sufficient time
to seek a new beneficiary or beneficiaries in the event a petition is
denied.
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.
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.
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 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, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 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 adding a
new sentence immediately thereafter; and by
b. Revising the tenth sentence in paragraph (p)(2)(i) and adding a
new sentence immediately after.
The revisions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(o) * * *
(2) * * *
(i) General. * * * The petition may be filed up to one year, but
not earlier than 6 months, before the actual need for the alien's
services. Exceptions may be granted in emergency situations at the
discretion of the USCIS Service Center Director, and in special filing
situations as determined by USCIS Headquarters. * * *
* * * * *
(p) * * *
(2) * * *
(i) General. * * * The petition may be filed up to one year, but
not earlier than 6 months before the actual need for the alien's
services. Exceptions may be granted in emergency situations at the
discretion of the USCIS Service Center Director, and in special filing
situations as determined by USCIS Headquarters. * * *
* * * * *
Dated: April 22, 2005.
Michael Chertoff,
Secretary.
[FR Doc. 05-8471 Filed 4-27-05; 8:45 am]
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