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Immigration and Naturalization Service

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8 CFR Part 214

Temporary Alien Workers Seeking H-1B, O, and P Classifications Under the Immigration and Nationality Act; Final Rule

8 CFR Parts 214 and 274a

Foreign Employers Seeking to Employ Temporary Alien Workers in the H, O, and P Classifications; Proposed RuleDEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS NO. 1454-93]RIN 1115-AC72

Temporary Alien Workers Seeking H-1B, O, and P Classifications Under the Immigration and Nationality Act

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule implements certain provisions of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 as it relates to temporary alien workers seeking nonimmigrant classification and admission to the United States under sections 101(a)(15) (H), (O), and (P) of the Immigration and Nationality Act (Act). These amendments altered, among other things, the eligibility requirements for the H-1B, O, and P nonimmigrant classifications. This

rule contains the new procedures required for these classifications and conforms Service policy to the intent of Congress as it relates to these classifications. This rule sets forth the new filing procedures and eligibility standards, and clarifies for businesses and the general public the requirements for classification and admission.

EFFECTIVE DATE: August 15, 1994.

FOR FURTHER INFORMATION CONTACT:John W. Brown, Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone (202) 514-3946.

SUPPLEMENTARY INFORMATION: The Immigration Act of 1990 (IMMACT), Public Law 101-649, November 29, 1990, created, among other things, the O and P nonimmigrant classifications. These nonimmigrant classifications were to become effective on October 1, 1991, but the full implementation of these classifications was delayed until April 1, 1992 by the enactment of the Armed Forces Immigration Adjustment Act of 1991 (Pub. L. 102-110) which was signed into law on October 1, 1991. In response to concerns voiced by the public and other interested parties, the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-232, dated December 12, 1991, was enacted which altered the eligibility requirements for certain portions of the O and P nonimmigrant classifications as contained in IMMACT and, in addition, added fashion models of distinguished merit and ability to the H-1B classification. On April 9, 1992, at 57 FR 12179-12190, the Immigration and Naturalization Service (Service) published an interim rule with request for comments in order to implement the provisions of Pub. L. 102-232. Interested persons were invited to submit written comments on or before June 8, 1992. This final rule amends the Service's regulations at 8 CFR 214.2 to reflect the changes made by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Public Law 102-232, December 12, 1991. The changes are discussed below. For the sake of convenience, the entire O and P regulations have been reprinted here.

Discussion of Comments on the Interim Regulations

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

H-1B Nonimmigrant Classification

Occupations Included in the H-1B Classification--Sec. 214.2(h)(1)(i) Seven commenters suggested that the Service include in the definition of the H-1B classification a number of support occupations normally encountered in the field of fashion modeling, such as hair stylists and make-up artists. Nothing in the statute or the legislative history indicates that Congress intended to include support occupations in the H-1B classification. The statute clearly limits the H-1B classification to aliens employed in a specialty occupation and to fashion models of distinguished merit and ability. Therefore, the Service cannot adopt this suggestion. It should be noted that aliens employed in such fields as hair-styling may be able to obtain nonimmigrant classification under the O-1 classification or under the H-2B classification if eligible. The admission of these aliens into the United States is not precluded by the fact that they are not statutorily eligible for H-1B classification.Evidentiary Criteria for Petitions for Fashion Models of Distinguished Merit and Ability--Sec. 214.2(h)(4)(vii) The other comment received concerning the H-1B classification stated that the evidentiary criteria relating to the beneficiary's requirements for classification as an H-1B fashion model did not accurately reflect the nature of the industry. For example, the commenter stated that, generally speaking, awards are not available to fashion models and should not be listed as a criterion for establishing that a fashion model is of distinguished merit and ability. The final rule adopts the evidentiary criteria suggested by the commenter. The Service believes that the regulation now lists evidentiary criteria which are more appropriate to the industry.O Nonimmigrant Category Prior to discussing the comments relating to the O nomimmigrant classification, it must be noted that the final rule contains a number of adjustments in terminology. In the interim rule, the Service labeled the list of the types of evidence that a petitioner could submit to establish an alien's eligibility as ``standards'' for the classification. For example, in the interim rule, the heading of Sec. 214.2(o)(3)(iv) was entitled ``Standards for an O-1 alien of extraordinary ability in the fields of science * * *''. The paragraph then proceeded to list the types of evidence that a petitioner could submit to establish the alien was of O-1 caliber. In reality, the standard for an alien of extraordinary ability in the O-1 classification is that the alien is one of the small percentage of individuals who have risen to the very top of their field of endeavor. The evidence submitted by the petitioner is not the standard for the classification, but merely the mechanism to establish whether the standard has been met. The paragraph headings for Sec. 214.2(o)(3)(iii), (iv), and (v) have been amended to reflect this change in terminology. The Service has also received comments that the interim rule is complicated as it appears to require a petitioner to submit two separate sets of evidence to establish the beneficiary's eligibility. In fact, the interim rule at Sec. 214.2(o)(3) sets forth the evidentiary requirements for the classification while Sec. 214.2(o)(6) describes the type of evidence which may be submitted to meet this requirement. However, in order to remove any ambiguity in this matter, the Service has amended the interim rule by changing the heading of the paragraph (o)(6), which provides a description of the evidence to be

submitted, and moving it to paragraph (o)(2)(iii) in the final rule. As a result of this change, it should be clear to the public that the purpose of this particular paragraph is merely to provide a description of the types of evidence which may be submitted by a petitioner. For further clarification, the final rule also contains a new paragraph at (o)(2)(ii) which contains a general summary of the evidence required to be submitted for an O petition. The five fields of activity included in the statute (sciences, arts, education, business, and athletics) are sufficiently broad so that aliens employed in most occupations within these fields may be classified as O-1 nonimmigrant aliens provided, of course, that such classification is not precluded by statute or regulation and the alien is eligible for such classification.Form of Documentation--Sec. 214.2(o)(2)(iii)(A) Twenty-five commenters suggested that the Service's requirement that the person in charge of an institution, firm, establishment, or organization where the beneficiary's work was performed should not be solely responsible for executing the documents submitted in support of an O petition. The commenters suggested that a responsible person, not necessarily the person in charge, should be permitted to endorse the supporting documentation. The Service agrees with this suggestion and the final rule will be amended to require that documentary evidence need only be endorsed by a responsible person at the organization, firm, institution, or establishment where the work was performed, and not necessarily the person in charge.Services for More than One Employer--Sec. 214.2(o)(2)(iv)(B) One individual suggested that the final rule contain a provision allowing an O-1 alien to work concurrently for two employers without the employers filing separate petitions for the alien. The statute requires that, prior to according an alien O-1 status, the Attorney General must determine if the alien will continue to be employed in the area of the extraordinary ability or achievement. This determination cannot be made unless each employer files a petition for the alien. Further, although approval of an O nonimmigrant petition does not involve a test of the U.S. labor market, the statute clearly requires that labor organizations, peer groups, and, in some cases, management organizations, must be consulted prior to according an alien O classification. In order to ensure that these criteria are met, separate petitions must be field by each employer. Therefore, this comment will not be adopted.Change of Employer--Sec. 214.2(o)(2)(iv)(C) This paragraph has been amended in the final rule to reflect that when an O alien changes employers, the new employer must also seek an extension of the alien's stay. This alteration makes the O regulation consistent with the P regulation. The language contained in the interim rule has also been amended to reflect that in those situations where the petition was filed by an agent and the alien changes employers, the agent must file an amended petition reflecting the change. The agent must also file for an extension of stay. The language contained in the interim rule did not accommodate this situation.Amended Petitions--Sec. 214.2(o)(2)(iv)(D) The language contained in the interim rule has been amended to reflect that a petitioner may add additional performances, events, or competitions to a valid O petition without filing an amended petition. This amendment was adopted by the Service as a result of comments received from the public as a result of the operation of the interim

rule.Definitions of terms found in the O-1 Nonimmigrant Category--Sec. 214.2(o)(3)(ii) One commenter suggested that chefs should be included in the definition of the term ``arts''. Since a chef requires skill and creative imagination in order to ``create'' dishes and meals, the Service will include culinary arts within the definition of the term ``arts''. Of course, a chef would have to meet the regulatory standards required for classification as an O-1 artist. Fourteen commenters also recommended that the term arts should include not only principal creators and performers, but other essential persons such as, but not limited to, directors, set designers, and choreographers. Since there is legislative support for this suggestion at 137 Cong. Rec. S18247 (daily ed. Nov. 26, 1991), this suggestion will be adopted. One commenter suggested that the definition of arts should specifically include those aliens involved in live musical performances and their embodiment in sound recordings. The suggestion will not be adopted since these entertainers are already included in the definition of arts as they are, obviously, performing artists. It should be noted that it is not feasible to list every occupation in the regulation which can be considered to fall within the very broad field of arts. Forty-four commenters suggested that the final rule include a definition of the term ``event'' to provide guidance to petitioners as to what activities are covered by the petition. In response to these comments, the final rule now contains a definition of the term ``event''. The definition recognizes that short vacations often occur during an event or performance which are incidental and/or related to the event or performance. The Service will not include the term ``layoffs'' in the definition of the term ``event'', as the term commonly implies a negative and adverse action of unemployment. However, the definition will include language which allows for short stopovers between performances, such as in a tour. The Service believes that business events are adequately considered in the definition as business projects. In response to a comment that the definition of the term extraordinary ability found in the interim rule was confusing, the definition has been amended in the final rule. For clarification, the final rule contains a definition of the term ``extraordinary ability in the field of arts'' and a separate definition of ``extraordinary ability in the field of science, education, business, or athletics''. For further clarification, the definition of the term ``distinction'' found in the interim rule has been included in the definition of the term ``extraordinary ability in the field of arts''. Two commenters recommend that the definition of peer group be altered to be less restrictive. The definition of peer group contained in the interim rule required that the members of the peer group be of ``similar standing with the alien''. Due to the high standards for the O-1 category in the fields of science, business, education, and athletics, it would be very difficult for prospective petitioners to find a group of individuals who were of similar standing with the beneficiary. Therefore,the definition of the term ``peer group'' has been modified in the final rule to remove this phrase. One commenter, citing section 214(c)(6)(A)(i) of the act, suggested that the definition of peer group be amended to indicate that a peer group could be a person or persons of the alien's choosing with expertise in the alien's particular field of endeavor. The Service has

interpreted this particular section of law as allowing petitioners to submit a consultation in the case of an O-1 alien of extraordinary ability from either a peer group or a person or persons of its choosing. It is the Service's opinion that the term ``person or persons of its choosing'' was placed into the statute as an alternate source for a consultation and was not included as a definition of the term ``peer group.'' Therefore, this comment will not be adopted.Criteria for Establishing That a Position Requires the Services of an Alien of Extraordinary Ability or Achievement--Sec. 214.2(o)(3)(iii) Two commenters recommended that the criteria for establishing a position requiring the services of an O-1 nonimmigrant alien should be amended since such criteria relate more to the petitioner than the actual position itself. In addition, one commenter suggested that there is no statutory support for the requirement than an O-1 alien be coming to perform services requiring an alien of O-1 caliber. The commenter noted that the statute merely requires that the O-1 alien be coming to perform services in the area of extraordinary ability. After careful consideration, the Service agrees that there is no statutory support for the requirement that an O-1 alien must be coming to the U.S. to perform services requiring an alien of O-1 caliber. As a result, this paragraph has been deleted from the final rule. The alien, however, must be coming to perform services in the area of extraordinary ability as is required in the statutory definition of the classification.Evidentiary Criteria for an O-1 Alien of Extraordinary Ability in the Fields of Science, Education, Business, or Athletics--Sec. 214.2(o)(e)(iv) Eighteen comments were received relating to the criteria for an alien of extraordinary ability in the fields of science, education, business, or athletics. One commenter suggested that a businessman could not obtain classification as an O-1 alien since the criteria for the classification did not readily accommodate individuals in the field of business. It is the opinion of the Service that the evidentiary criteria for aliens of extraordinary ability do accommodate business people. An O-1 business person, i.e., a business person who is at the very peak of his or her occupation, would, in all likelihood, be able to meet many of the evidentiary criteria listed in the regulation. Also the ``catch-all'' category at Sec. 214.2(o)(3)(iv)(C) allows for the submission of additional evidence not covered by the other criteria. One commenter suggested that all hockey players in the National Hockey League should be eligible for O-1 classification. The Service cannot adopt this suggestion since extraordinary ability can only be accorded to the small percentage of individuals who have risen to the very top of their field of endeavor. Fourteen commenters suggested that comparable evidence should be defined as ``evidence appropriate to, and recognized within the field.'' The Service will not incorporate this suggestion into the final rule since it is not necessary. Clearly, any evidence submitted in support of an O-1 petition must relate to the alien's field of endeavor and be recognized in that field of endeavor or else it is of no value in the adjudication of the petition. Four commenters also suggested that the comparable evidence criteria be eliminated as it compromises the other more specific criteria. The Service will not adopt this suggestion as the comparable evidence criteria merely allows petitioners in cases where the beneficiary is employed in an unusual or obscure field of endeavor to submit alternate, but equivalent, forms of evidence.

One commenter suggested that the O-1 criteria for university and college professors are excessive and should be altered. The Service will not adopt this suggestion since the O-1 category is reserved for those aliens who have reached the very top of their occupation or profession. The standard for the classification as created by Congress was designed to be extremely high and limited to only the best individuals employed in a particular field.Evidentiary Criteria for an O-1 Alien of Extraordinary Ability in the Field of Arts--Sec. 214.2(o)(3)(v) Under the statute, the standard for an O-1 artist is significantly lower than the standard for an alien of extraordinary ability in the fields of science, education, business, or athletics. Petitioners are required to establish only that the O-1 artist is prominent in his or her field of endeavor. Eligibility for O-1 classification in the field of arts is not limited to those aliens who have reached the very top of their professions as is required in the fields of science, business, education, or athletics. In order to establish an alien as an O-1 alien of extraordinary ability in the field of arts, the petitioner must submit evidence that the beneficiary has received, or been nominated for, a major international or national award or submit evidence relating to three of six other criteria. The regulation also allows the submission of comparable evidence if the six listed criteria cannot be met. A number of comments were received addressing the evidentiary criteria for the classification. Many of the comments suggested that the criteria be altered in some fashion. One commenter suggested that the criteria for this category were duplicative and that by meeting one criterion, the alien would actually meet two. Thirteen commenters suggested that the interim regulation should be altered to provide that second or third place finishes in a prestigious competition qualify an alien as an O-1. Thirteen commenters also suggested that the receipt of lesser awards than those specified in the regulation should be a separate criterion in the regulation. One commenter stated that additional awards should be listed in the regulation for aliens employed in the recording industry. The Service will not adopt any of the foregoing suggestions. It is recognized that a number of the criteria listed in the regulation are similar to one another, but it must also be noted that no two are identical. Further, the Service's decision in a particular case is also dependent upon the quality of the evidence submitted by the petitioner, not just the quantity of evidence. The mere fact that the petitioner has submitted evidence relating to three of the criteria as required by the regulation does not necessarily establish that the alien is eligible for O-1 classification. The interim regulation also provides that O-1 eligibility can be established if the alien has been nominated for a significant national or international award. Thus, second and third place finishes are already contemplated in the regulation. It must be noted that the awards listed in the regulation are provided merely as examples and are not all-inclusive. Other major national or international awards will also be considered by the Service in determining the alien's eligibility. The listing of every major national award in every field of endeavor is, therefore, not necessary. Finally, pursuant to Sec. 214.2(o)(3)(v)(C), it is understood that, in certain cases, a petitioner may submit evidence that the beneficiary has been the recipient of less significant awards in support of the petition.

Two commenters also recommended that the interim rule be amended to reflect that the salary of the proposed position should be high in relation to others in the field. Since, in some cases, the proffered salary may be indicative of the alien's level of recognition, the final rule has been amended to include language indicating that the alien's salary may be used as a criteria in establishing the alien's eligibility for O-1 classification. However, the Service recognizes that situations may arise where an O-1 alien is coming legitimately to the U.S. to perform services in a position where there is little or no salary. For example, an O-1 entertainer may be invited to come to the U.S. to perform at a charity event and receive no remuneration. The alien is still of O-1 caliber even though the proffered salary may be minimal. As a result, the alien's salary may be considered by the Service in determining the alien's eligibility but a high salary is not a mandatory requirement for establishing eligibility. One commenter stated that the term ``critical role'' should be removed from the eligibility criteria for an O-1 alien since it was not contained in the pre-IMMACT H-1B regulations. The commenter noted that Congress desired that the criteria for aliens of extraordinary ability in the arts mirror the prior H-1B criteria for prominent aliens. The Service will not adopt this suggestion as the inclusion of this term does not alter or lessen the criteria for the classification in any meaningful fashion. The term merely expands and explains the criteria.Evidentiary Criteria for Aliens of Extraordinary Achievement in the Field of Motion Picture and Television--Sec. 214.1(o)(3)(vi) Three commenters suggested that the standard for aliens of extraordinary achievement in the motion picture and television industry should be higher than the standard for aliens of extraordinary ability in the arts. In the interim rule, the Service linked these two categories together. The Service now agrees that the standards for these two classifications are different and will incorporate this suggestion into the final rule. One of the significant changes contained in Pub. L. 102-232 was that Congress provided a statutory definition to extraordinary ability in the arts. Congress has defined this term as ``distinction'', which has been interpreted by the Service to mean ``prominence'', See 137 Cong. Rec. S18247 (daily ed., Nov. 16, 1991). This statutory change effectively lowered the standard for aliens in the field of arts originally contained in IMMACT and differentiated the standard for artists for extraordinary ability from other aliens of extraordinary ability. However, Pub. L. 102-232 did not lower the standard for aliens of extraordinary achievement in the motion picture and television industry but left the standard intact. Thus, the Service can no longer link these two categories of aliens together since the categories now have different standards. As a result, the final rule has been modified to reflect that an alien of extraordinary achievement in the field of motion pictures or television must meet a higher standard than that for an alien of extraordinary ability in the field of arts, namely, the prominence standard. The Service has defined the standard for aliens of extraordinary achievement in the field of motion pictures and television in the final rule as a very high level of accomplishment evidenced by a degree of skill and recognition significantly above that ordinarily encountered. The alien must be outstanding or notable in the field of endeavor. An alien who is merely well-known, i.e., a prominent alien, would not qualify for this category. It should be noted that the evidentiary criteria for aliens of

extraordinary ability in the arts and for aliens of extraordinary achievement in the motion picture or television industry are the same. However, this does not mean the standards for the classification are the same. Again, the standard for the classification relates to the definition of the classification, not to the evidence submitted by the petitioner. Thus, while the Service will examine the same evidence for these two classifications, it will weight the evidence differently, and requires aliens of extraordinary achievement in the motion picture and television industry to meet a higher standard than aliens of extraordinary ability in the field of arts. The effect of these regulatory and statutory changes is that there are now three distinct categories of aliens in the O-1 classification. One classification relates to aliens of extraordinary ability in the fields of science, education, business, or athletics. The standard for this classification is that the alien is one of the small percentage of persons who have risen to the top of this profession. The second classification relates to O-1 aliens of extraordinary ability in the field of arts. The standard for this classification is that the alien is prominent. The third category within the classification relates to aliens who are of extraordinary achievement in the field of motion pictures or television. The standard for this classification is that the alien is outstanding in his or her field, but not necessarily at the very top of the profession. In order to effectuate this change, the final rule now contains a new paragraph at (o)(3)(vi) containing the criteria for O-1 aliens of extraordinary achievement in the field of motion pictures and television. One commenter suggested that the standards for the categories within the O-1 classification do not reflect that the aliens must have sustained national or international acclaim. The Service believes that the descriptions of the classifications at Sec. 214.1(o)1)(ii) accurately reflect Congressional intent since the regulatory language is taken directly from the statute.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 0-2 aliens have critical skills and experience with the 0-1 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 lesser 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 else 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 0-1 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, e.g., 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, e.g., 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 specifically 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 the 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 0-1 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 0-1 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. Section 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 0-2 nonimmigrant aliens. This comment will not be adopted since the Act requires that all petitions for 0-2 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 0-1 classification may not be granted to an alien to enter the United States to free lance in the open market. An 0-1 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 itself. 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, (e.g., 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--Sec. 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 the 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.Labor Organization 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 performance, 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 entertainment. 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 an 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 for 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 internationally 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 intermittent. 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 Ports-of-Entry. 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 alien 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 requirement and the international recognition requirement. It must established by the petitioner that the

circus for which the aliens are coming to perform is recognized nationally. It must also be remembered that 0-1 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 facilitate 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 ``event'' 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 petitions by establishing U.S. agents described in 8 CFR 214.2(p)(iv)(E).

The P-3 Nonimmigrant Classification--Sec. 214.2(p)(6)

The P-3 classification relates to aliens, either individually or as part of a group, who are coming to the United States solely to perform, teach, or coach under a culturally unique program. A number of commenters stated that the standard and criteria for this classification as contained in the interim rule were very restrictive and imposed a number of requirements and qualitative standards which had no statutory basis. For example, eight commenters noted that there

was no statutory support for the concept that P-3 aliens had to have achieved international acclaim while fifty-eight commenters stated that there was no statutory requirement that P-3 beneficiaries must perform for cultural, governmental, or educational institutions. The Service has carefully reviewed the many comments received concerning the P-3 nonimmigrant classification and has made a number of changes in the final rule to incorporate these suggestions. The final rule requires only that the P-3 alien be coming to the United States solely to perform, teach, or coach in culturally unique events. The petitioner may be a commercial producer and there is no longer a requirement that the events must be performed at cultural, governmental, or education institutions. However, all of the events in which the aliens will be performing must be culturally unique. Consistent with the interim rule, there is no requirement that a P-3 group have performed together for any specific period of time. The documentary requirements for a P-3 petition have also been amended in response to the comments. Petitioners merely have to submit evidence addressing the cultural uniqueness of the performance and evidence that all performances are culturally unique. The qualitative standards contained in the interim rule for P-3 nonimmigrant aliens have been removed. One commenter suggested that consultations for P-3 petitions should not be required as it should be assumed that there are no consulting organizations for P-3 petitions due to the uniqueness of the performances or the art form. The Service cannot adopt this suggestion since the consultation from a labor organization will provide the Service with the important information necessary to make the determination as to whether the performance is, in fact, culturally unique. Seven commenters suggested that the regulations were too restrictive with respect to folk and traditional artists. As stated earlier, the documentary requirements relating to P-3 petitions contained in the interim rule have been altered. These alterations should make it easier for prospective petitioners to petition for folk or traditional artists. Petitioners must still establish, however, that the folk music is culturally unique.

Consultation Process for P Nonimmigrants--Sec. 214.2(p)(7)

This section addresses the comments received from the public relating specifically to the consultation process for P nonimmigrant aliens. Comments relating to both the O and P classifications are discussed in the general comment section. The interim rule provides that where petitions for O-1 aliens of extraordinary ability are filed without a consultation from an appropriate labor organization, the Service is required to notify the national office of the appropriate labor organization within 5 days of the receipt of the petition. The labor organization then has 15 days to respond to the request. After the labor organization responds, the Service then has 14 days to adjudicate the petition. Forty-one commenters suggested that the ``5-day rule'' should be applied to P-1 and P-3 nonimmigrant petitions. The Service cannot adopt this suggestion since it is not appropriate to the P nonimmigrant category. By statute, all petitions for P nonimmigrant aliens must be accompanied by a consultation from a labor organization. As a result, the Service would not have a reason to notify a labor organization to obtain an

opinion since it would have been submitted by the petitioner. Forty-four commenters stated that the final rule should apply the 14-day adjudication timeframe discussed in the previous paragraph to petitions filed for the P-1 and P-3 nonimmigrant classifications. The Service does not wish to apply an arbitrary timeframe on the processing of P petitions since it will serve no useful purpose. When local conditions at a particular Service Center adversely affect the processing time for P petitions, the Service believes that an arbitrary timeframe will do little to correct the situation. The Service is aware of the importance of the timely adjudication of P petitions and will do everything possible to ensure that they are adjudicated in a reasonable fashion. Two commenters stated that labor organizations should not extract agreements from petitioners and beneficiaries prior to providing the required consultations. The monitoring of the negotiations between the petitioner, the beneficiary, and the consulting organization is beyond the scope of the Service's authority. While the Service has no policing authority under the legislation in this area, it obviously does not condone any consulting entity requiring a petitioner or beneficiary to enter into an agreement outside of normal industry practices prior to providing the consultation. Two commenters stated that the consultation process allows labor unions, not the petitioner, to decide who should be employed. The Service disagrees with this statement since the consultation is an advisory opinion and is not binding on the Service. Service officers are not bound by the opinions of the consulting organization. The Act clearly states that it is the Service, not the consulting organization, which decides whether or not a petition for an O or P should be approved. Twenty-nine commenters suggested that the final rule should contain a regulatory provision describing the procedure for establishing that a labor organization does not exist and, further, that the regulation should include an appeal procedure to determine if, in fact, a labor organization exists. The Service does not wish to add a provision into the final regulation establishing a formal procedure for determining if a labor organization exists since the procedure may differ for various fields of endeavor. It would seem, however, that the easiest method of establishing the nonexistence of a labor organization would be to submit affidavits or letters from practitioners in the field or from a related labor organization stating that a labor organization does not exist. The Service, obviously, has the final say as to whether the evidence submitted is sufficient to establish the non-existence of a labor organization. One commenter suggested that there should be a regulatory provision waiving the consultation for a period of 1 year for P-1 aliens where there has been a previous consultation and the alien is returning to the United States to perform in a similar role. The Service will not adopt this suggestion since there is no statutory support for a waiver of the consultation process in this instance. In view of the special provisions relating to circus personnel contained in the Act, a new paragraph at (p)(7)(iii) has been added in the final rule to address the consultation requirements for this class of alien. Consultations for circus personnel should address the national recognition of the petitioning circus or any other aspect of the petition which the labor organization deems appropriate.

General Comments Relating to Both the O and P Classifications

Twenty-nine commenters stated that there should be no restrictions on foreign entertainers entering the United States. The commenters opined that the implementation of the regulations will cause harm to the U.S. entertainment industry since foreign countries will take reprisal actions against U.S. workers abroad. It is the opinion of the Service that the restrictions contained in this final rule reflect the intent of Congress in drafting the legislation. If Congress had desired to allow for the admission of all foreign entertainers and athletes without restriction, the statutory language would have reflected this intent. It must also be noted that the standards for the various entertainment categories within the O and P classifications are, for the most part, the same as the pre-IMMACT H-1B regulations relating to prominent aliens. The implementation of this rule, therefore, is not a significant change in policy or operating procedure but a continuation of past practices. As a result, the Service does not envision the final rule adversely affecting the entertainment industry.

Petition Extensions

The interim rule contains the requirement that extensions of stay may be granted in order to continue or complete the event on which the initial petition was predicated. Forty-seven commenters suggested that petition extensions should be granted to complete new events. The Service will not adopt this suggestion. The initial admission of an O or P nonimmigrant is statutorily limited to specific events or activities. In adjudicating O and P petitions, the Service is required to examine the event or events listed on the petition as well as the evidence relating to the qualifications of the alien to determine if the petition can be approved. The addition of new events, in most cases, will require the Service to review these new events to determine if the petition remains valid. Thus, it follows that new events will require the filing of a new petition, not an extension of an existing petition. If the new events are merely additional engagements to the initial tour, an extension of stay would be appropriate.

Extension Periods for O and P Nonimmigrants

Under the interim rule, extensions for O and P nonimmigrants may be granted in increments of 1 year. One commenter suggested that extensions should be granted for longer periods of time, noting the fees charged by the Service for this adjudication. The 1-year period for an extension is a device devised by the Service to ensure that the alien beneficiaries are complying with the terms of the initial petition. Through experience, the Service has learned that some alien entertainers have used nonimmigrant classifications to freelance and seek employment in direct competition with U.S. entertainers. Admission as an O or P nonimmigrant is limited to a specific event or events. As a result, this suggestion will not be adopted.

Foreign Film Crews

One commenter suggested that foreign film crews should not be classified as O nonimmigrants but, instead, should be classified as B-1 nonimmigrant aliens. It has long been the Service's position that

foreign film crews are not eligible for B-1 classification as it cannot be clearly established that the film will not be shown in the United States at some future point in time. Thus, foreign film crews cannot meet the accrual of profits test called for under the B-1 nonimmigrant classification. See Matter of Hira, 11 I&N Dec. 824, (BIA, 1965). Foreign film crews must be petitioned for under the O classification.

Consultation Process

As indicated previously, the consultation process generated a great number of comments from the public. A number of modifications were made to the consultation process as a result of the comments received from the public. In addition, the Service has made a number of modifications in the consultation process as a result of the operation of the interim rule, which are also discussed in this section. As indicated previously, the comments relating specifically to the O and P categories are contained in the discussion relating to those categories. In general, all petitions for O and P classifications must be filed with a consultation from an appropriate consulting entity. In the case of P nonimmigrants, the petition must be filed with a consultation from a labor organization having expertise in the alien's field of endeavor. It does not matter whether the labor organization has entered into a collective bargaining agreement covering individuals employed in the alien's field of endeavor, as the Act merely requires that the labor organization have expertise in the alien's field of endeavor. For O-1 petitions for aliens of extraordinary ability in the field of science, business, education, athletics, or arts, a petition must be accompanied by a consultation from a peer group or other person or persons (which may include a labor organization) of its choosing with expertise in the area of the alien's employment. However, if the petition is filed with a consultation which is not from a labor organization, the Service is required to notify the national office of the appropriate union. As as result of this notification process, the Service strongly suggests that petitioners in the case of O-1 aliens of extraordinary ability be accompanied by a consultation from a labor organization so that the Service does not have to add additional time to the adjudication process to wait for the response from the labor organization. However, it must be noted that petitioners are not precluded in this instance from submitting a consultation from a peer group or other person or persons (which may include a labor organization) of its choosing with expertise in the area of the alien's employment. Petitions for aliens of extraordinary ability in the motion picture or television field must be filed with two consultations, one from a labor organization and one from a management organization. The only exception that the Service makes to these requirements is in the case of expedited petitions. If the Service determines that a petitioner's request for expedited processing is warranted,the Service will obtain the required consultation or consultations on its own and then adjudicate the petition. Although not specifically addressed in the Act, petitioners are required to obtain consultations from United States labor organizations, peer groups, and management organizations, not foreign organizations. Foreign organizations, peer groups, and management organizations would not be aware of employment conditions in the United States. In addition, where possible, petitioners should obtain

consultations from the national offices of the appropriate labor organization. Local labor organizations are not equipped to provide consultations and do not have knowledge of labor market conditions in other parts of the United States. Eighty-three commenters stated that it is possible that a consulting organization may not wish or be able to provide the required consultation within a satisfactory timeframe. These persons suggested that the regulations should contain a 15-day timeframe in which a consulting organization must respond to a petitioner's request for a consultation prior to filing the petition with the Service. The Service is concerned that some consulting entities may engage in dilatory tactics, either intentionally or unintentionally, and not provide a request consultation to a prospective petitioner within a reasonable period of time. However, the Service does not wish to impose a regulatory 15-day timeframe on consulting entities because such a regulation would be unenforceable and would result in lengthening petition processing times. There is no mechanism which can be devised which can accurately determine with certainty whether or not a consulting entity had been approached by a prospective petitioner and whether the consulting entity every responded to a petitioner's request for a consultation. Further, as of this writing, the Service is unaware of any circumstances where a consulting entity has not provided a consultation to a prospective petitioner within a satisfactory timeframe. However, it a situation does develop where a consulting entity does not provide the required consultation and the alien's services are urgently needed, petitioners can request that the Service expedite the processing of the petition. Thirteen commenters stated that service or management organizations should be considered the best source of information for petitioners seeking consultations. Forty-one commenters also suggested that service organizations should be able to compete in the consultation process. Management organizations can provide consultations with respect to O nonimmigrant petitions. However, with regard to P nonimmigrant petitions, the Act clearly requires that petitioners consult only with a labor organization. While petitioners for P nonimmigrant aliens may submit a consultation from a management or service organization in support of the petition, it is not required by the Act or regulation. Whether a service organization is, in fact, the best source of information concerning an alien's achievements in the field is a matter of conjecture. The interim rule requires that petitions for O and P nonimmigrant aliens must be accompanied by a consultation for each separate occupation listed on the petition. For example, a petition for O-2 accompanying aliens may include a variety of difficult support people. Fourteen commenters stated that this requirement is burdensome and should be deleted. The Service will not adopt this suggestion as it uses the consultation process to obtain information on whether each occupation included on the petition is truly essential or critical to the principal alien or aliens. Without the consultation, the Service would not have sufficient information on which to make a proper decision on this issue. The interim rule contains language that, if a petition is denied on the basis of an adverse consultation, the consultation should be attached to the Service's formal denial. Fifteen commenters objected to this provision noting that consultations are merely advisory in nature and should never be used as the sole basis for the Service's decision. The Service agrees with this comment and the language will be removed

from the final rule. Petitions for O and P nonimmigrant aliens should be adjudicated on the total evidence presented by the petitioner. The consultation is just one piece of evidence which the Service reviews in its decision and, as noted by the commenters, is purely advisory in nature. One commenter suggested that the consultation should focus entirely on the beneficiary and not the position. The Service does not agree with this comment. In adjudicating many O and P petitions, the Service is required to examine the proffered position to determine if the petition may be approved. The Service uses the information contained in the consultation in making this decision. For example, in the case of an O-1 nonimmigrant alien, the Service must examine the position to determine if the alien will be entering the United States to work in the area of his ability. Therefore, the suggestion will not be adopted. Two commenters suggested that consulting entities should be notified of the Service's decision in a case in which the consulting entity provided a consultation. The Service has no objection to notifying the consulting entity of the outcome of a case in which it has provided a consultation and has instituted a mechanism to inform an entity of the outcome of a particular case. An entity which has provided a consultation in a particular case may attach to the petition a self-addressed post card. After the petition is adjudicated, the post card will be returned to the entity. It is the responsibility of the consulting entity to ensure that the post card is submitted to the Service. The Service will not become involved in disputes between a consulting entity and a petitioner regarding this process. The interim rule contains a description of the procedure that the Service will use to obtain a consultation in a case determined to merit expeditious processing. The rule indicates that the Service will telephonically contact the consulting entity and request the consultation. A number of comments suggested that the Service should use facsimile capabilities in order to request the appropriate consultation in order to expedite the process. As a result of this comment, the Service has amended this portion of the interim rule removing the reference to telephonic notification. Service Center Directors now have the discretion to contact the appropriate consulting entity utilizing the most expeditious method available. Fifteen commenters stated that the consultation process may violate the Privacy Act since a consulting organization is often provided with personal information about both the petitioner and the beneficiary. The Privacy Act applies only to ``individuals'', which it defines as aliens lawfully admitted for permanent residence and U.S. citizens, 5 U.S.C. Sec. 552(a)(1). Moreover, the Privacy Act only applies to records contained in a ``system of records'', (i.e., records which the Service retrieves by use of an individual's name and other personal identifier). This situation does not exist in these circumstances. The interim rule contained language that the Service would publish a list of consulting entities in its Operation Instructions. As a guide to further assist prospective petitioner, the Service will also publish a list in its Operations Instructions of those fields of endeavor where it has been determined that no consulting organization exists.

Periods of Admission

Fifty-two commenters suggested that the Service should grant longer periods of admission than are currently contained in the interim rule. The Service believes that the periods of admission for O and P

nonimmigrants contained in the interim rule are reasonable and will not adopt this suggestion. The interim rule indicates that O-1 aliens may be admitted for the length of the event, not to exceed 3 years. A P nonimmigrant may be admitted for the length of the event, not to exceed 1 year. Of course, extensions of stay may be granted to complete the event or events. Except for P-1 athletes, there is no maximum period on the length of time that an O or P nonimmigrant may remain in the United States. However, it is rare that a P-1 entertainment group would need more than a year to complete an event or events. Most entertainment events are for shorter periods of time and O or P classification may not be granted to an alien merely to enter the United States to freelance and seek employment. The O or P nonimmigrant alien is admitted to the United States to perform in specific events as detailed on the initial petition. The Service also realizes that the filing of extensions of stay is time-consuming. However, the Service uses the extension process as a mechanism of ensuring that the alien is complying with the terms of his or her initial admission. Professional athletes may be initially admitted to the United States for 5 years and may obtain extensions of stay for an additional 5 years. However, the P-1 athlete's admission is also tied to a specific event such as a season, tournament, of the duration of the alien's contract.

Recording the Validity of Approved Petitions

Thirteen commenters suggested that the Service grant petitions retroactively. The Service will not adopt this suggestion since it serves no useful purpose. The vast majority of petitions are filed and approved prior to the actual date of the need for the alien's services. Petitioners are cautioned by the Service to file petitions well before the actual date of the need for the alien's services so that the alien can commence employment when the event begins. Since the Service has the capability to expedite the processing of an O or P petition in emergency situations, it is rare that the Service will adjudicate a petition after the event begins. To allow an alien to engage in employment prior to the approval of the petition would be contrary to the statute and would be in conflict with the employer sanctions provisions of the Act. In order to accommodate scheduling problems caused by untimely adjudications, the final rule has been amended to allow Service Center Directors the discretion to approve a petition beyond the date requested by the petitioner if such additional time is needed to complete the event. The final rule now contains language that in those cases where the petition is approved after the date the event begins, the approval notice shall ``generally show'' the actual dates requested by the petitioner. This gives the Service the authority to approve a petition for a longer period of time than requested initially by the petitioner to complete the requested event when the approval of the petition is delayed through Service action or inaction.

Change of Nonimmigrant Status

Twenty-six commenters suggested that the regulations appear to preclude an O or P nonimmigrant from changing nonimmigrant classification in the United States. There is nothing in the final rule to preclude an O or P nonimmigrant alien from changing nonimmigrant

classification pursuant to 8 CFR part 248.

Fees

Forty-nine commenters suggested that the filing fees for the I-129 are too high. The Service has conducted an extensive cost analysis study and determined that the filing fees for the petition are consistent with the Service's cost in adjudicating the petition. The fact that the Service's fees for the adjudication of a petition may be higher than those in other countries is not a relevant factor. The filing fee which the Service charges is designed to cover the cost of adjudication and was not designed to be competitive with fees charged in other countries.

Listing of Beneficiaries on Form I-797

Fifteen commenters noted that the approval notice, Form I-797, for O and P petitions contains only the name of one beneficiary even though the petition may relate to a group of individuals. These commenters suggested that the I-797 be altered to provide the names of all the beneficiaries listed on a petition. Since publication of the interim rule, the Service has responded to comments relating to this issue and has begun to list more than one beneficiary on the approval notice.

Multiple Beneficiaries

The interim rule contained the requirement that if the beneficiaries of a petition were applying for visas at different consulates or, if visa exempt, at different Ports-of-Entry, separate petitions with fee must be filed for each consulate or Port-of-Entry. In order to streamline the petitioning process and cut costs for petitions involving groups, petitioners are now required to submit only one petition for the group regardless of where the beneficiaries will obtain their visas or apply for admission to the United States.

Documentary Requirements

Forty-one individuals stated that the documentary requirements for the O and P classification are too high. As previously stated, in drafting this rule, the Service has used the documentary requirements of the prior regulation where possible and has removed unnecessary requirements. Since the O and P classifications contain qualitative standards, the Service must require some sort of evidence to establish the beneficiary's eligibility. Based on this, the Service does not view the evidentiary criteria as being excessive. Fourteen commenters stated that the Service should not require the submission of a contract in support of an O or P petition since not all contracts are written. The Service does not require the submission of written contracts where they do not exist. The interim rule contains language providing that in the case of O petitions, in a situation where a written contract does not exist, a written summary of the terms of the oral agreement may be submitted. This provision was not included in the interim rule in the case of P petitions, but will be included in the final rule.

Filing of Petitions

The interim rule contained the provision that petitions for the H, O, and P nonimmigrant classifications shall be filed only at the three Service Centers which adjudicate these types of petitions, even in emergent circumstances. Seventy-four people commented on this provision, suggesting that the Service allow for emergent filings at local offices. The commenters indicated that this procedure would provide petitioners with an ``escape-valve'' to allow them to petition for aliens on short notice. The Service proposed this provision to ensure that petitions would be adjudicated in a consistent fashion and to enable the Service to track the number of petitions filed for those nonimmigrant classifications which are subject to numerical limitations. The Service is aware that situations may develop which will necessitate the filing of petitions in emergent situations. However, it is believed that these petitions can be processed in acceptable timeframes at the Service Centers. The filing limitations are therefore retained in the final rule. Sixteen commenters also suggested that the Service describe the emergent filing process for the Service Centers in the final rule. Pursuant to section 214(c)(6)(E) of the Act, the interim rule contains a description of the process that the Service will use in processing requests for expedited consultations. However, the Service does not believe that the final regulation is an appropriate forum to detail the actual filing or mailing process for each of the Service Centers. Each Service Center has already developed its own system for accepting these types of cases, a determination based upon local operating conditions. When these procedures are listed in a regulation, formal rulemaking is required to alter them. Since the procedures are dependent on local operating conditions, Service Center Directors need the flexibility to alter these procedures in a rapid fashion, which cannot be accomplished if the procedures are formally listed in a regulation. Twenty-five commenters suggested that O and P beneficiaries be allowed to petition for themselves. The Service cannot adopt this suggestion since section 214(c) of the Act requires that O and P petitions be filed by an importing employer. The interim rule also generated a great number of comments concerning the filing of petitions by agents. The Service adopted the provision permitting filing by agents in order to accommodate those situations where the beneficiary would be employed in numerous places by numerous employers. As currently written, the regulation allows established U.S. agents to file the petition at the agent's place of business and requires that only one petition be filed by the agent to cover all the proposed places of employment. It should be noted that the Act does not specifically provide for filing by agents but requires that petitions only be filed by an importing employer. However, section 214(c)(5)(B) indicates that agents may, in fact, file a petition, by discussing the issue of the joint liability of the petitioner and employer with respect to the alien's return transportation. Twenty-six commenters suggested that the above-cited provision be expanded to allow foreign agents to file petitions. The Service is reluctant to expand this regulatory accommodation to foreign agents. There is no statutory support for such procedure, and the Service does not wish to expand the provision to foreign agents whose credentials may not be easily verifiable. Further, petitioners in the case of O and P petitions are liable for the alien beneficiary's return transportation abroad. The alien's ability to avail themselves of this

provision could be reduced by the agent's foreign location. Eighteen commenters suggested that agents should not be required to guarantee the beneficiary's wages. Although the interim rule does not contain such a requirement, language imposing such a requirement was included in the instructions to the December 11, 1991, edition of Form I-129. The language will be removed from the instructions to the form, as it contradicts the regulatory language.

Substitution of Beneficiaries

The interim rule provides that petitioners may substitute beneficiaries at consular offices for P-1 athletic teams, and P-2 and P-3 petitions involving groups. Forty-six commenters suggested that the interim rule be amended to allow for substitutions in the case of P-1 entertainment groups and for O-1 entertainers. The Service will adopt this suggestion in part. The final rule will be amended to allow for the substitution of beneficiaries in P-1 entertainment groups. However, since O-1 petitions relate to individual entertainers, substitutions in the case of O-1 beneficiaries will not be permitted. A new petition will be required in the case of an O-1 petition. The final rule specifically prohibits petitioners from substituting essential support personnel or O-2 accompanying aliens. The rationale for this policy is that the petitioner has already established to the Service that the essential support personnel or accompanying aliens initially included in the petition are integral and essential to the performance or have critical skills and experience with the principal alien or aliens. If these aliens can be substituted on short notice, their relationship to the principal alien or aliens cannot be considered significant.

Time Frames for Adjudications

Fourteen commenters suggested that the final rule provide a maximum timeframe for the adjudication of petitions. The Service believes that there is little to be gained by imposing a required processing time. As stated in the preamble to the interim rule, when local conditions at the Service Centers adversely affect the processing time, an artificially set time limit will do little to correct the situation. The Service is aware of the legitimacy of these concerns and will make every effort to process and adjudicate petitions in a timely manner. However, such management controls are more properly within the bounds of policy guidance and operating instructions rather than regulations.

180-Day Filing Window

The interim rule contains the requirement that petitions for O and P nonimmigrant aliens must be filed no more than 180 calendar days prior to the need for the alien's services. Twenty-seven commenters suggested that this restriction be removed. The purpose of this restriction is to ensure orderly processing of petitions and to limit the number of amended petitions which might be necessitated if a petition is approved far in advance of the need for the beneficiary's services. The 180-day rule as contained in the interim rule reflects a continuation of longstanding Service policy. Service experience indicates that the vast majority of petitions are normally filed within 30 to 60 days prior to the date of actual need. Very few petitions are

filed earlier than 60 days and very seldom has a petitioner indicated a need to file earlier than 180 days. As a result, the Service will not adopt this suggestion.

Revocation of Petitions

Twenty-four commenters suggested that petitions for O and P nonimmigrant aliens should not be revoked if the petitioner goes out of business since many petitions are filed by agents, not the alien's employer. The Service agrees with this suggestion and the final rule will contain the provision that petitions filed by agents shall not be revoked if the agent goes out of business. However, the Service retains the authority to revoke the petition if the actual employer goes out of business.

Employment Prior to Validity of The Petition

The interim regulations contain the provision that an O or P nonimmigrant may be admitted ten days prior to the validity of the petition and for ten days after the validity of the petition. During this period of time, the alien is not permitted to engage in employment. Fourteen commenters object to this provision stating that the alien should be granted employment authorization during these two periods of time. The Service does not wish to adopt this suggestion since the employment in the O or P classification is, according to the Act, specific to an event. The O and P category may not be used by an alien to freelance and seek employment in the U.S. labor market without prior Service approval. This procedure was incorporated in the regulation in order to provide additional time to the alien or aliens to make arrangements and to prepare for the events or activities covered by the petition. If more time is required by the petitioner to complete the event, the petitioner may file a request for a petition extension and an extension of the alien's temporary stay.

Return Transportation Provision

The Act requires that a petitioner must provide assurance that the alien's or aliens' return transportation will be provided. One commenter suggested that petitioners should be required to submit a bond with the petition in order to establish that the return transportation requirement will be met. The Service does not wish to require petitioners to submit any more paperwork than is absolutely required. Further, the administrative cost of posting and processing bonds would be high resulting, possibly, in higher processing fees for petitions. As a result, the Service will not adopt this suggestion. The filing of the petition is sufficient assurance to the Service that this requirement has been met.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that the rule will not have a significant economic impact on a substantial number of small entities. The regulation merely modifies certain filing procedures for petitions under the H, O, and P nonimmigrant classifications and does not dramatically alter existing filing

procedures.

Executive Order 12866

This rule has been drafted and reviewed in accordance with the statement of regulatory philosophy and principals of regulation in Section 1 of Executive Order 12866. The Department of Justice, Immigration and Naturalization Service, has determined that this rule is a ``significant regulatory action'' and accordingly it has been reviewed by the Office of Management and Budget pursuant to Executive Order 12866.

Executive Order 12612

This regulation 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 Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service certifies that she has addressed this rule in light of the criteria in Executive Order 12606 and has determined that it will have no effect on family well-being.

List of Subjects in 8 CFR Part 214

Administrative practice and procedure, Aliens, Authority delegation (Government agencies), Employment, Organization and functions (Government agencies), Passports and visas.

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, 1103, 1182, 1184, 1186a, 1221, 1281, 1282; 8 CFR part 2.

2. Section 214.2 is amended by revising paragraph (h)(4)(vii)(C) to read as follows:

Sec. 214.2 Special requirements for admission, extension, and maintenance of status.

* * * * * (h) * * * (4) * * * (vii) * * *

(C) Beneficiary's requirements. A petitioner may establish that a beneficiary is a fashion model of distinguished merit and ability by the submission of two of the following forms of documentation showing that the alien: (1) Has achieved national or international recognition and acclaim for outstanding achievement in his or her field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material; (2) Has performed and will perform services as a fashion model for employers with a distinguished reputation; (3) Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies, or other recognized experts in the field; or (4) Commands a high salary or other substantial remuneration for services evidenced by contracts or other reliable evidence.* * * * * 3. In Sec. 214.2 paragraphs (o) and (p) are revised to read as follows:

Sec. 214.2 Special requirements for admission, extension, and maintenance of status.

* * * * * (o) Aliens of extraordinary ability or achievement.--(1) Classifications.--(i) General. Under section 101(a)(15)(O) of the Act, a qualified alien may be authorized to come to the United States to perform services relating to an event or events if petitioned for by an employer. Under this nonimmigrant category, the alien may be classified under section 101(a)(15)(O)(i) of the Act as an alien who has extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry. Under section 101(a)(15)(O)(ii) of the Act, an alien having a residence in a foreign country which he or she has no intention of abandoning may be classified as an accompanying alien who is coming to assist in the artistic or athletic performance of an alien admitted under section 101(a)(15)(O)(i) of the Act. The spouse or child of an alien described in section 101(a)(15)(O)(i) or (ii) of the Act who is accompanying or following to join the alien is entitled to classification pursuant to section 101(a)(15)(O)(iii) of the Act. These classifications are called the O-1, O-2, and O-3 categories, respectively. The petitioner must file a petition with the Service for a determination of the alien's eligibility for O-1 or O-2 classification before the alien may apply for a visa or seek admission to the United States. This paragraph sets forth the standards and procedures applicable to these classifications. (ii) Description of classifications.--(A) An O-1 classification applies to: (1) An individual alien who has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who is coming temporarily to the United States to continue work in the area of extraordinary ability; or (2) An alien who has a demonstrated record of extraordinary achievement in motion picture and/or television productions and who is coming temporarily to the United States to continue work in the area of extraordinary achievement.

(B) An O-2 classification applies to an accompanying alien who is coming temporarily to the United States solely to assist in the artistic or athletic performance by an O-1. The O-2 alien must: (1) Be an integral part of the actual performances or events and posses critical skills and experience with the O-1 alien that are not of a general nature and which are not possessed by others; or (2) In the case of a motion picture or television production, have skills and experience with the O-1 alien which are not of a general nature and which are critical, either based on a pre-existing and longstanding working relationship or, if in connection with a specific production only, because significant production (including pre- and post-production) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production. (2) Filing of petitions.--(i)--General. A petitioner seeking to classify an alien as an O-1 or O-2 shall file a petition on Form I-129, Petition for Nonimmigrant Worker, only with the Service Center which has jurisdiction in the area where the alien will work. The petition may not be filed more than six months before the actual need for the alien's services. An O-1 or O-2 petition will be adjudicated at the appropriate Service Center, even in emergent situations. Only one beneficiary may be included on an O-1 petition. The O-2 aliens must be filed for on a separate petition from the O-1 alien. An O-1 or O-2 petition may be filed by a U.S. employer, a foreign employer, or an established U.S. agent. An O alien may not petition for himself or herself. (ii) Evidence required to accompany a petition. Petitions for O aliens shall be accompanied by the following: (A) The evidence specified in the particular section for the classification; (B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed; (C) An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and (D) A written advisory opinion(s) from the appropriate consulting entity or entities. (iii) Form of documentation. The evidence submitted with an O petition shall conform to the following: (A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the alien's achievement and be executed by an officer or responsible person employed by the institution, firm, establishment, or organization where the work was performed. (B) Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability, or in the case of a motion picture or television production, the extraordinary achievement of the alien, shall specifically describe the alien's recognition and ability or achievement in factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired such information. (C) A legible photocopy of a document in support of the petition may be submitted in lieu of the original. However, the original document shall be submitted if requested by the Director. (iv) Other filing situations.--(A) Services in more than one location. A petition which requires the alien to work in more than one location must include an itinerary with the dates and locations of work

and must be filed with the Service Center which has jurisdiction in the area where the petitioner is located. The address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph. If the petitioner is a foreign employer with no United States location, the petition shall be filed with the Service Center having jurisdiction over the area where the work will begin. (B) Services for more than one employer. If the beneficiary will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the Service Center that has jurisdiction over the area where the alien will perform services, unless an established agent files the petition. (C) Change of employer. If an O-1 or O-2 alien in the United States seeks to change employers, the new employer must file a petition and a request to extend the alien's stay with the Service Center having jurisdiction over the new place of employment. An O-2 alien may change employers only in conjunction with a change of employers by the principal O-1 alien. If the O-1 or O-2 petition was filed by an agent, an amended petition must be filed with evidence relating to the new employer and a request for an extension of stay. (D) Amended petition. The petitioner shall file an amended petition on Form I-129, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or the beneficiary's eligibility as specified in the original approved petition. In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O-1 caliber. (E) Agents as petitioners. An established United States agent may file a petition in cases involving an alien who is traditionally self-employed or uses agents to arrange short-term employment in his or her behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf. A petition filed by an agent is subject to the following conditions: (1) A person or company in business as an agent may file the petition involving multiple employers as the representative of both the employers and the beneficiary, if the supporting documentation includes a complete itinerary of the event or events. The itinerary must specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed. A contract between the employers and the beneficiary is required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation. (2) An agent performing the function of an employer must provide the contractual agreement between the agent and the beneficiary which specifies the wage offered and the other terms and conditions of employment of the beneficiary. (F) Multiple beneficiaries. More than one O-2 accompanying alien may be included on a petition if they are assisting the same O-1 alien for the same events or performances, during the same period of time, and in the same location. (3) Petition for alien of extraordinary ability or achievement (O-1).--(i) General. Extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievement in the case of an alien in the motion picture or television industry, must be

established for an individual alien. An O-1 petition must be accompanied by evidence that the work which the alien is coming to the United States to continue is in the area of extraordinary ability, and that the alien meets the criteria in paragraph (o)(3)(iii) or (iv) of this section. (ii) Definitions. As used in this paragraph, the term: Arts includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers. Event means an activity such as, but not limited to, a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Such activity may include short vacations, promotional appearances, and stopovers which are incidental and/or related to the event. A group of related activities may also be considered to be an event. In the case of an O-1 athlete, the event could be the alien's contract. Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts. Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. Extraordinary achievement with respect to motion picture and television productions, as commonly defined in the industry, means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field. Peer group means a group or organization which is comprised of practitioners of the alien's occupation. If there is a collective bargaining representative of an employer's employees in the occupational classification for which the alien is being sought, such a representative may be considered the appropriate peer group for purposes of consultation. (iii) Evidentiary criteria for an O-1 alien of extraordinary ability in the fields of science, education, business, or athletics. An alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of: (A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or (B) At least three of the following forms of documentation: (1) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien's membership in associations in the

field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; (4) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; (5) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field; (6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media; (7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; (8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence. (C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility. (iv) Evidentiary criteria for an O-1 alien of extraordinary ability in the arts. To qualify as an alien of extraordinary ability in the field of arts, the alien must be recognized as being prominent in his or her field of endeavor as demonstrated by the following: (A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or (B) At least three of the following forms of documentation: (1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements; (2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications; (3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials; (4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications; (5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the

author's authority, expertise, and knowledge of the alien's achievements; or (6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or (C) If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility. (v) Evidentiary criteria for an alien of extraordinary achievement in the motion picture or television industry. To qualify as an alien of extraordinary achievement in the motion picture or television industry, the alien must be recognized as having a demonstrated record of extraordinary achievement as evidenced by the following: (A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or (B) At least three of the following forms of documentation: (1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements; (2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications; (3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials; (4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications; (5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or (6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to other in the field, as evidenced by contracts or other reliable evidence. (4) Petition for an O-2 accompanying alien.--(i) General. An O-2 accompanying alien provides essential support to an O-1 artist or athlete. Such aliens may not accompany O-1 aliens in the fields of science, business, or education. Although the O-2 alien must obtain his or her own classification, this classification does not entitle him or her to work separate and apart from the O-1 alien to whom he or she provides support. An O-2 alien must be petitioned for in conjunction with the services of the O-1 alien. (ii) Evidentiary criteria for qualifying as an O-2 accompanying

alien.-- (A) Alien accompanying an O-1 artist or athlete of extraordinary ability. To qualify as an O-2 accompanying alien, the alien must be coming to the United States to assist in the performance of the O-1 alien, be an integral part of the actual performance, and have critical skills and experience with the O-1 alien which are not of a general nature and which are not possessed by a U.S. worker. (B) Alien accompanying an O-1 alien of extraordinary achievement. To qualify as an O-2 alien accompanying and O-1 alien involved in a motion picture or television production, the alien must have skills and experience with the O-1 alien which are not of a general nature and which are critical based on a pre-existing longstanding working relationship or, with respect to the specific production, because significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production. (C) The evidence shall establish the current essentiality, critical skills, and experience of the O-2 alien with the O-1 alien and that the alien has substantial experience performing the critical skills and essential support services for the O-1 alien. In the case of a specific motion picture or television production, the evidence shall establish that significant production has taken place outside the United States, and will take place inside the United States, and that the continuing participation of the alien is essential to the successful completion of the production. (5) Consultation.--(i) General.--(A) Consultation with an appropriate U.S. peer group (which could include a person or persons with expertise in the field), labor and/or management organization regarding the nature of the work to be done and the alien's qualifications is mandatory before a petition for an O-1 or O-2 classification can be approved. (B) Except as provided in paragraph (o)(5)(i)(E) of this section, evidence of consultation shall be in the form of a written advisory opinion from a peer group (which could include a person or persons with expertise in the field), labor and/or management organization with expertise in the specific field involved. (C) Except as provided in paragraph (o)(5)(i)(E) of this section, the petitioner shall obtain a written advisory opinion from a peer group (which could include a person or persons with expertise in the field), labor, and/or management organization with expertise in the specific field involved. The advisory opinion shall be submitted along with the petition when the petition is filed. If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. Advisory opinions must be submitted in writing and must be signed by an authorized official of the group or organization. (D) Except as provided in paragraph (o)(5)(i)(E) and (G) of this section, written evidence of consultation shall be included in the record in every approved O petition. Consultations are advisory and are not binding on the Service. (E) In a case where the alien will be employed in the field of arts, entertainment, or athletics, and the Service has determined that a petition merits expeditious handling, the Service shall contact the appropriate labor and/or management organization and request an advisory opinion if one is not submitted by the petitioner. The labor and/or management organization shall have 24 hours to respond to the Service's request. The Service shall adjudicate the petition after

receipt of the response from the consulting organization. The labor and/or management organization shall then furnish the Service with a written advisory opinion within 5 days of the initiating request. If the labor and/or management organization fails to respond within 24 hours, the Service shall render a decision on the petition without the advisory opinion. (F) In a routine processing case where the petition is accompanied by a written opinion from a peer group, but the peer group is not a labor organization, the Director will forward a copy of the petition and all supporting documentation to the national office of the appropriate labor organization within 5 days of receipt of the petition. If there is a collective bargaining representative of an employer's employees in the occupational classification for which the alien is being sought, that representative shall be the appropriate labor organization for purposes of this section. The labor organization will then have 15 days from receipt of the petition and supporting documents to submit to the Service a written advisory opinion, comment, or letter of no objection. Once the 15-day period has expired, the Director shall adjudicate the petition in no more than 14 days. The Director may shorten this time in his or her discretion for emergency reasons, if no unreasonable burden would be imposed on any participant in the process. If the labor organization does not respond within 15 days, the Director will render a decision on the record without the advisory opinion. (G) In those cases where it is established by the petitioner that an appropriate peer group, including a labor organization, does not exist, the Service shall render a decision on the evidence of record. (ii) Consultation requirements for an O-1 alien for extraordinary ability.--(A) Content. Consultation with a peer group in the area of the alien's ability (which may include a labor organization), or a person or persons with expertise in the area of the alien's ability, is required in an O-1 petition for an alien of extraordinary ability. If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If the advisory opinion is favorable to the petitioner, it should describe the alien's ability and achievements in the field of endeavor, describe the nature of the duties to be performed, and state whether the position requires the services of an alien of extraordinary ability. A consulting organization may also submit a letter of no objection in lieu of the above if it has no objection to the approval of the petition. (B) Waiver of consultation of certain aliens of extraordinary ability in the field of arts. Consultation for an alien of extraordinary ability in the field of arts shall be waived by the Director in those instances where the alien seeks readmission to the United States to perform similar services within 2 years of the date of a previous consultation. The director shall, within 5 days of granting the waiver, forward a copy of the petition and supporting documentation to the national office of an appropriate labor organization. Petitioners desiring to avail themselves of the waiver should submit a copy of the prior consultation with the petition and advise the Director of the waiver request. (iii) Consultation requirements for an O-1 alien of extraordinary achievement. In the case of an alien of extraordinary achievement who will be working on a motion picture or television production, consultation shall be made with the appropriate union representing the alien's occupational peers and a management organization in the area of

the alien's ability. If an advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If the advisory opinion is favorable to the petitioner, the written advisory opinion from the labor and management organizations should describe the alien's achievements in the motion picture or television field and state whether the position requires the services of an alien of extraordinary achievement. If a consulting organization has no objection to the approval of the petition, the organization may submit a letter of no objection in lieu of the above. (iv) Consultation requirements for an O-2 accompanying alien. Consultation with a labor organization with expertise in the skill area involved is required for an O-2 alien accompanying an O-1 alien of extraordinary ability. In the case of an O-2 alien seeking entry for a motion picture or television production, consultation with a labor organization and a management organization in the area of the alien's ability is required. If an advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If the advisory opinion is favorable to the petitioner, the opinion provided by the labor and/or management organization should describe the alien's essentiality to, and working relationship with, the O-1 artist or athlete and state whether there are available U.S. workers who can perform the support services. If the alien will accompany an O-1 alien involved in a motion picture or television production, the advisory opinion should address the alien's skills and experience wit the O-1 alien and whether the alien has a pre-existing longstanding working relationship with the O-1 alien, or whether significant production will take place in the United States and abroad and if the continuing participation of the alien is essential to the successful completion of the production. A consulting organization may also submit a letter of no objection in lieu of the above if it has no objection to the approval of the petition. (v) Organizations agreeing to provide advisory opinions. The Service will list in its Operations Instructions for O classification those peer groups, labor organizations, and/or management organizations which have agreed to provide advisory opinions to the Service and/or petitioners. The list will not be an exclusive or exhaustive list. The Service and petitioners may use other sources, such as publications, to identify appropriate peer groups, labor organizations, and management organizations. Additionally, the Service will list in its Operations Instructions those occupations or fields of endeavor where the nonexistence of an appropriate consulting entity has been verified. (6) Approval and validity of petition.--(1) Approval. The Director shall consider all of the evidence submitted and such other evidence as may be independently required to assist in the adjudication. The Director shall notify the petitioner of the approval of the petition on Form I-797, Notice of Action. The approval notice shall include the alien beneficiary name, the classification, and the petition's period of validity. (ii) Recording the validity of petitions. Procedures for recording the validity period of petitions are as follows; (A) If a new O petition is approved before the date the petitioner indicates the services will begin, the approved petition and approval notice shall show the actual dates requested by the petitioner, not to exceed the limit specified by paragraph (o)(6)(iii) of this section or other Service policy.

(B) If a new 0 petition is approved after the date the petitioner indicates the services will begin, the approved petition and approval notice shall generally show a validity period commencing with the date of approval and ending with the date requested by the petitioner, not to exceed the limit specified by paragraph (o)(6)(iii) of this section or other Service policy. (C) If the period of services requested by the petitioner exceeds the limit specified in paragraph (o)(6)(iii) of this section, the petition shall be approved only up to the limit specified in that paragraph. (iii) Validity.--(A) O-1 petition. An approved petition for an alien classified under section 101(a)(15)(O)(i) of the Act shall be valid for a period of time determined by the Director to be necessary to accomplish the event or activity, not to exceed 3 years. (B) O-2 petition. An approved petition for an alien classified under section 101(a)(15)(O)(ii) of the Act shall be valid for a period of time determined to be necessary to assist the O-1 alien to accomplish the event or activity, not to exceed 3 years. (iv) Spouse and dependents. The spouse and unmarried minor children of the O-1 or O-2 alien beneficiary are entitled to O-3 nonimmigrant classification, subject to the same period of admission and limitations as the alien beneficiary, if they are accompanying or following to join the alien beneficiary in the United States. Neither the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization. (7) Denial of petition.--(i) Notice of intent to deny. When an adverse decision is proposed on the basis of derogatory information of which the petitioner is unaware, the Director shall notify the petitioner of the intent to deny the petition and the basis for the denial. The petitioner may inspect and rebut the evidence and will be granted a period of 30 days from the date of the notice in which to do so. All relevant rebuttal material will be considered in making a final decision. (ii) Notice of denial. The petitioner shall be notified of the decision, the reasons for the denial, and the right to appeal the denial under 8 CFR part 103. (8) Revocation of approval of petition.--(i) General. (A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(O) of the Act and paragraph (o) of this section. An amended petition should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the Director who approved the petition. (B) The Director may revoke a petition at any time, even after the validity of the petition has expired. (ii) Automatic revocation. The approval of an unexpired petition is automatically revoked if the petitioner, or the named employer in a petition filed by an agent, goes out of business, files a written withdrawal of the petition, or notifies the Service that the beneficiary is no longer employed by the practitioner. (iii) Revocation on notice.--(A) Grounds for revocation. The Director shall send to the petitioner a notice of intent to revoke the petition in relevant part if is determined that: (1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition; (2) The statement of facts contained in the petition was not true

and correct; (3) The petitioner violated the terms or conditions of the approved petition; (4) The petitioner violated the requirements of section 101(a)(15)(O) of the Act or paragraph (o) of this section; or (5) The approval of the petition violated paragraph (o) of this section or involved gross error. (B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days of the date of the notice. The Director shall consider all relevant evidence presented in deciding whether to revoke the petition. (9) Appeal of a denial or a revocation of a petition.--(i) Denial. A denied petition may be appealed under 8 CFR part 103. (ii) Revocation. A petition that has been revoked on notice may be appealed under 8 CFR part 103. Automatic revocations may not be appealed. (10) Admission. A beneficiary may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may only engage in employment during the validity period of the petition. (11) Extention of visa petition validity. The petitioner shall file a request to extend the validity of the original petition under section 101(a)(15)(O) of the Act on Form I-129, Petition for a Nonimmigrant Worker, in order to continue or complete the same activities or events specified in the original petition. Supporting documents are not required unless requested by the Director. A petition extension may be filed only if the validity of the original petition has not expired. (12) Extension of stay.--(i) Extension procedure. The petitioner shall request extension of the alien's stay to continue or complete the same event or activity by filing Form I-129, accompanied by a statement explaining the reasons for the extension. The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary's extension of stay. The alien beneficiary must be physically present in the United States at the time of filing of the extension of stay. Even though the request to extend the petition and the alien's stay are combined on the petition, the Director shall make a separate determination on each. If the alien leaves the United States for business or personal reasons while the extension requests are pending, the petitioner may request the Director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa. (ii) Extension period. An extension of stay may be authorized in increments of up to 1 year for an O-1 or O-2 beneficiary to continue or complete the same event or activity for which he or she was admitted plus an additional 10 days to allow the beneficiary to get his or her personal affairs in order. (iii) Denial of an extension of stay. The denial of the request for the alien's extension of temporary stay may not be appealed. (13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may

legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. (14) Effect of a strike.--(i) If the Secretary of Labor certifies to the Commissioner that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place where the beneficiary is to be employed, and that the employment of the beneficiary would adversely affect the wages and working conditions of U.S. citizens and lawful resident workers: (A) A petition to classify an alien as a nonimmigrant as defined in section 101(a)(15)(O) of the Act shall be denied; or (B) If a petition has been approved, but the alien has not yet entered the United States, or has entered the United States but has not commenced employment, the approval of the petition is automatically suspended, and the application for admission on the basis of the petition shall be denied. (ii) If there is a strike or other labor dispute involving a work stoppage of workers in progress, but such strike or other labor dispute is not certified under paragraph (o)(14)(i) of this section, the Commissioner shall not deny a petition or suspend an approved petition. (iii) If the alien has already commenced employment in the United States under an approved petition and is participating in a strike or labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Secretary of Labor, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers but is subject to the following terms and conditions: (A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated thereunder in the same manner as are all other O nonimmigrants; (B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and (C) Although participation by an O nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for deportation, and alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired will be subject to deportation. (15) Use of approval notice, Form I-797. The Service shall notify the petitioner of Form I-797 whenever a visa petition or an extension of a visa petition is approved under the O classification. The beneficiary of an O petition who does not require a nonimmigrant visa may present a copy of the approval notice at a Port-of-Entry to facilitate entry into the United States. A beneficiary who is required to present a visa for admission, and who visa will have expired before the date of his or her intended return, may use Form I-797 to apply for a new or revalidated visa during the validity period of the petition. A copy of Form I-797 shall be retained by the beneficiary and presented during the validity of the petition when reentering the United States to resume the same employment with the same petitioner. (16) Return transportation requirement. In the case of an alien who enters the United States under section 101(a)(15(O) of the Act and whose employment terminates for reasons other than voluntary resignation, the employer whose offer of employment formed the basis of

such nonimmigrant status and the petitioner are jointly and severally liable for the reasonable cost of return transportation of the alien abroad. For the purposes of this paragraph, the term ``abroad'' means the alien's last place of residence prior to his or her entry into the United States. (p) Artists, athletes, and entertainers--(1) Classifications.--(i) General. Under section 101(a)(15)(P) of the Act, an alien having a residence in a foreign country which he or she has not intention or abandoning may be authorized to come to the United States temporarily to perform services for an employer or a sponsor. Under the nonimmigrant category, the alien may be classified under section 101(a)(15)(P)(i) of the Act as an alien who is coming to the United States to perform services as an internationally recognized athlete, individually or as part of a group or team, or member of an internationally recognized entertainment group; under section 101(a)(15)(P)(ii) of the Act, who is coming to perform as an artist or entertainer under a reciprocal exchange program; under section 101(a)(15)(P)(iii) of the Act, as an alien who is coming solely to perform, teach, or coach under a program that is culturally unique; or under section 101(a)(15)(P)(iv) of the Act, as the spouse or child of an alien described in section 101(a)(15)(P) (i), (ii), or (iii) of the Act who is accompanying or following to join the alien. These classifications are called P-1, P-2, P-3, and P-4 respectively. The employer or sponsor must file a petition with the Service for review of the services to be performed and for determination of the alien's eligibility for P-1, P-2, or P-3 classification before the alien may apply for a visa or seek admission to the United States. This paragraph sets forth the standards and procedures applicable to these classifications. (ii) Description of classification--(A) A P-1 classification applies to an alien who is coming temporarily to the United States: (1) To perform at specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level or performance, or (2) To perform with, or as an integral and essential part of the performance of, and entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time, and who has had a sustained and substantial relationship with the group (ordinarily for at least 1 year) and provides functions integral to the performance of the group. (B) A P-2 classification applies to an alien who is coming temporarily to the United States to perform as an artist or entertainer, individually or as part of a group, or to perform as an integral part of the performance of such a group, and who seeks to perform under a reciprocal exchange program which is between an organization or organizations in the United States and an organization or organizations in one or more foreign states, and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers. (C) A P-3 classification applies to an alien artist or entertainer who is coming temporarily to the United States, either individually or as part of a group, or as an integral part of the performance of the group, to perform, teach, or coach under a commercial or noncommercial program that is culturally unique. (2) Filing of petitions(i) General. A P-1 petition for an athlete or entertainment group shall be filed by a U.S. employer or sponsoring organization, a foreign employer, or an established U.S. agent. A P-2

petition for an artist or entertainer in a reciprocal exchange program shall be filed by the U.S. labor organization which negotiated the reciprocal exchange agreement, the sponsoring organization, or an employer in the United States. A P-3 petition for an artist or entertainer in a culturally unique program shall be filed by the sponsoring organization or an employer in the United States. Essential support personnel may not be included on the petition filed for the principal alien(s). These aliens require a separate petition. The petitioner shall file a P petition on Form I-129, Petition for Nonimmigrant Worker, with the Service Center which has jurisdiction in the area where the alien will work. The petition may not be filed more than 6 months before the actual need for the alien's services. A P-1, P-2, or P-3 petition shall be adjudicated at the appropriate Service Center, even in emergent situations. (ii) Evidence required to accompany a petition for a P nonimmigrant. Petitions for P nonimmigrant aliens shall be accompanied by the following: (A) The evidence specified in the specific section of this part for the classification; (B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien(s) will be employed; (C) An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and (D) A written consultation from a labor organization. (iii) Form of documentation. The evidence submitted with an P petition should conform to the following: (A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the alien's achievement and be executed by an officer or responsible person employed by the institution, establishment, or organization where the work has performed. (B) Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability, or, in the case of a motion picture or television production, the extraordinary achievement of the alien, which shall specifically describe the alien's recognition and ability or achievement in factual terms. The affidavit must also set forth the expertise of the affiant and the manner in which the affiant acquired such information. (C) A legible copy of a document in support of the petition may be submitted in lieu of the original. However, the original document shall be submitted if requested by the Director. (iv) Other filing situations--(A) Services in more than one location. A petition which requires the alien to work in more than one location (e.g., a tour) must include an itinerary with the dates and locations of the performances and must be filed with the Service Center which has jurisdiction in the area where the petitioner is located. The address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph (p). If the petitioner is a foreign employer with no United States location, the petition shall be filed with the Service Center that has jurisdiction over the area where the employment will begin. (B) Services for more than one employer. If the beneficiary(ies) will work for more than one employer within the same time period, each employer must file a separate petition with the Service Center that has jurisdiction over the area where the alien will perform the services, unless an established agent files the petition pursuant to paragraph

(p)(2)(iv) of this section. (C) Change of employer. If a P-1, P-2, or P-3 alien in the United States seeks to change employers or sponsors, the new employer or sponsor must file both a petition and a request to extend the alien's stay in the United States. If the petition was initially filed by an agent, an amended petition must be filed with information relating to the new employer and with a request for an extension of stay. (D) Amended petition. The petitioner shall file an amended petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or the beneficiary's eligibility as specified in the original approved petition. A petitioner may add additional similar or comparable performances, engagements, or competitions during the validity period of the petition without filing an amended petition. (E) Agents as petitioners. An established U.S. agent may file a petition in cases involving workers who traditionally are self-employed or use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf. A petition filed by an agent is subject to the following conditions: (1) A person or company in business as an agent may file the P petition involving multiple employers as the representative of both the employers and the beneficiary(ies) if the supporting documentation includes a complete itinerary of services or engagements. The itinerary shall specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed. In questionable cases, a contract between the employer(s) and the beneficiary(ies) may be required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation. (2) An agent performing the function of an employer must specify the wage offered and the other terms and conditions of employment by contractual agreement with the beneficiary(ies). The agent/employer must also provide an itinerary of definite employment and information on any other services planned for the period of time requested. (F) Multiple beneficiaries. More than one beneficiary may be included in a P petition if they are members of a group seeking classification based on the reputation of the group as an entity, or if they will provide essential support to P-1, P-2, or P-3 beneficiaries performing in the same location and in the same occupation. (G) Named beneficiaries. Petitions for P classification must include the names of beneficiaries and other required information at the time of filing. (H) Substitution of beneficiaries. Beneficiaries may be substituted for P-1, P-2, and P-3 petitions for groups. To request substitution, the petitioner shall submit a letter requesting such substitution, along with a copy of the petitioner's approval notice, to the consular office at which the alien will apply for a visa or the Port-of-Entry where the alien will apply for admission. Essential support personnel may not be substituted at consular offices or at Ports-of-Entry. (3) Definitions. As used in this paragraph, the term: Arts includes fields of creative activity or endeavor such as, but not limited to, fine arts, visual arts, and performing arts. Competition, event, or performance means an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such activity could

include short vacations, promotional appearances for the petitioning employer relating to the competition, event, or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances A group of related activities will also be considered an event. In the case of a P-2 petition, the event may be the duration of the reciprocal exchange agreement. In the case of a P-1 athlete, the event may be the duration of the lien's contract. Contract means the written agreement between the petitioner and the beneficiary(ies) that explains the terms and conditions of employment. The contract shall describe the services to be performed, and specify the wages, hours of work, working conditions, and any fringe benefits. Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons. Essential support alien means a highly skilled, essential person determined by the Director to be an integral part of the performance of a P-1, P-2, or P-3 alien because he or she performs support services which cannot be readily performed by a United States worker and which are essential to the successful performance of services by the P-1, P-2, alien. Such alien must have appropriate qualifications to perform the services, critical knowledge of the specific services to be performed, and experience in providing such support to the P-1, P-2, or P-3 alien. Group means two or more persons established as one entity or unit to perform or to provide a service. Internationally recognized means having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country. Member of a group means a person who is actually performing the entertainment services. Sponsor means an established organization in the United States which will not directly employ a P-1, P-2, or P-3 alien but will assume responsibility for the accuracy of the terms and conditions specified in the petition. Team means two or more persons organized to perform together as a competitive unit in a competitive event. (4) Petition for an internationally recognized athlete or member of an internationally recognized entertainment group (P-1)--(i) Types of classification.--(A) P-1 classification as an athlete in an individual capacity. A P-1 classification may be granted to an alien who is an internationally recognized athlete based on his or her own reputation and achievements as an individual. The alien must be coming to the United States to perform services which require an internationally recognized athlete. (B) P-1 classification as a member of an entertainment group or an athletic team. An entertainment group or athletic team consists of two or more persons who function as a unit. The entertainment group or athletic team as a unit must be internationally recognized as outstanding in the discipline and must be coming to perform services which require an internationally recognized entertainment group or athletic team. A person who is a member of an internationally recognized entertainment group or athletic team may be granted P-1 classification based on that relationship, but may not perform services separate and apart from the entertainment group or athletic team. An entertainment group must have been established for a minimum of 1 year,

and 75 percent of the members of the group must have been performing entertainment services for the group for a minimum of 1 year. (ii) Criteria and documentary requirements for P-1 athletes--(A) General. A P-1 athlete must have an internationally recognized reputation as an international athlete or he or she must be a member of a foreign team that is internationally recognized. The athlete or team must be coming to the United States to participate in an athletic competition which has a distinguished reputation and which requires participation of an athlete or athletic team that has an international reputation. (B) Evidentiary requirements for an internationally recognized athlete or athletic team. A petition for an athletic team must be accompanied by evidence that the team as a unit has achieved international recognition in the sport. Each member of the team is accorded P-1 classification based on the international reputation of the team. A petition for an athlete who will compete individually or as a member of a U.S. team must be accompanied by evidence that the athlete has achieved international recognition in the sport based on his or her reputation. A petition for a P-1 athlete or athletic team shall include: (1) A tendered contract with a major United States sports league or team, or a tendered contract in an individual sport commensurate with international recognition in that sport, if such contracts are normally executed in the sport, and (2) Documentation of at least two of the following: (i) Evidence of having participated to a significant extent in a prior season with a major United States sports league; (ii) Evidence of having participated in international competition with a national team; (iii) Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition; (iv) A written statement from an official of the governing body of the sport which details how the alien or team is internationally recognized; (v) A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized; (vi) Evidence that the individual or team is ranked if the sport has international rankings; or (vii) Evidence that the alien or team has received a significant honor or award in the sport. (iii) Criteria and documentary requirements for members of an internationally recognized entertainment group--(A) General. A P-1 classification shall be accorded to an entertainment group to perform as a unit based on the international reputation of the group. Individual entertainers shall not be accorded P-1 classification to perform separate and apart from a group. Except as provided in paragraph (p)(4)(iii)(C)(2) of this section, it must be established that the group has been internationally recognized as outstanding in the discipline for a sustained and substantial period of time. Seventy-five percent of the members of the group must have had a sustained and substantial relationship with the group for at least 1 year and must provide functions integral to the group's performance. (B) Evidentiary criteria for members of internationally recognized entertainment groups. A petition for P-1 classification for the members of an entertainment group shall be accompanied by:

(1) Evidence that the group has been established and performing regularly for a period of at least 1 year; (2) A statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group; and (3) Evidence that the group has been internationally recognized in the discipline for a sustained and substantial period of time. This may be demonstrated by the submission of evidence of the group's nomination or receipt of significant international awards or prices for outstanding achievement in its field or by three of the following different types of documentation: (i) Evidence that the group has performed, and will perform, as a starring or leading entertainment group in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements; (ii) Evidence that the group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material; (iii) Evidence that the group has performed, and will perform, services as a leading or starring group for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials; (iv) Evidence that the group has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as ratings; standing in the field; box office receipts; record, cassette, or video sales; and other achievements in the field as reported in trade journals, major newspapers, or other publications; (v) Evidence that the group has achieved significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or (vi) Evidence that the group has either commanded a high salary or will command a high salary or other substantial remuneration for services comparable to other similarly situated in the field as evidenced by contracts or other reliable evidence. (C) Special provisions for certain entertainment groups.--(1) Alien circus personnel. The 1-year group membership requirement and the international recognition requirement are not applicable to alien circus personnel who perform as part of a circus or circus group, or who constitute an integral and essential part of the performance of such circus or circus group, provided that the alien or aliens are coming to join a circus that has been recognized nationally as outstanding for a sustained and substantial period of time or as part of such a circus. (2) Certain nationally known entertainment groups. The Director may waive the international recognition requirement in the case of an entertainment group which has been recognized nationally as being outstanding in its discipline for a sustained and substantial period of time in consideration of special circumstances. An example of a special circumstances would be when an entertainment group may find it difficult to demonstrate recognition in more than one country due to such factors as limited access to news media or consequences of geography. (3) Waiver of 1-year relationship in exigent circumstances. The

Director may waive the 1-year relationship requirement for an alien who, because of illness or unanticipated and exigent circumstances, replaces an essential member of a P-1 entertainment group or an alien who augments the group by performing a critical role. The Department of State is hereby delegated the authority to waive the 1-year relationship requirement in the case of consular substitutions involving P-1 entertainment groups. (iv) P-1 classification as an essential support alien.--(A) General. An essential support alien as defined in paragraph (p)(3) of this section may be granted P-1 classification based on a support relationship with an individual P-1 athlete, P-1 athletic team, or a P-1 entertainment group. (B) Evidentiary criteria for a P-1 essential support petition. A petition for P-1 essential support personnel must be accompanied by: (1) A consultation from a labor organization with expertise in the area of the alien's skill; (2) A statement describing the alien(s) prior essentiality, critical skills, and experience with the principal alien(s); and (3) A copy of the written contract or a summary of the terms of the oral agreement between the alien(s) and the employer. (5) Petition for an artist or entertainer under a reciprocal exchange program (P-2)--(i) General. (A) A P-2 classification shall be accorded to artists or entertainers, individually or as a group, who will be performing under a reciprocal exchange program which is between an organization or organizations in the United States, which may include a management organization, and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers. (B) The exchange of artists or entertainers shall be similar in terms of caliber of artists or entertainers, terms and conditions of employment, such as length of employment, and numbers of artists or entertainers involved in the exchange. However, this requirement does not preclude an individual for group exchange. (C) An alien who is an essential support person as defined in paragraph (p)(3) of this section may be accorded P-2 classification based on a support relationship to a P-2 artist or entertainer under a reciprocal exchange program. (ii) Evidentiary requirements for petition involving a reciprocal exchange program. A petition for P-2 classification shall be accompanied by: (A) A copy of the formal reciprocal exchange agreement between the U.S. organization or organizations which sponsor the aliens and an organization or organizations in a foreign country which will receive the U.S. artist or entertainers; (B) A statement from the sponsoring organization describing the reciprocal exchange of U.S. artists or entertainers as it relates to the specific petition for which P-2 classification is being sought; (C) Evidence that an appropriate labor organization in the United States was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers; and (D) Evidence that the aliens for whom P-2 classification is being sought and the U.S. artists or entertainers subject to the reciprocal exchange agreement are artists or entertainers with comparable skills, and that the terms and conditions of employment are similar. (iii) P-2 classification as an essential support alien.--(A) General. An essential support alien as defined in paragraph (p)(3) of

this section may be granted P-2 classification based on a support relationship with a P-2 entertainer or P-2 entertainment group. (B) Evidentiary criteria for a P-2 essential support petition. A petition for P-2 essential support personnel must be accompanied by: (1) A consultation from a labor organization with expertise in the area of the alien's skill; (2) A statement describing the alien(s) prior essentiality, critical skills, and experience with the principal alien(s); and (3) A copy of the written contract or a summary of the terms of the oral agreement between the alien(s) and the employer. (6) Petition for an artist or entertainer under a culturally unique program--(i)--General. (A) A P-3 classification may be accorded to artists or entertainers, individually or as a group, coming to the United States for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. (B) The artist or entertainer must be coming to the United States to participate in a cultural event or events which will further the understanding or development of his or her art form. The program may be of a commercial or noncommercial nature. (ii) Evidentiary criteria for a petition involving a culturally unique program. A petition for P-3 classification shall be accompanied by: (A) Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the alien's or the group's skills in performing, presenting, coaching, or teaching the unique or traditional art form and giving the credentials of the expert, including the basis of his or her knowledge of the alien's or group's skill, or (B) Documentation that the performance of the alien or group is culturally unique, as evidence by reviews in newspapers, journals, or other published materials; and (C) Evidence that all of the performances or presentations will be culturally unique events. (iii) P-3 classification as an essential support alien.--(A) General. An essential support alien as defined in paragraph (p)(3) of this section may be granted P-3 classification based on a support relationship with a P-3 entertainer or P-3 entertainment group. (B) Evidentiary criteria for a P-3 essential support petition. A petition for P-3 essential support personnel must be accompanied by: (1) A consultation from a labor organization with expertise in the area of the alien's skill; (2) A statement describing the alien(s) prior essentiality, critical skills and experience with the principal alien(s); and (3) A copy of the written contract or a summary of the terms of the oral agreement between the alien(s) and the employer. (7) Consultation--(i) General. (A) Consultation with an appropriate labor organization regarding the nature of the work to be done and the alien's qualifications is mandatory before a petition for P-1, P-2, or P-3 classification can be approved. (C) Except as provided in paragraph (p)(7)(i)(E) of this section, the petitioner shall obtain a written advisory opinion from an appropriate labor organization. The advisory opinion shall be submitted along with the petition when the petition is filed. If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which support the conclusion reached in the opinion. Advisory opinions must be submitted in writing

and signed by an authorized official of the organization. (D) Except as provided in paragraph (p)(7)(i) (E) and (F) of this section, written evidence of consultation shall be included in the record of every approved petition. Consultations are advisory and are not binding on the Service. (E) In a case where the Service has determined that a petition merits expeditious handling, the Service shall contact the labor organization and request an advisory opinion if one is not submitted by the petitioner. The labor organization shall have 24 hours to respond to the Service's request. The Service shall adjudicate the petition after receipt of the response from the labor organization. The labor organization shall then furnish the Service with a written advisory opinion within 5 working days of the request. If the labor organization fails to respond within 24 hours, the Service shall render a decision on the petition without the advisory opinion. (F) In those cases where it is established by the petitioner that an appropriate labor organization does not exist, the Service shall render a decision on the evidence of record. (ii) Consultation requirements for P-1 athletes and entertainment groups. Consultation with a labor organization that has expertise in the area of the alien's sport or entertainment field is required in the case of a P-1 petition. If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which support the conclusion reached in the opinion. If the advisory opinion provided by the labor organization is favorable to the petitioner it should evaluate and/or describe the alien's or group's ability and achievements in the field of endeavor, comment on whether the alien or group is internationally recognized for achievements, and state whether the services the alien or group is coming to perform are appropriate for an internationally recognized athlete or entertainment group. In lieu of the above, a labor organization may submit a letter of no objection if it has no objection to the approval of the petition. (iii) Consultation requirements for P-1 circus personnel. The advisory opinion provided by the labor organization should comment on whether the circus which will employ the alien has national recognition as well as any other aspect of the beneficiary's or beneficiaries' qualifications which the labor organization deems appropriate. If the advisory opinion is not favorable to the petitioner, it must set forth a specific statement of facts which support the conclusion reached in the opinion. In lieu of the above, a labor organization may submit a letter of no objection if it has no objection to the approval of the petition. (iv) Consultation requirements for P-2 alien in a reciprocal exchange program. In P-2 petitions where an artist or entertainer is coming to the United States under a reciprocal exchange program, consultation with the appropriate labor organization is required to verify the existence of a viable exchange program. The advisory opinion from the labor organization shall comment on the bona fides of the reciprocal exchange program and specify whether the exchange meets the requirements of paragraph (p)(5) of this section. If the advisory opinion is not favorable to the petitioner, it must also set forth a specific statement of facts which support the conclusion reached in the opinion. (v) Consultation requirements for P-3 in a culturally unique program. Consultation with an appropriate labor organization is required for P-3 petitions involving aliens in culturally unique programs. If the advisory opinion is favorable to the petitioner, it

should evaluate the cultural uniqueness of the alien's skills, state whether the events are cultural in nature, and state whether the event or activity is appropriate for P-3 classification. If the advisory opinion is not favorable to the petitioner, it must also set forth a specific statement of facts which support the conclusion reached in the opinion. In lieu of the above, a labor organization may submit a letter of no objection if it has no objection to the approval of the petition. (vi) Consultation requirements for essential support aliens. Written consultation on petitions for P-1, P-2, or P-3 essential support aliens must be made with a labor organization with expertise in the skill area involved. If the advisory opinion provided by the labor organization is favorable to the petitioner, it must evaluate the alien's essentiality to and working relationship with the artist or entertainer, and state whether United States workers are available who can perform the support services. If the advisory opinion is not favorable to the petitioner, it must also set forth a specific statement of facts which support the conclusion reached in the opinion. A labor organization may submit a letter of no objection if it has no objection to the approval of the petition. (vii) Labor organizations agreeing to provide consultations. The Service shall list in its Operations Instructions for P classification those organizations which have agreed to provide advisory opinions to the Service and/or petitioners. The list will not be an exclusive or exhaustive list. The Service and petitioners may use other sources, such as publications, to identify appropriate labor organizations. The Service will also list in its Operations Instructions those occupations or fields of endeavor where it has been determined by the Service that no appropriate labor organization exists. (i) Approval and validity of petition--(i) Approval. The Director shall consider all the evidence submitted and such other evidence as he or she may independently require to assist in his or her adjudication. The Director shall notify the petitioner of the approval of the petition on Form I-797, Notice of Action. The approval notice shall include the alien beneficiary's name and classification and the petition's period of validity. (ii) Recording the validity of petitions. Procedures for recording the validity period of petitions are: (A) If a new P petition is approved before the date the petitioner indicates the services will begin, the approved petition and approval notice shall show the actual dates requested by the petitioner as the validity period, not to exceed the limit specified in paragraph (p)(8)(iii) of this section or other Service policy. (B) If a new P petition is approved after the date the petitioner indicates the services will begin, the approved petition and approval notice shall generally show a validity period commencing with the date of approval and ending with the date requested by the petitioner, not to exceed the limit specified in paragraph (p)(8)(iii) of this section or other Service policy. (C) If the period of services requested by the petitioner exceeds the limit specified in paragraph (p)(8)(iii) of this section, the petition shall be approved only up to the limit specified in that paragraph. (iii) Validity. The approval period of a P petition shall conform to the limits prescribed as follows: (A) P-1 petition for athletes. An approved petition for an individual athlete classified under section 101(a)(15)(P)(i) of the Act shall be valid for a period up to 5 years. An approved petition for an

athletic team classified under section 101(a)(15)(P)(i) of the Act shall be valid for a period of time determined by the Director to complete the competition or event for which the alien team is being admitted, not to exceed 1 year. (B) P-1 petition for an entertainment group. An approved petition for an entertainment group classified under section 101(a)(15)(P)(i) of the Act shall be valid for a period of time determined by the Director to be necessary to complete the performance or event for which the group is being admitted, not to exceed 1 year. (C) P-2 and P-3 petitions for artists or entertainers. An approved petition for an artist or entertainer under section 101(a)(15)(P)(ii) or (iii) of the Act shall be valid for a period of time determined by the Director to be necessary to complete the event, activity, or performance for which the P-2 or P-3 alien is admitted, not to exceed 1 year. (D) Spouse and dependents. The spouse and unmarried minor children of a P-1, P-2, or P-3 alien beneficiary are entitled to P-4 nonimmigrant classification, subject to the same period of admission and limitations as the alien beneficiary, if they are accompanying or following to join the alien beneficiary in the United States. Neither the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization. (E) Essential support aliens. Petitions for essential support personnel to P-1, P-2, and P-3 aliens shall be valid for a period of time determined by the Director to be necessary to complete the event, activity, or performance for which the P-1, P-2, or P-3 alien is admitted, not to exceed 1 year. (9) Denial of petition--(i) Notice of intent to deny. When an adverse decision is proposed on the basis of derogatory information of which the petitioner is unaware, the Director shall notify the petitioner of the intent to deny the petition and the basis for the denial. The petitioner may inspect and rebut the evidence and will be granted a period of 30 days from the date of the notice in which to do so. All relevant rebuttal material will be considered in making a final decision. (ii) Notice of denial. The petitioner shall be notified of the decision, the reasons for the denial, and the right to appeal the denial under 8 CFR part 103. There is no appeal from a decision to deny an extension of stay to the alien or a change of nonimmigrant status. (10) Revocation of approval of petition--(i) General. (A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(P) of the Act and paragraph (p) of this section. An amended petition should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the Director who approved the petition. (B) The Director may revoke a petition at any time, even after the validity of the petition has expired. (ii) Automatic revocation. The approval of an unexpired petition is automatically revoked if the petitioner, or the employer in a petition filed by an agent, goes out of business, files a written withdrawal of the petition, or notifies the Service that the beneficiary is no longer employed by the petitioner. (iii) Revocation on notice--(A) Grounds for revocation. The Director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he or she finds that:

(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition; (2) The statement of facts contained in the petition were not true and correct; (3) The petitioner violated the terms or conditions of the approved petition; (4) The petitioner violated requirements of section 101(a)(15)(P) of the Act or paragraph (p) of this section; or (5) The approval of the petition violated paragraph (p) of this section or involved gross error. (B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days of the date of the notice. The Director shall consider all relevant evidence presented in deciding whether to revoke the petition. (11) Appeal of a denial or a revocation of a petition--(i) Denial. A denied petition may be appealed under 8 CFR part 103. (ii) Revocation. A petition that has been revoked on notice may be appealed under 8 CFR part 103. Automatic revocations may not be appealed. (12) Admission. A beneficiary may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition. (13) Extension of visa petition validity. The petitioner shall file a request to extend the validity of the original petition under section 101(a)(15)(P) of the Act on Form I-129 in order to continue or complete the same activity or event specified in the original petition. Supporting documents are not required unless requested by the Director. A petition extension may be filed only if the validity of the original petition has not expired. (14) Extension of stay--(i) Extension procedure. The petitioner shall request extension of the alien's stay to continue or complete the same event or activity by filing Form I-129, accompanied by a statement explaining the reasons for the extension. The petitioner must also request a petition extension. The extension dates shall be the same for the petition and the beneficiary's stay. The beneficiary must be physically present in the United States at the time the extension of stay is filed. Even though the requests to extend the petition and the alien's stay are combined on the petition, the Director shall make a separate determination on each. If the alien leaves the United States for business or personal reasons while the extension requests are pending, the petitioner may request the Director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa. (ii) Extension periods--(A) P-1 individual athlete. An extension of stay for a P-1 individual athlete and his or her essential support personnel may be authorized for a period up to 5 years for a total period of stay not to exceed 10 years. (B) Other P-1, P-2, and P-3 aliens. An extension of stay may be authorized in increments of 1 year for P-1 athletic teams, entertainment groups, aliens in reciprocal exchange programs, aliens in culturally unique programs, and their essential support personnel to continue or complete the same event or activity for which they were admitted.

(15) Effect of approval of a permanent labor certification or filing of a preference petition on P classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying a P petition, a request to extend such a petition, or the alien's admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as a P nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. This provision does not include essential support personnel. (16) Effect of a strike--(i) If the Secretary of Labor certifies to the Commissioner that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place where the beneficiary is to be employed, and that the employment of the beneficiary would adversely affect the wages and working conditions of U.S. citizens and lawful resident workers: (A) A petition to classify an alien as a nonimmigrant as defined in section 101(a)(15)(P) of the Act shall be denied; or (B) If a petition has been approved, but the alien has not yet entered the United States, or has entered the United States but has not commenced employment, the approval of the petition is automatically suspended, and the application for admission of the basis of the petition shall be denied. (ii) If there is a strike or other labor dispute involving a work stoppage of workers in progress, but such strike or other labor dispute is not certified under paragraph (p)(16)(i) of this section, the Commissioner shall not deny a petition or suspend an approved petition. (iii) If the alien has already commenced employment in the United States under an approved petition and is participating in a strike or labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Secretary of Labor, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers but is subject to the following terms and conditions: (A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated thereunder in the same manner as all other P nonimmigrant aliens; (B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and (C) Although participation by a P nonimmigrant alien in a strike or other labor dispute involving a work stoppages of workers will not constitute a ground for deportation, an alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired, will be subject to deportation. (17) Use of approval of notice, Form I-797. The Service has notify the petitioner on Form I-797 whenever a visa petition or an extension of a visa petition is approved under the P classification. The beneficiary of a P petition who does not require a nonimmigrant visa may present a copy of the approved notice at a Port-of-Entry to facilitate entry into the United States. A beneficiary who is required to present a visa for admission, and whose visa expired before the date of his or her intended return, may use Form I-797 to apply for a new or revalidated visa during the validity period of the petition. The copy of Form I-797 shall be retained by the beneficiary and present during

the validity of the petition when reentering the United States to resume the same employment with the same petitioner. (18) Return transportation requirement. In the case of an alien who enters the United States under section 101(a)(15)(P) of the Act and whose employment terminates for reasons other than voluntary resignation, the employer whose offer of employment formed the basis of suh nonimmigrant status and the petitioner are jointly and severally liable for the reasonable cost of return transporation of the alien abroad. For the purposes of this paragraph, the term ``abroad'' means the alien's last place of residence prior to his or her entry into the United States. * * * * * * * Dated: July 13, 1994.Doris Meissner,Commissioner, Immigration and Naturalization Service[FR Doc. 94-16674 Filed 8-12-94; 8:45 am]BILLING CODE 4410-10-M