18508 Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations

Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices; or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12866

This final rule is not considered by

the Department of Justice, Immigration

and Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review, and

the Office of Management and Budget

has waived its review process under

section (6)(a)(3)(A).

Executive Order 12988

This final rule meets the applicable

standards set forth in sections (3)(a) and

(3)(b)(2) of E.O. 12988.

Executive Order 12612

This regulation will not have a

substantial direct effect on the States, on

the relationships between the National

Government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. It merely

implements section 220 of Pub. L. 103–

416, which grants the States, in limited

circumstances, the authority to submit

requests for waiver recommendations to

the Director of the USIA on behalf of

certain foreign medical graduates.

Therefore, in accordance with E.O.

12612, it is determined that this rule

does not have sufficient Federalism

implications to warrant the preparation

of a Federalism Assessment.

List of Subjects

8 CFR Part 212

Administration practice and

procedure, Aliens, Immigration,

Passports and visas, Reporting and

recordkeeping requirements.

8 CFR Part 245

Aliens, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 248

Aliens, Reporting and recordkeeping

requirements.

Accordingly, the interim rule

amending 8 CFR parts 212, 245 and 248,

which was published at 60 FR 26676–

26683 on May 18, 1995, is adopted as

a final rule with the following changes:

PART 212—DOCUMENTARY

REQUIREMENTS: NONIMMIGRANTS;

WAIVERS; ADMISSION OF CERTAIN

INADMISSIBLE ALIENS; PAROLE

1. The authority citation for part 212

continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182,

1184, 1187, 1225, 1226, 1227, 1228, 1252; 8

CFR part 2.

§ 212.7 [Amended]

2. Section 212.7 is amended in the

fifth sentence of paragraph (c)(9)

introductory text, by revising the

reference to ‘‘section 214(k) of the Act’’

to read: ‘‘section 214(l) of the Act (as

redesignated by section 671(a)(3)(A) of

Pub. L. 104–208)’’.

3. Section 212.7 is amended by

revising the reference to ‘‘section

214(k)’’ to read: ‘‘section 214(l)’’

wherever it appears in the following

paragraphs:

a. Paragraph (c)(9)(iv); and

b. Paragraph (c)(9)(vi).

3. Section 212.7 is amended by

revising the reference to ‘‘section

214(k)(1)(B)’’ to read: ‘‘section

214(l)(1)(B)’’ in the first sentence of the

unnumbered paragraph immediately

after paragraph (c)(9)(iv).

4. Section 212.7 is amended by

revising paragraph (c)(9)(i)(A), to read as

follows:

§ 212.7 Waiver of certain grounds of

excludability.

* * * * *

(c) * * *

(9) * * *

(i) * * *

(A) They were admitted to the United

States under section 101(a)(15)(J) of the

Act, or acquired J nonimmigrant status

before June 1, 2002, to pursue graduate

medical education or training in the

United States.

* * * * *

Dated: February 26, 1997.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

[FR Doc. 97–9831 Filed 4–15–97; 8:45 am]

BILLING CODE 4410–10–M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 274a

[INS 1653–94]

RIN 1115–AC72

Foreign Employers Seeking To Employ

Temporary Alien Workers in the H, O,

and P Nonimmigrant Classifications

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the

Immigration and Naturalization Service

(the Service) regulations by precluding

foreign employers from directly filing

petitions for O and P nonimmigrant

aliens. Prospective foreign employers

seeking to file petitions in these two

classifications will be required to use

the services of an agent in the United

States. This rule also amends the H

nonimmigrant regulations by requiring

foreign employers seeking to petition for

H–2B nonimmigrant aliens to use the

services of an agent in the United States,

removes the current reference to the

term ‘‘representative’’ from the H–2B

regulations, expands the definition of an

agent with respect to the H, O, and P

nonimmigrant classifications, and

codifies existing policy with regard to

the filing of nonimmigrant petitions for

certain professional athletes. This rule

brings the H, O, and P nonimmigrant

regulations into conformity with the

employer sanctions provisions of

section 274A of the Immigration and

Nationality Act (‘‘the Act’’).

EFFECTIVE DATE: April 16, 1997.

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) 514–3240.

SUPPLEMENTARY INFORMATION: The

employer sanctions provisions of the

Immigration and Nationality Act were

created by the Immigration Reform and

Control Act of 1986, Public Law 99–603,

and are codified in section 274A of the

Act, as amended. Among other things,

section 274A of the Act contains

provisions making it unlawful for a

person or entity to hire an alien

knowing the alien is not entitled to

engage in employment. Section 274A of

the Act also requires the employer to

examine certain documentation in order

to verify an individual’s identity and

eligibility to work in the United States.

Civil and criminal penalties may be

imposed upon employers who do not
Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations 18509

comply with the employer sanctions

provisions of section 274A of the Act.

The Service has historically allowed

foreign employers, i.e., those employers

not amenable to service of process in the

United States, to file petitions for

certain nonimmigrant workers.

However, in order for the Service to

enforce the sanctions provisions of

section 274A of the Act in an effective

manner, an employer must have a legal

presence in the United States for

purposes of service of legal process. It

has, therefore, been determined that, as

in the case of the H nonimmigrant

classification, foreign employers should

be precluded from directly filing

petitions for aliens in the O and P

nonimmigrant classifications. Foreign

employers will still be able to petition

for an O and P nonimmigrant alien but

will be required to use a United States

agent to file the petition on their behalf.

Through their United States agent,

foreign employers will be responsible

for complying with the provisions of

section 274A of the Act. In order to

accommodate the needs of those

businesses which will use these

classifications and, at the same time,

effectively enforce the sanctions

provisions, the definition of an agent

found at 8 CFR 214.2(h)(2)(i)(F), 8 CFR

214.2(o)(2)(iv)(E), and 8 CFR

214.2(p)(2)(iv)(E) has been amended by

this rule to include business

representatives.

On August 15, 1994, the Service

published in the Federal Register at 59

FR 41843 a proposed rule with requests

for comments. Interested persons were

invited to submit written comments on

or before October 14, 1994.

Discussion of Comments on the

Proposed Rule

The Service received four comments

on the proposed rule. Each of the

comments contained a discussion of a

number of different issues. As a result,

the number of issues discussed exceeds

the total number of comments received.

The commenters offered a number of

suggestions and improvements for the

final rule, some of which have been

adopted. The following discussion

addresses the issues raised by the

specific issue proposed in the rule,

provides the Service’s position on the

issues, and indicates the revisions

adopted in the final rule based on the

public’s comments.

Proposal Number One—The ‘‘30-Day

Rule’’

The Service proposed to codify its

longstanding policy with respect to

sports teams which allows professional

athletes traded between teams to play

for the new team prior to the filing of

the appropriate petition, provided that

the new team files a petition with the

Service within 30 days of the trade.

Since a single athlete can have a

significant impact on a team’s

performance, and recognizing the length

of time required to process certain I–129

petitions, the Service adopted a policy

allowing players to play for the new

team prior to the filing of the petition.

Since no negative comments were

received with respect to this particular

proposal, the proposal will be adopted

in the final rule.

One commenter did, however, note

that 8 CFR 214.2(h)(6)(vii), which

discusses the ‘‘30-day rule,’’ contained a

typographical error. The error has been

corrected in this final rule.

The Service has clarified the rule in

two respects. First, the references in the

proposed rule to ‘‘U.S.-based’’

organizations have been deleted, in

order to avoid any confusion regarding

whether a team employing a

professional athlete pursuant to an H–

2B, O–1, or P–1 petition is ‘‘U.S.-based’’

or not (for example, a minor league

affiliate in the United States of a foreign

major league franchise). The final rule

applies to any trade of an alien

professional athlete in an H–2B, O–1, or

P–1 classification. Second, the Service

has clarified that an athlete to whom the

final rule applies will remain in status,

and will be eligible to be employed by

the team to which the athlete is traded,

after the expiration of 30 days following

the trade until the Form I–129 is

adjudicated, as long as the new petition

is filed within the 30-day time frame

provided by the rule.

Proposal Number Two—Foreign

Employers Filing O, P, and H–2B

Petitions

All four of the commenters opposed

the Service’s proposal that foreign

employers be precluded from filing O

and P nonimmigrant petitions directly

with the Service. The commenters

raised seven separate arguments as to

why the Service should not implement

this proposal. All four of the

commenters, however, suggested that, if

the proposal was adopted, the term

‘‘established U.S. agent’’ contained in

the proposed rule should be modified or

altered to allow business entities in the

United States which are related to the

foreign employer to be classified as an

agent and have the ability to file the

petition.

After a careful review of the

comments received from the public

concerning this proposal, the Service

will adopt without change the proposal

contained in the proposed rule with

respect to the filing of O or P petitions

by foreign employers. It is the opinion

of the Service that the adoption of the

proposal does nothing more than reflect

the intent of Congress when the

employer sanction provisions were

enacted. The purpose of this rule is to

prevent abuses of section 274A of the

Act by ensuring that the Service can

enforce the section 274A provisions

against foreign employers to the same

extent as it currently does against

domestic employers.

However, the Service will accept the

suggestion of the commenters and

modify the regulatory definition of the

term ‘‘United States agent’’ to

accommodate the needs of foreign

employers. The final rule clarifies the

definition of ‘‘United States agent’’ by

specifying that general legal agency

relationships satisfy this requirement.

The proposed rule failed to state clearly

that foreign employers are permitted to

use an ‘‘agent’’ as commonly defined in

legal agency terms. The final rule

recognizes that the term ‘‘agent’’ need

not be limited to a person or entity who

has entered into a formal agency

agreement with the employer. An

‘‘agent’’ can be someone authorized to

represent and act for another, to transact

business for another, or manage

another’s affairs. A United States agent

filing a petition on behalf of a foreign

employer must, however, be authorized

by the foreign employer to file the

petition, and to accept service of process

in the United States in any proceeding

under section 274A of the Act, on behalf

of the foreign employer.

The Service has also clarified the final

rule by defining ‘‘foreign employer’’ for

purposes of the rule as ‘‘any employer

who is not amenable to the service of

process in the United States.’’ This

definition is intended to include all

employers of H–2B, O, or P aliens who

are not amenable to service of process

within the United States for any reason.

Discussion of the Specific Comments

Raised in Objection to Proposal

Number Two

The following discussion addresses

each of the seven reasons raised by the

commenters as to why the proposal that

foreign employers should not be

permitted to file an H, O, or P petition

directly should not be adopted.

One commenter suggested that if the

Service required foreign employers to

use an agent in the United States to file

an O or P petition, foreign countries

would retaliate against U.S. workers

abroad in some fashion.

It is the opinion of the Service that the

employer sanctions provisions must be

enforced with equal effect with respect
18510 Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations

to all persons or entities, regardless of

whether they are foreign or domestic,

which employ aliens in the United

States. While it is theoretically possible

that certain countries may retaliate

against the United States for enforcing

these statutory provisions, the Service is

required to follow the intent of Congress

in enacting section 274A of the Act and

safeguard against unauthorized

employment in this country.

The Service received comments

expressing similar fears at the time it

published its interim rule relating to the

O and P classifications following

enactment of the Immigration Act of

1990 (IMMACT 90). Specifically, the

commenters suggested at the time that,

as drafted, the Service’s regulations

would result in retaliatory actions

towards U.S. workers abroad. Such fears

have proven to be unfounded. In fact,

more than 4 years after the effective date

of IMMACT 90, the Service is unaware

of any instances of retaliatory actions

taken by foreign countries against

United States entertainers and athletes

abroad.

The Service received two comments

which stated that requiring a foreign

company to create a legal relationship

with an agent within the United States

will discourage foreign employers from

filming and otherwise working in the

United States, thereby harming the U.S.

economy and jeopardizing American

workers’ jobs.

The Service believes that, as a

practical matter, this rule is not onerous

and will not have a negative effect upon

such foreign employers or an adverse

effect upon the U.S. economy. One of

the commenters acknowledged that

foreign companies are required to

comply with all United States laws,

including section 274A of the Act, and,

in most cases, already have either a

direct presence within the United States

or an existing relationship with a United

States entity. Far from imposing undue

burdens on foreign companies, this

regulation is intended only to ensure

that employers who are not amenable to

the service of process in the United

States are held to the same standard of

conduct as all other employers with

respect to section 274A of the Act, by

providing the Service with a mechanism

for ensuring adequate service of process

on such employers. In this regard, this

regulation is similar to the laws of many

states which require outside businesses

to have a registered agent for service of

legal process.

Further, because this rule expands the

term ‘‘United States agent’’ to include a

business representative, the Service

believes most foreign employers will be

able to continue their activities with

very little or no additional burden or

inconvenience. Foreign employers will,

as a general rule, already have an agency

relationship in place in the United

States.

One commenter suggested that

adoption of this proposal would

discourage foreign employers from

complying with U.S. immigration laws.

It is the opinion of the Service that the

vast majority of individuals are honest

and will comply with the law and

applicable regulations. Further, as

indicated in the discussion of the prior

comment, the definition of agent has

been modified by this rule and, as a

result, compliance with the proposal

will not be difficult to achieve.

One commenter stated that the rule

should not be adopted since it was

never anticipated by Congress that a

foreign movie production company

merely using United States-based

venues to film a movie would be

required to complete an employment

verification eligibility form (Form I–9)

for its O–1 and H–2B nonimmigrant

employees. In drafting section 274A of

the Act, Congress did not differentiate

among employers based upon their

country of license or registry. The

implementation of this rule does not

alter the existing responsibilities of all

employers, domestic or foreign, to

comply with section 274A of the Act

with respect to employment within the

United States.

Two commenters suggested that

requiring the employer of an O or P

nonimmigrant alien to complete a Form

I–9 is superfluous since the employer

has already received Service approval to

work in the United States. The

employment verification provisions are

statutory and, therefore, the Service

lacks the authority to waive this

requirement. Moreover, since foreign

employers have always been responsible

for complying with the employer

sanctions provisions of the Act, this rule

does not add any additional verification

requirements.

One commenter stated that there is no

evidence that foreign employers are

violating section 274A of the Act or that

the Service is unable to take

enforcement actions against them.

Moreover, the commenter stated, if the

foreign employer is still to remain liable

for section 274A violations, then the

foreign employers should be able to file

O and P petitions directly. The Service

is required to enact regulations which

enable it to execute its various duties

and responsibilities. Evidence of abuse

is not a prerequisite for promulgating

rules. As noted above, this rule is

designed to ensure compliance with

section 274A of the Act by providing a

means of enforcing this section with

respect to foreign as well as domestic

employers. Direct filing of O and P

petitions by foreign employers not

amenable to service of process within

the United States defeats this purpose,

since, in certain cases, the Service may

be unable to pursue actions against such

employers for violations of section 274A

of the Act. Foreign employers who

benefit from this privilege must be held

fully accountable for complying with

our laws by rendering themselves

amenable to service of process in

enforcement actions. Since all

employers, domestic or foreign, who use

agents to fulfill their section 274A

duties remain liable for violations, this

rule will ensure effective enforcement

against violating employers.

One commenter suggested that the

language of the proposed rule does not

solve enforcement problems with

respect to section 274A. Specifically,

the commenter questioned how the use

of an agent could enhance the Service’s

enforcement if the agent itself has no

liability under the Act. The commenter

argued that, if the agent has no liability,

then that contradicts 8 CFR part 274a

unless the agents are not recruiters or

referrers for a fee. See section 274A of

the Act. Alternatively, if there is no

existing liability, the commenter added,

then the Service cannot argue that it is

being hampered in its ability to enforce

the employer sanctions provisions of the

Act.

A person or entity acting as an agent

may be subject to liability under section

274A for acts or omissions committed in

that capacity. The issue, however, is not

whether the agent is subject to section

274A of the Act, but whether the foreign

employer can be served with process in

a section 274A proceeding. As this

commenter correctly indicates, foreign

employers were, and continue to be,

responsible for complying with section

274A of the Act. This rule does not

expand or alter the requirements or

liability imposed by section 274A of the

Act. Foreign employers with a legal

presence in the United States are subject

to the Service’s enforcement powers.

Unfortunately, foreign employers not

physically present in the United States

who use the privilege of directly

petitioning for O and P visas may

presently be able to avoid Service

enforcement of section 274A because of

difficulties in serving process on the

employer abroad. It is necessary,

therefore, to ensure that these foreign

employers can be held accountable for

complying with section 274A of the Act

in the same manner as all other

employers. This rule accomplishes that

goal by using well-established agency
Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations 18511

principles, i.e., requiring the foreign

employer to have an agent within the

United States able to file the petition,

and to accept service of process in any

section 274A proceeding, on the

employer’s behalf.

Employers have always been able to

delegate or contract their section 274A

responsibilities to an agent, while still

remaining fully liable for any violations.

This rule does not change that. A

foreign employer is free to delegate its

section 274A compliance

responsibilities to the agent filing the

petition on its behalf, to another agent,

or to carry out those responsibilities

itself. The final rule requires only a

limited agency for the purpose of filing

the petition, and accepting service of

process in section 274A proceedings, on

behalf of the foreign employer. For

purposes of this regulation, the term

‘‘service of process’’ is intended to

include any method of commencing

enforcement activity of proceedings that

involves notice to the employer,

including notices of inspection of Forms

I–9, subpoenas, Notices of Intent to

Fine, or complaints.

Another commenter stated that the

sole effect of adopting the proposed rule

would be to enhance the Service’s

ability to enforce employer sanctions

provisions against a foreign employer

who seeks to employ an O or P

nonimmigrant alien. The purpose of the

proposal with respect to foreign

employers was to require those

employers to comply with the same

rules and regulations as all employers

regardless of the nationality of their

employees. Therefore, the commenter’s

statement is accurate.

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 majority of foreign

employers who petition for

nonimmigrant workers already have

established a presence in the United

States or use the services of a United

States agent. Therefore, the number of

small entities affected by this rule

would be minimal.

Executive Order 12866

This rule is not considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

regulatory Planning and Review, and

the Office of Management and Budget

has waived its review process under

section 6(a)(3)(A).

Executive Order 12612

The regulation proposed herein 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.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Paperwork Reduction Act

This final rule does not impose any

new reporting or recordkeeping

requirements. The information

collection requirements contained in

this rule were previously cleared by the

Office of Management and Budget

(OMB) under the provisions of the

Paperwork Reduction Act. The

clearance number for this collection is

contained in 8 CFR 299.5, Display of

control numbers.

List of Subjects

8 CFR Part 214

Administrative practice and

procedures, Aliens, Employment,

Organization and functions

(Government agencies).

8 CFR Part 274a

Administrative practice and

procedures, Aliens, Employment,

Organization and functions

(Government agencies).

Accordingly, chapter I of title 8 of the

Code of Federal Regulations is amended

by 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, 1187, 1221, 1281, 1282; 8 CFR part 2.

2. Section 214.2 is amended by:

a. Revising paragraph (h)(2)(i)(F);

b. Revising paragraph (h)(6)(iii)(B); and

by

c. Adding a new paragraph (h)(6)(vii), to

read as follows:

§ 214.2 Special requirements for

admission, extension, and maintenance of

status.

* * * * *

(h) * * *

(2) * * *

(i) * * *

(F) Agents as petitioners. A United

States agent may file a petition in cases

involving workers who are traditionally

self-employed or workers who 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 on its behalf. A United

States agent may be: the actual employer

of the beneficiary, the representative of

both the employer and the beneficiary,

or, a person or entity authorized by the

employer to act for, or in place of, the

employer as it agent. A petition filed by

a United States agent is subject to the

following conditions;

(1) An agent performing the function

of an employer must guarantee the

wages and other terms and conditions of

employment by contractual agreement

with the beneficiary or beneficiaries of

the petition. The agent/employer must

also provide an itinerary of definite

employment and information on any

other services planned for the period of

time requested.

(2) A person or company in business

as an agent may file the H petition

involving multiple employers as the

representative of both the employers

and the beneficiary or beneficiaries 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 establishment, venues,
18512 Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations

or locations where the services will be

performed. In questionable cases, a

contract between the employers and the

beneficiary or beneficiaries may be

required. The burden is on the agent to

explain the terms and conditions of the

employment and to provide any

required documentation.

(3) A foreign employer who, through

a United States agent, files a petition for

an H nonimmigrant alien is responsible

for complying with all of the employer

sanctions provisions of section 274A of

the Act and 8 CFR part 274a.

* * * * *

(6) * * *

(iii) * * *

(B) An H–2B petitioner shall be a

United States employer, a United States

agent, or a foreign employer filing

through a United States agent. For

purposes of paragraph (h) of this

section, a foreign employer is any

employer who is not amendable to

service of process in the United States.

A foreign employer may not directly

petition for an H–2B nonimmigrant but

must use the services of a United States

agent to file a petition for an H–2B

nonimmigrant. A United States agent

petitioning on behalf of a foreign

employer must be authorized to file the

petition, and to accept service of process

in the United States in proceedings

under section 274A of the Act, on behalf

of the employer. The petitioning

employer shall consider available

United States workers for the temporary

services or labor, and shall offer terms

and conditions of employment which

are consistent with the nature of the

occupation, activity, and industry in the

United States.

* * * * *

(vii) Traded professional H–2B

athletes. In the case of a professional H–

2B athlete who is traded from one

organization or another organization,

employment authorization for the player

will automatically continue for a period

of 30 days after the player’s acquisition

by the new organization, within which

time the new organization is expected to

file a new Form I–129 for H–2B

nonimmigrant classification. If a new

Form I–129 is not filed within 30 days,

employment authorization will cease. If

a new Form I–129 is filed within 30

days, the professional athlete shall be

deemed to be in valid H–2B status, and

employment shall continue to be

authorized, until the petition is

adjudicated. If the new petition is

denied, employment authorization will

cease.

* * * * *

3. Section 214.2 is amended by:

a. Revising paragraph (o)(2)(i);

b. Revising paragraph (o)(2)(iv)(A);

c. Revising paragraph (o)(2)(iv)(E); and

by

d. Adding a new paragraph (o)(2)(iv)(G),

to read as follows:

§ 214.2 Special requirements for

admission, extension, and maintenance of

status.

* * * * *

(o) * * *

(2) Filing of petitions—(i) General.

Except as provided for in paragraph

(o)(2)(iv)(A) of this section, a petitioner

seeking to classify an alien as an O–1 or

O–2 nonimmigrant shall file a petition

on Form I–129, Petition for a

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. An O–1 or O–2 petition

shall be adjudicated at the appropriate

Service Center, even in emergency

situations. Only one beneficiary may be

included on an O–1 petition. O–2 aliens

must be filed for on a separate petition

from the O–1 alien. An O–1 or O–2

petition may only be filed by a United

States employer, a United States agent,

or a foreign employer through a United

States agent. For purposes of paragraph

(o) of this section, a foreign employer is

any employer who is not amenable to

service of process in the United States.

A foreign employer may not directly

petition for an O nonimmigrant alien

but instead must use the services of a

United States agent to file a petition for

an O nonimmigrant alien. A United

States agent petitioning on behalf of a

foreign employer must be authorized to

file the petition, and to accept services

of process in the United States in

proceedings under section 274A of the

Act, on behalf of the foreign employer.

An O alien may not petition for himself

or herself.

* * * * *

(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.

* * * * *

(E) Agents as petitioners. A United

States agent may file a petition in cases

involving workers who are traditionally

self-employed or workers who 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 United

States agent may be: The actual

employer of the beneficiary, the

representative of both the employer and

the beneficiary; or, a person or entity

authorized by the employer to act for, or

in place of, the employer as its agent. A

petition filed by an agent is subject to

the following conditions:

(1) 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.

(2) 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.

(3) A foreign employer who, through

a United States agent, files a petition for

an O nonimmigrant alien is responsible

for complying with all of the employer

sanctions provisions of section 274A of

the Act and 8 CFR part 274a.

* * * * *

(G) Traded professional O–1 athletes.

In the case of a professional O–1 athlete

who is traded from one organization to

another organization, employment

authorization for the player will

automatically continue for a period of

30 days after acquisition by the new

organization, within which time the

new organization is expected to file a

new Form I–129. If a new Form I–129

is not filed within 30 days, employment

authorization will cease. If a new Form

I–129 is filed within 30 days, the

professional athlete shall be deemed to

be in valid O–1 status, and employment

shall continue to be authorized, until

the petition is adjudicated. If the new

petition is denied, employment

authorization will cease.

* * * * *

4. Section 214.2 is amended by:

a. Revising paragraph (p)(2)(i); and by

b. Revising paragraph (p)(2)(iv), to read

as follows;
Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations 18513

§ 214.2 Special requirements for

admission, extension, and maintenance of

status.

* * * * *

(p) * * *

(2) Filing of petitions—(i) General. A

P–1 petition for an athlete or

entertainment group shall be filed by a

United States employer, a United States

sponsoring organization, a United States

agent, or a foreign employer through a

United States agent. For purposes of

paragraph (p) of this section, a foreign

employer is any employer who is not

amenable to service of process in the

United States. Foreign employers

seeking to employ a P–1 alien may not

directly petition for the alien but must

use a United States agent. A United

States agent petitioning on behalf of a

foreign employer must be authorized to

file the petition, and to accept service of

process in the United States in

proceedings under section 274A of the

Act, on behalf of the foreign employer.

A P–2 petition for an artist or

entertainer in a reciprocal exchange

program shall be filed by the United

States labor organization which

negotiated the reciprocal exchange

agreement, the sponsoring organization,

or a United States employer. A P–3

petition for an artist or entertainer in a

culturally unique program shall be filed

by the sponsoring organization or a

United States employer. Essential

support personnel may not be included

on the petition filed for the principal

alien(s). These aliens require a separate

petition. Except as provided for in

paragraph (p)(2)(iv)(A) of this section,

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 emergency situations.

* * * * *

(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.

(B) Servcies for more than one

employer. If the beneficiary or

beneficiaries 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 agent files the

petition pursuant to paragraph

(p)(2)(iv)(E) of this section.

(C) Change of employer—(1) General.

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. The alien may not commence

employment with the new employer or

sponsor until the petition and request

for extension have been approved.

(2) Traded professional P–1 athletes.

In the case of a professional P–1 athlete

who is traded from one organization to

another organization, employment

authorization for the player will

automatically continue for a period of

30 days after acquisition by the new

organization, within which time the

new organization is expected to file a

new Form I–129 for P–1 nonimmigrant

classification. If a new Form I–129 is not

filed within 30 days, employment

authorization will cease. If a new Form

I–129 is filed within 30 days, the

professional athlete shall be deemed to

be in valid P–1 status, and employment

shall continue to be authorized, until

the petition is adjudicated. If the new

petition is denied, employment

authorization will cease.

(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 performance,

engagements, or competitions during

the validity period of the petition

without filing an amended petition.

(E) Agents as petitioners. A United

States agent may file a petition in cases

involving workers who are traditionally

self-employed or workers who 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 on its behalf. A United

States agent may be: the actual employer

of the beneficiary; the representative of

both the employer and the beneficiary;

or, a person or entity authorized by the

employer to act for, or in place of, the

employer as its agent. A petition filed by

an United States agent is subject to the

following conditions:

(1) 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 or beneficiaries. The agent/

employer must also provide an itinerary

of definite employment and information

on any other services planned for the

period of time requested.

(2) 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 or beneficiaries 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, the names and addresses of

the establishment, venues, or locations

where the services will be performed. In

questionable cases, a contract between

the employer(s) and the beneficiary or

beneficiaries may be required. The

burden is on the agent to explain the

terms and conditions of the employment

and to provide any required

documentation.

(3) A foreign employer who, through

a United States agent, files a petition for

a P nonimmigrant alien is responsible

for complying with all of the employer

sanctions provisions of section 274A of

the Act and 8 CFR part 274a.

(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. A

petitioner may request substitution of

beneficiaries in approved 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. In

order to add additional new essential

support personnel, a new I–129 petition

must be filed with the appropriate

Service Center.

* * * * *
18514 Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations

1See Securities Exchange Act Release No.

37619A (September 6, 1996), 61 FR 48290

(September 12, 1996) (‘‘Adopting Release’’).

2 17 CFR 240.11Ac1–1(c)(5)(i).

3 17 CFR 240.11Ac1–1(c)(5)(ii).

4 17 CFR 240.11Ac1–1(a)(25).

5 17 CFR 11Ac1–1(c)(1). See Securities Exchange

Act Release No. 38110 (January 2, 1997), 62 FR

1279 (January 9, 1997) which changed the effective

date of the 1% Rule, with respect to the amended

PART 274a—CONTROL OF

EMPLOYMENT OF ALIENS

5. The authority citation for part 274a

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8

CFR part 2.

6. Section 274a.12 is amended by:

a. Revising paragraph (b)(9);

b. Revising paragraph (b)(13); and by

c. Revising paragraph (b)(14), to read

as follows:

§ 174a.12 Clauses of aliens authorized to

accept employment.

* * * * *

(b) * * *

(9) A temporary worker or trainee (H–

1, H–2A, H–2B, or H–3), pursuant to

§ 214.2(h) of this chapter. An alien in

this status may be employed only by the

petitioner through whom the status was

obtained. In the case of a professional

H–2B athlete who is traded from one

organization to another organization,

employment authorization for the player

will automatically continue for a period

of 30 days after acquisition by the new

organization, within which time the

new organization is expected to file a

new Form I–129 to petition for H–2B

classification. If a new Form I–129 is not

filed within 30 days, employment

authorization will cease. If a new Form

I–129 is filed within 30 days, the

professional athlete’s employment

authorization will continue until the

petition is adjudicated. If the new

petition is denied, employment

authorization will cease;

* * * * *

(13) An alien having extraordinary

ability in the sciences, arts, education,

business, or athletics (O–1), and an

accompanying alien (O–2), pursuant to

§ 214.2(o) of this chapter. An alien in

this status may be employed only by the

petitioner through whom the status was

obtained. In the case of a professional

O–1 athlete who is traded from one

organization to another organization,

employment authorization for the player

will automatically continue for a period

of 30 days after the acquisition by the

new organization, within which time

the new organization is expected to file

a new Form I–129 petition for O

nonimmigrant classification. If a new

Form I–129 is not filed within 30 days,

employment authorization will cease. If

a new Form I–129 is filed within 30

days, the professional athlete’s

employment authorization will continue

until the petition is adjudicated. If the

new petition is denied, employment

authorization will cease.

(14) An athlete, artist, or entertainer

(P–1, P–2, or P–3), pursuant to

§ 214.2(p) of this chapter. An alien in

this status may be employed only by the

petitioner through whom the status was

obtained. In the case of a professional

P–1 athlete who is traded from one

organization to another organization,

employment authorization for the player

will automatically continue for a period

of 30 days after the acquisition by the

new organization, within which time

the new organization is expected to file

a new Form I–129 for P–1 nonimmigrant

classification. If a new Form I–129 is not

filed within 30 days, employment

authorization will cease. If a new Form

I–129 is filed within 30 days, the

professional athlete’s employment

authorization will continue until the

petition is adjudicated. If the new

petition is denied, employment

authorization will cease;

* * * * *

Dated: February 13, 1997.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

[FR Doc. 97–9814 Filed 4–15–97; 8:45 am]

BILLING CODE 4410–10–M

SECURITIES AND EXCHANGE

COMMISSION

17 CFR Part 240

[Release No. 34–38490; File No. S7–30–95]

RIN 3235–AG66

Order Execution Obligations

AGENCY: Securities and Exchange

Commission.

ACTION: Revised compliance dates;

exemptive order.

SUMMARY: The Securities and Exchange

Commission (‘‘Commission’’’) is

announcing the revised phase-in

schedule for compliance with Rules

11Ac1–1(c)(5) (‘‘ECN Amendment’’ of

the ‘‘Quote Rule’’) and 11Ac1–4 (‘‘Limit

Order Display Rule’’) under the

Securities Exchange Act of 1934

(‘‘Exchange Act’’) and is providing

exemptive relief to accomodate the new

schedule. In addition, the Commission

is providing exemptive relief from

compliance with the 1% requirement of

the Quote Rule with respect to non–

19c–3 securities.

DATES: Effective: April 9, 1997.

Compliance Dates: The phase-in

schedule with respect to 550 additional

Nasdaq securities will be as follows: 50

Nasdaq securities on April 21, 1997; 50

Nasdaq securities on April 28, 1997; 50

Nasdaq securities on May 5, 1997; 50

Nasdaq securities on May 12, 1997; 50

Nasdaq securities on May 19, 1997; 50

Nasdaq securities on May 27, 1997; 50

Nasdaq securities on June 2, 1997; 50

Nasdaq securities on June 9, 1997; 50

Nasdaq securities on June 23, 1997; 50

Nasdaq securities on June 30, 1997; and

50 Nasdaq securities on July 7, 1997.

Concurrently, the Commission is

exempting responsible brokers and

dealers, electronic communications

networks, exchanges and associations

from compliance with the Order

Execution Rules, with respect to the

Nasdaq securities that are not phased-in

under such schedule, until July 28,

1997. In addition, the Commission is

exempting substantial market makers

and specialists from compliance with

the 1% requirement of the Quote Rule

with respect to non-Rule 19c–3

securities until July 28, 1997.

FOR FURTHER INFORMATION CONTACT:

David Oestreicher, Special Counsel, or

Gail Marshall-Smith, Special Counsel,

(202) 942–0158, Division of Market

Regulation, Securities and Exchange

Commission, 450 Fifth Street, N.W.,

Mail Stop 5–1, Washington, D.C. 20549.

SUPPLEMENTARY INFORMATION:

Background

On August 28, 1996, the Securities

and Exchange Commission adopted

Rule 11Ac1–4, the Limit Order Display

Rule, and amendments to Rule 11Ac1–

1, the Quote Rule under the Exchange

Act.1 The Limit Order Display Rule

requires over-the-counter (‘‘OTC’’)

market makers and exchange specialists

to publicly display certain customer

limit orders. The ECN Amendment of

the Quote Rule requires OTC market

makers and specialists to publicly

disseminate the best prices that they

enter into an electronic communications

network (‘‘ECN’’),2 or to comply

indirectly with the ECN Amendment by

using an ECN that furnishes the best

market maker and specialist prices

therein to the public quotation system

(the ‘‘ECN Display Alternative’’) 3 In

addition, the Quote Rule term ‘‘subject

security’’ 4 was amended, thereby

requiring OTC market makers and

specialists to publish quotes in any

exchange-listed security if their volume

in that security exceeds 1% of the

aggregate volume during the most recent

calendar quarter.5