This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

30415

Vol. 63, No. 107

Thursday, June 4, 1998

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 1811–96]

RIN 1115–AE61

Habitual Residence in the Territories

and Possessions of the United States

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend

the Immigration and Naturalization

Service (Service) regulations, by adding

provisions governing rights and

limitations on ‘‘habitual residence’’

under the Compact of Free Association

between the United States and the

Government of the Marshall Islands and

the Government of the Federated States

of Micronesia, and the Compact of Free

Association between the United States

and the Government of Palau

(collectively, Compacts). This proposed

rule defines ‘‘habitual resident’’ and

imposes nondiscriminatory limitations

on habitual residence in accordance

with the provisions of the respective

Compacts. The increasing population of

citizens of the freely associated states

(FAS) in the territories and possessions

of the United States requires action to

maintain the benefits to the citizens of

the FAS of employment and education

in the territories and possessions, and

the economic benefit to the territories

and possessions of their presence, while

simultaneously minimizing costs

resulting from granting unlimited access

of such FAS citizens to the territories

and possessions.

DATES: Written comments must be

submitted on or before August 3, 1998.

ADDRESSES: Please submit written

comments, in triplicate, to the Policy

Directives and Instructions Branch,

Immigration and Naturalization Service,

425 I Street, NW., Room 5307,

Washington, DC 20536. To ensure

proper handling, please reference INS

number 1811–96 on your

correspondence. Comments are

available for public inspection at the

above address by calling (202) 514–3048

to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

John W. Brown, Adjudications Officer,

Immigration and Naturalization Service,

425 I Street, NW., Room 3214,

Washington, DC 20536, telephone (202)

514–5014.

SUPPLEMENTARY INFORMATION:

Background

With the enactment of Public Law 99–

239, which approved the Compact

between the United States and the

Government of the Marshall Islands and

the Government of the Federated States

of Micronesia, and Public Law 99–658,

which approved the Compact between

the United States and Palau, the

majority of citizens of these territories,

the former Trust Territory of the Pacific

Islands, now called the freely associated

states (FAS), became eligible to enter,

live, work, and be educated in the

United States and its territories and

possessions without regard to

requirements in sections 212(a)(5)(A)

and 212(a)(7)(A) and (B) of the

Immigration and Nationality Act (Act).

See section 141(a) of the Compacts. Both

Compacts, at section 141(b), provide

that the right of citizens of the FAS to

establish habitual residence in a

territory or possession of the United

States may be subjected to

nondiscriminatory limitations.

Section 643 of the Illegal Immigration

Reform and Immigrant Responsibility

Act of 1996 (IIRIRA), requires the

Commissioner to issue regulations

regarding the ‘‘rights of ‘habitual

residence’ in the United States’’ under

the terms of the Compacts. Because the

Compacts permit limitations on habitual

residence only in the territories and

possessions of the United States, the

Service interprets section 643 of IIRIRA

to apply only in the territories and

possessions and not in the 50 states or

the District of Columbia.

This proposed rule defines ‘‘habitual

resident’’ and imposes minimal

limitations on the right of FAS citizens

to establish habitual residence within

the territories and possessions of the

United States. These limitations shall be

applicable to habitual residents living in

Guam, American Samoa, the United

States Virgin Islands, and the

Commonwealth of Puerto Rico. They do

not apply to FAS citizens living in the

50 states or the District of Columbia.

Section 503 of the Covenant to

Establish a Commonwealth of the

Northern Mariana Islands in Political

Union with the United States of

America, approved by Congress in

Public Law 94–241, provides that the

‘‘immigration and naturalization laws of

the United States’’ shall not apply to the

Northern Mariana Islands ‘‘except in the

manner and to the extent made

applicable to them by the Congress by

law.’’ To date, Congress has not taken

action to apply the Federal immigration

and naturalization laws to the

Commonwealth of the Northern Mariana

Islands (CNMI). This proposed rule,

therefore, does not affect the right of

FAS citizens to establish habitual

residence in the CNMI as long as the Act

has not been made applicable to the

CNMI. The CNMI, however, may

establish nondiscriminatory limitations

on habitual residence that are consistent

with the Compact and United States

treaties and law.

‘‘Habitual Resident’’ Defined

In the proposed rule, the Service

defines an habitual resident as an FAS

citizen, as defined in section 141(a) of

both Compacts, who has been

physically present in a territory or

possession of the United States for a

cumulative total of 1 year during any

continuous 24-month period, and who

is not:

(1) A dependent of a representative to

the United States pursuant to article V

of either of the Compacts;

(2) A member of the United States

Armed Forces serving in an active duty

capacity;

(3) A nonimmigrant under another

(non-Compact) category;

(4) A lawful permanent resident; or

(5) A full-time student under Compact

provisions in a territory or possession of

the United States and maintaining

status.

Notwithstanding section 101(a)(15) of

the Act, an FAS citizen who enters the

United States under section 141 of the

Compacts is a nonimmigrant under the

terms of the Compacts. The term

‘‘habitual residence,’’ defined in section

461 of the Compacts, may be applied to

FAS citizens and may be subjected to

nondiscriminatory limitations under

section 141(b) of the Compacts.
30416 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 / Proposed Rules

Community Concerns

Officials of the United States

territories and possessions have

reported that there are growing numbers

of unemployed FAS citizens who reside

in those territories and possessions and

who adversely impact limited

community resources. At the same time,

these officials also express concern that

imposing severe restrictions on the right

of FAS citizens to establish habitual

residence may deprive their

communities of needed FAS workers

who enhance the economy of those

territories and possessions.

This rule addresses these concerns.

The Service believes that imposing

limitations on habitual residence will

help to preserve the lawful status of the

habitual residents who are lawfully and

gainfully employed or otherwise

financially self-sufficient. It will also

protect the economies of the respective

territories or possessions in which they

reside by permitting the removal of FAS

citizens who are not individually

financially self-sufficient and are not

being financially supported by their

family. The Service interprets the

provision in the Compacts that

residence of less than 1 year is not

‘‘habitual residence’’ to mean residence

in a territory or possession of the United

States for aggregate periods of less than

1 year is not considered to be habitual

residence. Therefore, this regulation

will not affect FAS citizens whose

residence in the territories and

possessions of the United States adds up

to less than 1 year.

Considerations for Rulemaking

Recommendations were solicited from

the Governments of the Virgin Islands,

Puerto Rico, Guam, and the Northern

Mariana Islands by the United States

Department of Interior, Office of Insular

Affairs. The Office of Insular Affairs also

solicited suggestions from the

governments of the FAS. In its cover

letter to the presidents of the freely

associated states, the Office of Insular

Affairs suggested that the imposition of

limitations on habitual residence might

include a provision allowing an habitual

resident in a United States territory or

possession to remain there if the

habitual resident is gainfully employed.

The Office of Insular Affairs received

three responses to its inquiry. The

Governor of the United States Virgin

Islands stated that migration of FAS

citizens presented no adverse

consequence for his territory. The

President of Palau responded with

general opposition to the imposition of

any limitations. The Ambassador of the

Federated States of Micronesia (FSM) to

the United States stated that the FSM

would not be concerned if the United

States established a work requirement

for FAS citizens who are habitual

residents in a United States territory. He

requested, however, that an

unemployed spouse, pre-school

children, and elderly relatives be

allowed to reside in the territory with a

working habitual resident.

Numerical Limitations Considered

Numerical limitations on habitual

residence were considered by the

Service and rejected at this time. The

Service believes such limitations would

not directly address the overall problem

of restricting the entry of unemployed

aliens into the U.S. territories and

possessions. Further, such numerical

limitations would possibly be more

restrictive than is warranted at this time.

The imposition of numerical limitations

would fail to distinguish between

employed and unemployed FAS

citizens residing within U.S.

possessions and territories. Newly

arrived FAS citizens who desired to

establish habitual residence after 1 year

for the purpose of the continuation of

lawful employment within a territory

would be subject to numerical

availability, while chronically

unemployed habitual residents who

have resided in the territory for a longer

period, and who fell within a numerical

availability quota, might continue in an

indefinite lawful status. This method

appears inequitable for the alien and

unresponsive to the problem of

restricting the flow of unemployed

aliens into the territories.

Time Limitations Considered

Time limitations were also considered

and rejected as not clearly necessary at

this time. Lawfully and gainfully

employed FAS citizens are currently

recognized as an asset to their

communities. They fulfill a need for

labor and contribute to the economic

development of the territory. Their

continued presence eliminates the need

for training newcomers. The earnings

they send home also benefit the FAS

economies. The imposition, therefore, of

limitations on the maximum period of

stay of these workers does not appear

necessary at this time.

Limitations Based on Employment

Limiting habitual residence to

lawfully and gainfully employed FAS

citizens who are financially selfsufficient was determined to be the

method which best complied with both

the letter and the spirit of the Compacts

and represented the minimal limitation

currently needed to respond

affirmatively and effectively to

community concerns of the growing

numbers of unemployed habitual

residents. This method allows for the

preservation of status for current

habitual residents who are lawfully and

gainfully employed, and allows for

additional FAS citizens to engage in

lawful and gainful employment in the

territories and possessions of the United

States in the future under the provisions

of the Compact.

The Service considered the special

problem posed by FAS citizens engaged

in seasonal employment in United

States territories and possessions and

the need for the proposed rule to have

provisions or exceptions regarding

seasonal employment. Agriculture and

commercial fishing are contributors to

the economy of United States territories

and possessions, and it is not the

Service’s intent to deprive these

industries of needed FAS workers. The

Service believes that the proposed rule

as written is sufficient to protect the

lawful nonimmigrant status of FAS

seasonal workers, and that exceptions or

provisions regarding seasonal workers

are not needed at this time. The Service

reserves the right to amend the rule to

include provisions or exceptions

regarding FAS seasonal workers

employed in U.S. territories and

possessions, should conditions warrant,

and seeks public comment in this

regard.

Annual Registration Considered

The Service considered imposing a

registration requirement to ensure that

FAS citizens after 1 year fall within the

ambit of the limitations on habitual

residence. The Service rejected annual

registration due to resource limitations

and the lack of empirical data

establishing the necessity of registration

at this time. Rather, the Service will

assess and determine continued

eligibility for habitual residence on a

case-by-case basis when status

eligibility is raised through complaints

or other information available to the

Service.

Proposed Limitations on Habitual

Residence

In accordance with section 141(b) of

the Compacts, the Service proposes to

limit habitual residence in the territories

and possessions of the United States

(except the CNMI as long as the Act has

not been made applicable to the CNMI)

to those eligible FAS citizens:

(1) Who are actively engaged in

lawful, full-time occupations; or

(2) Whose income or other financial

resources meet or exceed the minimum

Service guidelines for fiscal sufficiency,
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 / Proposed Rules 30417

which has been determined as at least

100 percent of the official poverty

guidelines, see 45 CFR Pt. 1611, App. A,

for an individual or for a family unit;

and

(3) Who are not in receipt of public

benefits in violation of section 401 or

411 of the Personal Responsibility and

Work Opportunity Reconciliation Act of

1996 (Personal Responsibility Act), Pub.

L. 104–193, 110 Stat. 2261, 2268, as

amended by sections 5561 and 5565 of

the Balanced Budget Act of 1997, Pub.

L. 105–33, 111 Stat. 638, 639

(‘‘unauthorized public benefits’’).

The unemployed spouse and all other

eligible dependents, who are themselves

FAS citizens and habitual residents,

shall also be considered to be in lawful

nonimmigrant status, provided they are

financially supported by the principal

habitual resident, and provided that, as

a family unit, their income or other

financial resources meet or exceed 100

percent of the official poverty guidelines

for a family of the appropriate size, and

they are not individually in receipt of

unauthorized public benefits.

The Service proposes that the

employment requirement of this

provision not apply to habitual

residents who are of lawful independent

financial means, including those who

are retired. To maintain their lawful

status within the territories, habitual

residents who are of lawful independent

financial means or who are retired must,

however, maintain an income or possess

sufficient financial resources which

meet or exceed 100 percent of the

official poverty line for a family of the

appropriate size. Further, such persons

shall not be in receipt of unauthorized

public benefits. These limitations are

not discriminatory because they do not

discriminate between or among the

different freely associated states.

Moreover, they do not discriminate

against citizens of the FAS as compared

with nonimmigrant citizens of other

countries because there are no other

nonimmigrant aliens who are permitted

to enter, live, work, and be educated in

the United States without regard to the

requirements of section 212(a)(5)(A) and

(7)(A) and (B) of the Immigration and

Nationality Act.

Violation of Status

Any habitual resident who is

unemployed for a period in excess of 60

consecutive days, or whose income as

an individual or as a family unit falls

below the official poverty guidelines, or

who is in receipt of unauthorized public

benefits, shall be considered to be in

violation of status and subject to

removal from the United States territory

or possession in which he or she

resides. The unemployed spouse and

other eligible dependents of an habitual

resident shall be considered to be in

violation of status and subject to

removal from the United States territory

or possession in which they reside

should the principal habitual resident

become unemployed for a period of

more than 60 consecutive days, or

should their income as a family unit fall

below the official poverty guidelines.

This means that the principal habitual

resident and his or her habitual resident

dependents will all be considered to be

in violation of status either if the

principal is unemployed for more than

60 consecutive days, or if the family

unit falls below the official poverty

guidelines. Without the financial

support of the principal habitual

resident, the dependents would be in

unlawful status. It is only through the

support of the principal alien that they

are considered to be in lawful status.

Similarly, the principal alien must be

held responsible for the support of his

or her dependent family members in the

territories and possessions so that the

taxpayers will not be burdened by their

support.

If any eligible dependent receives

unauthorized public benefits, that

individual dependent will be

considered to be in violation of status

and subject to removal from the U.S.

territory or possession in which he or

she resides. This provision will require

the removal of any dependent who

receives unauthorized public benefits,

potentially resulting in the separation of

families or the removal of an individual

dependent who is elderly, infirm, of

tender years, or otherwise unable to

support himself or herself. For that

reason, we invite public comment on

whether the selection of this option in

the proposed rule, i.e., removal of only

the family member who receives

unauthorized public benefits, is

preferable to a provision requiring the

removal of the entire family unit (the

principal habitual resident and all of his

or her habitual resident dependents)

upon receipt by one family member of

unauthorized public benefits.

Reservation of Right to Modify

Limitations

This proposed rule establishes

limitations on habitual residence at

minimal levels. The Service reserves the

right to modify these limitations and/or

impose a registration requirement in the

future should conditions warrant these

actions.

Request for Comments

The Service seeks public comments

regarding this proposed rule, including

proposed limitations on habitual

residence of individuals and families

within the territories and possessions of

the United States and the need for

provisions or exceptions to the rule

regarding FAS seasonal workers.

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 significant economic impact on

a substantial number of small entities.

This rule merely defines the rights and

limitations of an existing class of

nonimmigrants. It will affect certain

individual aliens, not small entities.

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 1 year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates 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

the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

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

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,
30418 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 / Proposed Rules

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988

This proposed rule meets the

applicable standards set forth in

sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

This rule does not impose any new

reporting or recordkeeping

requirements.

List of Subjects in 8 CFR Part 214

Administrative practice and

procedures, Aliens, Employment,

Students.

Accordingly, part 214 of chapter I of

title 8 of the Code of Federal

Regulations is proposed to be amended

as follows:

PART 214—NONIMMIGRANT CLASSES

1. The authority citation for part 214

is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184,

1186a, 1187, 1221, 1281, 1282; 48 U.S.C.

1901 note, 1931 note; sec. 643, Pub. L. 104–

208, 110 Stat. 3009–708; 8 CFR part 2.

2. Section 214.7 is added to read as

follows:

§ 214.7 Habitual residence in the territories

and possessions of the United States.

(a) Definitions as used in this section.

(1) Dependent means a citizen of the

freely associated states (FAS), as defined

in section 141(a) of the Compacts of

Free Association, approved by Public

Law 99–239 with respect to the

Governments of the Marshall Islands

and the Federated States of Micronesia,

and by Public Law 99–658, with respect

to the Republic of Palau (Compacts),

who is a habitual resident, reliant on a

principal habitual resident for support,

and:

(i) The unemployed spouse of a

principal habitual resident;

(ii) A child, unmarried and under 21

years of age, of a principal habitual

resident or of his or her unemployed

spouse;

(iii) The parent of a principal habitual

resident; or

(iv) The parent of the unemployed

spouse of a principal habitual resident.

(2) Family unit means a principal

habitual resident and his or her

dependents.

(3)(i) Full-time employment means

any lawful occupation of a current and

continuing nature that provides:

(A) Forty hours of gainful

employment each week; or

(B) An annual income that meets or

exceeds 100 percent of the official

poverty guidelines, see 45 CFR part

1611, appendix A, for an individual or

a family unit of the appropriate size.

(ii) For purposes of computing ‘‘fulltime employment,’’ while attending an

accredited college in the territory on a

part-time basis, each college credit-hour

of study diminishes by 3 hours the 40-

hour gainful employment requirement.

(4) Habitual resident means an FAS

citizen as defined in section 141(a) of

the Compacts who has been physically

present in a territory or possession of

the United States (except the CNMI, as

long as the Act has not been made

applicable to the CNMI), after admission

under section 141(a) of the respective

Compact, for a cumulative total of 1 year

during any continuous 24-month

period, except that no period of time in

which the citizen of the FAS is in a

territory or possession of the United

States as a:

(i) Full-time student under Compact

provisions;

(ii) Dependent of a resident

representative as described in section

152 of the Compacts;

(iii) Member of the United States

Armed Forces serving in an active duty

capacity;

(iv) Nonimmigrant under another

(non-Compact) category; or

(v) Lawful permanent resident of the

United States, shall be taken into

account in determining the period of

habitual residence in the territories or

possessions of the United States.

(5) Principal habitual resident means

an employed FAS citizen, or FAS

citizen of lawful independent means, or

retired FAS citizen, upon whose lawful

status the unemployed spouse and all

unemployed dependents are reliant.

(b) General. The regulations in this

section regarding habitual residence in

the territories and possessions of the

United States are applicable to habitual

residents living in Guam, American

Samoa, the United States Virgin Islands,

the Commonwealth of Puerto Rico, and

any other territory or possession of the

United States if the Immigration and

Nationality Act is applicable in that

territory or possession.

(c) Rights. Under the provisions of the

Compacts, FAS citizens, who are

eligible Compact entrants pursuant to

section 141(a) of the Compacts, have the

right to enter, reside, and work in the

United States, its territories or

possessions in nonimmigrant status and

without regard to sections 212(a)(5)(A)

and 212(a)(7) (A) and (B) of the Act.

(d) Limitations. The right of eligible

FAS citizens to establish habitual

residence in a lawful nonimmigrant

status within a possession or territory is

limited to those eligible FAS citizens

who:

(1)(i) Are actively engaged in a lawful,

full-time occupation; or

(ii) Possess an annual income of

sufficient financial resources which

meet or exceed 100 percent of the

official poverty guidelines; and

(2) Are not in receipt of public

benefits, in violation of section 401 or

411 of the Personal Responsibility and

Work Opportunity Reconciliation Act of

1996, Public Law 104–193, 110 Stat.

2261, 2268, as amended by sections

5561 and 5565 of the Balanced Budget

Act of 1997, Public Law 105–33, 111

Stat. 638, 639 (‘‘unauthorized public

benefits’’).

(e) Dependents. The dependent of an

habitual resident, or of the spouse of an

habitual resident, who is an FAS entrant

and otherwise in lawful status, shall

also be considered to be in lawful

nonimmigrant status provided the

dependent is financially supported by

the principal habitual resident; the

financial resources of the family unit

meet or exceed 100 percent of the

official poverty guidelines, see 45 CFR

part 1611, appendix A, for a family unit

of the appropriate size; and the

dependent is not in receipt of

unauthorized public benefits.

(f) Investors. An FAS investor, for the

purposes of this section, shall be

considered to be self-employed and

shall be subject to the benefits,

limitations, and requirements contained

in this section.

(g) Violation of status. Any habitual

resident who ceases to work for a period

exceeding 60 consecutive days for

reasons other than a lawful strike or

other lawful labor dispute involving

work stoppage; or whose annual income

or financial resources, as an individual

or as a family unit, fall below the official

poverty guidelines; or who as an

individual receives unauthorized public

benefits, shall be considered to be in

violation of status pursuant to section

237(a)(1)(C)(i) of the Act and subject to

removal from the United States territory

or possession in which he or she

resides.

(h) Dependents subject to removal. A

dependent of an habitual resident who

is in lawful habitual resident status

solely due to his or her relationship

with a principal habitual resident, shall

lose such lawful status and be subject to

removal from the United States territory

or possession in which he or she resides

if:

(1) The principal habitual resident

ceases to work for a period exceeding 60

consecutive days;

(2) The annual family income or

financial resources of the dependent’s
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 / Proposed Rules 30419

family unit fall below the official

poverty guidelines; or

(3) The dependent receives

unauthorized public benefits.

Dated: May 28, 1998.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

[FR Doc. 98–14656 Filed 6–3–98; 8:45 am]

BILLING CODE 4410–10–M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1769–96]

RIN 1115–AE–38

Petitioning Requirements for the H

Nonimmigrant Classification

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend

the Immigration and Naturalization

Service’s (Service) regulations to

accommodate the needs of certain

United States employers with respect to

the filing of new and amended petitions

for H–1B nonimmigrant workers. This

rule was written in response to a

number of complaints received from

certain industries which asserted that

the current H regulations contain

requirements with which some U.S.

employers cannot comply. In addition,

the current regulations contain certain

procedures which are burdensome to

both the Service and to the public.

Specifically, this rule proposes to

amend the Service’s regulation with

regard to the submission of itineraries

with certain H–1B petitions and to

amend the Service’s regulations

regarding the H–1B classification by

allowing petitioners to obtain and

submit the required certified labor

condition application after the petition

is initially filed with the Service, but

before the petition is adjudicated.

Finally, this rule proposes to amend the

Service’s regulation regarding the

revocation of approved H petitions

where the beneficiary is no longer

employed by the petitioner. This rule

will make the H–1B nonimmigrant

classification easier for certain U.S.

employers to use and will make the

requirements for the H–1B

nonimmigrant classification more

consistent with the practices of the

business world.

DATES: Written comments must be

submitted on or before August 3, 1998.

ADDRESSES: Please submit written

comments, in triplicate, to the Policy

Directives and Instructions Branch,

Immigration and Naturalization Service,

425 I Street, NW., Room 5307,

Washington, DC 20536. To ensure

proper handling, please reference the

INS number 1769–96 on your

correspondence. Comments are

available for public inspection at the

above address by calling (202) 514–3048

to arrange for an appointment.

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

current regulation at 8 CFR

214.2(h)(2)(i)(B) provides that an H

petition which requires an alien

beneficiary to perform services in more

than one location must include an

itinerary with dates and locations of the

services or training to be performed.

This regulatory provision was

promulgated primarily to address

certain practices in the entertainment

industry, which, prior to the passage of

the Immigration Act of 1990, was one of

the largest users of the H–1B

classification. (Entertainers now

typically enter the United States in the

O and P nonimmigrant classifications.)

Specifically, this regulation was

intended to preclude foreign

entertainers who were admitted in H

classification for the purpose of

performing at a specific engagement

from engaging in freelance work in this

country subsequent to their admission.

The regulation was designed to ensure

that aliens seeking H nonimmigrant

status have an actual job offer and are

not coming to the United States for the

purpose of seeking employment

following arrival in this country.

Since promulgation of this regulation,

however, many industries in the United

States, such as the health care and

computer consulting industries, have

begun to rely more frequently on the use

of contract workers. It has been the

experience of the Service that many

bona fide businesses which provide

contract workers to certain industries

under the H–1B classification have

experienced difficulty in providing

complete and detailed itineraries due to

the unique employment practices of

such industries. For example,

companies which are in the business of

contracting out physical therapists or

computer professionals often get

requests from customers to fill a

position with as little as 1 day advance

notice. Clearly an H–1B petitioner in

this situation could not know of all

particular contract jobs at the time that

it first files the H–1B petition with the

Service. As a result, many such bona

fide employment contractors do not

know all of the locations where a

contract worker will be employed at the

time the Form I–129, Petition for a

Nonimmigrant Worker, is initially filed.

Moreover, some employers who use

the H–1B classification may have a

legitimate, but unforeseeable, need to

transfer their employees on short notice

from one work site to another within the

organization, such as from the

employer’s Los Angeles office to its New

York office. Under the current

regulation, however, such an employer

is required to submit with its petition a

complete itinerary listing all of the

locations where the contract workers

will be employed. The regulation as

now written, therefore, does not fully

reflect current legitimate business

practices.

In response to these problems, the

Service now proposes to amend its

regulations at 8 CFR 214.2(h)(2)(i)(B)

and at 8 CFR 214.2(h)(2)(i)(F) to allow

certain petitioners to submit a general

statement describing the locations

where the alien is to be employed,

thereby eliminating the necessity of

submitting a complete itinerary. A

complete itinerary must be submitted

only in those instances where the

employer is aware of the actual itinerary

or where the petitioner is an agent that

does not actually employ the beneficiary

but merely represents the alien and the

alien’s employer.

In those instances where the employer

does not yet know the alien’s complete

itinerary at the time the petition is filed,

the employer must submit, in lieu of a

complete itinerary, a list of the places

where it knows the beneficiary will

definitely be employed, together with a

description of the alien’s job duties at

those locations. In addition, the

employer must submit, to the extent

possible, a list describing the alien’s

possible places of employment and the

duties which the alien would perform at

such locations. The employer may also

be asked to submit a letter with the

petition describing its past hiring

practices, including a list of past places

where it has employed similarly

situated persons. The letter must

describe the employer’s tentative plans

to use the beneficiary in an H–1B

capacity in the future. However, the

absence of a past hiring practice is not

a bar to the approval of the petition.

Petitions filed without any itinerary

may not be approved since this type of

petition involves purely speculative

employment. Of course, the petitioner