Mark A Ivener, A Law Corporation

DHS Issues Final Rule on Petitioning Requirements for O and P Nonimmigrants

The Department of Homeland Security (DHS) issued a final rule effective May 16, 2007, to permit petitioners to file O and P nonimmigrant petitions up to one year before the petitioner’s need for the worker’s services. The rule is intended to enable petitioners who are aware of their need for the services of an O or P nonimmigrant well in advance of a scheduled event, competition, or performance to file their petitions under normal processing procedures. “This way, petitioners will be better assured that they will receive a decision on their petitions in a timeframe that will allow them to secure the services of the O or P nonimmigrant when such services are needed,” the DHS said.

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

Of the 112 comments received on the proposed rule published two years ago, 110 comments supported the proposal to extend the allowable petition filing time from the current six months to one year in advance of the petitioning employer’s need for the services of the O or P nonimmigrant. As nearly all comments supported the proposed rule’s extension of the O and P nonimmigrant petition filing period, the final rule provides that petitioners of O and P nonimmigrants may file petitions at any time up to a maximum of one year in advance of their need for the worker’s services. USCIS is not adopting a proposed requirement that petitions must be filed no sooner than six months before the actual need for the worker’s services.

The final rule does not apply the one-year filing timeframe to other nonimmigrant classifications associated with Form I-129. The nature of O and P employment is different from other nonimmigrant visa classifications, the DHS explained. Extending the filing period for other nonimmigrant classifications using Form I-129 “may result in the increased potential for fraud and abuse as well as an increase in case filings where the need for the alien’s services has not fully materialized.”

The final rule is available here. Average petition processing times are available here.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.