USCIS Proposes New Rule for Filing O and P Petitions Posted May 06, 2005 ©MurthyDotCom The U.S. Citizenship and Immigration Services (USCIS) published a proposed rule on April 28, 2005 to change the filing timelines for O and P petitions. A proposed rule has no force of law unless and until it becomes an interim final rule or a final rule, since it is merely a proposal. It does signify that there is a likelihood it could become an interim final rule or a final rule, however. Since comments will be accepted on the proposed rule until June 27, 2005, it cannot go into effect until sometime after that date. ©MurthyDotCom Who Would Be Affected? ©MurthyDotCom O1A petitions are filed for individuals with extraordinary ability in the arts, sciences, education, business, or athletics, which has been demonstrated by sustained national or international acclaim. ©MurthyDotCom O1B petitions are for individuals in motion picture or TV production who have a demonstrated record of extraordinary achievement. ©MurthyDotCom P-1 petitions are for persons who perform as internationally recognized athletes (P1As) or persons who are integral or essential to an entertainment group that has been recognized as outstanding on an international level for sustained and substantial periods of time (P1Bs). ©MurthyDotCom P-2 petitions are for persons who perform as artists or entertainers and are entering temporarily to perform under a reciprocal exchange program between a U.S. organization and a foreign organization for exchanging artists, entertainers, or groups. ©MurthyDotCom P-3 petitions are for artists and entertainers who will enter the U.S. temporarily to perform, teach, or coach in a culturally unique program. ©MurthyDotCom Persons who perform support services that are essential to the success of the performances of P-1s, P-2s, or P-3s may also petition for P status. ©MurthyDotCom How Would the Proposed Rule Change Filing Times? ©MurthyDotCom Currently, an O or P petitioner must file the petition within 6 months of the date that s/he will be needed in the United States. For example, the qualifying rounds of tennis's 2005 U.S. Open begin on Tuesday, August 23, 2005 and the opening rounds begin on August 29, 2005. If the petitioner knows that a certain foreign national tennis player will play in the U.S. Open, the petitioner could not have filed under the current rules until February 23, 2005 or after for the qualifying rounds or March 1, 2005 or after for the opening round. (Note that this example assumes that such a tennis player would not be coming in early for practice, interviews, etc.) ©MurthyDotCom Under the proposed rule, however, the O and P petitions may now only be filed six months to 1 year prior to the event, barring an emergency. In our example, petitions for the qualifying rounds of the 2005 U.S. Open would have been filed between August 23, 2004 and February 23, 2005, and for the opening rounds between August 29, 2004 and March 1, 2005. Under the proposed rule, the USCIS prefers that petitions not be filed in the six-month period before the event. In sports such as tennis, however, it is likely that some foreign national tennis players would not be invited for the qualifying or opening rounds until they have participated in that year's tennis season. Therefore, the petitions would need to be filed within the six months prior to the event. The proposed rule does permit the USCIS to make exceptions in emergency situations. The comments on the proposed rule that the USCIS provided indicate that they are willing to apply this exception liberally. Further, premium processing will still be available for O and P petitions. ©MurthyDotCom Why is the USCIS Proposing this Rule? ©MurthyDotCom Many events in which O and P beneficiaries participate are scheduled at least a year in advance or more. Because of security checks and other unanticipated delays, six months is sometimes insufficient for obtaining an O or P approval, which necessitates the cancellation of events or substitution of performers. The USCIS believes that the new proposed rule will solve this problem in most cases. ©MurthyDotCom Will the USCIS Consider Changing Filing Dates on Other Petition Types? ©MurthyDotCom At this time, the USCIS does not plan to change the window during which it will accept other I-129 petition filings, such as the H1B and L petitions, because they generally do not have temporary, prescheduled events. Moreover, the USCIS believes that most temporary job offers for H1B and L petitioners do not exist one year into the future. ©MurthyDotCom The USCIS has indicated that they would welcome comments on this issue. It is likely that any change regarding the acceptance date of H1B petitions would also require a change in the U.S. Department of Labor (DOL) regulations, however, since they control how early a labor condition application (LCA) can be certified. This generally has been about 6 months in advance. ©MurthyDotCom We again remind MurthyDotCom and MurthyBulletin readers that the USCIS regulation is only in the proposal stage. Until there is a change, it is necessary to follow the timeframes set out in the current regulations. © 2005 The Law Office of Sheela Murthy, P.C. All Rights Reserved
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