A new Immigration and Naturalization Service rule clarifies the question of whether foreign employers can file for H-2B, O and P visa for their employees and formalizes existing practices relating to visa processing for professional athletes traded from one team to another.
The new rule makes it clear that foreign employers are only permitted to file H-2B, O and P visa applications on behalf of employees in the US in cases where a foreign employer authorizes the agent to act on its behalf. Agents 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. Agents must guarantee the wages and other terms of employment.
In H-2B cases, the agent may file a petition involving multiple employers as the representative of both the employers and the beneficiaries if the supporting documentation includes a complete itinerary of services or engagements. The itinerary must list dates of employment, names and addresses of the actual employers, and the names and addresses of the establishments where the work will be performed.
For O-1 and P-1 visas, foreign employers are permitted to act as sponsors as long as the employer uses the services of United States agent and the agent files the O and P petition. An employer is considered to be a foreign employer if the employer is not subject to service of process in the United States.
The INS also formally enacted as a regulation its longstanding policy governing sports teams which allow professional athletes traded between teams to play for the new team prior to filing the appropriate H-2B, O or P petition. The regulation requires the appropriate petition to be filed within 30 days of the trade. The INS noted that 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.” The INS took out controversial provisions in the proposed regulation that would have limited the provision to “US-based” employers since this would have damaged foreign major league franchises and others with minor league affiliates in the US.
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