NATO Nonimmigrant Aliens

(1) General —(i) Background. The North Atlantic Treaty Organization (NATO) is constituted of nations signatory to the North Atlantic Treaty. The Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, signed in London, June 1951 (NATO Status of Forces Agreement), is the agreement between those nations that defines the terms of the status of their armed forces while serving abroad.

(A) Nonimmigrant aliens classified as NATO–1 through NATO–5 are officials, employees, or persons associated with NATO, and members of their immediate families, who may enter the United States in accordance with the NATO Status of Forces Agreement or the Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty (Paris Protocol). The following specific classifications shall be assigned to such NATO nonimmigrants:

( 1 ) NATO–1—A principal permanent representative of a Member State to NATO (including any of its subsidiary bodies) resident in the United States and resident members of permanent representative’s official staff; Secretary General, Deputy Secretary General, Assistant Secretaries General and Executive Secretary of NATO; other permanent NATO officials of similar rank; and the members of the immediate family of such persons.

( 2 ) NATO–2—Other representatives of Member States to NATO (including any of its subsidiary bodies) including representatives, advisers and technical experts of delegations, and the members of the immediate family of such persons; dependents of members of a force entering in accordance with the provisions of the NATO Status of Forces Agreement or in accordance with the provisions of the Paris Protocol; members of such a force, if issued visas.

( 3 ) NATO–3—Official clerical staff accompanying a representative of a Member State to NATO (including any of its subsidiary bodies) and the members of the immediate family of such persons.

( 4 ) NATO–4—Officials of NATO (other than those classifiable under NATO–1) and the members of their immediate family

( 5 ) NATO–5—Experts, other than NATO officials classifiable under NATO–4, employed on missions on behalf of NATO and their dependents.

(B) Nonimmigrant aliens classified as NATO–6 are civilians, and members of their immediate families, who may enter the United States as employees of a force entering in accordance with the NATO Status of Forces Agreement, or as members of a civilian component attached to or employed by NATO Headquarters, Supreme Allied Commander, Atlantic (SACLANT), set up pursuant to the Paris Protocol.

(C) Nonimmigrant aliens classified as NATO–7 are attendants, servants, or personal employees of nonimmigrant aliens classified as NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, and NATO–6, who are authorized to work only for the NATO–1 through NATO–6 nonimmigrant from whom they derive status, and members of their immediate families.

(ii) Admission and extension of stay. NATO–1, NATO–2, NATO–3, NATO–4, and NATO–5 aliens are normally exempt from inspection under 8 CFR 235.1(c). NATO–6 aliens may be authorized admission for duration of status. NATO–7 aliens may be admitted for not more than 3 years and may be granted extensions of temporary stay in increments of not more than 2 years. In addition, an application for extension of temporary stay for a NATO–7 alien must be accompanied by a statement signed by the employing official stating that he or she intends to continue to employ the NATO–7 applicant, describing the work the applicant will perform, and acknowledging that this is, and will be, the sole employment of the NATO–7 applicant.

(2) Definition of a dependent of a NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO–6. For purposes of employment in the United States, the term dependent of a NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO–6 principal alien, as used in this section, means any of the following immediate members of the family habitually residing in the same household as the NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO–6 principal alien assigned to official duty in the United States:

(i) Spouse;

(ii) Unmarried children under the age of 21;

(iii) Unmarried sons or daughters under the age of 23 who are in full-time attendance as students at post-secondary educational institutions;

(iv) Unmarried sons or daughters under the age of 25 who are in full-time attendance as students at post-secondary educational institutions if a formal bilateral employment agreement permitting their employment in the United States was signed prior to November 21, 1988, and such bilateral employment agreements do not specify under the age of 23 as the maximum age for employment of such sons and daughters;

(v) Unmarried sons or daughters who are physically or mentally disabled to the extent that they cannot adequately care for themselves or cannot establish, maintain, or re-establish their own households. The Service may require medical certification(s) as it deems necessary to document such mental or physical disability.

(3) Dependent employment requirements based on formal bilateral employment agreements and informal de facto reciprocal arrangements —(i) Formal bilateral employment agreements. The Department of State’s Family Liaison office (FLO) shall maintain all listing of NATO Member States which have entered into formal bilateral employment agreements that include NATO personnel. A dependent of a NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO–6 principal alien assigned to official duty in the United States may accept, or continue in, unrestricted employment based on such formal bilateral agreement upon favorable recommendation by SACLANT, pursuant to paragraph (s)(5) of this section, and issuance of employment authorization documentation by the Service in accordance with 8 CFR part 274a. The application procedures are set forth in paragraph (s)(5) of this section.

(ii) Informal de facto reciprocal arrangements. For purposes of this section, an informal de facto reciprocal arrangement exists when the Office of the Secretary of Defense, Foreign Military Rights Affairs (OSD/FMRA), certifies, with State Department concurrence, that a NATO Member State allows appropriate employment in the local economy for dependents of members of the force and members of the civilian component of the United States assigned to duty in the NATO Member State. OSD/FMRA and State’s FLO shall maintain a listing of countries with which such reciprocity exists. Dependents of a NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO–6 principal alien assigned to official duty in the United States may be authorized to accept, or continue in, employment based upon informal de facto arrangements upon favorable recommendation by SACLANT, pursuant to paragraph (s)(5) of this section, and issuance of employment authorization by the Service in accordance with 8 CFR part 274a. Additionally, the application procedures set forth in paragraph (s)(5) of this section must be complied with, and the following conditions must be met:

(A) Both the principal alien and the dependent requesting employment are maintaining NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO–6 status, as appropriate;

(B) The principal alien’s total length of assignment in the United States is expected to last more than 6 months;

(C) Employment of a similar nature for dependents of members of the force and members of the civilian component of the United States assigned to official duty in the NATO Member State employing the principal alien is not prohibited by the NATO Member State;

(D) The proposed employment is not in an occupation listed in the Department of Labor’s Schedule B (20 CFR part 656), or otherwise determined by the Department of Labor to be one for which there is an oversupply of qualified United States workers in the area of proposed employment. This Schedule B restriction does not apply to a dependent son or daughter who is a full-time student if the employment is part-time, consisting of not more than 20 hours per week, of if it is temporary employment of not more than 12 weeks during school holiday periods; and

(E) The proposed employment is not contrary to the interest of the United States. Employment contrary to the interest of the United States includes, but is not limited to, the employment of NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO–6 dependents who have criminal records; who have violated United States immigration laws or regulations, or visa laws or regulations; who have worked illegally in the United States; or who cannot establish that they have paid taxes and social security on income from current or previous United States employment.

(iii) State’s FLO shall inform the Service, by contacting Headquarters, Adjudications, Attention: Chief, Business and Trade Services Branch, 425 I Street, NW., Washington, DC 20536, of any additions or changes to the formal bilateral employment agreements and informal de facto reciprocal arrangements.

(4) Applicability of a formal bilateral agreement or an informal de facto arrangement for NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO–6 dependents. The applicability of a formal bilateral agreement shall be based on the NATO Member State which employs the principal alien and not on the nationality of the principal alien or dependent. The applicability of an informal de facto arrangement shall be based on the NATO Member State which employs the principal alien, and the principal alien also must be a national of the NATO Member State which employs him or her in the United States. Dependents of SACLANT employees receive bilateral agreement or de facto arrangement employment privileges as appropriate based upon the nationality of the SACLANT employee (principal alien).

(5) Application procedures. The following procedures are required for dependent employment applications under bilateral agreements and de facto arrangements:

(i) The dependent of a NATO alien shall submit a complete application for employment authorization, including Form I–765 and Form I–566, completed in accordance with the instructions on, or attached to, those forms. The complete application shall be submitted to SACLANT for certification of the Form I–566 and forwarding to the Service.

(ii) In a case where a bilateral dependent employment agreement containing a numerical limitation on the number of dependents authorized to work is applicable, the certifying officer of SACLANT shall not forward the application for employment authorization to the Service unless, following consultation with State’s Office of Protocol, the certifying officer has confirmed that this numerical limitation has not been reached. The countries with such limitations are indicated on the bilateral/de facto dependent employment listing issued by State’s FLO.

(iii) SACLANT shall keep copies of each application and certified Form I–566 for 3 years from the date of the certification.

(iv) A dependent applying under the terms of a de facto arrangement must also attach a statement from the prospective employer which includes the dependent’s name, a description of the position offered, the duties to be performed, the hours to be worked, the salary offered, and verification that the dependent possesses the qualifications for the position.

(v) A dependent applying under paragraph (s)(2) (iii) or (iv) of this section must also submit a certified statement from the post-secondary educational institution confirming that he or she is pursuing studies on a full-time basis.

(vi) A dependent applying under paragraph (s)(2)(v) of this section must also submit medical certification regarding his or her condition. The certification should identify both the dependent and the certifying physician, give the physician’s phone number, identify the condition, describe the symptoms, provide a clear prognosis, and certify that the dependent is unable to maintain a home of his or her own.

(vii) The Service may require additional supporting documentation, but only after consultation with SACLANT.

(6) Period of time for which employment may be authorized. If approved, an application to accept or continue employment under this paragraph shall be granted in increments of not more than 3 years.

(7) Income tax and Social Security liability. Dependents who are granted employment authorization under this paragraph are responsible for payment of all Federal, state, and local income taxes, employment and related taxes and Social Security contributions on any remuneration received.

(8) No appeal. There shall be no appeal from a denial of permission to accept or continue employment under this paragraph.

(9) Unauthorized employment. An alien classified as a NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, NATO–6, or NATO–7 who is not a NATO principal alien and who engages in employment outside the scope of, or in a manner contrary to, this paragraph may be considered in violation of status pursuant to section 237(a)(1)(C)(i) of the Act. A NATO principal alien in those classifications who engages in employment outside the scope of his or her official position may be considered in violation of status pursuant to section 237(a)(1)(C)(i) of the Act.