1.
The USCIS' Requirements for Agents Filing as Petitioners for the O-1 Visa
Under
USCIS regulation, O-1 petitions may only be filed by a U.S. employer, a U.S.
agent, or a foreign employer through a U.S. agent. The O-1 regulations
provide that if the beneficiary employee will work concurrently for more than
one employer within the same time period, each employer must file a separate
petition with the USCIS Service Center that has jurisdiction over the area where
the alien will perform services, unless an “established agent” files the
petition.
A
petition filed by an agent is subject to several conditions. A petition
involving multiple employers may be filed by a person or company in business
as an agent as the representative of both the employers and the
beneficiary, if:
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The
itinerary specifies the dates of each service or engagement, the names and
addresses of the actual employers, and the names and addresses of the
establishments, venues, or locations where the services will be performed.
In
addition, an agent who is also the beneficiary’s employer may file a petition,
but the agent must specify the wage offered and the other terms and conditions
of employment as described in the contractual agreement between the
agent/employer and the beneficiary employee. Therefore, while the regulations
permit an agent to file a petition on behalf of multiple employers including the
agent/employer itself, the regulations require that the agent be “in
business” as an agent. An employer that files
a petition on behalf of other employers under the guise of being such
employers’ “agent” does not meet this condition.
Example:
if Employer A files a petition for a beneficiary it will be sponsoring, and
submits an itinerary that includes performances for the beneficiary with other
employers, at different times, and at different venues, USCIS generally would
only approve the petition for Employer A and deny the petition with respect to
the other employers.
Such
a petition may be approved with respect to all employers only if
Employer A can establish to the satisfaction of USCIS that it is “in
business as an agent,” and that the other employers are its clients. This
may be accomplished by agent-Employer A submitting all of the required
evidence listed above, as well as evidence of the agency relationship, such as
a copy of its contract with the other employers.
2.
The Family of O-1 and O-2 Visa Holders
Any accompanying or following to join spouse and children under the age of 21 may be eligible to apply for an O-3 nonimmigrant visa, subject to the same period of admission and limitations as the O-1 nonimmigrant. They may not work in the United States under this classification, but they may engage in full or part time study on an O-3 visa.
The spouse and unmarried children of an O-1 alien may hold
O-3 status as dependents of the principal alien. This status allows the O-3 alien to reside in the United States, but not to work.
The O-3 nonimmigrant classification also includes the spouse and children of an
O-2 nonimmigrant.
The O-2 nonimmigrant category extends to aliens coming to the United States solely to accompany or assist an
O-1 performer or athlete. To qualify for O-2 status, the alien must be an "integral part" of the actual performance and have "critical skills and experience" with the
O-1 alien which are not of a general nature and cannot be performed by U.S. workers.
The O-2 visa is restricted to foreign nationals seeking to accompany
O-1 employees in the arts, motion picture and television productions, and athletics.
O-2 foreign nationals cannot work separate and apart from the O-1 prospective employee,
and must be named in the O-1 petition. Individuals seeking admission to accompany an
O-1 employee must meet the following criteria:
(1) they must enter the U.S. for the purpose of assisting in the
O-1 alien's performance;
(2) they must be an integral part of the actual performance;
(3) they must have critical skills and experience with the
O-1 employee, which are not of a general nature and are not possessed by a U.S. worker; and
(4) they must have a foreign residence that they do not intend to abandon.
To support classification of
O-2 and O-3 accompanying aliens, the O-1 alien must be coming to the United States to work in his or her area of extraordinary ability or achievement.
3.
The
Period of O-1 Visa Stay and Its Extension
The
initial period of stay for O-1 visa is up to 3 years, and USCIS will determine time necessary to accomplish the event or
activity. For the O-1 extension of stay, the increment of extension is up to 1 year.
As an O-1 nonimmigrant, you may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. You may only engage in employment during the validity period of the petition.
4.
The Extension of O-1 Visa
The petitioner must request an extension of stay to continue or complete the same event or activity or to complete a new
activity, by filing the following documentation with USCIS:
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Form I-129, Petition for Nonimmigrant Worker;
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A copy of your Form I-94, Arrival/ Departure Record;
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A letter from the petitioner explaining the reasons for the extension;
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The
spouse and children must file Form I-539, Application to Extend/Change Nonimmigrant Status, and submit any supporting documents to extend their stay.
5.
Changing Employers, and Special Rule for Athletes
If
you are an O-1 nonimmigrant in the United States and you want to change
employers, then your new employer must file a Form I-129 with the USCIS office
listed on the form instructions.
If the petition was filed by an agent, an
amended petition must be filed with evidence relating to the new employer and a
request for an extension of stay.
There
are special rule for athletes. When professional athletes with O-1 nonimmigrant
status are traded from one team to another, employment authorization will
continue with the new team for 30 days during which time the new employer must
file a new Form I-129. The simple act of filing the Form I-129, within this
30-day period, extends the employment authorization at least until the petition
is adjudicated. If the new employer does not file a new Form I-129 within
30 days of the trade, the athlete loses his or her employment authorization. The
athlete also loses his or her employment authorization if the new Form I-129 is
denied.
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