for Agents Filing as Petitioners
1. The USCIS' Requirements for Agents Filing as Petitioners for the O-1 Visa
The O-1 visa is for persons of extraordinary ability in the arts, sciences, education, athletics, television, and motion picture industry. 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:
The supporting documentation includes a complete itinerary of the event or events.
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.
The contract between the employers and the beneficiary is submitted.
The agent explains the terms and conditions of the employment and provides any required documentation.
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 Evidence of O1 Visa Application Filed by a U.S. Agent
The O1 visa regulations allow agents to be O1 visa petitioners in the following scenarios: 1) a U.S. agent can file for traditionally self-employed workers, or workers who use agents to arrange short-term employment with numerous employers, or 2) a foreign employer who authorizes an agent to act on his or her behalf.
A U. S. agent may be the actual employer of the beneficiary; or the representative of both the employer and the beneficiary; or a person or entity authorized by the employer to act in place of the employer as its agent.
The evidence required for O1 visa application depends on whether the agent is filing as an agent performing the function of an employer; or as a person or company in business as an agent and filing for multiple employers; or as an agent for a foreign employer.
When an agent performing the function of an employer petitions for the beneficiary, the petition must include the contractual agreement between the agent and the beneficiary which specifies the wage offered and other terms and conditions of employment. This can be a summary of the terms of the oral agreement or a written contract. USCIS relies on the contractual agreement that must be provided with the petition to determine whether the agent is functioning as the employer of the beneficiary.
The contractual agreement should establish the type of working relationship between the agent and beneficiary and should clearly lay out how the beneficiary will be paid. If the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent, then the agent may establish that it is performing the function of an employer. This determination will be on a case by case basis and will be based on the contractual agreement, whether written or oral.
3. O1 Visa Application for Fully Self-Incorporated Person, and Foreign Employer be a Corporation Owned by the O-1 visa Beneficiary
The U.S. immigration regulations require that an O-1 visa application should be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. The regulations also indicate that an O-1 visa cannot be files by alien himself or herself.
The regulations require that an O-1 visa petition should be filed by an U.S. employer or agent. Documentation of ownership and control of the business may be requested to verify that the petitioning entity is a real U.S. employer. The O-1 visa petition should not be based on speculative employment, and the terms and conditions of actual employment are required for O-1 visa application.
For O-1 visa application, a foreign employer can be a corporation owned by the O-1 visa beneficiary, but the O-1 petition must be filed by a U.S. agent. A foreign employer may be a corporation owned wholly or in part by the O-1 visa beneficiary, but the foreign employer must utilize a U.S. agent to file the O-1 visa petition. USCIS may request information regarding the foreign employer and documentation to establish that there is work in place for the O-1 beneficiary in U.S.
4. 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.
5. 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.
6. 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:
7. Changing Employers, and Special Rule for Athletes
Form I-129, Petition for Nonimmigrant Worker;
A copy of your Form I-94, Arrival/ Departure Record;
A letter from the petitioner explaining the reasons for the extension;
The spouse and children must file Form I-539, Application to Extend/Change Nonimmigrant Status, and submit any supporting documents to extend their stay.
If there has been material change in the terms and conditions of the O-1 visa holder's employment or the eligibility for the employment in United States, the O-1 employer should file an amended petition on USCIS Form I-129 with the USCIS Service Center where the original O-1visa petition was filed.
If an O-1 nonimmigrant wants to change employer in the United States, then the new employer should file a USCIS Form I-129 with the USCIS. If the previous O-1 visa petition was filed by an agent, not by the employer, then an amended Form I-129 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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