Listening Session on O Nonimmigrant Classifications Question and Answers

On July 20, 2010, the Service Center Operations Directorate and the Office of Public Engagement hosted a listening session on O and P nonimmigrant visas. The following are answers to the questions that skakeholders asked at this listening session.

Questions and Answers

Q: When can a U.S. agent file as a petitioner for an O beneficiary?

A: The regulations allow agents to be petitioners in the following scenarios:

• A U.S. agent can file for traditionally self-employed workers, or workers who use agents to arrange short-term employment with numerous employers
• A foreign employer who authorizes an agent to act on his/her behalf.

A U. S. agent may be:

• The actual employer of the beneficiary
• The representative of both the employer and the beneficiary
• A person or entity authorized by the employer(s) to act in place of the employer(s) as its agent. 

Q: When an U.S. agent files for a traditionally self-employed worker, on behalf of multiple employers, are contracts required with the employers where the beneficiary will be employed?

A: Yes, a contract between the employer and the beneficiary is required to be submitted with an O petition filed by an agent. The contract between the “traditionally self-employed” worker and the importing employer provides USCIS with evidence that an actual position exists and the O worker is coming to the United States to fill that position. An O worker cannot "self-petition." 

USCIS will accept either a written or an oral contract.  The contract must demonstrate what was offered by the employer and what was accepted by the employee. If an oral contract was entered into, the document evidencing the oral contract does not have to be signed by both parties to establish that there is an oral agreement.  However, it must document the terms of the employment offered and that the beneficiary has agreed to the offer. Such evidence may include but is not limited to:

• E-mails between the contractual parties
• A written summation of the terms of the agreement
• Any other evidence which demonstrates that an oral agreement was created

When the beneficiary uses a U.S. agent to file the petition, the agent, by regulation, represents both the beneficiary and the employer(s).  The regulations also require that when the agent represents the beneficiary and employer(s), the petition must be accompanied by a complete itinerary of the events or activities. The itinerary must specify 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.

Q: Can the U. S. agent be the actual employer of the beneficiary?

A: Yes, a U.S.agent can be the actual employer. When an agent petitions for the beneficiary as the employer 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. Keep in mind that payment the agent receives from the beneficiary, whether as a percentage of earnings or a commission, does not necessarily establish the agent as employer. A determination of whether a petitioner is an agent and/or employer will be made on a case by case basis.  

Q: Can a U.S. agent who is the employer/petitioner for the beneficiary, also serve as an agent for other (multiple) employers?

A: Yes, a U.S.agent may be the actual employer and may file a petition on behalf of the beneficiary as his or her agent and on behalf of other employers of the beneficiary. In this scenario, the agent is required by regulations to provide:

• The contract between the petitioner (agent) and the beneficiary
• A complete itinerary which lists specific dates of each service or engagement
• The names and addresses of the establishments, venues, or locations where the services will be performed
• Contracts between the beneficiary and the employer(s) for the duration of the visa 

The contracts that must be provided to USCIS can either be a summary of the oral agreement or a copy of the written contract. In addition, the petitioner must provide evidence establishing that the petitioner is authorized to act as an agent for the other employers.  This may be satisfied with a document signed by the beneficiary’s other employer(s) which states the agent is authorized to act as their agent for the limited purpose of filing the petition. If the petitioner does not establish that the petitioner is authorized to act as an agent for the other employers, the petition may only be approved for the petitioner’s event.

Please also refer to Question 2.

Q. Can additional performances or engagements be added to a petition?

A. Yes, a petitioner may add additional performances for an O-1 artist or entertainer during the validity period of the petition without filing an amended petition.

In cases where there have been any other material changes in the terms and conditions of the employment or the beneficiary’s eligibility, as specified in the original I-129, an amended I-129 petition must be filed.    

Q. Can a partially or fully self-incorporated person petition for himself or herself in the O classification?

A. The regulations require that an O petition be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. The regulations also state that an O-1 alien may not petition for himself or herself. The Immigration and Nationality Act requires that an O petition be filed by an importing employer. Documentation of ownership and control of the business may be requested in this circumstance to verify that the petitioning entity is a bona fide employer in the United States, that the petition is not based on speculative employment, and that the terms and conditions of actual employment qualify for O classification.    

Q. Can a foreign employer be a corporation owned by the beneficiary?

A. Yes, but the petition must be filed by a U.S. agent. A foreign employer may be a corporation owned wholly or in part by the beneficiary but the foreign employer must utilize a U.S. agent to file the petition.  The petition can not be based on speculative employment and the terms and condition of the actual employment must qualify for O classification. USCIS may request information regarding the foreign employer and documentation to establish that there is work in place for the beneficiary in the United States. 

A foreign employer who, through a U.S. agent, files a petition for an O nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a.