Many O-1 petitions are filed by traditional employers where the beneficiary will perform one specific job with just one specific employer. In the entertainment industry, however, the traditional employer/employee relationship doesn’t always exist. Many self-employed workers (actors, performers, musicians, etc.) use agents to arrange short-term jobs with multiple employers. There are several options which provide flexibility for agents to file an O-1 petition – but several rules apply.
Below, we explain when an “agent” can file for an O-1 beneficiary and how the evidentiary standard changes with each scenario. One key component of petitioning for O-1 status is ensuring that the work is not “speculative.” This means that a real job must already exist for the foreign national at the time of applying. An individual, regardless of how accomplished, cannot travel to the U.S. in O-1 status for the sole purpose of looking for work.
- An Agent can be performing the function of the O-1 beneficiary’s U.S. employer:
USCIS believes that an agent actually functions as the U.S. employer when the terms and conditions of the beneficiary’s employment show direct control over the work being relinquished to the agent. USCIS will take a close look at the terms of the contractual agreement (written or oral) to determine the control over the work.
- An Agent can be a U.S. person or entity authorized by multiple U.S. employer(s) and the beneficiary:
Workers in the entertainment industry often take on numerous short-term jobs in the U.S. for various employers. Instead of requiring a separate O-1 filing for each job, USCIS allows an agent to file a single petition on behalf of the beneficiary. The petition should include enough evidence confirming the beneficiary services.
USCIS also wants to ensure that the beneficiary is truly coming to perform work that’s lined up, so they require a very detailed itinerary of the assignments specifying the beneficiary’s existing employment.
- An Agent can be a U.S. person or entity authorized by a foreign employer(s) to act in its place as an agent:
For the purposes of this visa category, a foreign employer who has actual work in the U.S. for one of their employees who would otherwise qualify under the O regulation, may utilize an individual or company with a U.S. presence for filing purposes. The U.S. individual or company would agree to accept service of process on behalf of the foreign employer regarding the petition.
The information provided above gives a brief overview of the agent and O-1 relationship, but the filings of these petition can prove to be extensive and require the proper preparation. Therefore, allow Berardi Immigration Law to assist you with your O-1 petition and contact us today.