Agents as Petitioners for O-1 Petitions

The O-1 nonimmigrant category is reserved for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics (O1A), or who have a demonstrated record of extraordinary achievement in the motion picture or television industry (O1B). Unlike most other nonimmigrant visa categories, where a U.S. employer must serve as the petitioner, an agent may serve as the O-1 petitioner under certain circumstances. This article summarizes when an agent can serve as an O-1 petitioner, who qualifies as agent, the eligibility criteria for agents, and additional considerations to keep in mind for an agent-petitioner.

Agent as Petitioners

U.S. agents may file O-1 petitions on behalf of workers who are traditionally self-employed or routinely use agents to arrange short-term employment with numerous employers, or in cases where a foreign employer authorizes the U.S. agent to act on its behalf. The agent can be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or a person or entity authorized by the employer to act on the employer’s behalf as its agent.

Agent Qualifications

In the context of an O-1 petition, an agent does not need to be a traditional booking or scheduling agent. It is possible to qualify based on being an agent only for the purpose of filing the O-1 petition. O-1 agency is more similar to traditional legal agency, such that the agent must primarily demonstrate that the employer and/or beneficiary authorized the agent to petition on their behalf.

Agent as the Actual Employer

When an agent is the O-1 beneficiary’s actual employer, the agent must prove that the agent is serving the function of an employer and has a certain degree of control over the beneficiary’s work. The agent must provide the contractual agreement between the agent and the beneficiary specifying the wage of the beneficiary, how the beneficiary will be paid, the type of working relationship between the agent and beneficiary, and other terms and conditions of the employment arrangement. The original contract is not required, although may be preferred, and can be a summary of the oral or written agreement between the parties. If the beneficiary is going to be working in more than one location, the agent-employer also must file an itinerary listing, at a minimum, the type of work the beneficiary will be doing and where and when the work will take place. There is no prevailing wage or particular wage structure required.

Agent for Multiple Employers

An “established agent,” or a person or company “in business as an agent” may file an O-1 petition for an O-1 beneficiary on behalf of multiple employers. The regulations do not define the requirements for being “in business as an agent.” But, as previously alluded to, USCIS guidance provides that the agent only needs to be in business as an agent for the particular series of events or engagements in the underlying O-1 petition.

The agent can satisfy this burden by providing a complete itinerary of the events involving the various employers and the beneficiary. The agent also must provide the contracts between the individual employers and the beneficiary. These contracts may be written or oral, but oral contracts require some form of documentation (e.g., eMails, a written summary) of the terms of the agreement. The agent must also clearly establish that the other employers have duly authorized the agent to petition on their behalf for the O-1 beneficiary. The agent bears the burden of proving that the proposed employment opportunities exist, explaining the terms and conditions of each employment, and providing all required documentation as needed. Note, however, if the agent is the sole actual employer and other individuals or companies are simply using the beneficiary’s services, then the agent does not need to provide the contracts between the beneficiary and the other entities.

Foreign Employers

A foreign employer can petition for an O-1 applicant only through an authorized U.S. agent. In this case, the agent must provide proof of authorization to represent the foreign employer, petition on the employer’s behalf, and accept service of process in the United States on the foreign employer’s behalf. Even when using an agent, a foreign employer is still responsible for complying with all employer sanctions provisions of section 274A of the INA and 8 CFR part 274a.

Self-Owned Entities as Agents

Although O-1 beneficiaries cannot self-petition, a U.S. business entity owned in full or in part by the beneficiary can theoretically petition for the O-1 applicant. Similarly, a foreign employer may be owned in whole or in part by the O-1 beneficiary. In both cases however, the petitioner must prove that the business entity is separate from the beneficiary and is a bona fide employer. The petition cannot be based on speculative employment; rather there must be work in place for the beneficiary, and the employment must qualify for O-1 classification.

Limitations of Agent-Petitioners

Even when an agent is used, O-1 classification requires that the beneficiary be employed by a U.S. entity. Care should be taken not to confuse the use of an agent as a petitioner with true freelancing and self-employment, which are not allowed for foreign nationals requesting O-1 status.

Conclusion

In practice, almost any party can serve as an agent-petitioner for an O-1 visa application if sufficient proof of the agency relationship is established. Whether an agent will also be classified as an employer is a fact specific inquiry, and that classification will determine the type of supporting documents for the petition. In addition to the specific evidence described above, other traditional evidence of agency representation, such as contracts, fee arrangements, or statements regarding the nature of the petitioner’s representation can be used to establish the agent’s classification and authorization.

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