The O-1 nonimmigrant category is saved for people who possess extraordinary ability in the sciences, arts, education, business, or athletics (O1A), or who have an extraordinary achievement in the motion picture or television industry (O1B). Not at all unlike most other nonimmigrant visa categories, where a U.S. employer should act as the petitioner, and an agent might act as the O-1 petitioner in specific situations. This article summarizes when an agent can serve as an O-1 petition. Who qualifies as a specialist, the qualification standards for agents, and extra considerations to keep in mind for an agent-petitioner.
Agent as Petitioners | O-1 Petitions
U.S. agents might file O-1 petitions for the benefit of laborers who are customarily independently employed or regularly use agents to arrange short-term employment with various employers, or in situations where a foreign employer approves 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 an individual or entity authorized by the employer to act on the employer’s behalf as its agent.
With regards to an O-1 petition, an agent does not need to be a traditional booking or planning agent. Moreover, it is feasible to qualify based on being an agent only to file the O-1 petition. O-1 agency is more like the 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
At the point when an agent is the O-1 beneficiary’s actual employer. The specialist should prove that the agent is serving the capability of a business and has a specific level of control over the beneficiary’s work. The agent should give an authoritative understanding between the agent and the beneficiary. Determining the pay of the beneficiary, and how the beneficiary will be paid. The sort of working connection between the agent and beneficiary, and different terms and conditions of the employment arrangement. The first agreement isn’t needed, although may be preferred. It also can be a summary of the oral or written agreement between the parties.
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 for numerous employers. The guidelines don’t characterize the necessities for being “in business as an agent”. But, as recently suggested, USCIS guidance gives 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.
A foreign employer can petition for an O-1 candidate just through an approved U.S. agent. In this case, the agent should give proof of authorization to address the foreign employer. A petition on the employer’s behalf, and accept the 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 candidate. Essentially, a foreign employer might be claimed in entire or to a limited extent by the O-1 beneficiary. In the two cases, however, the petitioner must prove that the business entity is separate from the beneficiary and is a bona fide employer. The petition can’t be based on speculative employment; rather there must be work in place for the beneficiary, and the employee 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 confound the utilization of an agent as a candidate with true freelancing and self-employment, which are not allowed for foreign nationals requesting O-1 status.
Practically speaking, practically any party can act 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 delegated as an employer is a fact-specific inquiry. And that classification will determine the type of supporting documents for the petition. However, the particular proof depicted above is other traditional evidence of agency representation. Contracts, fee arrangements, or statements regarding the nature of the petitioner’s representation can be used to establish the agent’s classification and authorization.