By Maud Poudat | US Immigration Attorney
Posted: October 13, 2016
As a highly specialized individual in sciences, education, business, athletics, motion pictures or another type of artist, you might consider an O-1 visa “for people with extraordinary ability or achievement” to come into the United States. Although most of the O-1 visa petitions are filed by traditional employers (when the person is to perform only one specific job throughout the time of his/her visa with just one employer), it might occur that you are expected to come into the U.S. to perform several jobs for different employers. It is also possible that your employer doesn’t qualify as a U.S. employer entitled to file a Petition on your behalf.
The O-1 visa agent can be a representative located in the U.S. of your foreign employer, or the representative of several employers you will work for while on the American soil. For example, it will most commonly be the case if you are an artist coming for a tour in the U.S., but that could also apply if you are a scholar coming for several lectures in different places. In those instances, you will be represented by an “agent”: having a single reference is more convenient and less expensive than having to file a Petition by each employer!
Your O-1 agent, can be your actual employer, the representative for your employer and yourself at the same time, or a person/entity authorized by your employer(s) to act in their place as their agent.
Your O-1 visa agent can either be an individual or an organization, but in either case this person or entity will have to provide evidence of their being a legally existing structure in regard to American Business Law: U.S. Immigration Services will accept such proofs as tax identification number, date of incorporation, annual income, etc.
Further, if your agent files your Petition on behalf of multiple employers, this person or entity will have to establish that they are “in business as an agent”. The legislation does not specify the evidence required to demonstrate this requirement, but the focus will be on whether your agent can demonstrate them being actually entitled to act on behalf of the other employers, and on your behalf (see further).
In any case, you have to be very careful when choosing your agent because he or she will be responsible for major aspects of your application and stay in the U.S.
Your O-1 visa agent will be the legal link between you and your employers, and be held responsible for you in regard to Immigration Law. Consequently, your O-1 visa agent must have the good faith intent of working with you according to the terms of your contract.
Formally, you will have to prove that a contract exists between you and the agent, acting as your employer if that is the case. The contract must demonstrate what was offered by your agent as an employer and was accepted by you as an employee. Although we recommend that you provide an actual contract, a formal agreement is not required by U.S. immigration Services: if there has only been an oral agreement between you and the agent, you will have to provide evidence of its existence.
Your O-1 visa agent will also be the Petitioner filing a Nonimmigrant Worker Petition (I-129 Form) on your behalf. This Petition should be submitted at least 45 days before the date of the employment but no more than one year before it starts. Your agent will have to provide Immigration services with your precise itinerary (or state the possible changes), although additional performances for an O-1 artist or entertainer can be adjoined during the validity period of the petition without filing an amended petition.
In regard to Immigration law, your agent’s qualification as such will end with the last scheduled event for which your O-1 Petition is approved.
Finally, the attendant(s) necessary to perform your duties in the U.S. can be admitted under an O-2 visa upon demonstration of your needing them for the intended performances, and the existence of a “continuing participation” between you and each of the O-2 applicants. The O-2 visa applicant will be sponsored be your agent under the same terms as your agreement with this agent.
The O-1 visa application is fastidious and will be very closely examined by the Immigration Services. Considering the importance of what is often at stake when you apply for an O-1 visa, we strongly recommend that you seek advice with an experienced Immigration Lawyer to assist you with this process.