FAQ: Who can be a petitioner for an O-1 Visa?
Image by Sophie Janotta from Pixabay. Who can be my petitioner for an O-1 extraordinary ability visa? There are three different types of petitioners for an O-1 visa: employer, agent or employer-agent. Learn about the different options and find one that’s right for your specific case in our FAQ.
What is the O-1 Visa?
The O-1 extraordinary ability visa is a temporary (non-immigrant) visa for someone who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
To qualify for an O-1 visa, the applicant must prove through documentation that they have sustained national or international acclaim and that they are coming temporarily to the United States to continue work in the area of extraordinary ability.
What is the difference between the O-1 Extraordinary Ability Visa and the EB-1 Extraordinary Ability Visa?
The primary difference between the O-1 and the EB-1 is that the O-1 is a nonimmigrant visa, which grants the holder temporary status while here on the U.S. under the O-1, while the EB-1 is an immigrant visa, which means that this is a path to a green card/permanent residence.
The applicant in an O-1 visa will need a petitioner to submit Form I-129, Petition for Nonimmigrant Worker with the required documentary evidence. On the other hand, the EB-1 Extraordinary Ability Visa allows the applicant to self-petition for permanent residency in the United States and obtain a green card.
Who can be a petitioner for the O-1 visa?
The following can act as petitioner for an O-1 visa:
Employer: The petitioner can be the applicant’s actual employer. In this case, the employer and employee must submit a copy of any written contract between the employer and the employee or a summary of the terms of the oral agreement under which the beneficiary (applicant) will be employed. The application must also include an itinerary of the activities, projects and events that will be undertaken by the applicant within the proposed employment period, if applicable.
Agent: The petitioner can also be the beneficiary’s agent. In this case, the agent could be the actual employer of the beneficiary, the representative of both beneficiary and employer, or the agent for multiple employers. In each case, a contract detailing the terms of the agency relationship and an itinerary of the activities, projects and events that will be undertaken by the beneficiary must also be submitted.
Agent as Employer: In the case of an agent acting as the beneficiary’s employer, the agreement should establish the type of working relationship between the agent and beneficiary and should clearly lay out how the beneficiary will be paid. However, there is no prevailing wage requirement or particular wage structure required. A detailed description of the wage offered or fee structure and that the wage offered/ fee structure was agreed upon may satisfy this requirement. The terms of the agreement must also show a level of control over the beneficiary’s work being relinquished to the agent in order to establish that it is performing the function of an employer. It must also show that is it in business as an agent.
Agent for Multiple Employers: A petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent for the employers and that is in business as an agent. In this case, the petition must include the following documentation: (1) A detailed itinerary; (2) Contracts or deal memos between the agent, the actual employers and the beneficiary; and (3) An explanation of the terms and conditions of the employment with required documentation.
Agent for Foreign Employers: The 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. A U.S. agent petitioning on behalf of a foreign employer must be authorized to file the petition, and to accept services of process in the United States in proceedings under section 274A of the Act, on behalf of the foreign employer. The petition cannot 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. The regulations do not require any additional documentary requirements for an agent filing on behalf of a foreign employer, however, it is the foreign employer who is responsible for complying with all applicable employer sanctions provisions.
What are the obligations of the O-1 Petitioner?
Material Change in Employment or Eligibility: If there has been any material change in the terms and conditions of the beneficiary’s employment or the beneficiary’s eligibility, the petitioner must notify the U.S. Citizenship and Immigration Services (USCIS) and file an amended petition on Form I-129 with the Service Center where the original petition was filed.
Athletes: There are special rules for athletes. When professional athletes with O-1 nonimmigrant status are traded from one team to another, employment authorization will continue with the new team for 30 days during which time the new employer must file a new Form I-129. The simple act of filing the Form I-129, within this 30-day period, extends the employment authorization at least until the petition is adjudicated. If the new employer does not file a new Form I-129 within 30 days of the trade, the athlete loses his or her employment authorization. The athlete also loses his or her employment authorization if the new Form I-129 is denied.
Return Transportation: If the employment of an O nonimmigrant beneficiary is terminated for reasons other than voluntary resignation, the employer must pay for the reasonable cost of return transportation to the O nonimmigrant’s last place of residence before entering into the United States. If an agent filed the petition for the employer, the agent and the employer are equally responsible for paying these costs.
If you would like information about the O-1 visa process and assess your eligibility, please contact us. We are here to help! Follow us on Instagram, Twitter, Facebook, LinkedIn and Tumblr, for up-to-date immigration news.
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