USCIS Clarifies Requirements for Agents Filing as Petitioners for the O and P Visa Classification (SUPERCEDED BY THE NOV, 2009 NEUFELD MEMO)
U.S. Citizenship and Immigration Services (USCIS) is clarifying for performing arts associations and their members the regulatory requirements for agents who file as petitioners for the O and P visa classification.
USCIS has received inquiries from the public and at the Service Centers that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers.
Under 8 CFR 214.2(o)(2)(i) and 8 CFR 214.2 (p)(2)(i), O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S agent.
Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the Service Center that has jurisdiction over the area where the alien will perform services, unless an “established agent” files the petition. See 8 CFR 214.2(o)(2)(iv)(B) and 8 CFR 214.2(p)(2)(iv)(B).
A petition filed by an agent is subject to several conditions. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:
- The supporting documentation includes a complete itinerary of the event or events.
- The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
- The contract between the employers and the beneficiary is submitted.
- The agent explains the terms and conditions of the employment and provides any required documentation.
See 8 CFR 214.2(o)(2)(iv)(E)(2) and (p)(2)(iv)(E)(2). In addition, an agent who is also the beneficiary’s employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee. 8 CFR 214.2(o)(2)(iv)(E)(1) and (p)(2)(iv)(E)(1). Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be “in business” as an agent.
An employer that files a petition on behalf of other employers under the guise of being such employers’ “agent” does not meet this condition. For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers.
Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients. This may be accomplished by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.