Chapter 7 - Documentation and Evidence
USCIS requires a petitioning employer or agent to file the Petition for a Nonimmigrant Worker (Form I-129) and required fee for all beneficiaries seeking classification as an O-1 or O-2 nonimmigrant. The petition must be filed in accordance with DHS regulations and the form instructions, and with the required fees. The petitioner may not file the petition more than 1 year before the actual need for the beneficiary's services.
An O-1 or O-2 beneficiary may work for more than one employer at the same time. When the beneficiary works for more than one employer, each employer must properly file a separate petition along with the required documentation and fees unless an established agent files the petition.
More than one O-2 accompanying beneficiary may be included on a petition if they are assisting the same O-1 beneficiary for the same events or performances, during the same period of time, and in the same location. An employer or agent may not include multiple O-1 beneficiaries on the same petition.
A petitioner must include the following with the petition:
Evidence specific to the particular classification sought;
Copies of any written contracts between the petitioner and the beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the beneficiary will be employed;
An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and
A written advisory opinion(s) from the appropriate consulting entity or entities.
The evidence submitted with the petition must conform to the following:
Affidavits, contracts, awards, and similar documentation must reflect the nature of the beneficiary's achievement and be executed by an officer or responsible person employed by the institution, firm, establishment, or organization where the work was performed.
Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability or extraordinary achievement of the beneficiary must specifically describe the beneficiary's recognition and ability or achievement in factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired such information.
The petitioner may submit a legible photocopy of a document in support of the petition in lieu of the original. However, the original document must be submitted if requested by USCIS.
The regulation requires the submission of any written contracts between the petitioner and the beneficiary but allows for the submission of a summary of the terms of an oral agreement where there is no written contract. Evidence of an oral agreement may include, but is not limited to, emails between the contractual parties, a written summation of the terms of the agreement, or any other evidence that demonstrates that an oral agreement was created.
The summary of the oral agreement must contain:
The terms offered by the petitioner (employer); and
The terms accepted by the beneficiary (employee).
The summary does not have to be signed by both parties to establish the oral agreement.
A statutorily mandated consultation process exists for all O nonimmigrant petitions. The source and contents of the consultation vary, depending upon the type of O petition.
Source and Contents of Consultations
O-1A and O-1B (Arts)
The petitioner must provide a consultation in the form of an advisory opinion from a U.S. “peer group” in the area of the beneficiary’s ability (which may include a labor organization) or a person or persons with expertise in the area of the beneficiary’s ability. The contents should, if favorable, describe the beneficiary's ability and achievements in the field of endeavor, describe the nature of the duties to be performed, and state whether the position requires the services of a person of extraordinary ability, or may state “no objection.” If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If an advisory opinion is submitted from a group other than a labor organization, USCIS must submit a copy of the petition and supporting documents to the national office of the appropriate union (if any exists). If the labor organization does not respond, USCIS renders a decision on the evidence of record. If the petitioner establishes that no appropriate peer group exists, including a labor organization, USCIS renders a decision on the evidence of record.
The petitioner must provide consultations in the form of advisory opinions from both the union representing the beneficiary’s occupational peers and a management organization in the area of the beneficiary’s ability. The contents may include statements describing the beneficiary’s achievements in motion picture or television productions and whether the proposed position requires the services of a person of extraordinary achievement, or may state “no objection.” If an advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If the petitioner establishes that no appropriate group exists, including a labor organization, USCIS renders a decision on the evidence of record.
The petitioner must provide a consultation in the form of an advisory opinion from the labor organization having expertise in the skill area. If the O-2 is sought for employment in the motion picture or television industry, opinions must be provided from both a labor union and a management organization. The opinion may include information regarding the beneficiary’s particular skills, his or her experience working with the O-1 beneficiary, and whether the project involves a situation that includes work both inside and outside the United States (if applicable), or may state “no objection.” If an advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. Generally, if the petitioner establishes that an appropriate labor organization does not exist, USCIS renders a decision on the evidence of record.
USCIS maintains a list of organizations that provide advisory opinions on O-1 and O-2 beneficiaries.
The O regulations specify mandatory response times for advisory opinions requested by USCIS in routine and expedited cases and prescribe action to be taken when a requested opinion is not received. The consultations are advisory in nature only and are not binding on USCIS. A negative advisory opinion does not automatically result in the denial of the petition, as decisions must be based on the totality of the evidence. Accordingly, USCIS may favorably consider evidence submitted by the petitioner to overcome a negative advisory opinion.
Use of Prior Consultation
USCIS may waive the consultation requirement for persons of extraordinary ability in the field of arts if the beneficiary seeks readmission to the United States to perform similar services within 2 years of the date of a previous advisory opinion. After USCIS grants the waiver, USCIS forwards a copy of the petition and documentation to the national office of an appropriate labor organization within 5 days. Petitioners desiring to avail themselves of the waiver should submit a copy of the prior consultation with the petition.
[^ 8] See Chapter 4, O-1 Beneficiaries, Section C, O-1A Beneficiaries in Sciences, Education, Business, or Athletics [2 USCIS-PM M.4(C)]; Section D, O-1B Beneficiaries in the Arts [2 USCIS-PM M.4(D)]; and Section E, O-1B Beneficiaries in Motion Picture or Television [2 USCIS-PM M.4(E)]; and Chapter 5, O-2 Beneficiaries [2 USCIS-PM M.5].
[^ 9] A petition which requires the beneficiary to work in more than one location must include an itinerary with the dates and locations of work. See 8 CFR 214.2(o)(2)(iv)(A). There are no exceptions to the itinerary requirement when the petition is filed by an agent performing the function of an employer. However, USCIS does give some flexibility to how detailed the itinerary must be and does take into account industry standards when determining whether the itinerary requirement has been met. As such, the itinerary should at a minimum indicate what type of work the beneficiary will be engaged, where, and when this work will take place.