Do I Need an O-1 Visa Agent?
The following guide examines the role of the O-1 visa agent, from what these are to what to be aware of when you have an O-1 visa agent filing a petition on your behalf to work in the United States.
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The O-1 visa is a nonimmigrant work visa for non-US nationals who are deemed to possess extraordinary ability or have a demonstrated record of extraordinary achievement and are coming to the US to work in their particular field.
Two key requirements when applying for the O-1 visa are that:
- the individual has an offer of employment in the US, and
- a US company files the petition on their behalf.
The O-1 visa is technically classed as an employment-based visa, with the majority of O-1 petitions typically filed by the company or individuals who employ the O-1 applicant.
But what if you intend to work for more than one employer – who should file the petition?
Under US immigration rules, the ‘sponsor’ that files the petition does not necessarily have to be the employer. It is permissible to allow O-1 visa beneficiaries to use what’s known as an O-1 visa agent in place of an employer to file their petition on their behalf. This becomes helpful if the
Why use an O-1 agent?
The need for an O-1 agent could arise for a number of reasons.
Through the use of an O-1 visa agent, your employer does not need to originate or be based in the United States. This means that if you will work in the US for a foreign employer, a US-based company can be designated by your foreign company to file the petition as its agent.
Further, in addition to filing for O-1 beneficiaries seeking authorization to come the US for a specific event or performance in respect of one single sponsor, an O-1 agent can file for traditionally self-employed workers, or workers who use agents to arrange short-term employment with numerous employers.
In particular, the advice from USCIS is that if a beneficiary is to 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 beneficiary will perform their services, ‘unless’ a US agent files the O-1 petition.
As such, there can be practical advantages to using an O-1 visa agent, rather than a direct employer, not least where you intend to work for multiple employers during the course of your stay in the US.
Who can act as an O-1 visa agent?
An O-1 beneficiary cannot petition for themself.
An O-1 visa agent is defined as follows:
- The actual employer of the beneficiary; or
- The representative of both the employer and the beneficiary; or
- A person or entity authorized by the employer(s) to act in place of the employer(s) as its agent.
This can include a US agent that represents both the employer and beneficiary, or even a US agent authorised by the employer, including a foreign employer, to act directly in its place.
In many cases, O-1 applicants are already represented by agents to support their professional activities. The O-1 application process therefore allows for this relationship to be used to satisfy the petitioning requirement.
An O-1 visa agent will also be performing the function of an employer if the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent. However, this can only really be determined on a case-by-case basis, depending on the terms and conditions of the contractual agreement in place.
The regulations do not specify that the agent-beneficiary relationship must be formal, which means it is possible for a friend or associate to act as your agent, however, there are strict documentary requirements to be met when filing the petition in relation to establishing and detailing the agent-beneficiary relationship.
Applying for an O-1 visa with an O-1 agent
To be eligible for an O-1 visa, the applicant must demonstrate extraordinary ability or achievement through national or international acclaim.
Extraordinary ability means a level of expertise indicating that you are one of a small percentage who has risen to the very top of your field. To demonstrate extraordinary achievement, you must possess a degree of skill and recognition substantially above that ordinarily encountered.
Further, you must be coming to the US to continue work in this particular area and you must have a US work sponsor who will file a petition with US Citizenship and Immigration Services (USCIS) on your behalf using Form I-129, Petition for a Nonimmigrant Worker.
It is only once a petition has been granted that you can then submit your application for an O-1 visa. If approved, you may be granted an initial period of stay of up to three years, with the opportunity to extend this indefinitely until your project in the US has been completed.
Filing as an O-1 visa agent is not the same as filing as an employer. The agent will be required to present additional evidence to USCIS in order to establish their legitimacy and role as an agent.
Further, the evidence required will depend on whether the O-1 visa agent is filing as an agent performing the function of an employer, as a person or company in business as an agent and filing for multiple employers, or as an agent for a foreign employer.
Agents acting as an employer will have fewer evidentiary requirements than an O-1 visa agent or agency that is sponsoring the beneficiary for the purposes of working for multiple employers.
By way of example, when filing as an acting agent representing multiple employers, the O-1 visa agent must file the following:
- An itinerary that includes all of the events and activities that the beneficiary will take part in while in the US.
- The names and addresses of all involved employers, as well as all of the venues at which the events or activities will be performed.
- The contracts that exist between the O-1 visa agent and the beneficiary, as well as between the beneficiary and their employer(s). The O-1 visa agent will also need to explain the terms and conditions of these contracts.
Because the decisions made by USCIS are on a case-by-case basis, the agent’s summary of the contract will be an important factor in deciding if their agency is legitimate.
What happens if I want to change employer?
If you are an O-1 nonimmigrant already in the United States and you would like to change employers, then your new employer, or an appropriate O-1 visa agent, must file a Form I-129 with USCIS.
Please note, if the original petition was filed by an agent, an amended petition must be filed with evidence relating to the new employer and a request for an extension of stay.
If, on the other hand, there has been a material change in the terms and conditions of your employment or O-1 eligibility, the petitioner must file an amended petition on Form I-129 with the Service Center where the original petition was filed.
Need assistance?
The O-1 visa is a highly attractive immigration route but the petitioning process and evidential requirements are far from straightforward.
Using an O-1 agent can assist where a US-based sponsor is required to file the petition, but applicants will need to ensure they are providing full and comprehensive information within their application for USCIS processing.
For advice on your O visa petition, contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.
Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
