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Based on public outcry from the arts community and the immigration bar, US Citizenship & Immigration Services sought to engage stakeholders in a dialogue, in order to understand why their policy memorandum of November 2009 regarding agents serving as O-1 petitioners was not well received, and why their ongoing, ever-narrower “clarifications” reinterpreting the regulations proved so unpopular with the industries that rely on the O-1 visa. In short, that memo substantively changed the interpretation of existing law and regulations, and it added new requirements not supported by regulation, even though the regulations themselves have not been amended nor revised since adoption of the O-1 Final Rule in 1994. As a consequence, the landscape for O-1 visa sponsorship changed dramatically.

An opportunity for stakeholder feedback on Agent-as-Petitioner issues was provided by the USCIS Office of Public Engagement in a stakeholder teleconference on March 24th, 2011. Some questions were answered, many remained unanswered. Speakers intimated that forthcoming answers in an as-yet unpublished Executive Summary might be even more unpopular and could further destabilize industries already facing serious economic challenges. The most alarming reinterpretation suggested was that USCIS might start to consider O-1 performers to have violated status if they accept any new engagements with any “employer” not named in the original petition, even though the regulation at 8 CFR 214.2(o)(2)(iv)(D) explicitly says, “In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition.” If USCIS pursues the suggested interpretation, it will upset almost two decades of settled practice, and would render nearly every O-1 actor, dancer, musician and singer out of status when they seek to extend stay, renew their visa or file for a change or adjustment of status.

The crux of the difficulty is the Service’s insistence on trying to create formulaic and rigid rules for a visa classification whose primary usefulness is its flexibility. The O-1 has highly subjective legal standards, which have allowed individual adjudicators to apply their real-world knowledge and common sense. The consistency so dearly cherished and sought after by agency hobgoblins has led to “clarifications” and “interpretations” that turn long-established agency practice on its head, destroying well-settled expectations in the professional communities that rely heavily on the O-1.

Briefly, an “agent” in the O-1 visa context may be a US entity formally in business as an agent or business manager, e.g. providing artist representation; or it may be one among several prospective US employers/presenters/entities that wish to engage the services of the beneficiary (“Agent performing the function of an employer”), or it may be an unrelated party in the US that has a tax identification number and is authorized by the employers/presenters/venues/entities that wish to engage the services of the beneficiary to serve as their agent but solely for the limited purpose of filing a visa petition to facilitate these engagements and authorize the employment on the offered itinerary.

As indicated by the preceding paragraph, many problems in USCIS attempts to achieve consistency in interpreting the O-1 regulations stem from use of the words “employer” or “employment.” Those words often do not accurately characterize how work is done in fields of endeavor for which the O-1 visa is used. Although they get paid, most professional athletes in non-team solo sports, most fine artists and most performing artists do not usually work in an employer-employee relationship. This is not rare, arcane knowledge: many Americans know when they go to the movies that the actors are not salaried employees of the film studio, but get a flat fee per film, or union scale rates for the time worked. When they buy a CD, they know that Lady Gaga is not an employee of the record label. When they watch a pro golf tournament, they know that Tiger Woods doesn’t have a boss. Apparently, USCIS has distanced itself from common sense understanding of how the entertainment, sports and arts industries work, and their adjudicators are being asked to set aside their real-world knowledge to apply formulaic standards of “employment” to industries where an employer-employee relationship is not the norm, and never has been. This is particularly sad and disturbing because the fact that there are many types of work in the arts and entertainment that do not fit the traditional employer-employee model was a foundational reason for creation of the O and P visa categories in 1991.

The Service’s attempts to characterize all working relationships as “employment” have done considerable damage to the O-1 visa category already, and appear likely to do more, particularly in the context of O-1 petitions by an agent.

Requirements for a petition by an agent now include:

1. A written itinerary of confirmed engagements, including dates, addresses, rates of pay, etc.
2. Contracts between employers/presenters and the foreign beneficiary, where such contracts exist; written summary of the oral agreement where there is no contract;
3. Written consent for the agent to serve as visa petitioner from all other employers/presenters listed on the itinerary;*
4. Contract or summary of oral agreement between agent & foreign beneficiary.

Requirements 1, 2 and 4 are contained in the O-1 regulations as they have existed since the Final Rule published in 1994, although interpretations of the regulations have narrowed considerably over the years. However, the written consent requirement is not authorized by regulation or statute (lawyers call this ultra vires), and it creates another burdensome addition to the growing ream of paperwork required for artist sponsorship. Form I-129, which was 4 pages until early 2011, has since mushroomed to 8 pages; the O/P Supplement, previously only 1 page, is now 3 pages. The thinking behind this agent-consent requirement is foggy at best. When the agent-petitioner already has to provide the contracts for each engagement, what is gained by also requiring a separate document from each presenter consenting to the agent’s service as visa petitioner? Does USCIS really think the agent could otherwise have obtained the contract details by stealth, without the consent and cooperation of each presenter, or that the agent is forcing the O-1 artist to accept secret additional engagements against his or her will?

Neither O-1 regulations nor the November 2009 policy memo require the contracts between employers and beneficiary to be signed – a good thing, as that would effectively kill off the possibility of any foreign artists touring in the US, since lead time for signed contracts in the performing arts is extremely short. Indeed, so long as all the material terms of agreement are spelled out at least roughly in a written summary – type of work to be performed, where and when, for what compensation – and if there is as yet no formal written contract, the version of the agreement furnished with a visa petition may be a brief summary of oral agreement laying out all these terms, but it need not be not signed by either party.

However, an O-1 petitioner must also obtain peer advisory opinions from the relevant labor unions in any field where there is one, and this covers all the performing arts, and from a U.S. peer organization where there is no union. The number of unions that must be consulted depends on the type(s) of work offered in the US. Some unions have more stringent requirements than USCIS. Notably, O-1 petitions involving aliens of extraordinary achievement in film and television must always include at least two advisory opinions – one from a labor union, such as the Screen Actors Guild/ American Federation of Television & Radio Artists, and one from the management organization, the Alliance of Motion Picture & Television Producers. AMPTP requires all contracts or deal memos to be signed, effectively ratcheting up the documentation standard, again creating an ultra vires requirement not supported by the law.

With regard to the itinerary and supporting contracts, for a while (in late 2009 and early 2010) USCIS automatically sent Requests for Evidence in any O-1 petition where there was a gap in the proffered itinerary of 45 days or more. That practice and policy was formally withdrawn per a USCIS memorandum of July 2010, but adjudicators retain broad discretion to request additional evidence in support of the petition validity dates requested. Their discretion is now being used not only to inquire about long gaps in the itinerary, or where the end date of the period requested is any later than the end date of the last engagement supported by the documentation, but also to challenge the very nature of a proposed tour itinerary as a single “event.” Adjudicators apparently now have discretion to truncate the requested validity period at some arbitrary point in mid-itinerary chosen by the adjudicator, not by the agent or tour manager. What one hand gives, the other takes away.

Note: due to a subsequent USCIS draft interim policy memorandum on the role of agents as O and P petitioners (PM-602-0115) dated June 9, 2015, published on July 16, 2015, which purports to supercede the 2009 policy memo, this post has been updated to reflect contents of the 2015 memo, as it apparently reflects current Service practice even though a final version was never promulgated, so that memo does not formally represent agency policy. To date, USCIS has yet to harmonize these memoranda with existing law and regulations, and has yet to publish a chapter on O & P visas in the Online Policy Manual.

As of July 2015, the Service’s stated positions about Agents filing as petitioners for O & P visas are as follows:

USCIS recognizes the following types of agent relationships:

1. Agents who the beneficiary’s actual employer must provide-

a) evidence of the employment relationship;
b) a contract or written summary of oral agreement that specifies the offered wages and other terms & conditions of employment (the July 2015 memo uses the term “wages” even though it is not mandated by statute or regulations, and artists are often paid in a myriad of other ways, such as percentage of sales, flat fee or commission);
c) if beneficiary will work in more than one place, an itinerary listing dates and locations of all competitions, performances or events.

2. Agents who are one of the actual employers, filing on behalf of the others, must provide-

a) evidence of the employment relationship;
b) a contract or written summary of oral agreement that specifies the offered wages and other terms & conditions of employment;
c) contracts between the other employers on the itinerary and the beneficiary;
d) an itinerary listing dates & locations of all competitions, performances or events at which the beneficiary will perform services for the petitioner and for all the other listed employers; and
e) documents showing that the petitioner is authorized to act as an agent for the whole series of events, competitions or performances, which must be signed by all of the other employers.

3. Agents performing the function of an employer (i.e. where the petitioning agent itself is not an employer, but exercises some form of control or exclusivity over the beneficiary’s services in the United States) must provide-

a) a contract or written summary of oral agreement that specifies the offered wages and other terms & conditions of employment, which explains the relationship between petitioner & beneficiary, and how the beneficiary will be paid for services;

b) if the agent is performing the function of an employer but is not an employer, the agent must provide a definite itinerary of the employment and services planned for the time period requested. The itinerary does not need to include every engagement when and where services will be provided, as long as the petition identifies the entity outside the agent that will use the beneficiary’s services and provide payment.

4. Agents acting as representatives for both the beneficiary and a series of employers or entities requiring the beneficiary’s services must provide-
a) a contract or summary of oral agreement between the agent and beneficiary that  specifies wages offered and other terms & conditions of employment;
b) for O-1 petitions, contracts between other employers and the beneficiary;
c) for P-1 & P-3 petitions, USCIS may request contracts between the employers and the beneficiary(ies) in questionable cases;
d) an itinerary listing the names and addresses of employers and the dates and address locations where services will be provided;
e) documentation that the agent is “in business as an agent”, i.e. specifically authorized to act as an agent for other employers.

5. Agents petitioning on behalf of a foreign employer must provide-

a) a copy of a contract or written summary of oral agreement between the foreign employer and the beneficiary;
b) an explanation of the nature of the events or activities, beginning & end dates, and a copy of the itinerary listing the US dates and address locations where services will be performed;
c) evidence that the agent is authorized to represent the foreign employer for the purpose of filing the O or P petition.

Since the language of the P regulations differs from that of the O-1 regulations, the 2015 draft memo says that US “sponsoring organizations” that are not direct employers of P beneficiaries must provide evidence that they are guaranteeing the terms & conditions of employment offered to the beneficiaries.