April 18, 2011

USCIS Director Ali Mayorkas may not know much about what his field offices are doing, but he knows the law and regulations, and he’s a very smart cookie. I really do believe he wants to be liked by the business communities his Service Centers are so busy disemboweling.

Some immigration attorneys present in person at the April 13 Stakeholder Engagement on O & P visas came to the conclusion that what we now have as a result of that meeting is an opportunity to gather industry examples from a wide variety of disparate real-world business settings where the O-1 visa has been relied upon, in order to help the Service craft more-expansive groups of definitions of what constitutes an O-1 “employer” under agent scenarios, for purposes of compliance with the law. The statute does specify “upon petition of the importing employer” at INA 214(c)(1), as the Director quickly reminded me while I was describing the real-world scenarios of creative artists, who often do not have anything that resembles a traditional employer-employee relationship.

I noted that the nature of original creative endeavors with a defined work opportunity in the US, such as a fine artist under contract with a US gallery, or a musical artist under contract to make recordings for a production company or record label, typically leaves the individual artist firmly in control of both the content and timeline of their own work product. These arrangements leave the business end of things, such as selection, editing, presentation, pricing, promotion, & sales of the artistic work product, and identification & growth of the US market for the work product, to the agent. I was caught off guard and pressured into identifying the agent as the “employer” in these scenarios, but in fact the identity of the “employer” is truly bifurcated. Substantive control over the work rests with the artist, and administrative control over the how, when & where of selling the artist’s product (i.e., all business aspects of promoting & selling the creative product) rest with the agent.

However, the Service has been flexible on this issue in the case of models, where the US “employers” are the end-users with whom the petitioning agency is unlikely to have any contracts in advance of the dates of service. For the modeling & fashion industry, the Service has been willing to rely on the nature of the models’ ongoing relationships with their US agents. In light of this, the Director suggested that for creative artists, perhaps the notion of exclusivity of the contract with the US agent may be taken into account and may have a similar impact.

Of course, we all would have had more time to reflect on & offer a multitude of carefully considered definitions of who the “employer” is in different industries under the agent categories detailed in the Executive Summary of the March 24 O-1 Agent Stakeholder Meeting had USCIS released it with more advance notice. However, since it was published around 10am on the morning of the recent O & P Stakeholder Engagement, practitioners and other stakeholder organizations had limited opportunity to review the Executive Summary before attending to the April 13 meeting.

Basically, wherever the petition is NOT filed directly by a US employer, we have to find a way to squeeze reality into three types of “employer” bins under the regulatory types of agent relationships, as listed under the headers in the Executive Summary – which reflect the regulatory subparagraphs at 214.2(o)(2)(E)(1 – 3). These are (1) Agent Performing the Function of an Employer, (2) Person or Company in Business as an Agent, or (3) Foreign Employer Filing Through a US Agent.

The problem inherent in even starting from the type of reasoning embodied in the January 8, 2010 USCIS memo defining H1B employers, and branching out from there in order to structure sensible O-1 definitions of “employment” for industries that rely on a wide variety of creative piece-work, flat-fee, hourly, or commission-like percentage payment schemes for freelance and independent contractor work, is that there aren’t just three distinct frameworks in the real world of arts and entertainment businesses. There are infinite permutations of how the services or work-products of individuals are solicited, engaged and paid for. Attempting to fit all of them into boxes labeled “employer” is a terrifying prospect for businesses that face a host of business, liability, tax and other reasons to avoid that very label.

If you represent an organization that files its own O-1 visa petitions, or if you are an immigration attorney with clients in any field who are not traditional employers, and you make use of one or more types of O-1 Agent filings, please provide examples. Describe how your clients’ industries work, and how they would like to see “employer” defined!

If you have any questions about employers in agent petitions, contact Karin Wolman today – as an O-1 visa attorney, she is here to help!