O and P Nonimmigrants

updated by Karin Wolman*

KarinWolman is a sole practitioner in New York serving businesses of all sizes, nonprofit organizations, and individuals, across industries from healthcare and the sciences, academia, finance and technology, to the performing arts and entertainment, fine and graphic arts and new media, culinary arts, fashion and beauty, architecture and design. Ms. Wolman is a frequent speaker at local and national conferences on topics in immigration law ranging from aliens of extraordinary ability to naturalization, for organizations including AILA, the Practising Law Institute, New Jersey Institute of Continuing Legal Education, and New York State Bar Association. A graduate of Columbia University and UCLA School of Law, she worked at the Brooklyn Academy of Music when the O & P categories were introduced. She has served since 2002 as moderator of the AILA InfoNet forum on O & P visas, in addition to moderating other employment-based forums. Her law firm website is atwww.kwvisalaw.com.

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EDITOR’S NOTE

U.S. Citizenship and Immigration Services (USCIS) still faces significant gaps in leadership, experience and officer training in the area of O & P adjudications, as reflected in Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and petition denials, many of which misstate the applicable legal standards and disregard or claim nonexistence of evidence in the record. The inconsistent adjudications climate at USCIS is compounded by the U.S. Department of State (DOS), where widespread readjudication of approved O-1 and P-1 petitions at consular posts pose additional risk, often absent any allegations of material misrepresentation in the approved petition. Consular officers at some posts may lack familiarity with 9 FAM 402.13-5(B), which states that an approved petition is prima facie evidence of entitlement to O-1 visa classification, but others have been affirmatively trained to disregard that rule and readjudicate O-1 eligiblity, taking the position that there was clear USCIS error in a petition approval on the grounds that the consular officer’s own Google search and review of supporting evidence is enough to allege missing information in the petition approved by USCIS, even when insufficient to reach a formal finding of misrepresentation under INA 212(a)(6)(C)(i). In short, approval of a petition by USCIS does not prevent a visa refusal on the statutorily unsupported grounds that the consular officer does not believe the beneficiary to be famous enough, and Visa Section Chiefs have upheld and defended such decisions. This situation is made worse by Foreign Service training that provides no coverage of the three different O-1 petition standards in 8 CFR §214.2 et seq. USCIS has yet to express any outrage at this usurpation of Service authority by officers of the Department of State. The Department of State’s Visa Office is aware of the problem, but has been unable to put a stop to it. At least the Kentucky Consular Center is no longer part of this problem: any petition filed with a duplicate copy will be sent to the KCC in hard copy to be scanned into the Petition Information Management System in its entirety.

Adjudications of petitions not submitted to premium processing may take unpredictable lengths of time, ranging from the statutory 14 days to 120 days or more. Processing time reports are now essentially meaningless, as the statute gives the Agency free rein to redefine “normal” at will, and USCIS has alighted upon a form of measurement that may give a window of over a year as the expected timeframe for processing. Consistency is ancient history, and the quality and intelligibility of RFEs, NOIDs and denials has declined across the board, despite the adoption of templates. Far too many notices and decisions issued by service centers reflect misunderstanding or ignorance of the legal and regulatory requirements, binding policy memoranda and precedent decisions. The problem of unsupported novel and restrictive requirements remains rife. Despite frequent reminders, they seem insensitive to the preponderance of evidence standard of proof, and often use RFE templates to assert that the petitioner failed to meet its burden of proof no matter what evidence is in the record, much of which seems to be disregarded. Prior petition approvals of the same type and on behalf of the same parties now carry no weight at all, per a policy memorandum of October 23, 20171, stating that all petitions must establish anew all elements of eligibility for the classification sought, regardless of the recency or number of prior petition approvals, requiring untold hours of reinventing the wheel on the part of previously-successful petitioners.

Obtaining USCIS approval of an O or P petition, and then getting a visa stamp to match, is far more difficult and unpredictable now than ever before. U.S. petitioners and their industries bear a greatly increased burden, financial and otherwise, and many are reconsidering their commitment to foreign talent, if not giving up altogether. Foreign nationals grow increasingly concerned and hesitant about pursuing opportunities in the U.S. market. Attorneys have no choice but to practice their craft meticulously and defensively, knowing that, all too often, no degree of care and effort will avoid an RFE, and no amount of skill and experience can avoid all denials.

We must hope that this, too, shall pass, and that USCIS will regain its equilibrium and a stronger sense of the key role the O and P visa classifications play in enriching the cultural and economic life of this nation.

 

O NONIMMIGRANTS: Individuals of Extraordinary Ability or Achievement

Introduction

The O classification accommodates a wide range of talented and acclaimed foreign nationals who may not qualify in other work-related nonimmigrant categories, such as H or L, or who wish to avoid them. Especially helpful to those in the arts and athletics, entertainers, chefs, the design professions, and highly accomplished business people lacking professional degrees, O-1 classification is a useful, flexible alternative to the H-1B program because it has no prevailing wage feature and no requirement that the worker must be treated as a salaried employee. It accommodates a diverse array of work arrangements and forms of compensation. The O- 1 faces no overall time limit, and no annual numerical cap, a feature that has drastically reduced the utility of H-1B classification, now unavailable to most petitioners for 51 weeks each year. Petitioners may well be able to choose between the H and O categories for the most highly qualified candidates, so long as the candidate meets the ever more challenging standards for “extraordinary ability.” With sufficient evidence of public recognition of the beneficiary’s accomplishments, the O-1 is an attractive option for those who lack a degree match- ing the job, those whose compensation package includes a large non-salary component, and those offered work in the private sector who do cannot afford to consign their fate to a random selection lottery.2

Statutory Authority and Scope

INA §101(a)(15)(O) defines the O-1, O-2, and O-3 classifications added by section 207 of the Immigration Act of 1990 (IMMACT90)3 as modified by sections 204, 205, and 207 of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA).4 The O-1 category is for individual “aliens of extraordinary ability” in the sciences, arts, education, business, or athletics. The O-2 category is for certain essential “support aliens” accompanying O-1 foreign nationals in the arts or athletics. The O-3 category is for dependent spouses and minor children of foreign nationals in the foregoing categories. Peer advisory consultation requirements are specifically authorized by INA §214(c)(3)(A) & (c)(6), of which subsection (c)(6)(D) mandates petition adjudication “in no more than 14 days” – honored primarily in the breach ever since the advent of premium processing.

Regulatory Authority

The governing USCIS regulations are at 8 CFR §214.2(o), with their DOS counterparts at 22 CFR §41.55 and accompanying notes at 9 ForeignAffairsManual (FAM) ch. 402-13, formerly 41.55.5 Chapter 33 of the USCIS Adjudicator’s Field Manual (AFM)6 covers the O classification. Eventually, the AFM sections on all nonimmigrants will be eclipsed by Volume 2 of the “Online Policy Manual,” 7 still incomplete as of this writing (February 2019).

The “Extraordinary” Standards for O-1 Foreign Nationals

Some confusion about what constitutes “extraordinary” is understandable, as there are only two regulatory descriptions of O-1 classifications,8 under which beneficiaries in the arts, sciences, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim,” and those in motion picture and television productions must have “a demonstrated record or extraordinary achievement.”9 However, the regulation then gives three separate definitions of what it means to be extraordinary,10 with two corresponding evidentiary standards—the same evidentiary criteria apply to arts and to motion pictures, worded identically,11 but weighed differently. In science, education, business, and athletics, “extraordinary ability” means “one of the small percentage who have arisen to the very top of the field of endeavor,” the same as the extraordinary ability standard for permanent residence under INA 203(b)(1)(A). Foreign nationals working in motion pictures and television must show “a degree of skill and recognition significantly above that ordinarily encountered,” a standard that falls somewhere in the middle. The definition at the lowest tier says “extraordinary ability in the arts means distinction.” The accomplishments of all types of O-1 beneficiaries must be “recognized in the field through extensive documentation.”12 8 CFR §§214.2(o)(2)(ii), (iii) set out in detail the general documentary requirements.

The subjective nature of all three standards renders them vulnerable to vague and ill-considered RFEs, NOIDs and unjustified denials. Insufficient training, varied aptitudes of adjudicators, and the absence of consistent guidance from headquarters and oversight by seasoned supervisors contribute to the problem, which starts with an absence of training on the different O-1 standards.13

Evidentiary Criteria Regarding the Beneficiary

The petitioner must establish the foreign national’s extraordinary ability or achievement, as applicable, by submitting evidence that the beneficiary is coming to the United States to continue work in the area of extraordinary ability or achievement and that he or she meets the evidentiary criteria for the applicable occupational field (summarized below).14

Scientists, Educators, Business Persons, and Athletes

Scientists, educators, business persons, and athletes able to document the required level of extraordinary ability may be admitted in O-1 classification, provided they seek entry to continue work in their area of expertise. “Extraordinary ability” in this subcategory means “a level of expertise indicating that the person is one of the small percentage who have [sic] risen to the very top of the field of endeavor.”15 Under 8 CFR §214.2(o)(3)(iii), the petitioner must prove “extraordinary ability” by providing evidence either of the beneficiary’s receipt of a “major, internationally recognized award, such as the Nobel Prize”—while perhaps insufficient on their own, nominations and placements should nonetheless be documented as well—or documentation of at least three of the following:

  • Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
  • Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
  • Published material in professional or major trade publications or major media about the foreign national;
  • Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
  • Original scientific, scholarly, or business-related contributions of major significance;
  • Authorship of scholarly articles in professional journals or other major media;
  • Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
  • Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.16

These standards are virtually identical to those enumerated under 8 CFR §204.5(h)(3) applicable to employment-based first-preference immigrant petitions for foreign nationals of “extraordinary ability” and quite similar to those under Schedule A, Group II for pre-certification for foreign nationals of “exceptional ability.”17

To provide flexibility, regulations also state that, if the foregoing standards do not “readily apply,” the petitioner may submit “comparable evidence” of eligibility. A proposed rule on “comparable evidence” was published as a draft policy memorandum in January 2016, never finalized.18 However, much of that draft memo has been effectively put into practice, per a key section, which notes, “A petitioner relying upon comparable evidence must still establish the beneficiary’s eligibility by satisfying at least three separate evidentiary criteria as required under the regulations. While the petitioner is not limited to the kinds of evidence listed in the criteria and is not required to show that all or a majority of the criteria do not readily apply to the beneficiary’s occupation before USCIS will accept comparable evidence, the use of comparable evidence does not change the standard for the classification.”19 In practice, comparable evidence often means testimony from experts in the same or a closely allied field, the same as the fifth regulatory criterion for O-1B petitions for extraordinary ability in arts or extraordinary achievement in television and motion pictures – thus it will encounter the same degree of skepticism as testimonial evidence proffered under those other criteria. Expert testimony should be accompanied by documentation of the author’s expertise, such as a résumé or curriculum vitae, and must include an explanation of how the author knows the foreign national or knows of his or her work, the author’s opinion of that work, and any specific facts in support of that opinion20. Some recurring themes in decisions of the Administrative Appeals Office (AAO) upholding denials of O-1 petitions that have relied too heavily upon letters is that testimony cannot consist of mere conclusory statements affirming that the beneficiary meets the regulatory standard, and must be supported by specific facts corroborated elsewhere in the record. The AAO also cautions against over-reliance on testimonial letters in the O-1 context, noting that while the P-3 regulation at 214.2(p)(6)(ii) regarding authenticity of a group’s expertise may explicitly be satisfied by affidavits or expert testimony alone, the regulation at 214.2(o)(3)(iii) does not specify that affidavits alone may satisfy these criteria,21 – but evidence proffered under subsections (o)(3)(iii)(4), (5) and (7) indeed could be satisfied by expert testimony alone, as nothing in those regulatory criteria specifies that it cannot.

A dilemma often arises whether to use an expert closely associated with the beneficiary, such as a fellow employee, project collaborator, co-author, etc., because while the unique knowledge gained by that association may be specific, detailed, and probative, its weight may be offset in the view of USCIS by the author’s presumed bias in favor of the foreign national. This presumption of bias is sometimes misplaced, so practitioners are advised to explain how the expert knows the beneficiary since the acquaintance may itself stem from the beneficiary’s renown or acclaim for work in the field. In music, the sciences, and much of academia, it is common for a professional collaboration to begin when someone else in the same field reaches out to the beneficiary based on renown for a conference presentation, or a piece of already published or recorded work reviewed favorably by others, which may then lead to new work. However, testimony from collaborators must still reference other evidence that the beneficiary’s work is known and influential outside of his or her own employers, if it is to establish “contributions of major significance in the field,” the plain language of which “requires evidence of an impact beyond one’s employer and clients or customers.”22

Practitioners seeking to rely on comparable evidence are well-advised to explain why the some of the specified criteria do not apply to the activities in question.23 USCIS recently sought to relax the limited utility of this alternative criterion under both the O-1A and O-1B arts standards, by means of a draft policy memorandum,24 clarifying that a more flexible interpretation is consistent with regulatory intent, and USCIS will consider “comparable evidence” “whenever one or more than one criterion does not readily apply to the beneficiary’s occupation. USCIS will not disregard such evidence simply because some, but not all, of the criteria apply… The petitioner does not have to show that all or a majority of the criteria do not readily apply before comparable evidence may be considered. The number of criteria that do not apply is irrelevant to this analysis.”25 However, the memo cautions that petitioners must explain why a particular criterion does not readily apply to the beneficiary’s occupation, and why the submitted evidence is “comparable” to that criterion.

As with the employment-based first-preference “extraordinary ability” category, one key to success in obtaining an O-1 is in defining the “field of endeavor” in which the individual has risen to the top. It is easier to prove that someone has reached the pinnacle of a narrowly defined field with a select membership than a general one (e.g., “professor of stochastic analysis” vs. “mathematics professor”), or “atomic physicist” versus “physicist.” However, USCIS examiners may deny a petition if the field is defined too narrowly. Petitioners should provide background on characteristics that define the beneficiary’s field of endeavor.

Scientists, educators, and business leaders may not have much difficulty identifying the appropriate types of O documentation, but those lacking three or more obvious types of documentation may find the O-1 standard daunting indeed. Applied scientists in private industry, for instance, often cannot publish or speak at conferences due to corporate confidentiality policies or nondisclosure agreements, and employers’ reluctance to disclose competitive information through the patent process; thus, they face greater challenges in showing they meet the applicable O-1 standard. So too, business people associated with small enterprises or in sectors where discretion and confidentiality are industry norms, may not be able to meet the stringent documentary criteria, even when relying on “comparable evidence,” especially if they are sought not for technical expertise but primarily for their leadership skills because the O-1A evidentiary criteria are so focused on types of documentation showing renown evidenced by public sources from outside the employer. Thus, an entire stratum of management expertise may be unavailable to U.S. businesses,26 at least through the O-1 category.

When facing the stringent O-1 Aevidentiary standard applicable to scientists, educators, business persons, and athletes, practitioners should determine whether the activity is one that fits within the H-1B category (assuming a cap-exempt employer or that H-1B numbers are available – neither being the straightforward questions they once were), then weigh the relative ease of filing an H-1B petition against the difficulty of preparing an O-1 petition, despite the greater flexibility that O-1 classification affords in other respects, with the caveat that many once-safe H-1B jobs are now being challenged as not meeting the definition of a professional specialty occupation. The ultimate advantage is that qualifying for O-1A classification based on the “very top of the field of endeavor” standard means the foreign national may qualify on the same basis for lawful permanent residence in the employment-based first preference category. Athletes seeking O-1A classification are well-advised to do so with an eye to the EB-1A standard, documenting their own professional ranking in comparison to the total number of professional athletes competing in the sport worldwide, and noting the prospective benefit to the United States based on their standing in light of total revenue in the US from that sport.27 However, there is a “glass wall” between the nonimmigrant O-1A and the EB-1(A) immigrant extraordinary ability standards, such that qualifying for the former is only a harbinger, not a promise, of possible long-term benefits to come.

Apart from showing that beneficiaries meet the evidentiary criteria to qualify as “aliens of extraordinary ability,” O-1A petitioners may also face challenges to the nature and duration of the offered employment, even in the most straightforward employment scenarios. There is no requirement for a written employment contract, and regulations explicitly recognize as acceptable an unsigned contract or summary of terms of an oral agreement, but ever since USCIS promulgated the agent-as-petitioner memorandum in the fall of 2009,28 adjudicators have often lost sight of the fact that direct employers are not agents, and the “event” may be the agreement for temporary employment (discussed further, infra). Before 2010, adjudicators rarely sought a separate written summary of the employment agreement, where a petition was for full-time direct employment and terms were clearly detailed on I-129 forms and in the petitioner’s letter, as those items alone provided a sufficient summary of the terms agreed upon.

Now, adjudicators routinely request separate written evidence of the employment agreement, often demanding signatures on a summary of the terms of an oral agreement, thus explicitly violating the regulatory allowance for unsigned contracts. RFEs often fail to distinguish between a petition filed by a direct employer for a single full-time, onsite job, where there is no agency relationship at all, and one filed by an “Agent performing the function of an employer,” where the petitioning agent is most often one employer out of several, performing the function of an agent on behalf of the other employers. RFEs requesting an itinerary remain prevalent, even in scenarios where the petitioner states clearly that it is a direct employer and requests a three- year term of full-time employment onsite at its business premises.

With individual athletes, the critical choice practitioners face is whether to attempt to qualify the foreign national for O-1 classification as an individual of extraordinary ability, which requires meeting at least three out of the eight criteria for extraordinary ability in athletics29, or whether instead to seek P-1 classification as an athlete who has been internationally recognized for performance in the sport, meeting two out of seven less stringent criteria30, discussed below. The P-1A may be valid for up to five years, while an O-1A has a maximum validity of three years, but depending on the types of contracts in the petition, the O-1 may authorize a much wider array of work. Note that the O-1 regulation refer to “athletics,” not “athletes,”31 so there is no reason why coaches, trainers, and certain other personnel (e.g., sail designers or automobile race mechanics) cannot qualify independently for O-1 status, if they can produce evidence of sustained acclaim for achievements in those occupations.32 While it is common practice for competitive athletes to switch occupations within an athletic field of endeavor, practitioners framing O-1 petitions for athletes who have been offered work as a coach, instructor, author or broadcast commentator must keep in mind that evidence of success as a competitive athlete will not count as evidence of acclaim for coaching others.33 Note that petitioners may favor the O-1A due to USCIS’s newfound enthusiasm for enforcing the regulation34 requiring sponsors of P-1 athletes to show that a sports league requires all participating athletes to be “internationally recognized,” discussed further below.

Other challenges to the nature of the offered employment may arise in either the O-1A or O-1B context, and may result from poor wording of the regulation authorizing agents as petitioners, which begins, “A U.S. Agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.”35 USCIS has not provided adjudicators with any guidance reminding them that “may” does not mean “shall,” yet RFEs claiming these three scenarios are the only permissible options are commonplace.

Artists and Entertainers (Except Those Affiliated with Motion Picture or Television Productions)

Foreign nationals of extraordinary ability in this subcategory may be admitted in O-1 status to continue work in their area of ability. Under INA §101(a)(46), for purposes of the arts, “extraordinary ability” means “distinction.” “Distinction,” in turn, means

a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.36

The term “arts” is defined as including “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.”37 The legislative history makes clear that the term is to be defined expansively, by providing a lengthy list of examples of O-1 occupations demonstrating that O-1 status in the arts is available not only to performers but to other essential technical or creative personnel, such as set designers, choreographers, music coaches, and even animal trainers.38 The regulatory definition of “arts” incorporates the entire list.39

Petitioners must show that the O-1 beneficiary meets the standard of distinction in arts, i.e., is recognized as being prominent in his or her field, either by showing that the beneficiary has been nominated for or has received a significant national or international award or prize, such as an “Academy Award, an Emmy, a Grammy, or a Director’s Guild Award” (despite their inapplicability to the performing arts!), or with evidence that the beneficiary meets at least three of the following:

  • Has performed/will perform services as a lead/starring participant in productions/events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or endorsements
  • National/international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals/magazines, etc.
  • Has performed in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.
  • Has a record of major commercial or critically acclaimed success
  • Has achieved significant recognition from organizations, critics, government agencies, recognized ex- perts
  • Has commanded or will command a high salary/other remuneration in relation to others in the field40 Again, USCIS permits “comparable evidence” to be submitted.41 However, even when dealing with the

lowest standard of extraordinary ability, petitioners are advised to explain why they seek to rely on comparable evidence in lieu of evidence that meets one of the other criteria specified in the regulation. These days, when most adjudicators are wont to issue an RFE asking the petitioner to label which evidence falls within which criterion, one must take the time to explain why a stage director, for example, has achieved distinction even if there are no applicable critical reviews or publications, no media articles, no significant recognition from critics and (predictably) if the salary is too low. The greatest challenge when dealing with the specified criteria in any of the O-1 categories is that USCIS refuses to apply them flexibly, despite the fact that, by design, a very few criteria apply to the entirety of human endeavor, and the O-1 classification was introduced specifically to broaden flexibility and accommodate a wider variety of fields of endeavor.

Artists and Entertainers in Motion Picture or Television Productions

Artists and entertainers, as well as directors, cinematographers, writers, producers and other essential technical and creative personnel, seeking entry in conjunction with motion picture or television productions are subject to an intermediate standard, of “extraordinary achievement,” meaning:

as commonly defined in the industry … a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.42

Despite the different terminology for motion picture and television artists, the same evidentiary criteria required to establish “distinction” associated with non–film artists and entertainers apply, though the regulations do not expressly permit use of “comparable evidence” in lieu of the specified criteria. However, the legacy Immigration and Naturalization Service (legacy INS) stated that it would distinguish between these two sub- categories of the arts by weighing the evidence differently and applying a higher standard to artists in the motion picture and television industry.43 With the advent of online streaming media, YouTube channels, and original programming by Netflix and Amazon Prime, practitioners should take note that actors, directors, and other artists associated with online motion-picture programming will be reviewed under the intermediate standard for motion picture and television productions. This trend is in keeping with the evolution of how motion picture content is distributed and viewed by the industry; even the Television Academy has evolved to award Emmys for some online programming. The omission of a “comparable evidence” provision seems inconsistent with a statutory scheme that requires all O-1 foreign nationals to meet the respective standard—“sustained national and international acclaim” or a “demonstrated record of extraordinary achievement”—by showing their “achievements have been recognized in the field through extensive documentation.”44 As a practical matter, use comparable evidence if need be, but exercise caution.45

    1. Category PracticeTips

Under former director Alejandro Mayorkas, immigration services officers’ performance review was restructured so that 50 percent of adjudications officers’ overall performance rating was based on identifying fraud, supposedly removing the focus on quantity of production altogether and replacing it with a focus on quality of adjudications. Concerns arose that the new performance measures were not adequately explained and produced inappropriate pressures on the adjudications process.46

A foreseeable by-product of creating a formal incentive to find fraud is that USCIS officers may erroneously but enthusiastically conclude that a petitioner’s or whole industry’s standard, legitimate way of doing business is fraudulent, based on their failure to understand how that industry works. In December 2015, major modeling agencies were hit with dozens of NOIDs, all claiming the proposed itineraries for O-1 petitions on behalf of fashion models were fraudulent, because they were based on projections from past work engagements with the petitioners’ major clients—a standard practice, as end-client specific bookings for individual models normally arise with only a few days advance notice, and control over what jobs a model is assigned and what rate a model gets paid resides with the modeling agency, not with end-clients. This incident nearly brought New York Fashion Week to a halt.

Practitioners responded by referring to a nonprecedent Administrative Appeals Office (AAO) decision from 2011,47 which describes a scenario identical to the work arrangements in nearly all modeling cases. The AAO noted that when the petitioner is an agent performing the function of an employer via a management agreement that offers the beneficiary’s professional modeling services to its clients, and exercises control over the beneficiary’s terms of employment, “the regulation at 8 CFR 214.2(o)(2)(iv)(E)(2) does not obligate the petitioner to provide a complete itinerary of events with the dates of each service or engagement, and the names and ad- dresses of the actual employers, and the names and addresses of the establishments, venues or locations where the services will be performed.” While the regulations typically require such specificity in petitions by agents where a beneficiary will work in more than one location, the AAO reasoned that a fashion model’s job is inherently peripatetic or itinerant, and because the end-clients do not exercise control, “the AAO does not con- sider the location of the fashion model’s bookings to be her ‘worksite’ and the petition does not require her to work in multiple locations.”

In finding that 8 CFR §214.2(o)(2)(ii)(C) was satisfied in this situation, the AAO reasoned: “While all petitioners are expected to explain the nature of the event and provide specific dates for the beneficiary’s activities, the use of the non-mandatory word ‘any’ recognizes that an itinerary may not be required in all circumstances.” The AAO therefore concluded that in the fashion industry, where assignments are short-term and often last- minute, it is sufficient for the petitioner to provide a representative sample of bookings with clients with whom the model beneficiary may work during the three-year contract, in lieu of a fixed itinerary.

In generating that wave of NOIDs, USCIS failed to consider industry standards as well as grasp the basic principle that a projected itinerary, reasonably based on extrapolation from an extensive, well-documented his- tory of the petitioner’s past engagements with reputable clients, is not a fraudulent itinerary. While the trend was stopped temporarily due to vigorous liaison efforts in 2016, practitioners representing modeling agencies who imagined this dragon slain already were dismayed to see it alive and breathing fire again in the latter half of 2018, now that liaison efforts have minimal impact. Modeling O-1 cases have faced a growing number of increasingly nonsensical RFEs and denials which ignore the industry’s basic business model. This is part of a larger pattern, whereby officers presume fraud from normal business practices, and improperly reach out to beneficiaries directly, rather than to petitioners or counsel. Certain USCIS officers have been known to call beneficiaries and end-clients directly, challenging or requesting copies of work agreements. Across all O-1 petition types, officers have been known to call project employers or experts who have provided letters in support of O-1 petitions, asking them to confirm the contents of such letters.

Part of the problem contributing to high levels of skepticism on the part of USCIS is a trend among certain practitioners to encourage the notion that the O-1B allows true freelancing and self-employment, when it really does not, a trend exacerbated by some attorneys doing double-duty as both attorney of record and petitioning agent. Such an arrangement poses significant ethical problems, as the attorney is then an interested party to the benefit request. To avoid overt conflicts of interest, best practice for attorneys is to choose one role and stick to it.

In this brave new world, practitioners must be aware that USCIS has an insatiable appetite for secondary evidence, such as proof of the standards, scope, and significance of any professional awards, proof of the circulation or distribution figures and readership demographics of each periodical in which published articles about the beneficiary appear, proof of an Internet publication’s analog in the print world, and so forth. A prudent attorney will research such evidence as a part of preparing an O-1 petition. For background on any type of evidence, note that Wikipedia entries will not be given much if any weight on their own, but can function in much the same way as a résumé or bibliography, i.e., as an index of facts supported by independent evidence from other sources.

For professional awards and prizes, whether they are major, international awards or lesser national ones, first look to the published entry or nomination requirements, standards, and judging criteria of the awarding entity itself, and then to external sources, such as the Gale Group’s Awards, Honors & Prizes, an international directory of awards and their donors, criteria, and significance.48

For all publications by or about the beneficiary, or about his or her work in the field of endeavor, provide copies of each article that clearly display the name of the periodical, the date of publication, and the author’s byline, if any; then, the circulation or distribution figures, and distinguish between print and online editions. For peer-refereed journal articles, or editorials about the beneficiary’s work, provide the journal’s own standards of publication and its impact factor. If the beneficiary is a scientist or academic, provide the most current “ISI/Web of Science” or “Google Scholar” list of citations to his or her published articles, and copies of the citing articles that contain substantive discussion of the beneficiary’s work, particularly review articles summarizing current state of the art, and editorials. For hard copy trade magazines, newspapers, and general print media, circulation and readership data can be obtained from the periodical itself, and from the Alliance for Audited Media (formerly the Audit Bureau of Circulation), as well as NewBase (formerly Publicitas), helpful for establishing the size, distribution, and audience demographic of foreign newspapers and magazines. For online editions of print publications and online-only magazines and blogs, figures for circulation and readership demographics often can be found in the publication’s own “media kit,” which may not be up-to-date, and then by searching external web traffic analytics providers such as Comscore, Quantcast, Compete, and others.

With testimonial letters, whether submitted as proof of a leading role for distinguished events or organizations, as proof of original contributions of major significance in the field of endeavor, or as proof of “comparable evidence,” it is crucial to attach the writer’s résumé, curriculum vitae, or biographic profile. It is equally critical to establish both the basis for the writer’s general expertise in the field of endeavor, and to explain specifically how he or she came to know of or about the beneficiary’s work, and why that work is significant in the field as a whole. AAO precedent prohibits USCIS from discarding testimony that is specific, reliable, relevant, probative, and not contradicted by other evidence in the record, but the Service has grown increasingly bold and arbitrary in its baseless rejection of testimonial evidence, often disregarding the content of all letters without proffering any specific basis for doing so. USCIS may only reject or give less weight to an expert opinion letter if it conflicts with other information in the petition, or the credibility of the expert witness is otherwise questionable.49 Useful counterarguments in support of such letters may be found in an AILA Practice Pointer on the use of expert testimonial letters, primarily in the H-1B setting50.

In Matter of Skirball, the AAO noted the director had not questioned the experts’ credentials, did not take issue with the experts’ demonstrated knowledge of the beneficiaries’ skills and history of the relevant musical genres, nor otherwise stated a reason to doubt the veracity of their testimony; the AAO further noted that the expert testimony provided appeared reliable, relevant, and probative as to the specific facts in issue, and there- fore could not be dismissed. Since that case, USCIS has taken to challenging expert credibility wherever the writer is personally acquainted with the beneficiary; thus, it is important for testimony to explain if the writer and beneficiary met as a result of the beneficiary’s acclaimed work in the field, and thus the foreign national’s renown preceded the personal relationship.

A trend across all industries is for O-1 RFEs to evolve as petitioners learn to respond to a theme. For example, in a June 2014 nonprecedent case at the Vermont Service Center (VSC),51 the AAO held that because of its International Olympic Committee designation, intensely athletic training regimen, competitive nature of the discipline, and use of the term “DanceSport,” ballroom dance is a sport and therefore must be held to the higher O-1A standard, rather than an art held to the O-1B standard. Since practitioners began proffering counter- arguments to that case, USCIS has changed tack and now focuses on the amount of time since a dancer received an award in competition, seeking a “sustained” record of national competitive excellence up to the time of filing. Where the duties include dance instruction, USCIS may call the dancers “educators” in order to apply the O-1A standard.

One type of challenge common to all O-1 evidentiary criteria occurs where USCIS dismisses any evidence acquired during a period when the beneficiary was in F-1 student status, J-1 exchange visitor status, or working in a position whose job title included “intern,” “junior,” or “assistant.” Such challenges are unsupported, as there is no such restriction in the statute or regulations, and creating one would be counterintuitive: such challenges presume that all evidence of a person’s extraordinary ability manifests suddenly upon promotion to a senior role. While practitioners must discern whether an award or press article recognizes professional achievement, rather than an achievement limited by its terms to students, USCIS needs to recognize, for example, that if a researcher had an article published in Nature while still completing a Master’s degree, that is an impressive, peer-reviewed professional publication made even more impressive by the author’s youth.

    1. Category: Accompanying ForeignNationals

The O-2 category is confined to foreign nationals seeking to accompany and assist O-1 foreign nationals in the arts, motion picture and television productions, and athletics. There is no corresponding statutory provision for foreign nationals to accompany scientists, educators, or business people. O-2 foreign nationals cannot work separate and apart from the O-1 foreign national in question and “must be petitioned for in conjunction with the services of the O-1 alien.”52 In other words, an O-2 petition should not be filed as a stand-alone, without a previously or simultaneously filed O-1 petition. While the O-2 support personnel need not be petitioned or paid by the same petitioner as the O-1 principal, it helps, and it is advisable to submit the O-1 and O-2 petitions together, marked clearly as related petitions so they are not separated.53 Since adjudicators may get confused by different petitioners and tend to issue RFEs when they are confused, best practice is to have the same petitioner file for the O-1 and the O-2 wherever possible, with a contract specifying that the O-1 will pay for the O-2’s services, but the same employer or agent will petition for both the O-1 and the O-2.

Basic Criteria

Foreign nationals seeking admission to accompany O-1 foreign nationals must: (a) enter solely for the purpose of assisting in the O-1’s performance; (b) be an integral part of the actual performance; (c) have critical skills and experience with the O-1 foreign national, not of a general nature and that cannot be performed by U.S. workers; and (d) have a foreign residence they do not intend to abandon. The term “actual” in regard to a performance does not impose additional requirements. No specific amount of prior experience with the O-1 is required, and because no labor certification involved, there is no need to show that U.S. workers cannot perform the job.54

Beyond these generalities, there is no limit to the functions an O-2 can perform. Accordingly, an O-2 petition in combination with an O-1 can be a useful alternative to a P-1 and P-2 petition, discussed below, allowing a music group or entire orchestra, including support personnel and administrators, to accompany an O-1 singer or conductor, for instance, or an entire theater group, including cast and crew, to accompany a director or lead actor.

These days, petitioners should describe the O-2 beneficiary’s relationship and importance to the associated O-1 beneficiary with particularity. Do not rely on an adjudicator to understand why the skills of a lighting director, for instance, are critical to the O-1’s performance, though the proposition may be perfectly obvious. Also, it has become increasingly important to provide reliable, extrinsic evidence other than testimony of the relationship between the O-1 and O-2 beneficiaries. Even detailed explanations by the O-1 and others associated with current and past productions may be insufficient.

Special Rule for O-2 Foreign Nationals in Motion Picture and TV Productions

8 CFR §214.2(o)(4)(ii)(B) enunciates a special rule for foreign nationals accompanying motion picture and television artists. The O-2 foreign national must have skills and experience with the O-1 foreign national: (a) not of a general nature; (b) that are critical either based on a preexisting, long-standing working relationship; or (c) with respect to the specific production, because significant production (including pre– and post-production work) will occur both inside and outside the United States, and the continuing participation of the foreign national is essential to successful completion of the production. Evidence respecting a production’s continuity often is a key to successful petitions for production personnel. As with other types of O-2 personnel, there are no other limits on the types of services such O-2 foreign nationals can perform. Notably, actors in key supporting roles may be classified as O-2 essential support personnel to one of the O-1 lead performers in a production, if their essentiality can be documented under provisions (b) or (c ) described above. The essentiality of O-2 essential support personnel claimed under (c) based on their critical role in pre- and post-production work is coming under increasing challenges from USCIS, so support workers’ participation in pre-production abroad should be documented as heavily and objectively as possible.

Other Considerations

Petition

An I-129 petition with the O supplement must be filed in duplicate to request O-1 or O-2 status.55 An O-1 petition can include only one beneficiary, but O-2 noncitizens can be grouped together on a separate petition.56 Multiple beneficiaries maybe listed on the special “Attachment-1” form provided with the I-129 package, or petitioners may create their own spreadsheet, but if so, USCIS will most likely send an RFE demanding its own form. Petitions may be filed up to a year in advance of the need for the noncitizen’s services.57 Be sure to reconfirm the applicable filing fee at time of filing, but it will be a single fee per petition, irrespective of the action requested or number of beneficiaries.

Jurisdiction

Petitions for services to be provided in more than one location must include an itinerary with dates and locations of the offered work, and must be filed directly with whichever service center has jurisdiction over the petitioner’s primary business address listed on Form I-129 at Part 1, Question 3, rather than the first or principal location where the temporary employment is to occur.58 The service centers interpret the phrase “more than one location” literally, such that jurisdiction will be determined by the petitioner’s location even if the beneficiary or beneficiaries perform services under the same contract but at two different physical locations next door to one another. Curiously, the regulations state that “[t]he address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph.”59 This means USCIS intends to use the petitioner’s headquarters, or office address, as the address that determines service center jurisdiction over a petition submitted with an itinerary, i.e., where work is to be performed in more than one location; but in practice, wherever the petitioner has more than one office address, it serves as an invitation to alert petitioners with additional means to forum shop between the California and Vermont service centers (CSC or VSC), at least in certain circumstances.60

Nature of Petitioner

Foreign nationals may work for more than one employer at a time but will require separate petitions filed with the service center having jurisdiction over the location where the particular services will be rendered, unless “an established agent” files the petition.61 In practice, any agent, as discussed further below, can meet this standard. If the beneficiary changes employers, the new employer or petitioning agent, as the case may be, must file both a petition and an extension of stay.62 Amended petitions must be filed with the service center of original jurisdiction (CSC or VSC) to reflect “material changes” in the terms and conditions of employment or the beneficiary’s eligibility, though petitioners for O-1 workers in the arts may add additional performances or engagements during the original petition validity period without amendment. Note that this provision does not extend to O-1 workers in business, education, sciences, or athletics or to those in motion pictures and television)63 The regulations do not address the question, but the Department of State bars substitutions of all O-2 personnel, even those associated with motion picture and television productions.64

Only U.S. employers and agents may serve as petitioners.65 The definition of an agent includes individuals or entities in the United States authorized by a foreign employer (often the self-employed beneficiary) to file the I-129 petition and accept service of process on the foreign employer’s behalf in proceedings under INA §274A. Also, any petitioner can petition on behalf of others seeking the beneficiary’s services if those others authorize the petitioner and consent in writing to do so. In other words, agents need not be traditional management or booking agents; rather, their authority derives from traditional agency principles.66 Traditional management and booking agents are subject to more explicit disclosure requirements respecting applicable contractual arrangements, and those filing petitions involving multiple employers must include a complete itinerary.67

O-1s cannot self-petition, though in theory nothing prevents them from establishing a limited liability corporation or other entity in the United States to serve as petitioner.68 Even so, both service centers have issued numerous RFEs asserting that beneficiaries, in effect, are self-petitioning because they are sole owners of the

U.S. entities that filed the petition, thus ignoring their existence as separate legal entities. The USCIS Executive Summary of the March 24, 2011, Stakeholder Teleconference on Agents as Petitioners,69 sheds little light on this subject, as it simply asserts that the petitioning entity must be a bona fide U.S. employer, the petition cannot be based on speculative employment, and that the terms and conditions of actual employment must qualify for O classification. There is no reason why U.S. entities wholly owned by a beneficiary cannot meet these criteria. Bear in mind that, while agents (including limited liability corporations) may petition for beneficiaries in both the H-1B and O-1 classifications, a key difference between the two classifications is that foreign nationals in O classification are not required to have W-2, control-based employer-employee relationships with their U.S. petitioners.

Consultation

Because the O provisions of MTINA reflect a political compromise between the performing arts and organized labor engrafted onto existing statutory provisions for business persons, scientists, educators, and foreign nationals of extraordinary achievement, the statute and regulations are rife with ambiguous references to “peer groups which may be collective bargaining representatives,” “letters of no objection,” and the like. In practice, the impenetrable language of the statute and regulations becomes fairly straightforward when applied to petitions for O classification: in a field where a labor union has jurisdiction via a collective bargaining agreement, such as in the performing arts, that union must be consulted; if a union is willing to consult, that union should be consulted; if the peer group is not a labor union, then the O-1 petitioner is free to seek an advisory opinion from any U.S. individual or organization with appropriate expertise.

Neither the statute nor the regulations quite achieve the desired clarity. Instead, they state that consultations are required from an “appropriate U.S. peer group (which could include a person or person with expertise in the field), labor and/or management organization …”70 Herein lies a problem, for the written advisory opinions may consist either of the author’s opinion regarding the nature of the proposed work and the extraordinariness of the foreign national’s qualifications or a simple letter of no objection, offering no specifics. If the author (whether a union, management organization, or other expert in the field) objects, the opinion is supposed to contain a “specific statement of facts which supports the conclusion reached.”71

On the other hand, nonlabor organizations (or individuals) contacted by the petitioner have no conceivable basis to object. Because they, too, can simply to respond with a no-objection letter, what is the point of such consultations? To inform USCIS that yet another expert or organization fails to object? Even so, an increasing number of RFEs from both service centers seem to suggest this meaningless exercise is required. Practitioners using nonlabor consultations are advised to seek written advisory opinions that specifically acknowledge the beneficiary’s acclaim for extraordinary ability in the field and also state no objection to the offered employment. Practitioners have reported receiving RFEs—and even denials—in fields where no labor union has jurisdiction, such as graphic arts, for having provided a peer advisory opinion that was not from the organization the adjudicator felt was most appropriate.

Note that, whatever their source, consultations are defined by regulation as “advisory” only and “not binding” on USCIS.72 This further diminishes the value of a nonlabor no-objection letter.

Petitioners should request a consultation well in advance of filing, by sending the appropriate union a copy of the proposed petition and, except for Actors’ Equity Association (AE), selected portions of supporting documentation. Use discretion, as not every last scrap of evidence is useful, and take care to abide by any instructions the consulting organization may have posted.

The vast majority of petitions requiring union consultations are for artists, entertainers, and athletes, and their accompanying personnel. Appendix 1 lists most of the relevant consultation organizations for the arts, and Appendix 2 lists the major leagues and a few other sports organizations, and provides additional consultation guidance. The addresses listed are those of the unions’ national offices, as union locals do not provide consultations. USCIS also has its own list at Appendix 33-1 of the AFM.73

In the arts, entertainment, or athletics, if USCIS decides a petition merits expeditious handling, and the petition does not already include an advisory opinion, USCIS ostensibly will contact the union directly for an expedited consultation. The union has 24 hours to respond by phone or USCIS will adjudicate without the advisory opinion. The union has another five working days to supply a written advisory opinion.74 Reliance on this procedure is ill-advised, because it requires more work on the part of USCIS and thus presents more opportunity for something to go awry. Note that USCIS does not forward consulting fees to the unions (discussed below); thus, the unions regard use of this procedure as an attempt to avoid paying their consultation fees.

For “routine processing” of O-1 petitions not accompanied by union consultations, the regulations provide that USCIS will forward a copy of the petition and supporting documents to the appropriate union within five days of receipt or to the collective bargaining representative, if one exists.75 The union must then respond within 15 days of receipt. USCIS may shorten this time in emergencies and used to adjudicate within 15 days even if there was no timely response from the union.76 Reliance on this procedure is a bad idea, because the more work USCIS must perform, the slower and riskier the outcome. On the other hand, consider using this approach if on a tight budget, as USCIS will not pay the union its consulting fee (discussed above). As a result, the union likely will refuse to respond, yet USCIS must adjudicate even if the union fails to do so within 15 days.77

Petitions for O-1 foreign nationals of extraordinary achievement in motion picture and television productions require two advisory letters, one from the union with jurisdiction over the type of work offered (e.g.,SAG-AFTRA for actors) and one from a management organization.78 The management organization that provides all consultations in this area is theAssociation of Motion Picture and TelevisionProducers(AMPTP). The AMPTP, by virtue of its effective monopoly in this area, has succeeded in implementing an ultra vires requirement that petitioners must provide signed deal memos in support of any petition in the motion picture or television field; however, AMPTP will accept contracts or deal memoranda that bear only DocuSign e-signatures. They have managed to implement this extra-regulatory requirement in practice, despite regulatory language governing all O- 1 petitions which states explicitly that a written contract is not required, much less a signed one.79 Practitioners and petitioners must keep abreast of AMPTP’s increasingly picayune demands, which specify precisely the right way to submit consultation requests.80

The consultation requirement for O-1 foreign nationals of extraordinary ability in the arts (but not motion pictures and television) is waived where the foreign national seeks readmission to perform similar services within two years of a prior consultation for similar services.81

With notable exceptions, most unions that regularly provide consultations do so relatively quickly, and without demanding a quid pro quo such as the hiring of unneeded local employees. However, their responsiveness comes at a price: the American Guild of Musical Artists, for instance, charges $500 per expedited consultation. If unsure which union to consult, call in advance for guidance to avoid unnecessary delays. Unions may waive the fees in some cases, such as when there is a collective bargaining agreement in place with the petitioner, or when the beneficiary is a dues-paying member. Where two unions share jurisdiction over the offered employment, one may defer to the other in covering some types of work. For O-2 petitions with multiple beneficiaries, consultations from more than one union may well be required, depending on the job categories involved. In general, consult with the union that best reflects the foreign national’s primary purpose in working in the United States to avoid multiple consultations for the same beneficiary. Petitioners should select job titles and describe the associated duties and engagements on the U.S. itinerary with care, and with union jurisdiction in mind.

Special Rule for Traded Professional O-1 Athletes

A professional O-1 athlete traded from one organization to another automatically is entitled to work for 30 days after acquisition, provided the new I-129 is filed within that period. Once the I-129 is filed, the athlete is authorized to continue work until the new petition is adjudicated.82

Dual Intent

By statute, there is no foreign-residence requirement for O-1 beneficiaries, who, along with their dependents, may thus seek permanent residence without jeopardizing their ability to maintain, extend, or reacquire their status. O-2 beneficiaries, on the other hand, must be coming to the United States temporarily and maintain a residence abroad they do not intend to abandon.83 While approval of an immigrant visa petition poses no impediment to approval of an O-1 extension or renewed visa application, O-1 workers still do not enjoy the travel privileges for pending adjustment applicants without advance parole, accorded only to H and L visa holders.84

Period of Admission

The statute imposes no limit on the length of admission for an O-1 foreign national, except that it authorizes admission for the period of the “event” in question. Nevertheless, USCIS settled on an initial validity period of three years to complete the event or activity in question for O-1 and O-2 foreign nationals.85 Extensions to continue/complete the same event may be obtained for up to one year at a time.86 Foreign nationals may be admitted up to 10 days prior to the validity period and/or may remain 10 days thereafter(but only if in fact admitted for that time as per the I-94, so as a practical matter this is determined by U.S. Customs and Border Protection (CBP) at the time of admission), though they are not permitted to work during these 10-day periods.87 However, as of the effective date of the High-Skilled Worker Rule88 on January 17, 2017, O-1 nonimmigrants are included in the classes of employment-based nonimmigrants now accorded a 60-day grace period within their approved period of admission if terminated early by the petitioner, during which time the foreign national may lawfully seek a new employer and file for a change of status or extension of status with a new employer.89

Definition of Event

The regulations adopt a broad definition of “event.” Event means “an activity such as, but not limited to, a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Such activity may include short vacations, promotional appearances, and stopovers which are related and/or incidental to the event. In the case of an O-1 athlete, the event could be the alien’s contract.”90 A group of related activities, such as a performing artist’s itinerary, can also be considered an event, as can a single contract or engagement for a prolonged period.

Chapter 33.4(e)(2) of the AFM acknowledges that “[t]here is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a ‘new event’ ” Further, “[t]here is no requirement for a ‘single event’ in the statute. Rather, the focus is on whether the foreign national will work in the area of extraordinary ability.” Nonetheless, this same section cautions against “speculative employment and/or freelancing,” asserting that petitions must establish, and either document or describe, actual events or activities. Indeed, the whole notion of speculative employment—or, rather, irrational fear of it—seems to be at the root of many an RFE demanding more and more proof of specific employment arrangements.

If the activities disclosed on an itinerary fall within the beneficiary’s area of extraordinary ability, they will be considered a single event no matter the gap between U.S. engagements.91 Despite this language, the odds of either service center issuing an RFE respecting itinerary gaps increase as the gaps between engagements exceed 45 days. Accordingly, where possible, petitioners are well-advised to provide evidence of proposed travel and activities abroad to “document the gap.”

Further clarity on this point was provided in a USCIS policy memorandum in July 2010,92 which noted:

In certain cases where there has been a significant “gap” between events, adjudicators have some- times concluded that a single petition was filed for separate events rather than a continuous event.… There is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event. The regulations speak in terms of tours and multiple appearances as meeting the “event” definition.… In addition, a job which may not have a specific engagement or project may also fall under this definition, if the job is the “activity” within the alien’s area of extraordinary ability.

The AAO then addressed the ongoing employment-contract aspect of the definition of “event,” which is critical to business, academic, and science O-1A petitions. The CSC had denied an O-1A petition for a research engineer on the theory that merely coming to the United States to perform day-to-day job duties as an engineer for a three-year offer of employment lacked “an intended purpose,” and thus failed to qualify as an event because there was no itinerary and the asserted “event” was not “finite.” The AAO reversed, stating:

The definition of event must be interpreted broadly, as the visa classification is expected to en- compass a diverse array of occupations spanning the professions, athletics, and the arts and entertainment fields. Given that the regulations allow for an initial three-year period of stay, consistent with other nonimmigrant visa classifications such as the H-1B and L-1 categories, it is reasonable to believe that the “engagement” included in the regulatory definition of “event” may include a three-year offer of employment in the alien’s area of extraordinary ability, including the “normal” duties of one’s profession.

The AAO noted that the CSC’s approach “would essentially prohibit private-sector employers from hiring O-1 scientists, engineers, and business leaders.”93

Though the regulations state that an individual may be granted extensions of O-1 stay in one-year increments to continue or complete the same event/activity, USCIS may grant extensions of stay of up to three years for individuals changing O-1 petitioners to engage in new employment in the same or similar type of activity, or where the petitioner offers a new three-year employment contract.

Return Transportation

For foreign nationals entering the United States in O status whose employment terminates for reasons other than voluntary resignation, the employer whose offer underlies the O status, and the petitioner, if separate, are jointly and severally liable for the reasonable cost of return transportation abroad—meaning to the beneficiary’s last place of residence prior to entry. As written, the regulations do not apply to foreign nationals changing to O status after entry.94 There are no enforcement mechanisms established for this provision,95 although the I-129 O/P Supplement now asks all petitioners (including those seeking a change to, or extension of, O-1 status) to sign an acknowledgement that they are aware of the return transportation obligation.

Revocation

Petitioners who no longer “employ” the beneficiary must write the applicable service center to that effect, and USCIS may, following notice, revoke the petition even after its expiration.96 Automatic revocation of an unexpired petition will occur if the petitioner or employer named in a petition filed by an agent goes out of business, files a written withdrawal, or notifies USCIS that the beneficiary is no longer employed by that petitioner. Valid petitions filed by an agent acting on behalf of an employer are not automatically revoked if the petitioning agent goes out of business so long as the underlying employment remains viable.97

Expedited Processing

The details of how and when to request premium-processing service98 are beyond the scope of this article. Suffice it to say that practitioners may find they have no choice but to pay the extra $1,410 (double that if an O-2 petition is involved) in return for a predictable response time and enhanced communications. For a long time, USCIS tried hard to meet the statutory processing deadline of 15 days, as per INA §214(c)(6)(D), for regularly filed O and P petitions. The Service’s erstwhile commitment to that statutory goal saved O and P petitioners (often nonprofits) untold sums in premium-processing fees. Recently, this commitment has faded, and non-premium cases may now take anywhere from three weeks to upwards of four months: results may vary.

However, the existence of premium processing combined with service center efforts to process regular cases expeditiously has relegated the “traditional expedite” process to the scrap heap. In the preamble to the premium processing service regulations, legacy INS stated that it was continuing its existing procedures for requesting expeditious processing, without additional fee, for “petitions that are filed by petitioners designated as nonprofit by the Internal Revenue Service….”99 According to its current expedite criteria, USCIS may, in its discretion, expedite a petition without an additional fee, if the petitioner meets one or more of the following criteria:100

    • Severe financial loss to company or individual
    • Extreme emergent situation
    • Humanitarian situation
    • Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
    • U.S. Department of Defense (DoD) or national interest situation (Note: Request must come from an official U.S. government entity and state that delay will be detrimental to our government.)
    • USCIS error
    • Compelling interest of USCIS

Useful in theory, practical considerations diminish the value of the traditional expedite procedure. If the petition already is filed, petitioners are supposed to contact the National Customer Service Center (NCSC), which will forward a “service request” to the service center. In the past, however, efforts to include 501(c)(3) documentation and an explanation of the emergency in the initial filings often were met with no response. Petitioners then contacting NCSC sometimes were asked to supply that same information in support of the service request. The net result has always been somewhat indifferent treatment to traditional expedite requests.

Consular Readjudications

Obtaining an O-1 petition approval from USCIS is no longer a solid end point, as consular officers worldwide increasingly tend to ignore DOS’s own guidance,101 which states that petition approval by USCIS is prima facie evidence of entitlement to O-1 classification. Officers are required to verify petition approval through either the Petition Information Management System (PIMS) or the Person-Centric Query System (PCQS). However, the information in these databases, particularly copies of supporting documentation in PIMS, is often incomplete, as the Kentucky Consular Center (KCC) has not always uploaded petition copies to the PIMS database at the time of visa interview.. Consular officers are supposed to request revocation of a petition approved by USCIS only in cases where they have identified specific new information unavailable to USCIS when the petition was adjudicated, and state grounds for revocation based on material misrepresentation. However, consular officers now often seek revocation of O-1 petitions because they have Googled the beneficiary, and do not personally believe he or she is famous enough, and stated as much to the beneficiary at the visa interview. Consular officers are not required to be familiar with the evidentiary criteria in 8 CFR §214.2(o) or (p), and, as noted above, may not have access to all petition documents.

P NONIMMIGRANTS:

Performing Groups, Athletes, and Culturally Unique Performers, Teachers, and Coaches

Introduction

In general, P-1 classification is available to established entertainment groups, individual athletes, and athletic teams. The little-used P-2 category can be very convenient for those few eligible individual through reciprocal union agreements, and group artists. The P-3 category should be the first option for culturally unique artists (groups or individual), teachers, and coaches. As the O and P categories can sometimes overlap, practitioners must on occasion weigh the pros and cons of choosing one over the other. Individual athletes may initially enjoy the security of a P-1 with five-year validity, but may eventually favor a shorter validity O-1 that authorizes them to do more than train and compete. Beneficiaries of a P1B for an internationally-recognized entertainment group may seek out an O-1 as the prospects of a solo career beckon.

Statutory Authority

INA §101(a)(15)(P) defines the P-1, P-2, P-3, and P-4 classifications, as added by section 207(a) of IMMACT90 and modified by sections 202, 203, 204, 206, and 207 of MTINA. P-1 status generally is available to internationally known athletes, individually or as part of a group or team, and entertainment groups. P-2 nonimmigrants are performing artists under the auspices of a bilateral reciprocal exchange program. P-3 nonimmigrants are culturally unique entertainers, teachers, or coaches, whether individually or in a group. All three classifications include accompanying personnel. The P-4 category is for spouses and dependents of noncitizens in the foregoing categories. As for the O visas, statutory authority for the peer advisory consultation requirement for P visas is found at INA §214(c)(6).

Regulatory Authority

The governing USCIS regulations are found at 8 CFR§214.2(p),with their DOS counterparts at 22 CFR §41.56 and notes thereto at 9 FAM§402.14(formerly 9 FAM41.56).102 Chapter 33 of the AFM covers the P classification.

Substantive Requirements for P-1 Classification

Individual athletes, athletic teams, and entertainment groups generally must meet the basic standard of international recognition—meaning “a high level of achievement in the field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country.”103

Athletes

Foreign nationals performing as athletes at “an internationally recognized” level may be admitted in P-1A status.104 P-1 classification may be granted to an internationally recognized athlete based on his or her individual reputation and achievements.105 This is a lower standard than that for O-1 noncitizens in athletics, who must have “sustained national or international acclaim,” but a narrower one in that it encompasses only competing athletes, not others involved in athletics, such as coaches and trainers, sail designers and race mechanics. Athletic teams must be recognized internationally as outstanding in the discipline and must be coming to perform services that require such recognition. Team members may not perform any services in the United States independently of the team.106

The regulatory rule that the offered employment must require the services of an internationally recognized athlete was not enforced for over 20 years because USCIS knew it was not supported by law, which is why a similar requirement107 was struck from the O-1 regulations in 1994. In its Final Rule amending the H, O, and P regulations, legacy INS remarked, “After careful consideration, the Service agrees that there is no statutory support for the requirement that an O-1 alien be coming to perform services requiring an alien of O-1 caliber. As a result, this paragraph was deleted from the final rule. The alien, however, must be coming to perform services in the area of extraordinary ability, as is required in the statutory definition of the classification.”108 Regrettably, legacy INS failed to strike out nearly identical language in the P regulations,109 which is equally lacking in statutory support, since the provision of law used to justify the P-1A rule110 refers only to the level at which the athlete performs, and not to any recognition requirements enforced by a U.S. employer. No sports league or tour has such a requirement as a threshold for participation, yet in 2013, USCIS began applying this regulation, which has no support in the law, to deny otherwise approvable P-1 petitions, and is doing so with ever more enthusiasm.

In individual sports, USCIS began drawing an arbitrary line below the largest or oldest one or two leagues, and denying everything below that line. For example, in golf, they will approve a petition for a golfer with a Professional Golfers Association contract, but not one for the Web.com tour. With an itinerary of the annual competition events, from a tour or league of a sufficient caliber for USCIS to acknowledge it as “internationally recognized,” and a letter from the tour stating that competition schedule repeats in substantially the same manner annually, a five-year P petition can, and should, be approved.111 In team sports, it is imperative to get a contract from the highest league possible (i.e., Major League Baseball, the National Hockey League, etc.), and then the major league can relegate the beneficiary to a minor league team.

The COMPETE Act of 2006 expanded somewhat the foreign nationals eligible for P-1 classification to include:

  1. individual professional athletes employed by teams (including affiliated minor league teams) belonging to an association of six or more professional sports teams with combined revenues exceeding $10 million annually, where the association governs its members’ conduct and regulates the competition; (2) individual coaches or athletes performing with teams or franchises in the United States that are part of an international league/association with at least 15 amateur sports teams, under certain circumstances; and (3) amateur or professional skaters performing individually or as part of a group in theatrical skating productions/tours.112

Individual athletes and athletic teams must include with their petition a tendered contract with a major U.S. sports league or team, or a tendered contract with an individual sport “commensurate with international recognition in that sport, if such contracts are normally executed in the sport,”113 and evidence and/or documentation of at least two of the following:

    • Significant participation in a prior U.S. major league season
    • Participation in international competition with a national team
    • Significant participation in a prior U.S. college/university season in intercollegiate competition
    • Written statement from a major U.S. sports league or official of the sport’s governing body detailing the foreign national’s or team’s international recognition
    • Written statement from the sports media or a recognized expert respecting international recognition
    • International ranking
    • Significant honors/awards in the sport114

Entertainers

P-1B classification may be accorded to foreign nationals who belong to an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. Each member must have had a sustained and substantial relationship with the group for at least a year (with exceptions discussed below).115 P-1B status is granted on the basis of the group’s international reputation, not on the basis of individual achievement.

A petition for P-1 classification for members of an entertainment group must be accompanied by:

    • Evidence that the group has been established and performing regularly for a period of a least one year;
    • A statement from the petitioner listing each member of the group and the exact date for which each member has been employed on a regular basis by the group; and
    • Evidence that the group has been internationally recognized in the discipline for a sustained and substantial period of time.116

International recognition may be shown either by evidence of the group’s nomination for or receipt of significant international awards or prizes for outstanding achievement in the field, or by evidence that the group has achieved three of the following:

    • Has and will perform as a starring or leading entertainment group in productions/events with distinguished reputations
    • International recognition and acclaim for outstanding achievements
    • Has and will perform services as a leading or starring group for organizations and establishments with a distinguished reputation
    • Record of major commercial or critically acclaimed successes
    • Significant recognition for achievements from organizations, critics, government agencies, or other recognized experts
    • Has commanded or will command a high salary or other substantial remuneration comparable to others similarly situated117

Exceptions

    • 75 Percent Rule—Only 75 percent of the group members performing must have had a sustained and substantial relationship with the group for at least a year.118 Thus, 25 percent of the P-1 performers or entertainers need not have had such a relationship. In addition, USCIS may waive the one-year relation- ship requirement “for an alien who, because of illness or unanticipated and exigent circumstances, re- places an essential member of a P-1 entertainment group or an alien who augments the group by per- forming a critical role,”119 but USCIS is typically stingy with the “exigent circumstances” exception. There is no statutory or regulatory support for requiring essential support personnel to meet the 75 per- cent rule, but some adjudicators misread the regulation120 requiring a statement describing the support alien’s “prior essentiality, critical skills and experience with the principal alien(s)” as justifying that interpretation. Such prior experience supporting the P-1 principal(s) need not be for one year, but must be detailed in the petition.
    • National vs. International Reputation—USCIS may waive the international recognition requirement for entertainment groups “recognized nationally as being outstanding in [their] discipline for a sustained and substantial period of time in consideration of special circumstances.” An example would be entertainment groups that have difficulty showing recognition in more than one country because of limited access to news media or geographical considerations.121 However, petitioners may be challenged on whether members of a P-1B entertainment group who are not the members prominently covered in the media are “integral or essential” to the group’s performances.
    • CircusPersonnel—The one-year membership requirement does not apply to noncitizen circus personnel performing as part of a circus or circus group or who are integral and essential, provided the personnel are entering as part of, or are coming to join, a circus with national recognition as outstanding for a sustained and substantial time.122
    • Group May Be Foreign or U.S.-Based—USCIS at long last conceded that the statute does not require a P-1 group to be foreign-based. Accordingly, it issued a policy memorandum revising the AFM, acknowledging that individual entertainers may come to the U.S. in P-1 classification to join any group, foreign– or U.S.-based, meeting the P-1 criteria.123

In these cases, the petitioner should describe the group in question but identify only the beneficiary or beneficiaries needing P-1 classification.124

Unfortunately, and entirely arbitrarily, USCIS decided not to extend this same interpretation to essential support workers, thereby placing U.S.-based groups that otherwise meet the P-1 requirements at a disadvantage in terms of their access to essential support personnel, who, after all, often are experts in a particular technique or technology.125

Substantive Requirements for P-2 Classification

    1. classification is reserved for artists and entertainers who perform individually or as part of a group, pursuant to a reciprocal exchange program between one or more U.S. organizations and one or more such organizations in another country that provides for the temporary exchange of artists and entertainers. There are no other criteria pertaining to these organizations, though labor unions must be involved in establishing the exchange program or at least concur with it.126 The exchange must be similar in terms of caliber of artists or entertainers, terms and conditions of employment, and numbers of noncitizens involved in the exchange— though individual-for-group exchanges are not precluded, and the individuals subject to the exchange must have “comparable skills.”127 Despite their potential, the only active P-2 programs at the moment are those established and operated by Actors Equity (with its British, Canadian, Australian, and New Zealand counterparts), the American Federation of Musicians (AFM) (with its Canadian counterpart), and, it appears, the International Council of Air Shows and the Canadian Air Show Association.128

Substantive Requirements for P-3 Classification

    1. classification is accorded to culturally unique artists and entertainers, individually or as a group, coming to the United States to develop, interpret, represent, coach, or teach their particular art or discipline. “Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.”129 This broad definition allows the enterprising practitioner to devise a P-3 petition for many different types of artists—especially in this age of increasing multiculturalism in the arts, and even for coaches of culturally unique athletic activity. P-3 activities may be conducted in the context of commercial or noncommercial programs.

In keeping with liberal statutory standards for this category and the legislative history,130 the evidentiary criteria for P-3 petitions require:

    • Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the noncitizen’s or the group’s skills in performing, presenting, coaching, or teaching the unique or traditional art form and giving the credentials of the expert—including the basis of his or her knowledge of the noncitizen’s or group’s skill, or
    • Documentation that the performance of the noncitizen or group is culturally unique, as evidenced by reviews in newspapers, journals, or other published materials; and
    • Evidence that all of the performances or presentations will be culturally unique events.131

Liberal statutory standards intended to preserve the flexibility of the O and P categories have not consistently filtered down to the service centers. The CSC, in particular, was prone to issuing RFEs for P-3 petitions not involving patently traditional activity, especially those proposing to combine more than one cultural motif or tradition, evidently on the theory that the resulting cultural hybrid strands could no longer be unique. To resolve the problem, the AAO, on USCIS’s own motion, reopened an earlier decision for the express purpose of issuing a precedent decision establishing that art forms need not be “traditional” to be culturally unique. Indeed, it is now clear that distinctive artistic expression derived from hybrid or fusion of artistic styles or traditions, from multiple cultures or regions, qualifies for P-3 treatment.132 That case also resulted in specific guidance on the regulatory standard for expert testimonial letters submitted in support of P-3 petitions, noting they should be: (a) from a recognized expert, and accompanied by a detailed curriculumvitae or résumé; (b) attest to the authenticity of the group or individual beneficiary’s skills, explaining why they are skillful or knowledgeable about that particular culture; and (c) speak to the unique or traditional nature of the art form, describing it in detail.133

Accompanying Personnel

All P categories allow for “essential support” personnel.134 An essential support person is defined as “a highly skilled, essential person”who is an “integral part” of the performance of the P principal because she or he performs support services that cannot readily be performed by a U.S. worker and that are essential to the success of the performance.135 In other words, essential support personnel are those who are not performing. Such personnel must have appropriate qualifications to perform the services, critical knowledge of the specific services required, and experience in providing such support to the P noncitizen.136 The latter requirement finds no support in the statute, and at least for the P-1 category, is contravened by the legislative history.137 Though the regulations do not expressly address the question, P essential support personnel cannot work separate and apart from their P principal(s) and must be petitioned for in conjunction with the services of their P principal(s). A P petition for essential support personnel cannot be filed without a previously or simultaneously filed P petition for the principal performers or athletes. USCIS designates the P classifications for support personnel as P-1S, P-2S and P-3S.

Purpose of Admission

Admission in all P categories is limited to a specific competition, event, or performance—defined as an activity such as an athletic competition or season, tournament, tour, exhibit, project, entertainment event, or engagement.138 To avoid unnecessary paperwork, the regulations provide that such activities may include short vacations, promotional appearances, and stopovers incidental and/or related to the underlying activity. This definition should be sufficient to enable noncitizens to receive outside income from endorsement activity. USCIS notes that an athletic or entertainment event could include an entire season of competition or performances. A group of related activities can also be considered an event.139 Nevertheless, it appears that athletes entering in the P-1 category must do so in conjunction with a specific athletic competition or tour and thus cannot enter primarily to teach or coach,140 in contrast to P-3 culturally unique performers who explicitly may do so. In general, all principal P noncitizens must be entering to engage in the skill, art, or activity for which they achieved recognition.

As many entertainment-related P petitions involve itineraries, beware of petitions that include gaps of more than 45 days between engagements. Despite the absence of any regulation, policy memoranda, or other publicly available guidance concerning gaps in P itineraries, both the CSC and the VSC target such gaps by issuing RFEs for additional itinerary documentation. Wherever possible, petitioners should provide evidence of pro- posed activities and travel abroad to “document the gap.”

Other Considerations

Petition

An I-129 petition with the P supplement must be filed in duplicate to requestP-1, P-2, or P-3 status.141 Petitions may be filed up to a year in advance of the need for the noncitizen’s services.142 Be sure to reconfirm the currently accepted version of FormI-129,O/P Supplement, and applicable filing fee atwww.uscis.gov/i-129prior to filing, but it will be a single fee per petition, irrespective of the action requested or number of beneficiaries. A separate I-129, supplement and petition filing fee is required for essential support personnel.

Jurisdiction

Petitions must be filed directly with either the CSC or the VSC, whichever has jurisdiction over the location where the temporary employment is to occur.143 However, under a special agreement with USCIS, which originally specified centralized filings at the Nebraska Service Center detailed in AFM 33.10,144 all P-1A petitions for NHL hockey players and Major League Baseball players must be filed with the Vermont Service Center.145 Petitions calling for services to be rendered in “more than one location (e.g., a tour) must include an itinerary with the dates and locations of work”146 and must be filed at the service center with jurisdiction over the petitioner’s location. “More than one location” means literally that such that jurisdiction will be determined by the petitioner’s location even if the beneficiary or beneficiaries perform services under the same contract but at two different physical address locations next door to one another. Curiously, the regulations state that “[t]he address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph.”147 Other than as an invitation to forum shop, it is difficult to explain the presence of this clause; however, this language should provide alert petitioners with additional means to choose between CSC and VSC, if the petitioner has more than one location.148

Foreign nationals may work for more than one employer at a time but will require separate petitions filed with the service center having jurisdiction over where the particular services will be rendered, unless an agent files the petition.149 If the beneficiary changes employers, the new employer or petitioning agent, as the case may be, must file both a petition and an extension of stay.150 Amended petitions must be filed with the service center of original jurisdiction to reflect any “material changes” in the terms and conditions of employ or the beneficiary’s eligibility, but petitioners may add additional “similar or comparable” performances, engagements, or competitions during the original petition validity period without amendment.151

Nature of Petitioner

Though the regulations are somewhat garbled on this point, in practice, permissible petitioners include U.S. employers or sponsors, U.S. agents, or foreign employers (including the self-employed) through designated

U.S. agents. For this latter purpose, the definition of “agent” includes, in addition to traditional management and booking agents, any agent authorized by a foreign employer to file a P petition and accept service of process in proceedings under INA §274A on the employer’s behalf.152 In other words, if duly authorized, any U.S. entity or competent individual can serve as agent under traditional agency principles, on behalf of all those seeking the services of the beneficiary or beneficiaries.153 P beneficiaries may not self-petition, but athletes in individual sports may be petitioned by a commercial sponsor, which is neither an employer nor an agent.

Agents in the agency business who serve as petitioners are subject to certain additional requirements.154 While copies of contracts are not required except in “questionable cases,” including them in all P petitions helps. Agents “performing the function of an employer” must specify the wage offered and the other terms and conditions of employment.155 USCIS has defined “contract” to mean the written agreement between the petitioner and beneficiary, describing the terms and conditions of employment, including the required services, wages, hours, working conditions, and “any fringe benefits.”156

Other Considerations

More than one beneficiary may be included in petitions for group members and essential support personnel. Essential support personnel may not be included on the petition for the principal P beneficiary—a separate petition is required.157 Multiple beneficiaries may be listed on the special “Attachment-1” form provided with the I-129 package, but petitioners may create their own alphabetized spreadsheet, and are better off doing so. Be sure to reconfirm the applicable filing fee at the time of filing, but it will be a single fee per petition (for example, one fee for the P-1 petition, and one for the accompanying P-1S petition for support personnel), irrespective of the action requested or the number of beneficiaries.

The regulations permit principal beneficiaries to be substituted on all P petitions involving multiple beneficiaries, but no substitutions of essential support personnel.158 The ban on substitution of support personnel is entirely inappropriate, which is one reason why DOS, until recently, affirmatively permitted such substitutions.159 As of this writing it is extremely unlikely that any support personnel substitutions would be allowed either by DOS at a consular post or by CBP at a port of entry.

Specific requirements for supporting documentation apply to each P category.160 For instance, P-1 athlete petitions must be accompanied by a tendered contract with a team, major sports league, or sponsor, and at least two types of evidence of the athlete or team’s recognition, international ranking, or prior participation in the sport at an internationally recognized level.161 P-1 entertainment group petitions must be accompanied by a statement listing each group member and that member’s exact dates of employment on a regular basis, together with evidence that the group has been established and performing regularly for at least a year.162 P-2 petitions must include a copy of the formal reciprocal exchange agreement and a statement from the sponsoring organization relating the particular exchange to the underlying agreement.163 P-3 petitions must be accompanied by expert affidavits or testimonials or documentation of cultural uniqueness, evidence of the renown of the group or individuals, and evidence that all performances will be culturally unique.164

Finally, petitions for P essential support personnel should include any contracts or summaries of oral agreements and “a statement describing the [alien’s or aliens’] prior essentiality, critical skills, and experience with the principal alien(s).”165 To avoid the occasional unnecessary request for evidence, prudent practitioners will provide a job title for each essential support beneficiary and a brief description of the job demonstrating why it is essential in the supporting documentation. A sentence or two traditionally has sufficed, as will lumping together essential support personnel with the same job title.166

Consultation

Consultation with the national office of an appropriate labor union “regarding the nature of the work to be done and the alien’s qualifications is mandatory” before any P petition can be approved, except if the petitioner demonstrates that no appropriate labor organization exists.167 There is no reference to collective bargaining representatives in the P context, so the appropriate labor organization, if any, will be one claiming expertise in the field. Except in emergency circumstances, the consultation must consist of a written advisory opinion containing a specific statement of facts supporting its conclusion. The consultation is not binding on USCIS. Petitioners should obtain the requisite advisory opinions prior to filing the petition.168

Appendix 1 (p. 233 infra) lists most of the relevant labor organizations for the arts and provides additional consultation guidance. USCIS also has a list at Appendix 33-1 of the AFM.169 Labor organizations will expect to receive a copy of the petition and, except for AE, supporting documents together with the consultation request. (Use discretion, as not every scrap of evidence is helpful.) Multiple consultations may be required if the activities of different group beneficiaries, whether principals or support personnel, fall under the purview of more than one labor organization. In the case of a single beneficiary whose activities fall under the “jurisdiction” of more than one labor organization, consult with that organization having jurisdiction over the beneficiary’s primary activity.

The regulations provide that if USCIS determines that a petition “merits expeditious handling” and it does not already include a labor consultation, USCIS is to contact the labor organization for an expedited consultation.170 That organization has 24 hours to respond by phone or USCIS will adjudicate without the advisory opinion.171 The organization then has another five working days to submit a written advisory opinion.172 It is not advisable to rely on this procedure, because it creates more work for USCIS and thus presents more opportunities for something to go awry, and because USCIS does not forward consulting fees to the unions, so the unions may rightly view this procedure as a fee-avoidance tactic, and respond unfavorably.

For routine processing of P-1 and P-3 petitions not accompanied by union consultations, the statute, but not the regulations (unlike the O regulations), provides that USCIS will forward a copy of the petition and supporting documents to the appropriate union within five days of receipt or to the collective bargaining representative, if one exists.173 The union must then respond within 15 days of receipt. USCIS may shorten this time in emergencies, and in any event it will adjudicate if there is no timely response.174 Apart from its absence in the regulations, reliance on this procedure is a bad idea, because the more work USCIS must perform, the potentially slower the outcome, and when a labor union is deprived of its ability to extract fees from a petitioner for the labor advisory opinion, the resulting opinion is rarely favorable.

With notable exceptions, most unions that regularly provide consultations do so relatively quickly, and without demanding a quid pro quo such as the hiring of unneeded employees. However, many unions charge steep fees, such as the American Guild of Musical Artists’ $500 per expedited consultation. If unsure with which union to consult, call in advance for guidance to avoid unnecessary delays. Unions may waive the fees in some cases, such as when there is a collective bargaining agreement in place with the petitioner, or if the beneficiary is an individual member. For petitions with multiple beneficiaries, it is entirely possible that consultations from more than one union will be required, depending on the job categories involved. In general, consult with the union that best reflects the foreign national’s primary purpose in working in the United States, thus avoiding multiple consultations for the same beneficiary. Petitioners should select job titles and describe the associated duties with care.

    1. Consultations

The regulations require that the union evaluate and/or describe the foreign national’s or group’s ability and achievements in the field of endeavor; comment on whether the foreign national or group is internationally recognized; and state whether the services to be performed are appropriate to an internationally recognized athlete or entertainment group. Alternatively, a union may respond with a “no objection” letter in lieu of a full- blown opinion. Negative advisory opinions must contain a specific statement of the facts on which their conclusion is based.175 Slightly different language, but to the same effect, applies to circus consultations.176

    1. Consultations

Though a labor consultation is needed, the substantive requirements are minimal. The initial documentary requirements for a P-2 petition include evidence that an appropriate union has been “involved in negotiating, or has concurred with” the reciprocal exchange.177 Thus, the advisory opinion need only verify the existence of a “viable exchange program,” by commenting on the bona fides of the program and whether it meets the substantive P-2 criteria.178 If the union involved in the P-2 program serves as petitioner in the P-2 context, a separate consultation opinion is not required.179

    1. Consultations

The union need only evaluate whether the foreign national’s skills are culturally unique, whether the events are cultural in nature, and whether the events are appropriate for the P-3 classification. “No objection” letters are acceptable. A specific statement of the reasons supporting any negative opinion is required.180

Support Personnel Consultations

Unions with expertise in the skill area involved must opine on all P petitions involving essential support personnel. This may mean consulting with more than one union respecting a single petition for more than one beneficiary. Except in a no-objection letter, the advisory opinion must address the noncitizen’s essentiality to and working relationship with the principal and state whether U.S. workers are available who can perform the support services, though no test of the U.S. labor market is required.181

Special Rule for Traded Professional P-1 Athletes

A professional P-1 athlete traded from one organization to another is automatically entitled to work for 30 days from acquisition, provided the new I-129 is filed within that period. Once the I-129 is filed, the athlete continues to be employment authorized until the new petition is adjudicated.182

No Dual Intent

In general, all P beneficiaries must maintain a foreign residence that they do not intend to abandon.183 Consular officers at high-fraud posts are more likely to deny P visa applications based on this statutory requirement. However, under 8 CFR §214.2(p)(15), P principals, but not their essential support personnel, may seek lawful permanent residence without jeopardizing their P status.184

Period of Admission

Initial P-1 petitions for individual athletes may be valid for up to five years.185 P-1 petitions for athletic teams or entertainment groups are valid for the time needed to complete the competition, event, or performance, up to one year.186 The same rule applies to P-2 and P-3 petitions.187 All petitions for P essential support personnel may be granted for up to one year as well.188 Noncitizens may be admitted up to 10 days prior to the validity period and may remain 10 days thereafter (but only if in fact admitted for that time as per the admission stamp and/or I-94!), although they are not permitted to work during these 10-day periods.189

Extensions may be granted to P visa holders for up to one year at a time to continue or complete the activity for which they were admitted.190 Extensions of up to a second five-year period may be granted to individual P- 1 athletes, for a total stay not to exceed 10 years. Thereafter, a P-1 athlete and any P-1S support personnel may obtain a new five-year classification period by departing the U.S. and reapplying for admission.191

Return Transportation

For those entering the United States in P status whose employment terminates for reasons other than voluntary resignation, the employer whose offer underlies the P status and the petitioner, if separate, are jointly and severally liable for the reasonable cost of return transportation abroad, meaning last place of residence prior to entry. As written, the regulations do not apply to those changing to P status after entry.192

Revocation

Petitioners who no longer “employ” the beneficiary must write the applicable service center to that effect, and USCIS may, following notice, revoke the petition even after its expiration.193 Automatic revocation of an unexpired petition will occur if the petitioner or employer named in a petition filed by an agent goes out of business, files a written withdrawal, or notifies USCIS that the beneficiary is no longer employed by that petitioner. Valid petitions filed by an agent acting on behalf of an employer are not automatically revoked if the petitioning agent goes out of business so long as the employer remains viable.194

Expedited Processing

See the section on “Expedited Processing” (p. 219, supra) under “O Nonimmigrants.”

CONCLUSION

Ever-evolving USCIS interpretations of the 30-year-old regulatory framework for O and P visas continue to evade the reach of the Administrative Procedures Act. Practitioners have learned from experience not to rely too long on well-settled agency practice, lest it change at the drop of a policy memorandum. USCIS has shown a penchant for announcing policy reversals in sub-regulatory authority, or not announcing them at all and simply issuing a slew of surprising RFEs and denials. This happened with the O-1 model cases where they suddenly demanded end-client contracts in an industry where those do not exist, and again with sudden across-the-board adherence to the ultra vires P-1 requirement that sports leagues must require “international recognition” of all competitors. The practice of law on behalf of O & P nonimmigrants and their U.S. petitioners requires vigilant attention to USCIS announcements, memoranda, AAO decisions, and news from other practitioners about cur- rent adjudication patterns and trends. Change is the only constant.

Appendix 1:

Arts Consultation Organizations

GENERAL NOTES

Contact unions in advance to confirm whether fees have been imposed or changed, and for fee waivers if petitioner is a collective bargaining signatory or beneficiary is a member. Check the websites of all consulting organizations for updates concerning their procedures and requirements, including questionnaires. Remember that for work in a field that has no labor union, any individual or organization with expertise may provide the advisory consultation, so petitioners are not bound by USCIS’s choice of consulting organization if it is not a union.

If any individual/organization fails to respond to a consultation request in 15 days, USCIS “must” adjudicate based on existing record, so submit proof of request to USCIS with request that it proceed on the record, citing 8 CFR §§214.2(o)(5)(i)(F) or (p)(7)(i)(E).

At issue is whether beneficiary meets the applicable O/P standard, not whether a U.S. worker is available, prevailing wage considerations, or other policy matters. Consultations not providing facts supporting conclusion that beneficiary fails to meet applicable standard are effectively “no objection” letters by definition.

Union “jurisdictions” can overlap for consultation purposes. If uncertain, contact the union directly. There may be activities over which no union asserts “jurisdiction,” e.g., fight masters, choreologists, and dramaturges. If so, petitioner should exhaust possibilities, explain effort to USCIS and request consultation waiver. Consultation requirement also waived for “management” (including administrative) positions over which unions by definition cannot assert “jurisdiction,” but it is prudent to see whether a union will cover.

Extraordinary-achievement cases (film, TV, streaming video) require both union and management consultations. Management consultation organizations are listed after unions below.

8 CFR §214.2(o)(5)(i)(F) requires USCIS to obtain union consult in O-1 cases if petition includes non-labor consultation, and there is a labor union governing the work. This risks delay in adjudication, so avoid if possible; if not, highlight request to USCIS. USCIS will not pay union consultation fees, so this approach risks union hostility.them.

AFM Appendix 33-1

This Appendix lists most of the relevant consultation organizations for the arts, and provides additional consultation guidance. The addresses listed are those of the unions’ national offices, as union locals do not provide consultations. USCIS also has a list at Appendix 33-1 of the Adjudicator’sFieldManual.195 The USCIS list published in the online AFM is updated quarterly, but provides no information about the fees charged for advisory opinions, nor does it distinguish between labor unions, from which consultation is required, and other types of peer groups, in lieu of which the regulations explicitly allow opinions from individuals with expertise in the field. Their list, combined with the vague regulatory language at 8 CFR §214.2(o)(5)(i)(A)–(C) and overzealous RFE templates, means some adjudicators do not distinguish between petitions for work governed by a union (e.g., dance or music) and a petition for work in a field where there is no union (e.g., graphic design or culinary arts). Many seem unaware that use of the word “Guild” in an organization’s name does not automatically make it a union. This has occasionally resulted in ultra vires RFEs demanding costly consultation from a specific named organization on the USCIS list, even in fields where regulation allows any group or individual with relevant expertise to provide the peer advisory opinion.

LABOR CONSULTATIONS

Concert and Solo Singers, Dancers, Choreographers, Stage/Assistant Stage Managers, Stage and Assistant Stage Directors, and Narrators in Concert, Recital, Oratorio, Opera and Dance:

The American Guild of Musical Artists (AGMA) 1430 Broadway, 14th Floor; New York, NY 10018 Tel: (212) 265-3687 / Fax: (212) 262-9088

Contact: Susan Davison (susan@musicalartists.org)

$300 per petition regular service, $500 per petition for expedited service (payable to “AGMA” & mark envelope “EXPEDITED SERVICE”)

Check www.musicalartists.org/membership/visa-consultation – No more than 30 pages!

Look to AGMA for consults on any combination of dance, music, and/or song, musicians who sing, groups with singers onstage/musicians in pit, etc. AGMA will consult on any matter on which AGVA will consult, and shares jurisdiction for certain musical performers/groups with AFM. AGMA serves as default peer organization in case of doubt, and will consult on “mixed” groups for opera, musical theater, etc. containing fewer than 50 percent musicians (may be flexible on the percentage), but is unpredictable on support roles, which it asserts should be reserved for U.S. workers. AGMA will not fax or email consultation letter unless paid for expedited processing.

All Instrumental Musicians, Conductors, and Music Librarians:

The American Federation of Musicians (AFM)

1501 Broadway, Suite 600; New York, NY 10036

Tel: (212) 869-1330 / Fax: (212) 764-6134

Contacts: O Visas: Raymond Hair, x212 or Theresa Naglieri, x218;

P Visas: Michael Manley, x231; Elizabeth Blake, x259; George Fiddler, x230.

afmvisa@afm.org

$250 per petition/$350 per petition for expedites (address package to “AFM Immigration Processing”)

Questionnaire required (See https://www.afm.org/wp-content/uploads/2018/04/Visa-Form-04.12.18-1.pdf ) AFM requires a list of each individual’s instrument & proposed repertoire for the performances, written contracts for engagement & itinerary. Unless musicians comprise at least 50 percent of the group, AFM will not provide consultation.

Other Performers and Stage Managers in Live Format Presentations:

Actors Equity Association (AE)

Attn: Immigration

165 West 46th Street; New York, NY 10036 Tel: (212) 869-8530 / Fax: (212) 719-9815

$250 per petition

For P-3 petitions, the most crucial items are cover letter and signed I-129 form. AE objects to nearly all English and French-language productions outside the P-2 context, and to any O-1 or P- 1 production not under an AE contract. Also, AE will not provide consultations for any petitions that include multiple engagements.

For storytellers in live format presentations:

National Storytelling Network (NSN)

132 Boone Street, Suite #5; Jonesborough, TN 37659

Tel: 1-800-525-4514 / (423) 913-8201

nsn@storytelling.org

Other Stage Directors and Choreographers in Live Format Presentations:

Stage Directors and Choreographers Society (SDC)

Attn: Immigration

321 West 44th Street, Suite 804; New York, NY 10036

Tel: 1-800-541-5204, (212) 391-1070 / Fax: (212) 302-6195, info@sdcweb.org

$500 per petition

Typical turn-around: Three weeks

Live performers in Nightclubs, Burlesque, and Circuses:

American Guild of Variety Artists (AGVA)

Attn: Immigration Consultation

363 Seventh Avenue, 17th Floor, New York, NY 10001 Tel: (212) 675-1003; agva@agvausa.com

$250 per petition, certified check or money order, no expedites! Turnaround is 10 business days

AGVA is eccentric on consultation matters, refusing phone calls and faxes, & will not send any returns via FedEx because it is “anti-union.” Note that variety/cabaret artists who sing are covered by AGMA.

Press Agents/Publicists and Managers (General, Company, Tour):

Association of Theatrical Press Agents and Managers (ATPAM)

14 Pennsylvania Plaza #1703, New York, NY 10122

Tel: (212) 719-3667 / Fax: (212) 302-1585

Contact: Tito Sanchez (tsanchez@atpam.com)

$250 per petition

ATPAM covers tour managers, not managers otherwise exempt from consultation requirements because they are management, not labor.

Performers in Film, TV, Radio and Electronic Media (Audio and Visual):

Screen Actors Guild—American Federation of Television and Radio Artists (SAG-AFTRA)

5757 Wilshire Blvd., 7th Floor, Los Angeles, CA 90036 Tel: (323) 549-6632 / Fax: (323) 549-6624

Contact: Steve Otroshkin (visa@sagaftra.org);

Spanish-language Contact: Herta Suarez: herta.suarez@sagaftra.org

$250 per petition. Must include signed forms, countersigned deal memos & all supporting documenta- tion. Requests may be submitted by e-mail. Check requirements at https://www.sagaftra.org/contracts- industry-resources/o-and-p-visas

SAG-AFTRA covers O-1, O-2, P-1, P-2 & P-3 petitions for performers in TV, radio, voice-over, streaming video & audio recordings.

All Directors of Photography (Cinematographers), Technical and Craft Personnel:

International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators (IATSE)

207 West 25th St., 4th Floor; New York, NY 10001

Tel: (212) 730-1770 / Fax: (212) 730-7809 (dir.) or (212) 921-7699 (main)

Contact: Jessica Valero

$250 per petition or $450 per petition for expedites (24–48 hours). 100-page limit

IATSE covers crew, technical and lighting directors, hair and makeup for stage productions & film, will also cover still photographers.

United Scenic Artists

29 West 38th Street, 15th Floor, New York, NY 10018 Tel: (212) 581-0300 / Fax: (212) 977-2011

Contact: Caitlin McConnell, Assoc. Business Rep.

Members: free. If the theater is a collective bargaining signatory: $100. If neither: $200.

Permanent Makeup/Micropigmentation artists:

Society of Permanent Cosmetic Professionals 69 N. Broadway St, Des Plaines, IL 60016 Tel: (847) 635-1330,admin@spcp.org

Contact: Kate Ciampi, Executive Director

Animators:

The Animation Guild

1105 N. Hollywood Way; Burbank, CA 91505 Tel: (818) 845-7500

Contact: Steven Hulett, Business Representative (shulett@animationguild.org)

Guild or IATSE signatories free; nonsignatories: $250. See www.animationguild.org/advisory-opinion

for required consultation materials.

Motion Picture and Television Producers:

Producers Guild of America (PGA)

8530 Wilshire Blvd., #450, Beverly Hills, CA 90211

Tel: (310) 358-9020 x100 / Fax: (310) 358-9520

Contact: O-1 to Scott Bengtsen (scott@producersguild.org), O-2 to JoAnn West,

Members: free; nonmembers (24-48 hours): $500, reduced fee of $300 for AMPTP members

Single fee if the O-1 & O-2 are for the same project. Covers work in feature film, TV & new media.

Association of Independent Commercial Producers 3 West 18th Street, 5th Floor, New York, NY 10010 Tel: (212) 929-3000 / Fax: (212) 929-3359

https://www.aicp.com

Contact: Matt Miller, Presidentmattm@aicp.com

If production company is a member: free; nonmembers: no service.

Motion Picture and Television Directors:

Directors Guild of America (West) (DGA)

7920 Sunset Blvd., Los Angeles, CA 90046

Tel: (310) 289-2017 / (310) 289-2000 (main) / Fax: (310) 289-2024

Contact: Sonja Renz, Senior Paralegal(srenz@dga.org) https://www.dga.org

Consultation fee is $250, payable to Directors Guild of America; check should identify petitioner & ben- eficiary in memo line.

https://www.dga.org/Employers/O1andO2VisaLetters.aspx – covers Directors, Assistant Directors, Asso- ciate Directors, Unit Production Managers & Stage Managers, for all feature film, documentary, TV/streaming video & commercials

Writers in Film, Television, and News (Audio and Visual):

Productions East of the Mississippi:

Writers Guild of America—East

250 Hudson St., New York, NY 10013

Tel: (212) 767-7800 / Fax: (212) 582-1909

Contact: Ann Burdick, Senior Legal Counsel (aburdick@wgaeast.org)

Productions West of the Mississippi:

Writers Guild of America—West

7000 West 3rd Street, Los Angeles, CA 90048 Tel: 1-800-548-4532 / Fax: (323) 782-4800

Contact: Jane Nefeldt

Freelance writers in all media (except film, screenplays, graphic arts):

National Writers Union

238 West 38th Street, #703, New York, NY 10018

Tel: (212) 254-0279 / Fax: (212) 254-0673

Contact: Larry Goldbetter, President, ext. 14 (lgoldbetter@nwu.org)

$500 per petition. Send full copy of filing. Five business-day turnaround, but request expedite if needed.

For journalists:

The NewsGuild – Communications Workers of America

501 Third Street NW, Washington, DC 20001-2797 Tel: (202) 434-7177 / Fax: (202) 434-1472

Contact: Bernard J. Lunzer, President (guild@cwa-union.org)

$400 per petition for three– to-four-week turnaround; $550 for two-week turnaround. Email all requests to

guild@cwa-union.org or send hard copies to Bernie Lunzer.

MANAGEMENT CONSULTATIONS

Alliance of Motion Picture and TV Producers (AMPTP)

Attn: Immigration

15301 Ventura Blvd., Building E, Sherman Oaks, CA 91403 Tel: (818) 995-3600 / Fax: (818) 285-4450

(immigration@amptp.org) Check for updated instructions: at http://amptp.org/files/immigration.pdf

Members: free; nonmembers: $250 per petition. AMPTP has a Web page devoted to its specifications for O-1 and O-2 consultation requests: www.amptp.org/immigration.html

No requests via e-mail. AMPTP takes its consulting role seriously. Its insistence on signed deal memos for all work on itinerary may cause delays, as can its strict 50-page limit.

Opera related petitions:

Opera America

The National Opera Center, 330 7th Avenue, 16th Floor, New York, NY 10001 Tel: (212) 796-8630 / Fax: (212) 796-8631

https://www.operaamerica.org

Contact:

Consultations free to members; nonmembers: $250.

Symphony orchestras and classical musicians:

League of American Orchestras

33 West 60th Street, New York, NY 10023 Tel: (212) 262-5161 / Fax: (212) 262-5198

Advertising, graphic design, interactive media, broadcast design, typography, packaging, environmen- tal design, photography, illustration and related:

Visual Effects Society

4121 Redwood Avenue, Suite 101, Los Angeles, CA 90066

Tel: (310) 822-9181 / Fax: (310) 822-2391

Contact: Alan Chu, Director of Operations

Consultation free to members; nonmembers: $100. Call Alan Chu ahead of time to let him know that you are sending a consultation package.

The Art Directors Club

106 West 29th Street, New York, NY 10001 Tel: (212) 643-1440

Contact: Nora Fussner, Assistant to the Executive Director.

Graphic Artists Guild

32 Broadway, Suite 1114, New York, NY 10004

Tel. (212) 791-3400 / Fax: (212) 791-0333

Contact: Tamara Hall, Administrative Director (admin@graphicartistsguild.org)

For management consultations for computer game developers and artists:

International Game Developers Association

870 Market Street, Suite 1181, San Francisco, CA 94102-3002

Tel: (415) 738-2137 / Fax: (415) 738-2178

Contact: Rudy Geronimo, Membership Assistant (info@igda.org)

Information Technology executives:

Corporate Executive Board

Working Council on Chief Information Officers; 2000 Pennsylvania Ave NW, Washington, DC 20006 Tel: (202) 777-5587

Contact: Mr. Jamie Capella, Managing Director (capellaj@executiveboard.com)

Arts administration educators:

Association of Arts Administration Educators

4222 Oakland Drive, Kalamazoo, MI 49008

Tel: (608) 263-4161

Other peer group consultations for O-1 artists:

Fractured Atlas

248 West 35th Street, Suite 1202, New York, NY 10001-2505 Tel: (212) 277-8020 (main)

Contact: Adam J. Natale, Director of Member Services, x203 (adamn@fracturedatlas.org)

Fractured Atlas is not a union, but can provide peer consultations for O-1 petitions in a wide array of performing and graphic arts disciplines. Fax, email, or messenger I-129 forms and petitioner’s letter to Adam’s attention. Consult letter will be emailed within one business day. One year of free membership is offered to those who use Fractured Atlas.

Appendix 2:

Sports Consultation Organizations

Baseball:

Major League Baseball Players Association 12 East 49th Street, 24th Floor

New York, NY 10017 Tel. 212.826.0808

Fax 212.826.0809

http://www.mlbplayers.com

Contact: Robert Guerra, Assistant General Counsel

Provides “No Objection” letters for petitions on behalf of players & certified agents, as well as for Special Handling labor certifications. Requires major-league contract & team sponsorship for play- ers; opinions for agents are case-by-case at discretion of Association counsel.

Basketball:

National Basketball Players Association (NBPA) 1133 Avenue of Americas

New York, NY 10036

Phone: (212) 655-0880

Toll Free: (800) 955-6272

Fax: (212) 655-0881

https://nbpa.com

Contact: Kirk Berger, Associate General Counsel

Equestrian Sports:

United States Equestrian Federation (USEF) 4047 Iron Works Parkway, Lexington, KY 40511 Tel: (859) 225-2022 or (859) 258-2472 (main)

Fax: (859) 231-6662

https://www.usef.org

Contact: Sara Gilbert (sgilbert@usef.org)

Call or email first to determine appropriate department to issue consultation (i.e., Show Jumping, Dressage, Eventing, etc.). USEF will issue consultation based on draft of petitioner’s letter andbeneficiary’s résumé.

Hockey:

National Hockey League Players’ Association 10 Bay Street, Suite 1200

Toronto, ON M5J 2R8

Canada

Tel. 416.313.2391

Fax 416.313.2301

http://www.nhlpa.com

Contact: Roman Stoykewych, Senior Counsel

Requires major-league contract & team sponsorship for players; opinions for agents are case by case at discretion of Association counsel.

**PerUSCISDirectFilinginstructions,allMLB,NBA,NHL&MLSPApetitionsmustbefiledatthe VermontServiceCenter.Allmajor-leagueteamplayersareeligibleforP-1s,someareeligibleforO- 1s;allminor-leaguecontractholdersMUSTfileasH2Bs,perAdjudicator’sFieldManual33.10,Spe- cialAgreements.Forplayersonminor-leaguecontractsthatchangetomajor-leagueautomatically uponpromotion,thoseplayersbecomeeligibleforP-1attimeofpromotiontomajorleague.

Golf:

PGA Tour

126 East 56th Street, Suite 1400 New York, NY 10022

https://www.pgatour.comhttps://www.lpga.com

PGA consultations – CaroleLaRochelle@pgatourhq.com LPGA consultations – Christy.Modica@lpga.com

Soccer:

MajorLeagueSoccer Players Association 7500 Old Georgetown Road, Suite 700

Bethesda, MD 20814

Tel. 301.657.3535

info@mlsplayers.org

Contact Lara Riddell or Johnny Andris, Staff Counsel, for attention of

MLSPA Executive Director Bob Foose, copying General Counsel Jon Newman

Provide advisory consultation request with player’s full name & home country – MLSPA does not provide consultations for agents.

Squash:

US Squash

555 Eighth Avenue, Suite 1102 New York, NY 10018

Tel. 212.268.4090

Fax 212.268.4091

Contact: Adam Hamill, Director of Professional Development Adam.Hamill@ussquash.com

Will provide letter of No Objection upon email request; timing varies.

Requires a suggested draft of advisory letter & scanned copy of relevant portions of petition, includ- ing player’s current US Squash/PSA rankings. Free for PSA members.

Track & Field:

USA Track & Field

132 E. Washington Street, Ste. 800

Indianapolis, IN 46204

Tel. 317.713.4653

Fax 317.261.0481

Contact: Sarah Austin, Manager of Legal Affairs

Sarah.Austin@USATF.org

Requests may be submitted by email: Must include athlete’s full name, date of birth, country of birth, country athlete currently represents (if competing for other than COB), the track events in which the athlete competes, name of coach, name of shoe sponsor (if any). Turnaround time varies from a few days to several weeks.

Thoroughbred & Quarterhorse Jockeys:

Jockeys’ Guild, Inc.

448 Lewis Hargett Circle, Ste. 220

Lexington, KY 40503

Tel. 1.866.GO JOCKS (866.465.6257)

Office Tel. 859.523.5625

Fax 858.219.9892

Contact: Mindy Coleman, In-House Counsel mcoleman@jockeysguild.com

Requires a scanned PDF of the entire petition in order to render opinion. Free if beneficiary is already a member or promises to join upon admission to US; advisory fee is $500 otherwise.

 

* This practice advisory is an updated, unedited version of the one published in the 2018–19 edition of Navigating the Funda- mentalsofImmigrationLaw (AILA 2018). This new version, once edited, will be published this summer in the 2019–20 edition of Navigating the Fundamentals of Immigration Law.

1 USCIS Policy Memorandum, “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status,” PM-602-0151, Oct. 23, 2017

2 INA §101(a)(15)(H)(i)(b) describes the services permissible under that subparagraph as “services (other than services described in … subparagraph (O) or (P) …).” But see Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 U.S. Dist. Lexis 3331 (E.D. La. Mar. 15, 2000) (legacy Immigration and Naturalization Service (INS) denial of H-1B for musician upheld on evidentiary, not statutory, grounds). Models, on the other hand, may qualify either under the H-1B or O-1 categories. See 8 CFR §214.2(h)(4)(vii).

3 Immigration Act of 1990 (IMMACT90), Pub. L. No. 101-649, 104 Stat. 4978.

4 Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. No. 102-232, 105 Stat. 1733.

5 Legacy INS published final regulations governing business persons, scientists, and educators at 56 Fed. Reg. 61111 (Dec. 2, 1991). Following interim final regulations governing artists, athletes, and entertainers, 57 Fed. Reg. 12179 (Apr. 9, 1992), legacy INS published final regulations for these activities at 59 Fed. Reg. 41818 (Aug. 15, 1994), followed by corrections at 59 Fed. Reg. 55910 (Nov. 9, 1994), and a further final rule precluding non–U.S. petitioners. 62 Fed. Reg. 18508 (Apr. 16, 1997).

6 Available at http://1.usa.gov/uscis-afm.

7 Available at www.uscis.gov/policymanual.

8 8 CFR §214.2(o)(1)(ii).

9 8 CFR §214.2(o)(1)(ii)(A)(1), (2).

10 8 CFR §214.2(o)(3)(ii).

11 Compare 8 CFR §214.2(o)(3)(iv)(B)(1)–(B)(6) with 8 CFR §214.2(o)(3)(iv)(B)(1)–(B)(6).

12 INA §101(a)(15)(O)(i).

13 Aware of this problem, USCIS has tried to impose discipline on adjudicators by adopting “RFE templates,” in hopes of achieving greater uniformity and adherence to the regulations. Thus far, USCIS has published draft templates for O-1B and O-2 petitions for the motion picture and television industry, O-2 accompanying personnel, O-1B petitions in the arts, and O-1A petitions for those in the sciences, education, business, and athletics. See AILA Doc. Nos. 13012252, 13012254, 13012255, and 13012250.

14 8 CFR §214.2(o)(3)(i).

15 8 CFR §214.2(o)(3)(ii).

16 8 CFR §214.2(o)(3)(iii).

17 See 20 CFR §656.15. For a discussion of the relationship between the O-1 extraordinary ability standards, the Schedule A, Group II standards, and their permanent residence counterparts, see USCIS, Adjudicator’s Field Manual (AFM) ch 22. See also K. Koenig, A. Chehrazi, and N.E. Masliah, “Superstars of the Temporary and Permanent Variety: Nuances in the O-1 and EB-1 Categories,” Immigration & Nationality Law Handbook 87 (AILA 2007–08 Ed.) and B. Wolfsdorf and C. Rosenthal, “Schedule A, Group II – An Update,” Immigration Options for Artists & Entertainers 65 (AILA 2d Ed.).

18 Draft Policy Memorandum PM-602-0123, Comparable Evidence Provision for O Nonimmigrant Visa Classification, Jan. 21, 2016, AILA Doc. No. 16012132. Comment period ended Feb. 22, 2016, and no final policy memorandum was published, but USCIS adjudicators are clearly following the guidance in the draft memo even though it says the policy is not in effect.

19 Id., at p.4

20 Regulations at 8 CFR §214.2(o)(3)(iv)(B)(5) and (o)(3)(v)(B)(5) both specify, “Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the beneficiary’s achievements.”

21 Matter of C-H-, Inc., Feb. 10, 2017 (Nonprecedent AAO decision)

22 Matter of S-M-S-, Mar. 7, 2017 (Nonprecedent AAO decision).

23 While AFM ch. 22(i) by its terms applies to employment-based permanent residence petitions, its discussion of the use of “comparable evidence” (at ch. 22(i)(1)(A)) is both instructive and alarming, as it suggests that such evidence is somehow less probative and ought not to be used without an explanation why all other forms of evidence are unavailable.

24 USCIS Draft Policy Memorandum, PM-602-0123, supra.

25 Id., at p. 3

26 See 56 Fed. Reg. 31553, 31554 (July 11, 1991).

27 See Matter of Price, 20I&N Dec. 953, Int. Dec. 3241 (Act’g. Assoc. Comm’r. Dec. 29, 1994)

28 USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classi- fications,” AILA Doc. No. 09113064.

29 Found at 8 CFR §214.2(o)(3)(iii)(B)

30 Found at 8 CFR §214.2(p)(4)(ii)(B)(2)

31 8 CFR §214.2(o)(1)(i), (3)(ii).

32 Practitioners seeking to file petitions relating to the equestrian industry should beware. There may be unpublished policy guidance on point, but it has become virtually impossible to obtain agency approval for trainers and riders in events other than thoroughbred flat racing.

33 Lee v. Ziglar, 237 F.Supp. 2d 914 (N.D. Ill. 2002).

34 8 CFR §214.2(p)(4)(ii)(B).

35 8 CFR §214.2(o)(2)(iv)(E).

36 8 CFR §214.2(o)(3)(ii).

37 Id.

38 137 Cong. Rec. Part II, S. 18247 (daily ed. Nov. 26, 1991).

39 8 CFR §214.2(o)(3)(ii).

40 8 CFR §214.2(o)(3)(iv).

41 8 CFR §214.2(o)(3)(iv)(C).

42 8 CFR §214.2(o)(3)(ii) (emphasis added).

43 59 Fed. Reg. 41818, 41821 (Aug. 15, 1994).

44 INA §101(a)(15)(O)(i).

45 A comprehensive source of television and film documentation is www.imdb.com.

46 DHS Office of the Inspector General, “The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Service Officers,” at pp.11–12, AILA Doc. No.12010960.

47 Matter of [name not provided], Vermont Service Center (May 18, 2011).

48 Available in a print edition, and online at http://find.galegroup.com/gdl/help/GDLeDirAHPHelp.html.

49 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (May 15, 2012).

50 “Expert Opinion Testimony: Yes, It’s Evidence USCIS Should Consider!” AILA Doc. No. 19032230

51 Matter of [name not provided], AILA Doc. No. 14121644.

52 8 CFR §214.2(o)(4)(i).

53 See AILA Practice Pointer, “Different Petitioners for O-1 and Accompanying O-2 Petitions,” AILA Doc. No. 15121405.

54 8 CFR §214.2(o)(4)(ii)(A).

55 The current Form I-129 instructions specify that O-1A classification is for “aliens … who have extraordinary ability in the sciences, education, business, or athletics.” O-1B classification is for “aliens … who have extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry,” without noting that the latter are held to two different standards. USCIS Form I-129Instructions (Rev. Jan. 17, 2017) at 17. Actual machine-readable O-1 visas do not make a distinction between O-1A and O-1B.

56 8 CFR §214.2(o)(2)(iv)(F).

57 8 CFR §214.2(o)(2)(i).

58 8 CFR §214.2(o)(2)(iv)(A) See www.uscis.gov/i-129-addresses.

59 Id.

60 The VSC receives a disproportionate share of O filings. Recent VSC increases in requests for evidence(RFEs), Notices of Intent to Deny (NOIDs), and denials, have eliminated any perceived advantage to filing there. Both service centers are now equally unreliable.

61 8 CFR §214.2(o)(2)(iv)(B).

62 8 CFR §214.2(o)(2)(iv)(C).

63 8 CFR §214.2(o)(2)(iv)(D).

64 9 FAM §402.13-07.

65 8 CFR §214.2(o)(2)(i). Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A, regarding control of employment of noncitizens. While foreign employers have always been responsible for complying with employer sanction provisions, the rule has been amended to ensure that the employer can be served with process via its agent. While the regulation still permits individuals to serve as agents, because the statute generally refers to a sponsoring employer, O-1 petitioners can expect an RFE if they do not have a Federal Employer Identification Number.

66 See USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications,” AILA Doc. No. 09113064. This memorandum clarifies that O petitioners need not be “in business as an agent.” Rather, any petitioner can file in the petitioner’s own right and/or on behalf of others seeking the beneficiary’s services, provided the petition includes documentation of some form of agency agreement. Intheory, even duly authorizedimmigration counsel can serve as a foreign employer’s agent for this limitedpurpose, though in light of the potential conflict, the practice is inadvisable, if not unethical. The memorandum is problematic: it is written in a convoluted fashion and suggests an unhealthy obsession with irrelevant distinctions among the differing kinds of relationships between petitioners and beneficiaries. The arts and entertainment industry in particular presents an enormous spectrum of such relationships ill-suited to taxonomy. When all it has to do is explain basic agency principles, USCIS has instead left individual adjudicators little useful guidance why such distinctions are appropriate or how to make them. The endless barrage of RFEs obsessed with the particulars of these relationships reveals ongoing confusion at USCIS on this topic. See also the “USCIS Executive Summary, ‘O Nonimmigrant Visas—Agents as Petitioners: Stakeholder Teleconference,’ ” AILA Doc No. 11030437.

67 8 CFR §§214.2(o)(2)(iv)(E)(1), (2).

68 8 CFR §214.2(o)(2)(i)..

69 AILA Doc. No. 11030437.

70 INA §214(c)(6). Compare 8 CFR §§214.2(o)(5)(i)(A), (B) with (F). Usually, the petitioner’s assertion that no appropriate labor organization exists suffices for purposes of obtaining a waiver under 8 CFR §214.2(o)(5)(i)(G). There is no reason not to include consultations from nonunion sources, such as from individual experts or associations, either separately or as part of the evidence of extraordinary ability or achievement, because these still constitute favorable evidence. They may be the only peer advisory consultations available in fields where no labor union has jurisdiction.

71 8 CFR §§214.2(o)(5)(ii)(A), (iii), and (iv).

72 8 CFR §214.2(o)(5)(i)(D).

73 Actually, there are two USCIS lists on the Web. See discussion in Appendix 1, fn 195, concerning AFM Appendix 33-1.

74 INA §214(c)(6)(B); 8 CFR §214.2(o)(5)(i)(E).

75 Again, one wonders why USCIS would insist on having nonunion consultations if it is only required to contact unions in this situation.

76 8 CFR §214.2(o)(5)(i)(F).

77 Id. The regulation also provides that USCIS must adjudicate within 14 days; however, because the corresponding statutory provision,INA§214(c)(6)(D), does not impose a penalty for noncompliance, USCIS has treated it as precatory.To their considerable credit, though, both USCIS service centers have tried hard to reduce their standard processing times to within 14 days. In many cases, they succeed.

78 8 CFR §214.2(o)(5)(iii).

79 8 CFR §214.2(o)(2)(ii)(B).

80 Best practice is to check for the most up-to-date guidelines on their website, at http://amptp.org/immigration.html.

81 8 CFR §214.2(o)(5)(ii)(B).

82 8 CFR §214.2(o)(2)(iv)(G).

83 INA §101(a)(15)(O)(i) defines the O-1 classification without imposing a foreign-residence requirement, whereas subsection (O)(ii) includes the requirement for the O-2 classification. See 8 CFR §214.2(o)(13); 9 FAM 402.13-5(C) (formerly 9 FAM 41.55 N5.1–5.3). Despite the absence of a foreign residence requirement, and in contrast to its treatment of H-1B and L-1A noncitizens, USCIS has never seen fit to allow O-1 noncitizens to maintain nonimmigrant status and travel on the valid visa while adjusting to permanent residence. Travel by an O-1 worker without Advance Parole abandons a pending I-485 application. Therefore, artists and entertainers with frequent global travel commitments are forced to acquire permanent residence via consular processing.

84 8 CFR §245.2(a)(4)(ii)(c ).

85 8 CFR §214.2(o)(6)(iii).

86 8 CFR §214.2(o)(12)(ii). However, extensions of stay for up to three years may be granted for petitions by new employers and petitions by the existing employer for a new event or activity. ISD Teleconference, AILA Doc. No. 02110470. In general, the service centers seem amenable to petition extensions of three years based on a petition by the existing employer that contains a new itinerary of engagements, provided no extension of stay is involved. When seeking more than a one-year extension of a petition by the existing petitioner, provide new, or newly extended, contracts, and otherwise emphasize that the proposed activities are new ones, not merely extensions of existing ones.

87 8 CFR §214.2(o)(10).

88 81 FR 82398 (Nov. 18, 2016)

89 Id., at 82436-82438.

90 8 CFR §214.2(o)(3)(ii) (emphasis added).

91 AFM ch. 33.4(e)(2).

92 USCIS Memorandum, “Clarifying Guidance on O Petition Validity Period,” PM-602-0003 (July 20, 2010), updating the AFM at chapter 33.4(e).

93 Matter of [name not provided], WAC 10 018 51674 (AAO Oct. 1, 2010), AILA Doc. No. 11022363.

94 8 CFR §214.2(o)(16).

95 As of the Nov. 23, 2010, revision, the O and P Classification Supplement to Form I-129, at Section 2, requires the petitioner’s signed certification that the petitioner is aware of the return transportation provision. The author questions the necessity of a separate signature for this unenforceable provision.

96 8 CFR §§214.2(o)(8)(i), (iii).

97 8 CFR §214.2(o)(8)(ii).

98 8 CFR §103.2(f).

99 66 Fed. Reg. 29682, 29683 (June 1, 2001).

100 See www.uscis.gov/forms/expedite-criteria.

101 9 FAM 402.13-5(B) (formerly 9 FAM 41.55 N.8.4) ends with the precaution, “Disagreement with DHS interpretations of the law or facts, however, is not sufficient reason to ask DHS to reconsider its approval of the petition.” At present, this rule is observed largely in the breach.

102 Legacy INS published final regulations governing P-2 reciprocal exchange artists at 56 Fed. Reg. 61111 (Dec. 2, 1991). Following interim final regulations governing the P-1 and P-3 categories, 57 Fed. Reg. 12179 (Apr. 9, 1992), legacy INS published final regulations for these classifications at 59 Fed. Reg. 41818 (Aug. 15, 1994), followed by corrections at 59 Fed. Reg. 55910 (Nov. 9, 1994), and a further final rule precluding foreign employers from serving as petitioners. 62 Fed. Reg. 18508 (Apr. 16, 1997).

103 8 CFR §214.2(p)(3).

104 INA §214(c)(4)(A)(i).

105 8 CFR §214.2(p)(4)(i)(A). This regulation also requires that the foreign national be coming to perform services that “require an internationally recognized athlete,” but the statute contains no such requirement and USCIS does not require separate evidence on point.

106 8 CFR §214.2(p)(4)(i)(B).

107 Previously at 8 CFR §214.2(o)(3)(iii).

108 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994).

109 8 CFR §214.2(p)(4)(ii)(B).

110 INA §214(c)(4)(A)(i)(I). “[P]erforms as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.”

111 All major league sports petitions are adjudicated at the VSC, per the Nov. 9, 2009 USCIS Memorandum on Agents and Sponsors, and direct filing instructions at https://uscis.gov/i-129-addresses

112 INA §§214(c)(4)(A), (F), (G) and (H). The only official guidance thus far concerning the COMPETE Act appears in USCIS Memorandum, M. Aytes, “Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act of 2006)—Admission as P-1 Nonimmigrant (HQ 70/6.2.19),” AILA Doc. No. 07010865. USCIS has treated the Act as effective on signing, but there are no regulations yet. Petitioners should be able to include more than one professional athlete on a P-1 petition for a U.S. team.

113 8 CFR §214.2(p)(4)(ii)(B)(1).

114 8 CFR §214.2(p)(4)(ii)(B).

115 INA §214(c)(4)(B). The regulatory requirement at 8 CFR §214.2(p)(4)(i)(B) that the proposed services themselves require an internationally recognized entertainment group has no basis in the statute, and, in practice, USCIS thus far has not required proof respecting this issue, except via the occasional RFE.

116 8 CFR §214.2(p)(4)(iii)(B).

117 Id.

118 8 CFR §214.2(p)(4)(i)(B) & (p)(4)(iii)(A). The “sustained and substantial” standard is nowhere defined, leaving room for interpretation as to number and frequency of prior performances together. Certainly, the relationship may be less than full-time employment, for instance.

119 8 CFR §214.2(p)(4)(iii)(C)(3). If the facts do not fit, practitioners should consider filing an O-1 petition for a single group member, and an O-2 petition for all other group members. This, indeed, is how film production petitions work, because such productions are by definition not entertainment groups, and in any event they never meet the 75 percent rule. Instead, whichever production member, whether an actor, director, or other, has the strongest documentable credentials serves as the O-1 beneficiary, and all others involved in the production become O-2 beneficiaries.

120 8 CFR §214.2(p)(4)(iv), requiring description of support persons’ prior essentiality, critical skills and experience with the group.

121 8 CFR §214.2(p)(4)(iii)(C)(2). Canadian entertainment groups, for instance, often can gain their international reputation only by access to U.S. media.

122 8 CFR §214.2(p)(4)(iii)(C)(1).

123 Policy Memorandum, “Clarifying Guidance on Definition of Internationally Recognized for the P-1 Classification; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 33.5(a) AFM Update AD 11-03,” AILA Doc. No. 12070952.

124 Legacy INS Memorandum, “P-1 Petitions for Professional Sports Leagues,” AILA Doc. No. 04110466. The COMPETE Act adopts this policy for the foreign nationals it covers. Note: Individual circus performers (or support personnel) may be beneficiaries of a P-1 petition if coming to join a U.S. circus. Legacy INS General Counsel Opinion 94-16 (Mar. 3, 1994) (unpublished).

125 See Policy Memorandum, “Clarifying Guidance on Definition of Internationally Recognized for the P-1 Classification; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 33.5(a) AFM Update AD 11-03,” AILA Doc. No. 12070952, at n.1.

126 USCIS Memorandum, D. Neufeld, “Clarifying Guidance on Adjudicating Reciprocal Exchange Agreements,” AILA Doc. No. 10031663, amends AFM Ch. 33.6(d) by clarifying that service centers need not contact headquarters if they encounter a reciprocal exchange agreement not previously approved.

127 8 CFR §214.2(p)(5)(ii)(D).

128 P-2 beneficiaries must be nationals or permanent residents of the reciprocating country.

129 8 CFR §214.2(p)(3).

130 See S. 18247, 137 Cong. Rec. Part II (daily ed. Nov. 26. 1991).

131 8 CFR §214.2(p)(6)(ii).

132 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO May 15, 2012).

133 AILA Practice Pointer, “AAO Endorses Cross-Cultural P-3 Petitions: Matter of Skirball Cultural Center,” AILA Doc. No. 12071248.

134 8 CFR §214.2(p)(3).

135 Id.

136 Id.

137 See S. 18247, 137 Cong. Rec. Part II (daily ed. Nov. 26. 1991).

138 8 CFR §214.2(p)(3).

139 Id.

140 Except as provided in INA §214(c)(4)(A)(i)(III). Bear in mind the COMPETE Act provisions at INA §§214(c)(4)(A), (F), (G) and (H), which do permit coaches to qualify for P-1 classification in certain circumstances. The only official guidance thus far concerning the COMPETE Act appears in USCIS Memorandum, M. Aytes, “ ‘Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act of 2006)’—Admission as P-1 Nonimmigrant,” AILA Doc. No. 07010865. USCIS has treated the Act as effective on signing, but there are no regulations yet. It appears that petitioners will be able to include more than one professional athlete on a P-1 petition for a U.S. team.

141 The current Form I-129 instructions (rev. Jan. 17, 2017) specify that P-1A classification is for individual or team athletes, and P-1B for entertainers. Support personnel are denoted as P-1S, P-2S, or P-3S. The associated visas remain denoted simply as P-1, P-2, or P-3 for principals and support personnel.

142 8 CFR §214.2(p)(2)(i).

143 8 CFR §214.2(p)(2)(i). See www.uscis.gov/i-129-addresses.

144https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-15425/0-0-0-15684.html ,

145 Per current I-129 filing instructions, https://www.uscis.gov/sites/default/files/files/form/i-129instr.pdf, which refer to the Di- rect Filing addresses, https://www.uscis.gov/i-129-addresses

146 8 CFR §214.2(p)(2)(iv)(A).

147 Id.

148 VSC receives a disproportionate share of P filings, but recent VSC increases in RFE, NOID, and denial rates appear to have eliminated any perceived advantage to filing there. In other words, both service centers are equally unpredictable.

149 8 CFR §214.2(p)(2)(iv)(B).

150 8 CFR §214.2(o)(2)(iv)(C).

151 8 CFR §214.2(p)(2)(iv)(D).

152 8 CFR §§214.2(p)(2)(i), (iv)(E). Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A regarding control of noncitizen employment. While foreign employers have always been responsible for complying with employer sanction provisions, the rule was amended to ensure that the employer can be served with process via its agent.

153 The discussion in USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications,” AILA Doc. No. 09113064, of the requirements for agents and sponsors in the P classification is confusing and needs to be read skeptically. Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A, regarding control of employment of noncitizens. While foreign employers have always been responsible for complying with employer sanction provisions, the rule has been amended to ensure that the employer can be served with process via its U.S. agent. The Memorandum attempts to clarify that P (and O) petitioners need not be “in business as an agent.” Rather, any petitioner can file in the petitioner’s own right and/or on behalf of others seeking the beneficiary’s services, provided the petition includes documentation of some form of agency agreement. In theory, even duly authorized immigration counsel can serve as a foreign employer’s agent for this limited purpose, though in light of the potential conflict, the practice is inadvisable, if not unethical.

The problem with the agent-petitioner policy memorandum is that it is convoluted, vague, and suggests an unhealthy obsession with irrelevant distinctions among the differing kinds of relationships between petitioners and beneficiaries. The performing arts and entertainment industry in particular presents an enormous spectrum of such relationships ill-suited to taxonomy. When all it has to do is explain basic agency principles, USCIS has instead left individual adjudicators little useful guidance why such distinctions are appropriate or meaningful, much less how to make them.

154 8 CFR §214.2(p)(2)(iv)(E).

155 8 CFR §214.2(p)(2)(iv)(E)(1).

156 8 CFR §214.2(p)(3). Also, petitioners should be sure to include documentation of some form of agent appointment or agreement, where appropriate.

157 8 CFR §214.2(p)(2)(i).

158 8 CFR §214.2(p)(2)(iv)(H).

159 8 CFR §214.2(p)(2)(iv)(H)—unaccountably—bars substitution of essential support personnel. On Oct. 4, 2010, the State Department did, too. 9 FAM 402.14-7(F). The effects of this ill-considered restriction are widespread. The ban is illogical because only P-1 principals, and not support personnel, need have had a prior relationship with the group, under the 75 percent rule. There is no such requirement for P-1 support personnel nor any other P support personnel. The ban is harmful precisely because many P support personnel have expertise in the particular equipment, technology, or type of production. Failing to permit substitutions in these circumstances can only harm the performances themselves.

160 See generally 8 CFR §§214.2(p)(4)–(6).

161 8 CFR §214.2(p)(4)(ii).

162 8 CFR §214.2(p)(4)(iii)(B). Because this requirement stems from the one-year relationship rule, in practice it is sufficient to provide the month and year of employment, or even just the year.

163 8 CFR §214.2(p)(5)(ii). The American Federation of Musicians insists on filing its own P-2 petitions, whereas Actors’ Equity Association does not.

164 8 CFR §214.2(p)(6)(ii).

165 8 CFR §§214.2(p)(4)(iv)(B), (5)(iii)(B), and (6)(iii)(B).

166 Alas, this effort may be unavailing, as both VSC and CSC have tendency to issue tedious RFEs requesting in-depth proof of “essentiality.”

167 8 CFR §§214.2(p)(7)(i)(A), (F).

168 8 CFR §214.2(p)(7)(i)(C).

169 Actually, there are two USCIS lists on the Web. See discussion in Appendix 1, fn 195, concerning AFM Appendix 33-1.

170 8 CFR §214.2(p)(7)(i)(E).

171 Id.

172 Id.

173 INA §214(c)(6)(B).

174 INA §214(c)(6)(D).

175 8 CFR §214.2(p)(7)(ii).

176 8 CFR §214.2(p)(7)(iii).

177 8 CFR §214.2(p)(7)(iv).

178 Id.

179 The Canadian branch of the American Federation of Musicians serves as P-2 petitioner in all cases for a $50 fee. However, Canada AFM often confines the requested classification period to the immediate engagement(s) in question, thus limiting the utility of the P-2 option.

180 8 CFR §214.2(p)(7)(v).

181 8 CFR §214.2(p)(7)(vi).

182 8 CFR §214.2(p)(2)(iv)(C)(2).

183 INA §101(a)(15)(P).

184 See 9 FAM 402.14-10(C), which clarifies that P principals must nonetheless meet the residence-abroad requirement.

185 8 CFR §214.2(p)(8)(iii)(A).

186 8 CFR §§214.2(p)(8)(iii)(A), (B).

187 8 CFR §214.2(p)(8)(iii)(C).

188 8 CFR §214.2(p)(8)(iii)(E).

189 8 CFR §214.2(p)(12).

190 8 CFR §214.2(p)(14)(ii).

191 USCIS published two memoranda on this subject, the first dealing with P-1 athletes and the second with their support personnel. See USCIS Memorandum, D. Neufeld, “Procedures for Apply the Period of Authorized Stay for P-1 Nonimmigrant Individual Athletes,” AILA Doc. No. 09030967, and USCIS Memorandum, D. Neufeld, “Procedures for Applying the Period of Authorized Stay for P-1S Nonimmigrant Individual Athletes’ Essential Support Personnel,” AILA Doc. No. 09071660.

192 INA §214(c)(5)(B); 8 CFR §214.2(p)(18). Here again, arises an example of the kind of oddly unconstructive, disjointed attention USCIS has paid the O and P classifications. As of the Nov. 23, 2010 revision, the O and P Classification Supplement to Form I-129, at Section 2, requires the petitioner’s signed certification that it is aware of the return transportation provision. Why is this unenforced and unenforceable provision so worthy of the petitioner’s particular consciousness that it warrants a separate signature? Because it is unenforceable? In the future, might USCIS require petitioners to sign more certifications signifying their awareness of other regulatory provisions? Why are H-1B petitioners not required to certify their awareness of the comparable provision at 8 CFR §214.2(h)(4)(iii)(E)? Perhaps the I-129 will, some day, have a separate, omnibus signature page. In the meantime, assume service center mailrooms will return filings lacking this signature on the O/P Supplement.

193 8 CFR §§214.2(p)(10)(i), (iii).

194 8 CFR §214.2(p)(10)(ii).

195 Actually, there seems to be two lists available.There is a list from June 2000, entitled“Appendix33-1:List of Organizations which Provide Consultations for O and P Petitions,” available at www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-32447.html. However, from the home page of the redacted online version of the AFM (http://1.usa.gov/uscis-afm), clicking on the Appendices section, and then 33-1, yields a quarterly updated page entitled “Address Index for I-129 O and P Consultation Letters” (directly available at www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters). This list does not refer to itself as AFM Appendix 33-1.

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