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FAQ

Frequently Asked Questions

While they are a vital resource for innumerable individuals and companies around the world, O & P visas are exceedingly complex. They contain several subcategories and a host of requirements that change depending on your industry and qualifications. To provide as much information about this legal area as possible, our team at Oakhurst Immigration Law has put together the following FAQs. This is general information, however, and we urge you to get in touch with us for more personalized guidance regarding your case.

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  • Who can sponsor me for an O-1A or O-1B visa?

    In general, USCIS regulations allow for United States employers, United States-based agents, and foreign employers using a United States-based agent. In practice, any United States citizen or company can serve as the petitioner for an O-1 visa, but the petitioner must carefully describe the relationship between the parties to avoid denials or requests for evidence. It is not possible for an O-1 beneficiary to petition for themselves, and beneficiaries generally cannot petition for an O-1 visa through an entity in which they have ownership. For the purposes of this visa, a “U.S. employer” is the direct employer of the beneficiary. This employer will benefit from the work of the beneficiary and control their day-to-day activities. A “U.S. agent” is in the beneficiary’s business industry (especially in the motion picture and television industry and facilities) and works with third parties for the beneficiary. This is also common in athletics and other industries that require nationals with extraordinary ability. The U.S. Agent must be authorized to act as an agent, with all the petition employers or opportunities listed in the petitioner’s itinerary. A “foreign employer using a U.S. agent” is a company or person outside of the U.S. who controls and manages the beneficiary’s day-to-day activities. The U.S. agent, in this case, is primarily serving just as the petitioner. As such, the petitioner must state that they are serving as a petitioner for the purpose of applying for a visa, and they are responsible for travel out of the country if the employment relationship ends and must accept service of process on behalf of the beneficiary. U.S. managers, sponsors, agents, and direct employers can all serve as petitioners in the arts, motion picture, television, radio broadcasting, content production, and athletic industries.

  • What are petitioners responsible for?

    Petitioners are responsible for: Declaring to USCIS that the contents of a petition are true; Signing the petition(s); and Claiming liability for the cost of travel for the beneficiary (if the contract or relationship that the petition is based on ends early). Petitioners will have to submit information about the details of their relationship with the beneficiary and any third parties, the years they have been in business, either a Social Security or tax identification number, and number of employees. In the O-1 visa category, serving as petitioner does not create a financial obligation or liability exposure other than what has already been mentioned in this paragraph.

  • Who is the best petitioner for my case?

    In industries that require flexibility (such as television, the arts, motion picture, radio, and other creative industries), it is recommended that agents and managers serve as the petitioner for extraordinary ability visas. O-1 visa petitions with agents allow the beneficiary to pursue work with multiple employers and projects using the same O-1 visa approval. They can even support additional work that is not included but is contemplated in the original petition. In athletics, sciences, and business, it is more common for direct employers to serve as petitioners for the O-1 visa because the employment contracts are exclusive and do not support other work anyway. O-1 applications where a direct employer is serving as the petitioner do not support employment with other opportunities using the same employment. In these circumstances, the beneficiary might need to obtain another concurrent O-1 visa approval and include permission from the original O-1 petitioner in order to pursue the extra activities.

  • What if my relationship with my petitioner ends?

    If a beneficiary and petitioner end their relationship, the O-1 visa is no longer valid after a 30-day period following the termination. If the beneficiary continues to work after this period, the work is unauthorized, and they run the risk of being deported. Therefore, if there is a change in management, agent, or employer, it is very important that the beneficiary file another O-1 petition with another sponsor, and they must prove extraordinary ability and achievements again.

  • Do I need an O-1 visa itinerary?

    In general, O-1 petitions for foreign nationals with extraordinary ability require an agreement with a direct employer or agent that explains the relationship between the parties. It must prove that there is a series of activities or events for the beneficiary to perform for the desired validity period. In certain circumstances, however, the series of activities or events does not have to be expressed as an itinerary. If a direct employer in the United States or abroad is filing through a U.S. agent, the petition might not require an itinerary. Additionally, if there is only one employer, and the beneficiary will only be working for the same employer doing the same activity, the application may not require a full, detailed itinerary. As an alternative, petitions with this structure can include a contract or offer letter from the petitioner that includes important details (e.g. compensation, agreement terms, fringe benefits, etc.). Beneficiaries who will perform services at various locations and book multiple engagements, however, typically need a detailed itinerary. This is very common for artists, actors, motion picture contract employees, and more. For example, an artist may be providing services in a nationwide tour; a filmographer may work on several different projects over the next few years; or a freelance broadcaster might work for several different content platforms. An itinerary is absolutely necessary with an O-1 visa petition when an agent is the employer for the petition (i.e. the agent is functioning as an employer and not serving just as the U.S. agent for a foreign employer).

  • What information should my itinerary include?

    O-1 visa itineraries must include specific information to avoid a request for evidence or a denial. Generally, your itinerary should include: Types of services Anticipated locations and dates (for services performed at multiple locations) Supporting evidence that the activities will occur (e.g. venue contacts, promotion contracts, etc.) Each industry could have unique nuances and other considerations, and USCIS is aware of this. It is critical, therefore, to understand industry trends and include itineraries with the O-1 petition that matches the industry norms.

  • Q:What is a consultation letter?

    A:O-1 visa petitions typically include a consultation letter from a union or agency that details a positive reference guide to the accomplishments of the beneficiary. Usually, the organization that issues the consultation letter has a national or international presence and serves professionals in the same industry as the beneficiary, such as AFM for signers/composers and VES for virtual effects professionals. If no union or labor agency is available, then an organization such as SAG-AFTRA, PGA, DGA, or AMPTP can submit a management and advisory opinion. Consultation letters and advisory opinions may not be free, and each organization is different. If neither an appropriate labor union nor management organization exists, the petition can be supported by a peer review.

  • Q:What are the requirements for a consultation letter?

    A:Federal immigration law requires appropriate management organizations to submit consultation letters in the style of an advisory opinion of the beneficiary. If, however, USCIS chooses to designate a petition with expeditious handling for beneficiaries in the arts, entertainment, or athletics, USCIS can directly contact the management and/or labor entity to seek an advisory opinion on the beneficiary. As of March 2020, neither we nor our colleagues in sports and entertainment immigration have encountered many examples of USCIS seeking their own consultation letters, but this could change at any time with the way the current administration is trending. If USCIS does pursue their own advisory opinion, the contacted organization will have only 24 hours to respond. Furthermore, there are specific procedures for petitions that include advisory opinions from peers or peer groups that cannot be classified as a labor organization. If USCIS accepts a petition with an opinion from a peer group, it will send the entire O-1 application to a labor or management organization shortly after receiving the petition. Typically, the labor organization has 15 days to respond to the requests, or USCIS will have to proceed without input from the organization. Often, someone within collective bargaining personnel will address the request to assure USCIS that the beneficiary is not interfering with the market for jobs for the industry within the United States. While consultation letters and advisory opinions are required under the regulations and helpful towards confirming the achievements of the beneficiary, USCIS does not have to approve a petition because of a positive advisory letter. A consultation letter is just one of the requirements for the petition. In fact, USCIS recently created new rules that allow consultation letters with negative opinions to be submitted directly to USCIS instead of going to the petitioner or their immigration lawyer first. In practice, many consultation letter providers will first consult with an immigration attorney they are familiar with before sending the letter—if there is an established relationship.

  • Q:What should be included in the consultation letter?

    A:If the advisory opinion is not favorable, it must include evidence of that conclusion. If it is favorable, it should include: The applicant’s ability and achievements in their industry; The type of services the applicant will provide; and A claim regarding whether the services require an alien of extraordinary ability. A consulting organization may submit a letter of no objection to the approval of the petition. There are several types of O-1 nonimmigrant visas, each with its own unique eligibility standards and consultation letter requirements. This is why it is critical to retain knowledgeable legal support for every step of the process.

  • Q:Can I have multiple visas at once?

    A:The O-1 visa is one of the few nonimmigrant visas that permits a foreign national to have more than one visa at the same time. It is perfectly permissible under the regulations for a beneficiary to have an O-1 with a direct employer with traditional terms of employment and then negotiate another contract with an agent to pursue projects such as podcasts, self-produced YouTube content, sponsorships, and more. However, all involved parties must consent to concurrent employment. USCIS will not allow the contract for a previously approved O-1 to be breached by a new O-1 visa petition. The contracts and deal memos associated with O-1 applications are subject to heavy scrutiny by USCIS, and they are commonly the reason why USCIS issues requests for evidence that have nothing to do with the extraordinary ability of the visa applicant. To avoid this request for evidence, permission of all involved parties must be clear to USCIS. The supporting evidence should include letters from employers that expressly give permission to the O-1 applicant to conduct concurrent activities—especially if the original contract calls for exclusivity. Additionally, the consultation or advisory opinion included with the concurrent employment should explain that the new activities are supported in addition to the existing employment in the previous visa.

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