Document -> Consultation
A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the beneficiary’s area of ability.
If the O-1 petition is for an individual with extraordinary achievement in motion picture or television, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.
Documents of a consultation involve a written opinion from a contemporary group, which may include labor organizations, with competence in the applicant’s area of expertise.
If the petition for an O-1 visa is for the benefit of a person possessing extraordinary achievement in television or motion picture industry, the consultation should be issued by an appropriate labor union and a management organization with adept knowledge in beneficiary’s area of expertise.
There are two exceptions, a consultation will not be required in the following instances:
- If a peer group or a labor organization with expertise in the area of beneficiary’s ability does not exist
- If the beneficiary alien is only seeking a readmission to the U.S. within two years from previous consultation to perform the same services. A waiver request and a copy of the previous consultation must be submitted by the petitioners.
Document a Contract
A copy of any written contract between the petitioner and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed.
Important: USCIS will accept an oral contract, as evidenced by the summation of the elements of the oral agreement. Such evidence may include but is not limited to: emails between the contractual parties, a written summation of the terms of the agreement, or any other evidence which demonstrates that an oral agreement was created.
The summary of the terms of the oral agreement must contain:
- what was offered by the employer
- what was accepted by the employee
The summary does not have to be signed by both parties to establish the oral agreement. However, it must document the terms of the employment offered and that the beneficiary has agreed to the offer.
For purposes of proving an oral agreement, you may submit:
- Emails between the contracting parties
- Written summary of the terms of the contract.
- Other proof that an oral agreement has taken place.
The summary of Oral Agreement should include:
- What was offered by the employer in the U.S.
- What was accepted by the employee or beneficiary
The summary does not have to be signed by both parties because it suffices that the terms of the offer and acceptance are included.
Document a Itineraries
An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities, if applicable (see the memorandum “Clarifying Guidance on “O” petition Validity Period” link to the right).
Itineraries will lay down the travel plan, schedule, agenda, timetable, and other programs included in the beneficiary’s travel within the period of stay in the United States. The series of events must be pointing toward the beneficiary’s extraordinary ability.
Sample Itinerary
Below is a sample work itinerary for an employee working at a secondary job location. Itineraries of service such as the one below help demonstrate to USCIS that the petitioning company retains control of the employee, even when (s)he works on assignment with another company.
The format below has not been endorsed by USCIS, but is merely an example of the kind of information that should be included. All persons, organizations, and activities mentioned below are fictional. Other formats may be better suited to the individual petitioner’s needs.
Agents
An O-1 visa must be submitted by an agent or employer on behalf of the extraordinary ability individual. A foreign national cannot self-petition himself or herself for the visa.
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.
Agent for Multiple Employers
Please note that a petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent for the other employers. The required conditions can be found at the link to the right (see the memorandum “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications”).
Additionally, agents filing I-129 petitions for multiple employers must include with the petition:
- Supporting documentation including a complete itinerary of the event or events which specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed
- Contracts between the actual employers and the beneficiary; and
- An explanation of the terms and conditions of the employment with required documentation.
Once the visa petition is approved by USCIS, the beneficiary can apply at a U.S. embassy or consulate for the visa. Department of State (DOS) establishes visa application processing and issuance fees. For more information on visa application processing and issuance fees, see the “Department of State, travel.state.gov” link to the right.
Agent Performing the Function of an Employer
An I-129 filed by an agent performing the function of an employer must include:
- The contractual agreement between the agent and the beneficiary which specifies the wage offered and other terms and conditions of employment. This can be a summary of the terms of the oral agreement or a written contract. A contract is not required between the beneficiary and the entities that will ultimately use the beneficiary’s services.
- A petition which requires the alien to work in more than one location must include an itinerary with the dates and locations of work. There are no exceptions to the itinerary requirement when the petition is filed by an agent performing the function of an employer. However, USCIS does give some flexibility to how detailed the itinerary must be and does take into account industry standards when determining whether the itinerary requirement has been met. As such, the itinerary should at a minimum indicate what type of work the beneficiary will be engaged, where, and when this work will take place.
Please note that USCIS relies on the contractual agreement that must be provided with the petition to determine whether the agent is functioning as the employer of the beneficiary. The contractual agreement should establish the type of working relationship between the agent and beneficiary and should clearly lay out how the beneficiary will be paid. In totality, if the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent, then the agent may establish that it is performing the function of an employer. This determination will be on a case by case basis and will be based on the contractual agreement, whether written or oral.
The petition must be submitted with evidence regarding the wage offered. However, the regulations do not contain a prevailing wage requirement. Furthermore, no particular wage structure is required. A detailed description of the wage offered or fee structure and that the wage offered/ fee structure was agreed upon may satisfy this requirement.
Agent for Foreign Employers
Agents filing I-129 petitions for foreign employers must submit the minimum general documentary evidence as required for all O-1 petitions which include:
- Copies of any written contracts between the foreign employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed
- An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities
- A written advisory opinion from the appropriate consulting entity or entities.
The regulations do not require any additional documentary requirements for an agent filing on behalf of a foreign employer, however, it is the foreign employer who is responsible for complying with all applicable employer sanctions provisions.
Evidentiary Criteria for O-1A
Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
- Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
- Original scientific, scholarly, or business-related contributions of major significance in the field
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
- A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
- Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish eligibility.
Evidentiary Criteria for O-1B
Evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:
- Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
- Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
- Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
- A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
- Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
- A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence
If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).
O2 – Visa
The O-2 work visa is a nonimmigrant visa which allows essential support personnel of O-1 visa holders in the fields of athletics, entertainment, motion picture and television production to enter into the U.S. and engage in official activities. This status is not applicable to personnel in the sciences, business or education.
To be eligible you must prove:
- You are an integral part of the actual performance of the O-1 principal
- You have critical skills and experience that are not of a general nature and cannot be performed by other individuals
The petitioner must file a petition with USCIS for the O-2 visa. The petitioner should file Form I-129, Petition for Nonimmigrant Worker, with the USCIS office listed on the form instructions. An O-2 alien must be petitioned for in conjunction with the services of the O-1 artistic or athletic alien. The petitioner may not file the Form I-129 more than one year before the O nonimmigrant will begin employment. To avoid delays, Form I-129 should be filed at least 45 days before the date of employment.
The petitioner must submit Form I-129, Petition for Nonimmigrant Worker, and the following documentary evidence:
Consultation
If the O-2 petition is for support of an individual with extraordinary ability in athletics or the arts, the consultation must be from the appropriate labor organization; or
If the O-2 petition is for support of an individual with extraordinary achievement in motion pictures or television, the consultation must come from an appropriate labor organization and a management organization with expertise in the skill area involved.
Exceptions to the Consultation Requirement:
If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist the decision will be based on the evidence of record.
Evidentiary Criteria for O-2
The evidence should establish the current essentiality, critical skills, and experience of the O-2 beneficiary with the O-1 beneficiary and that the beneficiary has substantial experience performing the critical skills and essential support services for the O-1.
In the case of a specific motion picture or television production, the evidence should establish that significant production has taken place outside the United States and will take place inside the United States, and that the continuing participation of the O-2 beneficiary is essential to the successful completion of the production.