When filing for an O-1 visa, you will need an employer or agent sponsor. If you are deciding between an agent or employer petitioner, read on to learn more about their differences and which option is better for you.
Introduction
O-1 visas are nonimmigrant visas for individuals with extraordinary abilities. You are likely someone who possesses an extraordinary ability in the sciences, arts, education, athletics, film, etc. (See our other blog posts on O-1 visas).
In addition to being able to demonstrate that you possess extraordinary abilities in the field of your choice, you must also have a U.S. employer or agent to file the petition on your behalf. Unlike some other self-sponsored business visas, such as the EB-1, you cannot self-petition for the O-1 visa. You must have someone who is willing to sponsor you. In the case of O-1 visas, you may have an agent or employer petitioner file your O-1 petition.
Agents as Petitioners
U.S. agents can file O-1 petitions for workers who are typically self-employed. Individuals often use agents for short-term jobs, or when a foreign employer authorizes the U.S. agent to act on its behalf.
The agent can act as the actual employer, represent both the employer and the beneficiary, or beauthorized by the employer to act on its behalf for the petition. Here are five considerations for agents as petitioners:
- Agents as the actual employer;
- Agent for multiple employers;
- Foreign employers;
- Self-owned entities as agents; and
- Limitations of agent-petitioners
Agent as the Actual Employer
When an agent acts as the O-1 beneficiary's employer, they must show they supervise the beneficiary in the work that they do. The agent must provide a contractual agreement detailing the beneficiary's wage, payment method, working relationship, and employment terms. Although the original contract is preferred, a summary of the oral or written agreement suffices. If the beneficiary will work at multiple locations, the agent must file an itinerary listing the type of work, locations, and dates. No specific wage structure is required.
Agent for Multiple Employers
An agent can file an O-1 petition for multiple employers. Regulations do not specify requirements for being “in business as an agent,” but the agent must provide a complete itinerary of events involving various employers and the beneficiary, along with contracts (written or documented oral agreements) between employers and the beneficiary. The agent must prove authorization to petition on behalf of the other employers and demonstrate that the proposed employment opportunities exist, explaining the terms and conditions of each job.
Foreign Employers
A foreign employer can petition for an O-1 applicant only through an authorized U.S. agent. The agent must show authorization to represent the foreign employer, petition on its behalf, and accept legal service in the U.S. The foreign employer remains responsible for complying with employer sanctions provisions of section 274A of the INA and 8 CFR part 274a.
Self-Owned Entities as Agents
While O-1 beneficiaries cannot self-petition, a U.S. business entity owned partly or wholly by the beneficiary can petition for the O-1 applicant. Similarly, a foreign employer owned by the O-1 beneficiary can petition. The petitioner must prove the business entity is separate from the beneficiary and is a legitimate employer. The petition must be based on actual employment, not speculative work.
Limitations of Agent-Petitioners
O-1 classification requires the beneficiary to be employed by a U.S. entity. The use of an agent as a petitioner should not be confused with freelancing or self-employment, which are not permitted for foreign nationals seeking O-1 status.
With these considerations in mind, an agent can be used in a variety of different scenarios. If you have a more future traditional employment arrangement or have a specific employer that can demonstrate a clear employer-employee relationship, rather than an agent-petitioner, an employer-petitioner may be a better fit for you.
Employers as Petitioners
Contrary to agents, employer-petitioners are a single employer that petitions for (or essentially represents) you, the beneficiary. When an employer files for your O-1 visa, you must only work for that employer during the O-1 validity period. Unlike agent-petitioners, filing with an employer-petitioner does not allow you to work for multiple employers.
Direct employers must provide a detailed job offer including your duties and responsibilities. This is common for those with full-time positions where you have had a long-term relationship with your employer or are expecting to be employed by them for a long period of time.
The main difference between an agent-petitioner and an employer-petitioner is that for a direct employer, there is a specific job and a clear employment relationship whereas agents often represent independent contractors or freelancers who work for multiple employers on a project to project basis.
Second, with regard to contractual agreements, direct employers must provide an employment contract with details on the terms of your employment. Agents on the other hand need to provide a written agreement with you outlining the terms and conditions, not of your employment, but of their representation of you. If the agent is filing on behalf of multiple employers, contracts between you and each employer must be included.
Lastly, regarding itineraries and contracts, direct employers must provide a detailed itinerary of your work upon your arrival to the US. Agents, conversely, must submit a comprehensive itinerary including specific work engagements, dates and locations along with contracts for each engagement.
You may also read: 7 Tips for Making a Strong O-1 Visa Application
Conclusion
It is critical that you understand the difference between using an agent or employer petitioner for your O-1 visa application. While agents offer more flexibility for those who intend to be employed by multiple employers, direct employers provide a more stable and well-defined employer-employee relationship.
Hiring an experienced immigration attorney can be helpful in determining how your specific needs and goals match with either option. If you are interested in learning more about O-1 visas or either option for sponsorship, consider booking a consultation with us today.
