USCIS has released a new policy memorandum addressing the role of agents serving as petitioners in O and P non-immigrant petitions. The memo supercedes a 2009 memorandum issued by Michael Aytes.
The memo reaffirms USCIS’ practice of allowing agents to serve as petitioners for all types of O and P petitions as long as agents meet specific requirements. Agents may file petitions in three circumstances:
- Cases involving traditionally self-employed workers;
- Cases involving workers who use agents to arrangement short-term employment with numerous employers; or
- Cases where a foreign employers authorizes an agent to act on his or her behalf.
The US agent may also be the beneficiary’s employer, someone performing the functions of an employer, a representative of both the beneficiary and other (multiple) employers, acting on behalf of both the employers or entities requiring the beneficiary, acting on behalf of a foreign employer of a or someone the employer has authorized to act on its behalf.
Depending on which of the three circumstances noted above apply to the petition, different requirements on the agent will apply. Later in the memorandum, USCIS notes a fourth scenario – that of an agent performing the function of an employer even when it is not explicitly employing the beneficiary.
However, in all agent petitions, the following requirements apply:
1. If a contract exists between the petitioning agent and the beneficiary, it must be provided with the petition. If there is no written contract, a summary of an oral arrangement will be accepted. Oral agreements may be documented through emails, a written summation of the terms of the deal (including what was offered by the employer, agent or venue), a deal memo laying out the agreement terms (whether signed or unsigned), offer letters and any other evidence that documents the existence and content of an agreement.
2. The petitioner must supply a general itinerary explaining the nature of the events or activities, the beginning and end dates, locations and a copy of any itinerary.
3. The petitioner must demonstrate that an event, performance, or activity will occur and the beneficiary is not entering the US to freelance or engage in speculative employment. USCIS will look at contracts, itineraries and other documents such as brochures listing performances, published advertisements, confirmations of participating in US exhibitions and/or festivals or other appropriate evidence.
USCIS will determine the amount of time to approve on a case by case basis depending on the period of time needed to complete the itinerary. The petitioner may request a longer O or P status approval than the period stated in the contract if evidence is submitted that it is more likely than not that there are activities such as short vacations, promotional appearances or incidental stopovers that would lengthen the needed stay.
Additional performances and engagements for artists and entertainers may be added without the need to file an amended petition.
4. Agents are responsible for vouching for the underlying facts of the petition or they face penalties.
With respect to the four different types of agent-beneficiary relationships, USCIS breaks down the differing requirements.
1. Agents who are actual employers must provide the following:
– evidence of an actual employment relationship,
– a contract that specifies wages offered and other terms and conditions of employment (either a written or oral agreement is acceptable),
– if the beneficiary will work in more than one place, an itinerary with dates and locations of competitions, performances or events must be provided
2. Agents who are actual employers and filing on behalf of other (multiple) employers must provide the following:
– evidence of an actual employment relationship,
– a contract that specifies wages offered and other terms and conditions of employment (either a written or oral agreement is acceptable),
– contracts between the other employers and the beneficiary,
– an itinerary like the one noted above but also listing the names and addresses of the other employers as well as the names and addresses of the establishments, venues or locations where the services will be performed,
– documents showing the petitioner is authorized to act as an agent for the series of events, services, or engagements (note that USCIS explicitly states that there need not be a formal agency agreement and that while the petitioner must be “in business as an agent” the petitioner does not need to normally serve as an agent outside the context of the O or P petition). The agents may present a document signed by the other employers authorizing the agent to act in their place or other similar evidence.
3. Agents performing the function of an employer (described as where the agent is not employing the beneficiary, but still exercising control or exclusivity over the services provided by the beneficiary) must provide the following:
– a contract that specifies wages offered and other terms and conditions of employment (either a written or oral agreement is acceptable). USCIS notes that the agreement or summary should explain how the beneficiary will be paid and the type of relationship between the agent and beneficiary. If USCIS determines that an actual employment relationship exists, then a contract is not required with the entities where the beneficiary will perform.
– if the agent is performing the function of an employer, but is not actually the employer, the agent must provide an itinerary of definite employment and information on other services planned for the period of time requested. If the agent is an actual employer, only the dates and locations of places where services are to be performed must be provided. In either case, an itinerary doesn’t need to include every engagement as long as the itinerary identifies the outside entity that will ultimately use the beneficiary’s services. USCIS gives the example of simply stating on an itinerary that a person will model on numerous occasions for a specific fashion designer beginning in March and ending in September.
4. Agents acting as representatives of both the beneficiary and employers or entities requiring a beneficiary’s services must provide the following:
– a contract between the agent and the beneficiary that specifies wages offered and other terms and conditions of employment (either a written or oral agreement is acceptable),
– for O petitions, contracts between the other employers and the beneficiary,
– for P petitions, USCIS may request contracts between the employers and the beneficiaries in questionable cases,
– an itinerary like the one noted above but also listing the names and addresses of the other employers as well as the names and addresses of the establishments, venues or locations where the services will be performed
– documentation that the agent is “in business as an agent” and authorized to act as an agent for the other employers
5. Agents for foreign employers must provide the following:
– a copy of any written contract (or documentation of an oral agreement) between the foreign employer and the beneficiary,
– an explanation of the nature of any events or activities, the beginning and ending dates, and a copy of any itinerary for the events or activities,
– evidence that the petitioner is representing the foreign employer for the purpose of filing the O or P petition
Finally, the memo notes that P-1 “sponsoring organizations” in the US that are not directly employing a beneficiary must provide evidence indicating that they are guaranteeing the terms and conditions of employment of the beneficiary