Donald Neufeld, Acting Associate Director, Domestic Operations of USCIS recently published guidance seeking to clarify the adjudicative standards associated with O and P petitions in the very specific instance where such petitions are filed by a petitioner acting as a U.S. agent for a beneficiary (or beneficiaries) who will be working for more than one employer within the same period. The guidance (“Neufeld Memo”) also serves to reaffirm the definition of a U.S. sponsoring organization as it applies to the P Visa Classification.
Background
The O visa program is available to a person who can demonstrate an extraordinary ability in the sciences, arts, education, business or athletics, or those in the motion picture and television industry. O-1 and O-2 petitions may be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent.
The P-1 visa program is available to a person who performs as an athlete, individually or as a part of a team, that is “internationally recognized” [attained a high level of achievement], or a person who performs with (or an essential part of) an entertainment group that has been recognized internationally.
The P-2 visa program is available to a person who performs as an artist or entertainer, individually or as a part of a group, who seeks to enter the U.S. as a part of a reciprocal exchange program between an organization in the U.S. and a foreign organization.
The P-3 visa program is available to a person who performs as an artist, entertainer, teacher, trainer, coach, or interpreter, individually or as part of a group, in a musical, theatrical, or artistic performance or presentation which is culturally unique.
P petitions may be filed by a U.S. employer, a U.S. agent, a U.S. sponsoring organization, or a foreign employer through a U.S. agent.
Both the O and P regulations provide that if the O or P beneficiary (employee) plans to work concurrently for more than one employer within the same specified time period, each employer must file a separate petition with the Service Center which has jurisdiction over the area where the foreign national will perform services. See 8 CFR 214.2(o)(2)(iv)(B); 8 CFR 214.2(p)(2)(iv)(B). A way to avoid filing multiple petitions, when appropriate, is for an established agent (i.e. sports agent, fight promoter, art director) serve as the actual employer of the beneficiary.
The Neufeld Memo’s Guidance For “O” and “P” Petitions Filed By A U.S. Agent
A petition filed by an “established agent” is subject to certain conditions. A petition involving multiple employers may be filed by a person or company in business as an agent that acts as the representative of both the employers and the beneficiary, so long as the following evidence is supplied:
(a) The supporting documentation includes a complete itinerary of the event or events;
(b) The itinerary 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;
(c) The contract between the employers and the beneficiary is submitted; and
(d) The agent explains the terms and conditions of the employment and provides any required documentation.
See 8 CFR 214.2(o)(2)(iv)(E)(2) and (p)(2)(iv)(E)(2).
In addition to the foregoing evidence, for an agent to be considered the actual employer of the beneficiary, the agent must also demonstrate that he/she is “in business as an agent.” While the regulations do not specify the appropriate evidence to establish that one is “in business as an agent,” the Neufeld Memo instructs adjudicators to “focus on whether the petitioner can establish that it is authorized to act as an agent for the other employers for the purposes of filing the petition.”
This guidance should serve to end some of the irregularities in adjudications of O and P petitions filed by U.S. agents. The Neufeld Memo instructs adjudicators that the petitioner is not required to demonstrate that he/she normally serves as an agent outside the context of the petition. Therefore, one need only establish that petitioner is duly authorized to act in the employers’ place for the limited purpose of filing the O or P petition with USCIS to demonstrate that one is “in business as an agent”.
Conservatively, however, we would still recommend supplementing the petition with other forms of probative evidence to avoid an RFE, such as (i) a statement confirming the relevant information [itinerary, names and addresses of the series of employers] signed by the petitioner and the series of employers; (ii) other types of agency representation contracts; (iii) agency fee arrangements; and/or (iv) statements from the other employers regarding the nature of petitioner’s representation of the employers and beneficiary.
The Definition of “U.S. Sponsoring Organization” as it Applies to the P Visa Classification
A “P” petition filed by a U.S. sponsoring organization is also subject to specific guidelines. A sponsoring organization is defined as “… an established organization in the U.S. which will not directly employ a P-1, P-2 or P-3 alien but will assume responsibility for the accuracy of the terms and conditions specified in the petition.”
A sponsoring organization therefore can qualify as a petitioner if it can provide evidence, such as a written contract between it and the beneficiary that, although it will not directly employ the beneficiary, it will guarantee the terms and conditions of the employment of the beneficiary.
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