by Jordana Schwartz-Matricardi
The O and P visas are commonly pursued by foreign artists and entertainers within the motion picture, television, music, or general arts and entertainment industries to take their careers to new heights in the United States. Each visa allows entertainers and artists to temporarily work in the U.S., and requires the beneficiary to meet a minimum number of requirements and criteria to demonstrate the caliber of their achievements and talents within their given field.
Generally, this criteria requires artists to prove that they have sustained “national or international acclaim,” have a record of achievements as demonstrated through earned critical acclaim or commercial successes, and that an entity within the United States serves as an “agent petitioner” that files the petition on behalf of the applying beneficiary. Traditionally, the company or individuals that employ the applying individual (or group) tend to serve as the agent petitioner, though according to Title 8 of the Code of Federal Regulations, beneficiaries have a number of options when considering who or what could serve in this position.
United States Customs and Immigration Services (USCIS) outline a number of individuals or groups that can serve as an individual’s agent petitioner. In addition to the beneficiary’s employer, or individuals that represent said employer, an entity performing the function of an employer can serve as the agent petitioner, meaning that an individual (not an employer) that exercises some form of control or exclusivity over the beneficiary’s services, an agent or a manger for instance, is permissible.
Additionally, an entity that acts as a representative for both the beneficiary and a series of employers or entities requiring the beneficiary’s services can act as a petitioner. Similarly, an employer may additionally file on behalf of other employers seeking out the beneficiary’s work. An entity that additionally files on behalf of a foreign employer is also permissible under Title 8.
So what exactly does this mean? Are beneficiaries only limited to having a professional entity serve as a petitioning agent? What if you don’t have an agent or a manager, and your employer isn’t willing to step in to serve as the petitioner?
Fear not! According to USCIS, the beneficiary does not need to show that a petitioner serves as their agent or a manager outside of the context of the petition. Meaning, that if you wanted to have an outside acquaintance or business associate to serve as your “agent” petitioner for the duration of the petition, that is acceptable. As long as you authorize this individual to represent and act on your behalf, and on the behalf of multiple employers, that is acceptable in the eyes of USCIS.
Adjudicators are told to consider evidence that shows that “it is more likely than not that the petitioner is an agent for the series of events, services, or engagements that is subject of the petition.” Probative evidence in this case can include a document signed by the beneficiary’s other employers that states the petitioner is authorized to act in the employer’s place as an agent for the limited purpose of filing the petition; a statement or deal memo/contract confirming any relevant information on the beneficiary’s work (an itinerary, names, addresses of employers) signed by the petitioner and other employers, or other types of agency contracts; fee arrangements; and statements from other employers regarding the nature of the agent petitioner’s representation of the employers and the beneficiary. While evidence of any sort of compensation may help to establish that the petitioner is authorized to act as an agent, compensation to the petitioner from other employers is atypical and not required.
So, could your friend serve as your petitioning agent? Yes, as long as you have the sufficient evidence showing they are willing to serve in this role throughout the duration of your visa for good measure. And while having an acquaintance in this position may help you obtain the visa, it should be noted that it may not benefit you from a career standpoint if you are working in film and television. Typically, production companies, studios, networks, and other entertainment entities still prefer that an O-1 visa holder’s petitioner is an actual talent agent, talent manager, or business manager.