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.
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