Minimalist Theory for O-1A and O-1B Agreements

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Minimalist Theory for O-1A and O-1B Agreements by Sherrod Seward, Esq.

O-1 petitions in both O-1A and O-1B categories have subjective and objective components.

For the subjective component, the eligibility criteria of the beneficiary, our firm’s theory is to overload them with quality information backed up by third-party confirmation.

For the objective components – petitioner structure, beneficiary title, and the agreement to support the petition – our firm’s theory is to only provide what we have to, and nothing more.

The reasons for this are very good ones:

  1. USCIS can and should be educated about their own rules at all times. When the objective components of the petition only stick to the rules, there is less opportunity for USCIS adjudication officers to be confused or attack factual assertions.
  2. In 2020, requests for evidence were inevitable. However, our law firm tried to make sure that requests for evidence make only objective challenges to the structure of the petition, rather than subjective arguments about factual information we included about objective components in the petition that were none of USCIS’ business.
  3. USCIS challenges regarding the objective structural parts of the petition should always be wrong. They COULD always be wrong.
  4. Often, clients do not have to be involved or bothered in the response to USCIS challenges about the structural parts of the petition if they are set up properly in the first place. This makes responding to requests for evidence straightforward and will not require more information from our clients.

With these items in mind, we now discuss our firm’s plan and formats for the objective parts of O-1A and O-1B petitions.

Beneficiary title:

This one is simple; we choose the I-129 work title that best matches the O-1 eligibility criteria for the beneficiary. Generally, we do not consider the actual activities the beneficiary will be undertaking. The reason being is that unlike the P-1 visa category, the O-1 itinerary activities are not strict.

P-1 petitions require an itinerary that requires the following:

All petitions seeking nonimmigrant classification require a description of the competition, event, or performance in which the group will participate. A competition, event, or performance may include an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement.

Each of these activities requires dates/locations and requires the participation of international athletes.

Conversely – O-1 petitions require the following:

You must provide an explanation of the competition, event, or performance in which the beneficiary will participate. An event means an activity such as a scientific project, conference, convention, lecture series, academic year, or engagement during the requested validity period.

This is fairly wide open under the engagement theory and there are no regulations that require the engagements to be specific to skill set.

As we constantly like to remind USCIS, “USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.” Kazarian v. USCIS 596 f.3d 1115 at 1122

To take advantage, our firm’s theory is to set the job title to match the best chance the beneficiary has to be eligible for the O-1A or O-1B petition. We do not match the job title to the activities the beneficiary will be performing under the O-1.

Example: athletes who are transitioning to coaching.

This is an easy example because athletes rarely have coaching experience when they are finished competing and now want to coach. Most often, they do not have the background to support an O-1 petition for coaching. So, if we submit a petition with the I-129 as a coach, this petition will be an uphill battle. However, if we submit the petition with the I-129 as a world-class athlete and the itinerary/engagement includes coaching there is little room for USCIS to counter this petition structure.

Object Theories to Present the Structure of the O-1A and O-1B Petitioner:

For the petitioner, we prefer to just state some general information about them that is no more than a paragraph, unless there is another reason that benefits us. The petitioner in an O-1 petition does not need to be featured significantly in the petition. Our goal is to make it clear to USCIS which petitioner structure we are pursuing, and not much more.

What are the acceptable petitioner structures for an O-1 visa?

There are four types; of those we only will use three:

  1. US agent petitioner acting as the employer
  2. US petitioner for a foreign employer
  3. Direct employer
  4. US agent for multiple employers

We will be hardly using the fourth option because it takes the most consent from multiple parties and evidence to have a conclusive structure.

Our firm typically submits a deal memo or consent to oral agreements and only submits actual contracts if it benefits us. More factual details to objective structural components of the petition only provide more room for USCIS to attack factual claims in the petition.

All oral consents/deal memos must include basic information about services to be performed, wages, hours of work, fringe benefits, and working conditions.

  1. Services to be performed
  • Example: Competing “organization’ schedule with dates and locations for the next 12 months are included with this petition and will repeat for the next 3 years.
  • Example: Training at “gym” located at address, city, date, three times a week for the length of this approval validity date.
  • Example: Entrepreneurial pursuits such as podcasts, seminars, investing, and so on under soon to be established “business name,” located at address, city, date, for the length of this petition.
  1. Wages: The beneficiary will earn at least X{1106fe1a032145a7ce887f3f2bb95c04ba93cfa6fff56783b1539dad6a0206fe} of all revenue derived from the activities and opportunities derived from this oral consent agreement and competition.

In case USCIS believes they cannot determine the validity, accuracy, and reliability of the documentation we provided and the terms and conditions of the beneficiary’s employment, including her wage:

We were unable to find in the regulations, nor in the internal information we were able to find on the Internet, any requirements to show the exact wages or where contemplated percentage of sponsorships and winnings are not satisfactory.

“USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.” Kazarian v. USCIS 596 f.3d 1115 at 1122

  1. Hours of work: We provide something short but that makes sense for the industry, or, explain that it is common in this industry not to have normal work hours.

Such as work hours in this industry fluctuate, the compensation is not intertwined with the number of hours worked, compensation is tied to results.

Or, the beneficiary will train at least three times a week, spend at least 20 hours a week on business development activities, and compete as their body permits them to do safely. This is standard within the industry of “xxxxx.

  1. Working conditions: This is where you provide some explanations that can be inserted to make things very plain for the officer. There is a trend for USCIS adjudicating officers to attract obvious circumstances within agent-based petitions to send requests for evidence.

Working Conditions:

  • This is a mixed martial arts management office – this is not a ring or a cage. The beneficiary works for us but competes in mixed martial arts competitions negotiated and arranged by us.
  • We are one of the most prestigious combat sports agencies in the word, directly navigating and directing the careers of combat sports athletes.
  • They negotiate and direct the beneficiary to participate in real and actual competitions that are established with evidence provided in the petition. In addition we have presented evidence of a storied history and plethora of past performance of our clients competing in xxxxxx, xxxxxx, xxxxxx.
  • To be clear the athlete is not fighting the OFFICE. The athlete is fighting in competitions arranged out of and by the office in internationally recognized events.
  1. Any fringe benefits. Include any other forms of compensation or assistance that the beneficiary will receive.
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  • Expenses
  • Petitioner agrees for reasonable travel accommodations for the beneficiary to travel back to their home country if the agreement is cut short before the validity date.

    Making it Clear to USCIS which Petitioner Structure is in Place.

    Here are the bare minimum requirements of each possible petitioner structure. We generally try to keep our agreements in bullet point format and not paragraph format.

    Direct Employer:

    • Specifies the wage offered
    • Provides other terms of employment
    • Details any additional services provided
    • Outlines an itinerary of definite employment

    Note* An itinerary is not as important when there is a direct employer and not an agent involved.

    US Agent Performing the Function of an Employer:

    • Specifies the wage offered
    • Provides other terms of employment
    • Details any additional services provided.
    • Outlines an itinerary of definite employment and information on any other services planned for the period of time requested

    US Agent Filing on Behalf of a Foreign Employer:

    • The petitioner is authorized by the foreign employer to file the petition; and
    • The petitioner is authorized to accept service of process on behalf of the employer

    Note* It is best practice to present evidence that there is a foreign employer, whether it be a company or an individual person.

Examples of Agreements Used in Different O-1 Petition Structures Example of Direct Employment Deal Memo/Consent to Oral Agreement

The following represents the understanding of the services xxxxxx will perform as an analyst for the coverage of National Hockey League (NHL) games on the xxxxxx television network.

Company: Petitioner

Artist: Beneficiary

Genre of Project: Coverage of National Hockey League

Name of Program(s): NHL on Network Name

Position: Analyst

Services to be provided: Provide unique play-by-play analysis during the NHL schedule and related events

Fringe Benefits: Per diem, travel budget, wardrobe budget, and more

Working Conditions: Job is based in New York City but will follow the NHL schedule as necessary during the season and related events

Petition Structure: The petitioner is the direct employer of the beneficiary

Duration: From date of O-1 approval and extending for at least 36 months after date of receiving work authorization in the United States under this petition

Location(s): City, State and NHL hockey games throughout the U.S.

Wages: $3,000 per week

Hours: 40 hours per week

Example of US Agent Acting on Behalf of Foreign Employer

Foreign Employer

address

Phone:

(hereinafter “Foreign Talent Agent”),

US Agent

Address:

Phone:

(hereinafter “US Visa Agent”), and

Beneficiary

Address

Phone:

(hereinafter “Talent”)

Recitals

Whereas, the Foreign Talent Agent is the official agent of the Talent,

Whereas, the Talent is an internationally recognized person,

Whereas, the Foreign Talent Agent wishes to petition and manage Talent in the United States through an Agent for immigration purposes in the United States,

Whereas, the US Visa Agent is in the business of representing international sports and entertainment industry talent in the United States,

Whereas, the Foreign Talent Agent is agreeing to use the US Visa Agent to serve as sponsor ONLY for the purpose of an I-129 visa application for the Talent.

Petition Structure: US Agent Filing on Behalf of Foreign Employer

Duration: From date of O-1 approval and extending for at least 36 months after date of receiving work authorization in the United States under this petition.

Services to be provided:

  • Competing “organization” schedule with dates and locations for the next 12 months are included with this petition and will repeat for the next 3 years
  • Training at “gym” located at address, city, date, three times a week for the length of this approval validity date
  • Entrepreneur pursuits such as podcasts, seminars, investing, and so on under soon to be established “business name” located at address, city, date, for the length of this petition

Fringe Benefits:

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  • Expenses
  • Petitioner agrees for reasonable travel accommodations for beneficiary to travel back to their home country if the agreement is cut short before the validity date

    Working Conditions:

    • This is a mixed martial arts management office – this is not a ring or a cage. The beneficiary works for us but competes in mixed martial arts competitions negotiated and arranged by us.
    • We are one of the most prestigious combat sports AGENCIES in the world – directly navigating and directing the careers of athletes.
    • The real and actual competitions that clearly exist and that we have a storied history and plethora of past performance as evidence, in which the athlete will participate with our permission includes: The XXXXXXXXX 2019 and 2020 was presented to you and it was explained that these events happen every year for the next three years.
    • To be clear the athlete is not fighting the OFFICE. The athlete is fighting in competitions arranged out of and by the office in internationally recognized events.

      Location(s):

      Location Dates

      Venue, City, State 10/1/2020-9/30/2023

      Venue, City, State 3/8/2021-3/21/2021

      Venue, City, State 3/22/2012-4/4/2021

      Venue, City, State 8/14/2021-822/2021

      Venue, City, State 8/30/2021-9/7/2021

      The Talent may perform other related activities if contracted at other venues sporadically; however, she is to be based at the above venues.

      Authority to Enter into Agreements: The Foreign Talent Agent has an oral contract with all Partners necessary to utilize the Talent in the activities listed in this petition; a written tendered contract is not normally executed between agents and the strategic partners for these events.

      Compensation: At least 80{1106fe1a032145a7ce887f3f2bb95c04ba93cfa6fff56783b1539dad6a0206fe} of revenue derived from the activities mentioned and contemplated in this agreement

      In case USCIS believes they cannot determine the validity, accuracy, and reliability of the documentation we provided and the terms and conditions of the beneficiary’s employment, including her wage: We were unable to find in the regulations, nor in the internal information we were able to find on the Internet, any requirements to show the exact wages or where contemplated percentage of sponsorships and winnings are not satisfactory.

      “USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.” Kazarian v. USCIS 596 f.3d 1115 at 1122

      Requirements of US Visa Agent: US Visa Agent agrees to accept service of process on behalf of the Foreign Talent Agent and Talent. The US Visa Agent confirms that the contents of the visa application are true to the best of their knowledge. If the Foreign Talent Agent fails to provide a flight out of the United States, the US Visa Agent agrees to cover the cost of a flight and the Foreign Employer Talent Agent shall reimburse the US Visa Agent for the flight.

      The parties agree and warrant they have read and understand this contract.

      Date:_________________________________

      Foreign Talent Agent _______________________

      _______________________________

      Date:_____________________________________

      Talent – __________________________

      _______________________________

      Date:_____________________________________

      US Visa Agent – __________________________

      _______________________________

      US Agent Performing the function of the employer

      U.S. Department of Homeland Security

       

      U.S. Citizenship and Immigration Services

       

      Re: O-1 Petition

       

      Petitioner: XXXXXXX

      Beneficiary: XXXXXXXXXXX

       

      I am writing to offer clarification on the agreement between our organization and the beneficiary. The Petitioner’s address is xxxxxxxxxxxxxxxxxxxxxxxxxxx

       

      PLEASE NOTE!

      1. This location functions as a management office – this is not an event. The beneficiary is employed by the petitioner who negotiates and arranges for the beneficiary to participate in activities and locations arranged by the Petitioner.
      2. The Petitioner is involved in the industry of the beneficiary and is directly navigating and negotiating the activities for the beneficiary BECAUSE THEY ARE A US AGENT PERFORMING THE FUNCTIONS OF AN EMPLOYER.

        Duration

        This contract will be valid for thirty-six (36) months. It will take effect on approval of this visa and extend for three years.

        Compensation

        Talent will receive at least 80{1106fe1a032145a7ce887f3f2bb95c04ba93cfa6fff56783b1539dad6a0206fe} of money derived from permitted competitions and permitted sponsorships.

        In case USCIS believes they cannot determine the validity, accuracy, and reliability of the documentation we provided and the terms and conditions of the beneficiary’s employment, including her wage: We were unable to find in the regulations, nor in the internal information we were able to find on the Internet, any requirements to show the exact wages or where contemplated percentage of sponsorships and winnings are not satisfactory.

        We would like to remind USCIS that “USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.”11 Kazarian v. USCIS 596 f.3d 1115 at 1122

        Petitioner is a US Agent Functioning As Employer

        • Petitioner asserts that the contents of this petition are true to the best of their knowledge and belief.
        • Petitioner agrees to accept service of process on behalf of the beneficiary.
        • Petitioner and parties associated with this petition agree to secure reasonable travel for the beneficiary in the event that the visa is terminated early.
        • Petitioner will also add additional engagements to the itinerary for competitions, sponsors, promotional activations, media-related activities, and other related marketing opportunities as they become available.
        • The petitioner also hereby consents to represent the beneficiary to participate in opportunities procured by her talent agent(s) – who is responsible for day-to-day activities –

        A copy of the internal USCIS memo that states that these are the only requirements required is included with this petition. https://drive.google.com/file/d/1Ntng39WRc_bfkYjWYtO1bqD41PyNLbxt/view?usp=sharing

        Please note the following: “USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.” Kazarian v. USCIS 596 f.3d 1115 at 1122

        Services to be provided:

        • Example: Competing “organization’ schedule with dates and locations for the next 12 months are included with this petition and will repeat for the next 3 years
        • Example: Training at “gym” located at address, city, date, three times a week for the length of this approval validity date
        • Example: Entrepreneur pursuits such as podcasts, seminars, investing, and so on under soon to be established “business name” located at address, city, date, for the length of this petition

        Fringe Benefits:

        • Loading
        • Expenses
        • Petitioner agrees for reasonable travel accommodations for beneficiary to travel back to their home country if the agreement is cut short before the validity date

        Working Conditions:

        • This is a mixed martial arts management office – this is not a ring or a cage. The beneficiary works for us but competes in mixed martial arts competitions negotiated and arranged by us.
        • We are one of the most prestigious combat sports AGENCIES in the world, directly navigating and directing the careers of athletes.
        • The real and actual competitions that clearly exist and that we have a storied history and plethora of past performance as evidence, in which the athlete will participate with our permission includes: The XXXXXXXXX 2019 and 2020 was presented to you and it was explained that these events happen every year for the next three years.
        • To be clear the athlete is not fighting the OFFICE. The athlete is fighting in competitions arranged out of and by the office in internationally recognized events.

        E-Signature US Agent: E-Signature: Talent:

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