Questions and Answers

QUESTIONS PRESENTED

 

1)     What is the process for filing O-2 visas and what documents and forms must be included in the O-2 packet to complete the application and warrant a favorable response from the USCIS?

 

The INA Section 214.2(o) Aliens of Extraordinary ability or achievement, details the requisites for filing an O classification visa petition. Sub sec 1. (B) further explains the requirements for an O-2 category visa petition. The relevant portions of the section are reproduced below:

 

“1. (B) An O-2 classification applies to an accompanying alien who is coming temporarily to the United States solely to assist in the artistic or athletic performance by an O-1. The O-2 alien must: 

 

((1)) Be an integral part of the actual performances or events and possess critical skills and experience with the O-1 alien that are not of a general nature and which are not possessed by others; or 

 

((2)) In the case of a motion picture or television production, have skills and experience with the O-1 alien which are not of a general nature and which are critical, either based on a pre-existing and longstanding working relationship or, if in connection with a specific production only, because significant production (including pre- and post-production) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production. 

 

(2) Filing of petitions.– 

 

(i) General. Except as provided for in paragraph (o)(2)(iv)(A) of this section, a petitioner seeking to classify an alien as an O-1 or O-2 nonimmigrant shall file a petition on Form I-129, Petition for a Nonimmigrant Worker, with the Service Center which has jurisdiction in the area where the alien will work. The petition may not be filed more than 6 months before the actual need for the alien’s services. An O-1 or O-2 petition shall be adjudicated at the appropriate Service Center, even in emergency situations. Only one beneficiary may be included on an O-1 petition. O-2 aliens must be filed for on a separate petition from the O-1 alien. An O-1 or O-2 petition may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent. For purposes of paragraph (o) of this section, a foreign employer is any employer who is not amenable to service of process in the United States. A foreign employer may not directly petition for an O nonimmigrant alien but instead must use the services of a United States agent to file a petition for an O nonimmigrant alien. A United States agent petitioning on behalf of a foreign employer must be authorized to file the petition, and to accept services of process in the United States in proceedings under section 274Aof the Act, on behalf of the foreign employer. An O alien may not petition for himself or herself. (Revised 4/16/97;62 FR 18508)  

 

(ii) Evidence required to accompany a petition. Petitions for O aliens shall be accompanied by the following: 

 

(A) The evidence specified in the particular section for the classification;  

 

(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed;  

 

(C) 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; and 

 

(D) A written advisory opinion(s) from the appropriate consulting entity or entities. 

 

(iii) Form of documentation. The evidence submitted with an O petition shall conform to the following: 

 

(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the alien’s achievement and be executed by an officer or responsible person employed by the institution, firm, establishment, or organization where the work was performed.  

(B) Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability, or in the case of a motion picture or television production, the extraordinary achievement of the alien, shall specifically describe the alien’s recognition and ability or achievement in factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired such information.  

(C) A legible photocopy of a document in support of the petition may be   submitted in lieu of the original. However, the original document shall be submitted if requested by the Director.  

 

(F) Multiple beneficiaries. More than one O-2 accompanying alien may be included on a petition if they are assisting the same O-1 alien for the same events or performances, during the same period of time, and in the same location.

(4) Petition for an O-2 accompanying alien. —  

 

(i) General. An O-2 accompanying alien provides essential support to an O-1 artist or athlete. Such aliens may not accompany O-1 aliens in the fields of science, business, or education. Although the O-2 alien must obtain his or her own classification, this classification does not entitle him or her to work separate and apart from the O-1 alien to whom he or she provides support. An O-2 alien must be petitioned for in conjunction with the services of the O-1 alien. 

 

(ii) Evidentiary criteria for qualifying as an O-2 accompanying alien.–  

 

(A) Alien accompanying an O-1 artist or athlete of extraordinary ability. To qualify as an O-2 accompanying alien, the alien must be coming to the United States to assist in the performance of the O-1 alien, be an integral part of the actual performance, and have critical skills and experience with the O-1 alien which are not of a general nature and which are not possessed by a U.S. worker. 

 

(B) Alien accompanying an O-1 alien of extraordinary achievement. To qualify as an O-2 alien accompanying an O-1 alien involved in a motion picture or television production, the alien must have skills and experience with the O-1 alien which are not of a general nature and which are critical based on a pre-existing longstanding working relationship or, with respect to the specific production, because significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production. 

 

(C) The evidence shall establish the current essentiality, critical skills, and experience of the O-2 alien with the O-1 alien and that the alien has substantial experience performing the critical skills and essential support services for the O-1 alien. In the case of a specific motion picture or television production, the evidence shall establish that significant production has taken place outside the United States, and will take place inside the United States, and that the continuing participation of the alien is essential to the successful completion of the production. 

 

(5) Consultation.– 

 

 (iv) Consultation requirements for an O-2 accompanying alien. Consultation with a labor organization with expertise in the skill area involved is required for an O-2 alien accompanying an O-1 alien of extraordinary ability. In the case of an O-2 alien seeking entry for a motion picture or television production, consultation with a labor organization and a management organization in the area of the alien’s ability is required. If an advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If the advisory opinion is favorable to the petitioner, the opinion provided by the labor and/or management organization should describe the alien’s essentiality to, and working relationship with, the O-1 artist or athlete and state whether there are available U.S. workers who can perform the support services. If the alien will accompany an O-1 alien involved in a motion picture or television production, the advisory opinion should address the alien’s skills and experience with the O-1 alien and whether the alien has a pre-existing longstanding working relationship with the O-1 alien, or whether significant production will take place in the United States and abroad and if the continuing participation of the alien is essential to the successful completion of the production. A consulting organization may also submit a letter of no objection in lieu of the above if it has no objection to the approval of the petition.  

 

(v) Organizations agreeing to provide advisory opinions. The Service will list in its Operations Instructions for O classification those peer groups, labor organizations, and/or management organizations which have agreed to provide advisory opinions to the Service and/or petitioners. The list will not be an exclusive or exhaustive list. The Service and petitioners may use other sources, such as publications, to identify appropriate peer groups, labor organizations, and management organizations. Additionally, the Service will list in its Operations Instructions those occupations or fields of endeavor where the nonexistence of an appropriate consulting entity has been verified. “

 

 

In summary, the O-2 package should include the following to warrant a favorable response from the USCIS:

 

 Documentation required:

 

Passports must be valid for SIX MONTHS after the expiration date of the visa.

List beneficiary information in alphabetical order and maintain this order with any addendum. The following set of Documents should make up the O-2 visa petition package:

  • Cover letter to the USCIS with check in the amount of $185 per petition. Letter to include: classification, beneficiary, petitioner, dates of employment, brief description of artist and intended activities, brief description of petitioner
  • If used, Form I-907 for Premium Processing Service (PPS) with separate check in the amount of $1,000 per petition
  • Labor union consultation letter(s)
  • Management organization consultation letter
  • USCIS Form I-129
  • USCIS Supplement to Form I-129 (only if more than one beneficiary)
  • USCIS Supplement to Form I-129, O and P Classifications
  • If applicable, any addendum to questions on Form I-129 (prior classifications, tour itinerary, etc.); each addendum should be on a separate page with petition identification details
  • Include a one-page statement about the support personnel and their importance to the production or tour. Attach brief biographies of the support personnel
  • Performance contracts
  • Letters of support from presenters
  • Authorization letter between artists/manager and petitioner (or Form G-28 if an attorney)
  • Artist press materials – keep it simple. Include biography, one-page press excerpts, list of awards and honors, one-page recent tour history, three or four full performance reviews. All materials must be in English or be accompanied by a certified translation.

2)     When filing an O-2 visa application, is it necessary to complete the Form I-129 for each Individual separately? If so does each I-129 from necessitate its own separate filing fee?

 

No, it is not necessary to complete the Form I-129 for each individual separately (See INA Section 214.2(o) I (F) above). One of the O-2 beneficiary’s name can be included in the main form and the details about the others can be included using the I-129 supplement. Accordingly, as there will be a single I-129 from for all the 15 O-2 beneficiaries, the filing fee is required to be paid per petition and not per beneficiary. Hence there will be a single filing fee of $185.

Though there is little that the USCIS details about the O-2 petition filing and documentation requirements other than INA section reproduced above, the following Public Notice of the U.S. Department of Homeland Security dated May 23, 2005 gives substantial clue to the fact that the filing fees of the USCIS are petition specific and no matter how many workers/ beneficiaries are named in a single petition the filing fee will be payable for a single petition. Though this notice refers to the filing fee for a H-2B visa, we can infer the same for the filing of the O-2 visa, as they are sufficiently similar:Press Office U.S. Department of Homeland Security, Public Notice, May 23, 2005, USCIS TO ACCEPT ADDITIONAL H-2B FILINGS FOR FY 2005 AND 2006

This fee is per petition, regardless of the number of workers benefiting from the petition.”

 

 

3)     Is there a process by which the approximately 15 support staff individuals can be included on one application, i.e. using the Form I-129 Attachment –I?

 

Yes, the INA Section 214.2(o) I, (F) clearly states in the following terms,

(F) Multiple beneficiaries. More than one O-2 accompanying alien may be included on a petition if they are assisting the same O-1 alien for the same events or performances, during the same period of time, and in the same location.

 

 

The above language clearly paves the way for the inclusion of more than one O-2 beneficiary in a single O-2 petition.  In addition, the filing instructions on the latest I-129 clearly state that:

 

Including more than one alien in a petition.

Multiple aliens who will seek admission in H-1C, H-2A, H-2B, H-3, P-1, P-2, P-3, O-2 or Q-1 classification may be included on the same petition provided:

They will all be employed for the same period of time:

They will all perform the same services, receive the same training or participate in the same international cultural exchange program and….

 

 

4)     Will we need individual Nonimmigrant Visa opinion letters /written consultations from the appropriate peer groups with expertise in each of the 15 support staff individual’s area of ability, i/e. will we need 30 different letters, 2 per support staff individual, 1 from the labor organization and 1 from a management organization?

 

Yes. The consultation requirements fro O-2 visa are again not exhaustively detailed out in the relevant INA section from the multiple beneficiary perspective. However from the various resources available it appears that in order to warrant a favorable response from the USCIS over your O-2 visa petition you should include 2 written consultations per support staff individual, 1 from the labor organization and 1 from a management organization for each of the 15 support individuals.

 

An extract from the Code of Federal Regulations, 59 FR 41818, FEDERAL REGISTER VOL. 59, No. 156 Rules and Regulations DEPARTMENT OF JUSTICE (DOJ) Immigration and Naturalization Service 8 CFR Part 214 [INS NO. 1454-93] RIN 1115-AC72 Temporary Alien Workers Seeking H-1B, O, and P Classifications Under the Immigration and Nationality Act Part II 59 FR 41818 DATE: Monday, August 15, 1994, sheds some light on the fact that the USCIS  requires the written consultation from the Labor and management organizations for each beneficiary:

 

“One commenter recommended that separate consultations should not be required for 0-2 nonimmigrant aliens. This comment will not be adopted since the Act requires that all petitions for 0-2 nonimmigrant aliens be accompanied by a consultation from a labor organization or a management organization with expertise in the specific field involved.”

 

 

 

Furthermore, the USCIS requires not only that each beneficiary be covered by a consultation (or waiver) but that different activities are covered by different unions. Thus, if an O-2 beneficiary will engage in two distinct activities, either emphasize that one of the activities is primary or obtain two consultations if need be. In other words, since beneficiaries of O-2 support petitions may engage in different activities covered by different unions, it is entirely possible that several consultations will be required in conjunction with a single petition.

 

 

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