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

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 activities the beneficiary will undertake. The reason is that, unlike the P-1 visa category, the O-1 itinerary activities are flexible.

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 international athletes’ participation.

Conversely – O-1 petitions require the following:
You must explain 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 wide open under the engagement theory, and no regulations require the engagements to be specific to the skill set.
As we constantly like to remind USCIS, “USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those outlined 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 check the job title for the activities the beneficiary performs under the O-1.

Example: athletes who are transitioning to coaching.
This is an easy example because athletes rarely have coaching experience when they finish competing and want to coach. They often need 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 present 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.

For the petitioner, we prefer to state some general information about them that is no more than a paragraph unless another reason benefits us. The petitioner in an O-1 petition does not need to be featured significantly in the petition. We aim to clarify 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 only use the fourth option if 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 presents actual contracts if it benefits us. More factual details to objective structural components of the petition only provide more room for USCIS to attack accurate claims in the petition. 
All oral consents/deal memos must include basic information about services to be performed, wages, work hours, fringe benefits, and working conditions. 

Services to be performed

• Example: This petition includes a competing organization’s schedule with dates and locations for the next 12 months and will repeat for the next three 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, and date, for the length of this petition.
• Wages:The beneficiary will earn at least X% 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 could not find in the regulations, nor in the internal information we could find on the Internet, any requirements to show the actual wages or where the contemplated percentage of sponsorships and winnings could be better.

“USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those outlined 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 regular work hours. 

Such as work hours in this industry fluctuate, and 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, not a ring or cage. The beneficiary works for us but competes in mixed martial arts competitions negotiated and arranged by us. 
• We are one of the world’s most prestigious combat sports agencies, directly navigating and directing the careers of combat sports athletes.
• They negotiate and direct the beneficiary to participate in accurate and actual competitions 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. 
  

Any fringe benefits. Include any other forms of compensation or assistance that the beneficiary will receive. 

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

They are making it clear to USCIS which Petitioner Structure is in Place. 

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

Direct Employer:

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

Note* An itinerary is less critical when a direct employer and not an agent are involved. 

US Agent Performing the Function of an Employer:

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

US Agent Filing on Behalf of a Foreign Employer:

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

Note* It is best practice to present evidence of a foreign employer, whether a company or a person.

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
A 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: The 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 the date of O-1 approval and extending for at least 36 months after the 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 U.S. Agent Acting on Behalf of Foreign Employer
Foreign Employer
address
Phone:
(after this “Foreign Talent Agent”), 

U.S. Agent
Address:
Phone:
(after this “U.S. Visa Agent”), and

Beneficiary
Address

Phone:
(after this “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,
Whereas the U.S. Visa Agent is in the business of representing international sports and entertainment industry talent in the United States,
Whereas the Foreign Talent Agent agrees to use the U.S. Visa Agent to sponsor ONLY an I-129 visa application for the Talent. 

Petition Structure: U.S. Agent Filing on Behalf of Foreign Employer
Duration: From the date of O-1 approval and extending for at least 36 months after receiving work authorization in the United States under this petition. 
Services to be provided: 

• Competing “organization” schedules with dates and locations for the next 12 months are included with this petition and will repeat for the next three 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, and date for the length of this petition

Fringe Benefits:

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

Working Conditions: 

• This is a mixed martial arts management office, not a ring or cage. The beneficiary works for us but competes in mixed martial arts competitions negotiated and arranged by us. 
• We are one of the world’s most prestigious combat sports AGENCIES – directly navigating and directing the careers of athletes.
• The accurate and actual competitions that exist and that we have a storied history and plethora of past performances 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

The venue, City, State 10/1/2020-9/30/2023

The venue, City, State 3/8/2021-3/21/2021

The 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 sporadically if contracted at different venues; however, she is to be based at the above platforms. 

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 must be generally executed between agents and the strategic partners for these events.

Compensation: At least 80% 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 them in the regulations nor in the internal information we were able to find on the Internet, any requirements to show the actual wages or where contemplated percentage of sponsorships and winnings are not satisfactory.

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

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

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

Date:_________________________________

Foreign Talent Agent _______________________                    

Date:_____________________________________

Talent – __________________________    

Date:_____________________________________

U.S. Visa Agent – __________________________

U.S. 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 clarify 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 Petitioner employs the beneficiary, who negotiates and arranges for the beneficiary to participate in activities and locations organized by the Petitioner. 
2. The Petitioner is involved in the beneficiary industry and is directly navigating and negotiating the activities for the beneficiary. 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% of the 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 them in the regulations nor in the internal information we were able to find on the Internet, any requirements to show the actual 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 outlined in the regulations.” 11 Kazarian v. USCIS 596 f.3d 1115 at 1122

The Petitioner is a U.S. Agent Functioning As an Employer 

• Petitioner asserts that the contents of this petition are accurate to the best of their knowledge and belief.
• Petitioner agrees to accept service of process on behalf of the beneficiary.
• Petitioners and parties associated with this petition agree to secure reasonable travel for the beneficiary if the visa is terminated early.
• The 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, at this moment, 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 that “USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those outlined 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 three 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 to reasonable travel accommodations for the beneficiary to return to their home country if the agreement is cut short before the validity date.

Working Conditions: 

• This is a mixed martial arts management office, not a ring or cage. The beneficiary works for us but competes in mixed martial arts competitions negotiated and arranged by us. 
• We are one of the world’s most prestigious combat sports AGENCIES, directly navigating and directing athletes’ careers.
• The accurate and actual competitions that exist and that we have a storied history and plethora of past performances 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.