I am an artist/creative with an agency-based O-1 visa. Who am I allowed to work for?
By Attorney Liz Profumo
This is a common question, but different attorneys have very different answers based on the wording of the applicable regulations.
Some attorneys say that you can work for any US employer in your field so long as you are working within your area of extraordinary ability, the work you’re doing is high level (not entry level), and your petitioner has no objection.
This is based on the language found at 8 CFR 214.2(o)(2)(iv)(D), which states, “In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O-1 caliber.”
However, other legal professionals, including many of the attorneys advising the major film studios, say that an O-1 visa holder is only allowed to work for the companies that provided job offer letters in the O-1 filing. This interpretation is based on the language at 8 CFR 214.2(o)(2)(iv)© which states: “If an O-1 or O-2 alien in the United States seeks to change employers, the new employer must file a petition and a request to extend the alien’s stay with the Service Center having jurisdiction over the new place of employment…If the O-1 or O-2 petition was filed by an agent, an amended petition must be filed with evidence relating to the new employer and a request for an extension of stay.” This interpretation generally results in one of two things: 1) The new employer will file a petition allowing the artist to work for their company; OR 2) the artist will lose out on the job.
Employers that adopt this conservative approach want to ensure they do not inadvertently hire anyone who may be working outside the scope of their O-1 visa. The documents that prove someone has O-1 status — the visa and I-94, do NOT state what the field of extraordinary ability is. That can only be ascertained by carefully looking at the petition that was filed with USCIS and many employers either don’t want to go through the hassle of reviewing the paperwork, OR aren’t familiar with visa petitions and don’t know what they’re looking for. What if someone has an O-1 visa to work as a painter, but now she’s auditioning to be an actor on a TV show? The acting work would clearly not be authorized by her O-1 for painting, and if an employer hired her to work as an actress, then they would be violating both employment and immigration laws. The biggest and savviest employers do not want to run that risk. Therefore having a new employer file a new petition eliminates any questions about whether the employment is within the scope of the approved agency-based O-1.
Please note that the ability to “add engagements” to and O-1 visa holders itinerary only extends to artists and entertainers and does NOT apply to O-1A visa holders with extraordinary ability in business, science, athletics, or education. O-1A visa holders must file amendments to their O-1 petitions in order to work for new employers that are not included in the original petition.
Whether an employer will accept an agency based O-1 depends on which interpretation of the regulations their company follows, and it is ultimately their choice.
If you have questions or would like to discuss your specific situation in detail, please don’t hesitate to reach out and schedule a free consultation by clicking this link: https://calendly.com/lizglobaltalent/gtilg-liz-profumo-follow-up