No Role for the Straw Man

On October 7, 2009, USCIS issued a Fact Sheet clarifying the circumstances under which an agent can file a visa petition under the O-1 extraordinary ability and P-1 athlete and entertainer categories. Of particular interest is how the agency’s newest interpretation of the regulations will impact O-1 workers.

The O-1 visa regulations, which are found at 8 C.F.R. § 214.2(o), allow a U.S. agent to file an O-1 petition for a worker who traditionally engages in work that is considered self-employment and then arrange numerous jobs for that worker. Similarly, a U.S. agent can act on behalf of a foreign employer in order to sponsor an O-1 worker to work on the foreign employer’s behalf in the United States.

According to the regulations, an agent can be the “worker’s actual employer, the representative of the employer and worker, or a person or entity authorized by the employer to act for or in place of the employer.” Further guidance as to exactly what the term “agent” means in the O-1 context is conspicuously lacking. This lack of guidance has resulted in a broad interpretation of the term to include the “straw man” agent whose sole purpose is to sign off on the petition. Thus, the saxophonist’s drummer or the painter’s roommate suddenly becomes agents.

The benefit of the straw man agent is that under the guise of being represented by an agent, the O-1 worker has greater opportunities to freelance, which is otherwise not permitted. As we have seen, petitions involving a straw man agent often make no effort made to hide the ball from USCIS. We recently saw a petition in which the “agent” noted in bold at the top of his contract with the worker that he was acting as agent “for immigration purposes only.” USCIS approved the petition.

It is now clear that an agent must be “in business as an agent” in order file a visa petition. USCIS cites the example of the worker coming to the U.S. to give several performances, each for a different U.S. employer. In the past, one of the employers would sign off on the visa petition and act as “agent” for the others. As the Fact Sheet makes clear, this will no longer fly. Going forward either each employer will have to file a separate petition or the employers can arrange the performances through a single professional agent.

The Fact Sheet brings much needed clarification to what the term “agent” means in the O-1 and P-1 visa context. While it still leaves much to the imagination, one thing is clear: The straw man no longer has a role in the O-1 show.