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O-2 Essential Support Personnel

Written by Henry J. Chang

General

An O-2 alien is defined at §101(a)(15)(O)(ii) of the Immigration and Nationality Act ("INA") as an alien who:

  1. seeks to enter the United States temporarily and solely for the purpose of accompanying and assisting in the artistic or athletic performance by an alien who is admitted under clause (i) for a specific event or events,

  2. is an integral part of such actual performance,

  3. (a) has critical skills and experience with such alien which are not of a general nature and which cannot be performed by other individuals, or (b) in the case of a motion picture or television production, has skills and experience with such alien which are not of a general nature and which are critical either 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, and

  4. has a foreign residence which the alien has no intention of abandoning

O-2 status is granted to aliens who are entering the United States to provide essential support to an O-1 alien in a specific athletic or artistic event. They may not accompany O-1 aliens in the fields of science, business, or education. An O-2 petition can only be filed in conjunction with the services of an O-1 alien. The O-2 alien must not work separate and apart from the principal O-1 alien.

An O-2 alien accompanying an O-1 alien of extraordinary ability in the arts or athletics must:

  1. be coming to the United States to assist in the performance of the O-1 alien;
  2. be an integral part of the actual performance; and
  3. 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.

The standard is higher for O-2 aliens working in the motion picture or television industry. An O-2 alien accompanying an O-1 alien of extraordinary achievement 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.

Consultations

As in the case of O-1 petitions, a consultation with an appropriate U.S. peer group (which could include a person or persons with expertise in the field), labor and/or management organization regarding the nature of the work to be done and the alien's qualifications is mandatory before a petition for an O-2 classification can be approved. 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 wit 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.

The Operations Instructions to the INA lists a non-exhaustive list of peer groups, labor organizations and management organizations which have agreed to provide advisory opinions. Certain fields of endeavor for which consulting entities do not exist are listed as well. While this list is non-exhaustive and other peer groups, labor organizations or management organizations may be acceptable, it is advisable to use this list as a starting point.

Petition Required

As stated above, a petition for an O-2 alien may only be filed in conjunction with an O-1 petition. However, O-2 aliens must be filed for on a separate petition from the O-1 alien. An 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. The petition may not be filed more than six months before the actual need for the alien's services.

A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf. A United States agent may be:

  1. the actual employer of the beneficiary;

  2. the representative of both the employer and the beneficiary; or

  3. a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

A petition filed by an agent is subject to the following conditions:

  1. An agent performing the function of an employer must provide the contractual agreement between the agent and the beneficiary which specifies the wage offered and the other terms and conditions of employment of the beneficiary.

  2. A person or company in business as an agent may file the petition involving multiple employers as the representative of both the employers and the beneficiary, if the supporting documentation includes a complete itinerary of the event or events. The itinerary must specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.

  3. A contract between the employers and the beneficiary is required. However, an agent performing the function of an employer must provide a copy of the contract between itself and the alien but will not be required to produce contracts between its clients and the alien.

  4. A foreign employer who, through a United States agent, files a petition for an O-2 nonimmigrant alien is responsible for complying with all of the applicable employer sanctions.

Effect of Labor Disputes

The O-2 category is also subject to "strike breaker" provisions. Therefore, if the secretary of labor certifies that a strike, labor dispute involving a work stoppage is in progress in the alien's occupation at the place where the alien will be employed, and that the employment of the alien would adversely affect the wages and working conditions of U.S. citizens and lawful permanent residents, the petition will be denied .

Duration of Status

An approved petition for an alien classified under section 101(a)(15)(O)(ii) of the Act shall be valid for a period of time determined to be necessary to assist the O-1 alien to accomplish the event or activity, not to exceed 3 years. "Event" is defined as including an activity such as a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement.

An O-2 alien may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may only engage in employment during the validity period of the petition.

Employer Liability to Pay for Return Transportation in the Event of Early Termination

Should the employment of an alien who entered under O-2 status terminate, for reasons other than voluntary resignation, the employer and the petitioner (if different) are jointly and severally liable for the reasonable cost of return transportation for the alien to his or her last place of residence . This does not apply to an alien who entered under another category and subsequently adjusted status to O-2.

Dual Intent

Although the doctrine of dual intent appears to be recognized for O-1 aliens and their dependents, this doctrine does not extend to O-2 essential support personnel. According to INA §101(a)(15)(O)(ii), O-2 aliens must maintain a foreign residence that they have no intention of abandoning. This statutory requirement is inconsistent with the doctrine of dual intent.

Dependents of O-2 Aliens

The spouse and unmarried minor children of the O-2 alien are entitled to O-3 nonimmigrant classification, subject to the same period of admission and limitations as the alien beneficiary, if they are accompanying or following to join the alien beneficiary in the United States. Neither the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization.


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