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Building and Following Your Itinerary on Your O1B Visa
Illustration by Niege Borges.
A lot of you, O1 visa applicants or O1 visa holders, have been asking about the itinerary in the past few weeks. I wanted to dedicate a post to this as I know it is the part of the application that generates more anxiety and people are more unclear about.
Building your itinerary for your O1 visa application
As you all know, one of the requirements when you apply for the O1 visa is the itinerary of activity. Your sponsor/petitioner needs to include a list of work engagements/productions/events that you will be having a lead role in.
If you apply with a sponsor/petitioner as your employer, this is usually really easy as all your sponsor/petitioner will need to include is an estimated month-to-month log of the projects and duties you will have for the requested period of time.
If you apply with a sponsor/petitioner as your agent, this task becomes a bit more complex. Your sponsor/petitioner will need to present deal memos from different employers that allow your agent to act in their name for your application. These documents will need to describe the proposed position, duties, times periods, and salary you will receive for each of the employers. In order to apply with sponsor/petitioner as your agent, applicants need to present a minimum of 2 employers that are based in the US or 1 employer if the company is located abroad. This last option is only applicable if the projects and events take place in the United States.
There is a misconception that the O1 visa is valid for 3 years. In fact, the O1 has a validity of maximum of 3 years, with an extension of an extra year with the same sponsor/petitioner, as long as you can present work engagement for that period of time.
Most artists and creatives applying with a sponsor/petitioner as their agent, find challenges when putting together 3 years worth of work as many companies do not plan ahead for that long or usually do contracts of 6 months to a year. Under our current circumstances, companies and organizations also feel hesitant to sign documents that project work in 3 year time as a lot of them don’t know how this COVID-19 crisis is going to affect their businesses.
Most attorneys and preparers recommend to use strategies like the following:
Ask your future employers to sign the deal memos for 3 years in a part-time basis including an average of projects/events/productions per season, quarter, or semester. This usually eases the anxiety of the employer offering them to be more open and flexible as that don’t have to offer specific dates.
Ask your future employers to sign the deal memos including projects/events/productions that they do annually. This applies to galleries that have yearly salons, theaters or venues that present yearly festivals, or fashion design brands that participate in yearly fairs/events like Fashion Week.
If the company is unsure if they will be in business in the next year, just ask them to sign for the estimated time they feel they will still be in business.
The itinerary ends up being like a puzzle, you need to create a picture with different pieces, filling the 3 years with projects/events/productions. It’s not an easy task, and you will find employers who are more flexible and willing to help you than others. The key is to build an itinerary as close to the reality of your field and career as possible so you later don’t encounter challenges to complete it.
Be reminded that with the reinforcement of the regulation in 2019 by the Trump administration, the distinction of the projects/events/productions including in your itinerary has become essential for the success of your application. USCIS is following the criteria literally when it comes to the production and organizations categories and will not accept any future productions and events or critical role in organizations that can’t prove to be distinguished. This is probably one of the most important changes that USCIS did last year, and you need to be really mindful of this if you don’t want to encounter problems with your application.
The best way to determine if an employer has a “distinguished reputation” is googling it and finding out if they have articles online written about them in established publications. You can also use the distinction of the clients or brands they work with to prove that they are “distinguished” and also use the distinction of the events/productions that they have done in the past.
Following your itinerary, once your O1 visa is approved
O1 visa holders have the obligation to complete the itineraries in the way they were presented.
If you applied with a sponsor/petitioner as your employer, any substantial changes in your position, duties, or salary will require an amendment of your petition. This means that your sponsor/petitioner employer will need to fill a new application with an updated itinerary. You will be allowed to continue working for your employer until you receive an answer from USCIS.
If you apply with a sponsor/petitioner as your agent, you have more flexibility when it comes to changes. As attorneys differ in opinion when it comes to sending amendments for O1 visa application that used a sponsor/petitioner as your agent, most of them agree an amendment is not necessary:
If a project/event/production in your itinerary gets reschedule
If a project/event/production in your itinerary gets canceled but you and your agent replace it for a project/event/production with a similar position, salary, duties
If a project/event/production in your itinerary is substituted by you and your agent for a project/event/production that has a higher distinction
If an additional a project/event/production is included in your itinerary
Please be advised that under our current exceptional circumstances, substantial changes in your itinerary most likely will not be under scrutiny. USCIS is looking to protect and provide provisions for all immigrant and nonimmigrant workers under the COVID-19 crisis.
Misconceptions regarding the O1 visa itinerary of activity with the sponsor/petitioner agent
“When you apply with a sponsor/petitioner agent you can work as a freelancer”
This is probably one of the biggest and most dangerous misconceptions regarding the O1 visa. The fact that the O1 visa allows you to be paid and pay taxes as an independent contractor doesn’t mean you can manage your own work engagements. Any changes and additions to your itinerary need to be approved and monitored by your sponsor/petitioner agent. Please be really considerate of this requirement to avoid any violations of your status.
“Once my visa is approved, I don’t need to complete my itinerary”
This is another dangerous and huge misconception regarding the O1 visa. As USCIS understands the nature of the arts, creative, and film industry, and will also consider exceptional circumstances like the ones we are dealing with, the proposed itinerary has to be completed the way it was presented whenever possible. Although attorneys differ in the way these changes need to be notified and reported to USCIS, it is essential that you always work closely with your agent in evaluating these changes and additions to be sure you comply with the immigration law. Failing in doing so could give you problems during renewals and applications for green cards, even getting your visa revoked and other penalizations.
Please remember the information and opinions found in this group are not intended to replace legal advice. You should always consult with an attorney when dealing with O1 visa applications.
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