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Do I have to be a W-2 employee if I am in the U.S. on an O-1 visa?

By June 25, 2020May 20th, 2021Extraordinary Ability, Immigration

The O-1 visa nonimmigrant visa is for individuals who possesses extraordinary ability in certain fields. For more information about O-1 visa petitions, please click here.

For the O-1 visa, you can be sponsored by either an employer or by an agent.

O-1 worker sponsored by an employer

For example, if you are an interior designer and you received a full-time job offer from a U.S. employer, the U.S. employer would be the O-1 petitioner. If you would only be working for this one employer full-time, you would most likely be a W-2 employee. Even though the immigration regulations do not require that you are a W-2 employee, if you are only working for one employer full-time, it would be hard to make an argument that you are an independent contractor rather than a W—2 employee from a tax law point of view.

O-1 worker sponsored by an agent

On the other hand, if you are a model, actor, or other type of artist, you are most likely working with a professional agency that represents you. The immigration regulations allow agents to petition for an O-1 visa. This is a great option for workers who are traditionally self-employed or for workers who use agents to arrange short-term employment with numerous employers.

For example, if you are an actor and you were petitioned for an O-1 visa by an agent, you must have submitted an Agreement you signed with the agent to USCIS. This Agreement should indicate how you will be compensated. For example, it may state that you will get paid directly from the companies you will work for. This can be either a W-2 employment or you can also work as an independent contractor. The immigration regulations do not require that an O-1 worker is a W-2 employee and if you are working for multiple companies throughout the year, this can be either a W-2 employment or you can work as an independent contractor.

Please click here if you want to read more about the O-1 visa Consultation requirement.

Please click here if you want to find out whether you have to submit a portfolio with your O-1 visa petition.

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