Labor Consultation
In a requirement unique to the O and P classifications, petitioners ordinarily must obtain an advisory opinion from an appropriate labor organization to include with the filing of either a principal or a support petition with USCIS (see 8 CFR § 214.2(o)(5)(i)(F)). The union most often will respond with a simple letter of no objection.
To obtain a consultation, prepare everything as you would for filing with USCIS but before filing, air courier a full copy of the materials (if the union won’t accept a fax or scan via email) - or at least enough materials to make the case - to the appropriate union(s) (except as otherwise indicated on the Labor Consultation Contact List). Be sure to request a fax or email response if time is short. The union will reply directly to you. The turnaround time for union responses varies from 2 days to more than 2 weeks.
The labor consultation must come from the national headquarters of a union with appropriate expertise, meaning that the union generally occupies the field of endeavor or a related one, even if it is not a collective bargaining representative in the particular field. The consultation requirement is waived for purely administrative management positions, such as executive directors, and business administrators, financial officers, business representatives, and others with no direct input into the creative aspects of the production or performance, and also in cases where there is no appropriate union, as with interpreters, music librarians and even artistic administrators. To support a waiver request on grounds of lack of an appropriate labor organization, supply a statement by the petitioner, or someone else with knowledge of the field, to the effect that from personal knowledge based on long experience in the field, there is no relevant labor organization. It is best first to check with the unions to verify that they do not “cover” a particular position.
Actors' Equity strongly prefers that those who can participate in its P-2 reciprocal exchange programs with British Equity, Canadian Actors' Equity Association and the Media, Entertainment & Arts Alliance (for beneficiaries from Australia and New Zealand), do so.
A union's opinion, positive or negative, is merely advisory and not binding on USCIS. Consultations are supposed to address the nature of the work to be done and the beneficiary's qualifications to do that work, nothing more. Occasionally, though, unions will object on grounds of low wages, the availability of U.S. workers to do the job or simply that the beneficiary fails to meet the applicable standards. Do not panic when faced with a union objection. Carefully review the letter and, if possible, find an additional expert to support your case and rebut the union's position, then file the petition. If the alien in fact meets the applicable standards, chances are good that USCIS will approve the petition despite the union's objections.
It is important for petitioners to understand that petition approvals, with or without a no objection letter or positive advisory opinion, in no way relieve or obviate any obligations a petitioner may have incurred with respect to a union in the context of collective bargaining relationship or otherwise by contract. Only the parties to those relationships can alter them, by mutual consent. In other words, USCIS approval of a petition is irrelevant to a petitioner's other obligations to a union.
Here are some considerations common to more than one consultation category:
- Contact the national office of the union, not the local, and do not submit a peer organization letter in lieu of a labor union letter, if an appropriate labor organization exists;
- Send your request to the union via air courier, or online/by email if permitted;
- Avoid using the union’s fax machine and avoid supplying the union with cumulative material;
- If you seek a consultation waiver, say so in your cover letter to USCIS, explain why, and write "waiver requested" in the consultation section of the I-129 O/P Supplement;
- USCIS requires not only that each beneficiary be covered by a consultation (or waiver) but that different activities be covered by different unions. Thus, if an O-1B beneficiary will engage in two distinct activities, emphasize that one activity is primary or obtain two consultations. More to the point, beneficiaries of O-2 and P support petitions may engage in different activities covered by different unions, so it is entirely possible that several consultations will be required in conjunction with a single petition;
- Abide by the above rule even if one union purports to provide the consultation for all beneficiaries;
IATSE, AGVA, Actors' Equity, AFM, AGMA, and AMPTP charge $250 per consultation. Many labor unions offer expedited service for an additional fee -- please refer to the Labor Consultation Contact List for details, rates, and contact information. The petitioner must pay the fee when requesting the consultation. There are exceptions to the charges, and restrictions on how they are payable, so it is best to contact the union in advance to confirm the amount and method of payment. Note the charge is per petition, so O-2 or P support petitions will also require a fee. Note that USCIS provides this list of consultation groups that provide labor and peer letters, but it may or may not be up to date.
Please see the section titled O-1B Consultation Procedures for further information specific to O-1B petitions.