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US Visa for Athletes: B-1, B-2, H-1B, H-2B, O-1 and P-1 Visas
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Money, fame and autograph hunters go hand in hand with top athletes who have practiced their sport all over the world. But they may find themselves out of their league when it comes to understanding the rules of the game and evaluating the appropriate visa for athletes and their immigration options to enter the U.S.

All good things in the world are not served on a silver platter and neither is the American dream of success, fame and wealth that can be earned through athletic skill and hard work. The key to winning the U.S. immigration game lies in working with the dream team of visa options for immigration success: The B, H, O, and P visa for athletes

O-1 Visa for Athletes

The O visa classification provides admission for persons with extraordinary ability in athletics, and their essential support personnel, to the United States. Only individuals qualify for the O-1 visa category; groups fall into different categories that will be discussed below. In order for a group or team to qualify for O-1 status each member of the group or team would be required to meet the extraordinary ability test. The O-1 visa is granted for a specific “event,” whether the event lasts for a weekend or a complete season.

O-1 visas are for the athletes themselves who, through consistent national or international acclaim, have demonstrated extraordinary abilities in athletics. There is no foreign residence requirement for the O visa class, but the athlete must have intent to stay temporarily in the U.S.

O-2 visas are for accompanying aliens who are coming temporarily to the United States solely to assist in the athletic performance of an O-1 alien for a specific event or performance.

Special Rule for Traded Professional O-1 Athletes

A professional athlete in the US in O-1 status who is traded from one team or organization to another is automatically entitled to work for 30 days after the trade or acquisition, provided a new I-129 is filed within that period. Once a new I-129 has been filed, the athlete will continue to be authorized to work until the new petition is adjudicated by the USCIS.

Dual Intent

The INA does not require an applicant for an O-1 visa to have a residence abroad which he or she does not intend to abandon, nor does it address the issue of temporariness of stay for O-1 non-immigrants.

Substituting Beneficiaries

Since O-1 petitions relate to specific individual athletes, a substitution of O-1 beneficiaries is not permitted. Each qualifying athlete must show that they meet the extraordinary standard, thus, a new petition will be required in the case of a change of beneficiary.

Period of Admission

An approved petition for an alien classified O-1 shall be valid for a period of time determined by USCIS to be necessary to accomplish the event or activity, not to exceed three years.

An approved petition for an alien classified O-2 shall be valid for a period of time determined to be necessary for the O-1 athlete to accomplish the event or activity, not to exceed three years.

Note: An extension of stay may be authorized in increments of up to one year for an O-1 or O-2 nonimmigrant to continue or complete the same event or activity for which he or she was admitted, plus an additional 10 days.

PUZZLER
Rodney is a professional tennis player/golfer/race car driver. What type of visa is suitable for him?

If he is coming to the U.S. to compete in a tournament or sporting event for which he will receive no salary or payment from a U.S. source, other than prize money, he will require a B-1 visa, or may travel without a visa if otherwise qualified for the Visa Waiver Program (VWP). If his proposed activities are not exactly as described, he will require an O or P visa.

P-1 Visa for Athletes:

The P-1 visa classification provides admission for athletes, athletic teams and their essential support personnel to the United States. These visas are approved for participation or performance at specific athletic competitions, individually or as part of a group or team, at an “international level.” International recognition is defined as “a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading or well-known in more than one country.” Individual athletes may be admitted for up to five years and a team for a period of up to six months.

Special Rule for Traded Professional P-1 Athletes

As with the O-1 visa, a professional P-1 athlete traded from one team or organization to another is automatically entitled to work for 30 days from trade or acquisition, provided a new I-129 is filed within that period. Once the I-129 is filed, the athlete will continue to be authorized to work until the new petition is adjudicated by the USCIS.

Dual Intent

INA imposes a residence abroad requirement, therefore, every P visa applicant must satisfy the consular officer that he or she has a residence abroad which he or she has no intention of abandoning. However, there are some exceptions for P visa holders, wherein they may seek P status when a labor certification or preference petition has been filed on their behalf.

Substituting Beneficiaries

Beneficiaries may be substituted at the consulate or port of entry (when visa exempt) on P-1 petitions for teams or other groups. It should be noted that all groups qualified for P status may benefit from the substitution procedures; however qualified support personnel cannot be substituted.

Period of Admission

The periods of validity for approved P petitions are as follows:

  • P-1 individual athlete - up to five years;

  • P-1 athletic team - period of time to be determined by USCIS to be necessary to complete the competition or event, not to exceed one year;

  • Essential support personnel to P-1 aliens - period of time to complete the event, activity, or performance for which the P-1 alien is admitted, not to exceed one year.

Note: An extension of stay for a P-1 individual athlete and his or her essential support personnel may be authorized for a period of up to five years for a total period of stay not to exceed ten years. An extension of stay may be authorized in increments of one year for P-l athletic teams

PUZZLER
I'm accompanying a professional golfer on tour to the United States. What type of visa do I require?

Provided you are customarily employed by the golfer and not just hired to accompany him or her for this particular tournament, the golfer is competing in tournaments for prize money only and you will continue to be paid by your employer, you will require a B-1 visa, or you may enter on the VWP.

If the professional golfer is applying for an O or P visa, you should apply for an O-2 or P-1 visa as essential personnel to accompany him or her.


The COMPETE Act

The “Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006” (COMPETE Act of 2006) expands the P-1 nonimmigrant visa classification to include certain athletes who were formerly admitted as H-2B non-immigrants.

The COMPETE Act, passed by Congress on December 6, 2006, is designed to allow certain amateur and semi-professional international athletes and coaches to qualify for temporary work visas, giving them an opportunity to participate and compete in sports in the United States

The following types of athletes and performers who seek admission for the purpose of performing in a competition or theatrical ice skating production fall under the P-1 nonimmigrant visa classification:

An individual who performs as an athlete, individually or as part of a group, at an internationally recognized level of performance.
   
A professional athlete employed by:
   
  (1) a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage, or
     
  (2) any minor league team that is affiliated with such an association.
     
Individual coaches or athletes performing with teams or franchises located in the United States that are part of an international league or association of 15 or more amateur sports teams if:
     
  (1) the foreign league is operating at the highest level of amateur performance in the relevant foreign country,
     
  (2) participation in that foreign league renders the players ineligible, whether on temporary or permanent basis, to earn a scholarship or participate in the sport at a college or university in the United States under the rules of the National Collegiate Athletic Association; and
     
  (3) where a significant number of players who play in the foreign leagues are drafted by major league or minor league affiliates of such sports leagues in the United States.
     
Amateur or professional ice skaters who perform, individually or as part of a group, in theatrical ice skating productions or tours.

The COMPETE Act makes P-1 visas available to athletes from minor league baseball and junior league hockey teams affiliated with a Major League Baseball or NHL teams, as well as many soccer players.

Some Athletes and their support staff will still face difficulties qualifying for the traditional “O” and “P” visa categories. They cannot produce the required evidence of constant national or international acclaim or cannot express that they are “prominent” or “extraordinary.” The alternatives to such instances are the B-1 and the B-2 visa.


B-1 Visa for Athletes:

Business related travel is generally permitted under a B-1 visitor visa. Specifically, in the applicable U.S. law the term "business" is limited to the contract negotiations, participation in scientific, educational, professional or business conventions, conferences or seminars and other legitimate activities of a commercial or professional nature.

B-1 visa holders may not receive a salary or other remuneration from a U.S. source, other than reimbursement of expenses incurred incidental to the visit. Professional athletes who do not qualify for any of the nonimmigrant visa classifications (typically the O or P visa classifications) may be permitted to participate in a tournament or sporting event through a B-1 visa. It is imperative, as with all B-1 visitors, that they receive no salary or payment other than prize money from U.S. sources. Athletes or team members may enter the United States as members of a foreign based team in order to compete with another sports team provided:

  • the foreign national athlete and foreign sports team are principally based in a foreign country;

  • the income of the foreign team and the players’ salaries are principally accrued in a foreign country; and

  • the foreign-based sports team is a member of an international sports league or the sporting event involved has an international dimension.
PUZZLER 1
I'm an amateur hockey player asked to join a professional U.S. team for a try out. What type of visa do I require?

In this situation you will qualify for a B-1 visa, provided you have signed only a memorandum of agreement with a National Hockey League parent team and not a professional contract, and you will receive only incidental expenses. When applying for a B-1 visa you will be required to furnish a copy of the memorandum of agreement and a letter from the NHL team giving the details of the tryouts. If the agreement is not available, a letter from the NHL team giving the details of the tryouts and stating that such a try out has been agreed must accompany the application.

PUZZLER 2
We are a professional football/soccer team traveling to the United States to play a match. What type of visa do we require?

Provided the income of the team and salary of the players is principally accrued in a foreign country, you will require B-1 visas, or you may enter on the VWP.

B-2 Visa for Athletes:

B-2 visa is generally available for visiting United States of America temporarily for pleasure. This includes visiting family, relatives, friends, or acquaintances, or for traveling throughout the United States. A visitor on B-2 visa is generally permitted to stay in the U.S. for up to six months and may not engage in productive labor or employment in the United States.

Amateur athletes are by definition not members of any of the professions associated with that activity. An amateur athlete is someone who normally performs without remuneration (other than an allotment for expenses). Therefore, an amateur who will not be paid for performances and who will perform in a social and/or charitable context or as a competitor in an athletic event is eligible for B-2 classification, even if the incidental expenses associated with the visit are reimbursed.

Note: Unlike the other visa categories discussed in this article, athletes who qualify for B-1 and B-2 visas need not wait for petition approval from USCIS before applying for their visas. They can apply directly with the U.S. embassy or consulate overseas for visa approval and issuance.


H-1B Visa for Athletes:

The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc…). With the addition of the O and P visa categories the H-1B program technically appears to be unavailable to aliens seeking entry to perform services included within those categories. However, in practice, petitioners in athletic fields may still be able to elect between the H and O categories, particularly with coaches and coaching staff.


H-2B Visa for Athletes:

The H-2B nonimmigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work. The work must be for a one-time need, seasonal, peak load or intermittent. A petition for an H-2B athlete must be accompanied by a tendered contract and a labor certification issued by the United States Department of Labor.

Professional leagues must adhere to the total number of H-2B positions granted to them by the Department of Labor. Injured players and players who voluntarily terminate their employment with a league may be replaced on existing petitions provided the injured or terminated employee returns to their native country. Such replacement will generally require the filing of a new petition. If an H-2B player is traded to another team, the player's H-2B labor certification slot remains with the trading team and the receiving team must have an available slot to receive the player. If a team does not use all its designated H-2B labor certification slots on an initial petition, any subsequent signings to fill designated slots will require a new petition.

Conclusion:

Athletes have a variety of visa options available to them, depending on their skills and the nature and duration of the athletic event involved. VisaPro’s experienced immigration attorneys consider all nonimmigrant options available for each client, reviewing the pros and cons of each with the employer and the athlete, so that they may make an informed decision. Once a nonimmigrant classification has been selected, the key to success becomes preparation, both in preparing the petition for submission to the USCIS or the visa application for submission to the embassy or consulate, and with the last step, when preparing the client for the visa interview.

Contact VisaPro if you have any questions regarding visas for Athletes, or need help in filing with the USCIS or Consulates. Our experienced attorneys will be happy to assist you.

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.


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