Whether an Amateur or
Superstar: An Athlete’s
Immigration Path Won’t be
Without Hurdles to Overcome
October 9, 2015 – OHIO AILA CLE
Presenter: Kenneth J. Robinson, NHLPA Certified Agent
and Partner Slowik & Robinson
Neil Fleischer, Partner, The Fleischer Law Firm, LLC
Overview
• We know she is an athlete, but is it a sport?
• Nonimmigrant Visa Options
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B-1, Professionals
B-2, for Amateurs
P-1
O-1
TN
F-1
H-2B
• Immigrant Visa Options
• EB1-1
• Schedule A, Group II
Vocabulary 101
• Athletes play sports. But what makes a sport a
sport?
• Archery vs. Darts
• Swimming vs. Pool
• Poker vs. Blackjack
It has been said if you can drink beer and smoke while
doing it, it isn’t sport, it is a game.
Vocabulary 102 – Sport defined as…
• An activity involving physical exertion and skill
which an individual or team competes against
others, usually for entertainment.
• Poker? They have a World Series. USCIS has found that
poker players are entitled to P-1s. But as artists,
entertainers or athletes?
• Chess?
• Should audience, prize money, number of competitors
matter?
ESPN governs? Fishing. Poker. Does the History Channel
showing us alien abductions make that history?
Gamers?
B-1 Professionals
• 9 FAM 41.31 N9.4 – Professional Athletes
• Prof. Athletes – no salary other than prize money for
participating.
• Athlete or team members seeking to enter the U.S. as
members of foreign-based team in order to compete with
another sports team provided:
• Athlete or team loci abroad;
• Income of foreign team and salary of players accrued
(principally) abroad; and
• Foreign-based sports team is a member of an int’l sports
league or the sporting activities have an international
dimension.
HOCKEY PLAYER – PTO with professional teams. Cannot
sign contract, only compensated for incidentals.
B-2 Amateurs
An amateur athlete or group of athletes competing in
an athletic event for which they will receive no
payment, other than incidental expenses, are eligible
for B-2 Visas as visitors for pleasure.
P Visas
P-1: ATHLETES
Up to a 5 year period for individual, annual
increments for teams/groups. COMPETE ACT 2006
for amateurs and coaches
Petition requires P Supplement.
File either CSC or VSC. MLS/NHL goes to Vermont.
P Visas
Standard:
International recognition. High level of
Achievement in the field as evidenced by 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.
P Visas
Criteria: Individuals/Teams – 2 of the 7
1) Participated in prior season with major U.S.
sports league
2) Participated in international competition with
national team
3) Participated in a prior season for a U.S. college in
intercollegiate play
4) Letter from official of US sports league or
governing body of the sport
5) Statement from member of sports media/expert
6) Individual or team is ranked in sports
7) Significant honor or award
P Visas
COMPETE ACT 2006 – Creating Opportunities for
Minor League Professionals, Entertainers, and
Teams through legal Entry Act (MAINEiacs)
Professional athlete employed by (A) 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 (B) a
minor league team affiliated with such an
association.
.
P Visas
Compete Act 2006:
Coach(es) or athlete(s) part of team in U.S. are
part of international league > 15 or more amateur
teams
1) Must be a top foreign amateur league;
2) Foreign league participation makes player
ineligible under NCAA rules; and
3) Foreign league has significant representation in
minor league or major league drafts in U.S.
affiliates.
P Visas
(1) Employer
(2) Sponsoring organization
(3) Agent – most often when athlete is self-employed
• Employer of the P beneficiary; or
• Representative of both the employer and beneficiary; or
• Foreign employer using U.S. agent to file petition.
Regs require a contract with U.S. sports league or team or a
contract in an individual sport “commensurate with
international recognition in the sport.”
Sports without contracts? Swimming? Volleyball? No
contracts for events.
P Visas
Duration: P-1 individual athlete - up to five years
(can extend);
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.
O Visa
O-1 Visas- Extraordinary Ability
Classifications:
• O-1A Science, Education, Business, or Athletics
(and fashion models)
• O-1B: Arts or Motion Picture/TV
- Arts (Artists, Musicians, VFX Artists, Graphic
Designer, Dancer, Stylists, Art Director, Creative
Director, Sound Engineer, etc.)
- Motion Picture/TV (Actors,
Writers, Cinematographer, Directors, Producers, etc.)extraordinary achievement
O-2 Visas- Essential Support Personnel
O-3 Visas- Dependents (No work authorization)
O-1 Visa Standards
• O-1A (Business, Education, Science,
Athletics): Extraordinary ability demonstrated by a
level of expertise indicating that the person is one of
the small percentage who have risen to the very top of
the field of endeavor.
• O-1B (Arts): “Distinction” – Extraordinary ability
demonstrated by a high level of achievement in the
field as evidenced by a degree of skill & recognition
substantially above that ordinarily encountered.
• O-1B (Film/TV): Extraordinary achievement
demonstrated by a very high level of accomplishment
evidenced by a degree of skill/recognition significantly
above that ordinarily encountered.
O-1 Visa Basics
• Filing Procedures:
- Forms I-129, I-129 O/P Supp, Support letter, Deal
Memo/Employment agreement/contract-signed by petitioner
- File with CSC or VSC
* Normal vs. Premium Processing
* Jurisdiction- Based on location of employment. If
multiple locations, based on location of petitioner.
- Peer Consultation/Advisory Opinions (depends on field)
• Basic Elements:
- Evidence (Meet O-1 criteria- 8 CFR 214.2(o))
- Petitioner (Employer or Agent/Manager)
- Event (upcoming projects/itinerary/contracts)
O-1 Alien of Extraordinary Ability
(Evidence/Criteria)
• Classifying the Foreign National
-Which standard will apply?
* In which field has/will the foreign National perform? If
multiple, look at credits and which are more impressive.
-Sciences, education, athletics, business: (higher
standard)
--Receipt of a MAJOR award (NOBEL PRIZE), OR, evidence of at least (3) of the following:
--Receipt of nationality or internationally recognized prizes or awards
--Membership in associations which require outstanding achievements
--Published material in prof. or major trade publications, newspapers or other major media
--Original scientific, scholarly, or business-related contributions of major significance
--Authorship of scholarly articles in professional journals or other major media
--High salary
--Participation on a panel, or, as a judge of the work of others
--Employment in a critical or essential capacity for organizations and establishments that
have a distinguished reputation
Petitioner- Employers vs. Agents
• Employer as Petitioner- Limited to
employment with petitioning employer
-.
• Agent as Employer (- Need deal memo/contract
detailing terms of representation, along with
projects/itinerary of events to show what you will be doing
- May add additional performances or engagements
during the validity period of the petition without filing an
amended petitions
- USCIS Memo HQ 70/6.2.18, HQ 70/6.2.19 (November 20, 2009)
* Employer may act as agent-obtain assignment of agent letter
O-1 ‘Event’
• O-1 may be approved for up to 3 years
- Petitions only approved for duration of event
- Must include contract/deal memo with basic
material terms of agreement
* Dates, project name(s), remuneration, job title,
location, etc.
-Include pre/post production, promotional events, etc.
* Include itinerary when possible
* Short gaps b/w events are okay as long as you
can string together the various events.
Advisory/Peer Opinion
• Consultation from field of appropriate
union/agency
-Check to see if Sport has Labor Union
- Consultations usually cost between $250-$500
- If no appropriate union exists, may use a peer consultation
• Check Union websites for guidelines
• What to do in event of Adverse Opinion? –
Submit anyway, opinion is not binding on USCIS
O-1 Tips
• Save everything! Anything that has your
name on it, you should save as evidence
• Extensions:
- 1 year extensions “in order to continue or complete the
same activities or events specified in the original
petition.”
* If new events or activities, you can ask for an
extension of 3 years-they may or may not give you the
whole time.
- Include any updated evidence since last petition-to show
you maintained your status and as evidence of EA
- If filing within 2 years of last advisory and same position,
use old advisory-they may RFE you for new one.
OTHER POSSIBILITIES
• F-1 student-athlete
• TN visa coach/teacher
EB2 – Schedule A, Group II
Exceptional Ability (EB-2) - Arts
• Matter of Masters – Golf fit within the arts as a
form of entertainment.
• Requires sponsorship (employer to petition)
• Many professional teams do not petition. Worried about
the next contract negotiation.
• Meet exceptional ability criteria of DOL (in PERM regs)
and USCIS.
EB-2 – Exceptional Ability
USCIS requires 2 of the following:
• proof that the applicant has received internationally
recognized prizes or awards for excellence in his field.
• proof of membership in international associations which
require outstanding achievement for membership.
• published material about the applicant in professional
publications.
• proof of the applicant’s participation on a panel, or
individually, as a judge of the work of others.
• proof of the applicant’s original scholarly or scientific
research of major significance.
• proof of authorship of published scientific or scholarly
articles in international journals.
EB-2 – Exceptional Ability
• LEGAL FEES: as specified by the Department of Labor, the
employer must—at a minimum—pay for the portion of the
legal costs associated with preparing the Labor Certification
form.
• PREVAILING WAGE DETERMINATION: the employer
must obtain a determination from the Department of Labor
demonstrating that a competitive salary is being offered for
the position.
• POSTING NOTICE: notice must be posted on the premises
of the employer and in any relevant in-house media services
for a specific period of time before the petition can be filed.
Alternatively, the posting should be given to a company
bargaining representative, if appropriate. This posting will
contain specific information about the applicant’s salary.
EB1-1 – Alien of Extraordinary Ability
Defined as . . .
A level of expertise indicating that the
individual is one of that small percentage who
have risen to the top of the field of endeavor.
The highest of standards within immigration law.
Must show that the athlete has SUSTAINED
NATIONAL or INTERNATIONAL acclaim and that
achievements have been recognized in the field of
expertise.
EB1-1 – Alien of Extraordinary Ability
Evidence: One-time achievement (major
international award), Olympic medal (relay?)
Or at least 3 out of the10 criteria.
receiving a lesser national or international prize or
award for excellence in field of endeavor 8 CFR
§204.5(h)(3):
• membership in associations requiring outstanding achievements of
their members;
• published material about the prospective immigrant’s work in
professional journals, trade publications or major media;
• participation as a judge of others in the field of expertise;
• original scientific, scholarly or artistic contributions of major
significance in the field of expertise;
• authorship of scholarly articles in the field, published in
professional journals or major media;
EB1-1 – Alien of Extraordinary Ability
Criteria continued. . .
• display of the prospective immigrant’s work at artistic
exhibitions or showcases in more than one country;
• performance in a lead, starring or critical role for
organizations with a distinguished reputation;
• commanding a high salary in the field of expertise; and
• commercial success in the performing arts.
***Any comparable evidence.
EB1-1 Issues on Adjudication
• Inconsistency is the constant
• Must demonstrate continuing work in field of
extraordinary ability (Lee v INS – player vs. coach)
• “Once it is established that the alien’s evidence is
sufficient to meet three of the criteria listed in 8
C.F.R. §204.5(h)(3), the alien must be deemed to
have extraordinary ability unless the INS sets
forth specific and substantiated reasons for its
finding that the alien, despite having satisfied the
criteria, does not meet the extraordinary ability
standard.” See Buletini v. INS, 860 F. Supp.
1222, 1234 (E.D. Mich. 1994).
EB1-1 – Alien of Extraordinary Ability
Kazarian – Adjudicator may not invent novel
requirements.
The issue was what constitutes “authorship of
scholarly articles in the field.” In the original
decision, Kazarian v. USCIS, the Ninth Circuit
agreed with the Appeals Administrative Office (AAO)
that “publication of scholarly articles is not
automatically evidence of sustained acclaim; we
must consider the research community’s reaction to
those articles.”
Ah hem… no. Try again!
EB1-1 – Alien of Extraordinary Ability
After the Ninth Circuit’s second decision on
Kazarian now holds that a petitioner claiming
extraordinary ability need not submit extraordinary
evidence to prove that (s)he is a person of
extraordinary ability. If one of the evidentiary
criteria requires a showing of scholarly publications,
the petitioner need not establish that the scholarly
publications in themselves are also extraordinary in
order to qualify as a person of extraordinary ability.
This is a flawed circular argument.
EB1-1 – Alien of Extraordinary Ability
After Kazarian and Buletini. . .
To have an extraordinary house, you
can use ordinary bricks.
But USCIS still requires extraordinary
bricks!