• International Athletes and Performers
  • August 14, 2013 | Author: Mark J. Curley
  • Law Firm: Curley Immigration Law, PC LLO - Omaha Office
  • International Athletes and Group Entertainers

     

    What do Dirk Nowitzki (Dallas Mavericks), Johan Santana (New York Mets), Alex Ovechkin (Washington Capitals), Vijay Singh (golf) and Roger Federer (tennis) all have in common?  They are all foreign-born professional athletes who have played their respective sports in the U.S. for many years.  And they have been paid handsomely for their performances. 

      

    According to Sports Illustrated, in 2008, the 20 highest-paid foreign athletes were paid a combined $581 million with David Beckham (Los Angeles Galaxy) at the top of the list with $48.2 million.  The list included nine soccer players, three baseball players, three Formula-1 racers, and two tennis players.  Not bad work if you can find it!

      

    So, as foreign-born people who are earning a living in the U.S., are they considered “foreign workers?”  These are not the people who generally come to mind when we hear about foreign workers, but they also need visas to enter and work in the U.S. just as other foreign-born workers in other occupations.  The only difference is the type of visa issued to them.

      

    The Immigration and Nationality Act of 1952, (INA) as amended, authorizes temporary visas to enter the U.S. for many different activities.  Each visa is generally referenced by the section of the INA which authorizes it.   For example, §101(a)(15)(B) of the INA authorizes B visas for visitors and §101(a)(15)(F) authorizes F visas for foreign students.  Not surprisingly, P visas for athletes and group entertainers are authorized by §101(a)(15)(P) of the INA.  Petitions for visas are filed with U.S. Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security, or at a U.S. consulate abroad.

      

    Visas for foreign athletes and entertainment groups are reserved for the best in their field.  P-1A visas are available for 1) persons who perform as athletes, individually or as part of a group or team, at “an internationally recognized level of performance”; 2) athletes or coaches who are part of an amateur team or franchise located in the U.S. as long as the team is part of an international league with 15 or more amateur teams and participating would make the athlete ineligible for U.S. scholarships under NCAA rules; and 3) a professional or amateur ice skater performing alone or as part of a group theatrical production.  INA §214(c)(4)(A)(i)   Individual entertainers are not eligible for P visas, but could qualify for an O visa.

    “Internationally recognized” is defined in the federal regulations as “having a high level of achievement in a field evidenced by 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.”  8 CFR §214.2(p)(3)  So, this visa is not for bench warmers.  To establish international recognition, an athlete or team must have a contract with a major U.S. sports team or league and provide two of the following:

    1. Evidence of participating to a significant degree with a major U.S. sports team in a prior season;
    1. Evidence of competing internationally with a national team;
    1. Evidence of participating to a significant degree with a U.S. college or university team in intercollegiate competition in a prior season;
    1. A written statement from an official of the governing body of the sports which describes how the athlete or team are recognized internationally;
    1. A written recommendation from a member of the sports media or an expert in the sport which describes how the athlete or team are recognized internationally;
    1. Evidence of an international individual or team ranking; or
    1.  Evidence of a significant award or honor in the sport.

    8 CFR §214.2(p)(4)(ii)(B)(2)

    In lieu of submitting the evidence listed above, an athlete can simply show that she or he is a “professional” athlete.  The difference between pros and amateurs is that pros are good enough to get paid, right?  Not so in the world of immigration.  Under federal immigration regulations, to be classified as a “professional athlete”, one must be employed by a team which is a member of a governing association of six or more professional teams with combined annual revenue of $10 million or more, or any minor league team affiliated with the association.  INA §204(i)(2)(A)   If the association only has five teams, but all other criteria are satisfied, then the athlete does not meet the definition of “professional athlete” under the INA and will need to submit two of the seven types of evidence listed above.

      

    An additional requirement for P visa petitions is an advisory opinion from a labor organization with expertise in the specific field of athletics or entertainment which describes the nature of the work and the athlete's qualifications.  8 CFR §214.2(p)(7)  Most labor organizations will issue the advisory opinion fairly quickly, but they may also charge a fee for this service.  The advisory opinion is not binding on the government, which means that a government employee could supplant the opinion of an expert in the field with his or her own amateur opinion.  If a petition is submitted without an advisory opinion, USCIS will send a copy of the petition to an appropriate labor organization and request an opinion.  If an opinion is not received within 5 days, or if an appropriate labor organization does not exist, USCIS will adjudicate the petition based on the evidence in the record.  This method is not advised if the visa is needed urgently as petitioners have no control over when USCIS sends the request for the advisory opinion.

      

    In general, a P visa can be issued for up to 5 years and can be renewed once.  In 2009, after pressure from sports leagues, USCIS issued a new policy memo which clarified that foreign athletes are not subject to a lifetime limit of ten years as long as they leave after ten years to get a new visa in their home countries.  Since many foreign athletes return to their home countries in the off-season, this policy change effectively means that there is no limit for professional athletes.

      

    In 2010, the Omaha Vipers, a new professional indoor soccer team, was established in Omaha to compete in the Major Indoor Soccer League (MISL), an international league of five teams.  Soccer is generally more popular around the world than in the U.S., especially in Latin American countries.  The Vipers were fortunate to recruit eight foreign soccer players plus an Argentine coach, all of whom needed P visas to compete.  One of the MISL teams, La Raza of Monterrey, Mexico, was inactive during the 2010-11 season due to Hurricane Alex which devastated the city of Monterrey with flood water last summer.  Several of the La Raza players were signed with the Omaha Vipers and traveled to Omaha last fall. 

      

    A foreign-born entertainer can also apply for a P-1B visa to perform in the U.S. if he or she “performs with or is an integral and essential part of the performance of an entertainment group” which has been recognized internationally for a sustained period of time.  Seventy-five percent of the entertainers must have been a part of the group for at least one year with the exception of circus personnel.  It is unclear why circus personnel are exempt from this rule, but they must have powerful lobbyists!

      

    The P-2 visa is for artists or entertainers who are participating in a cultural exchange program and the P-3 visa is for artists or entertainers who are participating in a culturally unique program that would further the understanding of his or her art form.  Dependents can travel to the U.S. with P-4 visas and remain in the U.S. for the same period of time as the principal applicant.

      

    Not all athletes and entertainers are paid for their services and some are paid by a source outside the U.S.  Mexican soccer teams, for example, can travel to the U.S. to complete against U.S. teams with B visitor visas since they are paid from a foreign source.  Venezuelan baseball players signed by a U.S. team, however, will need P visas since they will be working and getting paid in the U.S. 

      

    There are many other types of temporary visas which allow foreign-born people to live and work in the U.S.  You may come into contact with these people every day without knowing it.  The criteria for nonimmigrant visas are strictly defined by statute and regulation so visitors have to find the right “pigeon hole” to match their purpose for traveling to the U.S.  This system makes it difficult for many foreign-born people to visit or work in the U.S.  The P visa is only one of many pigeon holes and only athletes and entertainment groups will fit in it.