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 & RobinsonNeil Fleischer, Partner, The Fleischer Law Firm, LLC

Overview

• We know she is an athlete, but is it a sport?• Nonimmigrant Visa Options

• 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: ATHLETESUp to a 5 year period for individual, annualincrements for teams/groups. COMPETE ACT

2006for amateurs and coaches

Petition requires P Supplement.

File either CSC or VSC. MLS/NHL goes to Vermont.

P Visas

Standard: International recognition. High level ofAchievement in the field as evidenced by degree

ofskill and recognition substantially above thatordinarily encountered, to the extent that such achievement is renowned, leading or well-known in more than onecountry.

P Visas

Criteria: Individuals/Teams – 2 of the 71)Participated in prior season with major U.S. sports

league2)Participated in international competition with national

team3)Participated in a prior season for a U.S. college in

intercollegiate play4)Letter from official of US sports league or governing

body of the sport5)Statement from member of sports media/expert 6) Individual or team is ranked in sports7)Significant honor or award

2

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; and3) Foreign league has significant

representation in minor league or major league drafts in U.S. affiliates.

(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

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 AbilityClassifications:

• 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 PersonnelO-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.

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 – Alien of Extraordinary Ability

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).

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

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!