USCIS Issues Memorandum Explaining Its Policy on Agent-Petitioners in O and P Visa Cases

Often an O or P visa holder will be in the United States on a string of engagements, with multiple employers. In such a scenario, it has been most efficient for one company to serve as an agent for all of the remaining employers in the itinerary. In October 2009, USCIS issued a statement regarding such filings. Specifically, it announced that such filings by one employer would only be approved where the petitioner can establish that it is “in business” as an agent. This pronouncement, which was covered earlier in this blog, led to calls for elaboration from USCIS as to what "in business as an agent" actually meant, as the term is not defined in the O or P regulations.

USCIS has issued a policy memorandum (a public document that has USCIS officers and personnel as its intended audience) on this issue. Significantly, the memo has clarified that a petitioner will be deemed to be "in business as an agent," even if only for that specific visa petition. In other words, the petitioner does not need to demonstrate that it normally serves as an agent as a matter of course, outside the context of the petition. The memo also enumerates the kind of evidence that would satisfy the "in business as an agent" requirement. This evidence can include contracts, fee arrangements, or certifications from other employers listed in the itinerary that the petitioner has been authorized by them to serve as their agent.

The memorandum further cautions that petitioners for a P visa under the "U.S. sponsoring organization" category must not directly employ the P-1, P-2 or P-3 alien, but rather must

assume responsibility for the accuracy of the terms and conditions specified in the petition.

H-2B Visa Usage Dwindles at Ski Resorts; Other Avenues Possible

Premier ski resorts are decreasing their usage of the H-2B visa to hire international ski instructors. For instance, the Aspen Ski Company decided that it would no longer petition for any H-2B visas for its employees.

Two winters ago, SkiCo applied for about 400 H-2B visas and hired 120 ski instructors using the program. Last winter, it applied for 200 H-2B visas and used 109 for ski instructors.

This change is in large part due to increased scrutiny by the Department of Labor over employer obligations, especially with respect to the improper recoupment of visa costs and other business expenses by employers. The article cites the fact that ski instructors are now seeking to pursue the O-1 visa as an alternative to the H-2B. The standard for the O-1 visa - Extraordinary Ability - is set higher than the H-2B visa, under which seasonal workers could be hired even with minimal skills or training. As suggested by the article, a successful O-1 visa petition requires a thorough elaboration on all of the applicant's abilities and achievements.

“It’s all about competing and bragging about it, I guess,” she said.

Another avenue that coaches and instructors might pursue is the H-1B visa. The article ignores this visa as a possibility. In prior years, there was such a huge demand for H-1B visas that the approximately 65,000 visas made available annually under this category would expire within a day or two of their availability. However, the H-1B quota for Fiscal Year 2010 has not been reached, and so the H-1B visa remains a real possibility for coaches and instructors.

Miguel Angel Sano Successfully Receives a Visa Despite Fraud Concerns

Sports Illustrated reports that heralded Dominican shortstop Miguel Angel Sano has successfully received a visa to play for the Minnesota Twins. The Twins signed Sano to a club-record $3.15 million signing bonus, and his employment was contingent on his successful acquisition of a visa. Although unconfirmed in the article, Sano was almost certainly issued a visa in the P-1 category.

Normally the mere issuance of a P-1 visa does not make news, but it did in this case for two reasons. First, the issuance of a visa turned out to be a potentially expensive condition precedent to Sano's contract. Secondly, the issuance of the visa was in doubt due to commonplace fraud issues among prospective Dominican baseball players.

The Dominican Republic, particularly Sano's hometown in San Pedro de Macoris, has been the epicenter for age and identity fraud. Some players and their handlers cut years off their age in order to increase their market value.

Sano is not immune from suspicion regarding age and identity fraud. His 6'3, 190 pound frame and his advanced skills have called into question whether he is really 16 years old, as is his claim. Despite such concerns, Sano's visa was approved.

USCIS Clarifies O and P Visa Filing Procedures for Agents

O and P visas apply to non-immigrants with extraordinary ability in the sciences, arts, education, business or athletics, or in the motion picture and television field. O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Often, an O or P employee will work for multiple employers during his/her stay in the United States. The relevant regulations allow a bona fide agent to petition on behalf of such a person, as long as an itinerary listing all actual employers is provided. The Service has found that in some cases involving multiple employers for an O or P employee, the first employer will file on behalf of the individual and list the other employer(s) on the itinerary. CIS has clarified that only a company that is “in business” as an agent can do a filing on behalf of multiple employers. This policy statement creates uncertainty as to how a company can prove that it is "in business" as an agent to the satisfaction of a particular USCIS adjudication officer.

Recruiting Foreign Minor League Baseball Players

The number of foreign-born players in baseball's minor leagues has significantly increased according to the Wall Street Journal. While baseball has historically had strong representation at the major league level from various countries, in the past MLB teams had to develop their foreign talent at overseas training grounds in the Dominican Republic, Australia and elsewhere. Beginning in 2007, the "Creating Opportunities for Minor League Professionals, Entertainers and Teams Act" has changed the immigration landscape to allow for easier access to foreign talent at the minor league level. Specifically, the Act now allows minor league teams to recruit foreign players using the P-1 visa. Previously, minor league teams were restricted to use the H-2B visa, which has limited availability and is restricted to seasonal employment. In contrast, P-1 athletes can be employed in the United States for longer durations, and players affiliated with major league teams are all-but guaranteed the visa.

Recent changes in U.S. immigration law and growing competition in baseball for raw talent have allowed the minor-league farm system to flourish with imported players. It has been a home run for globalization, but bad news for U.S.-born players, who suddenly have much more competition. Across the minor and major leagues, the total number of foreign-born players is growing fast, to almost 3,500 of the 8,532 players under contract this summer, from 2,964 three years ago.

Many of the foreign players hail from Venezuela and the Dominican Republic. As noted above, one consequence is that U.S.-born players will face greater competition in making it to the major league level.

Consular Processing: A Learning Experience for the Sacramento Kings' Draft Pick Omri Casspi

The Sacramento Bee reports on the experience of Omri Casspi, the 23rd pick in the 2009 NBA Draft, in acquiring a P-1 visa sponsored by his newest employer, the Sacramento Kings.

Obtaining a visa to play in the United States remains a major irritant for the non-Americans in the league. Most of the time the NBA teams turn their attorneys loose on the immigration matter. But as Omri Casspi is learning - as did Vlade Divac and Peja Stojakovic and Hedo Turkoglu back in the day - the process is not hassle-free. Multiple time-consuming meetings at the U.S. Embassy remain common. In Casspi's case, the Kings rookie appeared for a 7:30 a.m., appointment on Tuesday and was required to return again Wednesday to finalize the paperwork. He sounded relieved to have the matter resolved. "Done, over," he said afterward. "I'm ready to go."

Casspi, while obscure in the United States, is well known in his native Israel as he starred for the country's best basketball team (Maccabi Tel Aviv) prior to joining the Kings. Even star basketball players are not immune from the vagaries of the U.S. Department of State's visa procedures.

H-2 Visa Shortages Affect Ski Resorts

First Tracks Online Ski Magazine reports that high demand for the number of H-2B visas has caused problems at ski resorts, which traditionally have relied on the visa to address seasonal hiring needs.

However, as the government’s fiscal year runs from October 1 through September 30th, the H-2b’s visa were capped under the quota earlier than opening day for many winter resorts.

The article recommends that employers needing to address staffing issues consider alternate visas, such as O-1, P-1, H-1B and E-3 visas. H-1B visas are for those coming to the U.S. to fill specialty occupation (i.e. professional) positions, while the E-3 is essentially a variant of the H-1B that is limited to Australian citizens. The O-1 and P-1 visas are for individuals with exceptional or extraordinary ability. Unfortunately, none of these alternate visas is especially useful for low-level employees who have neither a Bachelor's degree nor unique skills.

"New Visa Requirements Changing the Face of Boxing in Arizona" - Redux

The Arizona Star has picked up the article we blogged about last week, relating to P-1 visa requirements for boxers in Arizona. The Star has a broad readership, and as is apparent from the reader comments accompanying the article, that readership seems to be generally inclined against relaxed visa requirements. The following comment is just one example of what is a serious flaw in the country's current immigration debate - a lack of knowledge about immigration processing.

Yes this story is a complete lie and the ADS as usual does zero fact checking.
Immigrant visa applications currently cost $260 per individual application and $65 for issuance.

Too often rhetoric and vitriol prevail over fact and reasoning. As noted on the USCIS website, the filing fee for the I-129 (the form used to file a P-1 petition) is actually $320. Premium processing, which is a virtual necessity for speedy resolution of P-1 cases, is another $1000. Moreover, attorney's fees for the preparation of P-1 petitions typically run in the thousands of dollars simply because the amount of effort involved in procuring a P-1 visa greatly overshadows that which is required for a simple B-1/B-2 visitors visa.

Arizona Boxing Commission's P-1 Visa Requirement Undermines the Sport of Boxing in the State

As we reported earlier, the Arizona Boxing Commission explicitly requires acquisition of a P-1 visa before it will grant permission to an international boxer to fight within the state. According to a recent article in the Arizona-based La Estrella de Tucsón, this new requirement has been severely detrimental to the sport of boxing in the state.

The visa requirement happened at a bad time for the boxing world. Coupled with the country’s economic situation, it has lead to a decline in the frequency of fights.

“They hit us at the same time,” says Montaño, who estimates that the number of boxing matches in the state has dropped considerably – by about 70 percent.

Many of the professional boxers who compete in Arizona hail from Mexico. Since the P-1 visa requires an applying athlete to be "internationally recognized," it is often difficult for lesser-known boxers to receive approval. The standards for P-1 visas are not always easy to meet, especially when the applicant has not achieved a high degree of success, and the costs involved in acquiring such a visa are invariably much higher than a B-1/B-2 visitors visa. Even those boxers who successfully acquire a P-1 visa have been inconvenienced by the policy shift by the Arizona Boxing Commission. For instance, David "The Destroyer" López has voiced his concern that preparing for an opponent has become difficult because visa challenges often lead to last-minute changes on the fight card. Many Mexican boxers and their promoters are now seeking to hold their fights in venues outside of Arizona that would not explicitly condition the issuance of a boxing license on a P-1 visa.

Major League Soccer Player Gets Fast-Tracked P-1 Visa -- But at What Cost?

MLSnet.com reports that New England Revolution striker Edgaras Jankauskas was able to acquire P-1 status in a matter of only three days.

The speedy resolution occurred because Jankauskas already had the right to enter the country on a tourist visa, according to Revolution vice president of player personnel Michael Burns.

Jankauskas entered the United States on the tourist visa on June 28, filed a change of status under the USCIS's Premium Processing service on June 29, and was issued an approval by July 1.

Under Premium Processing, USCIS is required to issue a response to the filing of an eligible petition (such as for O-1 and P-1 status) within 15 days. This response can come in the form of a denial, approval or Request for Evidence (RFE), wherein the USCIS requires the production of additional documentation to support the petition. By regulation, the $1000 premium processing fee is to be refunded if the Service takes longer than the allotted 15 days.

While the idea of using a tourist visa to come to the United States and immediately changing to P-1 visa may seem expedient in the short-run, it could be problematic in the future. Oftentimes consulates will look askance upon the filing of a change of status so soon after entry using a tourist visa, as a quick filing can be seen as evidence of a lack of intent to be a bona fide B-1/B-2 nonimmigrant. Therefore such a strategy can lead to problems in acquiring visas at foreign consulates in the future.

Jamaican Netballers Denied Transit Visas for Passage Through the United States

According to the Jamaica Observer, three out of seven of Jamaica's selectees for the World Youth Netball Championship in the Cook Islands were denied visas by the U.S. Embassy. As a result, Jamaica's participation in the games is jeopardized.

The [Jamaica Netball Association] is hoping to take advantage of a special arrangement with Air Jamaica and fly the delegation to Los Angeles, before boarding another flight shortly after touchdown to New Zealand where they will then continue onto the nearby Cook Islands.

Apparently the duration of the intended layover in the U.S. was only about 12 hours. The appropriate visa for such a stop-over would be the C-1 visa, which like most nonimmigrant visas, requires proof of nonimmigrant intent. Visa applicants are presumed to have an immigrant intent (i.e. an intent to stay in the United States permanently) under Section 214(b) of the Immigration and Nationality Act. As a result, Section 214(b) is the most common reason for visa denials at US consulates and embassies across the world, and is the likely culprit in this case.

The troubling issue for Jamaican sports officials is that the athletes did not even intend to participate in any events in the United States. They required transit through the United States in this case only because of the complexities of travel from Jamaica to the remote Cook Islands.

The incident has caused some minor controversy in Jamaica, with some observers wondering why American consular officials did not take cognizance of the fact that the visa applicants, as national team members, were being vouched for by national authorities. According to one commentator, this is a sign of disrespect:

It is full time that our Ministry of Foreign Affairs take up this matter with the USA and have a protocol established whereby it is known that national representatives have the full backing of the nation

, and we resent our country being deprived of the services of these ambassadors because someone in the immigration department thinks he or she is going to run off into "heaven".

Kenyan Marathon Champion Unable to Defend His Title

Kenyan marathon runner Lamech Mokono was unable to compete in this year's Grandma’s Marathon in Duluth, MN because his P-1 visa application was denied for incompleteness. Mokono won the event last year while in the United States on a B-1 visa, but had opted this year for a P-1, which is more cumbersome to acquire. Interestingly, Mokono's prior success may have led to his missing the event this year. B-1 visas are normally available for amateur and even professional athletes who will compete in the United States without any salary or payment (other than prize money). It is possible that Mokono's past success led to some financial arrangement or remuneration in 2009 that made the P-1 visa the better option. Unfortunately, and as Mokono found out, there can often be snags on the road to actually getting the P-1.

Major League Soccer Player Cornell Glen Experiences P-1 Consular Delays

Cornell Glen, who plays striker for the San Jose Earthquakes of Major League Soccer (MLS) league, was recently forced to miss MLS matches versus the Los Angeles Galaxy and Sounders FC due to a delay in the consular processing of his P-1 visa in his home country of Trinidad and Tobago.

The Quakes striker was supposed to return to San Jose during the week of June 15, but he needed to get his application for a P-1 visa approved first. The petition was approved in the U.S., but when Glen showed up for his appointment, the staff at the embassy couldn't find his paperwork, forcing to reschedule another appointment.

Although the specifics are unclear, it is questionable whether the embassy actually lost his paperwork. More likely, his P-1 approval needed to be entered into the State Department's Petition Information Management Service (PIMS) database. PIMS is a centralized database accessible to all U.S. consular posts that provides full access to the details of all nonimmigrant visa petitions that have been approved by USCIS. Unfortunately, the current practice at USCIS is not to include a nonimmigrant visa approval (such as for an O-1 or P-1 petition) into the PIMS system automatically, unless the original petition filed with USCIS included a duplicate copy. Where an approval has not been entered into PIMS, consular posts are required to seek verification from the Kentucky Consular Center (KCC), which acts as the intermediary between the USCIS and the Department of State's consulates. Most probably the delay in Glen's visa stamping was due to PIMS verification delays. USCIS has given no good reason why all petition approvals are not automatically entered into PIMS, much to the chagrin of immigration attorneys and visa applicants alike:

"I was getting really frustrated with the visa," said Glen.

Cuban Boxer Erislandy Lara Misses Boxing Event Due to P-1 Visa Delay

An article on CBSsports.com highlights the plight of Cuban boxer Erislandy Lara, a former world amateur champion who will miss a Golden Boy Promotions card featuring middleweight prospect Daniel Jacobs (16-0, 14 KOs) against George Walton (20-3, 12 KOs) Friday night at Desert Diamond Casino in Tucson, Arizona. According to the article, Arizona is the only state that explicitly requires a P-1 visa before it will grant permission to an international boxer to fight within the state.