Status Issues Beleaguer NHL Defenseman

In an article on the Anaheim Ducks' efforts to revitalize their season after a dismal 0-3 start to their NHL season, the following passage appears:

Defenseman Andreas Lilja, signed as a free agent, will have to leave the United States to take care of paperwork related to his visa and is unlikely to play this weekend, a team spokesman said. The 35-year-old Swede's work visa expired on Sunday, and he needs new documentation before he can play. However, he has been skating with the Ducks and should be ready to play as soon as the red tape is cut.

Apparently, Lilja's status has expired, and he would require a new visa (mostly likely P-1) to return to the United States in status. The above snippet indirectly highlights two important issues. First, it demonstrates that an extension of status petition cannot usually be filed with USCIS where a nonimmigrant's status has expired. This is likely the reason why Lilja was required to leave the country and return again with a new visa in his passport. Secondly, the article implies that, for Lilja, "skating with the Ducks" is permissible but appearing in games is not. In actuality, if his status has expired, any sort of employment activity with the Ducks would be impermissible, whether it involve mere "practice" or actual game play. In fact, even being in the US would be a technical violation as there is no so-called "grace period" for those in expired P-1 status. While we hardly expect ICE to conduct raids against famous professional athletes (indigent farm and industrial workers being their preferred targets), it may have been more prudent for the Ducks to be more circumspect on the matter of Lilja's status.

USCIS Summaries on O-1 and P-1A Visas

The USCIS has updated its website with a useful summary of the requirements for obtaining an O-1 visa, which is used for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics. The website also contains a similar summary for the P-1A visa, which can be used for Internationally Recognized Athletes. This visa is available to athletes coming to the United States to participate in team events. The athlete must have achieved significant international recognition in the sport. This visa is commonly used by major league sports conglomerates, such as the NBA, MLB, NFL, NHL and MLS, to import foreign players. Higher profile athletes can also avail of the O-1 visa, while average professional athletes in the major leagues can get by with a P-1A. The O-1 visa is favorable as its requirements are similar to those of the EB-1A, which is a green card category that generally involves a much shorter waiting time relative to other employment-based visa categories.

USCIS Provides Clarifying Guidance on O petition Validity Period

O-1 visas allow athletes of high caliber to come to the US to perform or participate in specific event(s). The O regulations require submission of a specific itinerary of intended activities while in the US.

There has been a troubling trend of short-dated O approvals where there is some gap in between particular events.

In certain cases where there has been a significant “gap” between events, adjudicators have sometimes concluded that a single petition was filed for separate events rather than a continuous event. In such cases, the petition may have been approved only for a validity period equal to the length of time needed to accomplish what appeared to be the initial specific event rather than the continuous event as represented by the petition.

In issuing this type of shortened approval, adjudicators lose sight of the fact that in many cases, there may be gaps in between specific events that are nevertheless unbroken links in a continuous chain of events relating to the athlete's activities in the US. For instance, there might be travel requirements, a hiatus in the season, injuries, or any number of other reasons for delays in between events.

To its credit, USCIS has issued a memorandum that revises the USCIS AFM (Adjudicator's Field Memorandum) to instruct adjudicators to evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an “event” for purposes of the validity period.

Now Available: O-1 Visas for Competitive Eating

Many will recognize Takeru Kobayashi as the six-time winner of the annual Nathan's hot-dog eating competition held every July 4th in Coney Island, Brooklyn, New York. Despite his diminutive frame, Kobayashi has marveled spectators and competitors alike with his eating prowess. That prowess has earned him an O-1 visa.

Kobayashi was recently in the news for storming the stage at this year's competition, after he was barred from participation. He was barred for refusing to sign a contract with a professional league called "Major League Eating,"which sanctioned the event. An MLE contract would have restricted Kobayashi's earning from outside sources such as sponsorships.

MLE is no longer a joke. In the last year, it has organized 85 contests with nearly $600,000 in prizes. It has secured sponsorships from Coca-Cola, Harrah's, Netflix, Orbitz, Pizza Hut, Smirnoff, and Waffle House. This year, it recruited Pepto-Bismol, Old Navy, and Heinz to sponsor the hot-dog contest. In addition to MLE's TV programming for Fox, SpikeTV, and other networks, ESPN now pays the league to broadcast the hot-dog contest, with 40,000 spectators on hand and another 1.5 million households watching.

The most interesting part of the story from the immigration perspective is that Kobayashi was able to secure an O-1 visa on the basis of his "extraordinary ability" to eat. He was granted the visa despite the fact that he has not joined the major league in the sport (Major League Eating). One wonders if the P-1 visa would also be available to other contestants in the MLE. Most likely, foreign participants in eating contests would utilize a tourist visa, which is allowed for amateur events involving per-event prize winnings. However, if Major League Eating comes to feature a string of professional events year-round, visas of a longer duration might be attainable, even for competitors of lesser renown than Kobayashi.

British Boxer Amir Khan Faces P-1 Difficulties

An important lesson can be learned from British boxing phenom Amir Khan's attempt to secure P-1 visa status in time for his recent WBA junior welterweight title defense against Paulie Malignaggi.

Given what we know of the way these matters are handled under the Patriot Act, the wonder shouldn’t be that it took Amir Khan two weeks to get back into the country, but that he didn’t wind up in Guantanamo instead of at the Madison Square Garden Theatre this weekend.

Khan, a British subject also holding Pakistani citizenship, entered the United States on a visitors visa to begin training for the fight. However, in order to compete in the boxing match against Malignaggi, he needed to acquire P-1 status. The P-1 petition filed on his behalf was approved under consular processing, which meant that he would have to leave the country, acquire a P-1 visa stamp, and re-enter the US.

Khan's promoters thought that he would be able to secure a P-1 visa in a matter of only 2 days at the U.S. consulate in Vancouver, but they were bitterly disappointed. The visa application was delayed for unspecified security reasons, and was approved only after a couple of weeks. Fortunately for Khan, his entire training staff moved to Vancouver to enable him to train for the fight there, while his visa was being processed.

Even after receiving the visa, Khan faced an additional delay of a couple of hours at the port-of-entry while attempting to re-enter the United States.

A number of factors may have contributed to Khan's difficulties:

• Around this time, the U.S. security apparatus was abuzz due to Faisal Shahzad's attempted car bombing in Times Square;
• Khan has a common name that could have triggered red flags due to the misdeeds of other(s) with the same name;
• He has a checkered driving record in Britain, having hit a bicyclist and a pedestrian in separate incidents.
  

The main lesson to be learned is that visa processing delays are to be expected; one must schedule itineraries with the possibility of delays in mind.

Khan went on to win the fight, making a commendable US debut and keeping the WBA super lightweight title.

A Criminal History Can Hinder an Athlete's Plans to Compete in the United States

The New York Red Bulls have encountered some difficulty in signing British striker Luke Rodgers, whose visa application has been delayed due to three arrests since 2002, including once for assault.

Under 9 FAM 40.21(a), an intending nonimmigrant may not be issued a visa if that person has a conviction for a crime involving moral turpitude. "Moral turpitude" exists in crimes like fraud, larceny, and intent to harm persons or things, among other crimes. There are exceptions for political offenses and crimes committed under the age of 18. There are also certain waivers which might overcome a finding of inadmissibility for lack of good moral character.

In Rodgers's case, it is unclear whether the visa delay involves an actual issue of moral turpitude (necessitating a waiver), or just extra police clearance requested by the consulate.

Summary on Visa Options for International Boxers

The 8CN Boxing website contains a useful summary of the various visa options available to international boxers seeking to travel to the United States for various purposes. As one might expect, the US has been a prime destination for top boxers.

"Foreign-born prospects Ji-Hoon Kim, Ruslan Provodnikov, and Maxim Vlasov all scored important wins on the February 12, 2010 ESPN Friday Night Fights card at the Pechanga Resort & Casino in Temecula, California; the Germany-based, Ukrainian-born WBO Junior Middleweight Champion Sergiy Dzinziruk signed a joint promotional agreement with Banner Promotions and Gary Shaw Productions; Britain’s Amir Khan signed a co-promotional agreement with Golden Boy Promotions with an eye towards his U.S. debut; the Russian-born Matvey Korobov continued his march towards middleweight contention with a first round knockout win at the Las Vegas Hilton on February 13, 2010 on the undercard of Filipino Nonito Donaire’s third round destruction of Mexican contender Manuel Vargas; and Roy Jones, Jr.’s Square Ring Promotions signed undefeated Ukrainian-born light heavyweight prospect Ismayl (The Black Russian) Sillakh, 11-0 (10 KOs), to name a few examples. A common thread connects each of these boxers, and a myriad of others: each of them requires a visa to train, live, and/or box in the United States."
8CN Boxing - Immigration Issues in Boxing

As always, the primary factor in determining which visa avenue to choose is: what does the athlete seek to do and accomplish in the United States? Other important factors are the athlete's country of citizenship, how long he/she would stay in the US, and what level of skill and accomplishment the athlete has achieved.

USCIS Explains its Current Policy Vis-a-vis United States Employers; Self-petitions by Athletes and Coaches Rendered Questionable

Foreign athletes and coaches seeking to provide services for multiple teams/venues in the United States can have their O or P visas filed through agencies based in the US. In the past, a foreign athlete or coach seeking to avoid going through an agent had the option of incorporating an agency in the United States, and having that company sponsor his/her visa petition and provide an itinerary of services with teams. A recent memorandum by the USCIS may indicate a policy shift that could affect the continued viability of this strategy.

The memo does not directly address filings by agent-petitioners, but rather focuses on filings by petitioners that will employ foreign nationals. Specifically, the memorandum explains the USCIS's interpretation of "United States employer," which is a term that is defined at 8 C.F.R. Sec. 214.2(h)(2)(i)(A). USCIS will determine whether a particular petitioner qualifies as a United States employer on a case-by-case basis, taking into account a number of common law factors. Basically, the touchstone of employment is control over the manner and means by which work is performed. The factors specified in the memo are similar to the factors used by the IRS in determining whether a worker is an employee or an independent contractor. USCIS has slyly avoided precedent decisions allowing so called nonimmigrant "self petitions." Under the current interpretation, a proprietor of a business will no longer be able to sponsor himself/herself for an H-1B, L-1 or O-1 visa through the company since there is no true control by the company over the individual.

Notably, the FAQ accompanying the memorandum explicitly states that it "does not change any of the requirements" under the law (emphasis added). Whether the memorandum constitutes a de facto change in the law remains to be seen. As noted above, the memorandum does not address petitions filed by agents. However, the same reasoning as in the memorandum could be used to deny an O-1 self-petition by an athlete or coach that files through his or her own single-person corporation/LLC, on the basis that the agent-petitioner is not legitimately distinct from the visa beneficiary. Even though the law recognizes corporate entities as legally distinct entities with their own privileges and responsibilities (e.g., see the recent Supreme Court decision granting almost unfettered rights to political speech by corporations), the USCIS has essentially ignored this long-held legal tradition in its recent memo.