Thursday, July 22, 2010

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.

Thursday, July 15, 2010

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.