Cross-Fit Athlete's Visa Troubles Highlight ESTA v. B-1 Dilemma

The CrossFit Games is a fitness competition in which athletes from around the world compete for the title of “Fittest on Earth”.  Alexander Anasagasti, Spain’s top CrossFit athlete, has been issued a B-1 visa after initially being refused.

The problem arose because last year, when Anasagasti travelled to the US to train, he applied for a tourist visa that was longer than the Electronic System for Travel Authorisation (ESTA) form would allow him to stay. The disconnect meant his visa was rejected and the ESTA was revoked as a result. The sanction remained in place when he applied again this year.

As a Spanish citizen, Anasagasti was eligible to enter the United States through the fast-track ESTA program, which is an automated system that generally allows most eligible applicants to enter the country.  ESTA is the screening system through which foreign nationals can enter the United States under the Visa Waiver program.  Visa Waiver is available to nationals from certain generally-affluent countries, and allows entry as a tourist without applying for a tourist visa.

In contrast, the B (tourst) visa is one of the most difficult visas to procure.  One drawback of ESTA is that it only allows entry for up to 90 days at a time.  For this reason Anasagasti chose to apply for a tourist visa.  Unfortunately, his tourist visa was denied, which also led to the denial of his ESTA authorization (per the norm).  Luckily for Anasagasti, he posted about his plight and was successful when he reapplied for a tourist visa, thereby allowing him to compete in the CrossFit Games.  This episode shows that when entry using ESTA is possible and appropriate, it is often preferred to applying for a tourist visa.

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.

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.