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.

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.

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.