Immigration Problems for Oklahoma City Thunder Enes Kanter

Enes Kanter, the 25 year old center for the NBA's Oklahoma City Thunder, has been in hot water with Turkish authorities as of late.  Kanter was born in Switzerland and until recently, held a Turkish passport.

Kanter has been a thorn in the side of the Turkish regime for some time now, largely because of his outspoken criticism of Turkey President Recep Tayyip Erdogan.  Kanter has also been a vocal supporter of Turkish opposition leader Fethullah Gulen, who lives in the United States and is in exile for allegedly plotting the overthrow of strongman Erdogan last year.  Apparently, Turkey had enough of Kanter's activism:

According to AFP, a Turkish judge on Friday issued an arrest warrant for Kanter. The 25-year-old is accused of having “membership” in “an armed terrorist organization.”  

Though Kanter is currently in the United States, and the US has an extradition agreement with Turkey, he has little fear of being extradited because American policy generally disfavors the extradition of political dissidents.

The arrest warrant comes on the heels of another recent Turkish provocation: the revocation of Kanter's passport while he was en route from Romania to the United States.  Had Kanter been working for the Thunder on an O-1 or P-1 visa (which is the norm for most foreign basketball players in the NBA), he would have been denied entry to the US and would have faced possible jail time in Turkey for his political activities.

Fortunately for Kanter, he possesses a green card, which allows for reentry to the United States even without a passport.  As a result, he was able to return to the USA despite Turkey's cancellation of his passport.  Turkey's attempt to thwart his travel plans failed.

From the US Customs and Border Protection (CBP) website:

Lawful Permanent Residents of the U.S. must present a Permanent Resident Card ("Green Card", Form I-551), a Reentry Permit (if gone for more than 1 year), or a Returning Resident Visa (if gone for 2 years or more) to reenter the United States.

U.S. LPRs do not need a passport to enter the United States as per 8 CFR 211.1(a), however, they may need a passport to enter another country. Please contact the embassy of the foreign country you will be traveling to for their requirements. 

This is one (of few) areas where CBP regulations are actually more lax than one might expect.  

Since he was born in Switzerland, Kanter can presumably procure a passport from Switzerland, and continue, unabated, to be a thorn in the side of the Erdogan regime.

Federal Court Rejects Table Tennis Star's EB-1 "Extraordinary Ability" Immigrant Visa

EB-1 "Extraordinary Ability" is an immigrant visa ("green card") category for an athlete having extraordinary ability "which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation."  INA § 203(b)(1)(A)(i).  The phrase "national or international acclaim" suggests that foreign athletes who are not one of the best in the world can still qualify provided that they are at the elite level in their home country.  In the past, USCIS has generally been amenable to this interpretation.

However, the federal court for the Southern District of New York has recently taken a very strict interpretation of the EB-1 statute.  Iranian table tennis player Afshin Noroozi, 27, applied for an EB-1 visa on the basis that he had extraordinary ability in table tennis, having finished 65th at the 2008 Olympics and gaining a world ranking of 284th. Noroozi was the first table tennis Olympian from Iran, demonstrating obvious national-level acclaim.  Nevertheless, the court upheld USCIS's denial of Noroozi's EB-1 petition.  

A finding in Noroozi’s favor would effectively oblige the immigration service to grant extraordinary ability visas to every one of the international table tennis players ranked ahead of him, along with the top 284 performers (minus Americans) in every other sport, (District Court Judge) Engelmayer wrote. 

This "slippery slope" reasoning has been deployed before to greatly restrict the number of L-1B specialized knowledge petitions approved by USCIS.  We now see this unfortunate trend expanding into the EB-1 arena.  The Noroozi decision further highlights the need to fully document and make persuasive arguments in EB-1 filings.

NBA Lockout Still Having Immigration Effects

An O or P petition cannot be filed where a DOL-certified strike or lockout condition exists. As we discussed earlier, O and P nonimmigrants already in the US during a strike or lockout have some interim benefits, but rookies and veterans filing new petitions may not file until the work stoppage is over.

Now that the NBA lockout is over, players are once again able to file O and P petitions. However, the abrupt nature in which the lockout ended has caught some players off guard. For instance, rookie guard Cory Joseph has had his start with San Antonio Spurs delayed.

In a normal NBA season Joseph, a Canadian, would have applied to the U.S. Citizenship and Immigration Service for a U.S. work visa after the Spurs drafted him in June, with the expectation he would be signed to a contract during the summer. That expectation ended when the NBA locked out its players on July 1, meaning Joseph couldn’t apply for the visa until the lockout was lifted.

Pele Receives O-1 Visa Through Revived New York Cosmos

In the 1970's, the New York Cosmos soccer team was the keystone of the fledgling North American Soccer League (NASL). The NASL eventually disbanded in 1984 after a decade-long run. The Cosmos was known for employing world famous soccer players, including Brazilian legend Edson Arantes do Nascimento (better known as "Pele").

Certain promoters have revitalized the New York Cosmos club, with the hopes of having it join Major League Soccer within a couple of years. As with its prior iteration, the Cosmos will once again have Pele on staff, albeit not in a playing capacity.

“The Cosmos are back!” old boy Pele enthused in August, when the would-be club’s directors announced the Brazilian icon, world football’s one and only O Rei, as honorary president.

The Cosmos recently acquired an O-1 visa on behalf of Pele for his administrative role in the new Cosmos team. The O-1 is a nonimmigrant visa for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics.

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.

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.

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.

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.

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.

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.