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.

USCIS Issues Memorandum Explaining Its Policy on Agent-Petitioners in O and P Visa Cases

Often an O or P visa holder will be in the United States on a string of engagements, with multiple employers. In such a scenario, it has been most efficient for one company to serve as an agent for all of the remaining employers in the itinerary. In October 2009, USCIS issued a statement regarding such filings. Specifically, it announced that such filings by one employer would only be approved where the petitioner can establish that it is “in business” as an agent. This pronouncement, which was covered earlier in this blog, led to calls for elaboration from USCIS as to what "in business as an agent" actually meant, as the term is not defined in the O or P regulations.

USCIS has issued a policy memorandum (a public document that has USCIS officers and personnel as its intended audience) on this issue. Significantly, the memo has clarified that a petitioner will be deemed to be "in business as an agent," even if only for that specific visa petition. In other words, the petitioner does not need to demonstrate that it normally serves as an agent as a matter of course, outside the context of the petition. The memo also enumerates the kind of evidence that would satisfy the "in business as an agent" requirement. This evidence can include contracts, fee arrangements, or certifications from other employers listed in the itinerary that the petitioner has been authorized by them to serve as their agent.

The memorandum further cautions that petitioners for a P visa under the "U.S. sponsoring organization" category must not directly employ the P-1, P-2 or P-3 alien, but rather must

assume responsibility for the accuracy of the terms and conditions specified in the petition.

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.

Miguel Angel Sano Successfully Receives a Visa Despite Fraud Concerns

Sports Illustrated reports that heralded Dominican shortstop Miguel Angel Sano has successfully received a visa to play for the Minnesota Twins. The Twins signed Sano to a club-record $3.15 million signing bonus, and his employment was contingent on his successful acquisition of a visa. Although unconfirmed in the article, Sano was almost certainly issued a visa in the P-1 category.

Normally the mere issuance of a P-1 visa does not make news, but it did in this case for two reasons. First, the issuance of a visa turned out to be a potentially expensive condition precedent to Sano's contract. Secondly, the issuance of the visa was in doubt due to commonplace fraud issues among prospective Dominican baseball players.

The Dominican Republic, particularly Sano's hometown in San Pedro de Macoris, has been the epicenter for age and identity fraud. Some players and their handlers cut years off their age in order to increase their market value.

Sano is not immune from suspicion regarding age and identity fraud. His 6'3, 190 pound frame and his advanced skills have called into question whether he is really 16 years old, as is his claim. Despite such concerns, Sano's visa was approved.

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.