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.

Controversy Regarding Star High School Basketball Player's Immigration Status

The foreign nationality of a top-ranked high school basketball player is renewing the debate about immigration as it relates to young athletes.

Brian Delancy, a native from the Bahamas, plays for the top-ranked basketball team of Miami's Michael M. Krop Sr. High. The Florida High School Athletic Association (FHSAA) has attempted to disqualify Delancy and retroactively forfeit his team's wins because Krop High School apparently did not register with the FHSAA regarding Delancy's immigration status. Delancy's lawyers have filed a discrimination suit against FHSAA.

Goldfarb also represents two other Krop players. He argues by law, the school cannot ask the students to provide immigration paperwork, therefore a student athletic association should not force a student to provide it either. "It's right there in the Florida constitution: You don't have to show your status in the Florida constitution. You have the right to a good public education."

The F-1 regulations impose numerous burdensome recordkeeping and reimbursement restrictions on public high schools with foreign students. However, those regulations say little about a state athletics association's eligibility for student-athletes' immigration information.

The Effects of Lockouts on the Immigration Status of NFL and NBA Athletes

The sports world is abuzz with anticipation that both the NFL as well as the NBA are possibly (even probably) headed towards lockouts in the near future. In essence, the anticipated lockouts are the result of a faltering economy and dwindling professional sports revenues. Management seeks to institute cost-cutting measures while players wish to avoid loss of benefits or reductions in guaranteed salaries.

One issue that has not been discussed in the media is what effect lockouts would have on the immigration status of nonimmigrant athletes. The vast majority of international athletes derive immigration status from the "Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry (COMPETE) Act" of 2006, which facilitates the issuance of P-1 visas to major league athletes. As always, athletes at the upper echelons of their respective sports may qualify for O-1 visas as Aliens of Extraordinary Ability.

Employment-based visas tie the alien's status to continued employment. Actual payment for services is one of the best means of demonstrating the maintenance of a continued employment relationship, which itself connotes continued maintenance of immigration status. This raises the question: what happens to the status of major league players during a lockout? Would the affected athlete be required to return to his/her home country until the end of the lockout?

The answer to the question may be found in the USCIS's regulations. The applicable regulation for P-1 athletes states the following:

(16) Effect of a strike --

(iii) If the alien has already commenced employment in the United States under an approved petition and is participating in a strike or labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Secretary of Labor, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers but is subject to the following terms and conditions:

(A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated thereunder in the same manner as all other P nonimmigrant aliens;

(B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and

(C) Although participation by a P nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for deportation, an alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired, will be subject to deportation.

8 C.F.R. § 214.2(p)(16)(iii) (2010).

A similar regulation covers O-1 employees: 8 C.F.R. § 214.2(o)(14)(iii) (2010). The consequence of the regulation is that the current immigration status of a P-1 or O-1 athlete is protected during a lockout. However, if the athlete's status is expiring and due for extension during a lockout period, his/her continued status will be in jeopardy. Even if the team were amenable to filing an extension petition (unlikely during a lockout), such a petition would most likely be denied. A filing during a lockout is questionable because it is difficult to argue that the requisite employment relationship continues to exist. Furthermore, the regulations require petition denial where "the Secretary of Labor certifies the existence of a lockout condition that would adversely affect the wages of US citizens." 8 C.F.R. § 214.2(o)(14)(i), 214.2(p)(16)(i).

Similarly, an athlete needing to travel overseas maybe find it difficult to return for the same reason. 9 FAM 41.55 N7 and 9 FAM 41.56 N5 preclude the Department of State from issuing O-1 or P-1 visas where a certified lockout condition exists. Athletes with existing P-1 or O-1 visa stamps in their passport may find travel less difficult, as the only requirement to return to the US is passing through Customs and Border Protection with the existing visa stamp. However, in today's anti-immigration climate, it is quite conceivable for even high-profile athletes to run into difficult questions at ports of entry.

Status Issues Beleaguer NHL Defenseman

In an article on the Anaheim Ducks' efforts to revitalize their season after a dismal 0-3 start to their NHL season, the following passage appears:

Defenseman Andreas Lilja, signed as a free agent, will have to leave the United States to take care of paperwork related to his visa and is unlikely to play this weekend, a team spokesman said. The 35-year-old Swede's work visa expired on Sunday, and he needs new documentation before he can play. However, he has been skating with the Ducks and should be ready to play as soon as the red tape is cut.

Apparently, Lilja's status has expired, and he would require a new visa (mostly likely P-1) to return to the United States in status. The above snippet indirectly highlights two important issues. First, it demonstrates that an extension of status petition cannot usually be filed with USCIS where a nonimmigrant's status has expired. This is likely the reason why Lilja was required to leave the country and return again with a new visa in his passport. Secondly, the article implies that, for Lilja, "skating with the Ducks" is permissible but appearing in games is not. In actuality, if his status has expired, any sort of employment activity with the Ducks would be impermissible, whether it involve mere "practice" or actual game play. In fact, even being in the US would be a technical violation as there is no so-called "grace period" for those in expired P-1 status. While we hardly expect ICE to conduct raids against famous professional athletes (indigent farm and industrial workers being their preferred targets), it may have been more prudent for the Ducks to be more circumspect on the matter of Lilja's status.

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.