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13 key factors every athlete should know about immigration to the USA

By Aynur Nuriev, 18 November 2020

Photo credit: Andy Jurinko “New York City’s Golden Boys: 76 Baseball Portraits, 1946-60,” at the Yogi Berra Museum & Learning Center

Athletes’ immigration, both at professional and semi-pro levels (minor leagues, colleges, etc.), is a well-known phenomenon. Certain countries are more successful at attracting the best young talents, while the other ones are considered as a hub for finishing a pro career. 

One of the most popular countries for immigration among athletes is the USA. The reasons are quite evident. It is an indisputable leader in the sports industry with numerous pro and semi-pro leagues; developed college and youth sports infrastructure; the high quality of sports training (e.g. sports academies and camps) and academic education which opens doors in any place around the world. On the other hand, the USA has very strict and complicated immigration policies and laws that are sometimes difficult to comprehend even for lawyers. 

In this article, we will unpack key factors international athletes need to know about immigration to the USA. In doing so we will also revert to the recommendations provided by experienced US immigration lawyers (Christine Swenson, Giselle Carson) so you have a better understanding of all ins-and-outs. 

1. General overview of applicable visa types

There are four types of visas for professional athletes. There is the B-1 [1], P-1 [2], O-1A [3], and O-1B [4] visas. 

The VWP for qualifying countries (the B-1 visa or so-called tourism visa) applies in case the athlete only competes to win a tournament's money-prize. It means that he or she will not work for any organization within the U.S.

On the other hand, the P-1 visa applies if the athlete is worldwide renowned. Meanwhile, for persons who have reached the top of their careers, the O-1 visa is the best option. The law considers that these individuals have "extraordinary abilities".

Which visa applies to a particular athlete should be decided after giving a consideration to the following factors: 

Table 1. The most popular Visa types for athletes

 

VISA 

O-1A “Individual with extraordinary abilities”P-1 “Internationally recognized athlete”
For whomindividuals with significant achievements in science, business, sports, or education fieldathletes with a status “international” (i.e. compete at the international level)  who perform in distinguished competitions
Requirements to satisfy 

Must show recognition in at least 3 from the list:

  • prize/awards
  • published content about the petitioner (i.e. athlete)
  • a significant contribution to the field;
  • membership in prestigious organizations;
  • judging the work of others (e.g. a judge in a competition);
  • significant publications;
  • employment in an essential capacity

Advisory letter required 

Must show international recognition in at least 2 from the list: 

  • honors/awards
  • expert opinion;
  • international rankings;
  • competing in one of the major US sports leagues
  • competing in an international tournament as a part of the national team;
  • competing in US college league

Advisory letter required 

Duration For 3 years maximum / or duration of the event. Possibility for unlimited 1-year extensions as long as the petitioner meets the requirements; For 5 years maximum / or duration of the event. Possibility to extend the visa for up to 5 years only once. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

immigration of athletes to the USA
This graph shows the dynamics of immigration to the USA since the early 1900s.

 

2. Visa groups P and O overlap, and this generates confusion

The key factor in receiving an O visa is in the word "extraordinary". An athlete aspiring to get the O-1A visa must show exceptional skills. These skills must turn her/him into an admired person in his country and internationally.

The athlete requires having recognition in his field "through extensive documentation”. Particularly, she or he must prove "that the person is one of the small percentages who have risen to the very top of the field of endeavor." 

Likewise, an O-1B visa is destined for artists, while O-1A is for athletes. However, an athlete that does not fulfill the O-1A requisites can opt for an O-1B.

In this sense, some sports activities can be considered artistic performances. So, this happens when the athlete is starting his professional career. Also, this occurs when he contends in a sport without conventional prizes. 

Besides, it can happen that the athlete's discipline does not have an official ranking that allows him/her to apply for a P-1 visa.

The P-1 applies to both sporting teams and individual athletes. For example, European top football teams' players receive P-1 visas. 

The O-1 is the preferred visa for top athletes and coaches because it has a more secure path to a green card and provides greater employment flexibility.

3. Can the P-1 visa be used for athletes and coaches equally?

Unfortunately, no. As we have mentioned earlier the P-1 visa is only for internationally renowned athletes for the purposes of competing in the USA. Coaches may apply for a P-1S visa which is designed for essential support personnel who will assist an athlete (petitioner or holder of P-1). 

To be eligible for P-1S the coach has to be highly skilled and be an essential part of the athlete’s performance or event in general. That is the services of the person, applying for P-1S, should not be easily accessible among the USA workforce (experts, contractors, etc.). Moreover, the P-1S personnel cannot work within the USA on his/her own, i.e. independently from the athlete (P-1). 

The same approach works for coaches working together with athletes (petitioners/holders) of the O-1 visas. For that staff closely linked to the athlete, such as trainers, coaches, and doctors, there is the O-2 visa. The unique purpose of these persons must be to support the athlete's actions. Besides, they must prove to have a permanent residence outside the U.S. that plans to follow using.

So if we consider the pair “athlete - coach”, then there are two ways: “Athlete P-1 - Coach P-1S” and “Athlete - O-1 and Coach O-2”

However, if the top coach wants to work alone in the USA, then he is recommended to follow the path for an O-1 visa. To qualify for O-1, the coach has to show sustained national or international recognition and acclaim for extraordinary success as a coach. 

4. Can professional athletes or coaches come to the U.S. to compete in tournaments on the basis of a visa waiver or a B-1 visa?

Athletes and coaches can use the visa waiver or B-1 visa to enter the U.S. as temporary visitors to compete and earn only prize money from tournaments. U.S. immigration laws treat a paid professional athlete or coach as a worker requiring a work visa such as a P-1 or O-1 if he/she intends to stay in the USA as a player on a contractual basis. Athletes and coaches using the visa waiver or B-1 visa are expected to have a residence outside the U.S. that they do not intend to abandon. The visa waiver or B-1 is not appropriate if the athlete intends to live and work in the U.S. 

5. Athletes considered artists would pay special taxes in the U.S. 

Explaining when an athlete qualifies as a “nonresident guest artist” would be so long. But, what you need to know is if you are an athlete hired for a job with commercial ends, you will have to pay taxes. Examples of this kind of job are KFC’s commercial or giving an autograph session.

So, the gross earnings you get in the U.S. by your artistic performances are taxable with a 30% charge. You or your manager must withhold this 30% of your gross income. If you don’t, the Internal Revenue Service (IRS) can withhold the amount it considers. Besides, the withholding will also apply to other incomes such as refunds and fees.

The IRS established this tax in 2003. Then, in October 2007, this institute created a workforce aiming to “improving U.S. income reporting and tax payment compliance by foreign artists who work in the United States. “

visa for athletes, immigration in sport
British tennis star, Johanna Konta, moved from Australia to the United Kingdom when she was 14 years old. Now she represents the UK. Photo credit (c): Johanna Konta Instagram.

6. Internationally recognized athletes are not exempt from Inadmissibility and deportability 

You can find extensive definitions of "inadmissibility" and "deportability" in the Immigration and Nationality Act (INA). Yet, "deportability" refers to the U.S. government has motives to get you out of its country. On the other hand, "inadmissibility" means this government can prohibit you from getting into the U.S. if they find reasons for that.

Serious events affecting U.S. citizens can activate a deportation process. This process also receives the name of "removal". The government can kick you out even if you received a visa before. 

Athletes eligible for P or O visas may result in “inadmissibility” in some conditions. Examples of these conditions are:

This conduct or action does not have to occur inside the U.S.; even it does not have to be illegal. Then, athletes must avoid immoral and scandalous public behaviors. Regardless of this is fair or not, athletes and their managers must be aware of that.

It is enough that an athlete accepts or shows in public having committed U.S. breaking-laws acts. 

Whether the involved law is federal or state, these actions can lead to consider the athlete inadmissible or to his deportation.

Examples of these behaviors are engaging in acts such as bar fights or evading taxes. Another example is getting involved with illegal drugs in the US. The athlete should avoid getting involved with drugs in any case. Avoid it regardless of the recreational use of these is legal, as it happens in some states of the American union. Even if your country of origin allows the drug's use, you should avoid it.

Such is the case with marijuana. Note that the Controlled Substances Act indicates that this substance has "high potential for abuse and the potential to create severe psychological and/or physical dependence." 

United States immigration law does not forgive mistakes. Any violation of immigration regulations will be grounds for denying you entry to the US. They can also reject your visa application and even revoke an already issued visa.

An athlete could exceed the authorized staying time on a previous visit to the United States. Maybe his flight was delayed, or he participated in an additional tournament to the initially planned. Perhaps he took part in an unauthorized activity on a previous visit.

For reasons like these, many people were sent back on flights to their origin countries. It happened even when they had just arrived in the U.S.

The U.S. laws do not prohibit forever to get into this country to an athlete falling in one of the previous cases. Though, obtaining an exception to his inadmissibility can take a long time.

For example, an athlete facing a Driving under Influence (DUI) sanction may see his visa's issuance delayed. The government will check his background before approving it. Thus, the process can last several weeks.

It is important to have a lawyer experienced in U.S. immigration processes. These lawyers can prevent issues like these or develop effective solving plans.

7. The absence of guidelines in the COMPETE Act generates confusion.

Since 2006 exists a law called the COMPETE Act. This piece of legislation extended the P-1 visa definition incorporating foreign or amateur leagues' coaches and athletes. To be eligible, they must meet some requisites. 

So, why this law creates problems? 

The reason is that U.S. Citizenship and Immigration Service (USCIS) did not specify rules on how to treat the coaches' and athletes' immigration when applying the Compete Act.

This Act looks to make American sports teams more competitive. But, there are no updated regulations. 

Under the Compete Act the athlete must be employed by a team that is a member of an association of six or more professional sports teams, whose total combined revenues exceed $10 million per year. In recent years, USCIS has started to decline visa applications for internationally recognized athletes who were to play in lower-level competitions. USCIS has decided these events do not qualify or require players with international reputations.

In this sense, many unfairly rejected athletes' and coaches' P-1 visa applications exist. The reason is the Compete Act's ambiguity.

For instance, some evaluating officials think that coaches are not athletes and refuse their P-1 visa solicitudes.

However, the Compete Act also provides benefits. This Act allows certain sports' athletes and coaches to accede to P-1 visas. 

For example, through this law, ice skaters and their supporting staff can get P visas. The P-1 visas' initial focus was the major leagues' categories system. But, disciplines like ice skating don't have categories like these.

Since there is no limit for P-1 visas, franchises and athletes take advantage of the Act. 

Also, this law avoids assigning H-2B visas to qualified athletes. H-2B visas are proper for seasonal workers and one-time sporting exhibitions like those in the winter sports.

In contrast, there are a cap number of H-2B visas yearly, and usually, the demand overcomes the availability. Besides, people from only 63 countries can receive H-2B visas.

Moreover, sports clubs won't lose the opportunity to get foreign talent due to the H-2B visas cap. Likewise, the H-2B visa program has another drawback for when U.S. sporting franchises want to contract talent overseas. They must show to the U.S. Department of Labor that they don't have competent U.S. workers. So, they can receive a temporary certificate from this Department.

8. Is the athlete an international figure? Then, the best option is the P-1A visa.

In case the athlete is known internationally, he should apply for a P-1A visa to compete in the U.S.A.

The P-1 visa program allows the athlete to enter the U.S. for a defined period. Besides, the athlete must take part in any internationally known sporting event. This event can be a tournament or some particular performance.

To be eligible, the athlete must excel in a sporting discipline. Also, the U.S. organization that hires her/him must submit Form I-129 called "Petition for Nonimmigrant Worker".

Regarding the athlete's supporting personnel, they also can apply for P-1 visas. This personnel's work must be to back the athlete's performance during a competition. The word "competition" comprehends from a particular activity to a whole sporting season.

9. The athlete's visa process will be easier if he shows documented mastery in a sport and international exaltation. 

The athlete is eligible for a P-1A visa if he can show documented evidence on at least two of the following cases:

The more evidence, the better. A balance must be kept between the information's quantity and quality. The objective is to gather and compare these documented records frequently. So, this will ease the immigration process.

10. The type of athlete visa will determine his support staff visas. 

The P-1S visa is intended for staff members who support the teams or athletes' performance.

So, the P-1S visa corresponds to the personnel that “perform support services which cannot be readily performed by a United States worker and which are essential to the successful performance of services. ” 

Likewise, if an athlete holds an O-1 visa, his trainer or coach should receive an O-2 visa. The supporting staff must have obtained “critical skills and experience” in his previous work with the O-1 athlete. So, this is a key factor to be eligible for an O-2 visa. 

Also, there are visa categories that apply to the athlete's family.

11. Four requisites to opt for the Visa Waiver Program (VWP) or B-1 visa

The athlete can use the visa waiver program (VWP). That is, they can apply for a B-1 visa to go to the United States.

First, the athlete's origin must be one of the VWP program participants. Likewise, the athlete can request a B-1 visa if she or he will take part in a limited athletic performance event. It can be a promotional match, for instance. 

Besides, to obtain a B-1 visa, you must meet the following criteria:

12. It is not possible to know how or when an athlete's immigration status will cause problems.

"Plans are useless, but planning is indispensable" is a famous President D. Eisenhower’s saying.

He meant that unforeseen events happen. By its nature, we cannot predict when they will appear. However, if we are prepared we can react to them creatively, quickly, and effectively. Likewise, the preparation will depend on the information that those involved in the process have.

In this sense, the fact that an athlete hides a negative history could affect his chances to obtain a U.S. visa. The last place your immigration attorney wants to find out about a good or bad thing is at the visa application interview. 

13. “Green card” as a way for sport immigration

It would be fair to say that in most cases athletes and coaches consider immigration to the USA because they want to stay there on a permanent basis: to live, to coach, to get access to high-quality sports training, to compete an,d develop professional careers. Given that, obtaining a “green card” is the ultimate gameplan. Internationally recognized athletes and coaches benefit from the “EB-1” petition path to a green card. This petition can be filed through a sponsoring employer or as a self-petition. The application has to prove that the athlete or coach plans to continue to work in their field of expertise and continue to be at the top of the field. If they are married to a U.S. citizen, the U.S. citizen spouse could also petition for a green card for them.

Conclusion 

International athletes can prosper and build strong careers in the United States. As one can see there are different ways for athletes and coaches to move to the USA for a short or long period of time. A usual package of documents, for example, to apply for an O-1 visa may count 400-1000 pages of supporting documents. That is why it is just easier and more efficient to seize the services of professional lawyers. 

On our part, the Sportlane team is always happy to assist our customers (who register for sports camps or academies through us) with necessary introductions and initial instructions. 

References

[1] U.S. Citizenship and Immigration Services, B-1 Temporary Business Visa, https://www.uscis.gov/working-united-states/temporary-visitors-business/b-1-temporary-business-visitor

[2] U.S. Citizenship and Immigration Services, P-1A Temporary Business Visa, https://www.uscis.gov/working-united-states/temporary-workers/p-1a-internationally-recognized-athlete

[3] U.S. Citizenship and Immigration Services, O-1A Temporary Business Visa, https://www.uscis.gov/working-united-states/temporary-workers/o-1-individuals-extraordinary-ability-or-achievement/o-1-visa-individuals-extraordinary-ability-or-achievement

[4] U.S. Citizenship and Immigration Services, O-1B Temporary Business Visa, https://www.uscis.gov/working-united-states/temporary-workers/o-1-individuals-extraordinary-ability-or-achievement/o-1-visa-individuals-extraordinary-ability-or-achievement