Whether you can get a P-1 visa for a foreign athlete depends on both your and the foreign athlete’s status and a multitude of other considerations.
This guide will walk you through the most important factors in determining whether you can be successful in obtaining a P-1 visa for your foreign athlete.
While the process can be arduous, if you follow the step by step process to obtain the visa you will likely be successful in getting a P-1 visa for your foreign athlete.
Are you eligible to apply on the foreign athlete’s behalf?
To petition on behalf of a foreign athlete, you must be a United States employer, a United States sponsoring organization, or a United States agent.[1]
If you are a foreign employer, then you must petition through a United States agent.[2]
You are considered a “foreign employer” if you are not subject to service of process in the United States.[3]
Is your foreign athlete eligible?
The P-1 visa is not available to all athletes or even all professional athletes. To be eligible for a P-1 visa, your athlete must have gained international notoriety.
Or, if you are attempting to employ or sponsor an entire team, the team itself must have gained international acclaim.
This international notoriety or acclaim must be "a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country."[4]
The athlete must maintain and intend to maintain a residence abroad. He or she should only intend to be in the U.S. temporarily to perform in the athletic competition.
Is the event that you are petitioning the athlete to attend eligible?
Not all events warrant approving a P-1 petition. The event that the athlete or team is coming to the U.S. to participate in must be at an internationally recognized level of performance.[5]
Can you put together a petition that will approved?
Once you determine that the P-1 visa will work for your athlete, the next step will be assembling the P-1 petition.
Even if you meet all of the above criteria, you may not be able to get a P-1 visa for your athlete if you cannot put together a compelling petition.
The petition will be comprised of the proper form and all necessary supporting evidence.
Filling out the proper form
You will need to file Form I-129 on behalf of the athlete.[6]
It costs $325 to file this Form. Form I-129 is actually rather straightforward. Its instructions can be found here.
Keep in mind. you may not file the petition more than one year before the actual need for the athlete to enter the U.S.
If you are also applying on behalf of essential support personnel, then you must file a separate petition on their behalf.[7]
Assembling all the necessary evidence
Your Form I-129 should include the following evidence when filing on behalf of a P-1 athlete or team:
- Proof of international recognition;
- If you are petitioning for an individual athlete, then you must show that you have achieved international recognition in the sport based on his or her reputation.[8]
- If you are petitioning for an athletic team, then you must show that the team has achieved international recognition as a unit. In this situation, each member of the team will receive P-1 classification based on the international reputation of the team.[9]
- Proof of an existing contract, but only if such contracts are normally executed in the sport;
- The contract must be with either a major United States sports league or team, or with an individual sport commensurate with international recognition in that sport.
- Documentation of at least two of the following:
- Evidence of having participated to a significant extent in a prior season with a major United States sports league;
- Evidence of having participated in international competition with a national team;
- Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition;
- A written statement from an official of the governing body of the sport which details how you or your team is internationally recognized;
- A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized;
- Evidence that the individual or team is ranked if the sport has international rankings; or
- Evidence that you or your team has received a significant honor or award in the sport.[10]
- Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which athlete(s) will be employed;
- An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and
- A written consultation from a labor organization.[11]
It is crucial that the all of the above documentation adheres to USCIS guidelines. Otherwise you risk prolonging the approval process with a Request for Evidence.
Under USCIS guidelines, any documentation submitted with a P-1 visa petition should conform to the following rules:
- Affidavits, contracts, awards, and similar documentation must reflect the nature of the alien's achievement and be executed by an officer or responsible person employed by the institution, establishment, or organization where the work has performed.
- Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability, or, in the case of a motion picture or television production, the extraordinary achievement of the alien, which shall specifically describe the alien's recognition and ability or achievement in factual terms. The affidavit must also set forth the expertise of the affiant and the manner in which the affiant acquired such information.
- A legible copy of a document in support of the petition may be submitted in lieu of the original. However, the original document shall be submitted if requested by the Director.[12]
Other considerations that may affect your petition’s approval:
Will your athlete be working in more than one location in the United States?
If you intend for the athlete or team to work in more than one location, then your petition should include an itinerary with the dates and locations of the performances.[13]
Will your athlete be working for more than one employer or sponsor in the United States?
If your athlete will work for more than one employer within the same time period, then each employer should file a separate P-1 petition unless an agent files the petition pursuant to 8 C.F.R. § 214.2(p)(2)(iv)(E).[14]
Are you acquiring your player from an employer who already obtained a P-1 classification for your athlete?
If you are picking up the alien from another employer who has already obtained P-1 classification for the athlete, then you must file both a petition and a request to extend your stay in the United States.[15]
Your athlete may not commence employment with you until the petition and the request for an extension have been approved.[16]
Are you acquiring your athlete as the result of a trade?
If you are receiving your athlete as a result of a trade, then you will need to file Form I-129 within 30 days after you acquire the athlete.
The athlete’s employment authorization will automatically continue for 30 days after the trade, and then will continue from the date the form is timely filed until a decision is made of whether to approve or deny the new petition.[17]
How long has your athlete already been in the United States as a P-1 nonimmigrant?
If your athlete is already in the United States under P-1 status, then he or she may have to leave the country before reapplying.
Generally, individual athletes are allowed a period of stay for the amount of time necessary to complete the event, not to exceed five years.
Teams are the same, except their stay is not to exceed one year. In either case, you can request an extension of stay.
However, USCIS has issued guidance saying that an individual athlete can only remain in the U.S. for 10 consecutive years under a P-1 classification.
After this time, the athlete must leave the U.S. and apply for another 5-year term from abroad.[18]
Conclusion
As you can see, the P-1 visa process can be quite time consuming.
Even if you cannot get your athlete P-1 status, you may be able to use the Visa Waiver Program or to obtain another nonimmigrant visa to suit your needs (e.g. H1-B, B-2).
As thorough as this guide may seem, there is still much more you can learn about this process and how to best serve your athlete’s immigration needs.
You may be faced with more questions like:
- Can my support staff come with me?
- Can my family live in the U.S. during my stay?
- How do I amend my original petition?
In any event, consulting with a seasoned immigration attorney can make the process much smoother.
Consider contacting us today and have the whole team at Tingen Law on your side.
[1] See 8 C.F.R. § 214.2(p)(2)(i).
[2] See id.
[3] See id.
[4] 8 C.F.R. § 214.2(p)(3)(defining International recognition).
[5] See 8 C.F.R. § 214.2(p)(1)(ii); see also 8 C.F.R. § 214.2(p)(4)(i).
[6] See 8 C.F.R. § 214.2(p)(2)(i).
[7] See 8 C.F.R. § 214.2(p)(2)(i).
[8] See 8 C.F.R. § 214.2(p)(4)(ii)(B).
[9] See id.
[10] See id.
[11] See 8 C.F.R. § 214.2(p)(2)(ii); see also 8 C.F.R. § 214.2(p)(4)(ii)(B).
[12] See 8 C.F.R. § 214.2(p)(2)(iii).
[13] See 8 C.F.R. § 214.2(p)(2)(iv)(A).
[14] See 8 C.F.R. § 214.2(p)(2)(iv)(B).
[15] See 8 C.F.R. § 214.2(p)(2)(iv)(C)(1).
[16] See id.
[17] See 8 C.F.R. § 214.2(p)(2)(iv)(C)(2).
[18] Donald Neufeld, Procedures for Applying the Period of Authorized Stay for p-1 Nonimmigrant Individual Athletes, USCIS Interoffice Memorandum (March 6, 2009) available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/p-1-individual-athletes-period-of-stay.pdf
