In the modern age, it's common for technological and cultural developments to outpace the law.
In these situations, the law has to change and adapt in order to accommodate and respond to new technology and its applications.
One such case involves the use of P-1 visas by gamers and e-sports participants to gain entry to the United States.
Traditionally, P-1 visas were only issued to certain categories of high-profile athletes and performers in order to help them compete in the United States.
For many, it would have been unthinkable for a video game player to meet the definition of “athlete” and qualify for a P-1 visa.
However, imaginative lawyering has led to exactly that.
Now, the government have expressed a willingness to allow certain gamers to enter the United States on a P-1 visa, so that they can train and compete in the country, just as any other foreign athlete, such as a baseball or soccer player, would be permitted to do.
This article discusses in general terms the “normal” uses and criteria of the P-1 visa, as well as the modern trend towards extension of its application to gamers and e-sports participants.
What is a P-1 Visa?
The P-1 visa is used by foreign athletes and athletic teams in order to gain temporary admission to the United States, in order to take part in a tournament, tour, or other athletic competition.
The P-1 visa may be issued to an individual foreign athlete, in which case the visa is good for five years.
Additionally, the visa may be issued to each member of a foreign athletic team, such that each team member’s visa status is based on, and derivative of, the team’s status.
In this scenario, the team petitions for the visas on behalf of its various members.
In the case of P-1 visas issued to a team’s members, the visas are good for the time needed to complete the competition, but for no more than one year.
However, you may apply for an extension in one-year increments.
You can also get P visas for essential support personnel who will need to travel with the athlete or team, and without whom the athlete or team cannot effectively compete.
For example, these people may include coaches and trainers.
Dependents, such as the children or spouse, of P-1 visa holders may be eligible for P-4 visas. P-4 visa holders may stay in the United States and attend school, though they may not be employed.
Criteria and Application Requirements
In order for a foreign athlete to be eligible for a P-1 visa for individual competition, he or she must be able to demonstrate that he or she has achieved a level of accomplishment such that he or she is “internationally recognized” in a particular sport.
The United States Citizenship and Immigration Service (“USCIS”) has defined “international recognition” to mean that the particular athlete has “a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned, leading or well known in more than one country.”
If an athletic team is petitioning for P-1 visas for its members, the team must also demonstrate that it has achieved “international recognition” in its sport, and that the competition for which the team is traveling to the United States is “distinguished and require[s] the participation of athletic teams of international recognition.”
If a visa is granted to the team’s members, the visa only allows for them to engage in competitive activities that are related to their team.
Though, the visa holder may also engage in sightseeing, tourism, and other cultural activities.
Essentially, these requirements mean that the athlete or team must be a big deal within their respective sport, such that even casual followers of that sport would know who they are.
A foreign entertainer or performer seeking a P-1B visa must also demonstrate that he or she has achieved the required level of international recognition in the applicable field.
The Application Process
In order to apply for a P-1 visa, either the foreign individual athlete or the team, must submit Form I-129, the Petition for Non-Immigrant Worker.
Along with the petition, you’ll need to include the appropriate application fee, as well as the required supporting documentary evidence.
The required supporting evidence generally includes such items as a contract with a major United States sports league or athletic team, a written consultation from the appropriate sports labor organization, and a copy of the athlete’s or team’s proposed itinerary during their stay in the United States.
Also, you’ll need to include evidence that satisfies the “international recognition” eligibility criteria.
You must include at least two pieces of evidence on this count.
This requirement may be satisfied by, among other things, evidence that you participated significantly with a major United States sports league or college team in a prior season, that you’ve participated as part of a national team in international competition, or that you or the team has been the recipient of a significant honor or award within the sport’s community.
Modern Courts’ Willingness to Extend Definition of Athlete to Gamers
Generally, when most people think of the terms “athlete” or “athletic team” they don’t conjure images of video game players.
Nor, when thinking of an “athletic competition,” do most people imagine a bunch of gamers competing in a video game tournament.
But this is precisely what Canadian video gamer Danny “Shiphtur” Le’s lawyer asked USCIS to do.
On May 29, 2013, Le was approved for a P-1 visa that would allow him to travel to Riverside, California, so that he could live and practice with his United States-based video game team.
The team plays the computer game League of Legends, and was scheduled to compete in a championship tournament.
Le’s lawyer, Jeptha Evans, was able to argue to USCIS that his client met the definition of an internationally recognized “athlete” as set out in the statute.
Le is one of the top players in the League of Legends community.
Training for a tournament is a full-time job, with gamers like Le spending up to ten hours a day practicing and scrimmaging with teammates.
Evans was able to show that video game playing, at this level, is as much a profession as the highest echelons of baseball or football, though admittedly less orthodox.
Evans also had to argue that the e-sports league in which Le and his team participate is a professional sports league, on the same level as MLB or the NFL.
The principal gaming league, Major League Gaming (“MLG”) has seen massive growth in recent years. In 2013, its online viewership topped out at 54 million hours.
The Big Business of E-Sports
To start with, gaming and e-sports are big business.
It’s estimated that the e-sports league generates some $10 million annually in combined revenues.
Sponsors and advertisers are attracted to a league that is based on a mass-participation sport like gaming (it’s estimated that one in twenty Americans plays League of Legends), and that reaches such a wide audience.
Video game and e-sports competitions are often televised or broadcast online, and can have worldwide audiences of up to 1.7 million people.
With this type of viewership, it’s no surprise that marketers have identified gaming as a lucrative market.
The e-sports league also maintains rankings of players from around the world, just as you would see in leagues for other individual sports such as tennis or golf.
Gamers can climb the world rankings by winning major tournaments held yearly at various venues around the globe.
New Interpretations
Most Americans, and most immigration officials, are not familiar with video games and e-sports like League of Legends, or with the large following and fanship that the leagues and tournaments enjoy.
However, this novelty should not be a bar to the use of P-1 athlete visas by foreign gamers.
These gamers and e-sports participants fall within the definitions that the legislature contemplated when providing for a method for foreign athletes and entertainers to enter the country.
Surely these foreigners contribute to a diverse cultural landscape, and further the legislative intent behind the provisions for the P-1 visa.
As in other contexts, novelty or imaginativeness does not preclude an otherwise valid legal argument.
USCIS’s willingness to adapt and show flexibility in the face of such a novel argument is promising and should be applauded.
It demonstrates a desire to accommodate changing notions of definitions that affect immigrants and immigration law on a daily basis.
USCIS has shown itself to be responsive to change and cultural evolution.
Hopefully, this flexibility and progressiveness will find its way into other area of USCIS’s purview.
Other Examples of P-1 Visa Applications by Gamers
Since Le’s admission under a P-1 Visa, other gamers from several different countries have successfully made similar arguments and been admitted.
Kim “ViOLet” Dong Hwan is one of the top players of the video game StarCraft 2.
In 2013, the South Korean citizen was issued a P-1 athlete visa in order to allow him to participate in a tournament in the United States.
This was the second instance of a gamer receiving a P-1 visa.
Kim was initially seeking the visa so that he could take part in the StarCraft World Championship Series, for which the first place winner received a staggering $1.6 million.
In the years leading up to his admission to the United States on his P-1 visa, which allows for a five year stay, the 23-year old had earned some $98,830 from gaming and e-sports.
Also in 2013, Armenian citizen Edward “Edward” Abgaryan was issued a P-1 visa, allowing him to leave Russia and enter the United States in order to participate in the League of Legends World Championship in Los Angeles’s Staples Center.
Abgaryan was able to gain admission, and spend time with his teammates in Las Vegas in preparation for the tournament.
Choi “Polt” Seong Hun, 25, is a South Korean StarCraft 2 player.
He was issued a P-1 visa that allows him to live and train with his Atlanta-based team for up to five years.
While living in Atlanta, Hun will have the opportunity to perfect his gaming skills, and make money just as any professional would hope.
Conclusion
As society evolves and times change, so do our understandings of what certain words and phrases mean.
USCIS’s decision to recognize gamers and e-sports participants as “internationally recognized athletes” eligible for P-1 visas is a good example of the law appropriately accommodating changing understandings.
Foreign gamers, like Danny “Shiphtur” Le now have an avenue to come to the United States, and make a good living doing what they’re good at.
They have worked hard to develop a skillset, and have found a way to use these skills to provide for themselves and their families.
This is what the United States is about, and its immigration policies should encourage and facilitate this sort of work.
