The United States is home to many of the top sporting events and athletic teams in the world and has long been a magnet for the top competitors from around the globe. Many of these athletes are coming to the United States seeking employment, and like any other workers coming to the U.S. to earn a living, they must secure work visas. The most common non-immigrant visa categories for athletes who will be employed in the United States are O, P, and H-2B.
O Visas
Individual athletes of “extraordinary ability” may qualify for an O-1 visa. To obtain an O-1 visa, athletes must demonstrate that they possess “a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor.” There are two ways of demonstrating this expertise. One method is through receiving a major internationally recognized award such as winning an Olympic gold medal. The more common way is by providing documentation in three of the following categories:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in associations in the field which require outstanding achievements of their members, as judged by recognized national or international experts in the field or discipline
- Published material in professional or major trade publications or major media about the athlete
- Evidence of participation on a panel, or individually as a judge of the work of others in the same or allied fields
- Evidence of employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
- Evidence that the athlete has either commanded or will command a high salary or other remuneration of services, evidenced by contracts or other reliable evidence.
Besides documentation that falls within one of the mentioned categories, comparable evidence not within one of the categories listed above may be used.
The O visa does not have a numerical quota. For those granted a visa, the initial approval of an O is limited to three years. However, an individual can request an infinite number of one-year extensions.
O-1 applicants need to demonstrate that they are coming to work in their field. But based on a 1994 INS Field Memo, the athlete need not show that the athletic endeavor that serves as the basis of the application requires an athlete of extraordinary ability or achievement. Practically speaking, however, the higher caliber the endeavor in the US, the stronger the case will likely be.
O-1 applications may be submitted by agents in some cases if athletes in a particular field are traditionally self-employed or normally use agents to arrange for short-term employment on their behalf with numerous employers or where a foreign employer uses an agent to act on its behalf.
Note that O-1 visa applicants (as well as P-1 visa applicants discussed below) need to obtain an advisory opinion from a “peer group,” labor organization, or management organization in the area of the alien’s ability. This can be avoided if the petitioner is requesting expeditious handling of the O or P petition, an appropriate entity does not exist or a consultation has taken place within the two previous years.
P Visas
Athletes who cannot meet the high standard for an O visa may petition for a P visa. Unlike an O, both individuals and an entire athletic team may be classified under this category.
For an athletic team to petition for a foreign athlete, the team must have achieved international recognition in the sport. An athlete who will come to the U.S. to compete in individual events rather than with a team must show that he or she is internationally recognized. The event the athlete is coming to the U.S. to participate in must have a distinguished reputation and must require the participation of athletes and teams of international recognition.
In order to receive a P visa, athletes must submit a tendered contract in an individual sport “commensurate with international recognition in that sport, if such contacts are normally executed in the sport.” Additionally, the athlete must provide evidence of at least two of the following:
- Proof of significant participation, by the athlete or the team, with a major U.S. sports league
- Proof of significant participation in an international competition with a national sports team
- Proof of significant participation in a prior season with a U.S. college or university in intercollegiate competition
- A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how the alien or team is internationally recognized
- A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized
- Evidence that the individual or team is ranked if the sport has international rankings
- Evidence that the alien or team has received a significant honor or award in the sport
Note that players for Major League Baseball and the National Hockey League only need to show they have a contract with an MLB or NHL team. Also, P-1s who enter the US as a member of an internationally recognized athletic team may not perform work separate from that athletic team.
The one-year group membership requirement as well as the international recognition requirement do not apply to circus performers playing an integral role in the circus. The circus must in turn show that it has been recognized nationally as outstanding for a substantial period of time.
Like the O visa, P visas do not have a numerical quota. The initial approval of a P visa for an individual athlete is limited to five years. An individual athlete can request a five-year extension for a maximum period of ten years. Athletic teams receive an initial approval period for the time needed to complete the competition, not to exceed one year. An unlimited number of one-year extensions can be granted to athletic teams.
P visas have a consultation requirement. See the discussion of this subject in the O-1 visa discussion above for more information.
H-2B Visas
The H-2B category allows athletes who cannot fulfill the more strict requirements for an O or P visa to be temporarily employed in the U.S. An example of an athlete who may have to utilize an H-2B visa is a minor league baseball player.
One of the most significant restrictions on the H-2B category is the requirement that the need for the foreign worker is temporary. The employer of the H-2B applicant must show that the services shall be a one-time occurrence, a seasonal need, a peakload need, or an intermittent need. It is this requirement that makes the H-2B visa so rarely used Not only must the employer promise to employ the worker for a limited period of time, the employer must verify that its need for the worker is temporary.
In addition to the temporary need requirement, a labor certification by the Department of Labor (DOL) is required for an H-2B visa to be issued. The DOL must determine that there are no unemployed, qualified U.S. workers available for the position in the geographical location of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of U.S. workers. To satisfy the DOL, the employer must conduct a recruitment campaign. Before beginning this campaign, the employer should contact the state employment office to discover what type of recruiting efforts will be required in that area. It is also important to note that a U.S. worker who is otherwise employed, but expresses willingness to take the position recruited for is not considered unemployed.
The number of H-2B visas that can be issued during a fiscal year is limited to 66,000. The length of the stay on an H-2B visa is limited by the duration of the employer’s temporary need for additional workers. The maximum authorized period of stay is one year, and the visa may be extended for a total of three years. However, extension applications are closely scrutinized.