Legislative Breaking News: H-2B And P-1 Visa Categories
In the final hours of the 109th Congress, the House passed S.3821, a bill concerning H-2B and P-1 athletes and entertainers that passed in the Senate a day before. The President is expected to sign the legislation in the coming days and the provisions will take effect immediately. The bill tracks language included in S.2611, the comprehensive immigration reform bill passed by the US Senate last May.
"Minor league teams will benefit most significantly since they will no longer need to rely on the H-2B category for its athletes. Coaches are not mentioned in the new provisions but presumably can qualify as P support personnel if there is a principle P applicant. [Ed. added 12/12/06] The H-2B category has been problematic in recent years because the category has quickly filled its allotted quota."
Another major change is the fact that major league athletes will likely be able to enter the US under the new provisions for teams in leagues exceeding $10,000,000 in annual combined revenue. Simply documenting a contract to play on a qualifying team should be enough without having to show the athlete is performing at an internationally recognized level of performance as is the case today.
The statute contains language excluding athletes from countries deemed state sponsors of terrorism. That provision will mainly affect Cuban athletes. These athletes can still apply for P-1s under the new provisions, but need to get special clearance from the Department of Homeland Security and State Department.
The new language will now allow for multiple athletes and performers to be filed on a single I-129 petition instead of separate petitions.
Finally, athletes can still file in other visa categories even if they are eligible under the new P-1 provisions.
The text of S. 3821 reads as follows:
To authorize certain athletes to be admitted temporarily into the United States to compete or perform in an athletic league, competition, or performance.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as either the 'Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006' or the 'COMPETE Act of 2006'.
SEC. 2. NONIMMIGRANT ALIEN STATUS FOR CERTAIN ATHLETES.
(a) In General- Section 214(c)(4)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(4)(A)) is amended by striking clauses (i) and (ii) and inserting the following:
'(i)(I) performs as an athlete, individually or as part of a group or team, at an internationally recognized level of performance;
'(II) is a professional athlete, as defined in section 204(i)(2);
'(III) performs as an athlete, or as a coach, as part of a team or franchise that is located in the United States and a member of a foreign league or association of 15 or more amateur sports teams, if--
'(aa) the foreign league or association is the highest level of amateur performance of that sport in the relevant foreign country;
'(bb) participation in such league or association renders players ineligible, whether on a temporary or permanent basis, to earn a scholarship in, or participate in, that sport at a college or university in the United States under the rules of the National Collegiate Athletic Association; and
'(cc) a significant number of the individuals who play in such league or association are drafted by a major sports league or a minor league affiliate of such a sports league; or
'(IV) is a professional athlete or amateur athlete who performs individually or as part of a group in a theatrical ice skating production; and
'(ii) seeks to enter the United States temporarily and solely for the purpose of performing--
'(I) as such an athlete with respect to a specific athletic competition; or
'(II) in the case of an individual described in clause (i)(IV), in a specific theatrical ice skating production or tour.'.
(b) Limitation- Section 214(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(4)) is amended by adding at the end the following:
'(F)(i) No nonimmigrant visa under section 101(a)(15)(P)(i)(a) shall be issued to any alien who is a national of a country that is a state sponsor of international terrorism unless the Secretary of State determines, in consultation with the Secretary of Homeland Security and the heads of other appropriate United States agencies, that such alien does not pose a threat to the safety, national security, or national interest of the United States. In making a determination under this subparagraph, the Secretary of State shall apply standards developed by the Secretary of State, in consultation with the Secretary of Homeland Security and the heads of other appropriate United States agencies, that are applicable to the nationals of such states.
'(ii) In this subparagraph, the term 'state sponsor of international terrorism' means any country the government of which has been determined by the Secretary of State under any of the laws specified in clause (iii) to have repeatedly provided support for acts of international terrorism.
'(iii) The laws specified in this clause are the following:
'(I) Section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) (or successor statute).
'(II) Section 40(d) of the Arms Export Control Act (22 U.S.C. 2780(d)).
'(III) Section 620A(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2371(a)).'.
(c) Petitions for Multiple Aliens- Section 214(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(4)), as amended by subsection (b), is further amended by adding at the end the following:
'(G) The Secretary of Homeland Security shall permit a petition under this subsection to seek classification of more than 1 alien as a nonimmigrant under section 101(a)(15)(P)(i)(a).'.
(d) Relationship to Other Provisions of the Immigration and Nationality Act- Section 214(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(4)), as amended by subsections (b) and (c), is further amended by adding at the end the following:
'(H) The Secretary of Homeland Security shall permit an athlete, or the employer of an athlete, to seek admission to the United States for such athlete under a provision of this Act other than section 101(a)(15)(P)(i) if the athlete is eligible under such other provision.'.
Passed the Senate December 6, 2006.
This article originally appeared on Bender's Immigration Bulletin Daily Edition.
Greg Siskind is a partner at Siskind Susser, a national immigration law firm. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
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