P Visas for Athletes and Entertainers
The P-1 visa category is the visa of choice for athletes and entertainers who do not meet the "extraordinary ability" standard required for an O visa. In practice, P visas are most often used for athletes and entertainers who perform as part of a team or entertainment group for trips of limited duration, such as a concert tour or a sports season. Because the P-1 visa is employer-specific, P-1 athletes and entertainers who are members of a team or group may not perform work or services separate and apart from the team or entertainment group during their P-1 time.
There are two ways for an athletic team or entertainment group to obtain P-1 status for its members. First, P-1 visas may be granted to an athletic team or entertainment group based on its own international reputation. When the visa is granted to the team or group, as a whole, each member of the team or group is given P-1 classification based on the reputation of the team or group. Second, a team or group may seek P-1 visas for individual members of the team or group based on their individual, international reputations.
It is important to note that an athletic team or entertainment group that employs a P-1 alien must be "internationally recognized," which the USCIS defines as "having 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."
A clear advantage of the P-1 category is the wide variety of athletes who may qualify under its provisions. The P-1 category encompasses all athletes who perform at an internationally recognized level of performance and who fall into one of four sub-categories: 1) individual athletes, 2) athletes who are members of certain professional leagues, 3) athletes and coaches who participate in certain amateur leagues, or 4) athletes who participate in theatrical ice skating productions.
A P-1 athlete must be coming to the US to participate in an athletic competition that has a distinguished reputation and that requires participation of an athlete or athletic team that has an international reputation.
Although the visa category requirements are fairly specific, most athletes who play for major and minor league sports leagues may qualify. The P-1 visa also has benefits for team administrators, because there is no limit on the number of athletes for whom a team may petition, and there is no national cap on the number of nonimmigrants who may enter the US on a P-1 visa as there is with the H-2B visa category that most minor league teams used previously. This flexibility will allow teams to more easily add players mid-season, assuming they encounter no difficulties from the USCIS or relevant consulate during the actual petition process.
Trades and Waivers: When a player is traded, released or put on waivers, additional issues are raised. A player who is traded may legally play for the new team prior to filing an appropriate petition, so long as the acquiring team files a new petition with the USCIS within 30 days of the trade. Once the 30-day deadline is met, the athlete will remain in status and will be able to play until the P-1 petition is decided. There is no need to premium process a trade petition, because the athlete is in legal status while the petition is pending.
The law does not specifically address the issue of players placed on waivers. "Waivers" refers to a player being released by a team whereby another team can pick up the player within 24 hours or the player is made a free agent. The rules are not clear whether a waiver is to be treated as a trade when the player is picked up by another team, though in practice USCIS appears to read the law broadly. Nevertheless, it would be considered good practice to file a new P-1 petition for the player. That player will not be able to enter the US to play until the new petition is decided. It is strongly advisable to premium process this type of petition so the player can resume play as soon as possible.
The P-1 visa category is also an attractive method for entertainers who are part of an entertainment group to come to the US to perform as an integral part of that groupís performance. Dance troupes, acting companies, orchestras and vocal groups are examples of the type of groups that use the P-1 visa for their members. This visa category is usually reserved only for those entertainers who are part of a group. In fact, individual performers cannot obtain a P-1 visa, unless they are coming to the US to join a foreign entertainment group.
The group with which a P-1 entertainer will perform in the US must be internationally recognized as outstanding in the discipline for a "sustained and substantial period of time," although the government may waive this requirement where the group is nationally recognized for a sustained and substantial period of time in consideration of special circumstances. For example, this exception may be available where a group has had difficulty gaining recognition outside its home country because of lack of access to news media or because of geographical considerations. The group also must have been established for a minimum of one year.
The P-1 visa also requires that an entertainer have a "sustained and substantial" relationship with the group, which is usually at least one-year. This requirement has three exceptions, however. First, this requirement only applies to 75% of the groupís performers and entertainers. Conversely, 25% of the group need not have a one-year relationship with the group. Second, the government may waive this requirement where an alien replaces an essential member of the group in the case of illness or unanticipated and exigent circumstances or where an alien augments the group by performing a critical role. Third, the one-year requirement does not apply to circus personnel who perform as part of a circus that is nationally recognized as outstanding for a sustained and substantial period of time.
A P-1S visa may be available to aliens coming to the US to work as essential support personnel for P-1 athletes, teams or entertainment groups. In the context of a P-1 athlete or entertainer, an essential support alien is defined as a highly skilled, essential person who is an integral part of the performance of a P-1 athlete or entertainer, because he or she performs support services that cannot be readily performed by a US worker and that are essential to the successful performance of the P -1 athlete or entertainer. Essential support personnel must have appropriate qualifications to perform the services, critical knowledge if the specific services to be performed and experience in providing such support to the P-1 athlete or entertainer. For example, coaches, league officials or referees, front office personnel, camera operators, lighting technicians and stage personnel are all examples of individuals who might be categorized as P-1S essential support personnel.
Other P Categories
While the P-1 category is the primary avenue for nonimmigrant entertainers who are part of groups to perform in the US , two other P categories are also available to certain types of entertainers. The P-2 category is reserved for artists or entertainers who are part of a reciprocal exchange program. There are only a few P-2 exchange programs to date. The P-3 category is reserved for culturally unique entertainers to enter the US to develop, interpret, represent, coach or teach their particular art or discipline. Essential support personnel may also enter the US to support P-2 and P-3 aliens. The P-4 category is available to the spouse or dependent(s) of a P-1, P-2 or P-3 alien who is accompanying or following to join the alien to the US .
To have a P-1 petition approved, the employer/petitioner must show that it consulted with a labor organization with experience in the field of athletics or entertainment involved and must submit with the petition an advisory opinion from that organization. In the alternative, if the petitioner establishes that no appropriate labor organization exists, the government may decide the petition without requiring an advisory opinion. If the petitioner does not submit an advisory opinion and does not establish that an appropriate labor organization does not exist, then the government will forward a copy of the petition and all supporting documentation to the national office of an appropriate labor organization within 5 days of the date of receipt of the petition. The labor organization must then meet certain requirements for responding to the petition.
General P-1 Application Procedures
More than one alien may be included in a petition so long as the aliens are located in the same country. For instance, all players for a sports team who are in Canada may be included on one petition, all players in Russia on another and all players in Poland on another. Coaches must be listed on separate, individual petitions. Support personnel must also be listed on a separate petition. A petitioner may file for aliens that are already in the US , but those aliens must be included on a petition that is separate from those aliens that are outside the US . Multiple aliens in the US may be included on the same petition.
Required Evidence to Support a P-1 Athlete or Athletic Team
When an application is filed on behalf of an individual athlete or athletic team, except for an application for a player in a league with six teams and $10,000,000 in revenue (or an affiliated league), the petitioner must present a tendered contract with a major US sports league or team or a tendered contract in an individual sport commensurate with international recognition in that sport, if such contracts are normally executed in the sport, and at least two of the following types of evidence:
For players on teams qualifying based on the size of the league and the league revenue, a contract with a team, evidence of the league meeting the threshold requirements noted above, evidence of the playerís qualifications and either the labor consultation or documentation that no appropriate group exists.
Required Evidence to Support a P-1 Entertainer or Entertainment Group
When the application is being filed on behalf of an entertainment group, the petition must be supported by the following evidence:
Evidence that the group has been established and performing regularly for at least one year; A statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis with the group; and Evidence that the group has been internationally recognized in the discipline for a sustained and substantial period of time, which may be shown in two ways: first, by nomination or receipt of awards for outstanding achievement in the field; second, by submitting three of the following types of evidence:
Length of Status
A P-1 alien may be admitted for as much time as is approved for the subject competition, event or performance. If an alien is admitted on a P-1 as an individual athlete, the period of initial status may be any length of time not more than five years, and that period of time may be extended for a period of up to 5 years.
Premium processing is available for P-1 visas and ensures that the petition will be decided within 15 calendar days from the date USCIS receives it. Premium processing requires an extra government filing fee of $1000. Without premium processing, the processing time for a P-1 visa is approximately two to five months, but it could be longer. For this reason, a petition for a P visa that is not being premium processed should be filed six months before the visa is needed.
The filing fee for a P visa is $320 as of July 31, 2007.
Gregory Siskind, Esq. 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.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.