10 crucial concepts about U.S. Immigration for international athletes
Published 24 February 2015 By: Christine Swenson
How U.S. immigration laws might apply to international athletes is a notoriously tricky issue. While each application has to be individually assessed on its merits, this author would like to identify and explain 10 crucial concepts that you need to know when considering the issues of an international athlete working or travelling to compete in the U.S.
1. Immigration visas are an alphabet soup
Professional athletes can potentially obtain one of four different types of visas: B-11 (or the visa waiver program (VWP), depending on the country), P-1,2 O-1A,3 and O-1B.4 Diverse factors can influence which visa might be appropriate.5 Some relevant questions to answer are: will the foreign athlete participate individually or play as part of the team? Will the athlete actually play, or will he or she likely sit on the sidelines? Will they play at an elite level or more amateur level? Does the foreign national have a documented record of competing at home, abroad, and here in the United States? Is the athlete or his or her team internationally ranked? Finally, will the athlete be working in any other capacity or just playing for prize money from a tournament or competition?
If the athlete will not be employed in the United States – i.e. he or she is only working to win prize money -- then a B-1 visa or the VWP, for participating countries, may be appropriate. If the athlete is “internationally recognized,” the P-1 classification may make sense. The O-1 visa category, meanwhile, is reserved for individuals with “extraordinary ability” -- that is for athletes who have reached the apogee of their careers.
2. O and P visa categories can overlap and cause confusion
The word “extraordinary” is pivotal when it comes to O visas. As an O-1A beneficiary athletes must demonstrate extraordinary ability that’s led to sustained national or international acclaim. As an athlete, you need to be “recognized in the field through extensive documentation.” Specifically, you need “a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.”6
In comparison, the P-1 is available to individual athletes as well as to athletic teams. The P-3 visa, meanwhile, can be used for coaches.
An O-2 visa applies to accompanying foreign nationals. For instance, a coach, a trainer, or a doctor who works very closely with a player may qualify for this category, assuming that he or she is coming to United States solely for the purpose of assisting the athlete. The person who seeks the O-2 must play an integral role in the athlete’s performance. Finally, the O-2 visa holder must maintain a permanent foreign residence that he or she does not plan to abandon.
An O-1B visa might be appropriate for certain athletes who can’t establish the O-1A or the P-1 visa criteria, for whatever reason.7 O-1B visas are reserved for “artists” (as opposed to O-1A visas, which are reserved for “athletes”), however some sports and athletic activities can be classified as artistic endeavors – for instance if the athlete is in his first year as a professional, or competes in a sport that lacks conventional awards or prizes. Or perhaps the athlete’s sport does not have an official international ranking scheme that would allow him or her to qualify for a P-1 visa. P-1 visas are often appropriate for teams that compete – for instance, members of a high-ranking football club from Spain or England might apply for P-1 visas.
3. Athletes who also work in the U.S. as “artists” can have special tax obligations.8
In October 2007, the IRS established a task force dedicated to “improving U.S. income reporting and tax payment compliance by foreign artists who work in the United States.” Four years ago, the IRS increased its enforcement and called upon venues and organizations to withhold 30 percent from a guest artist’s compensation (gross). When and how an athlete might qualify as a “nonresident” “guest artist” would take several pages to explain, but the bottom line is that athletes hired to do commercial work – such as starring in a Coke or McDonald’s commercial, singing at a charity event, or engaging in similar artistic activities – must be mindful of immigration-related tax consequences. If you are an agent or manager who represents such an artist, you may be liable for withholding 30 percent for taxes from the income that the foreign artist earns in the United States and, if you don’t, you could be liable for the amount that the IRS wanted you to withhold. The withholding doesn’t just apply to the artist’s gross income but also to other types of compensation, such as fees and reimbursements.
4. Deportability and Inadmissibility: Even world famous athletes are not immune9
The Immigration and Nationality Act (INA) defines the concepts of “deportability” and “inadmissibility” in great detail. In essence though, “deportability” means the government has reason(s) to kick you out, and “inadmissibility” means the government has reason(s) to keep you out. Deportation (or removal) is triggered by serious incidents and relates mostly to “Legal Permanent Resident” athletes who have green cards. Most relevant to athletes in O or P status are the circumstances where they may find themselves “inadmissible”, examples being:
- Engagement in notorious public behavior. This behavior does not necessarily need to be illegal, nor does it have to occur in the U.S.. There doesn’t need to be a criminal charge filed in order for the issue of “inadmissibility” to come into play. “Immoral” or drug-related behavior or even false or wildly inaccurate and misleading reports in the press can render an athlete inadmissible. That may not be fair, but you need to be watchful for those potential issues.
- Engagement in an act that violates state or federal law. For instance, maybe the athlete experimented with performance enhancing drugs that are illegal in U.S., committed a violent act at a bar, failed to obey financial laws like paying taxes, or tried drugs that may be legal in one state (or your client’s home country) but is still banned under U.S. federal law. Even the athlete wasn’t arrested, charged, or convicted, but admits to the offence during a media interview or as part of a plea or rehabilitation program, this wrongdoing can lead to inadmissibility.
- Violation of status rules now or in the past. For instance, maybe he overstayed his authorized stay on a previous visit to the U.S. to participate in a tournament. Maybe he engaged in unauthorized activity during a previous visit. Maybe her original flight was canceled or delayed causing her to remain one day past the exit date in her passport. Failure to abide by immigration regulations would give the government reason deny entry to the U.S., not to approve a visa application or to revoke an issued visa. It is not unheard of for someone to be escorted off his arriving flight to the U.S. and put right back on another flight back home.
If an athlete falls into one of the above categories, it does not mean they are barred forever from entering the U.S. but it can mean long delays to process a waiver of inadmissibility, so spotting these issues early and planning in advance is critical. Even a DUI (driving under influence), which may not make the athlete inadmissible to the U.S. can still delay their visa issuance for several weeks while the government does background checks and medical tests, prior to visa approval.
5. The COMPETE Act’s lack of guidelines often creates problems.
The COMPETE Act of 200610 (the Act) is a very short law that broadened the definition of a P-1 visa athlete to include certain athletes and coaches who play in amateur or foreign leagues, provided they meet a variety of preconditions. The Act shifts qualified athletes away from the H-2B visa, which is created for one-time performances or seasonal workers, such as the winter ski industry. For example, it allows ice skaters, their teams’ coaches and trainers to procure P visas to come to the U.S. This sport doesn’t lend itself to the neat categorization of major league standings, which was previously the focus of the P-1 visa.
Athletes and sports franchises benefit from the Act because there is no cap for P-1 visas. Comparatively, not only is there a cap for the number of H-2B visas each year, there is often more demand than availability, and only 63 countries are allowed to participate in the H-2B visa program. No longer do teams have to sacrifice acquiring international talent based on the availability of the H-2B visa. The H-2B visa program has the added burden that team franchises to obtain a temporary labor certification from the U.S. Department of Labor, which requires franchises to demonstrate a lack of qualified U.S. workers among other requirements.
So, what’s the problem? The U.S.C.I.S. never created regulations that spelled out how individual athletes and coaches should be treated from an immigration perspective as a result of the Compete Act. The Act was meant to improve the competitiveness of American sports teams, yet because regulations have not been updated, the guiding memoranda11 add requirements and restrictions that undermine the Act’s purpose. This has created serious confusion. Critics have documented many instances of coaches and athletes who were unfairly denied their P-1 petitions because of this ambiguity in the Compete Act. For example, coaches are sometimes denied the P-1 visa because one reviewing official does not consider coaches “athletes”12 while another might. In U.S. immigration law, the use of memoranda to implement legislation is frequent and unavoidable. Until the Code of Federal Regulations is amended to addresses these inconsistencies, the COMPETE Act of 2006 will continue to be a hurdle international athletes have to overcome when looking to the U.S. for a career.
6. If the athlete is an international star, strongly consider a P-1A visa.13
If the athlete has become “internationally recognized,” they may be able to obtain a P-1A visa to come to the U.S. to compete. The P-1 allows an athlete to visit the U.S. for a limited time to participate in an internationally recognized competitive athletic event. The event can be a competition (e.g. a basketball tournament) or a performance, but it must be a well-known event that’s recognized in multiple countries. To qualify, the athlete must be distinguished in a sport, and the employer in the U.S. has to file a form I-129 (“petition for non-immigrant worker”).14
Importantly, the athlete’s support staff can also enter the country on P-1 visas, as long as they’re coming to play in a competition. Semantically speaking, a “competition” could be a single activity, or it could constitute a full season of play.
7. Documentation of international acclaim and dominance in a sport can make the visa process easier.15
For instance, to qualify for a P-1A visa, the athlete needs to produce documentation of at least two of the following pieces of evidence:
- The athlete has played in an international competition for his or her country’s team;
- He or she has played for a U.S. university or college in a major athletic competition or a U.S. sports league in previous years.
- The athlete or his or her team has been ranked, assuming that the athlete’s sport is big enough and respected enough and has an international ranking system.
- The athlete or the athlete’s team has won major honors in the sport.
- A respected expert in sports media or an official from the sport’s governing body has written that the athlete or the athlete’s team is internationally recognized.
- A member of the sports media or other expert in the sport has written that the athlete or the athlete’s team has won international recognition.
More can be better; it’s a delicate balance between quality versus quantity. The bottom line is to collect and collate this kind of documentation to pave the way for a smoother immigration process.
8. Coaches, support staff visas are dependent on the athlete’s visa category.
For instance, coaches and sports staff might apply under the P-1S visa, which defines eligibility for people who “perform support services which cannot be readily performed by a United States worker and which are essential to the successful performance of services.” P-1S visa holders tend to support P-1 athletes or teams. If an athlete obtains an O-1 visa, on the other hand, the coaches and trainers would need O-2 visas instead. One key distinction is that to qualify for the O-2, the support personnel has to have prior “critical skills and experience” with the O-1 athlete. Of course, there are visa options under both categories that apply to the performer’s family too.
9. Four criteria athletes must meet to qualify for a B-1 visa or Visa Waiver Program (VWP).
If the athlete wants to come to the United States to play in a promotional game or other type of limited athletic participation, they may be able to obtain a B-1 visa or use the Visa Waiver Program (VWP) provided that they meet several criteria. First off, the athlete and his or her sports team must be located principally outside the U.S. Secondly, the player and the team must earn income principally outside of the U.S. Third, the team must be of international caliber and must play sports in an international league. Finally, athletes cannot receive a salary from a U.S. source, but can receive prize money. It should be kept in mind that the athlete must be from one of the participating countries as a prerequisite for VWP eligibility.
10. Predicting when and how an athlete’s immigration status could unravel or cause problems is effectively impossible.
President Dwight Eisenhower famously once said, “plans are useless, but planning is indispensable.” By that, he meant life is unpredictable. You can never know when serendipities or negative surprises might come your way. The ability to “surf” these surprises – to react nimbly, effectively, and creatively to them – hinges on preparation. Understanding the complexities of U.S. immigration law (as it applies to the athlete’s specific circumstances) and forging relationships with experienced professionals, like immigration attorneys who work primarily with athletes, can hedge against problems and help international clients thrive and enjoy robust careers.
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- Tags: Governance | Immigration | Regulation | United States of America (USA) | U_S_ Citizenship and Immigration Services
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About the Author
Christine Swenson is the founder of Swenson Law Office, PC, which focuses exclusively on U.S. immigration law. Within that area, Christine concentrates on the unique immigration needs for the sports and entertainment industries and international investors.