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Options for
Athletes : O & P Visas (Part 1 of 2)
Posted
Apr 27, 2007
©MurthyDotCom
[See also, Part 2
of this NewsBrief.]
©MurthyDotCom
The United States is home to many of the world's top athletic events and
competitions, including numerous international athletes and sports teams. It
provides a rich and dynamic professional environment to some of the most
accomplished athletes and promising athletic stars of the future. As a
magnet for top competitors from around the globe, the U.S. offers a choice
of nonimmigrant visa categories for which athletes may be eligible. Most
commonly, athletes come to the U.S. for short-term employment in O, P, or
H2B status. Common features of these categories and differences between
them, as well as information on important updates, are provided here for the
benefit of MurthyDotCom and MurthyBulletin readers.
©MurthyDotCom
O and P Petitions can be Filed One Year in
Advance
©MurthyDotCom
On April 11, 2007, the USCIS announced that it would permit U.S. employers
and agents to file O and P petitions up to one year before a scheduled
event, competition, or performance. Previously, the cases could only be
filed six months in advance. This change was strongly supported by various
groups, including the sponsoring performing arts organizations, educational
institutions, even the general public, and the sports industry. Athletic
events and other performances are often scheduled well ahead and O and P
visa petitioners need to be able to plan for these events with time to plan
events. This is a positive change that will benefit many
U.S. petitioners and performers as they make
plans for events requiring the participation of foreign national athletes
and performers.
©MurthyDotCom
O Visas for Athletes
©MurthyDotCom
The O visa category is reserved for individuals with extraordinary ability
in the sciences, arts, education, business, or athletics, and is extended to
include their family members and critical assistants to the primary
beneficiaries. As reported in our October 12, 1998 MurthyBulletin
article, O-1 Visas
: Nonimmigrant Visas for Aliens of Extraordinary Ability, individual
athletes who meet a very high threshold of "extraordinary ability" may
qualify for the O-1 visa. These athletes need to 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."
©MurthyDotCom
Ways to Meet the O-1 Visa Eligibility Criterion
©MurthyDotCom
One way to meet this standard is to show the receipt of a major,
internationally-recognized award such as an Olympic gold medal. The more
common way to show eligibility for an O-1 status, however, is based on
providing evidence of meeting three of the following categories:
-
receipt of
nationally- or internationally-recognized prizes or awards for
excellence in the athletic field
-
membership in sports
associations that require outstanding achievements of their members
-
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 field
-
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
-
other comparable
evidence
All O-1 visa applicants,
including athletes, need to demonstrate that they are coming to the U.S. to
work in their specific areas of extraordinary ability or achievement. The
event, performance, or position for which an athlete comes into the U.S.
does not need to require the services of an athlete of extraordinary ability
or achievement. The chances for approval, however, may improve if the
individual is seeking the O-1 in connection with a high-caliber event,
performance, or position.
©MurthyDotCom
No Numerical Quota for O Visas
Unlike the H1B visa, the O-1 visa has neither a numerical quota nor the
prevailing wage requirement, but presumably the person is paid based on the
level of expertise. An O visa petition may be initially granted for three
years, but potentially may be renewed an infinite number of times in
one-year increments, provided the O-1 athlete continues to meet the
eligibility requirements.
©MurthyDotCom
O-2 and O-3 Categories
©MurthyDotCom
The O-2 category is set aside for foreign nationals who will accompany and
assist O-1 athletes in athletic performances. The
roles of such individuals is usually critical for the successful
participation of the primary O-1 visa holder and cannot be performed by
other individuals, as unique skills and experience is required. One
important distinction between individuals in O-1 status and those in O-2
status is that an O-2 must maintain a foreign residence which s/he has no
intention of abandoning - a requirement not imposed upon an O-1. The O-3
category is reserved for family members of O-1s and O-2s.
©MurthyDotCom
Visa Filing Procedures for the O Status
©MurthyDotCom
Classification in the O-1 and O-2 categories requires filing a petition by
an employer or a U.S. agent. An athlete may not file a petition on his or
her own. An O-1 petition needs to be accompanied by an advisory opinion from
a "peer group," labor organization, or management organization in the area
of the athlete's ability. This
requirement can be avoided if the petitioner
is requesting an expedited processing, and
if there is either no appropriate entity or
if a consultation has taken place within the two previous years. If
the athlete is abroad, s/he will need to apply for the O-1 visa at the
appropriate U.S. consulate. It is possible to include multiple O-2
beneficiaries in the same petition, but only one O-1 athlete can be named in
a single petition.
©MurthyDotCom
Alternative : P-1 Option for Other Athletes
©MurthyDotCom
For athletes who may not qualify under the O-1, the P-1 may be a viable
option. More information on this category will be provided in Part 2 of this
article. Look for it in a future edition of the MurthyBulletin. |
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