Options for Athletes : O & P Visas (Part 1 of 2)
Posted Apr 27, 2007
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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.
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O and P Petitions can be Filed One Year in Advance
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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.
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O Visas for Athletes
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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."
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Ways to Meet the O-1 Visa Eligibility Criterion
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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.
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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.
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O-2 and O-3 Categories
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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.
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Visa Filing Procedures for the O Status
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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.
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Alternative : P-1 Option for Other Athletes
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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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