Athlete Visa and Athlete Green Card Options

For foreign nationals who wish to come to the United States to work or perform as an athlete in sports like football, basketball, hockey, MMA, tennis, golf or in other competitions, there are several different visa and green card options to be found.  Typically, the most difficult part of the process is finding sponsorship but, fortunately for you, I can tell you several ways to get around that issue to perform in the US legally.

Athlete Visa Options

Option 1 – The B1 Visa.  The B1 visa, also known as a business visa, can be used by amateur athletes “competing in an athletic event for which they will receive no payment, other than incidental expenses” and by professional athletes “who receive no salary or payment other than prize money.”  This is clearly not the best option for an athlete who wishes to remain in the US for a longer term as this visa is limited to a six month duration and typically only granted for the exact sporting event period which can be just a couple weeks.  Also, payment is limited to prize money or incidentals.  However, it does not require sponsorship and you do not have to file a petition to USCIS for approval.  The application for a visa can be made at the Embassy and the process is very quick though not always simple to get approved.

Option 2 – The H2B Visa.  The H2B is a seasonal worker visa.  It can be used by athletes to perform in any sport that is seasonal, such as basketball or hockey.  However, for sports that are played year round, this visa type will not be an option.  The H2B visa required a US employer to sponsor the athlete and even more than that, the employer is required test the market for potential employees, run advertisements and promise to pay the “prevailing wage” for the job.  Then the employer must file applications with both the US Department of Labor and USCIS and get approvals from both before a visa application can be made at the Embassy.  Another benefit is that the H2B visa holder can bring his or her spouse or children along with an H4 visa.  The process is slower and cumbersome and you must stay aware of the H2B visa cap which mandates that only 66,000 H2B visas be issued each fiscal year.

Option 3 – The O1 Visa.  The O1 visa is limited to foreign nationals with “extraordinary ability.”  This basically means that this category is reserved for accomplished professional athletes.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  Having a sports agent as a sponsor for your O1 visa is ideal for golf, tennis or other individual sports players that are going to play at multiple different sports events or tournaments.  Unlike the H2B visa, there is no wage requirement and there are no required tests of the labor market.  The employer or agent will file a petition with USCIS and once that is approved, an application for a visa can be made at the Embassy.  A big benefit of this visa type is the athlete can bring a spouse and children along with an O3 visa and you can bring your assistants (multiple) with an O2 visa!

Option 4 – The P1 Visa.  The P1 visa is the only visa type that is specifically designed for athletes.  The athlete does not need to demonstrate extraordinary ability and there is no distinction between amateurs or professionals or individual or groups.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  There is no prevailing wage requirement and no test of the labor market is required.  However, the athlete must be “internationally recognized” and is used to compete at a specific athletic competition.  If you are only competing for prize money, the B1 visa is likely the better option and if you want to remain in the US for a longer period of time then you are likely better off with the H2B visa or O1 visa.

Athlete Green Card Options

Option 1 – PERM Labor Certification + EB3 Green Card.  The PERM labor certification requires a US employer to promise to pay the athlete the prevailing wage and perform a test of the US labor market to see if any minimally qualified US workers are willing and able to take the position, if offered to them.  If no US workers can be located then the green card application can proceed.  The PERM process + the green card process typically takes a couple years if there are no complications or no visa availability issues as listed in the visa bulletin.

Option 2 – EB1 Green Card.  The EB1 requirements mirror the requirements of the O1 visa.  The athlete must be a professional and be significant accomplishments in the sport as to show they are extraordinary.  However, unlike the O1 visa which requires sponsorship by a US employer or agent, the EB1 category has no such requirement.  That means that any foreign athlete can self sponsor and petition for a green card based on their own merits and does not have to rely on anyone else.  When the green card is approved, they are required to continue in their sport but not with any particular employer or agent.  This category is very quick and we have many EB1 cases approved in less than 1 week.

If you would like to explore your athlete visa or athlete green card options, you can contact our office by phone at 305-515-0613, by email at info@messersmithlaw.com or through this contact form.  Our firm has handled thousands of immigration cases and we can evaluate your case to determine the best path for you.

Nonimmigrant Employment While EAD Application is Pending

Right now I am working with a L1A visa status and my company wishes to apply my green card. I know I can get the EAD but and thinking I can work with my L1A until the green card is approved. Is this ok? Also, can you help me with the green card? My company and me are not happy with our previous immigration lawyer.

Yes, you can continue to work on your L1A as long as it is valid and you can even extend the L1A visa status while the green card application is pending. It is actually a good idea not to get the EAD card. If you use the EAD card to work for someone that is not your L1 visa sponsor then you will violate your L1 visa status and if your green card application is denied then you will be out of status. Unless there is a particular reason you need the EAD such as in cases where the L1 visa is expiring you do not wish to extend or don’t qualify for an extension, then you can avoid applying for it.

We’ll be happy to assist you with your application. In the past 12 months, we have been securing many EB1 green card approvals in 2 months or less through regular processing (no extra premium fee required) and should be able to help you. Please send us a copy of your resume and details regarding your company

J1 Waiver for a J2 Holder

I have J1 visa and my spouse J2 visa. Our visa expires on September 6, 2012 and I am leaving with my kids back. But my husband needs to stay here in order to improve his English and get some upgrade in his education. But he has as I do, two year rule restriction. Can you help us to waive this 2-year rule? If I am not intending to stay here and planning to leave in April, is it possible that the process goes without me. Or is it necessary, that I stay here till the decision is made.

Canceling the labor certification is not required. You can file simultaneous EB1 and NIW petitions and We can help you with a waiver. You do not need to stay here until the decision to be made but it’s not possible to process the case without you.

L1 Visa Stamping Delays

My company filed an L1 visa application for me which was approved in September of 2009. I went to apply for the L1 visa stamp in Madrid but was told that they could not issue the visa due to an “internal administrative process.” What is an internal administrative process? Does this mean that they will not issue the visa? Can I go to another Consulate to apply?

We’ve seen this type of issue before and it has always been related to either an FBI name check issue or anti-fraud measure that required a site visit by a USCIS hired private investigator. I would not recommend applying for the visa stamp at another Consulate until this is resolved. In our experience, it typically takes 1-2 months to complete the review.

H1B Visa Stamping for Researchers and Scientists

My company recently filed my H1B application which was quickly approved by USCIS. I went to the US Consulate in Chennai for stamping and they asked me to complete a detailed questionnaire about my research, my qualifications and how my trip to the US will benefit my research. I wasn’t expecting this and they told me that my answers could result in an indefinite wait for the visa stamp. Is there anything you can do to help?

While these questionnaires would appear to be more applicable to EB1 or NIW beneficiaries, they are actually for a Security Advisory Opinion from the US Department of State. These lengthy questionnaires are becoming more and more common for persons coming to the US to do any sort of research whether the application is for H1B visa, O-1 visa or EB1 or NIW. .Most of our clients are getting clearance in about 1-2 months and we are instructing applicants to plan ahead.

Visa Bulletin Outlook for 2009/2010

The Department of State Visa Office has made several predictions regarding the movement of priority dates for the remainder of 2009 and beyond.  These predictions include the following:

  1. Regarding the EB1 category, all countries are expected to remain current for 2009 but this is expected to change in 2010 for India and possible China due to high demand
  2. Regarding the EB2 category, retrogression for India and China is expected to worsen for India and China.  Both countries are expected to become unavailable in August or September 2009.
  3. Regarding the EB3 category, EB3 wordwide and for China, India, Mexico and Philippines are expected to reamin unavailable for the remainder of the fiscal year.  In October, it is likely the priority dates will be March 1, 2003 for EB3 worldwide, China will be March 1, 2003, India will be November 1, 2001 and Mexico will be March 1, 2003.
  4. Regarding the EB4 category, it is expected to be current for the remainder of the fiscal year but a cut off date will likely be established in FY2010.
  5. Finally, for the EB5 category, it is expected to remain current for the foreseeable future though there is higher demand in this category.