B-1 Visa

Athlete Visa and Athlete Green Card Options

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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.

Visa Waiver Entry for Business Purposes Refused at Chicago O’Hare

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My name is [REDACTED] and I am the CFO for [REDACTED], a UK firm that has offices in NY and Chicago.  I recently attempted to enter the US for business purpoes through the visa waiver program but was denied entry.  I explained that the purpose of my entry was to review accounting procedures at our newly opened branch office in Chicago.  Immigration told me that they considered this work and that that was not authorized under this program and that I should apply for a work visa.  Is this new policy?  I have never had trouble with this before.

I have seen this type of issue before and I have made it a point to be available for my clients who enter through O’Hare in case they run into entry problems like yours.  If you had called me at the time of your entry I may have been able to sort this out with CBP at O’Hare but since you’ve already left it is too late. This is not new policy but just a misunderstanding of current policy.  You may use the visa waiver program and the B1 visa for limited business purposes.

Company Relationship Requirements for the L1 Visa

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I have a B1 visa right now and I am in negotiations to purchase a US company. I have a company in Brazil that is looking to expand and found some opportunities here. What kind of visa can I get if I buy this company?

If you have worked for the Brazilian company for one year out of the last three in a managerial or executive position then you will be able to obtain an L1A visa. Many people believe that L1 visas are impossible in new acquisition scenarios but that is not the case. There is no time requirement for the relationship between the US company and the foreign company.

Nanny Visa Options

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There are four options for host families to bring a foreign nanny/domestic worker to assist them in their home.

J1 Visa – Au Pair

The easiest and, by far, most popular option is to bring a nanny as an au pair.  The au pair program utilizes the J1 visa and persons wishes to hire an au pair must do so through an au pair program authorized by the US Department of State.  The prospective au pair are preselected by the program sponsor and the host family must choose the au pair from the offered pool.  Costs are typically between $7,500 to $12,500 which are paid to the au pair program and the host family must also pay the au pair expenses which run between $250 to $450 per week.  The au pairs themselves must undergo training and many types of background checks.  In addition, the au pairs must meet the following requirements:

(1) Are between the ages of 18 and 26;

(2) Are a secondary school graduate, or equivalent;

(3) Are proficient in spoken English;

(4) Are capable of fully participating in the program as evidenced by the satisfactory completion of a physical;

(5) Have been personally interviewed, in English, by an organizational representative who shall prepare a report of the interview which shall be provided to the host family; and

(6) Have successfully passed a background investigation that includes verification of school, three, non-family related personal and employment references, a criminal background check or its recognized equivalent and a personality profile. Such personality profile will be based upon a psychometric test designed to measure differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.

The au pair may be granted a J1 visa for a duration of 12 months which can later be extended if the host family wishes to continue her services.

H2B Visa – Short Term Help

The H2B visa is generally employed by companies with seasonal or intermittent business such as coastal restaurants, theme parks or other tourist spots.  However, the H2B visa can also be used to bring nannies to the US.  Unlike the au pair program which requires the host family to go through an au pair program, the host family can directly petition for the nanny.  The downside is that the host family must be able to show that there are no available US workers for the job and that the work is temporary in nature.  While the visa may have a three year duration, the work period must be less than 12 months each year.  There are no program fees to be paid but the host family must pay the nanny the prevailing wage as determined by the US Labor Department.

B1 Visa – Accompanying US Travelers

US Citizens, permanent residents and foreign nationals coming to the US for temporary nature may bring domestic help with a B1 visa.  The parties must enter a written employment contract guaranteeing payment of the prevailing wage for an eight hour workday and provide any benefits normally required for US domestic workers in the area of employment.  B1 visa are typically valid for 6 months but may be extended.

PERM Labor Certification – A Permanent Solution

The PERM program offers a permanent solution for the host family that has chosen a nanny who they would like to keep permanently.  Similar to the H2B visa, PERM does not require the host family to go through a sponsoring agency, a prevailing wage must be paid and the host family must be able to show that no US workers are available for the position.  However, the work does not need to be temporary in nature and upon approval of the PERM process, the host family may petition for the nanny to obtain residency so she can enter the country.

In order to qualify as a nanny, the applicant must have two years of experience as a nanny and be offered full time employment as a nanny by the host family.  To qualify as a domestic live-in, the applicant must have one year of experience and the host family must show that the employment is a business necessity.