Athlete Visa and Green Card Basics
You might be an athlete coming to the United States to compete for prize money. Perhaps you are coming over to fill a spot on a team’s roster, or maybe you intend to coach or train while you are here, too. There may even be the possibility of permanent U.S. residency. As an athlete, your visa options really depend on the specific circumstances of your intended work in the U.S. and your athletic credentials. Here are the very basics:
The B-1 Business Visitor Visa (or Visa Waiver Program, if available)
If you are coming to compete in the U.S. as an individual athlete, you may enter on the B-1 provided that you do not receive a salary for your performance. You may, however, compete exclusively for prize money. This visa can also be used if you intend on coming to the U.S. for contract negotiations and the like.
In order to use the B-1 as a member of a foreign sports team, the following conditions must be met:
a. The athlete and the team are principally based in a foreign country;
b. The foreign team and players’ income and salaries are principally earned in the foreign country; and
c. The foreign-based sports team is part of an international league or the actual sporting events are international in nature.
Importantly, unlike most other categories, a U.S.-based sponsor is not required.
2. B-2 (or Visa Waiver Program, if available)
This is for the amateur athlete who may be competing in a sporting event for, say, simple enjoyment or charitable reasons. Being an amateur means that the athlete is not being paid to compete, other than potentially for incidental expenses.
3. P-1
If you are an internationally recognized athlete, be it as an individual or part of a team, and intend on being paid to participate in a sporting event or competition, the P-1 is for you.
Individuals must have “a high level of achievement in a sport, demonstrated by a degree of skill and recognition substantially above that ordinarily encountered”. Similarly, the sports team, in addition to being internationally recognized, must be taking part in a competition that has a distinguished reputation and “be at an internationally recognized level of performance such that it requires the participation of an internationally recognized athletic team”.Amateur athletes and coaches may also qualify for the P-1, subject to special guidelines.
A U.S.-based petitioner is required, but no labor certification is needed. However, no labor certification is needed. Instead, USCIS simply requires a “consultation” from an appropriate labor organization that simply issues a letter of “no objection” to the petition being approved.
4. O-1
This is the most flexible of athlete visas and is reserved for those who have extraordinary ability in athletics. Practically speaking, extraordinary ability is evidenced by achievements that are of national or international acclaim (think prizes, rankings, records, reviews from expert critics, earning a high salary as an athlete, membership in relevant prestigious organization or playing a starring role for a well-known team, etc.).
The major benefit of the O-1 is that the athlete can participate in a broader range of activities or events that are in the area of their extraordinary ability. The athlete may add engagements during the validity period, including, say, related coaching or promotional activities. The O-1 is also an outstanding option if the athlete intends to later apply for a green card since it does not have a foreign residency requirement.
As with the the P-1, an U.S.-based petitioner is required, but no labor certification is needed. The labor organization consultation is also required.
5. H-2B
This necessitates an U.S. sponsor who must show that the need for the athlete is a one-time need or a seasonal, peak load or intermittent need. It includes the quite cumbersome labor certification process, which seeks to confirm that no suitable U.S. person could fill for the role.
6. H-1B
As a “speciality occupation” visa, the intended work must be such that it requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty”.
Although most sports do not require a bachelor’s degree to participate effectively, this may very well be an excellent option for coaches or coaching staff.
What about coaches, trainers, managers and the like?
Coaches, managers or trainers may also, depending on the visa category, apply for other visas when traveling with an athlete as an “integral part” of their performance. If, for instance, the athlete qualifies for an O-1, such a coach may well qualify for an O-2, provided that they meet other specific requirements. The same goes for an individual or team qualifying for P-1 status, which allows integral support staff to accompany them via the P-1S category.
Can one qualify for a green card based on athletic ability?
Yes! There are a variety of employer-sponsored, as well as self-petitioning, green card options. Here are some to take note of:
a. EB-1A
The EB-1 category is for those that are “able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim”. USCIS provides 10 criteria of which the beneficiary must satisfy at least three:
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
Evidence of your membership in associations in the field which demand outstanding achievement of their members;
Evidence of published material about you in professional or major trade publications or other major media;
Evidence that you have been asked to judge the work of others, either individually or on a panel;
Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
Evidence of your authorship of scholarly articles in professional or major trade publications or other major media;
Evidence that your work has been displayed at artistic exhibitions or showcases;
Evidence of your performance of a leading or critical role in distinguished organizations;
Evidence that you command a high salary or other significantly high remuneration in relation to others in the field; and/or
Evidence of your commercial successes in the performing arts.
In addition, USCIS will consider the petition as a whole to determine whether it truly meets the threshold, which is substantially higher than, say, the “extraordinary ability” encountered in the O-1 context. The major benefit of this category is that no U.S. sponsor is needed, meaning that the athlete can self-petition and, upon approval, compete wherever, and with whoever, they wish.
b. EB-2 (and potential National Interest Waiver)
The exceptional ability standard here is lower than in the EB-1 context, but, in the absence of a national interest waiver, an EB-2 petition requires a U.S. employer to act as sponsor and complete the labor certification process, which seeks to show that no suitable U.S. person is able, willing, qualified and available to accept the opportunity.
However, it may be possible for an athlete to self-petition without the involvement of a U.S. sponsor, whilst also avoiding the labor certification requirement. This is done by a National Interest Waiver. In short, the beneficiary athlete must convince USCIS to waive the labor certification due to U.S. national interest based on the following factors:
The proposed endeavor has both substantial merit and national importance;
The beneficiary is well positioned to advance the proposed endeavor; and
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
Note that there has been some discussion on the fact that the EB-2 regulations only refer to “exceptional ability in the sciences, arts, or business,” thus omitting, unlike in the EB-1 context, explicit reference to “athletics”. After some litigation — see Matter of Masters, 22 I&N Dec. 125 (D.D. 1969) — and internal analysis, the current USCIS position, according to chapter 22.2 of its Adjudicator's Field Manual, is that an athlete can indeed qualify as a “alien of exceptional ability in the arts” in the EB-2 context. It should also be noted that having to prove national (not just local or regional) interest can be very limiting.
c. EB-3
This category is for “a skilled worker, professional, or other worker”. Specific requirements depend on what kind of worker the athlete/coach qualifies as. The major drawback is that this category also requires an U.S. employer to petition and complete the labor certification showing that there is no suitable U.S. person for the opportunity.
IMPORTANT NOTE:
Each of the immigration categories above have only been discussed in very basic detail in order to help navigate the fundamentals of each option. There is a lot more to know about the specific requirements in each case. This can be done by, for instance, consulting the USCIS website and USCIS policy manual. For instance, Volume 6, Part E, Chapter 7, of the USCIS Policy Manual describes the labor certification requirements in great detail. Likewise, USCIS Policy Manual Volume 2, Part M explains the nuanced approach USCIS takes in determining “extraordinary ability” in the O-1 context.