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P-1 Status for Internationally Recognized Athletes and Entertainment Groups

Written by Henry J. Chang

Update

The Creating Opportunities for Minor League Professsional, Entertainers, and Teams Through Legal Entry Act of 2006 (COMPETE Act of 2006), Public Law 109-463, has expanded the P-1 classification to include certain athletes who were formerly admitted as H-2B nonimmigrants. The following types of athletes and performers who seek admission for the purpose of performing in a competition or theatrical ice skating production now fall under the P-1 nonimmigrant visa classification:

  1. An individual who performs as an athlete, individually or as part of a group, at an internationally recognized level of performance.
  2. A professional athlete employed by: (1) a team that is a member of an association of 6 or more professional sports teams whose combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its members regularly engage, or (2) any minor league team that is affiliated with such an association.
  3. Individual coaches or athletes performing with teams or franchises located in the United States that are part an international league or association of 15 or more amateur sports teams if: (1) the foreign league is operating at the highest level of amateur performance in the relevant foreign country, (2) participation in that foreign league renders the players ineligible, whether on temporary or permanent basis, to earn a scholarship or participate in the sport at a college or university in the United States under the rules of the National Collegiate Athletic Association, and (3) where a significant number of players who play in the foreign leagues are drafted by major league or minor league affiliates of such sports leagues in the United States.
  4. Amateur or professional ice skaters who perform, individually or as part of a group, in theatrical ice skating productions or tours.

The COMPETE Act of 2006 excludes any alien athlete professional or amateur, or coach, from countries deemed state sponsors of international terrorism.

Overview

The P category applies to athletes and entertainment groups, essential support personnel of P aliens, and dependents of P aliens. There are four types of P subcategories under the Immigration and Nationality Act ("INA"). Only the P-1 and P-4 (dependents) categories are discussed here. The P-2 and P-3 categories are discussed in separate articles.

P-1 status is given to athletes performing at an internationally recognized level of performance, either individually or as part of a group, and to entertainers performing as part of a group which has been recognized internationally as being outstanding for a sustained period of time. The applicable requirements are discussed below.

International Recognition

The term "internationally recognized" is defined in Title 8 of the Code of Federal Regulations (the "Immigration Regulations") as a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is renowned, leading or well-known in more than one country . This standard is less restrictive than the extraordinary ability standard for O-1 aliens in athletics, science, education and business. While an alien athlete need only demonstrate national recognition under the O-1 category (instead of international recognition), the alien must also demonstrate that she has risen to the very top of her field. For this reason, it is often easier for athletes to qualify under the P-1 category. However, the P-1 standard closely resembles the lower O-1 standard applied to aliens in the field of arts (other than those in motion picture or television).

For P visa purposes, "competition, event or performance" is defined as an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event or engagement. According to the definition, such an activity can include short vacations, promotional appearances for the petitioning employer relating to the competition, event or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could also include an entire season of performances. A group of related activities will also be considered an event. An event should also include a contract for athletic services as long as it references an identified competition or itinerary.

Essential Support Personnel

The Immigration Regulations permit essential support aliens to be admitted in the same classification as the principal alien. The term "essential support alien" is defined at 8 CFR §214.2(p)(3) as a highly skilled, essential person determined by the Director to be an integral part of the performance of a P-1, P-2, or P-3 alien because he or she performs support services which cannot be readily performed by a United States worker and which are essential to the successful performance of services by the P-1, P-2, alien. Such alien must have appropriate qualifications to perform the services, critical knowledge of the specific services to be performed, and experience in providing such support to the P-1, P-2, or P-3 alien.

P-1 Athletes and Athletic Teams

P status is available to athletes, either individually or as part of an athletic group or team. However, in order to qualify the alien athlete must be internationally recognized as an individual or be a member of a foreign athletic team or group that is itself internationally recognized . Athletes who are not internationally recognized individually may be granted P-1 status based on their membership in an internationally recognized foreign team but they may not perform services separate and apart from the team . Where the alien athlete is entering the United States to perform with a U.S. team, the athlete must be internationally recognized as an individual . In either case, athlete or team must be entering the United States to participate in an athletic competition that has a distinguished reputation and which requires participation of an athlete or athletic team that has an international reputation.

A petition for an athletic team must be accompanied by evidence that the team, as a unit, has achieved international recognition in the sport. A petition for an individual athlete who will compete individually or as a member of a U.S. team must be accompanied by evidence that the athlete has achieved international recognition in the sport based on his or her reputation. Title 8 of the Code of Federal Regulations (the "Immigration Regulations") specifically require that a petition for an athlete or foreign athletic team include the following:

  1. a tendered contract with a major United States sports league or team or a tendered contract in an individual sport commensurate with international recognition in that sport, if such contracts are normally executed in the sport; and

  2. documentation of at least two of the following:

    1. evidence of having participated to a significant extent in a prior season with a major United States sports league;

    2. evidence of having participated in an international competition with a national team;

    3. evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition;

    4. a written statement from an official of the governing body of the sport which details how the alien or team is internationally recognized;

    5. a written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;

    6. evidence that the individual or team is ranked if the sport has international rankings; or

    7. evidence that the alien or team has received a significant honor or award in the sport.

P-1 Entertainers

P-1 status is available only to entertainers who perform as members of an entertainment group (or are an integral part of the performance). An entertainment group consists of two or more persons who function as a unit. If a solo artist normally performs with the same musicians or singers, the act may still be considered an entertainment group. In contrast to the treatment of individual athletes under the P-1 category, individual entertainers are not eligible for P-1 status and must seek admission under the O-1 category.

As in the case of athletic teams, the international recognition of the group is the controlling factor, not the international recognition of the particular entertainer seeking P-1 status. Although alien athletes performing as part of an U.S team must establish international recognition individually , there does not appear to be any such requirement for P-1 entertainers.

There is no statutory or regulatory requirement that the other members of the group qualify for P-1 status or that the other members even be aliens. Notwithstanding the lack of statutory and regulatory framework, there is still controversy regarding whether an entertainer may enter the United States under P-1 status to work with a U.S. based group. The position of the INS appears to be that the group must be foreign based, although this interpretation is in dispute.

Seventy five percent of the members of the group must have had a sustained and substantial relationship with the group for at least one year and must provide functions integral to the group's performance . Exceptions to this one-year rule exist specifically for circus groups and generally for an alien who, because of illness or unanticipated and exigent circumstances, replaces an essential member of a P-1 entertainment group or an alien who augments the group by performing a critical role.

To qualify for P-1, it must be established that the group has been internationally recognized as outstanding in the discipline for a sustained and substantial period of time. Notwithstanding the above, circus groups are not required to show international recognition as long as the group has been recognized nationally as outstanding for a sustained and substantial period of time. It is also possible to obtain a waiver of the international recognition requirement for an entertainment group which has been recognized nationally for a sustained and substantial period of time, where "special circumstances" exist. A specific example of "special circumstances" is where an entertainment group finds it difficult to demonstrate recognition in more than one country due to such factors as limited access to news media or consequences of geography.

The Immigration Regulations provide for specific evidence which must accompany a P-1 petition for an entertainment group:

  1. evidence that the group has been established and performing regularly for at least one year;

  2. a statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group; and

    1. evidence that the group has been internationally recognized in the discipline for a sustained and substantial period of time. This may be demonstrated by establishing the group's nomination or receipt of significant international awards or prizes for outstanding achievement in its field or by providing three of the following types of documentation:

    2. evidence that the group has performed and will perform as a starring or leading entertainment group in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;

    3. evidence that the group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material;

    4. evidence that the group has performed or will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications or testimonials;

    5. evidence that the group has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as ratings; standing in the field; box office receipts; record, cassette or video sales; and other achievements in the field as reported in trade journals, major newspapers or other publications;

    6. evidence that the group has achieved significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field; or

    7. evidence that the group has either commanded a high salary or will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field.

Unlike in the O-1 category, there is no provision for the submission of "comparable evidence" to establish international recognition.

Labor Consultations

No P-1 visa will be approved by the INS unless a consultation with the appropriate labor organization has been conducted . Unlike the O-1 regulations, there is no reference to "peer group" or "collective bargaining representative" for P-1 consultations. Advisory opinions from labor organizations address whether or not the alien or group is internationally recognized and whether or not the services to be performed are appropriate for an internationally recognized alien or group although a letter of no objection may be submitted by the labor organization in lieu of an advisory opinion. The procedures for obtaining P-1 consultations, including those for expeditious handling, are similar to O-1 consultations.

Validity of Petitions and Terms of Admission

A petition for a P-1 athlete or entertainment group may be filed by a U.S. employer or sponsoring organization, foreign employer or established U.S. agent. An established U.S. agent may file a petition in cases involving an alien who is traditionally self-employed or uses agents to arrange short-term employment on his or her behalf with numerous employers or where a foreign employer authorizes the agent to act in its behalf. However, the agent must provide a detailed itinerary of the proposed event or events. Copies of contracts between the employers and the alien may have to be submitted as well. An agent performing the function of an employer will be required to provide a copy of the contract between itself and the alien and an itinerary of definite employment planned for the period of time requested.

A petition for an individual P-1 athlete is valid for up to five years , although such athletes must be coming to the United States to perform at a specific athletic competition or event. P-1 athletic teams and entertainment groups may be admitted for the period of time necessary to complete the performance or event, not to exceed one year. Petitions for essential support personnel to P-1 aliens shall be valid for a period of time necessary to complete the event, activity, or performance for which the P-1 is admitted, not to exceed 1 year.

The Immigration Regulations define the terms, "competition, event, or performance" as follows:

an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such an activity could include short vacations, promotional appearances for the petitioning employer relating to the competition, event, or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances. A group of related activities will also be considered an event.

Extensions of stay up to a second five-year period are permitted for individual P-1 athletes, for a total stay not to exceed ten years. For athletic teams and entertainment groups, extensions may be granted for up to one year at a time to continue or complete the activity for which they were initially admitted.

Dual Intent for P-1 Aliens

Although the statute appears not to recognize dual intent, the regulations indicate otherwise. INA §101(a)(15)(P) defines a P non-immigrant as an alien having a foreign residence which the alien has no intention of abandoning . This ordinarily means that the doctrine of dual intent is inapplicable to the category. However, the regulations clearly indicate that the approval of a permanent labor certification or the filing of a preference petition for the alien shall not be a basis for denying a P petition (excluding essential support personnel). So long as the alien maintains an unabandoned foreign residence, it appears as though dual intent is recognized. Please refer to the article on dual intent for additional information.

Strike Breaker Provisions

As in the O-1 category, "strike-breaker" provisions apply to the P category. If the Secretary of Labor certifies that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place where the beneficiary is to be employed and that the employment of the beneficiary would adversely affect the wages, and working conditions of U.S. citizens or lawful permanent residents, a P petition will not be approved.

Liability of Employer for Return Transportation

Should the employment of an alien who entered under P status terminate, for reasons other than voluntary resignation, the employer and the petitioner (if different) are jointly and severally liable for the reasonable cost of return transportation for the alien to his or her last place of residence. However, as in the case of O-1 aliens, where the alien entered the United States under a different category and subsequently adjusted status to P, this provision will not apply.

Dependents of P-1 Aliens (P-4)

Dependant spouses and children of P-1 aliens are eligible for P-4 status. They may accompany or follow to join the principal alien. P-4 aliens may not accept employment without an independent nonimmigrant classification permitting employment or another independent basis for employment authorization.


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