Overview

This category of visa entails internationally recognized athletes (P-1A) or entertainment groups (P-1B), exchange artists (P-2), culturally unique artists (P-3), support staff (P-1s), and family (P-4).  These are all nonimmigrant visas good for 1-5 years at a time depending on the exact status.  None of them require correspondence with the Department of Labor, but they do require consultations with the appropriate labor organization or guild if one exists.  This can even be a “letter of no objection.”  An experienced immigration attorney can help you determine the best way to address this requirement for your specific case.  An overview of the rules surrounding each subcategory is below.

Internationally-recognized athlete (P-1A):

The P-1A subcategory is for competitive athletes.  It is a nonimmigrant (temporary) visa that can be issued with a validity period up to five years with extensions after that.  Though liberally allowed just years ago, a P-1 athlete’s ability to earn ancillary income through related-activities is a delicate subject in the current atmosphere.  However, athletes of a high enough caliber can bypass this issue if they qualify for the O-1 visa for extraordinary ability, which is a higher standard than the P-1 requirement of “international recognition.”  Also, there are many structures through which to structure this type of petition, the agent-based structure being one of the most versatile.

Qualification:

All P-1 petitions require a contract with a major U.S. sports league or team that is commensurate with an internationally recognized athlete.  Each competitor must submit an itinerary showing the events they will participate in.  The events on the athlete’s itinerary must have distinguished reputations within the sport and require the participation of internationally recognized competitors.  Also, make sure you plan the events far enough in advance to get the full requested validity period, even if the itinerary has to be tentative.  If an itinerary only lists a year of events, for example, the USCIS will not grant the P-1 visa for longer than a year.

P-1A athletes must demonstrate that they are internationally recognized.  This can be done via two methods: one is through participation on a professional sport team in a league, and the other is through playing in high-level competitions and fulfilling two out of seven evidentiary criteria (discussed below).  Often an athlete can qualify through both methods but can only choose one, in which case a consultation is recommended to determine the strongest path forward.

The first option for demonstrating international recognition is through the COMPETE Act (Creating Opportunities for Minor League Professionals, Entertainers, and Teams Through Legal Entry Act of 2006).  The COMPETE Act allows facilitates the passage of athletes affiliated with Major League teams in leagues with at least six teams and combined revenues exceeding $10M, or a Minor League team affiliated with such an association.

The second option for demonstrating international recognition is found in 8 C.F.R. § 214.2(p)(4)(ii)(B)(2), which enumerates seven criteria indicative of international recognition and requires documentation showing the satisfaction of at least two of them.  The evidentiary criteria are as follows:

• Significant participation in a prior season with a major United States sports league;
• Significant participation in international competition with a national team;
• Significant participation in a prior season for a U.S. college or university in intercollegiate competition;
• A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how you or your team is internationally recognized;
• A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized;
• Evidence of your international rankings;
• Evidence that you or your team has received a significant honor or award in the sport.

The P-1 analysis is a largely subjective judgment made by the USCIS and presentation of evidence can be key.  Often, a particular piece of evidence will fall into two or more of the above criterion.  Depending on the weight of that evidence it may or may not benefit the athlete to claim that evidence under multiple criteria.  Also, the expert and governing body statements are important pieces of evidence that must assess and explain all the other pieces of documentary evidence.  An experienced immigration attorney will ensure that the language in the expert and governing body letters will have maximum benefit for the case without saying anything detrimental.  Some language will be useless for the case (e.g., “she’s a hard worker on the field”) while other language will actually hurt a case (e.g., “he’s a quick learner”).  For this reason it is ill-advised to coordinate a P-1 visa petition package without professional guidance.

Working on the P-visa:

Not all athletes can pay for their competitions and training through tournament winnings or sponsorship money alone.   Many athletes in previous years would take on a side job training others at athletic facilities in order to keep their skills sharp and supplement their income.  The statutes and regulations governing the P-1 visa are confusing on this subject, with facially contradictory provisions. This was considered legally permissible under 8 C.F.R. § 214.2(p)(3), which defines “Competition, event, or performance” as:

an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such activity could include short 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.  (emphasis added).

This definition has consistently been sufficient to justify a sponsored athlete filming television commercials and doing meet-and-greets.  But a competitor training others in his sport, though seemingly more closely related to the competition, has recently become restricted by USCIS adjudicators.  Several P-1 petitions that pose ancillary employment are denied on the basis of section 8 U.S.C. § 1184(c)(4)(A)(ii)(I), which says that P-1 athletes must:

“seek to enter the United States temporarily and solely for the purpose of performing as such as athlete with respect to a specific athletic competition.” (emphasis added).

The practical effect of these contradictory provisions is that the USCIS has great latitude in how they interpret the regulations and apply their adjudication policy.  For years athletes were allowed to have a sponsorship whereby they could arrange for an ancillary income by performing related activities.  But recent adjudication trends overwhelmingly deny such arrangements.  If the athlete is lucky, the USCIS will issue an RFE inviting the athlete to remove the side-income arrangement to become compliant and approvable, but this is not always the case and will become more unlikely given the recent memo on USCIS discretion to deny without RFE.

Some athletes think that the best solution is to simply not mention the side-work in the petition and to earn their ancillary income “under the table.”  Doing so could result in denial of future extensions, changes of status, or even adjusting into permanent residence in the future if and when tax documentation shows an income source that wasn’t approved.  But if a P-1 petition is clear about the desired arrangement and is nonetheless approved, there will be a strong legal argument to be made in the future if the source of the income is ever questioned.  As such, the decision whether to pursue ancillary income is worthy of a conversation with an experienced sports-immigration attorney.

Agent-based petitions:

The USCIS allows P petitions to be filed by a number of interested parties including the U.S. employer, a sponsor, a U.S. agent, or a foreign employer through a U.S. agent.  Of these options, agent-based petitions offer the most versatility and benefit to the athlete.  Where an agent is the petitioner, multiple employers, sponsors, and events can be compiled into a single omnibus itinerary and the agent can submit a single I-129 petition to cover all intended activities.  A change in employers or other substantial change will require an amendment petition to be filed, but the agent will remain the petitioner.  On the other hand, where the employer or sponsor acts as petitioner they can only include their events on the itinerary and any other employers or events will require a separate petition.  Yes, there can be multiple P-1 petitions approved for a single athlete, even if they overlap temporally.  However, doing so increases the filing fees required, duplicates procedural burdens and wait times, and complicates changes in employment because a new petitioner will be needed if the employment ends with the old one.  Pilehvar Law will act as agent for no additional charge above and beyond the cost of the P-1 petition, giving our clients the versatility and convenience of agent-based petitioning.  Note that this structure is also available in the context of O-1 visas.

Entertainment Groups (P-1B):

The P-1B subcategory is for entertainment groups that are internationally recognized as outstanding.  Unlike P-1A visas, P-1B visas are granted for increments not to exceed one year, but one-year extensions are allowed.  This subcategory is not meant for individual performers, but can be used for an individual coming to the United States to join an internationally recognized group.  Individual artists or performers must find an alternative path, such as O-1, P-2, or P-3.

Solo artists with a consistent group of backup musicians can qualify as a group.  The regulations requires “groups” to have been established and performing for at least a year, during which time the group maintained at least 75% of the current members.  Also, this group must demonstrate that it is internationally recognized, with means their skills are renowned, leading, or well-known in more than one country. Similar to P-1A standards, the P-1B regulations list six evidentiary criteria, only three of which must be satisfied to meet the international recognition standard.  The criteria used to determine whether a group is internationally recognized include:

• has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;
• reviews in major newspapers, trade journals, magazines or other published material;
• has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;
• major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications;
• has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field;
• has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence.

Reciprocal Exchange Groups (P-2):

The P-2 subcategory is designed for “reciprocal programs” for specific industries with specific countries.  Although there is a process by which to get new programs approved, there are only four programs that are pre-existing.  These include a program for musicians in the U.S. and Canada, one for Actors in the U.S. and Canada, one for Air shows in the U.S. and Canada, and one for actors in the U.S. and Britain.

Culturally Unique Program (P-3):

The P-3 “culture visa” is for those who have been invited to participate in a performance that is unique to a specific culture. This can involve performing, presenting, coaching, or teaching an art form traditional to a specific culture.   Examples include cultural dancers, singers, artists, or musicians.  P-3 artists do not have to be internationally recognized, but they must submit publications and/or affidavits attesting to the cultural uniqueness of their skills, and whether the proposed event is culturally unique.

Essential Support Personnel (P-1s):

Support personnel include highly skilled persons who are integral to the performance of a P-1, P-2, or P-3 principal because of services that cannot be readily performed by a U.S. worker, and which are essential to the principal’s performance.  This requires the P-1s to have the required skills and at least of year of providing such support to the principal.  This subcategory requires there to be a principal in P status, so a team of U.S. citizens, for example, does not qualify to bring over a P-1s even if that person supported the team overseas for a substantial period.

Family Dependents (P-4):

The P-4 subcategory is for spouses and children of those on any P status.  They will be granted the same length of stay as the principal P-visa holder.  Also, P-4 dependents do not qualify for work authorization.

Dual Intent:

P-visas, with the exception of the P-1s for support personnel, allow dual intent.  In other words, there is no regulatory prohibition against filing the paper work for a Green Card while on a P-visa.  Nonetheless, the USCIS still expects P-visa holders to maintain a residence abroad because it is a nonimmigrant status.

Conclusion

The regulations on P-visas are largely based on subjective evaluations and require a careful and deliberate curation and presentation of evidence.  Further, the procedures are too complex for most busy athletes or entertainers to casually navigate and often have contradictory provisions that further complicate a P-visa analysis.  Contact Pilehvar Law today to discuss your case and have an experienced attorney on your side when you apply.

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