Ohio Immigration Attorney Discusses the O Visa Category for Professional Athletes

baseball stadium.jpgThe United States possesses the greatest employment opportunities and training facilities for professional athletes of any single country in the world. As a result, the world’s top athletes have been coming to the United States to compete and train for decades. Just as with all other foreign nationals, professional athletes require special visas in order to live and work temporarily in the United States. The O Visa was created by Congress with this purpose in mind. Below is a discussion of the O category of temporary work visas that allow professional athletes to pursue their dreams and refine their skills in the United States.

Work Visas for Extra-ordinary Athletes: An overview of the O-1A Visa

The O-1 visa is reserved for the world’s top athletes. Prospective O visa beneficiaries will need to show that they have demonstrated “extra-ordinary ability” through “sustained international acclaim.” This high degree of international acclaim must be demonstrated through extensive records, which an immigration attorney can help in selecting, organizing and highlighting in the visa petition.

One of the greatest advantages of the O visa is that it allows an athlete’s support personnel and family accompany the athlete to the United States to aid and succor the athlete during his or her visa stay. First, O-2 visas are available for persons who will enter the United States in order to assist the athlete so long as that person is essential to that athlete’s performance, has particular knowledge or a proficiency that cannot be performed by others and the O-2 foreign national has a foreign dwelling that the person does not intend to desert. An simple example of an O-2 candidate would be an experienced boxing trainer that accompanies a boxer to the United States to help prepare the boxer for a fight.

O-3 visas are also available for a spouse and children of the athlete to accompany the athletes for the duration of the O-1 visa. The O-3 visa is tied to the O-1 visa, so changes in the O-1 visa need to be reflected and updated in the O-3 visa. O-3 visa holders may study in the United States, but they are not allowed to hold employment. They may also depart a return to the US on the O-3 visa as many times as they would like during the O-3 validity period.

The High Standard for the O-1 Visa

As stated above, O-1 visas are reserved for athletes competing at the highest levels. This means that a person entering to compete on a major league baseball team could very well qualify, while a person entering the US to compete on a minor league baseball team would have a more difficult time meeting the strict parameters of the O-1 visa category. While there are other visas available for minor league level players, the O-1 visa category may not be the best option in all cases.

As stated in federal immigration law, extraordinary ability in athletics means that the foreign national possesses a level of capability that indicates that the person is one of the minute number of people who have ascended to the very top of his or her line of work. Extraordinary ability is proven to the USCIS by showing that the person has continuous international or national acclaim by providing documentary evidence of the following:

  • Receipt of a preeminent intercontinental prize, such as an Olympic gold medal

Or by providing evidence in at least three of the following categories:

  • reception of other nationally or internationally recognized awards
  • invitation or selection to membership in a society that requires exceptional success
  • news publications about the applicant in professional or major trade publications
  • selection to serving as the judge of the work of others who are at the top of their field
  • an original work of major significance in the field
  • evidence of the authorship of scholarly work in the field
  • evidence that the person has been employed in a significant of crucial capacity at an association with a renowned reputation
  • has commanded or will command a high salary for his or her services

Obviously, some of the above listed categories of evidence do not translate well into the field of professional athletics. Therefore, the USCIS will accept comparable evidence of some other kind as long as the evidence shows that the work that the foreign national will conduct requires someone of O-1 visa ability.

Applying for the O Visa

The athlete himself, or herself, cannot apply for the O-1 visa. Even in individual sports that do not usually have a traditional employer, the athlete must have someone that will file the petition on his or her behalf. Therefore a sports agent or filing agent may file the case of an athlete who competes individually. For athletes that compete in team sports, the team may apply for the visa. The O-1 visa cannot be applied for more than one year ahead of the time that the athlete expects to arrive in the United States and begin working.

An O-1 visa holder may have one or more locations of employment. If there is more than one location of employment, an itinerary of all work locations must be supplied with the O-1 visa petition package. If the athlete switches employers while on O-1 visa, the new employer will need to file a new O visa petition to the USCIS. Additionally, some situations may require that an amended visa petition be filed with the USCIS, however, advancement in an organization is not a material change to the employment. The employer must notify the USCIS if the employment changes so drastically that the foreign national’s qualifications for the O-1 visa are altered or the person is no longer employed by the O-1 visa petitioner.

Agents and O Visas

As stated above, the beneficiary of an O-1 visa cannot self petition. There must always be an employer or agent that petitions for the athlete. An agent that signs for the O-1 visa may be needed in cases where the athlete competes in an individual sport where no organization or team is usually needed. In the case of an agent signatory, the federal government has established guidelines to ensure that only bona fide, professional agents apply for such athletes.

First, where the athlete has used an agent and the athlete will actually be paid by the organizers of each competition or meet, the athlete will technically be employed (money will be paid to the athlete) by all of the different meet organizers. If the athlete competes at different meets, the athlete will have many different employers. Therefore, the O-1 visa petition must include the entire list of events, the dates of each event, the contracts between each employer and the athlete, and an explanation of the employment arrangement between the agent and the athlete.

Secondly, not every person will be eligible to be an agent for the purposes of signing the government documentation for an O-1 visa. The agent must be “in the business” of being an agent. Evidence establishing that the agent is in the business is as follows:

  • document signed by the employer stating that the person is authorized to act as the agent for O visa purposes
  • statement by the employers confirming the relevant information
  • agency contracts
  • fee arrangements
  • statements from other agents

Extension, Travel and Admission

O-1 visa extensions are granted in one year increments for individual competitive occurrences. There is no additional documentation that needs to be submitted with the government forms and fees for the O-1 visa extension, unless requested by the USCIS. O-1 visa holders may travel outside of the country while they have an extension pending with the USCIS. The athlete can even request that notification of a decision on the O-1 visa extension be sent to the consulate closest to where the athlete is traveling.
When professional athletes are traded to a new team, employment authorization with the old team will continue for 30 days while a new O visa is filed. Employment authorization is then extended until the petition is approved.

O-1 visas may be granted for up to three years. The beneficiary may enter the US on the O-1 visa up to 10 days before the O visa status begins. The O visa holder may also leave up to ten days after the O visa expires. However, the O visa holder cannot work during these periods of time.

If the O-1 visa holder is terminated both the petitioner and employer of the O-1 visa holder are on the hook for travel costs to the O visa holder’s country. If the O visa is denied on the basis of information that the petitioner was unaware of , the petitioner gets 30 days to respond, then an appeal can be made to the AAO. The visa is automatically revoked if the petitioner ort the underlying employer goes out of business files a written withdrawal or notifies the USCIS that the O visa holder is no longer employed. All other circumstances require further notification prior to revocation.

How to Contact Us

The Law Firm of Shihab & Associates Co., LPA. has experience in visas for many different professional athletes. We have the experience and resources to handle O-1 visa petitions for clients anywhere in the United States. If you have questions about an non-immigrant visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA. at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.