HOT TOPICS IN SPORTS IMMIGRATION LAW

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1 HOT TOPICS IN SPORTS IMMIGRATION LAW Jon Velie 1 This paper will focus on a couple of topics in immigration that have an impact on the sports industry. 2 The clarifications issued by United States Citizenship and Immigration Services regarding agent based O and P visas and successful approaches to win elusive Extraordinary Ability green cards. Agent Based Petitions: Under 8 CFR (o)(2)(i) and 8 CFR (p)(2)(i), O and P petitions may only be filed by a U.S. employer, a U.S. agent or a foreign employer through a U.S. agent. The P-1 visa is entitled performing athletes and artists. It is available for an internationally recognized artist, entertainer, or athlete to enter the U.S. to participate in a performance for an American employer or an international employer working through an American agent. The performance must require a performer of international quality. a. The petitioner must have a tendered contract with a major U.S. sports team, or a contract as an individual participant with international recognition; b. The petition must be accompanied with at least two of the following: i. The petitioner has participated in an athletic event in a prior season with a major U.S. team; 1 J.D., Oklahoma University College of Law, B.A. University of California, Berkeley and admitted to the bars of the Supreme Court of Oklahoma and Supreme Court of the United States. Jon Velie is licensed as an agent in the State of Oklahoma and regularly represents athletes, coaches, entertainers, teams and other entities, practicing immigration law with a focus on athletes and entertainers. 2 Prepared in connection with presentation Immigration and Sports Current Issues and What You Need to Know, for the Sports Lawyers Association 36 th Annual Conference, May 20 22, 2010 in Phoenix, AZ. Co moderators for the presentation are Jon Velie, Velie Law Firm LLC, Norman, OK; Jessica Berman, Associate Counsel, National Hockey League (NHL), New York, NY; and Glenn M. Girdharry, Attorney, Steptoe & Johnson LLP, Washington, DC. 1

2 ii. The petitioner has participated in an international competition with a national team; iii. The petitioner has participated in an athletic event in a prior season with a U.S. university or college; iv. A written statement from a sports media or an expert in the sport who confirms how the petitioner or team is internationally recognized; v. A written statement from a U.S. sports team, confirming that the petitioner or team is internationally recognized; vi. The petitioner or team would be ranked if the sport was internationally ranked; vii. The petitioner or team has received a significant award or honor in the sport. The O-1 visa is entitled Extraordinary Ability Individuals Visa. It is available to an international beneficiary who possesses extraordinary ability in the arts, sciences, business, education, athletics, or the motion picture or television industry and may enter the United States to perform for a U.S. employer temporary services relating to an event or events. The petitioner must demonstrate extraordinary ability through sustained or international acclaim. The Beneficiary may prove his/her international ability through the receipt of an internationally-recognized award, or documentation of at least three of the following: a. Evidence of internationally or nationally recognized prizes or awards; b. Evidence of any published material about the alien's work; c. Membership with an association that requires members to have outstanding achievement; d. Major contributions in the field of science, business, or scholastics; e. Articles published in any type of major media or professional journals; f. High salary or any other type of compensation commanded by the alien; 2

3 g. Participation on a panel, or as a judge for other people s works; h. Evidence of past employment for organizations or establishments that have a high reputation. Under an agent-based petition, an athlete or coach can work directly and concurrently for more than one employer within the same time period. The agentbased petition works very well for athletes and coaches. For example, if Yao Ming was to petition for an O-1 visa through his agent, he could play for the Houston Rockets but also obtain sponsorship from major corporations, a shoe deal, speaking engagements, coaching clinics and a number of other opportunities as long as they were within his industry. If he only petitioned through the Rockets he would be precluded from obtaining all this extra income directly. On October 7, 2009 USCIS issued a clarification for agents filing as petitioners for the O and P visa classification. The clarification limited agent-based petitions to those in the business as an agent.(emphasis included) This clarification precluded one employer filing a petition on behalf of other employers unless the petitioning employer was in business as an agent and the other employers were its clients. On November 20, 2009, Acting Associate Director, Domestic Operations Donald Neufeld issued a Memorandum regarding Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications. The November Memo retracted this component, permitting the petitioning employer to act as the agent for the other employers for the purpose of filing the petition. However, there are some specific requirements that must be addressed now as follows: The supporting documentation requires a complete itinerary of the events, including dates the names and addresses of the actual employers and venues or locations where the services will be performed. Contracts between the employers and beneficiary: This is a significant change because a letter outlining the employment is no longer sufficient. Documentation indicating that the Petitioner is authorized by the other employers. 3

4 P visas may be petitioned by a U.S. sponsoring organization. This is defined as...an established organization in the United States which will not directly employ a P-1, P-2, or P-3 alien but will assume responsibility for the accuracy of the terms and conditions specified in the petition. The October clarification indicated that the agent must be the representative of both the employer and beneficiary. The November memo is silent on this issue. So it is probably a good idea to obtain authorization from both parties when submitting agent based petitions. Maneuvering past Immigration s restrictive analysis on Extraordinary Ability visas. The EB-1 Visa is entitled Extraordinary Ability in the sciences, arts, education, business, or athletics. Eligibility is for a qualified priority worker who has demonstrated sustained national or international recognition of extraordinary ability in the sciences, arts, education, business, or athletics and has risen to the top of his/her field of expertise. The EB-1, or first preference category, is unlike the other preference categories in that it requires no labor certification as a condition of visa approval. Also unlike the other categories a petitioner can petition for him or herself. The petitioner must demonstrate: a. Extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim; and b. That his/her achievements have been recognized in the field through extensive documentation; and c. That he/she seeks to enter the United States to continue work in the area of extraordinary ability; and d. That his/her entry will substantially benefit the U.S.; and e. That while no job offer is required, he/she must prove that he or she intends to pursue work in the U.S. in the same field of expertise. 4

5 The petitioner must show that he/she has reached a level of expertise indicating that the individual is one of a small percentage who has risen to the very top of the field of endeavor. The petitioner must show evidence of achievement through receipt of an internationally recognized award, or at least three of the following: a. Receipt of lesser nationally, or internationally-recognized prizes or awards for excellence in the field of endeavor; b. Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; c. Published material about the alien in professional or other major trade publications or major media, relating to the alien's work; d. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization; e. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; f. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media; g. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; h. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; i. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or j. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. 5

6 As the EB-1 is for the very few that have risen to the top of their profession, adjudications have been more subjective than many other visas. And many practitioners have learned the tough lesson that just because a beneficiary has received an O-1 visa as extraordinary, USCIS does not automatically grant EB-1 visas just because they have an O-1 and desires more evidence indicating a sustained period at the top of his/her field. There is a feeling among practitioners that USCIS is being even more restrictive than usual on granting EB-1 visas. But don t fret, there are some arguments that can help win these cases. A recent decision from the Federal Court has frowned upon one of the methods USCIS has used in denying cases and provided attorneys at least one tool to use in response to requests for evidence or in appeal. Kazarian v. USCIS, 3 a recent federal court decision, may have removed one of the methods USCIS has used to reject petitions filed under the EB-1 category. Although the petitioner was ultimately unsuccessful, the decision is still a victory for those who wish to seek green cards as persons of extraordinary ability or as outstanding professors or researchers. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is the circular reasoning that was determined to be improper. Kazarian indicated that case law on the EB-1 was scant, listing only a few cases to shed light on the subject. (t)he regulations regarding this preference classification are extremely restrictive. Lee v. Ziglar, 4 finding that arguably one of the most famous F.3d WL (C.A.9(Cal.)) F. Supp.2d 914, 918(N.D. Ill.2002) 6

7 baseball players in Korean history did not qualify for the visa as a baseball coach for the Chicago White Sox because his acclaim was limited to his skills as a player and not as a coach; Grimson v. INS 5, finding denial arbitrary and capricious where NHL hockey enforcer was one of the top three players in the world and the agency improperly discounted the importance of the enforcer position; Muni v. INS 6, finding the agency improperly discounted evidence for an NHL hockey player who won the Stanley Cup three times, won most underrated defenseman, was paid more than the average NHL player, submitted numerous articles establishing his stature in the hockey world, and provided affidavits from eight renowned hockey players stating that he was highly regarded; Buletini v. INS 7, finding denial was arbitrary and capricious where Albanian physician won a national award, published a medical dictionary and numerous articles, was responsible for general health projects, and served as an adjunct professor; Matter of Price 8 was approved by the Agency but was sent to the Immigration appellate body to establish precedent for the O-1 visa criteria. The evidence submitted indicated Nick Price s winning of the 1983 World Series of Golf and 1991 Canadian Open tournaments, number 10 ranking in the 1989 PGA Tour, collection of $714,389 in 1991, provision of numerous affidavits from well-known and celebrated golfers, and receipt of widespread major media coverage met the regulations F. Supp. 965, 969 (N.D. Ill. 1996) F. Supp. 440 (N.D. Ill. 1995) F. Supp (E.D. Mich. 1994) 8 20 I. & N. Dec. 953, (BIA 1994) 7

8 While these cases can provide some light on what does or does not constitute an EB-1 visa, you can also look at the following AAO cases and find some arguments that can be helpful. USCIS frequently discredits the extraordinary achievements of an athlete s career when they segue into the coaching field. A case that can defeat this approach is the Matter of [Redacted] 9, which held: Recently this office has recognized there is a nexus between playing and coaching a given sport. To assume that every extraordinary athlete s area of expertise includes coaching, however, would be too speculative. To resolve this issue, the following balance is appropriate. In a case where an alien has clearly achieved national or international acclaim as an athlete and has sustained that acclaim in the field of coaching at a national level, we can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that we can conclude that coaching is within the petitioner s area of expertise. Specifically, in such a case we will consider the level at which the alien acts as a coach. A coach who has an established successful history of coaching athletes who regularly compete at the national level has a credible claim If the petitioner has demonstrated extraordinary ability as an athlete, we will consider the level at which she has coached. Other cases that state the adjudicator should take into account the totality of the circumstances of the athletics and coaching are as follows: Matter of, (AAO Sept 16, 2003) (Nebraska Service Center)» [professional hockey player met 3 out of the 10 criteria] reported in 81 No. 7 Interpreter Releases (Feb. 16, 2004); Matter of, VSC, EAC (AAO Mar. 24, 2003)» [Taekwondo instructor] reported in 8 No. 18 Bender s Immigration Bulletin 1529 (Sept. 15, 2003); 9 AAO WAC , 2004 WL (INS) 8

9 Matter of, (AAO Dec. 10, 2002) [marathon runner granted status upon showing that he would work in U.S. as marathon runner] reported in 80 No. 8 Interpreter Releases 276 (Feb. 24, 2003); Matter of, A (AAO Aug. 19, 1999) [swimming coach for disabled students] reported in 77 No. 18 Interpreter Releases 611 (May 8, 2000); Matter of Sapunar, Case No. A (NSC) (AAO Apr. 1, 1996), [judo coach] reported in 73 No. 29 Interpreter Releases 1005 (July 29, 1996). Another method USCIS has used to negate one of the achievements of the EB-1 petitioner has been to diminish national or international awards won by a group instead of an individual. Cases that can be used to overcome this kind of analysis are: Matter of [name not provided] 10, which states, where a service center denied an EB-1 petition because the petitioner s Olympic medal was won by a team, the AAO reversed that decision: [W]e do not find that the significance of this award is diminished because it was a relay rather than an individual medal. The petitioner was personally awarded the bronze medal and was one of the relay swimmers to compete in the relay race. It is not the case where the petitioner was on the sidelines while his team won without his participation. See also Matter of [name not provided] 11, ("Harvard Medical School researcher"), which states: We find nothing about the nature of working with a team that diminishes the ability of the members of that team. The Bureau does not disregard Olympic team medals. We see no reason to discount contributions and publications simply because they represent the work of a research team. 10 SRC (AAO Apr. 3, 2008) 11 EAC (AAO July 8, 2003) available at 9

10 Other cases indicated collaborative works are to be granted EB-1 status: In a February 2003 decision that ultimately sustained the denial from the service center, the AAO challenged the service center s disparagement of collaboration. The self-petitioner had developed and patented a new method of microanalysis that resulted in the discovery of several new minerals registered with the International Mineralogical Association. He submitted evidence of his collaborative discovery, with four others, of bismutocolumbite. The AAO found: In denying the petition, the director noted that the documentation regarding the IMA acceptance of bismutocolumbite names four co-discoverers in addition to the petitioner. The director stated that his sharing of credit diminished it significance... [T]he director s reasoning is flawed. Even the Nobel Prize, arguably the most famous and prestigious award in the world..., is often split and shared between two or more recipients. While sharing of the prize diminishes the very substantial sum paid to each laureate, the prestige of the award is unaffected. Matter of [name not provided] 12, ("mineral discoverer"). The EB-1 visa is an excellent visa as it is so much faster to obtain than the others and is a lot of fun to work on because you get to write the book on your star client. Using successful AAO decisions in the initial brief is a great method to deter the examiner from denying the case. Another method is to use top experts to methodically evaluate the achievements of the petitioner and apply the Immigration regulations. Think of the case as a trial and the expert is testifying on paper. Take time to interview the expert and ask questions and provide him or her with the applicable regulations. Talk through the issues, take notes and provide a draft of what the experts answers were in affidavit form for him or her to review and edit. The result will be a concise and relevant opinion that will serve as a tool to assist the adjudicator in understanding issues from the perspective of authorities with precise knowledge of their specialty. 12 WAC (AAO Feb. 28, 2003) available at 10

11 Conclusion In summary, agent-based petitions are a great tool for the athlete or coach to generate additional revenue sources in their sport. The clarification and memo provide the road map for these visas. EB-1 visas are the fastest employment-based pathway to permanent residency. They are for the very best and USCIS may throw some tough requests for further evidence at you, but there are approaches you can employ to win these valuable cases for your clients. 11