As a result of the global sports business, professional and amateur athletic competitors travel from countries across the world to compete in sporting competitions held within the United States or to play on behalf of a U.S. sports franchise in a professional league, such as the NBA, NFL, NHL, MLB, or MLS. Each foreign national athlete must receive the proper work authorization to enter the United States to earn a wage or other compensation (with the limited exception of earnings exclusively from a tournament prize pool). This requirement applies to an individual whether they are a currently a professional or are an aspiring amateur or athletic prospect. This criterion necessitates that a foreign athlete must first obtain the proper visa prior to entering the U.S. in order to perform some paid work on behalf of a professional sports organization or for any other company or brand. This requirement is applicable when an athlete is signing to a U.S.-based professional team or club, competing in an international or Olympic event in the U.S. as well as when acting as an amateur or “minor” league player for a United States team. The failure to receive the appropriate type of visa could prevent or delay an athlete’s arrival and hinder their ability to work, including impacting their availability to compete on behalf of a team or in a tournament. In addition, in light of the recent NCAA changes related to a college athlete’s “name, image and likeness” rights (NIL), foreign student athletes who may initially be in the country on a student visa may be required to obtain a similar talent visa and potentially reevaluate their current “student” status in light of accepting or possibly receiving any paid compensation while being a college athlete, including paid endorsements or personal appearances. Similarly, a prospective student-athlete should be aware of this fact, especially if they are a highly scouted talent or one that hopes to capitalize on their NIL rights.
While there are many available work authorizations, there are a few non-permanent visa statuses available in the United States that a professional athlete might avail themselves to. Depending on the talent’s level of recognition and achievement, two most common ones that an athlete could apply for are a O-1A or a P-1A. Specifically, the USCIS defines a “professional athlete” as an “individual who is employed as an athlete by a team that is a member of an association of 6 or more professional sports teams whose total 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 member teams regularly engage” as well as “any minor league team that is affiliated with such an association.” (8 U.S.C. § 1154(i)(2)(A)(B)). As a result of this definition, it is important for any individual submitting a visa application apply for the correct classification to ensure that the proper authorization is issued to enable the athlete to compete and earn a salary in the United States.
O-1 and P-1A Visas for Professional Athletes and Sports Competitors
One potential route for a professional athlete might be applying for an O-1 visa. This visa type is available for individual athletes of “extraordinary ability” that provide sufficient documentation to support this fact. In order to obtain an O-1 visa, an athlete must demonstrate that they have “extraordinary ability in […] athletics […] and [the talent] has been recognized nationally or internationally for those achievements.” Generally, a foreign athlete is automatically qualified if the talent has been recognized nationally or internationally by being nominated or being a recipient of a prestigious industry award, such as winning an Olympic gold medal, a world championship, or earning “athlete of year” or another similar most valuable player (MVP) award in the applicant’s sport.
However, since many athletes cannot provide such evidence, these competitors have the alternative option of displaying their “extraordinary ability” and achievements by documenting three (or more) evidentiary requirements. For example, a professional or amateur player can submit information on a sporting performance where they acted in a “leading role” in a respected sporting event, league, or tournament. This prong could be documented by submitting public reviews, advertisements, press releases, contracts, testimonials and/or endorsements mentioning the talent as well as the specific event. They can also submit information that their sporting achievements are “recognized nationally or internationally,” based on providing copies of reputable reviews from government agencies as well as any major audio, video, or written coverage, including newspaper trade journals, magazine publications and articles, and any other press outlet covering the athlete’s achievement.
In addition, an O-1 visa applicant could present information substantiating the talent’s “record of major commercial or critically acclaimed successes.” This fact can be demonstrated by providing information on the athlete’s player ranking or rating in the sport as well as any results from any previous international sports competitions. The foreign athlete might provide documents that prove that the individual has received significant recognition for their athletic achievements from other prominent athletes or sport representatives. As a result, an applicant would submit reference letters displaying the author’s credentials, authority, and expertise as well as including information that speaks on their knowledge of the talent’s athletic achievements. Finally, an applicant could submit evidence that the athlete earns a “high salary or other significant income for services in relation to other athletes.” To prove this factor, an applicant might submit copies of “tax returns, payment statements, or other evidence of past salary or remuneration for services,” executed contracts or job offer letters, or “any other evidence of prospective salary or remuneration for services” as well as providing “comparative wage or remuneration data for the beneficiary’s field, such as geographical or position-appropriate compensation surveys.”
In cases where an athlete is unable to satisfy the “extraordinary ability standard” requirement for an O-1 visa, the talent may instead apply for a P-1 visa. This visa is appropriate for an athlete or international sports team that is “internationally recognized” for having “a high level of achievement in a sport, demonstrated by a degree of skill and recognition substantially above that ordinarily encountered.” In fact, the applicant’s athletic achievements must be “renowned, leading, or well-known in more than one country” and the prospective athletic competition must possess “a distinguished reputation and be at an internationally recognized level of performance such that it requires the participation of an internationally recognized athlete.” As a result, a P-1 visa application will be approved only when the individual is “participating in an event of international standing” or if there is evidence of a contract with a major U.S. sports league, team, or organization and when some of the other below requirements are fulfilled.
To start, each applicant must submit a “written consultation letter” from an appropriate labor organization such as the NFLPA or USFSA. The letter must “describe the work or services to be performed in the United States” and the athlete’s “qualifications for such work.” Furthermore, the labor organization may also “submit a letter of no objection to the approval of the petition;” however, if no appropriate labor organization exists, then this requirement is excused. Furthermore the athlete must also provide “copies of any written contracts or summaries of their employment terms” as well as “an explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities.”
Additionally, to qualify for this visa, an applicant must also provide additional documentation as required for their specific P-1A category. For example, a P-1 visa petitioner must submit a copy of a “tendered contract with a major U.S. sports league or team […] if such contracts are normally utilized in the sport,” and documentation of at least two of the following criterion:
- Evidence of significant participation in a prior season with a major United States sports league;
- Evidence of participation in an international competition with a national team;
- Evidence of significant participation in a prior season for a U.S. intercollegiate competition;
- A written statement from an official of the governing body of the sport with information on how the athlete or the team is internationally recognized;
- A written statement from a member of the sports media, a journalist or other recognized expert in the sport which details how the player or the team is internationally recognized;
- Evidence that the player or the team is ranked if an international ranking system exists as well as any information on any relevant player, league, club, conference, or association rankings in the specific sport;
- Evidence that the player or the team has received a significant honor, award, medal, or trophy in the sport; and/or,
- Evidence that the player receives a high salary due to the talent’s reputation and athletic talents.
In addition to documentation on the player, a professional athlete must also submit evidence on the team and the league that they are participating in. This requirement means that the talent must establish that they will be working for a team located in the United States that is “a member of an association of six or more professional sports teams.” A P-1 visa applicant can substantiate this fact by submitting all of the following information:
- A list of participating teams prepared by the association or league;
- Contracts, agreements or other documentation showing that the specific team is a member of the association or league;
- Letter from the association or league detailing and confirming the team’s membership in the league;
- Articles, reviews or other documentation from established sports media outlets or sports media personnel showing that the team is a member of a qualified league or association; and,
- Marketing and promotional material of the association or league that identifies its member teams.
The talent must also submit information that the “total combined revenues of the association’s teams exceeds $10 million per year.” As a result, the athlete can provide evidence such as any “tax documents; audited financial documents; or articles or reports in established media outlets that specifically reference revenues generated by teams in the association or league.” The applicant must also prove that “the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage.” The applicant athlete may include facts on the league such as the “association or league rules and bylaws; articles or reports in established media outlets that specifically discuss action[s] taken by the association or league to regulate the contests and exhibitions; or statements from association or league officials who have the knowledge and authority to confirm the manner and extent to which the association or league regulates the contests and exhibitions.
Related to this, if a player is coming to the U.S. to compete for a minor league or other affiliate of a professional team, the P-1 applicant must prove that the “minor league team affiliated with an association” is a “qualifying affiliation.” As a result, the minor league prospect can submit any contracts or agreements between the major and minor league team; any statements from the association or league officials detailing and confirming the minor team’s affiliation with the major one; any marketing and promotional material of the association or league that identifies the minor league team’s affiliation with the major one; any documentation showing that the team is affiliated with a qualified league or association; and/or any articles, reviews, or other documentation from established sports media outlets or sports media personnel showing that the team is affiliated with a qualified league or association.
In cases where a professional P-1 athlete is traded from one organization to another organization, their existing visa authorization will automatically continue for a period of 30 days after acquisition by the new team. However, within this time period, the new organization must file a new visa on behalf of the talent to keep the player’s active immigration status. A failure by the new team to file the visa may cause the player’s employment authorization to cease.
As evident, there is a strong need for appropriate visa and immigration planning to ensure that a professional or amateur athlete can successfully compete and earn a living in the United States. In fact, as U.S.-based professional franchises and leagues continue to expand overseas, there will be even more instances where foreign athletes come to the United States to play for a professional or minor league affiliate. Additionally, since the NCAA has become a springboard for many professional athletes, the shift in administration policy permitting student athletes to receive NIL rights income while being a student further changes the landscape and intensifies the need for proper visa assistance.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
© 2022 Justin Jacobson Law, P.C. and Velez & Cipriano, PLLC