Alert! Updates On P-1 Visa Applications For Combat Sports Industry
Alert! Updates On P-1 Visa Applications For Combat Sports Industry
Memo to International Sports Community re COVID-19 Immigration Updates
Contact: Sherrod Seward, Esq.
Phone: 704-243-8178
Email: sherrod@oaklg.com
Website: www.sherrodsportsvisas.com
For Immediate Release:
This update is for members of the international sports community to share recent trends, issues, and solutions for immigration of athletes during the COVID-19 pandemic.
Our law firm is receiving a lot of calls and questions about if and how fast combat sports athletes can get in the country. It is possible, and we get it done every day, but there are many more factors to consider than usual.
While our law firm has enjoyed success in obtaining visa approvals in many sports industries such as dirt track racing, boxing, and mixed martial arts, we have noticed an increased difficulty from all United States government agencies involved in the immigration process:
United States Citizenship and Immigration Services is making it more difficult to obtain approvals and predict timely adjudications with premium processing.
Department of State consular offices are routinely closed or only accepting reasonably timed visa appointments with emergency requests.
Customs and Border Patrol is strictly enforcing COVID-19 travel restrictions in many countries, even when presenting sports-related exemption paperwork.
Since we exclusively practice immigration for athletes, we can gather information about trends quickly and educate stakeholders. The purpose of this correspondence is to help the industry to stay alert and inspire an environment of working together in problem-solving.
Consistent and predictable processing of P-1 and O-1 visas for athletes are crucial to the success of a litany of sports organizations in the United States. Competitive sports are not only a great boost to the economy but also a centerpiece of national morale.
There Are Three Portions Of Getting An Athlete To The United States During COVID-19 And We Will Address All Three:
Step 1: Obtaining P-1 or O-1 approval from United State Citizenship and Immigration Services (“USCIS”)
Step 2: Obtaining a visa appointment with consular offices with the Department of State (“DHS”)
Step 3: Obtaining admission into the United States at airport or border from Customs and Border Patrol (“CBP”)
Below please find a summary of current trends with the processing of O-1 and P-1 visas for athletes coming to the United States. These issues also apply to essential support staff such as coaches and training partners.
Step 1: Recent Trends In P-1 And O-1 Adjudication With USCIS
Receiving Mail: Multiple times over the past couple of months, USCIS has misplaced petitions sent to the California Service Center. In addition, for the cases they do receive, even under premium processing, they are not indicating receipt until after 5 days of receiving visa packages. This is a major problem for cases that need to be adjudicated quickly because you cannot tell if a case was lost for 5 days after receipt.
Aggressive Initial Review: USCIS is not more likely to reject a case for minor deficiencies. The issue is that it takes about 7 to 10 days for a petition to be recorded as denied and even more time for the package to be sent back by regular mail.
Premium Processing Timely Adjudication: For the past two and a half months, every single case that was submitted under premium processing has received a request for evidence. We believe that this is because USCIS does not have the staff to successfully review a petition in 15 days. So premium processing clients can expect for petitions to take at least 30 days in adjudication due to having to respond to the inevitable request for evidence.
Requests for Evidence: The substance of recent requests for evidence are trending as incorrect and unnecessary. We have several examples of recent request for evidence from USCIS below:
World Champion Kickboxing Petition: The adjudicating officer argues that international world championships are national awards for the purpose of P-1. The issue with this is they are clearly not and national awards are perfectly acceptable for P-1 awards as long as they are INTERNATIONAL RECOGNIZED.
Our response was as below:
National awards are sufficient under the regulations for P-1, O-1, and even EB-1A 2. In their event names, international coverage, international participation, international purpose, it is difficult to understand how these can be considered national awards. Especially considering that these awards TOOK PLACE all over the world. Thus, if the adjudicator is trying to argue that these are national awards, but these awards were acquired in different countries, that would make the beneficiary known for receiving national awards in multiple countries.
The awards have to be “internationally recognized” (see the plain language of the regulations), which is not the same as an award at an international level. For example, a Heisman would be an award at a national level that is internationally recognized. As stated by the federal court in Buleteni v INS, [860 F.Supp. 1222 (1994)]: “Moreover, the INS’s own regulation states that an alien may present evidence of “the alien’s receipt of lesser nationally or internationally recognized prizes or awards … Thus, the award need not have significance outside of one country. National recognition is sufficient.”
These are international WAKO events at the very top-tier echelon of the sport of kickboxing.
Gold Medalist Boxer: O-1 Petition. The adjudicating officer argues that since the boxing event was not on the Internet, the petition could not be approved and referred to a list of non-sanctioned events. The issue with this is that O-1A petitions do not require a series of competitions such as a P-1 petition. In addition, we carefully explained that promoters cannot responsibly promote fights for athletes who do not have the authorization to compete yet. The non-sanctioned bouts were explained to be sparring sessions at a gym, which of course do not appear on any Internet search. We refer to sparring as non-sanctioned bouts because USCIS looks unfavorably on the use of the word “practice.” To make it worse, they had just approved a boxer for O-1A with the exact same itinerary just two days before this request for evidence.
Our response was as below:
We do not have to show you that he has a bout that is publicly available on the Internet. There are a number of reasons why:
There are no regulations that require this for O-1A visas. “USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.” 11 kazarian v. uscis 596 f.3d 1115 at 1122.
His engagement is a promotional contract with XXXXXX. As a direct employer, itineraries are generally not necessary, but we provided an explanation of activities anyway.
C) 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; 8 CFR 214.2(o)(2)(ii)(C)
Also note: Pursuant to 8 CFR 214.2(o)(2)(iv)(D), in the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O-1 caliber.
His consent to oral agreements and promotional contracts outlines his engagement, which is a promotional contract with xxxxx that includes training and doing media at xxxxxxx. This beneficiary has the same arrangement as xxxxxxx with xxxxxxxx, which was JUST APPROVED by USCIS a few days ago.
Receipt Number: xxxxxxxxxxxxx
Date I-907 Received: 07/07/2020
Date Approved: 8/3/2020 11:39:52 AM
Number of Workers: 1
Classification: O1A
Beneficiary: xxxxxxxx
Beneficiary Country of Citizenship: UNITED KINGDOM
Classification sought: xxxxxxxx
Starting Validity Date: 08/03/2020
Ending Validity Date: 06/30/2023
Consulate notified (if applicable): LONDON
It is completely irresponsible for promoters at this level with millions of dollars on the line to publicly promote events for athletes who do not have the work authorization to participate in the event. COVID-19 has made it very difficult to get dates with broadcasters that expect to know what they are showing when they pick the events. Due to these limited spots, the cards must be set before saying anything publicly. Lawsuits happen all the time in boxing at the world championship level due to fighters not being able to make it to the fight. Explanation, which is the same as the explanation of xxxxxxxx and that was approved, is included with this petition.
Top 20 Ranked Boxer P-1A Petition: The adjudication officer sent a request for evidence only requesting a consultation letter. The issue is that we already provided evidence that we requested one and it was not responded to by the time we sent the petition. We have done this exact same approach over 30 times with no issues. This delay almost caused the boxer to miss the fight, but we were able to get him in the country under P-1A with a creative solution in Canada.
In our response we reminded USCIS that we told them there was no consultation letter available yet, provided proof of previous approvals in this situation, and gave them the letter that was now available.
Issues With Fax Responses to Requests for Evidence: Premium processing petitions provide an opportunity for USCIS to fax requests for evidence to attorneys instead of send by mail, which saves a lot of time. Attorneys can also respond to USCIS by fax if the document is under 35 pages. We have instances where the fax from USCIS never got to us and we missed days to respond to requests. We had an instance where the contractors that process incoming faxes from USCIS did not get all of our documents to USCIS.
Step 3: Issues Obtaining Visa Appointments At Consulates Around The World
Typically it is a pretty straightforward process to set up an appointment and get a visa stamped after approval, but these are different days. Around the world consulates are either completely closed, have long delays for setting appointments, or only allowing appointments under urgent circumstances.
Inconsistencies in consular operations make it very difficult to accurately gauge when athletes can come into the United States. It is a step-by-step process to figure out how your most convenient consular post is behaving and the consular posts around the athlete that might be more favorable.
Below are our suggestions for navigating a timely visa interview appointment:
Send an email to the nonimmigrant visa contact at all of the consulates the athlete may want to visit. See if any of the consulates are open or have a process to request an expedite
Apply for an interview as soon as you get a receipt notice as opposed to the approval. It is much easier to change an existing visa appointment instead of request a new one. For this reason we are practicing setting appointments with receipt numbers because the appointments will be far into the future if available at all. In addition, most consulates will not address changes in appointments until fees are paid and/or an interview date is set.
Expedite the visa appointment or apply pressure to get an emergency appointment. This is one of the most difficult portions of the visa process now. Tactics we use to obtain or expedite a visa appointment included the following
Use our Congressional Inquiry Practice to get a US congressional official to issue a letter on our client’s behalf directly to the consulate (https://www.sherrodsportsvisas.com/congressional-inquiries-for-immigration-cases)
Make an argument for National Interest Exemption for Sports Athletes (https://www.sherrodsportsvisas.com/sports-travel-ban-exemption)
Make an argument for Business Travel Exemption
Apply for a national sports exemption on behalf of the sports league that is employing the athlete (https://www.sherrodsportsvisas.com/national-interest-exemptions-for-sports-leagues-and-organizations)
Try to get an appointment somewhere else if all of these options do not work
Note* We were having success obtaining visa appointments for individual athletes a few weeks ago but now consulates are starting to only accept emergency appointments for athletes who are employed by employers on the National Sports Exemption list with the Department of State.
Country updates as of 8/27/2020
Belfast – Only accepting athletes who are on the exempt organization list with DHS
London – Will consider business travel exemptions for some athletes
Manila – Will not consider athletes for interviews
Canada – Will not consider emergency appointments until a visa is approved but may approve visas at the airport if the visa is pending in premium processing (link)
Italy – Only accepting athletes who are on the exempt organization list with DHS
Australia – Athletes can expedite appointments with a good argument and come to the United States
Step 3: Entering the United States from countries that are impacted by the COVID-19 travel restrictions
There are many European and Asian countries that are included on a list that prevents entry in the United States even with an appropriate visa authorization. Persons who have been in these countries in the past 14 days before attempting to enter the United States will be stopped at the port of entry without an appropriate waiver.
There are few options available for athletes seeking to enter from these countries. The simple but most expensive way to avoid this situation is to stay in a country that is not banned for 14 days (such as Canada) and enter the United States from this country. The other option is to present a proper waiver for entry. There is a sports exemption for professional athletes and coaches as stated above but these waivers.
Unfortunately, most of the waivers are only being allowed for athletes who are coming to the United States at the invitation of organizations that are listed with the Department of State. These organizations include the NBA, UFC, PGA, and NHL, which can alert Customs and Border Patrol of names to be let into the United States via a 212(f) waiver.
We are currently organizing a practice to help sports organizations get listed on the DHS exemption system to issue these waivers as well. If interested in finding out more, please contact our office at info@oandpvisas.com or call 310-209-8545.