P-1 Visa Issues for International Student Tennis Players - Itinerary Concerns
Up and coming tennis players often face hurdles with the itinerary portion of P-1 visa applications if they are not already competing on the major tour circuit. For this reason and because many up-and-coming tennis players need to coach at clubs in addition to their competition schedule, the P-1 visa is very hard to obtain.
The P-1 visa is often the most appropriate visa for international athletes seeking to compete in the United States but there are several components that might make it difficult to obtain in certain sports such as tennis. First, the P-1 visa is only appropriate for competing and ancillary activities such as sponsorship activation and media leading up to competitions. This visa does not support activities such as opening training facilities or working at training facilities as an instructor. Second, the P-1 requires that the athletes participate in competitions that require the participation of internationally recognized athletes. This second part has become extremely problematic for many up-and-coming tennis players.
Work Authorization Concerns from USCIS for Tennis Players on P-1 Visas
From a recent Request for Evidence regarding a Tennis Player from USCIS -
Coming to the U.S. Solely to Perform in a Specific Athletic Competition or Production/Tour
In order to be eligible for the P-1A classification, the beneficiary/beneficiaries must be coming to the United States solely for the purpose of performing in a specific athletic competition as an athlete or coach, as applicable. Alternatively, athletes coming to the U.S. to perform in theatrical ice skating productions must be coming solely to perform in specific ice skating productions or tours. Permissible activities also include short vacations, promotional appearances for the petitioning employer relating to the competition, event or performance, and stopovers which are incidental and/or related to the activity.
The evidence you submitted is insufficient to establish that the beneficiary will be performing (including permissible related/incidental activities) solely as an athlete with respect to a specific athletic competition. Your support letter states that the beneficiary will take part in six tournaments as "coach/player." You also submitted testimonial letters stating that the beneficiary is currently working as a tennis coach. As such, USCIS cannot determine if the beneficiary will come to the United States solely to perform as an athlete in an athletic competition, or whether he will also coach. Please submit evidence to address this issue.
If the activities to be performed include related or incidental activities, the evidence should include an explanation of the related and/or incidental activities (e.g. promotional appearances) and how they are related and/or incidental to the athletic competition or ice-skating production/tour.
What are the itinerary concerns for tennis players with P-1 Visa Applications?
From recent USCIS Request for Evidence
A beneficiary may qualify as a P-1A internationally recognized athlete if he or she performs as an athlete, individually or as part of a group or team, at an internationally recognized level of performance and seeks to enter the United States temporarily for the purpose of performing as such an athlete with respect to a specific athletic competition. Specifically, the P-1A must be coming to perform services which require an internationally recognized athlete or team.
Internationally recognized means having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.
Internationally Recognized Level of Competition
The evidence in the record must demonstrate that the beneficiary (as an individual athlete or as a member of an athletic team) is coming to the United States to participate in an athletic competition or league that has a distinguished reputation, and which requires participation of an athlete or athletic team that has an international reputation.
Evidence that the beneficiary will be competing at an internationally recognized level, in competitions or leagues with a distinguished reputation and that require, among its participants, an internationally recognized athlete. This evidence may include, but is not limited to:
Published materials or documentation about the competition or league demonstrating the extent of media coverage; Requirements to qualify for participation in the competition or league;
International ranking of athletes competing;
Structure of the competition or league (including major, minor, regional/local, or academy teams);
Viewership and/or attendance data;
Revenue data;
Prize money or awards attached to the competitions.
Another Example of USCIS Officers being unreasonable with P-1 Petitions for upcoming tennis players
All petitions seeking P nonimmigrant classification require adequate description of the competition, event, or performance in which the beneficiary will participate. A competition, event, or performance may include an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event or engagement. Such activities could include short vacations, promotional appearances for the petitioning employer and incidental or related stopovers. An athletic competition or entertainment event could include an entire season of performances. A group of related activities will also be considered an event. In the case of a P-1 athlete, the event may be the duration of the beneficiary's contract.
The description you submitted is insufficient.
You provided a Consent to Oral Agreements indicating that the beneficiary's engagements include competing in tennis competitions with other athletes. You provided event dates, as follows:
US Open, June 15-18, 2023
Atlanta Open, 2023 dates have not been announced
Cincinnati Open, August 12-20, 2023
APTA Tour events:
Cleveland Masters Women - November 12-13, 2022
Detroit Invitational Women - December 10-11, 2022
The Midwesterns Women - January 13-15, 2023
Boston Open Women - January 28-29, 2023
Birchwood Open Women - February 4-5, 2023
Short Hills Invitational Women - February 11-12, 2023
Philly Open Women - February 24-26, 2023
APTA Women's Nationals - March 10-12, 2023
In addition, you describe the nature of the events and schedules, as follows:
The organizers of competitions set up their event schedules quarterly and choose athletes for competitions only a few months at most before the actual competitions depending on rankings, health, government regulatory bodies, tv schedules and more. Also, the event organizers expect the athlete to compete in monthly exhibition sessions with other high level athletes to maintain fitness and skill for sanctioned competitions. Thus, it would be impossible to have the exact dates of the competition for the year because the event organizers have not made the dates for the events public as the schedule evolves throughout the year. However, the basic schedule is known from previous years schedule, included in the itinerary for this petition, and supporting evidence is included in this petition. The beneficiary's schedule will repeat in a similar manner as new locations for the same competition cycles are announced.
While we cannot know the exact dates the athlete will compete for 3 years, we do have a plan for the athlete to compete once a quarter in the best opportunity(ies) at that time. The available evidence on these competitions are included with this petition.
However, it is not evident that the beneficiary will actually be competing in the above listed competitions. Further, although a detailed itinerary is not required, the record should include an adequate description of the competition, event, or performance in which the beneficiary will participate. Since the description and identified event dates only extend to August 20, 2023, you have not demonstrated that the beneficiary will be coming to the United States for the purpose of performing in a specific athletic competition for the full validity period requested. Moreover, even though you indicate that the above schedule will repeat in a similar manner each year, you have only identified competition dates for seven months out of the year, and thus, have not shown a series of connected competitions or events for a full year's schedule. If the information you provide does not support approval of the full validity period requested, the period granted will be based on the evidence provided, which may be a limited validity period.
Therefore, the record does not contain sufficient evidence to describe the competitions or events that the beneficiary will be participating in. The record does not provide an adequate description of the competition, event, or performance in which the beneficiary will participate or an itinerary of scheduled events for the requested three-year validity period.
Fortunately, our office has likely filed ten times more P-1 visa applications than this officer has adjudicated, and we are able to educate this officer. In addition, we have recently won a lawsuit against USCIS that details why responses like this are outrageous. Clearly, events this far in the future do not have dates and listed participants yet. Our lawsuit was a major win for international athletes and another tool to keep USCIS officers honest and fair with their adjudications.
Federal Lawsuit Reports
Filing O-1 visas for International Student Tennis Athletes instead of P-1
In our practice, we have filed both P-1 visas and O-1 visas at the same time for international student tennis players who are making the transition to the professional level. The reason we did this is because we anticipated that there may be pushback from USCIS on itineraries that do not include the top-level competitions from these organizations
Association of Tennis Professionals - ATP
Women’s Tennis Association - WTA
World Team Tennis - WTT
USCIS is plainly aware that there are different levels of tournaments organized by these organizers and tends not to approve P-1 cases that do not include the major tournaments. In addition, these tennis organizations issue consultation letters that identify players that are already qualified for these tournaments. They may not issue a letter of recommendation for a player that is just starting out in professional tennis or ranked low in the world rankings.
For these persons we also filed O-1 visas because there is no requirement to participate in the top-level competitions and the O-1 can support much broader work authorization to work at the clubs. In addition, if an athlete obtains an O-1 visa, the athlete or its petitioner can bring in more tennis players for various activities under the O-2 Essential Support Staff Visa.
The issue with the O-1 visa is that it is much more complicated to be eligible than the P-1 visa but it is nonetheless often the only appropriate option for many tennis players. While a Tennis player may not be ranked in the top of the international rankings, we have had success using junior national team and collegiate accomplishments to support O-1A approvals for many tennis players
International Student Tennis Players, P-1 Visas & Name Image Likeness Issues
International students utilizing college schedules for P-1 visa applications will likely face scrutiny for the itinerary portion of the P-1 visa application. As stated above, USCIS harshly adjudicates professional tennis schedules if they are not at the highest level of competition. Undoubtedly, utilizing a college schedule for the P-1 itinerary will face the same issues. This may be less of a concern in major sports such as football and basketball that have large revenue contracts with TV broadcasters same as the major sports leagues.
It is still unproven which collegiate sports itineraries can uphold a P-1 visa petition on its own, if there are any at all. The most likely scenario is that the P-1 itinerary for a collegiate athlete would have to include competitions outside of the collegiate schedule. This is possible in sports like track and field where athletes regularly compete at meets where there is a mixture of collegiate and professional athletes. This is less likely in a sport such as football where you are either playing as a collegiate athlete or a professional.
There is an avenue if an athlete plays another professional sport such as e-sports and it does not interfere with the athlete’s college eligibility for baseball. The athlete could obtain a P-1 for esports itinerary, compete during the college season in baseball, and still obtain NIL consideration due to the P-1 for esports. This is because the college season does not directly pay the athlete for the competitions, so it is permissible for the athlete to compete according to immigration law.
Other than unique circumstances, it is probably unlikely that P-1 visas will be approved exclusively based on collegiate competitions, especially in sports like tennis where there is an established professional tournament organizer in the United States. For this reason, we are advocating that additional competitions be added to itineraries in this circumstance or pursuing the O-1 visa instead of the P-1 visa.
Oakhurst Legal Group | info@oaklg.com | Sherrod Sports Visas | www.sherrodsportsvisas.com
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