The current Administration’s emphasis on the “Buy American, Hire American” policy has had a dramatic negative impact on the review of many business visas, with some experiencing sharply increased denial rates in excess 30%. While this policy would appear to have little relevance to the admission of foreign professional athletes coming to the U.S. to provide entertainment to U.S. fans, the Administration’s actions tell a different story. Even though the policy has little relevance to athletic occupations since it is hard to argue that foreign born professional athletes are taking jobs from American athletes, U.S. Citizenship and Immigration Services (“USCIS”) has taken an unduly strict approach to these cases.
This approach is reflected in the issuance of innumerable Requests for Evidence (“RFEs”) in virtually all individual P-1 athlete visa filings before a case can be adjudicated to completion - either approval or denial. A Request for Evidence is a lengthy “kickback” wherein USCIS declines to adjudicate the application until the petitioning sponsor, agent, league or tour responds to follow up questions from the agency.
Although these RFE’s appear to be based on the agency’s regulations, they are often based on incorrect interpretations of the regulations and agency guidance which either reflect ignorance of the law, a lack of training in the agency or worse, the appearance of actual intent to reduce the numbers of individuals qualifying for these visas.
For instance, according to the agency’s own statistics, almost 25% of P-1 visa petitions receive an RFE from the agency before they will complete their review of the case, including those filed for professional athletes. Of this number, only 65% are ultimately approved. See https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/I129_Quarterly_Request_for_Evidence_FY2015_FY2020_Q1.pdf.
Of the many reasons USCIS uses to justify the issuance of an RFE, some truly stand out as reflecting a fundamental misunderstanding of the real sports world and the regulations of the agency responsible for issuing the RFE’s, including:
1. Requests for five-year competition schedules for tours or other events if the athlete is seeking the maximum five-year validity period for the P-1 visa. NO SPORT ISSUES SCHEDULES FIVE YEARS IN ADVANCE; however, most sports can issue a one-year schedule with a letter from their chief executives confirming that the schedule repeats in the same format every year. Although these letters were accepted by USCIS as justification for a five-year visa request for decades, USCIS has now started restricting visas to one-year periods matching the one-year schedule that was provided. This reflects a fundamental misunderstanding of the way sporting events are scheduled in the real world.
2. Contracts between self-employed athletes such as golfers and tennis players and their respective tours are routinely requested in spite of the fact that the tours have clearly confirmed that the athletes are not employees, that they are self-employed and that there is no contract between the athlete and the tour. This also reflects a fundamental misunderstanding of the way that individual athletes operate in the real world.
3. The most absurd regulation of USCIS asks leagues, tours and events to prove that they require participation of an athlete or athletic team that has an international reputation. Experts confirm that no sport, league or competition in the U.S. “requires” the services of internationally recognized athletes; rather, all benefit from internationally recognized athletes’ participation through increased international interest, increased attendance, revenue and sponsorships. Despite this reality, USCIS clings to this absurd regulation which defies the possibility of compliance.
Addressing the Senate concerning the proposed elimination of certain restrictive provisions in the 1990 legislation that created these visas, Senator Kennedy said, “We are aware of the importance of encouraging the free and fair interchange of artists and cultural activity between nations…The purpose of these arrangements should be to open doors of opportunity for U.S. citizen and resident alien artists, entertainers and support personnel while welcoming such people from other countries. More should be done.”
There is no justifiable reason to restrict the admission of bona-fide foreign-born athletes to the U.S. They entertain our citizens and give our country the strongest sports industry in the world. We should now reverse the current restrictive approach and use these visas to open doors for these athletes to join our leagues, teams, tours and all sporting events. Sports unite and international athletes are vital to our country now more than ever!
*Steven M. Ladik is past President of the American Immigration Lawyers Association and represents numerous professional golfers on the LPGA Tour and PGA TOUR. He also serves as the outside Immigration Counsel to the National Football League. He is a Partner at Seltzer Chadwick Soefje & Ladik, PLLC. www.realclearcounsel.com