Greenberg Traurig, LLP  




GT Business Immigration Observer
August 2003

Play Ball! – But Not Without The Proper Visa: the O and P Visa Categories

Although sometimes not considered until the last minute, foreign athletes and entertainers are required to obtain a visa in order to perform in the United States. As representatives of players throughout major U.S. Sports Leagues including the National Football League, the National Hockey League and Major League Baseball, GT can vouch for the importance of proper and timely visa planning. Actors, musicians, music groups and entertainment companies are also bound to BCIS regulations.

The visas of choice are the O and P nonimmigrant visa categories:

The P Visa

The P-1 visa is available to athletes who perform at an internationally recognized level and group entertainers who have been recognized internationally as being outstanding in their discipline. For an applicant to qualify, their skill and recognition must be substantially above that ordinarily encountered. P-3 visas can be utilized for groups coming to participate in a cultural exchange program.

To qualify for the P visa as a professional athlete, the athlete will need to demonstrate that they have a tendered contract with a major U.S. sports league or team and that they have, among other things, participated to a significant extent in a prior season with a major U.S. sports league or for a U.S. college in intercollegiate competition. They may also provide a statement from an official of the governing body of the sport which details how they are internationally recognized or demonstrate their receipt of a significant award or honor in the sport.

To qualify for the P visa as an entertainment group, the group must demonstrate, among other things, that they have been internationally recognized as outstanding for a substantial period of time and that performers have been with the group for at least one year.

The O Visa

In the entertainment area, the O-1 visa is reserved for aliens of extraordinary ability in the arts who have reached a level of distinction which demonstrates a high level of achievement in the field. This level of distinction is evidenced by a degree of skill and recognition substantially above that ordinarily encountered. What does that mean? It means that unless a musician, artist or performer can establish that they are prominent in their field of endeavor or that they have in essence "made it" then they probably do not qualify for the O-1 visa. If they have reached a high level of achievement in their field and they can prove it by demonstrating, among other things, that they have been nominated to receive a significant international or national award (think Emmy, Grammy, Academy Award or foreign equivalent), or that they have performed in a leading role in distinguished productions or organizations and/or they have a record of major commercial or critically acclaimed success, then the O-1 visa is probably within their reach.

If a musician, artist, entertainer, athlete or entertainment group appears to qualify for the O or P visa, a petition is prepared and filed with the U.S. Department of Homeland Security’s Bureau of Citizenship and Immigration Services ("BCIS"). The team or U.S. agent serves as the petitioning sponsor and provides qualifying evidence listed as well as additional information and/or materials including a letter in support of the petition, a schedule of events, concert dates or team schedule and information regarding the organization of the petitioning entity. These visas also require a written advisory opinion from an appropriate union regarding the nature of the work to be performed and the person’s qualifications.

Visa Highlights

  • O and P visa petitions qualify for the BCIS Premium Processing Program under which the visa petition will be adjudicated within 15 days of receipt by the BCIS for an additional filing fee.
  • The length of stay in the United States petitioned for on behalf of the beneficiary can be as short as for performance in one competition, event or show or can be as long as an entire season or the length of an entire contract, up to three years for an O petition and up to five years for a P petition. Extensions of stay can be obtained for both visa categories.
  • The P visa includes provisions for continued employment authorization when a professional athlete is traded from one organization to another organization.
  • Although all O and P visa applicants must have a foreign residence which they do not intend to abandon, the regulations permit dual intent - meaning the professional athlete may hold the nonimmigrant P visa and at the same time intend to, and proceed to, obtain permanent residence in the United States.

Clearly the O and P visa categories have been carved out for those who have reached the top of their chosen discipline. Holders of these visas include NFL Football Players, NHL Hockey Players, Major League Baseball Players, PGA Golfers, and top musicians, music groups and entertainers from around the world.

To review a detailed discussion of the O and P visa classifications, including those for individuals who have extraordinary ability in the sciences, education and business, please refer to our article entitled "There’s No Business Like Show Business! – Nonimmigrant Options for Sports and Entertainment Professionals" which can be found in our February 2002 newsletter. This article also discusses the potential tax consequences of the O and P visa categories.

Greenberg Traurig offers premier immigration, sports and entertainment related services for foreign national athletes, artists, and entertainers as well as other sports and entertainment professionals who are exploring employment in the United States.


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