You Want To Play Professional Sport in The USA – The EB-1A or P-1A Extraordinary Ability Visa (Athlete & Coach)

Posted on by Jason Aquadro

The EB-1A visa, or Alien of Extraordinary Ability visa, doesn’t require an employer to sponsor a foreign national. The Petitioner who is an athlete or coach may “self-sponsor” in this specific visa classification. Yet, the Petitioner has a very challenging standard to meet as he or she must be able to demonstrate extraordinary ability in athletics through sustained national or international acclaim. Success is not guaranteed with this visa no matter how accomplished the Petitioner. Rather, if the athlete or coach really wants to get to the US to be engaged in sport – then consider first obtaining the non-immigrant visa for athletes and coaches (P-1A). This visa is much easier to satisfy the criteria as a practical matter and much less expensive to process with professional help as a financial matter. Later, once inside the US and engaged in sport, then the Petitioner applies for an “adjustment of status” to obtain the EB-1A “Green Card” Immigrant Visa. “Free agency” is what every athlete wants – but – playing the visa “game” smarter than the other guy is the better guarantee of success on the field.


Petition for Extraordinary Ability Classification: Overview of Two-Step Evidentiary Review

Step 1Assess whether evidence meets regulatory criteria: Determine, by a preponderance of the evidence, which evidence submitted by the petitioner objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as “regulatory criteria”).
Step 2Final merits determination: Evaluate all the evidence together when considering the petition in its entirety for the final merits determination, in the context of the high level of expertise required for this immigrant classification.

The reasons for an athlete or coach to select an EB-1A visa as a self-sponsor rather than follow the P-1A non-immigrant visa are twofold.1 The EB-1A is a “Green card” immigrant visa, and the P-1A is not. The

EB-1A “theoretically” does not require an employer sponsor (more on that infra), while the P-1A mandates a sponsor, employer or “agent.” The material detriment of the Green Card Immigrant Visa classifications also include the higher processing cost and the restricted number of visas in the EB-1A. If the athlete or coach wants to be in the US to play for a specific season – then the P-1A is really the best viable option with the highest percentage of success.2

The processing delays and evidentiary hurdles for the P-1A as a non-immigrant temporary work visa are far fewer in practice. The practical approach for the athlete or coach is to come to the US on a P-1A and then while engaged in sport (either as player or coach) apply to “adjust status” to the EB-1A (self- sponsored) thus become a “free agent” in the particular sport of your petition selection.3 The experience in the P-1A status makes the Petitioner a “stronger” player on the visa field and will validate the credibility of the Petitioner’s claims of “extraordinary abilities.” The work experience may also resolve to the examiner’s satisfaction the essential criterion – “Continuing to Work in the Area of Expertise” and may collaterally address the implied criterion that the Petitioner must prove he or she earns above 125% of the Poverty Guidelines (more on both infra).

Evaluate the condition of the field before the Petitioner commences play. Consider first the essential criteria for the EB-1A Self-Sponsored Visa –

•       Extraordinary Ability – Do You Really Have It?

The regulations describe various types of evidence that the Petitioner must submit in support of a petition as documentation of the beneficiary’s extraordinary ability. This evidentiary standard (in the context of the EB-1A) is high.

In general, the Petitioner must submit evidence that:

  • The person has sustained national or international acclaim; and
    • The person’s achievements have been recognized in the field of expertise;
    • This initial evidence must include either evidence of a one-time achievement (for example, a major internationally recognized award, such as the French Open are the Coupe des Mousquetaires (men’s singles) and the Coupe Suzanne Lenglen (women’s singles)) OR
  • At least three (3) of the types of evidence listed in the regulations.

USCIS determines if the person was the recipient of prizes or awards. Nothing precludes the person from relying on a team award, provided the person is one of the recipients of the award. The description of this type of evidence in the regulation indicates that the focus should be on the person’s receipt of the awards or prizes, as opposed to the employer’s (team’s) receipt of the awards or prizes.

USCIS determines whether the award is a lesser nationally or internationally recognized prize or award which the person received for excellence in the field of endeavor. As indicated by the plain language of the regulation, this criterion does not require an award or prize to have the same level of recognition and prestige associated with the Masters Golf Tournament Green Jacket or another award that would qualify as a similar one-time achievement. Some nationally or internationally recognized awards for excellence, which might be construed as “lesser” by the visa examiner could be more properly contextualized for importance if explained in context. The Petitioner should prepare a separate supplement laying out the award, the context, the past recipients, and any other relevant factors which are such that they may create a totality of the circumstances sufficient to satisfy the requirements of this criterion.

There are no “magic words” which must accompany any award used to support the petition. The evidence provided in support of the petition need not specifically use the words “extraordinary.” Rather, the material should be such that it is readily apparent that the Petitioner’s contributions to the sport are qualifying. Also, although some of the regulatory language relating to evidence occasionally uses plurals, it is entirely possible that the presentation of a single piece of evidence in a specific evidentiary category may be sufficient to meet this requirement. The analysis is very fact driven and the Petitioner controls how many facts to disclose and what importance to assign to these facts.

•       DIY Is Not Recommended for the EB-1A and Form I-140 – Too Many Places To Go Wrong!

The Petitioner may apply for him or herself by filing a Form I-140, Petition for Alien Worker.4 The regular fee is $715 for the Petitioner plus a fee to support the asylum program (see infra). If the I-140 petition is approved, the spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-14 or E-15 immigrant status, respectively. There is no duplicate fee for their admission to the US under the I-140 though there are other fees that apply. 5 DIY completion of the I-140 is not advisable. It is full of unintentional “traps” for a person not experienced with the USCIS forms. For example, an annotation of a dependent’s intention to either apply for adjustment of status (if inside the USA) or an immigrant visa abroad (if outside the USA) as seen in Part 7 of Form I-140 is not binding, but should reflect the dependent’s intent at the time of the Petitioner’s filing of Form I-140. That intent is measured at the time of the application and later circumstances might change the spouse or child’s intent – but the spouse or child needs to be prepared to address such “inconsistencies” when interviewed. Knowing how these statements will be used in the future can help the Petitioner avoid “unforced errors.”

When the Petitioner files the USCIS Form I-140, frequently a DIY and even a few experienced filers will fail to make the correct payments. The payment with the petition for the full $600 Asylum Program Fee, is absolutely required unless the Petitioner clearly qualifies for a reduced Asylum Program Fee of either

$300 or $0. The petition must have ample unequivocal proof of the reduced fee qualifications (in a separately set forth series of statement(s) and exhibits). If Petitioner does not provide the correct Asylum Program Fee, in addition to the $715 filing fee, USCIS will absolutely reject the filing. Note- Discounts are available where forms are filed online ($50 discount) but getting the fee correct is really more important than harvesting a $50 discount.

•       Sustained National or International Acclaim – The Critical Threshold!

When filing a petition for a person with extraordinary ability, the Petitioner must submit evidence that the person has “sustained national or international acclaim” and that the person’s achievements have been recognized in the field of sport. In determining whether the Petitioner has enjoyed “sustained” national or international acclaim, the visa examining officer will consider that such acclaim must be maintained (currently) or continued over time (past & present though episodic).6 However, the term “sustained” does not imply an age limit on the Petitioner or a quantity of accomplishments. A Petitioner may be very young or early in his or her career and still be able to show sustained acclaim. There is also no definitive time frame on what constitutes sustained. This criterion is highly subjective.

If a Petitioner was recognized for a particular achievement, the officer should determine whether the Petitioner continues to maintain a comparable level of acclaim in the field of expertise since the Petitioner was originally afforded that recognition. A Petitioner may, for example, have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter. The evidence in support of some measure of acclaim lesser than “first prize” (if the level of acclaim has fallen) needs to be developed and (more important) explained in context to the examiner. The level of acclaim must be explained in the totality of the circumstances with evidence to support any factual or opinion based assertions upon which the Petitioner wishes the visa examiner to rely.

In order to demonstrate the Petitioner’s sustained national or international acclaim and that Petitioner’s achievements have been and are currently recognized in the field of sport the Petitioner must either include evidence of a one-time achievement (major internationally-recognized award) or prove 3 of the listed criteria below (or comparable evidence if any of the criteria do not readily apply):

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence (team prizes also accepted);
  • Evidence of Petitioner’s membership in associations in the field which demand outstanding achievement of their members (ranking of the team and league where employed now or in the very recent past);
  • Evidence of published material about Petitioner in professional or major trade publications or other major media (news reports and online profiles);

    Evidence of Petitioner’s original athletic contributions of major significance to the sport (new plays, training, professionalism, mentoring);
  • Evidence of Petitioner’s performance of a leading or critical role in distinguished organizations (similar to associations above but focused on the teams, leagues, or larger organizations with which the Petitioner performed);
  • Evidence that Petitioner command(s) a high salary or other significantly high remuneration in relation to others in the field.

Evidence that satisfies these criteria is and must be very well detailed, explained in context, and frequently supported by attestations, sport league or association letters of support, and peer or judge endorsements. The visa examiner must be assumed to be uniformed of the nature of the sport and the honors earned in that sport. Great care must be taken to lay out the specifics in what would be considered “painful” detail in the Petitioner’s native land because these facts are so well know or are “obvious” back home. The visa examiner is unlikely to be from “back home” and will need to be spoon- fed the facts upon which the Petitioner homes to rely.

  • “Continuing to Work in the Area of Expertise” – This Is The Constant Point of Failure For the Self-Sponsor Petitioner –

The absence of an “employer” sponsor makes it almost impossible for a “team sport” player or coach to satisfy this requirement of the EB-1A self-sponsored visa criteria. Solo sport players may have an easier nurdle to cross.

“To qualify as a person with extraordinary ability, the beneficiary must intend to continue to work in the area of his or her expertise.”

The examining officer may encounter instances where it is difficult to determine whether the person’s intended employment falls sufficiently within the bounds of his or her area of extraordinary ability.

Athletes intending to “play” clearly do not get any presumption of being able to play as a “free agent” (absent an employer sponsor). If applying as a “free agent” then the athlete must match at least the minimum threshold of proof for this status either currently, in the recent past, or with evidence of the high probability of this status in the near future. That proof alone may not be sufficient.

A solo player is compelled by the totality of the visa criteria to lay out the events, tournaments, and any other known sources of competition which will be evidence of his or her satisfaction of this criteria.

Merely listed events is never sufficient. The Petitioner must describe the event, the admission criteria, how the Petitioner satisfies the criteria, the earnings from or the payment to the event in order to participate. The supporting documentation must be granular in detail sufficient for the examining officer to rely upon the Petitioner satisfying these requirements.

In general, coaching as the “work” is even harder to prove up the criterion where the sport is small in scale within the US. Some of the most problematic cases are those in which the beneficiary’s sustained national or international acclaim is based on his or her abilities as an athlete, but the beneficiary’s intent is to come to the United States and be employed as an athletic coach or manager.

If a Petitioner has “clearly achieved recent national or international acclaim as an athlete and has sustained that acclaim in the field of coaching or managing at a national level, examining officers can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that USCIS can conclude that coaching is within the beneficiary’s area of expertise,” and the coach will work as a coach in this field throughout the duration of the visa [emphasis added]. There is a burden on the player who tries to coach that focuses on the reasonable expectation of a job. The more probable the Petitioner can make the job appear then the more likely the visa examiner will allow for the player to transition to coaching as a part of this visa.

The evidence on this single criterion routinely fails for the self-sponsored athlete and/or coach.7

  • Build An Architecture Of The Sport & The Petitioner’s Role As Important In The Sport – Satisfy the Criterion “Entry to Substantially Benefit the United States”

The Petitioner will fail the visa criteria if the petition treats, in an unserious manner, the criterion of “entry must substantially benefit the United States in the future.” Although neither the statute nor the regulations specifically define the phrase “substantially benefit” it has been interpreted broadly. Whether the Petitioner demonstrates that the person’s employment meets this requirement requires a fact- dependent assessment of the case. The successful Petitioner will build a narrative with supporting evidence that lays out the architecture of the structure of the sport in the home country, the Petitioner’s position or role in that structure, and any connection that the Petitioner can make to these facts and the needs of the USA based sport community in the same sport.

As an example, assume the Petitioner is a rugby athlete from one of the provincial teams (“unions”). He would explain in the supporting documents that the Rugby Union in South Africa is centrally administered by the South African Rugby Union, which consists of fourteen provincial unions. Each of these unions administers a senior professional rugby team that participates in the domestic Currie Cup and SA Cup competitions. In addition, these unions are responsible for amateur club rugby in their region. Clubs participate in provincial leagues organised by the unions; university sides also participate in the annual Varsity Cup competition, while non-university sides participate in the annual Gold Cup.8 The Petitioner must stress and explain his or her role on the team(s) and within the structures. The Petitioner would explain his or her volunteer and mentoring activities in sport, and all of the sport related activities which add to his or her popular profile which must be documented with evidence for the examining officer. The Petitioner, as a self-sponsored EB-1A would then need to “bind” the scrum in the application showing how all of this extraordinary ability will benefit rugby in the US at some level or specific point. It is a harder exercise than it seems at first.

•       Other Evidentiary Considerations:           Use Letters of Support

The several criteria where the petition can fail from a lack of compelling evidence may be propped up with letters of support. These specific devices, Letters of Support (statements by fact witnesses), while not without weight, will not form the cornerstone of a successful claim for this extraordinary ability classification. Rather, the letter authored by the witnesses should be corroborated by documentary evidence placed in the record by the Petetioner. The letters should explain in specific factual detail why the witnesses believe the Petitioner to be of the caliber of a person with extraordinary ability. Letters that merely reiterate USCIS’ definitions relating to this classification or make general and expansive statements regarding the beneficiary and the beneficiary’s accomplishments are generally not persuasive.

The most effective letters are ones which define in detail (1) the relationship or affiliation between the Petitioner and the witness; and (2) the importance of the witness in the sport; Both of these details are factors the examining officer will consider when evaluating the significance of witnesses’ letters. It is generally expected that a Petitioner whose accomplishments have garnered sustained national or international acclaim would have received recognition for their accomplishments well beyond the circle of their personal and professional acquaintances. Accordingly, the weight given to letters penned by outsiders or by people who are not confidants of the Petitioner will be weightier.

Avoid letters from witnesses in the Petitioner’s sport which merely make general assertions about the Petitioner, and at most, indicate that the Petitioner is a competent, respected figure within the field of sport. These letters lack sufficient, concrete evidence supporting meaningful and reliable statements addressing the criterion. These weak letters should be considered by the examining officer, but do not necessarily show the Petitioner’s claimed extraordinary ability. These are weak letters and the “faint praise” can even dilute the other strong letters. The application needs to have a curated selection of support letters to address the criteria – rather than some general statements of a hagiographic nature. The petition preparer should resist a “Hail Mary” type pass including all the letters and instead select the letters that support in the most detail the criterion.

•       Dirty Little Secrets For Successful Visa Petitions – Use the P-1A and Wait Before Trying The EB-1A Self-Sponsored Visa –

The dirty little secret for athletes and coaches wishing to Live/Work – USA is that the P-1A is the better choice for most Petitioners. The P-1A as a non-immigrant visa is more relaxed in the review of the criteria than the EB-1A “Green Card. The P-1A is better suited to athletes or coaches from the “minor” leagues of a sports union or association who wish to “break into” sport in the US market.

The P-1A requirement to participate in a “competition” can be extended to a season, or league, or more than one game or event with the properly prepared petition.

The non-immigrant status of the visa allows for this more relaxed approach by the visa examiner as set forth in the Guidance Manual –

“Rather, it is sufficient for the petitioner to show that the competition is at an internationally recognized level of performance such that it requires that caliber of athlete or team to be among its participants or that some level of participation by internationally recognized athletes is required to maintain its current distinguished reputation in the sport.”9

There is a P-1A pathway into the US where the state of play by the Petitioner is not at the top of the game. “Individual athletes who are internationally recognized may also be coming to the United States to join a U.S.-based team.” The US will admit athletes or coaches performing in the minor leagues wherein the Petitioner may develop the additional credentials necessary to meet the defacto higher level of “extraordinary ability” criteria necessary to get an EB-1A visa in the future. Once playing at the higher levels of US sport the “adjustment of status” to the EB-1A becomes much more predictably successful.

The Petitioner who plays rugby in South Africa, for example, has a difficult pathway to meet the criteria for an EB-1A self-sponsored visa because the US does not have a “professional” rugby league comparable to the national football, baseball, and basketball leagues10 The absence of an immediate equivalent in the US sport world for the South African rugby player makes the self-sponsor at risk of failing the “substantially benefit the United States” criterion. The lack of paying team positions in this specific sport example also erodes the confidence of the visa examiner that the self-sponsored athlete or coach can meaningfully “intend to continue to work in the area of his or her expertise”11 because of the apparent lack of opportunities.

The P-1A resolves these at-risk criteria in favor of the Petitioner because there is an “employer” sponsor – in the form of either a team, event or series, or an “agent.”12 A P-1A visa sponsor is an U.S. employer or agent who initiates and pays for a P-1A visa for a foreign athlete. The sponsor can also be a foreign employer through a U.S. agent. The agent acting as the Petitioner sponsor must show they are “in business as an agent,” though is not required to show that the agent normally serves as a talent agency or athletic manager as their main occupation (i.e., agent might be a lawyer or a coach who as a sideline acts as a sponsor).13 There are additional criteria (not addressed here as beyond the scope of the brief ) which apply in the P-1A visa classification. However, it will be sufficient for the Petitioner to consider that having an “agent” sponsor makes the P-1A the easiest, surest, and most successful “play” of the game to get started with a Live/Work- USA experience as an athlete or coach.

The complexity of the sports world and playing for money in the US makes a DIY application a “three-point shot” from the center court with a high probability of failure. The Petitioner should approach the visa “game” with the same rigor and professionalism as he or she does the sport. Planning, preparation and professional assistance are the better guarantors of success than any measure of “luck” will provide.

References

1 The criteria are substantial the same for the EB-1A and the P-1A. https://www.uscis.gov/policy- manual/volume-2-part-n-chapter-2 Individual athletes who are internationally recognized may also be coming to the United States to join a U.S.-based team are usually seeking P-1A.

2 USCIS Premium Processing is a service that speeds up the processing of certain immigration benefit requests. You can request Premium Processing for a P-1A petition by filing Form I-907 with U.S. Citizenship and Immigration Services (USCIS).

3 There frequently is a faster processing time for the change in status if the Petitioner returns to the home country and applies using consular processing. The need to file a separate Adjustment of Status (I-485) application and pay the additional fee of $1,440 is avoided.

4 For more information on Extraordinary Ability, read Guidance Manual Volume 6, Part F,

5 There are hidden costs.as follows:

  • This visa classification requires a medical examination within 30 days of the scheduled consular appointment. Form I-693, Report of Immigration Medical Examination .The medical examination is only performed by an approved doctor. The current fee is reported to be R1,550.
  • Biometric data collection and background investigation fee is included in the application but you may be required to separately schedule a biometric collection date which may well be separate from your interview. Data is now collected digitally at the consular post – so any advice to obtain fingerprint cards (found on the Internet) is outdated and unhelpful.
  • The DS-260 form filed with the Department of State for the consulate to process the visa which is placed inside the Petitioner’s passport is $325, with a separate and same fee for the spouse and minor children visas that are pendent upon the EB-1A visa. If you seek to get an immigration visa to live and work in the United States, one form you will need to fill out is the Form DS-261 Choice of Address and Agent form. This document provides information to the U.S. government about how to contact you for the processing of your immigration visa. The form also allows you to appoint someone—an agent—to receive the correspondence related to your immigration visa application which is helpful if you are overseas while applying. The fee is

$120 and must be paid online before the DS-260 fee is paid – The fee for processing the DS-260 is paid online only after the National Visa Center (NVC) processes the DS-261. The Petitioner cannot access the DS-260 form to make the consular appointment until the NVC processes the payments.

6 A tennis player or golf player may have a “ranking” that varies over time or over a career with some highs and lows. The examiner is encouraged by the Guidance Manual to consider this “arc” of the career in sport. A single massive achievement is also good enough in the right context (Olympic medals or the foreign equivalent of a team Superbowl ring).

7 The companion to this point of visa failure is the Petitioner’s in ability to prove that the Petitioner earns, will earn, or has saved sufficient assets (cash) to finance the stay inside the USA at a level in excess of 125% of the annual poverty guideline for the year in which the application is filed. This standard is expressly articulated in many visa classifications. However, EB-1A has only anecdotal reports of the standard being applied to athletes and coaches who self-sponsor.

8 https://en.wikipedia.org/wiki/List_of_South_African_rugby_union_teams

9 https://www.uscis.gov/policy-manual/volume-2-part-n-chapter-2

10 USA Rugby https://usa.rugby/ is not the equivalent of the National Football League or the National Basketball Association. It is essentially a club sport elevated to a quasi-professional league more akin to the Serie “B” Italian Football League by comparison. https://1divisione.fidaf.org/

11 There is also the companion problem of the Petitioner remaining at an income level above 125% of the Poverty Guidelines.

12 The credentials for the “agent” and the requirements placed upon the agent in the context of the P-1A are readily addressed by an immigration professional. Seek advice when selecting an agent as sponsor for the P-1A to reduce the opportunities for disappointment.

13 USCIS Memorandum, D. Neufeld, Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications (Nov. 20, 2009), AILA Doc. No. 09113064. “The regulations do not specify the evidence for establishing that the petitioner of multiple employers is “in business as an agent.” Adjudicators should consider evidence that shows that it is more likely than not that the petitioner is in business as an agent for the series of events, services, or engagements that is the subject of the petition. The focus should be on whether the petitioner can establish that it is authorized to act as an agent for the other employers for purposes of filing the petition. This means that the petitioner does not have to demonstrate that it normally serves as an agent outside the context of this petition.”

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