Recently I was taken by surprise when I received within a 2 week period approval notices for two P-1 visa petitions for individual athletes that were for a period less than what we had requested on the forms and less than the duration of the contract with the petitioning company. Through inquiries to colleagues and USCIS liaisons, I discovered that this is a new trend. It seems that the USCIS is restricting approval notices for P-1 visa petitions to the duration of a contract that provides income to the athletes.

Does this have to do with the expansion of the concept of employer/employee relationship in the H-1B visa petition context? For an H-1B employer that is a contractor, the approval of the H-1B visa petition will be limited to the duration that the employer can show it has contracts that will keep the H-1B worker engaged. In the context of the H-1B visa petition, this makes sense as there is a requirement of full-time employment with no “benching” and payment of a specific wage. For many athletes who are in sports that are not high profile, such as triathlon, a sponsorship contract for a period of 5 years is next to impossible to get unless you are truly in the top 3 in the world. However, most of the contracts do indicate that they are renewable. If all other indicators are there that the person is an athlete of international recognition, then it seems reasonable to grant the P-1 for the full duration requested if the athlete can demonstrate that he has obtained sufficient contracts in past years to earn sufficient income.

For more than 8 years now, I have been filing P-1 visa petitions for triathletes. Often, as allowed under the regulations, we have an agent or a coach as the petitioner. The regulations allow for a P-1 visa petition to be approved for 5 years if the athlete has a 5 year contract. Usually, a 5 year contract with the petitioning coach or agent was sufficient to obtain the 5 year approval. I believe that this shift in limiting a P-1 approval to the longest contract that provides income is under the premise that the athlete won’t be employed in the U.S. after that time and therefore isn’t eligible for the visa status. However, the P-1 visa does not require any level of employment! In fact, in the past we didn’t even need to show that the athlete would receive income. We were able to obtain P-1 visas for elite amateurs showing that they had made the cover of magazines, had articles written about them and achieved prizes and awards. And these athletes often didn’t have any contracts that provided them with income.

Here again, we are seeing the USCIS restricting a visa category through a shift in decision-making when there is no change in the rules or regulations. And why does the USCIS deem that it is necessary to limit the time in the U.S. of internationally recognized athletes? Certainly they are not taking jobs away from U.S. workers.
 

Posted by: Linda Rahal