Immigration Law Group LLC
Legal Authority
Section §101(a)(15)(P) of the INA provides that P-1, P-2, P-3 and P-4 visas are available to internationally known athletes, whether as individuals or part of a group or team, as well as entertainment groups. P-1 aliens are entertainment groups that will perform in the United States. P-2 aliens are performing artists under reciprocal exchange programs, and those in the P-3 category are culturally unique entertainers. All three classifications include accompanying personnel. The P-4 category is for dependents of those in the above-listed categories.
Athletes, athletic teams and entertainment groups must meet the basic standard of international recognition. Specifically, 8 CFR 214.2(p)(3) requires that P-1 aliens reach “a high level of achievement in the 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.”
Aliens performing as athletes at an internationally recognized level may be admitted with P-1 status. This standard is easier to meet than that for O-1 athletes, who must have sustained national or international acclaim. P-1 classifications may be granted to internationally recognized athletes based on their reputation and achievements. Athletic teams must be recognized internationally as outstanding in their disciplines. Team members may be granted P-1 classification based on membership but may not perform separately from the team.
The petitioner for athletes and athletic teams must file contracts with a major American sports league or team, if such contracts are normally executed in the sport, and provide evidence, required by 8 CFR 214.2(p)(4)(ii)(B), of at the least two of the following:
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Significant participation with a major American sports league;
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Participation in international competition with a national team;
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Significant participation in American intercollegiate competition;
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A written statement from a major U.S. sports league or official of the sport’s governing body detailing the alien or team’s international recognition;
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A written statement from a recognized expert knowledgeable in the athlete or teams skills;
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International ranking; or
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Significant honors and awards in the sport.
The P-1 visa is also for members of entertainment groups. According to 8 CFR 214.2(p)(4)(iii)(B), P-1 visa performers must perform with an entertainment group that is recognized internationally as outstanding in the industry for a substantial period of time. Also, each performer of the group must have a sustained and substantial relationship with the group of at least a year (with exceptions discussed below) and enter the United States solely to perform or entertain in conjunction with the group. However, it should be noted that P-1 status is granted on the basis of the group’s reputation, and not that of its individuals.
A petition for a P-1 visa for an entertainment group must include:
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Evidence that the group has been established and performing regularly for a period of at least one year;
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A statement from the petitioner listing each member of the group and the exact period of time during which he has been employed on a regular basis by the group; and
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Evidence that the group is internationally recognized for a sustained and substantial period of time.
The petitioner can show international recognition either by evidence of the group’s nomination for, or receipt of, significant international awards, or of three of the following:
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Performances as a starring or leading entertainment group in prestigious productions or events;
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International recognition and acclaim for outstanding achievements;
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Record of major commercial or critically acclaimed success;
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Significant recognition for achievements from organizations, critics, governmental agencies or other well-recognized experts;
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High remuneration comparable to that of others similarly situated.
Exceptions Relating to Entertainers
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Substantial and sustained period of time. Only seventy-five percent of the group’s members must have a sustained and substantial relationship with the group for at least a year. In addition, 8 CFR 214.2(p)(4)(iii)(C)(3) allows a waiver of the one-year relationship requirement “for an alien who, because of illness or unanticipated and exigent circumstances, replaces an essential member of a P-1 entertainment group or an alien who augments the group by performing a critical role.”
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National and international recognition. Depending on the circumstances, USCIS, in accordance with 8 CFR 214.2(p)(4)(iii)(C)(2), may waive the international-recognition requirement for an entertainment group as long as it is recognized nationally in the entertainment industry for a sustained and substantial period of time.
P-2 Visa Requirements
P-2 visas are designed for artists and entertainers who perform individually or as part groups, pursuant to reciprocal exchange programs between American organizations and those abroad. The program provides for the temporary exchange of artists and entertainers and is organized with the consent and approval of the relevant labor union. Performing artists involved in the exchange program must have comparable skills, experience, reputation and recognition. They also must be employed under the same terms and conditions.
P-3 visas are available to culturally unique artists and entertainers, individually or as a group, seeking to develop, interpret, represent, coach or teach their particular art or discipline. According to 8 CFR 214.2(p)(3), “[c]ulturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.”
The petitioner must provide the following evidence in support of a P-3 visa:
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Affidavits, testimonials or letters from recognized experts attesting to the authenticity of the alien or group’s skills enumerated in the paragraph above;
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Documentation that the performance of the alien or group is culturally unique, as evidenced by reviews in newspapers, journals or other published materials; and
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Evidence that all of the performances or presentations will be culturally unique.
P Visa Essential Support Personnel
P visas are also available to the “essential support” personnel. According to 8 CFR 214.2(p)(3), an essential support alien is defined as “a highly skilled, essential person” who is an “integral part” of the performance of the P alien because he performs support services that cannot readily be performed by an American worker and are essential to the success of the performance. Such aliens must have appropriate qualifications to perform the services; critical knowledge of the specific services required and experience in providing such support to the P alien.
Filing Procedures
The term “petitioner” includes American employers, sponsors or agents, or foreign employers acting through American agents. The definition of an agent includes someone whose responsibility includes traditional management and booking functions, but also an individual who is authorized by a foreign employer to file a petition and accept summons in case of a lawsuit under INA §274A. Pursuant to 8 CFR 214.2(p)(iv)(E)(1), agents “performing the function of an employer” must specify the wage offered and the other terms and conditions of employment. The term “contract” means a written agreement between petitioner and beneficiary, describing the terms and conditions of employment, including the required services, wages, hours, working conditions and any additional benefits.
The petitioner must file Form I-129 with a P supplement in duplicate to request P-1, P-2, or P-3 visas. Petitioner must file the petition with the USCIS service center having jurisdiction over the alien’s work location. If the beneficiaries of the P-visa petition will perform at more than one location, the petition must include an itinerary with the dates and locations of work in accordance with 8 CFR 214.2(p)(2)(iv)(A). USCIS interprets “more than one location (e.g., a tour)” to mean within the jurisdiction of more than one service center.” P visa holders may work for more than one employer at a time but they will require separate petitions filed with the service center having jurisdiction in the locations where the performances will be rendered. If the beneficiary changes employers, then the new hiring organization must file both a petition and an extension of stay. The subsequent petitioner must file the petition with the service center of original jurisdiction to reflect any material changes in the terms and conditions of employment or the beneficiary’s eligibility. In addition, 8 CFR 214.2(p)(iv)(D) allows petitioners to add additional “similar or comparable” performances, engagements or competitions during the periods of the original petitions without having to file amendments.
The petitioner can file an application for more than one beneficiary but cannot include essential support personnel in the same petition as that of the principal beneficiary. He must also list multiple beneficiaries on Supplement 1 included in the I-129 form. Likewise, he must complete a separate petition for essential support personnel. The law, though, does allow the petitioner to substitute principal beneficiaries on P petitions. If substitution is required, he must send a letter to the appropriate American consulate asking for the substitution and attach a copy of the notice of approval to it. He cannot substitute any of the essential support personnel.
A P visa petition must contain substantial documentation. For example, for an entertainment group, the application must be accompanied by a list citing each group member and significant evidence showing that the group has performed for at least one year. The P-2 petition must include a copy of the formal reciprocal exchange agreement and a statement from the sponsoring organization describing the particular exchange and its goals. The P-3 petition must be accompanied by expert affidavits, testimonials or documentation of cultural uniqueness, and evidence that all performances will be culturally unique.
Union Consultation
USCIS will not approve any P visa petition until petitioner provides to USCIS an approval, and advisory opinion or a no-objection letter from the appropriate labor union. USCIS might approve the petition without the union consultation if the petitioner demonstrates that no appropriate labor organization exists. The appropriate labor organization is the one with expertise in the field. Generally, the consultation must consist of a written advisory opinion containing a specific statement of facts supporting its conclusion. The consultation, however, is not binding on USCIS. Sometimes petitioner must obtain multiple consultations if the activities of the P beneficiaries fall within the scope of more than one labor union.
If USCIS determines that a petition “merits expeditious handing,” and it does not already include a labor consultation, it will contact the labor organization for an expedited consultation. That organization has twenty-four hours to respond by phone or it will adjudicate without the advisory opinion. The organization then has five additional working days to submit a written advisory opinion.
P-1 consultation letter. This letter should describe the alien or group’s ability and achievements in the field of expertise. It should comment on whether the alien or group is internationally recognized and state whether the services to be performed are at the level of an internationally recognized athlete or entertainment group. Alternatively, labor unions may respond with a “no objection” letter instead of an extensive opinion. A negative advisory opinion must contain a specific statement of the facts on which the conclusion is based.
P-2 consultation letter. This letter should provide evidence that an appropriate union has been involved in negotiating, or has concurred with, the reciprocal exchange program. The consultation letter needs only to verify the existence of a “viable exchange program” by commenting on the bona fides of the program and whether it meets the criteria of the P-2 visa (8 CFR 214.2(p)(7)(iv)). Moreover, if the union is a petitioner for a P-2 visa, a separate consultation opinion is not required in accordance with 8 CFR 214.2(p)(7)(v).
P-3 consultation letter. This letter must assess whether the beneficiary’s skills are culturally unique and the events are cultural in nature. The letter must state whether the events and activities are suitable for a P-3 visa. A negative advisory opinion must contain a specific statement of the facts on which the conclusion is based
Essential support personnel consultation. An appropriate union must provide a consultation letter involving essential support personnel. Sometimes, the petitioner will need to contact several unions. The letter should assess the alien’s nexus and working relationship with the principal as well as state whether American workers are available to perform the requested services. However, no recruiting on the American labor market is required.
Admission Criteria
Admission for all P categories is limited to a specific athletic competition or season, tournament, tour, exhibit, project, entertainment event or engagement. Furthermore, such activity may include short vacations, promotional appearances and stopovers incidental but related to the underlying activity. An athletic or entertainment event may include a complete season of performances, but athletes with P-1 visas can only participate in events for which this visa type was authorized. On the other hand, P-3 athletes may enter to teach and coach pursuant to a contract. It should be noted that all principal P aliens can engage in the activities for which they achieved recognition.
Initial P-1 petitions for individual athletes are valid for up to five years. P-1 petitions for athletic teams or entertainment groups may be valid for the time needed to complete the competition, event, or performance, however, not to exceed one year. The same rule applies to P-2 and P-3 petitions. All petitions for P essential support personnel may be granted for a maximum of one year as well. Aliens may be admitted up to ten days prior to the validity period and may remain ten days thereafter. Beneficiaries are not allowed in the United States during these ten-day periods.
USCIS may grant an extension for another five-year period to individual P-1 athletes, for a total stay of no more than ten years. It may also grant extensions to other P visa holders for a maximum of one year. All P aliens must maintain a foreign residence that they do not intend to abandon. Nevertheless, 8 CFR §214.2(p)(15) allows P principals, but not their essential support personnel, to seek lawful permanent residence while in P status.
For P-visa athletes who lose employment for reasons other than voluntary resignation, the employer and petitioner (if not the same person), are jointly and severally liable for the reasonable cost of return transportation abroad, meaning last place of residence prior to entry. If an agent files the petition and later goes out of business, the petition continues to be valid as long as the employer stays in business.