Monday, January 21, 2013

Immigration Reform: Expanding Visa Numbers for Skilled Workers with Degrees from U.S. Institutions

In his inaugural speech today, President Obama outlined his policy approach for his second term in office. Among those policies that hold priority in this Administration, immigration reform is clearly one of the more hot-button topics. However, in calling on congressional leaders to bridge the current political gap, the President called out specific needs that must be addressed if the U.S. is to remain competitive in the global marketplace.

"Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country," Obama said.

Currently, the U.S. is the global leader in educating and training the next generation of scientists, engineers, and other highly skilled workers who will significantly advance their respective industries in this century. However, our antiquated immigration system does not reflect the currency of this structure. Rather than welcoming the opportunity to retain talented and highly skilled individuals, our current visa allotments force many of these individuals to return to their home countries.

In order to retain this talented workforce and ensure America’s prevalence in the global marketplace, congressional leaders need to address a system wherein students can be trained for highly skilled positions, but must return to their home countries to practice their trade. It makes little sense to provide this significant competitive advantage to our trading partners and potential adversaries, to the detriment of U.S. industry and defense.

Expanding visa allotments would not provide advantage in the job market to foreign nationals over U.S. citizens; it would simply allow foreign nationals to remain in the U.S. after receiving their degree if hired to a position utilizing their specific skill. Through the expansion of available visas, job creators can choose the best candidate for the offered position, regardless of nationality or citizenship status.

Obama has made clear that passing comprehensive immigration legislation will be a priority during his second term, and a measure that addresses the growing need to boost the number of visas available to foreign-born graduates of U.S. universities will likely be a cornerstone of forthcoming immigration legislation.

For more information on availability of visas for education or employment, or immigration in general, and to schedule a consultation, you may visit my website at http://www.sillslawfirm.com or email me at travis@sillslawfirm.com


The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, without mutual consent of the parties and an express written engagement of services agreement.

Saturday, December 15, 2012

Applying for a Green Card after Overstay of your Visa


Did you overstay your lawful visa (you are no longer in lawful status) and are now in a relationship and would like to marry, or are already married to, a U.S. citizen?  If so, you may be wondering whether, once married, you can lawfully adjust status to permanent resident (obtain your green card), or whether an application to do so would result in a referral to ICE and possibly removal proceedings.

Overstay is not necessarily fatal to an immediate relative (e.g. spouse) petition.  If you are not in lawful status, but you did originally enter the U.S. through lawful means (e.g., a student or work visa), you may still be eligible to adjust status (obtain a green card) if you are currently a spouse of a U.S. citizen.   The key to being able to adjust status, even after overstay, is that you first entered the U.S. lawfully (upon entry, you were inspected and admitted at the border checkpoint).  Even if your visa has since expired, and you remained in the U.S. unlawfully, you may still adjust status and obtain your green card if you are the immediate relative (e.g., spouse) of a U.S. citizen.  There are some restrictions and exceptions to this, so you would be advised to speak with an immigration attorney before proceeding with an application to adjust status to lawful permanent resident.

One immediate pitfall that intending immigrants should avoid if they overstayed their lawful visa status is applying for a travel authorization document before the lawful permanent resident status (LPR/green card) is granted.  Even if you are granted a travel authorization document while waiting for a decision on your LPR (green card) status, but you overstayed your visa and are currently not in lawful status, you may be denied re-entry to the U.S. and barred from return for 3 or 10 years.   This may seem confusing because if the U.S. government approved your travel authorization document while you wait for your green card decision, you may think it would be okay to travel outside the U.S.  However, eligibility for a travel document must be considered separate from your current unlawful status.  While you are in unlawful status, even if you properly applied for a green card and travel authorization, you may not leave the U.S.  Doing so automatically triggers what is called the 3 or 10 year bars to admission.   Up to 180 days of unlawful presence triggers a 3 year bar from admission, and 180 days or more of accrued unlawful presence will trigger the 10 year bar from admission to the U.S.   In order to avoid these bars from admission, you should avoid travel outside the U.S. until your green card petition is approved by USCIS.

Timing of green card approval is of course an issue to individuals who wish to visit home or make a brief trip outside of the country while they wait for the green card approval.   However, if you are an intending immigrant who overstayed a lawful visa, you should consider the consequences of even the briefest departure from the U.S.  While this is a common pitfall, there may be other restrictions to a successful adjustment of status petition.  Again, overstays may not automatically prevent you from obtaining a green card if you are eligible as an immediate relative (e.g., spouse) of a U.S. citizen, but there are considerations to think about.  If you are thinking of applying for a green card as an immediate relative of a U.S. citizen, and you overstayed your visa, you should consult an immigration attorney who will review your facts and present the best options available to you.

For more information on obtaining a green card after an overstay, and immigration in general, and to schedule a consultation, you may visit my website at http://www.sillslawfirm.com or email me at travis@sillslawfirm.com

The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, without mutual consent of the parties and an express written engagement of services agreement.

Thursday, December 13, 2012

Deferred Action for Childhood Arrivals (DACA): Obtaining Legal Employment for Certain Young Undocumented Individuals


Deferred Action for Childhood Arrivals (DACA) is a benefit offered by the U.S. Citizenship and Immigration Service (USCIS) and Immigration and Customs Enforcement (ICE).  These agencies sought to address the issue that faces millions of young undocumented individuals who arrived in the U.S. before the age of 16.  Many of these individuals are currently in school, have graduated from high school, have obtained the equivalent of a high school diploma (such as the GED), or have served in the military and were honorably discharged.  With these individuals in mind, the Department of Homeland Security (DHS) desired to alleviate the burden that many undocumented immigrants face when they attempt to further their education or obtain lawful employment.   

The Deferred Action for Childhood Arrivals program is essentially an administrative iteration of the DREAM Act (congressional legislation designed to address this very issue).  However, with the DREAM Act stalled in Congress, the Department of Homeland Security, wielding the administrative power of the executive branch, chose to implement the important elements of the DREAM Act within its limited ability to exercise enforcement discretion.  This means that within their Constitutional power to administer and execute the nation’s immigration laws, both USCIS (for affirmative applications) and ICE (for defensive applications within removal proceedings) may use the guidelines established by the DREAM Act to allow certain individuals to remain and work in the U.S. lawfully.  It is important to note that at the present time, Deferred Action for Childhood Arrivals (DACA) does not provide individuals with a green card.  It does however provide a means to remain in the U.S. lawfully and obtain lawful employment. 

There are two methods for obtaining Deferred Action for Childhood Arrivals (DACA).  The first is affirmatively through the U.S. Citizenship and Immigration Service.  This method allows qualified individuals to apply for the DACA benefit even if they have not been placed in removal (deportation) proceedings.  The advantage to applying for DACA without already being in removal proceedings is that if approved, the individual may work legally in the U.S. without the fear of deportation.  Once approved, this benefit must be renewed every two years, or the benefit will expire.    The second method to obtain Deferred Action for Childhood Arrivals is to assert the claim defensively if an individual is detained and placed in removal (deportation) proceedings.   Any individual who is taken into custody by ICE or placed in removal proceedings and believes that they qualify for DACA should assert the claim immediately.   These individuals should consult an attorney to determine whether they may qualify for this or any other removal defense at their first opportunity. 

You may request consideration of deferred action for childhood arrivals if you:
  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. 

For more information on Deferred Action for Childhood Arrivals (DACA) and immigration in general, and to schedule a consultation, you may visit my website at http://www.sillslawfirm.com  or email me at travis@sillslawfirm.com
 

The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, without mutual consent of the parties and an express written engagement of services agreement.

Sunday, April 15, 2012

State vs. Federal Immigration Enforcement: The Supreme Court Weighs in on Arizona's Controversial Immigration Law

The Supreme Court next week will once again take aim at an Immigration issue during the 2011-2012 term, hearing oral argument on a controversial state law which proponents claim will help enforce federal immigration laws.   
At issue is Arizona Senate Bill 1070, the proposed Arizona law that aims to enforce federal immigration laws at the state level.  Proponents of the Arizona law argue that where federal immigration enforcement is perceived lacking at the local and state level, the state should have inherent delegated power to enforce federal law as needed.  What this would effectively amount to is a broad and sweeping deputization of local police and law enforcement with the purpose of arresting, detaining, and removing undocumented immigrants.  The impetus behind this law is the perceived threat that Arizona believes stems from undocumented immigrants residing within that state.  As such, this would seem to be a straight forward immigration issue aiming to stem the flow of unlawful immigration. 
However, immigration is just the vehicle for the underlying constitutional argument that is now brought before the U.S. Supreme Court.  The actual crux of this discussion is the principle of federalism, and more specifically, the constitutional doctrine of federal preemption.  In a federalist society, a designation the United States proudly claims, federal laws always preempt the laws of the states when federal legislation completely occupies the legal field at issue, and was contemplated to do so by Congressional intent.   Immigration is one such field.   
For the last century, enactment and enforcement of U.S. immigration law have been functions soundly designated to the purview of the federal government.  With the passage of the Immigration and Nationality Act, the federal government determined that for the purpose of consistency among the states, laws governing the admission and removal of aliens shall be within the exclusive realm of federal law.   The reasoning for this intent is manifest; federal laws should be uniformly and consistently applied throughout the several states. 
Without delving too deeply into a constitutional analysis, the federal government derives its power to regulate immigration from its inherent power to protect the national public interest, as well as the inherent power to conduct foreign affairs.  More generally, it has always been the role of the federal government to oversee matters of national concern, while it is the traditional role of the states to govern local matters.  It is with these principles in mind that the Supreme Court historically invalidated state statutes that attempted to regulate immigration.
Now the Supreme Court will once again review the principle of federalism as it relates to immigration.  The Court will take into account the historical context of federal immigration enforcement, and will hopefully determine as it has in past precedent that state attempts to regulate immigration, such as Arizona S.B. 1070, must fail.  It is not sound policy to promote varying and inconsistent approaches to the enforcement of federal immigration laws.  Nor is it beneficial to society in general to federally deputize local police to specifically target immigrant communities.  Immigrants with tips on criminal activity in the community are already hesitant to approach local law enforcement out of fear that the tipster’s immigration status will be questioned.  We do not want to completely silence this resource by enacting and promoting laws such as Arizona’s SB 1070.  Let the Feds do their jobs and the local police do theirs.

For more information on removal proceedings and immigration in general, and to schedule a consultation, you may visit my website at http://www.sillslawfirm.com/ or email me at travis@sillslawfirm.com.

The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, without mutual consent of the parties and an express written engagement of services agreement.

Wednesday, March 28, 2012

Supreme Court Decision: Retroactivity of IIRIRA and LPR (Green Card Holder) Admissibilty Upon Reentry

The U.S. Supreme Court released a decision today in the case of Vartelas v. Holder.  This decision affects Lawful Permanent Residents (LPRs) who committed an exclusionary (inadmissibility) offense, such as a crime of moral turpitude, prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996.  Until the Supreme Court weighed in on this issue, the Appellate Courts were divided as to whether IIRIRA should be applied retroactively to the commission of an act by an LPR prior to passage of IIRIRA. 
Prior to 1996 and IIRIRA, LPRs were exempted from being required to apply for admission to the U.S. upon return from a “brief, casual, and innocent” trip abroad.   After IIRIRA’s passage and presently, LPRs must “apply for admission” at the border or port of entry through which they desire to reenter the U.S.  If the LPR committed a crime for which they would be considered “inadmissible” under the Immigration and Naturalization Act (INA), then the LPR would be deemed inadmissible and placed in removal proceedings.
The issue that came before the Supreme Court this session regarded the retroactivity of IIRIRA’s requirement that LPRs be subject to adverse admissibility determinations for crimes committed prior to IIRIRA’s passage into law.  Circuit Appellate Courts were divided on this issue, with some favoring the retroactive applicability of IIRIRA to pre-IIRIRA crimes and other grounds of inadmissibility, and others favoring the presumption of antiretroactivity in U.S. law.
Retroactive legislation places an undue burden on those affected by a new law when past activity is determined to be violative of the new law, thereby placing new consequences upon an individual for actions already taken and for which nothing can be done to prevent  or remedy them.  This is the case for individuals who may have pled guilty to a crime under the pre-IIRIRA immigration laws, and who relied on the pre-IIRIRA exemption from applying for admission to the U.S. after each “brief, casual, and innocent” trip abroad. 
Relying on sound precedent, the Supreme Court agreed with the centuries-old antiretroactivity doctrine in holding that without express Congressional intent that IIRIRA should be applied retroactively, LPRs who committed a qualifying crime prior to passage of the law should not be deemed inadmissible upon return from a quick trip abroad as to that qualifying crime.
Following this decision, if an LPR pled guilty, was convicted of a crime, or otherwise acted to subject him/herself to the INA's grounds of inadmissibility prior to 1996, the LPR will not be placed in removal proceedings upon return from a quick trip abroad to visit family or attend to other casual and innocent matters.

Friday, November 25, 2011

Student visas are now accepted on a priority basis. F, M, and J visa processing may only take a maximum of 15 days.

Educational exchanges foster mutual understanding, respect, and goodwill between Americans and people around the world.”     -  U.S. Department of State media release

The U.S. seeks to attract foreign talent and gifted individuals to enroll in U.S. colleges, universities, and exchange programs, recognizing the intellectual, social, and economic benefits that these individuals bring with them.  It is for this reason that the U.S. State Department decided to place priority on student visas in the F, M, & J categories.  College and university students, exchange visitors and vocational trainees are eligible to receive decisions on their visa applications on a priority basis.  U.S. embassies are expediting student visa processing to ensure that these students start their programs on time.  This expedited visa processing means that the maximum wait time for a student visa less than 15 days.  Foreign students may begin the application process for a student visa up to 120 days before the start of their academic program.
The process for obtaining a student visa is a straightforward one.  Once the student has been accepted to a SEVP (Student and Exchange Visitor Program) approved school, he or she should receive a form I-20 from the school’s admissions office.  When the I-20 form is received, the student will pay the required fee through a form I-901 and schedule an interview at an embassy or consulate in, or nearest to, their home country.  The student will need to bring the I-20, proof of payment of the I-901 fee, and other documentation needed to accompany a completed student visa application package.
For more information on the student visa process, and to schedule a consultation, you may visit my website at http://www.sillslawfirm.com/ or email me at travis@sillslawfirm.com.

The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, absent mutual consent of the parties and an express written engagement of services agreement.

Saturday, November 12, 2011

Temporary Protected Status (TPS) is now extended for nationals of Haiti until 2013.

On November 2, 2011, the U.S. Citizenship and Immigration Services (USCIS) reminded eligible nationals of Haiti to file for Temporary Protected Status.  In 2010, the Secretary of Homeland Security designated Haiti for TPS based on the “extraordinary and temporary conditions” that resulted from the tragic 7.0 earthquake that rendered much of the country uninhabitable and prevented nationals of Haiti from returning to Haiti safely.  

Temporary Protected Status (TPS) is an immigration status granted to eligible nationals of a country designated for TPS (or to persons without nationality who last habitually resided in the designated country).  During the TPS designation period, TPS beneficiaries are eligible to remain in the United States and to obtain work authorization documentation.   TPS beneficiaries may also be granted travel authorization as a matter of discretion.  A grant of TPS does not lead to permanent resident status.  When the Secretary terminates a country's TPS designation, beneficiaries return to the same immigration status they had before obtaining TPS or to any other status they may have obtained while registered for TPS.  [76 Fed. Reg. 97]
The Secretary is both extending the existing designation of Haiti for temporary protected status (TPS) for 18 months from July 23, 2011 through January 22, 2013, and redesignating Haiti for TPS for 18 months, effective July 23, 2011 through January 22, 2013. The extension allows current eligible TPS beneficiaries to retain their TPS through January 22, 2013. The redesignation of Haiti allows additional individuals who have been continuously residing in the United States since January 12, 2011, to obtain TPS, if eligible, including certain Haitians who arrived in the United States following the January 12, 2010 earthquake in Haiti.
You should consult an immigration attorney if you believe you are eligible for TPS as a Haitian national. For more information on this process, and to schedule an initial consultation, you may visit my website at http://www.sillslawfirm.com/ or email me at travis@sillslawfirm.com.

The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, absent mutual consent of the parties and an express written engagement of services agreement.

Saturday, November 5, 2011

Refugees who have fled persecution, torture, or threats of death in their home country may be eligible to resettle in the U.S. under federal law.

Federal law provides to individuals who have fled persecution in their home country the ability to seek legal protection in the U.S through grants of asylum.  The Refugee Act allows those who have suffered past persecution or have a well-founded fear of future persecution on account of the individual’s race, nationality, religion, political opinion, or membership in particular social group to seek protection from the possibility of removal to the country from which the individual fled.  Asylum is granted under U.S. law in recognition of the concept of universal human rights, as codified in the United Nations Convention on the Status of Refugees.  The U.N. Protocol Relating to the Status of Refugees provided the framework from which U.S. derives its law on refugees.   

Under the Refugee Act, individuals who suffered past persecution or have a well-founded fear of future persecution on account of race, nationality, religion, political opinion, or social group are eligible for relief from forced return to the country that was the source of persecution.  There are several elements to this definition of “refugee” that an individual who seeks asylum protection must prove.  These include:
  1. Actual persecution or fear of persecution
  2. On account of race, nationality, religion, political opinion, or membership in a social group (the so-called “Nexus” element)
  3. Committed by the government or a group the government is unwilling or unable to control
The first element in the definition of “refugee” is persecution.  To be considered a refugee, an individual must show actual past persecution or a well-founded fear of future persecution.  Persecution is a fairly ambiguous term and is given broad meaning.  What is certain is that some extreme and harsh treatment is inherently considered persecution, such as threats of death, torture, physical and other extreme abuse.  Less obvious, but certainly not inconsequential for a claim of asylum, is persecution taken in aggregate form.  This form of persecution may seem less like the harsh abuses mentioned above, but when suffered in constant, repeated, and persistent form may amount to persecution, such as prevention from taking part in the electoral process, tampering with private mail, or repeated and harassing calls or visits.
The second element is a specific nexus to the persecution.  The individual must prove the persecution or feared persecution is tied to and on account of the individual’s race, nationality, religion, political opinion, or membership in a particular social group.  While the first three may be fairly straight forward, the last two classes present interesting analysis.  One does not need to be persecuted based on his or her actual political opinion.  In fact, an individual may be persecuted based on “attributed political opinion.”  In this form, a person or group will persecute an individual based on the unsubstantiated belief that the individual shares the political opinion of his or her family, friends, classmates, coworkers, or others within the individual’s social or familial circle.  In this case, the individual is fleeing based on what the persecuting individual or group thinks is his or her political opinion, even though his or her actual political opinion may differ greatly. 
Similarly, persecution based on membership in a particular social group may present less obvious scenarios, but no less significant for a claim of asylum.  The definition of “social group” is broad in scope, and many meanings may be attributed to it.  The following are examples of classes of social groups that may qualify for asylum: Ethnic Guatemalan women who oppose treatment as exchangeable or disposable property, gays and lesbians from fundamental Islamic Sharia-based countries, or African women opposed to tribal-ordered FGM.  These classes and others may be recognized as eligible for asylum relief, but the ultimate determination is jurisdictional and discretionary.
The third element necessary for a valid claim of asylum is that the persecution must be perpetrated by the government of the country or a group that the government is unwilling or unable to control.  Persecution by the government may be straightforward if the persecution is done in the official capacity of those representing the government.  Where this element is less clear is where the persecutors are a shadowy group that the government is unwilling or unable to control.  An example here is civilian militia, death squads, paramilitaries, and drug cartels.  In some drug smuggling and source countries, government officials may not be willing or are unable to control very powerful cartels and paramilitary factions.  This is also true for some clan-based militias in parts of Africa.  In these cases, the persecution may not be perpetrated by the government of the country, but removal back to the country would still subject the refugee to the feared persecution.
If an individual can meet the above criteria, (1) actual or feared persecution, (2) on account of the individual’s race, nationality, religion, political opinion, or membership in a particular social group, (3) by the government of the individual’s home country or a group the government is unwilling or unable to control, then that individual may be eligible for a grant of asylum.  Asylum, while based in human rights law, is discretionary and is subject to the approval of the U.S. Citizenship and Immigration Service or Immigration Judge. 
There are three methods by which one may petition for asylum: (1) apply for refugee status through a U.S. embassy abroad (certain restrictions apply to the process), (2) apply affirmatively through the U.S. Citizenship and Immigration Service if already physically present in the United States, but not in removal proceedings, and (3) assert defensively before the Immigration Judge while in removal proceedings.  There are risks and a time limitation associated with applying for asylum as a refugee affirmatively while in the United States, so seek counsel from an immigration attorney before deciding to apply for affirmative asylum.
For more information on the asylum process, and to schedule a consultation, you may visit my website at http://www.sillslawfirm.com/ or email me at travis@sillslawfirm.com.  In some situations and as individual cases warrant, I may waive my usual consultation and legal fee and provide pro bono representation to refugees seeking asylum.

The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, absent mutual consent of the parties and an express written engagement of services agreement.

Tuesday, October 18, 2011

What do yoga instructors, African drummers, martial arts instructors, and Maori dancers have in common? Eligibility for a P-3 visa.


Performers and instructors of culturally relevant art forms and disciplines that derive from a country-specific or regional uniqueness can benefit from a P-3 visa.  Yoga teachers, drum performers, ethnic dancers, martial artists, among many others may petition for or change status to this visa.
The foreign national performer, artist, or instructor need not be a national of the country-specific or regional art form or discipline.  The requisite cultural uniqueness only attaches to the discipline or art form itself.  Therefore, a German national may apply for a P-3 visa as an Ashtanga Yoga instructor, or a Brazilian national may apply for a P-3 as a Japanese taiko or Indian tabla drummer. 
To be eligible for this visa, the foreign national must be coming to the U.S. for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical or artistic performance or presentation.  Also, the artist or entertainer must be coming to the U.S. to participate in a commercial or noncommercial cultural event which will further understanding or development of his or her art form. 
The petitioner for the P-3 visa should provide the following documentation to establish eligibility:
a.       Affidavits, testimonials, or letters from recognized experts with the basis of their knowledge attesting to the applicant’s skills in performing, presenting, coaching or teaching the unique or traditional art form;
b.      Documentation that the performance is culturally unique, as evidenced by published materials and
c.       Evidence that all performances will be culturally unique events.
The P-3 may be a unique alternative to the B-1 or B-2 visa for those who qualify.  Alternatively, a foreign national who already enjoys the benefit of the B-1/B-2 may change status to the P-3 visa if eligible. 
You should consult an immigration attorney if you are considering the benefits of a P-3 visa as a performer or instructor of a culturally unique program or discipline. For more information on this process, and to schedule an initial consultation, you may visit my website at http://www.sillslawfirm.com/ or email me at travis@sillslawfirm.com.


The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, absent mutual consent of the parties and an express written engagement of services agreement.

Sunday, October 9, 2011

Which visa is right for you as an action sports athlete, P-1 or B-1?

Typically, athletes who travel to the U.S. for competitive events, or to join sports teams for an undetermined duration, petition for a P-1 visa.  This visa was specifically designed with athletes in mind.  The term athlete here may include all professional or semi-professional individuals engaged in some form of competitive sport, including traditional sports as well as nontraditional action sports such as motocross, motorcycle racing, rally car racing, skateboarding, surfing, and mountain biking.  Essentially, any competitive sport that has a governing association, or some other form of established rulemaking body, will qualify as a sport whose athletes may petition for a nonimmigrant visa to engage in competition for prize money.  The P-1 eligible athlete must be one who enjoys a certain level of international or national acclaim for his or her abilities within the sport.

However, in some situations athletes are better suited for the B-1 Visa rather than the typical P-1.  Traditionally, the B-1 visa petition is used by foreign nationals for the purpose of conducting business activities within the U.S. However, the B-1 becomes a viable choice and the best choice for those athletes whose acclaim may not arise to the level of a P-1 athlete, or the particular sport is not one that has associations, sponsors or teams in the traditional sense.  When an athlete is not internationally recognized within his or her chosen sport, is relatively new to the international level of competition, or is a privateer without sponsor or team, the B-1 visa may be the best choice. 

The B-1 visa is a visa granted for temporary visitors for business-related activities.  A foreign national may be eligible for a B-1 visa if he or she satisfies the following criteria:

1.   Non-immigrant intent – the foreign national intends to leave the U.S. at the end of the temporary stay, as evidenced by ties back to the foreign national’s home country, including a residence that the foreign national does not intend to abandon.
2.   Adequate financial means – the foreign national has made financial arrangements sufficient to carry out the purpose of the visit from arrival to departure.
3.   The business the foreign national intends to conduct is of a legitimate and commercial or professional nature.

The third element is satisfied by athletes who receive only prize money for his or her participation in a sporting organization’s officially-sanctioned competition, tournament, or sporting event.

You should consult an immigration attorney if you are considering the benefits of a B-1 or P-1 visa as an action sports or traditional athlete. For more information on this process, and to schedule an initial consultation, you may visit my website at http://www.sillslawfirm.com/ or email me at travis@sillslawfirm.com.




The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, absent mutual consent of the parties and an express written engagement of services agreement.