Immigration Law Blog

Some of the greatest athletes in the U.S. were born overseas. Basketball stars Dirk Nowitzki (Germany) and Yao Ming (China), ice hockey stars Sidney Crosby (Canada) and Alexander Ovechkin (Russia), and soccer star David Beckham (England) are household names in their respective sports – countless other foreign-born sports stars dominate in the U.S. While the sports that these athletes participate in vary dramatically, these athletes all share a common factor: their status as an athlete is highly influential in their ability to travel to the U.S.

For athletes, entering the U.S. depends upon their intent. For athletes seeking to temporarily enter the U.S. for a specific sporting purpose, they may apply for and enter under the P-1 visa. To receive a P-1 visa, the athlete must meet the U.S. Citizenship and Immigration Services (“USCIS”) definition of “international recognition” as an athlete:

“Having a high level of achievement in a field evidenced by a degree of skill and recognition above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.”

Additionally, members of teams meeting the above definition may also apply for the P-1 visa. The P-1 visa allows athletes to enter the U.S. for a specific sporting purpose and compete for payment or prize money. It’s also possible for athletes to work and study while in the U.S. on a P-1 visa, although the USCIS places restrictions and reporting requirements on both. 

International athletes may also apply for the O-1 visa. This non-resident visa is broader than sports, encompassing arts, business, education, and sciences as well. To qualify for the O-1 visa, the applicant must demonstrate extraordinary ability by satisfying at least three of the following requirements:

1. Have received national or international awards or prizes of excellence in their field.
2. Being are a member of associations whose membership requires outstanding achievement, judged by nationally or internationally recognized experts in the respective discipline.
3. Their work has been featured in professional or high-profile trade publications, or mainstream media.
4. The applicant has served in some capacity as a judge of others in the same (or closely related) field. This could either be individual or as part of a judging panel.
5. Have had articles published in professional or notable trade publications.
6. Have made original scientific, academic, or business contributions of major significance in their respective field.
7. Have served in a leading or critical capacity for highly regarded organizations or establishments.
8. Command a high salary or remuneration for their services.
9. Other relevant evidence of exceptional expertise that does not fit any of the above criteria.

Other visas, such as the B-1 visa, may also apply to athletes and provide immigration or travel opportunities. Due to the specificity of visas and ability to qualify under more than one, it’s best to discuss with an experienced immigration attorney if you have questions or concerns about traveling or immigrating to the U.S. as an athlete.  

Immigrating to the U.S. is often a long and drawn out process. Visa lotteries, company sponsorship, marriage visas – the possible avenues to secure a U.S. visa are varied. However, an often-forgotten issue facing many couples is how to handle visa issues following the marriage. Contrary to popular belief, simply being married to a U.S. citizen does not guarantee or grant you the ability to remain in the U.S.  

Under U.S. law, there are two methods for which to marry and enter the U.S. as an immigrant. First, you may choose to be married outside of the U.S. and then apply for a visa to enter the U.S. Alternatively, you may choose to file for permission to enter the U.S. for the purposes of marriage.

If you and your spouse choose to be married outside the U.S., then there are two visa options available to you: waiting for your immigrant visa to be granted following proper filing, or filing for a K-3 nonimmigrant visa to temporarily enter the U.S. If you decide to wait for the immigrant visa to be issued, the foreign spouse will be required to wait overseas for the issuance of the visa. Alternatively, the K-3 nonimmigrant visa allows temporary residence in the U.S. while awaiting the issuance of the immigrant visa.

However, if you and your spouse decide that you would like to be married in the U.S., then you will be required to pursue the K-1 nonimmigrant visa. The K-1 nonimmigrant visa allows foreign citizens to enter the U.S. to be married and then remain in the U.S. following the marriage. Not everyone qualifies for the K-1 nonimmigrant visa. To qualify, the following requirements must be met:

1. The foreign fiancé(e) and U.S. citizen must have met in person within the prior two years
2. The marriage must occur within 90 days of the K-1 visa issuing

Certain exceptions exist regarding the two-year meeting rule. If you do not meet the above requirements, consult with an experienced immigration attorney to determine whether you may still be eligible under one of the exceptions. 

Regardless of which of the three visa options that you choose, you should be prepared to gather proof of relationship among other information to satisfy visa requirements. If you choose to be married outside the U.S., then you will begin the process by filing a Form I-130 (Petition for Alien Relative). Alternatively, if you choose to pursue entrance under the K-3 nonimmigrant visa, then you will be required to file a Form I-129F (Petition for Alien Fiancé(e)). Filing the appropriate form will begin the process, although there are many steps and additional filings required prior to any nonimmigrant or immigrant visa being issued. If you are considering immigrating to the U.S., or your fiancé(e) or spouse is, then consult with an experienced immigration attorney to ensure that your application is filed appropriately and handled expeditiously.  

The Immigration and Nationality Act (the “Act”) is a federal law governing most aspects of immigration in the U.S. The Act provides employment-related regulations such as discrimination protections and visa quotas for employers. Due to the complexity of the Act and its broad nature, many employers violate the Act without being aware of doing so. The most common ways that employers violate the Act are addressed below.

1. Making employment decisions based solely on immigration status.

Many employers are not aware that immigration status is not allowed to be considered in employment decisions (e.g. hiring, firing). If an individual holds a valid visa entitling them to work in the U.S., then employers are required by law to treat them the same as a U.S. citizen. 

2. Taking retaliatory action against alien employees for reporting violations. 

Immigrants receive whistleblower protection in the U.S. Most Americans are familiar with whistleblower protections offered to employees for reporting an employer’s illegal conduct. However, many may not realize that these protections are extended to immigrants under the Act. Thus, if you are an immigrant and believe that your employer has taken retaliatory action against you for your reporting of illegal conduct, you should consult with an experienced attorney to determine whether you have a strong case.

3. Demanding additional documentation not required by law.

If you are hired by an employer as an immigrant, then the employer can only request personal documents as allowed by law to prove your identity and work authorization. These documents include:

• Driver’s license
• Permanent resident card
• Passport
• Social security card
• Visa
• Work permit

This list is not exhaustive --  the law does allow for other specific documentation to be requested prior to beginning employment. However, if an employer requests documentation beyond what is allowed, then the employer is in violation of the Act. Because of the whistleblower protection afforded under the Act, you are protected from retaliatory action should you decide to file a report with the appropriate agency. 

4. Requiring citizenship or a specific visa.

Employers are not allowed to discriminate in hiring based on the specific right to work. Employers may consider whether you are legally allowed to work in their hiring (hiring someone without work authorization is a breach of the Act), but they may not consider the specific source granting such right. Thus, if an employer requires you to convert your visa or attain citizenship to gain or continue employment, then that employer is likely in violation of the law. There are certain exceptions to this which are defined in the Act, but as a general rule, employers cannot require you to change your visa or citizenship to gain employment or remain employed.

Given how complex the Act is, it’s not surprising that employers are often in violation of the Act without knowing. If you are an immigrant and believe that your employer has violated the Act, or are an employer who is worried that you may be violating the Act, contact an experienced immigration attorney to discuss your concerns. 

The national interest waiver is an individual petition under the US’s second preference program for the employment-based immigrant visa (the “EB-2”). The EB-2 visa allows individuals to work in the U.S. based on their specific employment-related skills. To qualify for the EB-2 visa, individuals must have either an advanced degree or have an exceptional ability. To qualify for advanced degree eligibility, the applicant must possess a baccalaureate degree plus five years of progressive work experience in that field. Alternatively, an individual may show exceptional ability in the sciences, arts, or business. “Exceptional ability” is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

To meet the criteria for exceptional ability, at least three of the following must be met:

The Board of Immigration Appeals is the highest administrative body for issues pertaining to immigration laws. It is an administrative appellate body that reviews decisions made by United States immigration courts and district directors of the Department of Homeland Security, among other departments. The Board of Immigration Appeals is headquartered in Falls Church, Virginia.

What are the Powers of the Board of Immigration Appeals?

The Board of Immigration Appeals has the authority to review and potentially overturn decisions made by immigration courts, the United States’ Citizenship and Immigration Services, and the Department of Homeland Security. While the Board of Immigration Appeals is the highest administrative body for immigration law, it is not the highest authority. Some decisions made by the Board of Immigration Appeals can be appealed to the United States’ Court of Appeals, and then potentially to the Supreme Court of the United States.

Who Makes up the Board of Immigration Appeals?

The Board of Immigration Appeals is authorized to be comprised of up to 21 Board Members with a Chairman and Vice Chairman. A current list of Board Members can be found here.

For many, becoming a U.S. citizen is a long-awaited dream come true. However, the process of naturalization can be complicated and is often not well-understood. As an overview, the first step is to assess your eligibility to apply for naturalization. If you’re eligible, then you will need to file an application for naturalization. After the application has been assessed, you may be invited to attend an interview and then to take an English and civics test on U.S. history, government, and other areas deemed necessary to assimilate. The following subsections will address each step in more detail.

Eligibility

To apply for naturalization, you must first meet several eligibility requirements set out by the U.S. Citizenship and Immigration Services (“USCIS”):

There are four primary methods of becoming a U.S. citizen: (1) being born on U.S. soil, including U.S. territories, (2) being born to American parents, (3) at least one of your parents becoming a naturalized citizen, or (4) becoming a naturalized citizen by living in the U.S. legally. This post will focus on the first three methods of obtaining U.S. citizenship.

Being Born in the U.S. or in a U.S. Territory

Many individuals who were born within the U.S. or a U.S. territory but have lived abroad their entire life may not realize that they are still U.S. citizens. If you were born within the U.S., you instantly receive U.S. citizenship. However, birth in a U.S. territory, such as Guam or the Virgin Islands, does not automatically grant U.S. citizenship. Individuals born in a U.S. territory may be granted citizenship if one or both parents were U.S. citizens and physically present in the U.S. or one of its territories for a continuous period of at least one year at the time of birth.