IMMIGRATION 101 FOR GOLFERS, CADDIES AND OTHER SUPPORT PERSONNEL By Steven M. Ladik *

Transcription

1 Steven M. Ladik Partner Direct: IMMIGRATION 101 FOR GOLFERS, CADDIES AND OTHER SUPPORT PERSONNEL By Steven M. Ladik * The following is intended as a summary of the various immigration options available to golfers and their support personnel (caddies, managers, etc.) in order to compete in professional golf tournaments in the U.S. It is intended as a general discussion and is not a substitute for legal advice based upon an individual s specific fact situation. B-1 Visa: GOLFERS One option for foreign professional golfers attempting to enter the United States to play in professional golf tournaments is to apply for a B-1 visa. The B-1 regulations, (C)(4) (previously 9 FAM 41.31, N 9.4) of the Foreign Affairs Manual of the U.S. Department of State, specifically discuss golfers: professional athletes, such as golfers and auto racers, who receive no salary or payment other than prize money, for their participation in a tournament or sporting event may qualify for a B-1 visa. To obtain a B-1 visa, the applicant completes a generic nonimmigrant visa application with an attached photo and presents the application to the U.S. Consulate in his country with his passport and evidence that he is eligible to play in professional tournaments such as a letter from the PGA TOUR, a listing of the events in which he is eligible to participate (including dates and locations), and a visa fee (which varies depending on nationality). The B-1 visa is normally issued promptly and can be issued for up to 10 years, depending on nationality. Such a visa would give the golfer the right to enter the U.S. repeatedly during the 10-year period. At the time of entry to the U.S., the golfer will be admitted in B-1 status for the length of time required to complete the event as evidenced by the PGA TOUR letter, not to exceed six months. If the player qualifies for additional events, he may file an extension application by mail with the USCIS (formerly the INS) to extend his stay beyond six months. Please note that foreign nationals from some countries are not required to obtain a visa and they may enter the U.S. using the Visa Waiver Program to be admitted in visitor status. These individuals should carry a letter from the PGA TOUR or their sponsoring tour as evidence

2 of their eligibility to play in professional tournaments. This letter should be presented to the immigration inspector at the port of entry with the individual s passport. Golfers entering the U.S. under the Visa Waiver Program cannot be admitted for more than 90 days and they are not permitted to request extensions while in the U.S. If they will require more than 90 days in the U.S., they must leave the U.S. and travel to a foreign country, other than Mexico, Canada or the Caribbean islands, and then re-enter in order to obtain another 90 day period. ESTA Registration: Players travelling into the U.S. under the Visa Waiver Program must also be aware of the new Electronic System for Travel Authorization ( ESTA ) program which requires all Visa Waiver travelers to apply for travel clearance at a specially-designated Customs and Border Patrol ( CBP ) website. All travelers using the Visa Waiver Program must enter their biographical data into the ESTA website and receive a special document which they must print out and present to the airline and U.S. immigration officials to be able to enter the U.S. The ESTA became mandatory for all travelers coming to the U.S. without a visa on January 12, Visa Waiver travelers are encouraged to apply for clearance through ESTA well in advance of their intended departure date. ESTA approvals are generally granted for two years or until the applicant s passport expires, whichever is sooner. P-1 Visa: The P-1 nonimmigrant visa is available to golfers who qualify as internationally recognized athletes. Normally, any golfer who is eligible to compete in a U.S. professional tour can qualify to meet this standard if he has a record of accomplishments as an amateur or professional in the U.S. or abroad. The advantage of a P-1 visa over a B-1 visa is the fact that the P-1 visa is approved for a period of 5 years and can be extended an additional 5 years. An individual entering the U.S. will be admitted for a period ending on the expiration date of the five year visa. To obtain a P-1 visa, the golfer would arrange for the tour (or agent in some cases) to sign the necessary paperwork and he would then file the P-1 nonimmigrant visa petition with the USCIS with supporting evidence that confirms the golfer s past accomplishments. Where the golfer has paid the USCIS a $1,225 premium processing fee, the P-1 visa petition is normally approved within 15 days. If the premium processing fee is not paid, it can take up to 3 months for the petition to be approved. Upon approval of the petition, the USCIS will issue a Notice of Action which the golfer can present to the U.S. Consulate with his nonimmigrant visa application, passport and photo. The visa is normally issued by the Consulate within 1-14 days. Once issued, the P-1 visa can be used for up to five years to enter the U.S. As noted above, it can then be extended for an additional five year period. O-1 Visa:

3 The O-1 visa is available to golfers of extraordinary ability who can establish that they are in the top of the professional golf rankings. The O-1 visa is only available for three (3) years and therefore most golfers choose to obtain the P-1 visa. Additionally, the O-1 visa can only be extended in one year increments. The procedures for filing the O-1 petition and obtaining the visa in the passport are identical to those described above for the P-1 visa. CADDIES AND SUPPORT PERSONNEL As a general rule, the foreign caddy or other support personnel can obtain the same status of the foreign golfer he is coming to assist. For instance, if the foreign golfer has a B-1 visa, the caddy may also use a B-1 visa to assist. If the foreign golfer has a P-1 visa, the caddy is eligible to obtain a P-1 visa. If the foreign golfer is in the U.S. as a lawful permanent resident or U.S. citizen, the caddy must also be a lawful permanent resident or U.S. citizen. A problem occurs when the golfer is a U.S. citizen or lawful permanent resident and wants to employ a foreign caddy. In such a situation, the foreign caddy simply cannot readily obtain the same status as the golfer. B-1 Visa: One option for foreign caddies attempting to enter the United States to assist a golfer to play in professional golf tournaments is to apply for a B-1 visa. The B-1 regulations, (C)(4) (previously 9 FAM 41.31, N 9.4) of the Foreign Affairs Manual of the U.S. Department of State, specifically discuss golfers: professional athletes, such as golfers and auto racers, who receive no salary or payment other than prize money, for their participation in a tournament or sporting event may qualify for a B-1 visa. The United States Department of State has provided written verification that foreign caddies may be accorded a B-1 status if they are coming to assist a B-1 professional golfer participating in tournament play, provided the caddy can show he has regularly assisted the golfer in the past and that he will receive no fee other than compensation for expenses and a portion of the winnings, if any. Please note that this letter does not allow a caddy to use a B-1 visa to assist anyone other than a foreign golfer who is also using a B-1 visa. To obtain a B-1 visa, the applicant himself completes a generic nonimmigrant visa application with an attached photo and presents the application to the U.S. Consulate in his country with this passport and some form of evidence that he is assisting the professional golfer, that he has done so in the past and that he will receive no fee other than compensation for expenses and a portion of the winnings, if any. In addition, it may be appropriate to provide evidence that the player is eligible to play in tournaments, along with a listing of the events in which he will compete (including dates and locations), plus a visa fee (which varies depending on nationality). The B-1 is normally issued promptly and can be issued for up to 10 years depending on nationality. Such a visa would give the applicant the right to enter the U.S. repeatedly during the 10 year period.

4 At the time of entry to the United States, the caddy will be admitted to the U.S. in B-1 status for the length of time required to complete the events as evidenced by the PGA TOUR letter, not to exceed six months. If the player qualifies for additional events, the caddy may file an extension application by mail with the USCIS to extend his stay to assist the player at such additional events. Accordingly, the documentation necessary from the PGA TOUR is evidence that the player is eligible to compete. In addition, the player should provide the caddy with a letter stating that the caddy is assisting the player currently, that he has regularly assisted the player in the past and that he is receiving no fee, other than compensation for expenses and a portion of the winnings, if any. Caddies or other support personnel who are accompanying golfers using the Visa Waiver Program should carry a letter from the golfer and the PGA TOUR as described above. P-1S Visa: The P-1S visa is available to foreign caddies and others to serve as essential support personnel to a golfer who will be competing in professional tournaments in the U.S. in P-1 status. The caddy may obtain P-1S status by having a P-1S visa petition filed with the USCIS simultaneously with the golfer s P-1 petition or by filing the visa petition separately with proof that the golfer already has P-1 nonimmigrant status. The procedure for obtaining the P-1S visa in the passport is identical to that described above for a P-1 golfer. O-2 Visa: The O-2 visa is available to foreign caddies and others to serve as essential support personnel to a golfer who will be competing in professional tournaments in the U.S. in O-1 status. The caddy may obtain O-2 status by having an O-2 visa petition filed with the USCIS simultaneously with the golfer s O-1 petition or by filing the visa petition separately with proof that the golfer already has O-1 nonimmigrant status. The procedure for obtaining the O-2 visa in the passport is identical to that described above for an O-1 golfer. Alternatives for foreign caddies seeking employment with U.S. citizen or U.S. permanent resident golfers: O-1 Visa: Those caddies that have achieved international recognition by providing services to golfers who have also achieved international recognition can sometimes file for O-1 visas as

5 caddies of extraordinary ability. Normally, they must submit evidence of their past accomplishments as well as those of golfers they have assisted, evidence of articles or books that reference the caddy or that have been written by the caddy and evidence that they have received a high salary in relation to others in their occupation. In order to qualify as a caddy of extraordinary ability they must establish that they are among the very top caddies in the world. * * * In conclusion, golfers, caddies and other support personnel may use all of the nonimmigrant visas described herein to come to the U.S. and compete in professional golf tournaments for prize money. Those who believe that they would like to remain in the U.S. for more than six months may find it advantageous to apply for a P-1 visa so that they are not repeatedly required to seek extensions if they need to remain in the U.S. beyond six months. Additionally, the P-1 visa may provide more peace of mind to the golfer by allowing him to remain in the U.S. for up to five years at a time for a total of ten years. * Steven M. Ladik is past President of the American Immigration Lawyers Association and is the outside Immigration Counsel to the PGA TOUR, the National Hockey League and the NFL. He is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP and his direct phone number is (469)