Gaining Entry: The New O and P Categories for Nonimmigrant Alien Athletes

Marquette Sports Law Review Volume 9 Issue 2 Spring Article 16 Gaining Entry: The New O and P Categories for Nonimmigrant Alien Athletes Amy E. Worden Follow this and additional works at: http://scholarship.law.marquette.edu/sportslaw Part of the Entertainment and Sports Law Commons Repository Citation Amy E. Worden, Gaining Entry: The New O and P Categories for Nonimmigrant Alien Athletes, 9 Marq. Sports L. J. 467 (1999) Available at: http://scholarship.law.marquette.edu/sportslaw/vol9/iss2/16 This Comment is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. For more information, please contact . COMMENT GAINING ENTRY: THE NEW 0 AND P CATEGORIES FOR NONIMIGRANT ALIEN ATHLETES I. INTRODUCTION Imagine that you are a scout for a professional sports franchise. It is your job to find new talent, and you usually travel anywhere to do so. Recently, you traveled to California, Michigan and Florida in an effort to scout young athletes. Your job, however, now demands that you travel even farther, to places such as Europe and Asia. This scenario is not as unusual as one might think. As the world becomes more accessible, it seems likely that this "global shrinking" will affect professional sports. Now, more owners, general managers, scouts, and coaches possess the ability to observe and to negotiate with foreign players. For example, Toni Kukoc, a Croation, plays for the Chicago Bulls and the New York Yankees have a contract with Hideki Irabu, a Japanese pitcher.' Of course, any time a foreigner wishes to enter the United States, this foreigner must obtain a visa. Usually, professional athletes who wish to play in the United States attempt to secure a visa, under either the 0 or P category, as a nonimmigrant alien.2 To do so, they must fulfill the standards required by law. The current nonimmigrant alien statutes that athletes must follow were enacted in 1990, and they became effective in 1992. Consequently, they are still relatively new. One of the major changes brought about by this legislation is the standard nonimmigrant alien athletes must fulfill before gaining entry into the United States. The new legislation changed the amount of athletic ability these nonimmigrant aliens must demonstrate before obtaining a visa to work in the United States. While Congress attempted to create industry specific standards, its provisions for implementing these 1. See Thomas R. Dominczyk, Comment, The New Melting PoL As American Attitudes Toward Foreigners Continue to Decline, Athletes are Welcomed With Open Arms, 8 SErON HALL J. SPORTS L. 165, 166, n. 6 (citations omitted) (1998). In addition, there are more than 100 Russians and Europeans in the National Hockey League, and more than 100 foreigners play in Major League Baseball. See id. at 166 n. 8 (citations omitted). 2. See 8 U.S.C. §§ 1101(a)(15)(O)(i) and (a)(15)(P)(i)(I) (Supp. I 1990). MARQUETTE SPORTS LAW JOURNAL [Vol. 9:467 standards are subjective and will often result in arbitrary decisions regarding which nonimmigrant athletes will be successful in obtaining a visa. This comment will set forth the United State's immigration laws as they were before the 1990 statutes were passed. It will then explain the 1990 statutes and their standards, as well as review the objections to these statutes. Next, this comment will explain the amendments to the new 0 and P categories for visas, and will set forth the current 0 and P categories. Finally, this article will address why the current standards lack uniform application and what, if anything, can alleviate this problem. II. A. BACKGROUND Before the 1990 Act Before Congress passed the Immigration Act of 1990, nonimmigrant alien workers, including athletes, applied for admission to work in the United States under the H category.3 In pertinent part, this category stated that an alien having a residence in a foreign country which he has no intention of abandoning who is of "distinguished merit and ability" and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability should apply 4 for a visa under the H category. Congress intended to change this with the Immigration Act of 1990 and the creation of the new 0 and P categories. 5 These changes, however, were not implemented immediately, and a revised H category was used until April 1, 1992.6 Until this date, nonimmigrant alien athletes used this revised H category, called H-1B, to work in the United States.7 Although this was a revised category, the standard for admitting these 3. See 8 U.S.C. § 1101(a)(15)(H) (Supp. 1 1989); Jon Jordan, Comment, The GrowingEntertainment and Sports IndustriesInternationally: New ImmigrationLaws Provide ForForeign Athletes and Entertainers,12 U. MIAMI Er. & SPORTS L. Rnv. 207, 208 (1994). 4. 8 U.S.C. § 1101(a)(15)(H). 5. See Jordan, supra note 3, at 209 (citing Mark W. Peters, Much Ado About Anything?: The Effect of the Immigration Act of 1990 and Subsequent Amendments on Nonimmigrant Alien Artists and Entertainers,38 WAYNE L. REv. 1661, 1663 (1992)). 6. See Peters, supra note 5, at 1663. The new act was delayed by the Armed Forces Immigration Act of 1991, Pub. L. No. 102-110, § 3, 105 Stat. 555. See also Jordan, supra note 3, at n. 7. Apparently, Congress enacted this act because of controversy surrounding the new immigration act. See also Dominczyk, supra note 1, at 170 n. 30. 7. See 8 U.S.C. § 1101(H)(i)(b) (Supp. II 1990). 1999] GAINING ENTRY athletes was the same "distinguished merit and ability" applied to nonimmigrant alien athletes under the then existing H category.8 This original H category was divided into two parts. Under the H-1 category, athletes would qualify for a visa if they were considered to have "distinguished merit and ability." 9 Athletes could qualify under the H-2 category as temporary workers who were performing services for which qualified Americans were not available.' 0 1. Distinguished Merit and Ability as it Applied to Athletes In addition to requiring nonimmigrant athletes to be of "distinguished merit and ability," the United States required that these athletes came to the United States to "perform services of an exceptional nature requiring such merit and ability."" This "distinguished merit and ability" standard has been further defined as prominence and high achievement in the field which must be demonstrated by "sustained national or international recognition and acclaim.' 1 2 Most often the Immigration Naturalization Service (INS) determined whether an athlete fulfilled this standard, and as such, it looked at the athlete's salary, whether the athlete would perform in a "star role," and the athlete's overall reputation.'3 If an athlete was unable to fulfill this standard, he or she could still obtain a visa if there were no qualified Americans to perform the 14 function that he or she would perform. 2. Visas for Athletes Performing Functions for (...truncated)