P VISA CATEGORY

The P category covers those entertainers and athletes who cannot qualify under the extraordinary ability standard for the O category. The only other category in which entertainers or athletes may be admitted to the United States is the H-2B category, requiring a labor certification; the H-1B category specifically excludes from coverage those aliens fitting within the O and P categories. It is important to note that in most cases accompanying aliens are not permitted for P entertainers and athletes even under the stringent standard for such accompanying aliens included in the 1990 Act. It should also be noted that the P category maintains the requirement, deleted for the H?1B category, that the alien have a foreign residence that he or she has no intention of abandoning.

The P-1 Category

The P-1 category is set aside for:

• alien athletes who compete individually or as part of a team at an internationally recognized level, and
• aliens who perform with, or are an integral and essential part of the performance of, an entertainment group that has received international recognition as "outstanding" for a "sustained and substantial period of time."

The distinction between athletes and entertainers in this subcategory is important to keep in mind: individual athletes may be admitted to the United States as P-1 aliens, but not individual entertainers. The only basis for approval of a P-1 petition for a single entertainer is when the entertainer will be coming to the United States to join a foreign-based entertainment group (this situation is discussed below). All other single performers coming to the United States must qualify on an individual basis as an O-1 entertainer of extraordinary ability or must qualify in the H-2B category for temporary workers coming to fill temporary positions in the United States; the H-2B category requires a labor certification regarding the unavailability of qualified U.S. workers from the Department of Labor.

P-1 Athletes and Athletic Team. With regard to athletes and athletic teams, the INS rules provide that a petition for an athletic team must be accompanied by evidence that the team as a unit has achieved international recognition in the sport. An athlete who will compete individually, and not part of a team, must be accompanied by evidence that the athlete has achieved international recognition in the sport based on his or her reputation. "International recognition" means a high level of achievement in a 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. The INS has stated that the P-1 standards for athletes are identical to the prior H-1B standards.

Evidence of international recognition may include:

a tendered contract with a major U.S. sports league or team, or a tendered contract in an individual sport commensurate with international recognition in that sport, if such contracts are normally executed in the sport (if such contracts are not normally executed in the sport, a contract need not be submitted),

and documentation of at least two of the following:

• participation in a prior season with a major U.S. sports league
• participation in international competition with a national team
• participation in a prior season for a U.S. college in intercollegiate competition
• a statement from an official of a major U.S. sports league or an official of the governing body of the sport detailing how that alien or the team is internationally recognized
• a statement from a member of the sports media or a recognized expert in the sport which details how the alien or the team is internationally recognized
• international rankings of the individual or team
• significant honors or awards in the sport received by the individual or team

Special note regarding players in MLB and NHL. Under current INS policy, players under contract with teams in Major League Baseball or the National Hockey League are merely required to submit their contracts with such teams to establish their P-1 credentials.

Entertainment Groups. With regard to entertainment groups, the rules provide that P-1 classification can be accorded to the entertainment group to perform as a unit based on the international reputation of the group; thus, individual entertainers cannot be accorded P-1 classification to perform separate and apart from the group. With some exceptions, two principal requirements apply to entertainment groups:

• The group must have been internationally recognized as outstanding in the discipline for a sustained and substantial period of time.
• Seventy-five percent of the members of the group must have had a sustained and substantial relationship with the group for at least one year and must provide functions integral to the group's performance.

One-year membership requirement. Evidence must be submitted that seventy five percent of the entertainment group and accompanying essential support personnel have been performing regularly with, or providing essential support services to, the entertainment group for a period of one year; intermittent employment with the group cannot be counted towards the one-year membership requirement. Several exceptions, however, apply, to this one-year membership requirement.