Immigration and Martial Arts
The inspiration for this blog post came from my experience working with several mixed martial arts, bjj, and submission grappling competitors to obtain proper visas to enter and work in the United States. Several have experienced problems trying to re-enter the United States because they previously worked without permission by teaching seminars or competing in professional promotions. As someone who trains Muay Thai and Brazilian Jiu-Jitsu, I take great pride in being able to help members of the martial arts community pursue their dreams and goals. Unfortunately, knowledge on the specific intersection of U.S. immigration law and martial arts, is not widespread. Through this post, I hope to provide a basic overview of the law, why it is important to obtain proper visas, and why, unfortunately, it can be very hard to do so.
What is a B-1/B-2 Visa?
A B-1/B-2 visa is a visa for someone who is entering the United States to conduct business or as a tourist. It is very important to recognize that “conducting business” does not mean that the person has permission to work in the United States. In fact, the person absolutely does not have permission to work in the United States and to engage in wage labor is considered a violation of status that can result in the visa being revoked and future visa applications being denied. Because one of the main ways that professional martial artists earn money is through teaching, it is critical that they be aware that teaching seminars in the United States for pay is considered working and does violate B-1/B-2 status.
If someone is coming into the United States just to compete in a competition like the IBJJF New York Open, the B-1/B-2 visa would be appropriate.
What are the I-94 and I-94 Expiration Date?
The I-94 is a number associated with the entry that can be found online by entering one’s name, birthday, passport, and passport issuing country. Every time a foreigner enters the United States, Customs and Border Patrol (“CBP”) puts a stamp in his or her passport. That stamp notes the foreigner’s status and the date by which the foreigner is required to leave. That date is referred to as the I-94 expiration date. If the foreign stays past the I-94 expiration date, he or she is considered an “overstay” and in violation of his or her status. He or she is also accruing what is called “unlawful presence.” If a foreigner accrues 180 to 365 days of unlawful presence, he or she will be banned from entering the United States for three years after leaving. If a foreigner accrues more than 365 days of unlawful presence, he or she will be banned from entering the United States for ten years after leaving. It is possible to obtain waivers of these bans, but it is very hard to do so. Consequently, it is very important that all foreigners entering the United States pay attention to their I-94 expiration dates and make sure to leave the United States in a timely manner.
What happens if a foreigner overstays for just a few days?
There is no clear answer to this question, but I can tell you what my clients have experienced. One client honestly misread the date by which he was expected to leave. I pointed it out to him and he immediately changed his flight home to an earlier one. Because he was here on ESTA, meaning that he did not need a visa to enter the United States, he was denied the next time he tried to apply for ESTA approval, which I told him to expect. He then had to apply for a B-1/B-2 visa. At the interview, he was honest about the mistake and the visa was approved for 90 days.
What is USCIS?
Before I begin, I want to explain the different departments within the U.S. government that are involved in most visa application processes. The first branch that is usually dealt with is United States Citizenship and Immigrations Service (“USCIS”). USCIS is a department under the guise of the Department of Homeland Security. USCIS has offices throughout the country and it is responsible for receiving and adjudicating applications. Depending on the location of the sponsor and/or beneficiary and the type of visa, the visa application will be sent to a specific location. If the application is approved, the beneficiary will either be able to stay in the United States or need to go to the consulate of his or her home country and undergo an interview at a United States consulate, a process called “consular processing.” (See below for information about consular processing).
What is consular processing?
When an application is approved, but the beneficiary is abroad, he or she has to complete a non-immigrant visa application online with the Department of State, the DS-160. Upon completing the application, the beneficiary will then schedule an interview at a U.S. consulate before receiving the visa stamp in his or her passport. The visa stamp is very important because it is the piece of paper in the passport that signals to border patrol that the beneficiary has been given permission to enter the United States for a specific purpose.
Which visa is appropriate for a martial artist who wants to come to the United States and compete, coach, and teach for pay?
In most cases, the O or P visas would be appropriate. The requirements for both visas are similar, though there are a few significant differences.
What is the O visa?
The O visa is for those who have extraordinary ability in the sciences, arts, education, business or athletics, or in the motion picture and television field. In the case of martial artists who wish to compete and teach, they are considered athletes for the purposes of the O visa application.
What is the P visa?
The P visa is for internationally recognized athletes, individually or part of a team, or a member of an internationally recognized entertainment group.
What do the O and P visas require?
The O and P visas require several different actors in addition to the athlete. The athlete needs to secure a sponsor for the application. The sponsor is the one who signs the application forms that are eventually sent to the USCIS. The sponsor may also be the same person who acts as an agent between the athlete and one or more employers. For example, if an athlete is going to come to the United States and do a series of seminars, the company that organizes the seminar tour will be considered an employer. The application package must include an agreement between the sponsor and the employer. The same would be the case if the athlete plans to fight for a professional promotion in the United States.
What evidence is needed to prove that an athlete has extraordinary ability for the O visa?
The short answer is A LOT. Each time I have submitted an application for an O visa, the package has weighed several pounds. I would say the average is about 6 or 7 lbs. The longer answer is that the application must include at least three of the following:
Receipt of nationally or internationally recognized prizes/awards in the field;
Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
Published material in professional or major trade publications or major media about the foreign national;
Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
Original scientific, scholarly, or business-related contributions of major significance;
Authorship of scholarly articles in professional journals or other major media;
Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
Past or proffered high salary or other remuneration for services, evidence by contracts or other reliable evidence.
There is a final “catch-all” of sorts in the regulations that permits for the submission of “comparable evidence” in the form of written testimony from experts in the same or a closely allied field. In my experience, O visa applications for martial artists are critical because it is very hard to meet three of the above requirements.
What evidence is needed for the P Visa?
While the standard for the P visa is lower than the O visa, the application packages tend to weigh just as much at the end of the day. The submitted evidence must include at least two of the following:
Significant participation in a prior U.S. major league season;
Participation in international competition with a national team;
Significant participation in a prior U.S. college/university season in intercollegiate competition;
Written state from a major U.S. sports league or official of the sport’s governing body detailing the foreign national’s or team’s international recognition;
Written statement from the sports media or a recognized expert respecting international recognition;
International ranking; or
Significant honors/awards in the sport.
What makes it so hard to meet the requirements?
The hardest thing about these applications is proving just how extraordinary or recognized the beneficiary is to the satisfaction of USCIS. Immigration attorneys have, especially as of late, experienced a great deal of pushback and skepticism from USCIS, stating that the beneficiaries are not adequately extraordinary or recognized. I find this to be especially true in the case of lesser-known sports, such as Brazilian Jiu-Jitsu. It is far easier to prove that someone is a nationally or internationally recognized athlete in sports that are watched by millions across the world, like soccer or tennis. It also helps that the governing bodies and teams are more organized for such sports. BJJ has nothing of the sort. “Teams” in BJJ are often defined by where one chooses to train. Moreover, only the best of the best actually earn money in BJJ (think Gordon Ryan and Craig Jones). The large majority of people, like myself, pay to compete.
Another detail that makes it hard to meet the requirements is the fact that most professional leagues are unionized. BJJ competitors, submission grapplers, and MMA fighters are not unionized. Despite some serious efforts to do so, none have been successful. Why is this important? Because the regulations actually require a consultation with the relevant union as part of the application package. To address the requirement, I have to prove that such a union does not exist. For BJJ competitors and submission grapplers, this is much easier said than done. At least in the case of MMA fighters, I am able to provide news and Law Review articles discussing the efforts to unionize fighters and why they have failed. There is simply nothing that I have been able so far to definitively say that there is no union for BJJ competitors or submission grapplers.
What is happening now with the Corona virus?
Well… a lot of insanity. Competitions are being canceled across the world and BJJ gyms are closed indefinitely. People are severely limited in their travel. For the greats that we love to watch, well, they are limited in their ability to earn money through lessons and competitions. Our dear gyms are at risk of closing if everyone cancels their memberships. In a nutshell, it is pandemonium. I cannot wait to be on the mats again, but this is not fun.
The one thing that is great is the extent to which I have seen the BJJ community come together to support one another while we are all stuck at home. I see it as a testament to which we all really, truly care about the sport and our team mates (and trust me, I am not one to say that lightly). We will survive, we just have to be there to support each other, albeit, at least six feet apart.