P Category Visa Process:
Coverage of P 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. 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.
Except for individual P-1 athletes, there is no explicit statutory limitation on the period of stay for P non-immigrants. The initial period of stay can be approved for the time necessary for the specific competition, event, or performance, up to a period of one year. With regard to individual P-1 athletes, an initial period of stay can be approved for five years, up to a total of 10 years. A “competition, event, or performance” means an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. A group of related activities will also be considered an event.
- An extension of stay for a P-1 individual athlete and support personnel can be granted for an additional period of five years for a total period of stay not to exceed 10 years.
- Extensions of stay for all other P non-immigrants and support personnel can be granted in increments of up to one year to continue or complete the same event or activity for which they were admitted.
- In addition, extensions may be granted to complete additional similar or comparable performances, engagements, or competitions not listed in the initial petition.
Procedures for the P category
Classification in the P category requires the filing of a P petition with the Immigration Service in order to obtain permission to employ a P alien for a temporary period. Before a petition can be approved for P classification, a consultation requirement must be met. The law requires the submission of an advisory opinion from a labor organization with expertise in the alien’s specific field. The petition may establish that a labor organization does not exist, in which case the USCIS may adjudicate the petition without an advisory opinion.
The P petition may be filed for multiple P aliens if they are members of a group or team seeking classification based on the reputation of the group or team as an entity, or if they will provide essential support to the same P-1, P-2 or P-3 alien or group performing in the same location and in the same time period; support personnel cannot be included in the same petition as the principal P alien or group. Separate petitions must be filed for support personnel.
The principal condition regarding P status that must be remembered by employers is that obtaining P status for an alien requires three steps:
- Obtaining an advisory opinion from a labor organization (or submitting evidence that such an organization does not exist).
- Approval by the USCIS of a P petition supported by the advisory opinion.
- Issuance by a U.S. consulate of a P visa based on the approved petition.
Also keep in mind the following:
Freelancing not permitted: The final rules issued in August 1994 clarify that an alien or group in P classification may only be admitted to perform services in “specific, identified” events, performances, competitions, or engagements; P status may not be granted to an alien to enter the United States to free lance in the open market.
Filings by foreign employers and U.S. agents: A final rule issued in April 1997 revises the circumstances under which a foreign employer may file P-1 petitions. Under prior rules, a foreign employer could directly petition for an P-1 alien. The new rules state that a foreign employer may file a petition only through a United States agent. A “foreign employer” includes any employer who is not amenable to service of process in the United States.
- Cases involving self-employment
- Cases involving “numerous employers”
- Cases involving foreign employers
Filing permanent residence papers: The approval of a permanent labor certification or the filing of an immigrant preference petition is not a basis for denying a P petition, an extension of stay request, or a change of status application.
Members of P-1 entertainment and athletic groups: A person who is a member of an internationally recognized entertainment group or athletic team may be granted P-1 classification based on that relationship, but may not perform services separate and apart from the entertainment group or athletic team.
Employer obligation to pay for return abroad: One obligation imposed by the 1990 Act is for employers to pay for the return trip of P employees whose employment is terminated prior to the expiration of the authorized period of stay.
Family members of P aliens: The family members (spouse and unmarried children under 21) of the principal alien are classified in the P-4 category. They cannot engage in employment in the United States unless they are independently qualified.
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