Episode 31: E-Verify NextGen, domestic visa renewals, P-1 visas

It’s July 6, and this is your BAL Immigration Report.

• S. Citizenship and Immigration Services opens its E-Verify NextGen demonstration project for comments.
• The State Department plans to launch a pilot program to adjudicate domestic renewals.
• A look at where P-1 visa regulations fall short.

“America has an amazing sporting culture, and we want to encourage international competition of all types — and that means bringing in talent from around the world.”

—Gabriel Castro, BAL Senior Associate

U.S. news

Comments open on E-Verify NextGen

USCIS has opened a public comment period on its proposed E-Verify NextGen demonstration project. The new platform will be built upon existing USCIS and E-Verify web services capabilities and will provide enhanced functionality to both employees and employers. NextGen will also further integrate the Form I-9 process to create a more secure and streamlined employment eligibility verification process.

The agency has not yet announced when it will launch E-Verify NextGen. Comments on the demonstration project will be accepted until Aug. 28.

Streamlined work visa process for Indian nationals

President Joe Biden and Prime Minister Narendra Modi in a joint statement welcomed plans to streamline the process for Indian nationals to live and work in the United States. The U.S. State Department announced it will launch a pilot program to adjudicate domestic renewals of certain petition-based temporary work visas, including for Indian nationals, later this year. Department officials will publish a Federal Register notice regarding the pilot, including eligibility requirements and program details, about a month before the program’s launch.

U.S. news roundup

• The Department of Homeland Security announced new Immigration and Customs Enforcement leadership.
• The State Department provided further clarification on the upcoming India employment-based third preference retrogression.
• BAL’s Cecilia Lai explains how the O-1 visa may be an alternative to the H-1B lottery.

Spotlight

A conversation with BAL Senior Associate Gabriel Castro: international athletes’ ability to obtain a visa.

BAL Immigration Report: In June, soccer legend Lionel Messi announced that he would join Inter Miami in what has been billed as a game-changer for Major League Soccer — or MLS — in the United States. Messi, after all, is a World Cup hero and the winner of a record seven Ballon d’Or awards, which is considered soccer’s most prestigious individual recognition. In the eyes of many fans, he is the greatest of all time — the GOAT. No one has much doubt that Messi will not have difficulty obtaining a visa to play here in the United States. If only it was so easy for other athletes.

Castro: Soccer is a great example of this. Someone who has played their entire life in the Premier League playing for Manchester United would not meet these criteria, whereas someone who had played for Virginia Tech’s soccer team and then played one season for Chicago Fire, you’d look at the rest of the criterion and they don’t fit perfectly with anything else.

BAL: That’s Gabriel Castro, the head of BAL’s Sports and Entertainment practice. Castro returned to the BAL Immigration Report this week to discuss a shortcoming in U.S. visa policy — and how it might be fixed.

Castro: The P-1 professional athlete visa is the most common visa type for professional athletes in the United States. This is a nonimmigrant visa, which allows applicants to apply much quicker than in the permanent residence process. This would be the first application that your typical foreign-born NBA draft pick would apply for and get them here pretty quickly so that they could begin playing whatever competition they’re coming to the United States for.

BAL: There are several ways to qualify for this visa.

Castro: You can qualify based off the international recognition of the individual. You can also qualify in certain cases based off the international recognition of the team, if the individual’s part of that team. And you can also qualify under the definition of a professional athlete by the U.S. immigration service, which basically is a carve-out for major league sports programs. Outside of major league sports, the most common way that other individuals are going to be applying is under that international recognition standard. The international recognition is defined by the U.S. immigration regulations and requires meeting two of several criteria that are listed in the regulations. Now, these criteria — in my opinion — are somewhat outdated, somewhat American-centric in terms of the sports that they had in mind when they were writing these criteria.

BAL: For example, previous experience in U.S. collegiate athletic competition is one of the criteria. Previous experience in a major U.S. sports league is another.

Castro: Both of these are very common when you think of baseball, basketball, American football — the typical way, the typical path for a professional to rise up usually starts with competition in in the collegiate game before going pro — but that’s frankly not how it works in many other sports, it’s not how it works internationally around the world.

BAL: Castro says the problem is most obvious in sports where the highest level of competition is outside of the United States — not only soccer, but also cricket, rugby and Formula One racing. It’s also a challenge in new or emerging sports — think pickleball, professional softball or esports. There is some wiggle room for athletes who have not played collegiate or professional sports in the U.S. For example, the regulations do give athletes credit for playing on a national team or if they have written statements from the governing body, media or recognized expert of a sport.

Applicants are also credited for international rankings or “significant” honors and awards. But obtaining letters or haggling over whether an honor is “significant” slows everything down. It can lead to athletes missing competition — or worrying about their visas instead of gaining valuable practice time. Castro says visa adjudicators should be given more breadth. 

Castro: I just think that something that the regulations need right now is to provide for more flexibility when it comes to unique sports types. I think that some sort of totality of the evidence standard as opposed to rigid criteria would make more sense.

BAL: As for Lionel Messi, Castro says he’s personally excited about Messi joining the MLS and that it’s possibly the biggest signing in U.S. sports history.

Castro: I think that America has an amazing sporting culture, and we want to encourage international competition of all types. That means bringing in talent from around the world — and doing so requires an easy process, one that won’t slow people down. I think any way in the process that we can smooth out this path, that’s going to be important for the American sporting community.

Global news

Canada launches Tech Talent Strategy

Canada has launched the Tech Talent Strategy to attract highly skilled foreign nationals to live and work in the country. This strategy includes creating an open work permit stream for H-1B specialty occupation visa holders in the United States to apply for a Canadian work permit, with study or work permit options for their family members. It also opens an Innovation Stream under the International Mobility Program as well as a STEM-specific draw under category-based selection to issue additional invitations to apply under the Express Entry program, among other measures.

Canada extends study authorization

Canadian authorities announced the extension of study authorization for work permit holders. Foreign nationals can now study full- or part-time while their work permits are valid or until the expiration of the policy, with no restrictions on the length of the school program. The study authorization applies to those who hold a valid work permit or have a pending decision on their work permit extension as of June 7, 2023. The temporary measure will be in effect for three years.

U.K. sponsors must submit new information

In the United Kingdom, the Home Office has announced changes to information required on the Sponsor Management System. Individuals who are adding a new Level 1 user to their sponsor license or who are changing personal details must now provide the user’s National Insurance number. New users who do not have a National Insurance number must give a reason why they do not and may be asked to provide evidence that they’ve applied for one. Requests may be denied for those who do not have a valid reason for not having a National Insurance number.

Global news roundup

• Vietnam announced that it will increase the duration of stay for e-visas and for some foreign nationals who are visa exempt.
• Denmark updated the Positive List for People with a Higher Education and the Positive List for Skilled Work.
• Israel announced that it will simplify travel rules for U.S. citizens who hold Palestinian identification cards.

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