This past weekend, Mixed Martial Arts Superstar Conor McGregor made headlines all over the world when he was involved in a confrontation at Barclay's Arena during UFC ("Ultimate Fighting Championship") 223 in Brooklyn, NY. Allegedly, Mr. McGregor and his entourage attacked a bus containing a rival fighter after a media conference. Mr. McGregor was caught on video throwing a dolly though the window of the bus which injured several athletes who were due to compete the next day. Ultimately, several athletes we deemed unable to compete during UFC 223.
*Warning Adult Language"
Mr. McGregor was charged with three counts of assault and one count of criminal mischief. Many stakeholders and industry insiders began to question how these charges may effect Mr. McGregor’s visa status. More than likely, Mr. McGregor is one a P visa which is appropriate for internationally known athletes to be compensated for competitions in the United States. Often times, a person’s permission to come back to the United States can be compromised by participating in criminal behavior. However, since a P visa is a non-immigrant visa, all may not be lost. There is a common misconception that having a criminal past, especially felony convictions, will prevent a potential boxer, mixed martial artist, or other combat sport participant from obtaining a P Visa or an O Visa. While this is absolutely true for a person looking to immigrate to the United States, this is not necessarily true for someone looking to come to the United States on a temporary basis without intent to obtain permanent legal residence ("Green Card"). Therefore Mr. McGregor may still be able to take advantage of P visa status by taken the time to apply for a §212(d)(3) waiver the next time he attempts to enter the United States.
The appropriate manner to obtain relief to inadmissibility for non-immigrant fighters and coaches to the United States is the §212(d)(3) waiver. This waiver applies to both the P visa and O visa categories along with other visas such as J-1 student visas and H-1B work visas. Unlike immigrant visas, the waiver for non-immigrant visas such as P visa and O visa categories have a much less stringent standard for approval. For example, typically only minor marijuana offenses are eligible for waivers for immigrant visas such as when person is seeking to become a legal permanent resident (“Green Card Holder”). In contrast, there are relatively few absolute bars to approval for the §212(d)(3) non-immigrant visa waiver and these absolute bars typically involve political and/or homeland security reasons such as the following:
• planned or planning to commit espionage or sabotage
• planned or planning to commit any unlawful activity
• planned or planning to overthrow the government by force
• foreign policy grounds
• membership in the Nazi Party
• participation in committing genocide
The standard for approving the §212(d)(3) non-immigrant visa waiver for fighters and coaches is also much more obtainable than an immigrant visa waiver. The catch is that the authority of immigration officials to approve the §212(d)(3) non-immigrant visa waiver for fighters and coaches is a discretionary matter which takes some control out of the applicant's hand. The immigration officer can approve an application as easily as they can deny one and there is no appeal process. The fighter's or coach's only options if their §212(d)(3) non-immigrant waiver is denied is to seek an advisory opinion or simply apply again.
The immigration officer will consider three points when determining whether or not to approve the §212(d)(3) non-immigrant visa waiver for the fighter or coach. The three factors were laid out thirty years ago in the case in the Matter of Hranka in 1978. The factors that are considered by immigration officers when determining whether or not to approve the §212(d)(3) non-immigrant visa waiver are as follows:
the potential risk of harm to society if the fighter or coach is admitted to the U.S.;
the seriousness of fighter's or coach's criminal or immigration law violation; and
the reason(s) for the fighter of coach seeking entry into the United States.
The third prong of this test refers to having a genuine purpose for coming to the United States. In the case of a boxer, mixed martial artist, or other combat sports athlete, this is achieved with a bout agreement, competition invitation, or employment contract.
The application process concerning where the petitioner must apply for the waiver and what government fees apply depends on the foreign fighter or coach’s citizenship status. If the petitioner is a citizen of country that is visa exempt such as Canada or the United Kingdom, you will have to apply at port of entry or a pre-clearance port. There will be a requirement for petitioner to either mail in application or present the application in person. These entries are also subject to a government fee of $585.00 dollars.
If the petitioner is a citizen of a country that requires a visa to travel to the United States such as Mexico, then the petitioner will need to apply for the waiver at a consular office. However, the petitioner will not be required to pay the $585.00 filing fee.
If you are interested in pursuing a waiver for yourself or an athlete/entertainer you represent, do not hesitate to contact one of our attorneys for a consultation at 704-500-2075.