Immigration and Employment Law and Its Impact on the Esports Business Ecosystem

Immigration Law in Esports

Work Authorization for Gaming “Talent”

Some Common Evidence For P1 Visas for Gaming “Talent”

  • Biographical Information on the Talent
  • (Player or Team Ranking. Total Prize Pool. Career Achievements)
  • Press on the Event and on the Talent
  • (From Reputable Outlets - Forbes. The Esports Observer. Esports Insider. Dot Esports)
  • Copy of Executed Personnel Contract
  • (Player Contract. Coach, Caster or other Employment Contract)
  • Itinerary for the Visit
  • (Event Location. Lodging and the Type of Event (CS:GO Tournament. OWL Season)
  • Recommendation & Participation Letters from Game Publisher (Activision-Blizzard, Riot Games, Valve Corp.. Ubisoft)
  • Recommendation & Participation Letters From Event, Tournament or League Organizer
  • (Dreamhack. ESL. MLG OGN)
  • Reference Letter from Notable Industry Press and Members

4.1.1.1 01 and P-1 A Visas for “Competitive” Gamers and Coaches As the global esports market continues to grow, foreign professional gamers from around the world are attempting to come to the United States to participate in tournaments and organized leagues hosted within the country. There are also coaches and other team gameplay analysts who require visas to coach and to earn an income from an esports organization.751 However, in order for any foreign citizen to enter the United States and earn any type of income, such as a salary or tournament winnings, the individual must first acquire the proper work authorization or “visa.”752 In the United States, there are two government agencies involved in this procedure, the United States Citizenship and Immigration Services (USCIS) and the U.S. Department of State.753

Since competing as a professional video gamer in a tournament or organized league is a “for-profit” venture, proper work authorization is required.754 A non-U.S. citizen must obtain this authorization prior to participating and earning a wage in the United States. There is no minimum or maximum age requirement when applying for a visa; so, as long as the other qualifications for the visa are met, a minor (an individual under 18 years old) may apply for one. Tire two types of visas most likely to be available for a competitive gamer is either the 0-1 or the P-1A visa.755 In fact, in 2013, professional League of Legends player, Danny “Shiphtur” Le became “the first pro gamer to receive a [U.S.] visa acknowledging him as an ‘internationally recognized’ athlete.”756 Soon after, professional StarCraft II gamer Kim Dong-hwan received a visa permitting him to enter the country to compete in American-based gaming competitions for prize money.'5 In particular, these two individuals both received “P-1A” visas, which have become the norm for most professional esports competitors to apply for. '58 Additionally, Germany has gone even further than the United States by creating “a dedicated visa that accommodates esports athletes from outside of the European Union.” '59 This was reportedly undertaken in an effort “to allow eas[ier] access to tournaments and leagues [held in Germany] for esports athletes [from] all over the world.”760

Some esports professionals have also applied for and successfully received “EB-1A green cards.”'61 These are rare, only available for “esports players seeking permanency resident in the U.S.” and are outside the scope of this text.762 However, in the United States, the two most commonly applied for work authorizations in the non-permanent residency professional talent sector are the 0-1 and the P-1 A visa.763 The key difference between the 0-1 and the P-1A is the applicant’s personal notoriety. In the United States, the 0-1 visa is only for an individual who possesses “extraordinary ability” in a particular field and “have been recognized nationally or internationally for those achievements.”764 This type of visa is typically only appropriate for a professional who made a substantial mark in the particular field. This means that the applicant possesses sufficient industry-wide name recognition to justify the visa’s issuance on this basis alone without any other evidence. In esports, this is extremely rare, as an 0-1 work authorization requires substantial evidence to corroborate the individual’s high level of notoriety. Specifically, most professional gamers have not achieved enough individual fame to justify the issuing of this type of work authorization. However, in the coming years, this may change, as esports continues to expand and as more superstars emerge that transcend the gaming world.

In order to obtain an 0-1 visa in situations where a professional competitor has achieved a high level of notoriety, the individual must present evidence that displays their “extraordinary talent.” This means that the applicant must provide sufficient and appropriate documentation to support this assertion. If the foreign talent has been recognized nationally or internationally by being nominated for or being a recipient of an industry award, then, the gamer should be immediately qualified for an 0-1 visa.765 For example, in the music world, this could be satisfied by the applicant musician winning a Grammy for their musical works.

However, in instances where an individual cannot provide such evidence (which is in most cases), the applicant can instead substantiate their achievement level by documenting at least three of the following selected criteria. This means that an 0-1 petitioner could present evidence that establishes them as “a lead or starring participant in productions or events which have a distinguished reputation.”766 This fact could be substantiated through the use of “critical reviews, advertisements, publicity releases, publications, [testimonials] or endorsements” on the production.767 The applicant can also provide evidence of “national or international recognition” of their “achievements.”768 This criterion may be satisfied through the use of “critical reviews or other published materials by or about the [applicant] in major newspapers, trade journals, magazines, or other publications.”769 Alternatively, a petitioner may also present evidence that they have “[p]erformed and will perform in a lead, starring, or critical role for organizations [...] that have a distinguished reputation.”770 Again, this fact can be substantiated through “articles in newspapers, trade journals, publications, or testimonials.”771

The petitioner’s relevant notoriety may be substantiated by showing a previous record of “major commercial or critically acclaimed successes.”772 This may be proven by the individual earning a high “rating or [...] other occupational achievements reported in trade journals, major newspapers or other publications.”773 An individual can also present evidence that they “[r]eceived significant recognition for achievements from organizations [...] or other recognized experts in the field.”774 This fact may be demonstrated with written “testimonials [...] indicating the author’s authority, expertise and knowledge” of the petitioners achievements.775 Finally, proving that the applicant’s salary is high “in relation to others in the field” can be submitted as long as this fact is “shown by contracts or other reliable evidence.”776 When submitting this type of evidence, it is important to ensure that any evidentiary or other recommendation letter submitted in a visa application is properly addressed to the USCIS.

As mentioned, in most cases, the P-1A is the appropriate visa for most gamers or coaches to apply for.7 7 Ulis work authorization is only available for an individual that has been internationally recognized as a person who has demonstrated a “degree of skill and recognition substantially above that ordinarily encountered.”778 Similar to an 0-1 visa, a gaming talent applying for a P-1A must provide documentation to substantiate their claim that they possess the level of skill required for the issuance of this type of work authorization. 79 Some of the mandatory information required in this submission include a letter from “an appropriate labor organization” stating that the applicant is a member of a team or an individual competitor and that he or she has been recognized as a professional in the area.780 In the esports space, this could be satisfied through a letter from the game developer (i.e., Valve Corporation or Riot Games) and/or from the event, tournament or league organizer (i.e., DreamHack or Major League Gaming). A P-1A applicant must also present a copy of any “written contracts or summaries of the terms [...] of [their] employment.”781 This requirement could be satisfied through the submission of the professional gamer or the coach’s contract with an esports team (if one exists) or a “letter of intent” listing material employment terms.782 The gamer must also submit an “explanation of the nature of the events or activities” that they intend to undertake if the visa is issued.783 This can be accomplished by presenting an itinerary listing where the visa applicant will be performing the work (i.e., the location of a tournament or event) and what type of work will be performed by the applicant (i.e., competing in an Overwatch tournament for prize money).784

Furthermore, any individual (such as a professional esports competitor) submitting evidence for a P- 1A application on the basis of being an “internationally recognized individual” must provide documentation of at least two of the following evidentiary requirements.785 The applicant must provide proof “of having participated to a significant extent in a prior season with a major United States sports league” or they may demonstrate that they have “participated to a significant extent in international competition with a national team or individually in recognized competitions and/or leagues.”786 This requirement can be substantiated through presenting a player or other official contract with a team, letters of reference from notable industry practitioners as well as any relevant press on the event or league. This standard could also be satisfied by listing any league results for the visa applicant, including how well the gamer did in a competition, how much money they earned from it and what place they finished in as well as any other relevant highlights regarding the gaming “talent.” The individual can also submit a “written statement from a member of the sports media or a recognized expert in the sport which details how [the individual ...] is internationally recognized.”787 This could be in the form of a recommendation letter addressed to USCIS from an esports league or tournament organizer or from some other official governing body for the league.788 Evidence that the petitioner or their esports “team is ranked” or has “received a significant honor or award” can also be submitted.789 This criterion can be substantiated by presenting press coverage and articles reporting on the event or by presenting some official international ranking system (if one exists) that proves the gamer’s high level of achievements.790 While the above information is not an exhaustive list of the requirements for a visa, it serves to highlight a few important requirements that a professional gamer should be aware of when applying for a foreign work authorization.791 Ultimately, the more substantive evidence demonstrating the gamer’s exceptional skill, the more likely that a visa will be issued to a professional gamer.

An 0-1 visa is valid for up to three years and can be extended for additional one-year increments. In contrast, the P-1A visa is valid for a limited amount of time, which is usually only for the length of time required by the gamer to compete in the specific tournament or competition.792 Furthermore, generally, a P-1 A will not be issued for longer than five years. However, the petitioner can extend this visa for additional increments of time “up to 5 years in order to continue to or complete the event, competition, or performance.”793 Under this visa classification, an applicant’s “total stay [is] limited to 10 years.”794

In order to ensure that the gamer receives the visa approval in sufficient time to permit them to participate in a tournament or league match, it is prudent for an individual who foresees the need for a foreign work visa to begin the process as early as possible.795 In addition, when filing with the immigration department in an effort to avoid being subject to the several-month application backlog for either the 0-1 or P-1A visa, it is prudent for a professional gamer to strongly consider using the Premium Processing option available from the USCIS.796 This option is beneficial as it assists in eliciting a response on a pending visa application within two weeks of the application’s filing date.797 While this option may be more costly than not using it, in situations where time is of the essence because the individual requires the visa approval immediately or in a short time frame, this may be the appropriate decision. In some cases, this processing option might be the only way to ensure a timely response from the USCIS.

Another factor to consider when preparing a visa application is the specific wait time at the local consulate. Specifically, after an applicant receives the notice of the approval of their visa documentation, they must then appear at their local country consulate to finalize the matter.798 Since each consulate has its own workload, it is prudent for an applicant to factor in at least an additional seven to ten business days (if not more) to visit the appropriate consulate and receive the approved visa paperwork from the appropriate consulate.799 In light of the COVID-19 global pandemic, worldwide travel and immigration has been shut down and has only recently started to slowly re-open.800 This is certain to cause further delays in the issuance of visas for professional gamers so careful and prudent planning is even more essential.

In addition, the lack of proper work authorization can and has already caused issues for the gamer and their competitive team (if they are signed to one). Some of these issues include preventing the individual from competing in or attending a specific tournament as well as prohibiting the gamer from earning a salary from a professional organization.801 In particular, there have already been several instances of visa issues impacting esports professionals.802 For example, “visa issues” delayed several gamers on the Overwatch League franchise Shanghai Dragons from participating in the start of the season.803 Immigration issues also prevented Russian Overwatch player, Denis “Tonic” Rulyov from participating in the Season 1 Overwatch Contenders Playoffs.804 In addition, esports organizations, 100 Thieves805 and Gambit Esports806 were both prevented from competing in major tournaments because they were unable to obtain visas for their gamers in time. Finally, the Overwatch League team Philadelphia Fusion had to withdraw from their Season 1 pre-season matches due to “player logistic issues.”807 Therefore, as evident by these unfortunate examples, it is important that a professional gamer applies for the proper visa in a timely matter in an effort to avoid some of the same pitfalls encountered by their peers.

Overall, obtaining a proper and timely work authorization is essential to being able to compete in an esports competition in the United States. In most cases, due to the complex nature of the visa application, it may be advisable for a gamer to have an attorney or other competent professional advising them on these matters. However, even if a third-party professional assists them, a professional gamer should still be aware of the process as well as the type of documentation required for the visa application procedure.

 
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