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Avoiding an Immigration Nightmare: The Importance of Knowing When a Work Visa is Necessary

Maria del Carmen Ramos

Maria del Carmen Ramos

On January 30, 2015, Los Angeles Dodgers relief pitcher Joel Peralta faced what many business immigration practitioners would refer to as an avoidable immigration nightmare.

Peralta and his wife were traveling from the Dominican Republic (where they reside during the off season) to California to attend the LA Dodgers FanFest via Miami International Airport. Much to Peralta’s chagrin, he and his wife were detained for about six hours by U.S. Department of Homeland Security (DHS) when the DHS officer handling the couple’s entry into the United States determined that Peralta’s visitor visa was insufficient for “signing autographs” at the LA Dodgers FanFest. Such activities, according to the DHS agent, required Peralta to have a work visa rather than the 10 year visitor visa he presented upon inspection.

Some background may be helpful. A foreign national who wishes to enter the United States must first obtain an immigrant or nonimmigrant visa. Immigrant visas are for those people who want to come to the United States permanently. Immigrants qualify for one of the many types of immigrant visas based on family relationships or their employment. Nonimmigrant visas are for people who want to come here temporarily for work or pleasure. Last year, the United States issued just over 9 million nonimmigrant visas, with more than half of those—about 5.6 million—issued to business travelers or visitors. The remaining 3.4 million nonimmigrant visas fall into one of 19 categories.

One of those categories—our B visa—is for people who want to enter the United States temporarily for business (B-1), pleasure (B-2), or a combination of both purposes (B-1/B-2). Generally, the B visa can only be used for a short-term trip taken to conduct non-remunerated activities for which work authorization is not required. Some examples of permitted activities include attending business meetings or discussions; participating in negotiations on behalf of your employer; attending conferences and training; and negotiating a contract. While in the United States, B visa holders may not engage in activities such as paid performances or professional performances before a paying audience, among other things.

The question then is whether signing autographs constitutes work? Most likely it does. Somewhere in Peralta’s contract with the LA Dodgers there is probably a provision that requires him to make certain appearances at designated events on behalf of the LA Dodgers. So if his appearance is a contractual obligation under his employment agreement, it is hard to fault the DHS agent’s reasoning. But what makes this incident so frustrating for Peralta is that he had likely already been approved for his work visa because most MLB clubs apply for work visas for their foreign players in the fall the year before the player is supposed to report to spring training.

As an immigration practitioner, I can’t help but read these stories and wonder how the whole situation could have been avoided. That requires some speculation on my part since we don’t know the whole story here. But it seems one of two things went wrong. It is possible that the LA Dodgers failed to timely filed for Peralta’s work visa. That is highly unlikely because, as mentioned above, most teams apply for work visas in the fall of the year before the player is supposed to report to spring training, although it is worth noting that Peralta was not traded to the LA Dodgers until after last season was over. It is more likely that Peralta failed to obtain his visa stamp after he was approved for a work visa.

It is easy to forget that it is not the approval of the work visa by U.S. Citizenship & Immigration Services that allows a foreign national outside of the United States entry. Instead, the foreign national has to take his/her approval notice and attend an interview at the consular post designated in his/her petition. The adjudicating officer will review the file and then interview the foreign national. If the adjudicating officer determines that is everything is in order, the officer will then issue the work visa. That is why some MLB clubs will make arrangements and set up the consular interview for their foreign players once their work visa has been approved.

Here is one final the part of the story that presents some food for thought:  The first DHS agent denied Peralta and his wife entry not because he did not believe that Peralta was a baseball player on his way the LA Dodgers FanFest in Los Angeles but because Peralta did not have the proper visa to come do what he was proposing to do. But shortly after Peralta and his wife were detained, a second DHS officer allowed the couple to enter on the same visa that was found objectionable in the first place?!

Where is the consistency? How does that make any sense? This incident illustrates a problem immigration practitioners face all the time. A good portion of immigration law relies on policy memoranda. This results in adjudicating officers being able to exercise a good amount of discretion. Discretion, while necessary at times, can often lead to inconsistent results.

If anything, this incident highlights that an overhaul of our immigration system is desperately needed. Virtually everyone agrees that our immigration system is broken.  But with everyone’s focus on how the United States will deal with the nearly 12 million undocumented individuals living here, it is not surprising that problems like the ones raised by Peralta’s incident will sit on the back burner for now.

Navigating our immigration system is not an easy task. But sometimes certain immigration nightmares can easily be avoided. Our firm is available to assist with your work visa needs. For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@slk-law.com.

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