Introduction
The United States of America (“US”) is one of the most sought after destinations for athletes, entertainers, performers and artists. From college leagues to professional teams, the platform offered to a sportsman in terms of education, training and performance in the US is perhaps the best in the world. However, for an international athlete, immigrating to the US can be overwhelming, as the norms prescribed under US immigration laws are complex and not very easy to meet. Often, talented and well-established athletes of good standing, ability and reputation find themselves falling short of the eligibility benchmarks of US immigration law. Usually, professional athletes who wish to ply their trade in the US attempt to obtain an ‘O’ or a ‘P’ visa, as a non-immigrant alien, which requires the demonstration of ‘extraordinary ability’ or ‘international recognition’, respectively. This learning module examines the framework of US immigration laws with specific focus on the eligibility criteria for an athlete.
General Framework
The framework for immigration into the US consists of the Immigration and the Nationality Act, 1952 (“INA”), and regulations contained under Title 8 of the Code of Federal Regulations (“CFR”). The INA is the basic legislative instrument governing immigration law in the US. Prior to the enactment of the INA, the US had various statues for immigration law, but lacked one central instrument. The McCarran-Walter Bill of 1952, collated, codified and reorganised the existing provisions of immigration law into the INA. The INA has been amended several times with the most prominent amendment being the Immigration Act, 1990 (“1990 Act”), which came into effect on April 1, 1992. The INA, although a stand-alone body of law, is contained in the United States Code (“USC”), which is a collection of all the laws of the US arranged by fifty subject titles. Title 8 of the USC deals with ‘Aliens and Nationality’, and includes the INA. The general implementation and interpretation of the law is in accordance with Title 8 of the CFR and is taken care of by regulatory agencies falling within the umbrella of the United States Department of Homeland Security (“USDHS”), which includes: the United States Citizenship and Immigration Services (“USCIS”), the United States Department of State (“DOS”), and the Immigration Naturalization Services (“INS”).
The INA places persons coming into the US into various categories, and Title 8 of the CFR sets the specific standards of eligibility into these categories. While the INA does not define ‘athlete’, the term ‘professional athlete’ has been defined under Section 212(a)(5)(A)(iii)(II) of the INA as ‘an individual employed as an athlete by (A) a team that is a member of an association of six or more professional sports teams whose total combined revenue exceeds $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or (B) any minor league team that is affiliated with such an association’. To qualify as a professional athlete for the purposes of immigration, an athlete will have to meet the benchmarks of the definition and the eligibility criteria for the applicable visa.
Athletes and Immigration Prior to the 1990 Act
The 1990 Act was one of the most significant amendments to the INA. The 1990 Act increased the limits on legal immigration into the US and revised the grounds for exclusion and deportation. Another substantial addition was the introduction of new non-immigrant admission categories, including the ‘O’ and ‘P’ category and the revision of the ‘H-1’ Category. Prior to the enactment of the 1990 Act, non-immigrant alien workers, including athletes, applied for admission to work in the US under the ‘H’ category. According to the earlier provision, a foreign athlete, of ‘distinguished merit and ability’, who was coming temporarily to the US to perform services of an exceptional nature requiring such merit and ability, was required to apply for a visa under the ‘H’ category. The original ‘H’ category consisted of the ‘H-1’ category and the ‘H-2’ category.
‘H-1’ Category
An athlete who could demonstrate ‘distinguished merit and ability’ could obtain the ‘H-1’ visa. In addition to meeting the ‘distinguished merit and ability standard’ an athlete coming into the US was required to ‘perform services of an exceptional nature requiring such merit and ability’. To prove ‘distinguished merit and ability’ an athlete had to show prominence and high achievement in the field demonstrated by ‘sustained national or international recognition and acclaim’. An athlete’s salary, performance and reputation were often examined as proof of ‘national and international recognition and acclaim’. In the event an athlete could not meet the parameters to obtain the ‘H-1’ visa, he/she could still qualify for the ‘H-2’ visa.
‘H-2’ Category
The ‘H-2’ visa was more complex and involved more procedures than the ‘H-1’ visa. The ‘H-2’ visa was for athletes coming in as temporary workers who were performing services for which qualified Americans were not available. In order to obtain the ‘H-2’ visa, an athlete’s employer was required to obtain a temporary certification from the United States Department of Labour, for which the employer had to prove the un- availability of sufficient American workers willing and qualified to perform the same job as the non-immigrant alien athlete. Apart from that, the employer was required to show that the wages and working conditions of American workers would not be disturbed by the admission of the athlete into the US.
H-1B Category: Between the Enactment and Implementation of the 1990 Act
The 1990 Act revised the ‘H’ Category (renamed ‘H-1B’) and excluded the ‘distinguished merit and ability’ standard from its purview. However, provisions of the 1990 Act relating to the ‘O’ and ‘P’ categories, were not implemented till April 1, 1992. Until this date, non-immigrant alien athletes continued to rely on the revised ‘H’ category (‘H-1B’ category), to work in the US. The ‘H-1B’ category could only be used by foreign nationals who were otherwise not qualified for a visa under the ‘O’ and ‘P’ categories and excluded the ‘distinguished merit and ability’ standard. However, as the ‘O’ and ‘P’ categories had not been implemented, this created a gap that left foreign athletes with no avenue into the US. The Congress recognised this gap and permitted the ‘distinguished merit and ability’ standard to be used as part of the ‘H-1B’ category assessment till the implementation of the ‘O’ and ‘P’ categories.
Athletes and Immigration Post the 1990 Act
The ‘O’ and ‘P’ categories currently apply for non-immigrant alien athletes. Both categories specifically concern entertainers, artists and athletes. There specific standards for athletes are separate from the standards for artists and entertainers.
O-Visa: Eligibility and Requirements
The ‘O-1’ visa is for individuals who demonstrate ‘extraordinary ability in the sciences, arts, education, business or athletics’. Support personnel accompanying the ‘O-1’ artist or athlete are eligible for an ‘O-2’ visa, and the ‘O-3’ visa is for dependents (spouses and children under 21 years of age). The ‘O-1’ visa is valid for a period of three years and has the most stringent benchmarks of eligibility. Both athletes and coaches are eligible to obtain the ‘O-1 visa’, provided they are able to demonstrate, ‘extraordinary ability’.
The ‘O-1’ visa, replaced the original standard of ‘distinguished merit and ability’ with the standard of ‘extraordinary ability’. The definition and standard of ‘extraordinary’ varies depending on the type of applicant. While the standard is significantly lower for artists and entertainers, it subjects athletes and coaches to a higher standard of demonstration of extraordinary ability. Only an athlete or coach who has reached a level of expertise ‘indicating that the person is one of the small percentage who has risen to the very top of the field or endeavour’ is eligible to be granted an ‘O’-visa. According to 8 CFR § 214.2(o)(3)(iii), an applicant athlete is required to have received a major international award or prove at least three of the following criteria:
(i) receipt of internationally or nationally recognized awards;
(ii) membership in associations that require outstanding achievement;
(iii) published material about the applicant in major trade publications;
(iv) participation as a judge of others in the same field;
(v) contributions to the field of major significance;
(vi) authorship of articles in the field;
(vii) employment in an essential capacity in distinguished organisations;
(viii) high salary relative to others in the field.
Obtaining a contract with a professional team by itself is not sufficient to demonstrate extraordinary ability for an athlete. In order to qualify for an O-visa, a coach needs to demonstrate extraordinary ability as a coach, and it is not sufficient for a coach to show extraordinary ability as an athlete.
The ‘P-1A’ visa is often a more appropriate choice for athletes and athletic teams who are coming in to the US temporarily, for a specific competition or to participate in a league or club. The ‘P-1A’ visa is limited to athletes and athletic teams competing at an ‘internationally recognized level’. Athletes need to demonstrate a degree of skill and recognition substantially above that ordinarily encountered, so that the achievement is renowned, leading or well known in more than one country. The ‘exceptional ability’ and ‘internationally recognized level’ standard of the ‘P-1A’ visa is a notch lower than the ‘O-1’ requirement of ‘extraordinary ability’. A ‘P-1A’ visa is usually valid for a period of five years for an athlete and one year for an athletic team. To obtain a ‘P-1A’ visa, athletes and athletic teams need to tender their contract with a major US league or franchise or a sport which will ‘commensurate with international recognition in that sport’, and fulfil at least 2 of the following criteria: (i) significant participation in a prior United States major league season; (ii) participation in an international competition with a national team; (iii) signification participation in a prior US college/university season in intercollegiate competition; (iv) provide a written statement from a major United States sports league or official of the sport’s governing body of the individual’s international recognition; (v) provide a written statement from the sports media or recognised expert regarding international recognition; (vi) high international ranking; and (vii) significant honours/awards in the sport.
Application of the ‘Extraordinary Ability’ Standard
The definition of ‘extraordinary ability’ is open to interpretation. Despite requiring the submission of a comprehensive list of documents to indicate ability, the determination of whether such applicant meets the standard of ‘extraordinary ability’ remains subjective and is left to the discretion of the INS. Over the years the INS and the Courts have battled with the definition and the interpretation of ‘extraordinary ability’.
In Muni v. INS [891 F. Supp. 440.], Craig Muni, a hockey player and a part of the National Hockey League (“NHL”), was refused a visa on the grounds that he was not able to prove ‘extraordinary ability’, despite being highly ranked and having other players of comparable ability being granted a visa. The INS found that the fact that Muni was not selected to all-star teams or received recognition as an extraordinary hockey player established that he was not among the few who had risen to the top of his field. This matter then came to the United States District Court for the Northern District of Illinois, which found the definition of ‘extraordinary ability’ in the INA and CFR to be reasonable, and held that the INS’s determination of ability was valid unless it was unreasonable. However, the Court overturned the INS’s decision, on the basis of other evidence adduced in the Muni’s application, such as his role in the team, published articles highlighting his contribution and his high ranking. Lastly, the Court criticised the INS’s overly narrow interpretation of the standard by stating that for the purpose of determination of ‘extraordinary ability’, membership of the all-star team or being one of the NHL’s highest earners is not the only way to demonstrate ‘extraordinary ability’ and that the evidence submitted in the application must be considered in totality for such determination. Subsequently, in Racine v. INS [1995 WL 153319], the United States District Court for the Northern District of Illinois once again disagreed with the INS’s interpretation of the standard of ‘extraordinary ability’, and ruled that an appropriate field of comparison for a player’s ability as a hockey player is within the league he plays and not his ability as a hockey player at all levels. Hence, while the Courts have indicated agreement with the definition of ‘extraordinary ability’ as in the INA and CFR, they have differed with the INS in the subjective determination and interpretation of the scope of ‘extraordinary ability’.
Conclusion
While the Congress moved from the standard of ‘distinguished merit and ability’ to that of ‘extraordinary ability’ and ‘international recognition’, in practical application there seems to be little difference between the standards. Both standards of ‘extraordinary ability’ and ‘international recognition’ appear to be rather arbitrary and lack an equalising balance. Young athletes who have potential and ability may not always be able to tender the extensive documentation required by immigration law. The standards to obtain an ‘O’ and ‘P’ visa are not very friendly towards a young athlete, especially those from developing countries. A young athlete from a developing country may not always be able to meet the salary requirements to qualify as a ‘professional athlete’, and may not hold membership in an association which requires outstanding achievement. While a young athlete may have potential and ability, he/she may not have received internationally recognised awards at the start of his/her career. Further, the process of appeal in case of an adverse decision is an expensive process, which a young athlete may not be able to afford. Hence, while the US has a systematic procedure in place for athletes, the practical requirements of immigration law do not provide any incentives for young athletes from developing sports systems.
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