Unionization Push for NCAA Student Athletes Could Have Unintended Consequences

The Dartmouth men’s basketball team’s recently filed a unionization petition, which, if granted, would convert these student-athletes into university employees.  This conversion may have unintended consequences for international students on the Dartmouth team.

Those students are in the country on F-1 status, which permits on-campus employment of up to 20 hours per week.  However, by their own admission, the basketball players spend almost 40 hours per week on Division 1 college basketball activities (i.e., practicing, strength training, games, travel, etc.).

“I am committed to 35 hours a week, 11 months a year athletic training, and competing while managing the rigorous Ivy League academic course load,” wrote Neskovic, a senior at Dartmouth, who is one of four international students currently on the Big Green’s men’s basketball roster.

Thus, the union bid may inadvertently lead to the foreign athletes losing status.  As this article explains, other visa options such as P-1 and O-1 may not be readily available for them.  

The O-1 category is difficult and reserved for athletes at the highest level (i.e., the NBA, not college athletes).  Chances are likely higher with the P-1 category, although the league that the Dartmouth players compete in (i.e., the mid-to-low level Division 1 Ivy League) may not meet the P-1 requirement of being a "distinguished" event.  Another option for full-time employment, Curricular Practical Training (CPT) seems inapplicable as CPT studies need to relate to the student's course of study.  Basketball matches, though well-integrated into the typical college's social scene, are not academic endeavors.  Thus, the students may ironically be better off as remaining as students and not employees.

For decades, the NCAA has staunchly defended its position that student-athletes must not be paid.  Over the years, countless student-athletes have lost their eligibility due to compensation received or suspected, whether large or small in amount.  In a historic unanimous decision, the Supreme Court decided in NCAA v. Alston that the NCAA's compensation restrictions violated antitrust laws.  In response, the NCAA implemented a new policy allowing student-athletes to receive compensation for endorsing companies or products based on their name, image or likeness (NIL).

While this is welcome news for high-profile athletes who are US citizens or Lawful Permanent Residents (LPR), international students need to be cautious about accepting endorsement deals.  According to NCAA data, nearly 13% of Division I athletes and 7% of Division II athletes were from overseas in 2020.  F-1 regulations contain strict limitations on when a student can work (i.e., receive compensation for employment).  Options for employment include on-campus, off-campus, post-completion OPT (optional practical training), STEM OPT, and Curricular Practical Training (CPT).

As noted in this article on Insider.com, 

"When legislation establishing payment for student-athletes is passed, it changes a foreign athlete's visa classification from student to paid employee," Seiger told Insider. "This creates huge potential for conflict between students, schools, and the federal government." 

Foreign students who are lucky enough to have the option of being endorsed should check with their university's Designated School Official (DSO) before accepting an endorsement deal.

New Guidance from USCIS on P-1A Internationally Recognized Athletes

 USCIS has issued guidance to clarify certain lingering uncertainties about how P-1A petitions are processed.  The P-1A nonimmigrant visa classification is available, in part, to a person who performs, individually or as part of a team, as an athlete at an “internationally recognized level of performance." 

The new guidance:

• Clarifies that the regulatory phrase “major United States sports league” at 8 CFR 214.2(p)(4)(ii)(B) is interpreted to mean one that has a distinguished reputation commensurate with an internationally recognized level of performance, and “major United States sports team” means a team that participates in such a league.
• Describes non-exhaustive examples of information and evidence relevant to evaluating whether an entity is a “major United States sports league or team” for the purpose of adjudicating P-1A petitions for internationally recognized athletes or teams.
• Explains how to evaluate whether events or competitions have a distinguished reputation and are at an internationally recognized level of performance. 

The full text of the guidance can be found in the USCIS Policy Manual.

Cirque du Soleil Performers on P-1 Visas Impacted by COVID-19 Pandemic

 The COVID-19 pandemic has wreaked havoc across the world and all industries are impacted.  The circus industry is no exception.  A recent article in the Las Vegas Review-Journal describes the difficulties faced by Las Vegas-based Cirque du Soleil performers, many of whom are in the country on P-1 visas, as athletes who are part of a group or team that performs at an internationally recognized level of performance.  

The article describes how the Las Vegas entertainment industry shut down operations in mid-March due to the pandemic.  While the article is not specific, its descriptions of the financial struggles suffered by the performers suggests that Cirque du Soleil furloughed or terminated its employees.

Since continued maintenance of P-1 visa status is tied to ongoing employment (and timely payment), some of the foreign national performers in the troupe were forced to leave the country.  At this point, P-1 athletes impacted by the pandemic are looking towards its quick resolution just like everyone else:

For now, the question remains: When will Cirque du Soleil return and who will operate the circus extravaganza in a new post-COVID-19 world?

“Your guess is as good as mine,” Nickel said.

In their case, resolution of the COVID-19 crisis is important not just for health reasons but also to safeguard their ability to stay and work in the country.

Cuban Soccer Player Competes in the U.S. On P-1 Athlete Visa

Other the last 6 decades, the sports pages have been littered with stories of Cuban athletes defecting to the United States to participate in sports in this country.  This is an often-dangerous route, and typically involves the athlete turning his/her back on loved ones in Cuba.  Soccer player Luis Paradela has decided to take a more conventional (for non-Cubans) route to playing in the United States: applying for a P-1 visa.

Paradela is believed to be the only Cuban athlete in 60 years to join a U.S. sports team on a visa.

The unusual nature of the visa application was probably not lost on immigration officials, who likely issued a cumbersome Request for Evidence (RFE) in Paradela's case, resulting in longer than the usual 15 day timeframe that applies for petition approval under premium processing (which is how most P-1 petitions are filed).

Typically, an athlete arriving from abroad must wait two or three weeks for visa approval. In Paradela’s case, it took about three months.  

By choosing to pursue a nonimmigrant visa, Paradela remains eligible to compete as part of the Cuban national soccer team.

Cross-Fit Athlete's Visa Troubles Highlight ESTA v. B-1 Dilemma

The CrossFit Games is a fitness competition in which athletes from around the world compete for the title of “Fittest on Earth”.  Alexander Anasagasti, Spain’s top CrossFit athlete, has been issued a B-1 visa after initially being refused.

The problem arose because last year, when Anasagasti travelled to the US to train, he applied for a tourist visa that was longer than the Electronic System for Travel Authorisation (ESTA) form would allow him to stay. The disconnect meant his visa was rejected and the ESTA was revoked as a result. The sanction remained in place when he applied again this year.

As a Spanish citizen, Anasagasti was eligible to enter the United States through the fast-track ESTA program, which is an automated system that generally allows most eligible applicants to enter the country.  ESTA is the screening system through which foreign nationals can enter the United States under the Visa Waiver program.  Visa Waiver is available to nationals from certain generally-affluent countries, and allows entry as a tourist without applying for a tourist visa.

In contrast, the B (tourst) visa is one of the most difficult visas to procure.  One drawback of ESTA is that it only allows entry for up to 90 days at a time.  For this reason Anasagasti chose to apply for a tourist visa.  Unfortunately, his tourist visa was denied, which also led to the denial of his ESTA authorization (per the norm).  Luckily for Anasagasti, he posted about his plight and was successful when he reapplied for a tourist visa, thereby allowing him to compete in the CrossFit Games.  This episode shows that when entry using ESTA is possible and appropriate, it is often preferred to applying for a tourist visa.

USCIS Now Accepting Copies of Negative O Visa Consultations Directly from Labor Unions

The O-1 visa is set aside for individuals with extraordinary ability in science, education, business, athletics, or the arts, and individuals with extraordinary achievement in the motion picture or television industry.  One filing requirement for O-1 cases is that the petitioner must submit an advisory opinion from a labor union in the field in which the O-1 nonimmigrant will practice.  For instance, a professional basketball player filing an O-1 must first obtain an advisory opinion from the National Basketball Players Association, a union advocating for professional basketball players.

While obtaining a negative opinion from a labor union is not an automatic bar to acquiring O-1 status, such an opinion might make a particular filing more challenging.

An O-1 petitioner will procure an opinion directly from the concerned union, and then submit it to USCIS as part of the O-1 filing.  USCIS is now slightly amending that process to address ostensible fraud in the industry:

Director L. Francis Cissna recently met with several labor unions to discuss concerns they had with the consultation process for O visa petitions, in particular that some advisory opinions may be falsified by petitioners and submitted to USCIS as no-objections or favorable consultations, when in fact these were negative. The labor unions will now be able to send a copy of a negative consultation letter to USCIS so that it can be compared to the consultation letter submitted to USCIS by the petitioner.

This latest move should not have any negative impact on legitimate filings where documents have not been doctored.  The change is in direct response to the arrest of an immigration attorney for fabricating dozens of O-1 non-objection letters from labor unions.