Friday, October 7, 2011

Another Case of Assumed Identity in Major League Baseball

Major League Baseball has acquired a reputation for having foreign players with questionable identity documents. We previously reported on the case of Miguel Tejada, who has been able to avoid immigration consequences despite some questions regarding his stated age. The recent case of Juan Carlos Oviedo, also known as Leo Nunez, presents another interesting example.

Juan Carlos Oviedo, also known as Leo Nunez, played Major League Baseball in the United States for 10 years, before returning to his country of citizenship, Dominican Republic, and answering to charges against him under his actual name. Nunez/Oviedo has been placed on MLB's restricted list.

An writer presents the issue in the following way:

Juan Carlos Oviedo, also known as Leo Nunez, would've made nearly $6 million next season. Would you fake your name and age for that kind of money?. . . if he's able to resolve his legal issues in the Dominican Republic, I'm not convinced he should face a harsh punishment from MLB.

What is missing is the very real prospect that Oviedo may be barred from returning to the United States altogether. While the exact details are murky, the allegation is that he came to the United States with falsified documents. Under the Immigration and Nationality Act § 212(a)(6)(C)(i), "[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act" is inadmissible. An immigration officer might well find Oviedo's actual name and age to have been "material facts" within the context of his prior admission to the United States. If barred, he might be able to avail of a fraud waiver under INA § 212(i), which requires proof of extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.

Wednesday, June 1, 2011

Canadian Lacrosse Players Encounter Work Authorization Delays

Major League Lacrosse (MLL) recently drafted two star Canadians rookies, Kevin Crowley and Jordan McBride, who have been delayed from starting play due to the adjudication of their P-1 visa petitions.

“We’re working on that,” Nationals coach Regy Thorpe said Wednesday when asked if Crowley would be available for Thursday’s game. “He was available last week, but there are some issues on us working out the visa stuff, logistic stuff that was kind of out of our control. We’re hoping to have him for tomorrow night.”

Interestingly, both Crowley and McBride just finished their studies as F-1 students at Stony Brook University in New York. Those knowledgeable about immigration law may be cognizant of the fact that F-1 students are typically entitled to at least 1 year of post-completion Optional Practical Training (OPT), or work authorization. One might ask, why didn't Crowley and McBride play for the MLL using their OPT authorization? The answer is, OPT regulations mandate that the new job "must be directly related to the student’s major area of study." Presumably neither Crowley nor McBride majored in "Lacrosse" while at Stony Brook, despite their likely dedication to the sport as student-athletes. An open question is, would majoring in "Sports Science", "Kinesiology" or "Exercise Science" entitle a student to utilize F-1 OPT work authorization to play professional sports?

Monday, April 4, 2011

Pele Receives O-1 Visa Through Revived New York Cosmos

In the 1970's, the New York Cosmos soccer team was the keystone of the fledgling North American Soccer League (NASL). The NASL eventually disbanded in 1984 after a decade-long run. The Cosmos was known for employing world famous soccer players, including Brazilian legend Edson Arantes do Nascimento (better known as "Pele").

Certain promoters have revitalized the New York Cosmos club, with the hopes of having it join Major League Soccer within a couple of years. As with its prior iteration, the Cosmos will once again have Pele on staff, albeit not in a playing capacity.

“The Cosmos are back!” old boy Pele enthused in August, when the would-be club’s directors announced the Brazilian icon, world football’s one and only O Rei, as honorary president.
The Cosmos recently acquired an O-1 visa on behalf of Pele for his administrative role in the new Cosmos team. The O-1 is a nonimmigrant visa for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics.

Friday, February 18, 2011

Controversy Regarding Star High School Basketball Player's Immigration Status

The foreign nationality of a top-ranked high school basketball player is renewing the debate about immigration as it relates to young athletes.

Brian Delancy, a native from the Bahamas, plays for the top-ranked basketball team of Miami's Michael M. Krop Sr. High. The Florida High School Athletic Association (FHSAA) has attempted to disqualify Delancy and retroactively forfeit his team's wins because Krop High School apparently did not register with the FHSAA regarding Delancy's immigration status. Delancy's lawyers have filed a discrimination suit against FHSAA.

Goldfarb also represents two other Krop players. He argues by law, the school cannot ask the students to provide immigration paperwork, therefore a student athletic association should not force a student to provide it either. "It's right there in the Florida constitution: You don't have to show your status in the Florida constitution. You have the right to a good public education."

The F-1 regulations impose numerous burdensome recordkeeping and reimbursement restrictions on public high schools with foreign students. However, those regulations say little about a state athletics association's eligibility for student-athletes' immigration information.

Saturday, January 22, 2011

The Effects of Lockouts on the Immigration Status of NFL and NBA Athletes

The sports world is abuzz with anticipation that both the NFL as well as the NBA are possibly (even probably) headed towards lockouts in the near future. In essence, the anticipated lockouts are the result of a faltering economy and dwindling professional sports revenues. Management seeks to institute cost-cutting measures while players wish to avoid loss of benefits or reductions in guaranteed salaries.

One issue that has not been discussed in the media is what effect lockouts would have on the immigration status of nonimmigrant athletes. The vast majority of international athletes derive immigration status from the "Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry (COMPETE) Act" of 2006, which facilitates the issuance of P-1 visas to major league athletes. As always, athletes at the upper echelons of their respective sports may qualify for O-1 visas as Aliens of Extraordinary Ability.

Employment-based visas tie the alien's status to continued employment. Actual payment for services is one of the best means of demonstrating the maintenance of a continued employment relationship, which itself connotes continued maintenance of immigration status. This raises the question: what happens to the status of major league players during a lockout? Would the affected athlete be required to return to his/her home country until the end of the lockout?

The answer to the question may be found in the USCIS's regulations. The applicable regulation for P-1 athletes states the following:
(16) Effect of a strike --

(iii) If the alien has already commenced employment in the United States under an approved petition and is participating in a strike or labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Secretary of Labor, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers but is subject to the following terms and conditions:

(A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated thereunder in the same manner as all other P nonimmigrant aliens;

(B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and

(C) Although participation by a P nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for deportation, an alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired, will be subject to deportation.

8 C.F.R.
§ 214.2(p)(16)(iii) (2010).

A similar regulation covers O-1 employees: 8 C.F.R. § 214.2(o)(14)(iii) (2010). The consequence of the regulation is that the current immigration status of a P-1 or O-1 athlete is protected during a lockout. However, if the athlete's status is expiring and due for extension during a lockout period, his/her continued status will be in jeopardy. Even if the team were amenable to filing an extension petition (unlikely during a lockout), such a petition would most likely be denied. A filing during a lockout is questionable because it is difficult to argue that the requisite employment relationship continues to exist. Furthermore, the regulations require petition denial where "the Secretary of Labor certifies the existence of a lockout condition that would adversely affect the wages of US citizens." 8 C.F.R. § 214.2(o)(14)(i), 214.2(p)(16)(i).

Similarly, an athlete needing to travel overseas maybe find it difficult to return for the same reason. 9 FAM 41.55 N7 and 9 FAM 41.56 N5 preclude the Department of State from issuing O-1 or P-1 visas where a certified lockout condition exists. Athletes with existing P-1 or O-1 visa stamps in their passport may find travel less difficult, as the only requirement to return to the US is passing through Customs and Border Protection with the existing visa stamp.
However, in today's anti-immigration climate, it is quite conceivable for even high-profile athletes to run into difficult questions at ports of entry.