NBA Player Mac Koshwal's Visa Troubles

A recent story in the Newark Star Ledger follows the visa travails of Sudanese basketball player Mac Koshwal.  The story touches on the mental suffering that even top-level athletes face in finding a way to stay and work in the United States. Koshwal is fighting for a roster spot on the NBA's Philadelphia 76ers or the NBDL's Delaware 87ers.  His challenge to stay and work in the country is particularly acute because of how few professional basketball jobs exist in the US. 

Of course, in some ways his story is no different from other employment-based nonimmigrants (like H-1B professionals or L-1 intercompany transferees) whose right to stay in the United States is also tied to ongoing employment.  On the other hand, a computer professional with average skills in the industry could rather easily find an employer willing to sponsor his/her H-1B visa.  In contrast, being NBA-caliber, Koshwal is clearly in the top 1% among basketball players in the country.  Even so, if he fails to make an NBA or NBDL team, he would no longer have eligibility for an O or P visa, and would most likely have no basis to stay in the USA.

The article does make one puzzling claim: that Koshwal could not play in foreign countries.

Koshwal said he got help from the NBA in his quest to obtain a work visa, something that he finally received three months ago after a two-year battle. According to Koshwal, however, that visa does not apply to other countries, however. Meaning that unlike players like Blue, Wyatt and Thompson who could go potentially go overseas should things not work out in Philadelphia, Koshwal said he does not have that option. 

Each country has its own visa procedures, and the inability to secure a US work visa does not preclude acquiring a work visa in another country - say Spain or Greece - which also features top-level basketball leagues that could employ Koshwal.

Competitive Video Gaming Recognized by USCIS as "Athletic Competition" for P-1A Purposes

The P-1A visa allows foreign athletes to come to the United States temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.

Until now, the common understanding was that this visa was only available for "traditional" sports like baseball, soccer, track and the like.  However, the USCIS has expressed what seems like a willingness to consider a broad range of competitive activities as "athletic" in nature.

The Service recently issued a P-1A visa to Danny "Shiptur" Le, a Canadian citizen who plays the League of Legends video game.

Last month’s decision, which places e-sports at an equivalent level as those sports played upon a field [] at least in terms of international travel, has been described as a “watershed” moment for the U.S. Competitive Teams in gaming contests.

What remains to be seen is if the approval in this case actually means that online gaming will be considered an eligible athletic category under the P-1A category across the board, or if this approval was merely an anomaly. 

Canada: a Recruiting Ground for Top International Basketball Talent

The current best high school basketball player in the world is not from the United States.  Andrew Wiggins hails from Canada, a country better known for producing top hockey talent.  An article on his success as a cross-border phenom highlights a route that many international basketball players are taking in order to make the NBA.

Wiggins is following the path several of his countrymen — hone your skills in Canada's ever-improving youth programs, play at a U.S. prep school and earn a scholarship to one of America's best college basketball programs.

Apparently, Canada is increasingly becoming a destination of choice for aspiring basketball players from outside North America.

The rise in basketball stars dates back to the late 1970s when Canada loosened its restrictions on immigrants. The country saw an influx of African and Caribbean immigrants, and many of today's top players come from those bloodlines. . . . "If you're an African kid from Nigeria or some place like that, you can't get an American visa," Francis said. "So you go to Canada where there's kind of a pipeline, and that's how you get to the United States.

The independent documentary Elevate sheds light on this basketball recruiting pipeline.  The movie follows several top Senegalese basketball players, from their training at the prestigious SEEDS Academy in Dakar to their careers as standout basketball players at prestigious prep schools in the United States.  In one particularly poignant scene in the movie, a rising star point guard in Senegal is denied an F-1 visa to play for a high school in the United States.  As per routine at US Consulates, no reason is properly conveyed for the denial, and the player's dreams of leaving his country to play overseas are heart-wrenchingly stymied (although he later gets another visa).  Presumably, the player was rejected under INA section 214(b), which is the most common reason for visa denial.  Under 214(b), most nonimmigrant visa applicants must demonstrate that they lack the intent to stay in the United States permanently, and young basketball players facing opportunities for education and possibly a basketball career in the United States may find it difficult to demonstrate sufficiently strong ties to the home country that will compel them to leave the United States.

As U.S. immigration policy continues to restrict access to talented, aspiring athletes from overseas, it appears that an increasing number of such athletes are making their way to Canada instead.

Federal Court Rejects Table Tennis Star's EB-1 "Extraordinary Ability" Immigrant Visa

EB-1 "Extraordinary Ability" is an immigrant visa ("green card") category for an athlete having extraordinary ability "which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation."  INA § 203(b)(1)(A)(i).  The phrase "national or international acclaim" suggests that foreign athletes who are not one of the best in the world can still qualify provided that they are at the elite level in their home country.  In the past, USCIS has generally been amenable to this interpretation.

However, the federal court for the Southern District of New York has recently taken a very strict interpretation of the EB-1 statute.  Iranian table tennis player Afshin Noroozi, 27, applied for an EB-1 visa on the basis that he had extraordinary ability in table tennis, having finished 65th at the 2008 Olympics and gaining a world ranking of 284th. Noroozi was the first table tennis Olympian from Iran, demonstrating obvious national-level acclaim.  Nevertheless, the court upheld USCIS's denial of Noroozi's EB-1 petition.  

A finding in Noroozi’s favor would effectively oblige the immigration service to grant extraordinary ability visas to every one of the international table tennis players ranked ahead of him, along with the top 284 performers (minus Americans) in every other sport, (District Court Judge) Engelmayer wrote. 

This "slippery slope" reasoning has been deployed before to greatly restrict the number of L-1B specialized knowledge petitions approved by USCIS.  We now see this unfortunate trend expanding into the EB-1 arena.  The Noroozi decision further highlights the need to fully document and make persuasive arguments in EB-1 filings.

Visa Difficulties for H-2B Horse Trainers

Like many other industries, the horse racing industry relies heavily on foreign workers.  An article on thoroughbred trainers highlights the difficulties that their employers now face in procuring H-2B visas due to a shift in interpretive policy at the USCIS. Increased scrutiny has caused hardship not only for the affected H-2B trainers but also their employers.

The U.S. government used to say the workers met the standards of “seasonal” and “temporary” because the same trainer needed them in different locations at distinct times of the year.

Now, the government is ruling that they are year-round employees. Trainers must file separate visa applications for each worker at each meet.

This is one example of many whereby USCIS has made the process of procuring a visa more difficult, even in cases where existing regulations and statutes have not changed.

Is Making the Olympics Easier than Getting US Citizenship?

The answer to the above question is clearly no.  However, an interesting story in the National Journal highlights the immigration difficulties that are often faced by foreign-born Olympic athletes representing the United States.

For some, obtaining their citizenship has been one of the most challenging parts of participating in the Olympics. Russian-born Mariya Koroleva qualified for the national synchronized swimming team after she got her U.S. citizenship. She has said that the hardest part of participating in the Olympics was awaiting confirmation of citizenship.

More than 40 of the nearly 600 athletes representing the United States are foreign-born.  These naturalized athletes likely took various paths to obtaining a green card (a precursor to naturalization).  Being Olympic-level athletes, many likely were able to obtain green cards as EB-1 extraordinary abilities athletes.  Others may have taken more conventional routes, such as family-based sponsorship or the diversity lottery.

The article reports that over a dozen naturalized Asian Americans are representing the US in the Games, although that number is probably an underestimate.

Mid-Level Professional Runners Stuck Between the B and P Visas

ESPN recently provided a nice summary of the difficulties that mid-level marathon runners face in entering the United States to compete in races.

"Visa procedures for foreign artists and performers have grown increasingly labyrinthine, expensive and arbitrary, arts presenters and immigration lawyers say, making the system a serious impediment to cultural exchanges with the rest of the world."

While virtually any visa applicant can face difficulties in gaining admittance to the United States, elite runners have a relatively easier time in entering U.S. races than do mid-level runners.  Elite runners can qualify under the P-1 or O-1 visa, which require a certain level of acclaim in the field.  Unfortunately, mid-level runner may find it difficult to qualify under these visas, and must therefore rely on the B-1 visa.

This presents a difficult Catch-22 situation as the B-1 visa disallows any kind of compensation or remuneration other than prize money.  Here is the relevant portion of B-1 visa regulations as listed in the Department of State's Foreign Affairs Manual, which controls visa decisions by consular officers.

9 FAM 41.31 N9.4  Professional Athletes

a.  Professional athletes, such as golfers and auto racers, who receive no salary or payment other than prize money for his or her participation in a tournament or sporting event.

Not every competitor can win prize money, so funding trips to the United States simply on that basis becomes a difficult proposition for mid-level foreign athletes, many of who are of limited financial means.

"It's a tough ask for someone who lives in a village where there's no electricity to pay their own way," Turnbull says. "But if I want to help these athletes out as a promoter, I can't do it. There can't be an exchange of finances."