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."

The Under-recognized Connection Between Jeremy Lin and Immigration Policy

Harvard Economics graduate Jeremy Lin has taken the basketball world by storm. Lin received no Division 1 scholarships despite leading Palo Alto High School to the California state championship (Harvard gives athletes ample "financial aid" but no scholarships). The Ivy League has sent dozens of players to the NBA over the years (such as Hall of Famer Bill Bradley), but Lin went un-drafted despite a stellar collegiate career.

Despite being labeled as a Division III player at best before he had played his first college game, Lin ended his college career as the first player in Ivy League history to record 1,483 points, 487 rebounds, 406 assists and 225 steals over a career.

Lin showed flashes of brilliance in NBA summer league play but was relegated to the bench. His recent success with the New York Knicks has all the hallmarks of a quintessential All-American sports story (a la Rocky or Rudy).

As David Leopold, past president of the American Immigration Lawyers Association (AILA) recently noted, Lin's remarkable story would not have been possible if immigration restrictionists (some of whom wish to end all immigration whatsoever, legal or otherwise) were able to set policy.

[I]f the restrictionists had their way his story would not be possible and America would lose out, just as it does when it closes its doors to those seeking the American dream who, over the course of American history, have helped make this country the greatest country in the world.

A favorable immigration policy can benefit the United States in multifarious sectors, sports included.

NBA Lockout Still Having Immigration Effects

An O or P petition cannot be filed where a DOL-certified strike or lockout condition exists. As we discussed earlier, O and P nonimmigrants already in the US during a strike or lockout have some interim benefits, but rookies and veterans filing new petitions may not file until the work stoppage is over.

Now that the NBA lockout is over, players are once again able to file O and P petitions. However, the abrupt nature in which the lockout ended has caught some players off guard. For instance, rookie guard Cory Joseph has had his start with San Antonio Spurs delayed.

In a normal NBA season Joseph, a Canadian, would have applied to the U.S. Citizenship and Immigration Service for a U.S. work visa after the Spurs drafted him in June, with the expectation he would be signed to a contract during the summer. That expectation ended when the NBA locked out its players on July 1, meaning Joseph couldn’t apply for the visa until the lockout was lifted.

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 ESPN.com 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.

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?

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.

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.