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."

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.