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.
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