SPORTS IMMIGRATION: Amateurs, College Athletes, and Administrative Staff

NYSBA Entertainment, Arts and Sports Law Journal

Summer 2015 | Vol. 26 | No. 2


This edition of Sports Immigration will focus on the different non-Immigrant visa classifications (NIVs). We begin with a brief overview of where we left off in the previous column.

There are various NIVs applicable to the sports industries,and they include, as stated in our last discussion:

• B…B1/B2—Business/Tourist;¹
• E…E1/E2—Treaty Trader/Investor;²
• F (and OPT)…Student visa (and Optional Practical Training);³
• H…Specialty Occupations;⁴
• L…L1A/B—Intracompany Transferee (Executive/Specialized Knowledge);⁵
• O…O-1A/O-2—Extraordinary Ability/Essential Support Staff;⁶ and
• P…P-1A/P-3—Internationally Recognized Athlete and Essential Support Personnel.⁷

Each one will be discussed briefly, with more emphasis on those that involve little to no work on the part of  the practitioner for one reason or another (B and F), as well as the lesser utilized H. This will allow us to cover these valuable classifications and get them out of the way for lengthier discourse related to the E and L visas, both of which are useful, with the latter being more frequently utilized than the former. Finally, the most utilized and applicable classifications: O and P, will be addressed.

Athletes and Administrators

As we will be touching upon the B, F, and H classifications, it is worth understanding some of the different parties applicable. They are: (1) The athlete and (2) the administrator(s). For clarity and respectively, this to say that the athlete is the individual who employs his or her skills directly before the crowd or judges in the ring, on the field, the mat, the track, the court, or elsewhere, and the administrator is the individual who employs his or her skills behind the scenes or in a way that guides the athlete.

Of the athletes applicable here, we have the amateur and the collegiate, both of whom are accomplished in their own rights, but not yet at the professional level. They are competing in local or regional events that might not garner as much coverage in or out of the industry as those larger professional level events. While the argument could certainly be made that collegiate level sports are watched just as much as professional, as a generality, neither is this true nor can it be said typically that the level of play is the same—and for this, we can take the example of the transition from the National Collegiate Athletic Association (NCAA) Division I football to the National Football League (the NFL), which is often rife with developmental difficulties.⁸

As to the administrators, we are primarily concerned with trainers, coaches, and other like parties who guide the athletes, rather than perform as one. It is with the help of these individuals that the athletes reach their full potential. Administrators guide, challenge, and constantly shape the way the athlete develops and perfects his or her craft. This obviously takes a keen sense of the sport involved, the human body, and a degree of skill that is significantly different from that of the athlete, though no less important. As a result, it follows that these individuals, though possibly working with athletes at the amateur or collegiate level, are less likely to be performing in their own right at such a level when doing so. This means that we may be considering professional coaches, trainers, and the like, in addition to those at a lower skill level.

Having clarified those two sets of individuals, we can move on to the classifications available to each, in alphabetical order of visa classification, beginning with the B.

B-visa Classification–Brief Competitions

There exist two categories of B-status: B-1, which is for Business visitors to the U.S.; and B-2, which is for Tourists to the U.S.

Though most commonly utilized by individuals seeking to enter the U.S. for limited business purposes or merely to travel and sightsee, B-status is great for a young athlete or the “Amateur” who has made it to a competition and needs to enter this country for that purpose.

Though not necessarily either business or tourism, the statute allows an athlete to enter the U.S. in order to engage in the competition within his or her sport.⁹ Now this may evoke a few questions, such as: What if the competition is outside of the athlete’s primary sport; can he or she still enter the U.S. with a B-visa to compete?; and What about the athlete’s parents; would they be permitted to enter in order to observe, cheer on, or help out? Good questions, and the answers are Yes and Yes. Taking the former, so long as it is demonstrated that the athlete is competing in a genuine competition, this will not be an issue. As to the latter, parents would fall under the “tourism” side of the B-visa, making them eligible for a B-2. No issues there either.

A last point about B-classification involves prize money. May an athlete accept prize money should he or she win the competition? As an amateur, no, the athlete may not accept prize monies and awards from having won a competition. This is because the Department of Homeland Security (DHS) and U.S. Citizenship & Immigration Service’s (USCIS) definition of “amateur” is someone who does not get paid for his or her performance, and so it does not allow for prize monies to be accepted.¹⁰

The reason this is one of the lesser valuable visa classifications to the private practitioner is that there is little work for him or her to do. In order to obtain a B visa, the athlete or his or her parents simply fill out online the questionnaire about their own information (e.g., their birth dates, with whom/where they will stay in the U.S. when they arrive, the purpose of their visits, their passport numbers, and so on), upload passport-sized photos, submit them to the Department of State, pay the necessary fees to the embassy or consulate at which they will be interviewing, and schedule their interviews. Then it is simply a matter of showing up to the interviews, being personable and honest, and obtaining approval. The athlete or his or her parents may desire some assistance here because they are simply too busy or find it overwhelming. However, keep in mind that it is less valuable to you in private practice, but can prove to be a gateway to a longterm relationship.

Now, we may move into the next level of the athlete’s career: collegiate competition.

F-visa Classification—Students

The F-visa is intended for the foreign national who seeks to enter the U.S. to engage in an approved course of study at a university. Should athletics accompany that course of study, then the student may certainly play for that college team, and participate in those collegiate level competitions or activities on behalf of his or her university.

There is also an extension of that student status known as Optional Practical Training or “OPT,” which allows the student to work in his or her field of study for one year (or a maximum of 29 months if he or she receives a degree in Science, Technology, Engineering or Mathematics, better known as “STEM”) after graduation. Again, as with the F-visa, this is also processed by the degree-granting university, and so there is next to nothing for the practitioner to do.

The reason this is one of the lesser useful visas to a practitioner is that there is nothing for the private practitioner to do. Universities typically have their own departments in-house that process such visas and work authorizations. The visas are granted by the universities with authority from the DHS.

Worth noting here, though, is that many students and subsequent OPT holders may have questions about what they may or may not do while under F-status or while holding employment authorization under an OPT. As a result, it may come up in conversation or during a consultation with an athlete or parents, and so it is worth keeping in mind that it exists as an option.

Now, we transition to our last topic here, the H-visa and administrators.

H-visa Classification—Specialty Skill

The specific category of H-status that we will be discussing is known as H-1B.

With that, we have what is likely to be valuable to a coach, manager, statistician, trainer, medical professional, and many other off-the-field positions in athletics.

The reason for this is that in order for an individual to qualify for H-1B status, he or she must have a bachelor’s degree or equivalent, or enough work experience to equate to a four-year degree, and the degree must relate to the position offered.

For a coach, this is not likely to come into play, because demonstrating that a coach needs a four-year degree to perform as such, though requiring significant skill, may prove quite difficult. Of course, this is not always the situation, so be mindful of this as an option for a coach.

For a statistician, however, an H-1B would be a perfect fit. A statistician may arise in the case of baseball—think Moneyball, or perhaps with respect to horse racing.

Additionally, a trainer or medical professional, who may serve similar functions depending on the sport, could very well qualify for an H-1B based upon the requirement of a bachelor’s degree or equivalent. The key consideration here is that the position must require someone with a bachelor’s degree or equivalent, which is quite possible for such a role.

Other aspects of the H-1B have been discussed at length and need not be re-evaluated here to avoid redundancies.¹¹

For these reasons, the H-visa is not tremendously valuable to the practitioner working with athletes and other individuals in sports. However, the important point to take away from this overview is that there are some positions in the sports industries that may very well fall within the realm of H-status, but the key consideration at the outset is to evaluate if a bachelor’s degree or equivalent is necessary for that potential position.

Conclusion

With that, the discussion closes of some of the less useful, but still important, visa classifications for the sports attorney. The next installment of “Sports Immigration” will take up some of those more common classifications ever so briefly, and cover the chief classifications: O and P.

Endnotes

  1. United States Citizenship and Immigration Services, Temporary Visitors for Business, available at http://www.uscis.gov/working-united-states/temporary-visitors-business.
  2. United States Citizenship and Immigration Services, E-1 Treaty Traders, available at http://www.uscis.gov/working-united-states/temporary-workers/e-1-treaty-traders; E-2 Treaty Investors, http://www.uscis.gov/working-united-states/temporary-workers/e-2-treaty-investors.
  3. United States Citizenship and Immigration Services, Students and Exchange Visitors, available at http://www.uscis.gov/working-united-states/students-and-exchange-visitors.
  4. United States Citizenship and Immigration Services, H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models, available at http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models.
  5. United States Citizenship and Immigration Services, L-1A Intracompany Transferee Executive or Manager, available at http://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager; L-1B Intracompany Transferee Specialized Knowledge, http://www.uscis.gov/working-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge.
  6. United States Citizenship and Immigration Services, O-1 Visa: Individuals with Extraordinary Ability or Achievement, available at http://www.uscis.gov/working-united-states/temporary-workers/o-1-individuals-extraordinary-ability-or-achievement/o-1-visa-individuals-extraordinary-ability-or-achievement.
  7. United States Citizenship and Immigration Services, P-1A Internationally Recognized Athlete, available at http://www.uscis.gov/working-united-states/temporary-workers/p-1a-internationally-recognized-athlete; United States Citizenship and Immigration Services, P-3 Artist or Entertainer Coming to Be Part of a Culturally Unique Program, available at http://www.uscis.gov/working-united-states/temporary-workers/p-3-artist-or-entertainer-part-culturally-unique-program/p-3-artist-or-entertainer-coming-be-part-culturally-unique-program.
  8. Of course, there are always exceptions to the rule, as is the case with most anything other than a scientific proof. There will always be athletes who surpass their peers and rise to the professional level more swiftly, perhaps without much delay, but overall, as a general rule, to play at the collegiate level requires a lesser level of skill than required to play at the professional level.
  9. 8 C.F.R. § 41.31(b)(2), with clarifying statements at 9 FAM 41.31 N13.7, Amateur Entertainers and Athletes, available at http://www.state.gov/documents/organization/87206.pdf. As printed in the U.S. Department of State’s Foreign Affairs Manual: A person who is an amateur in an entertainment or athletic activity is, by definition, not a member of any of the profession associated with that activity. An amateur is someone who normally performs without remuneration (other than an allotment for expenses). A performer who is normally compensated for performing cannot qualify for a B-2 visa based on this note, even if the performer does not make a living at performing, or agrees to perform in the United States without compensation. Thus, an amateur (or group of amateurs) who will not be paid for performances and will perform in a social and/or charitable context or as a competitor in a talent show, contest, or athletic event is eligible for B-2 classification, even if the incidental expenses associated with the visit are reimbursed.
  10. Id.
  11. See our previous installments that covered the aspects of H-1B in more detail. EASL Journal, Spring 2014, Vol. 25, No. 1, pp. 13-15.

Article originally written in Entertainment, Arts and Sports Law Journal and is republished here with permission from NYSBA.

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