How Immigration Got It Wrong For Individual Athletes
For decades, aspiring young foreign athletes who excelled in individual sports and had just graduated from a U.S. university would obtain P-1 visas for internationally recognized athletes to compete as professional athletes on a specific tour in the U.S. Many were highly ranked amateurs with experience playing at their university and in international competitions on their national team. The 1994 regulations of U.S. Citizenship and Immigration Services (USCIS) only require you to show you meet 2 of 7 possible evidentiary criteria to establish you are “internationally recognized”. Interestingly, some of these include significant participation with a U.S. university, competition on a national team, achievement of a significant award and a ranking in the sport, among others. Thus, many excellent college athletes could readily establish they were “internationally recognized."
From the time this visa category was created in 1990 and the regulations were promulgated in 1994, these young athletes would apply for and receive P-1 visas immediately after graduation when they turned pro. Due to tour logistics making it impossible to immediately have eligibility on a major tour, they would hone their skills on lesser tours before qualifying for a major tour.
Then suddenly in 2014, an existing regulation that had never been applied raised its ugly head and UCIS adjudicators began applying it in a manner that resulted in the denial of P-1 filings for recent graduates in this situation. The regulation said that not only must you be an internationally recognized athlete under the above-referenced criteria, but also that:
The athlete or team must be coming to the United States to participate in an athletic competition that has a distinguished reputation and which requires participation of an athlete or athletic team that has an international reputation [emphasis supplied].
Although the Department of State has no such requirement in its regulations and the law itself imposed no such requirement when enacted in 1990 and still has no such requirement, nevertheless, USCIS began applying it strictly in 2014 in a way that prevented these athletes from receiving P-1 visas.
Shortly after the 1994 regulations were issued, the leading legal treatise in the field criticized this regulation saying:
Moreover, the services to be performed must require an “internationally recognized” athlete or athletic team, which athlete or team must be coming to the U.S. “to participate in an athletic competition which has a distinguished reputation and which requires participation of an athlete or athletic team that has an international reputation.” Because it lacked a statutory basis, the INS [the USCIS predecessor] eliminated an analogous requirement in the O-1 regulations that the position itself require an alien of extraordinary ability. There is no apparent statutory basis for this requirement in the P-1 context [emphasis supplied].
In order to illustrate how this works in the golf context, you must visualize USCIS drawing an arbitrary line under the Web.com Tour for men and the Symetra Tour for women without explanation and saying that any golf tours below those tours simply do not require athletes with an international reputation.
The absurdity of this logic given the lack of any support in the law or in the real world has not been missed by some of the leading academics in the field of sports. Dr. Jaime R. DeLuca, Assistant Professor of Sport Management at Towson University states, “… the single consistent and defining criterion athletic enterprises consider when deciding an individual’s eligibility for participation is the level of that particular individual’s athletic talent… By requiring players to possess a certain level of athletic skill, professional athletic enterprises seek to ensure a high level of competition, and thus, a high level of entertainment for fans.” She goes on to refute the USCIS regulation, saying, “USCIS appears to be attempting to create a standard for determining eligibility. However, such an interpretation is, in my opinion, based on a misunderstanding of how professional athletic enterprises determine their participants’ eligibility. To the best of my knowledge, no professional sports programs, tours or leagues require athletes to be ‘internationally recognized’ in order to be eligible for participation [emphasis supplied]… The interpretation thus does not follow existing industry standards, and in that sense, appears to lack a basis in practice.”
Well known sports law professor, Gabe Feldman, Director of the Tulane University Sports Law Program, states, “I am not aware of any sports teams, leagues, tours, or competitions that require that its participants have an international reputation. Sporting competitions, including domestic sports leagues, benefit from participation from the best athletes in the world — whether they have vast international experience or have yet to compete outside of their respective countries” [emphasis supplied]. He concludes by saying, “I believe that the current interpretation of the regulation will be counterproductive and ultimately harmful to sports leagues, competitions, and athletes in the United States.”
Jeffrey T. Reel, Vice President & General Counsel of the ATP World Tour emphatically states, “NO team, league, tour, competition or sport of which I am aware imposes such a requirement”, referencing the USCIS interpretation that the sport must require athletes with international reputations [emphasis supplied]. He further states, “Rather, all U.S. sports benefit from having the best athletes in the world competing in them, including top ranked recent graduates of U.S. universities and those who have represented their countries in international competition. Their participation increases international interest in these sports, thereby increasing revenue and sponsorships.”
Given the lack of support in the law and the adamant disagreement with the USCIS interpretation by leading academics and legal experts in the field of sports, it is incumbent upon USCIS to eliminate this regulation that is having a detrimental impact on U.S. leagues, tours, sports and individual young athletes and fans.
*Steven M. Ladik is past President of the American Immigration Lawyers Association and represents numerous professional golfers on the LPGA Tour and PGA TOUR. He also serves as the outside Immigration Counsel to the National Football League. He is a Partner at Seltzer Chadwick Soefje & Ladik, PLLC. www.realclearcounsel.com