A Look at the Visa System and Problems Encountered by International Athletes

INTRODUCTION

Over the past several decades, the major sports associations of the United States have become as multi-cultural as the United States itself.  For decades, international sports stars have increasingly sought to improve their skills, by competing in the internationally renowned sports associations of the United States.  This desire to play in the United States has been bolstered by the extremely competitive nature of the sports associations themselves.  The teams of the major sports associations have a never ending goal of building championship caliber teams, and the addition of international sports stars to the pool of talent, allows these teams to compete for some of the best sports players in the world.  At the start of the most recent seasons among the professional sports associations, international players accounted for a record 84 players in the National Basketball Association (NBA), approximately twenty-seven percent of all Major League Baseball (MLB) players,and approximately seventy-nine percent of all National Hockey League (NHL) players.Not only has the percentage of foreign born players been ever increasing, some foreign born players have risen to the level of being the premiere athletes in their given sports association.  Over the last ten seasons, out of a possible thirty-nine Most Valuable Player awards given in the three aforementioned sports associations,twenty have been given international players.

Despite this globalization of the major sports associations in the United States, as well as legislation allowing international sports stars to obtain the newly added O and P type visas in order to work in the United States., internationals players are not without their obstacles.  Prior to 1990,no official categories of visas were specifically tailored to professional athletes and entertainers. Upon realizing the international interest in competing in the major sports associations, as well as the entertainment industry in the United States, Congress enacted the Immigration Act of 1990 to provide international athletes a more effective way of entering the United States to compete.  The Immigration Act created two new categories of visas specifically granted to international athletes and entertainers; the O and P type visas.

While these additional visa types did solve some of the problems which international athletes encountered in attempting to enter the United States to compete, international athletes still face many challenges to not only obtaining work visas, but also working freely in the United States without disruption of some kind. Recent legislation enacted in states such as Arizona, as well as similar proposed legislation in other states, has caused some in the international sports community to be concerned that these controversial types of legislation will make it more difficult to obtain work visas, as well as work in the United States.  Further, international athletes who are invited to be members of some of the minor league sports associations face problems with showing that they are professional athletes under the O and P type visas, and are typically required to file for a less favorable visa type, the H-2B visa. In order to iron out some of the issues with the O and P type visas that resulted from the initial Immigration Act, Congress enacted amendments to the Immigration Act in 1992, and the O and P type visas have seemingly worked seamlessly since these amendments were enacted.

This paper will first give a brief background as to the immigration laws pertaining to athletes prior to the Immigration Act.  It will then discuss the changes made to immigration laws by the Immigration Act, as they relate to athletes, with an emphasis on the most relevant O and P type visas.  Finally, this paper will explore the challenges which international athletes face, not only in obtaining temporary non-immigrant visas, but also the challenges facing these athletes by a new wave of proposed immigrations laws sweeping the United States, which seek to impose stricter enforcement of the current federal immigration laws.

I.IMMIGRATION LAWS AS THEY PERTAINED TO ATHLETES PRIOR TO THE IMMIGRATION ACT OF 1990

A. THE H TYPE VISA PRIOR TO THE H-1A AND H-1B DISTINCTION

Prior to the passage of the Immigration Act of 1990, which created the temporary visa types for athletes (O and P), athletes relied upon the H type non-immigrant category, which was not exclusive to athletes and entertainers. Athletes would qualify for the H type visa by meeting the following requirements:

“(H) an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability . . . or (ii) who is coming to the United States . . . (b) to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country . . . or (iii) who is coming temporarily to the United States as a trainee.”

In effect, this statute allowed for two ways in which an international athlete could enter the United States under the H type visa.  The first, the H-1 type visa, required a showing that the athlete achieved being “distinguished in his merit and ability” in the field in which the athlete sought to participate in the United States and that the field of work and the services performed actually required such merit and ability. In order to prove ”distinguished merit and ability” in a particular field, generally the athlete would need to show that he has achieved a “high level of prominence,” and is either a nationally or internationally recognized figure.In order to determine whether a player had met this requirement, three factors were taken into consideration:  1)  whether the athlete would perform as a “star player” in the United States; 2)  the compensation that the athlete would receive for his services, and 3)  the athlete’s overall reputation in the nationalor international sports community.  While these standards and requirements were not difficult to meet in and of themselves, it was difficult for athletes to obtain these types of visas due to the competition involved.  As noted, the H-1 type visa, prior to 1990, was not specifically tailored to athletes and entertainers, and thus applied to any international worker who met the criteria of the aforementioned statute.  This, coupled with the relatively low limit on the number of H-1 visas issued per year, at the time, created a backlog of visa applications that would be one of the reasons for the congressional expansion of the temporary work visa program.  Despite this obstacle, the H-1 visa was still heavily favored over the H-2 type visa.

The second visa category available to athletes and entertainers prior to 1990, was the H-2 type temporary visa, granted to those non-immigrants who sought to come to the United States in order to perform “temporary service or labor,” for which there were no people in the United States capable of performing such service or labor.The requirements to obtain this visa made it very difficult for athletes to obtain, as it was difficult, if near impossible, to show that there were no people in the United States who could perform their service or labor. With the vast number and skill of athletes in the United States, it was very rare that an international athlete could make this showing.  Further, this requirement placed the burden on the potential employers of the international athletes to make this showing, rather than the athlete.

Upon applying for the H-2 type visa for the international athlete, the employer would have to enter into a “temporary labor certification process,” in which the employer would have to show that not only were there no willing, able, or qualified individuals in the United States to perform such labor, but also, that the nonimmigrant worker would not affect the wages or working conditions of the workers already in the United States.  Due to these onerous and time consuming requirements, the H-2 type visa would generally only be used as a last resort after the H-1 visa, and on very rare occasion.

B. THE H-1B CATEGORY PRIOR TO THE IMPLEMENTATION OF O AND P TYPE

On November 19, 1990, President George H. W. Bush signed into law the Immigration Act of 1990, which created the new O and P type visas specifically tailored to international athletes and entertainers. Not only did it create these new types of temporary visas, but it also created a new H type visa; the H-1B temporary visa.  However, the new O and P categories created great controversy, and congress agreed to delay the implementation of the new athlete-tailored visas for an additional six months.  This created a large problem for international athletes, as the new O and P type visas were not yet available, and they could no longer use the H-1 visa, due to the changes that accompanied the Immigration Act. Because of this problem, Congress enacted new legislationthat would extend the H-1B visa to those international athletes and entertainers who were negatively affected by the Immigration Act, for another 6 months, until the O and P type visa issue could be resolved.  As of April 1, 1992,athletes and entertainers of distinguished merit and ability were no longer eligible to obtain the H type visa, and entered into the era of having their own categories.

The new O and P type visas, which will be discussed in detail below, were a welcome change for sports associations and international athletes.  They allowed for athletes and entertainers to have their own categories of temporary work visas, which did not have a quota.  While this has largely been a positive for international athletes, having made it easier for them to obtain temporary work visas, it has not eliminated all obstacles which international athletes face.  Because of the continuing requirements, under the new visa types, that the international athletes show extraordinary skill and distinguished merit and ability in their craft, many premiere international athletes who seek to join minor league sports organizations, with the hopes of eventually playing in the prestigious major sports associations, have found it very difficult to make a showing that they are the types of athletes that are eligible under the O and P type visa.  This and other obstacles which international athletes face, will be discussed in greater detail in a later section.

II. THE CURRENT STATE OF U.S. IMMIGRATION LAWS, AS THEY APPLY TO INTERNATIONAL ATHLETES

Following passage of the Immigration Act of 1990 and the corresponding amendments, three general types of temporary work visa have emerged for international athletes: the O type, the P type, and the H-2B type.  While the O type is used by some of the more premiere international athletes, the vast majority of those in the major sports  associations are eligible, and are granted with very few issues, the P type visa.  Further, some athletes even seek to enter the United States to work and eventually apply for permanent immigrant status.  In this section, the three visa types most relevant to the international athlete will be discussed, as well as requirements for permanent immigration status.

A. O TYPE TEMPORARY VISAS

The O type visa is much like the prior H-1 visa, in that it is reserved for those athletes and entertainers who are recognized for their extraordinary ability or achievement. Currently there are three different categories of O type visa, that not only allow the international athlete and entertainer to work in the United States, but also allow for other special international non-immigrants to accompany the athlete, explained through the Code of Federal Regulations:

“(o) Aliens of extraordinary ability or achievement — (1) Classifications — (i) General. Under section 101(a)(15)(O) of the Act, a qualified alien may be authorized to come to the United States to perform services relating to an event or events if petitioned for by an employer. Under this nonimmigrant category, the alien may be classified under section 101(a)(15)(O)(i) of the Act as an alien who has extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry. Under section 101(a)(15)(O)(ii) of the Act, an alien having a residence in a foreign country which he or she has no intention of abandoning may be classified as an accompanying alien who is coming to assist in the artistic or athletic performance of an alien admitted under section 101(a)(15)(O)(i) of the Act. The spouse or child of an alien described in section 101(a)(15)(O)(i) or (ii) of the Act who is accompanying or following to join the alien is entitled to classification pursuant to section 101(a)(15)(O)(iii) of the Act.”

(8 C.F.R. 214.2(o))

The first category of O type visa is referred to as the O-1 visa.  To qualify, an international athlete must show that he has “an extraordinary ability in…athletics” and is coming to the United States to temporarily work in that area of extraordinary ability.  A person with extraordinary ability, for purposes of this statute, is one who is in a very small percentage at the top of “the field of endeavor.”  As indicated by the statute, there are very few international athletes who do rise to the level of being eligible to receive the O-1 visa type, and therefore it is used less frequently than the P type, discussed below.  The international athlete must provide supporting evidence in order to meet the extraordinary ability standard, which includes, but is not limited to; 1)   a major international award that the player has been awarded;  2)  evidence of a high salary or a potentially high salary in the United States; and 3)  documentation the player’s receipt of national or international awards for excellence in the field.

The second category of O type visa, referred to as the O-2 visa, applies to those who would travel with the O-1 visa holder, “solely to assist in the artistic or athletic performance.”  Those accompanying the O-1 visa holder must be an “integral part of the actual performances or events and possess critical skills and experience with the O-1 alien…not of a general nature.” The types of people who would be able to obtain such a visa would be specialized trainers of the O-1 athletes, who have worked closely with the athlete, and have more than a general skill in working with the athlete.  The third category of O visa is limited to the spouse or child of the O-1 athlete. Both categories hinge on whether the O-1 applicant is granted the visa. and therefore the main hurdle that the O-2 and O-3 applicant face is the granting of the visa to their star athlete.

Although there are not strict limits as to the number of O type visas that may be granted in any given year, difficulties arise in the fact that the international athletes must meet the extraordinary ability requirement.  Because the athlete must show that they are in the very top percentage of those in their field, most international stars would not be eligible to obtain such a visa, as they have not been compared to the premiere players in the major sports associations at the initial time of their request.  It would be very difficult for an international player who has never played in the United States to prove this, and therefore, the vast majority of international players who are invited to participate in the major sports associations are eligible and apply for the easier to meet temporary visa; the P type.

B. P TYPE TEMPORARY VISAS

The P type visa is a more relaxed type of visa for the international athlete who comes to the U.S. to participate in the professional sports.  As with the O type visa, the P type visa has multiple types, however, the P-1 visa is the most relevant to the discussion of international athletes, and the other three types will not be discussed here.

As set forth in the Immigration Act and its subsequent amendments, a non-immigrant is eligible for a P-1 type visa when the athlete is coming to the United States to “perform at a specific athletic event, as an athlete, individually or as part of a team, at an internationally recognized level of performance.” In order for an athlete to be eligible for and granted a P-1 visa, certain evidentiary requirements must first be met.  The petition for a P-1 visa must include the following evidentiary requirements:

1. 1. A tendered contract with a major United States sports league or team, or a tendered contract in an individual sport commensurate with international recognition in that sport, if such contracts are normally executed in the sport, and
   2. Documentation of at least two of the following:

1. 1. 1. Evidence of having participated to a significant extent in a prior season with a major United States sports league;
      2. Evidence of having participated in international competition with a national team;
      3. Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition;
      4. A written statement from an official of the governing body of the sport which details how the alien or team is internationally recognized;
      5. A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;
      6. Evidence that the individual or team is ranked if the sport has international rankings; or
      7. Evidence that the alien or team has received a significant honor or award in the sport.”

The biggest hurdle international athletes face is the “internationally recognized” test set forth above. For many international athletes, however, this test is very easy to meet, as long as they are signing contracts with teams within the major sports associations of the United States  Problems arise however, for those international players that are scouted by minor league sports teams in the United States, and, despite being very talented, are often not considered to rise to the necessary level required to receive a P-1 type visa.  Because of this, international athletes are often forced to apply for the more strict H-2B type visa,and are often denied due to the strictly enforced H-2B visa limits each year. Nonetheless, the P-1 type visa is the most popular type used among international athletes who are becoming or are members of a major sports association in the United States.  Usually, when the athlete signs a contract with a major U.S. sports league or team, the other factors are not very difficult to show.

C. H-2B TYPE TEMPORARY VISA

Much like its H-1 predecessor, the H-2B visa is not specifically tailored to international athletes and entertainers.  In fact, the H-2B visa does not mention athletes at all in its description, rather, the title of the visa states that it is for “temporary or seasonal non-agricultural workers.  As the statute reads, the H-2B visa is granted to those “temporarily in the United States to perform nonagricultural work of a temporary or seasonal nature, if there are not sufficient workers who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such services or labor.” While international athletes do not seem to meet this criteria,the H-2B visa has generally “been used as a catch-all” by the United States government, essentially using this category where another work visa type would not suffice.Since the H-2B visa seems as though it would used for low wage, seasonal, unskilled laborers, it seems even more odd that the government would lump minor league sports players into such a category, considering many of them are paid substantial salaries, and have a particularized skill with regard to the sport that they are associated with.

III. CHALLENGES FACING INTERNATIONAL ATHLETES WHO WISH TO COMPETE IN THE U.S.

Despite the favorable legislation towards athletes and entertainers with regards to visas, international athletes still face several challenges to entering the United States to compete.  The restrictions placed on international players wishing to compete in the minor league associations, as well as tighter enforcement of immigration laws in some states, has made it increasingly more difficult for international athletes to enter the United States to compete, without encountering some form of problem.  Every year, there are a number of international sports stars who are unable to compete for at least part of a given season, due to having issues with their visas, and the 2011 MLB season is no exception.  At the start of 2011 Spring Training at least two starting players for two different teams had not yet had their visas approved, and could not join their teams.

However, this does not take into account the vast number of international athletes who have visa issues prior to their minor league sports association seasons.  Since September 11, 2001, the United States has more strictly enforced its laws regarding visas, and has made it much more difficult for minor league players to obtain the H-2B visa. For example, the first recorded cases of minor league baseball players being denied visas to play in the United States occurred in 2002, when minor league players were denied H-2B visas because the strict limit of 66,000 per year had already been fulfilled. As noted above, the major problem for minor league players is that they have to meet the internationally recognized test, which is very difficult to do when a player is not immediately placed on the squad of a major sports team. Some major sports associations have quite elaborate minor league programs that allows players to hone their skills, so that they can eventually join their parent sports team.  The minor league system, and the minor league athletes problem with meeting the internationally recognized test, will be discussed in this section.

A. MINOR LEAGUE SPORTS IN THE UNITED STATES

A major problem has been created for international stars who seek minor league contracts to “get their foot in the door” of the major sports leagues of the United States.  Since, in most instances, potential minor league players do no have their own category visa, they must compete for the limited number of 66,000 H-2B visas that are granted in the United States each year.

There is a split among the major sports associations in the United States, as to the development process of young, skilled players.  Some associations have a player draft every year, in which the players are usually signed by the team that  drafts them, and they become members of that teams active roster. However, in the case of Major League Baseball and the National Hockey League, players are drafted directly out of high school, and typically enter into minor league contracts, in which they agree that they will play with the clubs minor league team, until their skills are honed to the level of the major sports association. It is rare in these leaguesfor a player to be drafted and placed immediately on a roster of a “major league” club.  This however, does not mean that the international players who are assigned to minor league contracts are any less “internationally recognized.”  Often, when an international player is drafted into one of these leagues, and placed in a minor league, he is a premiere player in his nation of origin.

Due in large part to the globalization of baseball in the United States, the caliber of player in the United States system is higher than that of smaller international leagues.  Thus, despite the great skill of the international players who sign minor league contracts, the major league club generally wants the international athlete to get used to the United States system, and the high caliber of players that they will be competing against, so they are placed in the minor leagues in order to gain some experience with the United States system.

In the case of Major League Baseball, for example, the major and minor leagues have an agreement that allows both leagues to bring something to the table.  Generally, the minor league club will be responsible for “providing ballparks and locally promoting the teams, while the major league clubs will employ the players and coaches.”  Throughout the development of the international player, he has a contract with the Major League club, and is trained and coached by the staff of the Major League club, yet plays for the minor leagues. This creates an interesting argument that the minor league international player has, in actual fact, signed a contract with a major United States sports league or team, but due to the player not actually playing in that major sports league, he does not meet the first requirement  of the “internationally recognized” test.

B. THE PROBLEM WITH THE “INTERNATIONALLY RECOGNIZED” TEST

The minor league system has become an essential part of the development of all players, as almost every player who is currently playing in the MLB has at one point played for the minor leagues, and this should not have an effect on whether they are deemed to be “internationally recognized.”

The first part of the “internationally recognized” test for the P-1 type visa is that the international athlete must have “tendered a contract with a major United States sports league or team, or a tendered contract in an individual sport commensurate with international recognition in that sport.”As noted above, despite the fact that almost all international players in the minor league system are employed by their parent major league organization, and the minor league system is a crucial part of the development of almost all MLB and NHL players, the United States government continues to only give the P-1 type visa to those players who actually participate in the “highest level of each individual sport.” International players are seemingly being penalized, in this regard, because of the sport that they play.  If the athletes were international American football stars or basketball stars, they would not be subject to a minor league contract issue.

Further evidence that this seems to merely be an arbitrary interpretation of the statute,  is that individual international athletes, such as tennis stars, and even poker players,are waived from having to meet this first standard, because they do not participate in a sport where “such contracts are normally executed.” These players are being granted the P-1 type visa, in order to compete at the lowest level of their respective fields, when they come to the United States, while MLB and NHL prospects generally must apply for the H-2B visa, when they are merely participating in a similar “entry level” position in their respective sports.

As noted above, the second part of the test international players must meet, requires that the player show at least two out of seven enumerated factors apply to him or herSince there are so many factors, and only two need to be met, it is often not difficult for even minor league international players to show that they meet this portion of the standard.  Unfortunately, due to the strictly enforced interpretation of the first part of the test, most minor league athletes are not even given an opportunity to show that they meet the second part of the test.  Since almost every player who ever plays in an association like Major League Baseball or the National Hockey League, has spent at least some time in the minor leagues, it is extremely difficult for international players to meet the “internationally recognized” test, which seems to be inconsistent with other sports leagues.  Many times, the players who are attempting to enter the United States under minor league contracts were playing in an international league at some point, and were recognized by the major sports association, as being premiere players in said leagues.  By virtue of this recognition, it would seem that the international players should meet the “internationally recognized” test, and be eligible to receive a P-1 type visa.

Perhaps one of the major purposes behind enacting and strictly enforcing immigration legislation, is the idea of protecting the employment opportunities for United States citizens.  However, since internationally recognized athletes are very specialized in their skills and, in most cases, those skills limit them to play in only one sport, it does not seem as though these internationally recognized athletes would be taking jobs away from United States citizens.  Further, the MLB and the NHL have supported legislation in the past that would expand the scope of the P-1 type visa, so it would seem that the skill of the international athlete remains sought after, which is further evidence that the jobs are likely not being taken away from United States citizens.

Due to a large number of complaints from all “seasonal workers,” as well as their potential employers, regarding their ability to obtain H-2B type visas, Congress enacted legislation that would slightly ease the H-2B visa problem of distribution. This legislation would change the way in which H-2B visas were distributed on a yearly basis.  While it did not increase the 66,000 visas per year limit, it did split it up so that half were granted in the first six months of the year, and the second half were issued in the second six months of the year.  This slightly eased the issues of the international athlete, as they could now apply for an H-2B visa every six months, and have a better opportunity to receive a visa.Prior to this act, the limit of 66,000 visas was generally reached very quickly, and early in the year, removing any hope, until the next year, that an athlete would be chosen for the visa.  This new legislation appears to be another piece of evidence that there is a need for addition reform of the visa laws, with regards to international athletes, possibly extending the P-1 visa to the minor sports organizations as well.

C. ADDITIONAL POTENTIAL HURDLES WHICH INTERNATIONAL ATHLETES MAY FACE

Over the last few years, various states have either enacted or proposed legislation that would more strictly enforce the current federal immigration laws.  In April 2010, the State of Arizona enacted legislation that would allow law enforcement officers to stop and ask for identification of any person that they suspect is in the United States illegally.  Opponents of this legislation have argued that this is a law that has authorized racial profiling by law enforcement officers.  While this would not necessarily pose a problem for players obtaining visas to work in the United States, it would pose a potential problem for those who are lucky enough to be granted visas to play in the United States.  International players would face the challenge of potential racial profiling , and what some may v