By Robert Seiger and Jocelyn Campanaro, Ogletree Deakins

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Overview

As a general proposition, foreign professional athletes spend a significant amount of time playing and living in the United States during the course of their careers. They are important assets to the organizations for which they play. Their visas to remain and play in the United States, generally called a P-1 visa, are generally dependent on their being actively on the field or on the ice.

At the same time, these athletes are building personal assets and often raising their families here. So, what happens when these players are facing retirement or forced to deal with a potential career-ending injury? Strategic immigration planning by a professional athlete should be considered while the athlete is still actively playing, to ensure that when the arena lights go out, the athlete can continue to remain in the United States.

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Strategic Immigration Planning For the Foreign-Born Professional Athlete

Consider the foreign-born professional hockey player in the National Hockey League (“NHL”). After being drafted under contract with an NHL franchise, the player applies for and is eligible to play in the United States under the temporary work visa category called P-1A. Under the P-1A visa, the professional hockey player can play for the sponsoring franchise and travel in and out of the country with the team as required. P-1A visa status may be issued for up to 5 years initially and permits NHL players to be traded between NHL teams generally without interruption in the ability to play. Also, as a result of a government policy change in 2009, P-1A visa status for professional athletes can be extended beyond the previous maximum cap of 10 years of validity. The same was made true for support personnel in a subsequent USCIS memo. From the NHL franchise perspective, the P-1A visa generally meets the goal of ensuring that their players are work eligible and freely able to be traded depending upon franchise need and/or individual athlete performance.

However, a trending player relations viewpoint within NHL (and other professional league) franchises is the need for more strategic long term planning as to how to ensure that a player can remain in the United States once his career ends, either abruptly or through planned retirement. A rationally related question is what is driving this trend? First, the careers of foreign-born NHL players are getting longer as a result of the lifting of the 10-year maximum cap on the P-1A visa. More often, NHL players are signing two-way contracts which permit their respective NHL franchise either to continue to include the player on the NHL roster, or to demote the player to its American Hockey League (AHL) affiliate for a period before again calling the player back up to the NHL. Often, these movements will extend the career of the player beyond 10 years. Second, the pace of the game is arguably getting quicker due to technological advances in equipment and rule changes. Related, the risk of injury is always present. A sudden injury has the potential to cause the player to be placed onto the injured reserve, and more critically, abruptly end the career of the athlete. Third, as the careers of the players are extending, the likelihood that they establish roots in the United States increases, by adding spouses, children, a home and considerable assets.

The ability of a foreign-born player to remain in the United States is directly tied to the maintenance of the P-1A visa. Restated, if the foreign-born professional hockey player is no longer playing, the P-1A visa will be invalidated, the player will effectively fall “out of status,” and the player would otherwise have to leave the United States. Recognizing the potential devastation in the event that a player would otherwise have to leave the United States, many NHL players and franchises are choosing to initiate the Permanent Residence process (the “Green Card”) for those players on the active roster choosing to make the United States their permanent home after their playing days.

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Permanent Residency (“Green Card”) For the Foreign-Born Professional Athlete

For most foreign-born professional athletes, Permanent Residence (the “Green Card”) is generally obtained through the employment-based preference category called EB-1, which is a category set aside by the United States Citizenship and Immigration Services (“USCIS”) for “extraordinary ability” workers in the sciences, arts, education, business or athletics.

To qualify, the athlete must be able to prove that during his career, he has been able to demonstrate sustained national or international acclaim and achievements that are recognized in the field. So, how does this translate in real world terms?

Continuing to use the example of the professional hockey player in the NHL, a Green Card can generally be applied for by two categories of foreign-born players:

The NHL All-Star

USCIS has recognized through case law that the Green Card requirement for a player to prove “extraordinary ability” can be satisfied if the player can show receipt of a major, internationally recognized award, sometimes referred to as a one-time major achievement. While it may seem illogical, playing professional hockey in the NHL does not on its face prove that a player is “extraordinary” for Green Card purposes. USCIS has often taken the position that in order to quality for a Green Card, the professional hockey player cannot be reviewed in comparison to all hockey players generally, but alternatively must prove that the player is “elite” in comparison to his peers in professional hockey. Restated, just playing in the NHL does not satisfy the USCIS regulatory requirement for “extraordinary ability.”

USCIS has recognized through case law that the Green Card requirement for a player to prove “extraordinary ability” can be satisfied if the player can show receipt of a major, internationally recognized award, sometimes referred to as a one-time major achievement. While it may seem illogical, playing professional hockey in the NHL does not on its face prove that a player is “extraordinary” for Green Card purposes. USCIS has often taken the position that in order to quality for a Green Card, the professional hockey player cannot be reviewed in comparison to all hockey players generally, but alternatively must prove that the player is “elite” in comparison to his peers in professional hockey. Restated, just playing in the NHL does not satisfy the USCIS regulatory requirement for “extraordinary ability.”

The NHL Role Player/Journeyman

There are approximately 690 active NHL players, the majority of which will not obtain either consistent All-Star status or the receipt of either an Olympic Medal or similar one-time achievement. As such, establishing “extraordinary ability” for Green Card purposes must be approached from a different angle.

Consider a defensive positioned player. Tracking this player’s career, this player has consistently been drafted and/or traded within the NHL (or AHL) due to this player’s “reputation” for consistent neutral zone play in setting up offensive opportunities. While the player has not obtained any one-time achievements, including play on a Stanley Cup-winning team, his “extraordinary ability” can be established if it can be shown that this player is one of the elite players in the NHL in his position. To satisfy “extraordinary achievement” for the role player/journeyman professional athlete, the immigration regulations set forth the “3 out of 10 rule.” See 8 C.F.R. 204.5(h)(3).

Therefore, to establish “extraordinary achievement,” the professional player must present extensive documentation of at least three of the ten criteria set forth in the regulations, including the following specifically relevant for athletes:

• Receipt of lesser recognized prizes or awards for excellence;
• Membership in associations requiring as a condition of membership outstanding achievements as adjudged by recognized experts;
• Published material in professional or major trade publications or major media about the person and his or her work;
• Participation as a judge of others in the field;
• Performance in a critical role for an organization with a distinguished reputation; and
• Command of a high salary or other high remuneration.

Under this standard, to be classified as “elite,” the player must be able to document that his statistics, plus/minus numbers, and salary rank the player higher than others in the NHL playing in a similar position. Any internal franchise awards presented to a player (such as the Best Defensemen Award, Most Valuable Player Award) have also been proven as useful evidence to establish that a player should be considered as elite in his position and therefore deemed to have established “extraordinary achievement” to permit a Green Card to be awarded.

Transition Role from Player to Coach

A more recent trend involves foreign-born professional athletes attempting to transition from an active playing role to a coaching role as a means to establish “extraordinary ability” for Green Card purposes. Building a case for a professional athlete in a transition role is not without challenge as a player’s body of work as a player (which could been determined to be extraordinary) does not automatically carry over to other occupations in the sport, i.e. coaching. For foreign-born professional athletes considering the establishment of “extraordinary ability” in a transition role, a recent case issued by the Administrative Appeals Office of the USCIS is informative. Established in this case, the USCIS has directed that if an acclaimed athlete “has sustained that acclaim in the field of coaching, it would consider the totality of the evidence and could conclude that coaching is within the player’s area of expertise.” Restated, if a foreign-born professional athlete wishes to consider building a Green Card case in a transition role from player to coach, that athlete must be prepared to prove not only acclaim as a player, but also acclaim and success as a coach. A potential example could be a journeyman hockey goalie transitioning to the role of goalie coach on a Stanley Cup-winning franchise.

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Conclusion

Foreign-born professional athletes will often spend a significant portion of their careers living and playing in the United States. At the same time, these athletes are either building a family or significant assets in the United States. Considering that a foreign-born professional athlete is generally playing in the United States on a “temporary” visa (known as P-1A) that will expire when the career of an athlete comes to an end, strategic immigration planning should be considered for those athletes choosing to remain in the United States after their playing days.

The USCIS has set aside a Green Card category for those athletes whose careers have defined them as having obtained “extraordinary ability” in athletics. Strategically, a review of an athlete’s ability to satisfy this standard should be undertaken while the player is actively on the field or on the ice and before the arena goes dark on the player’s career.

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Additional Resources

• U.S. Citizenship and Immigration Services (USCIS)
• USCIS - Temporary Work Authorization for Professional Athletes
• “Tough Skating for Hockey Players Seeking Permanent Residence,” by Jocelyn Campanaro, ABA Section of Labor and Employment Law, Volume 40, Number 3, Spring 2012

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Published on March 13, 2013

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