Earlier this week, the House of Representatives passed the “Fairness for High-Skilled Immigrants Act of 2019,” which could effectively end the path to green card applications under EB-1A for professional athletes. The bill, HR 1044, proposes a redistribution of the annual quota for employment-based green cards, including EB-1A green cards for individuals with extraordinary ability in Athletics.
Immediate multi-year backlogs for EB-1A green cards
HR 1044, which is now under review in the Senate Judiciary Committee, attempts to solve the problem of a years-long backlog in the allocation of employment-based green cards to citizens of India and China. This backlog is created by the relationship between an annual numeric cap on the number of employment-based green cards that can be issued each year and the high number of applications for these green cards by citizens of India and China.
However, the proposed solution will have the perhaps inadvertent, but nonetheless immediate, effect of creating a backlog in green card applications made by nationals of all other countries. Some analysts predict that the backlog could be as long as 7 or more years.
Forced O and P applications for those who meet the criteria for EB-1A
The immediate consequence of the new backlog would be that athletes who already meet the criteria for EB-1A green cards would be unable to apply for green cards, without waiting in line for years. Given the need to train and compete in the US in the meantime, athletes would need to obtain a “bridge” status, such as a P-1 or O-1 visa.
Unlike the EB-1A green card, which permits self-petitioning, P-1 and O-1 visas are required to be submitted by an employer or a petitioner. Additionally, these visas restrict the athlete’s authorized employment to specific competitions, games, or events outlined in his or her petition, and do not provide employment authorization for the athlete’s accompanying spouse.
These visas also bind the athlete to the petitioner and changes in petitioner, the terms of the athlete’s employment and other details regarding the athlete’s work in the US often require the submission of an amended or a new petition. Athletes from countries like Brazil, with short-term validity for O-1 and P-1 visas, will either be stuck in the United States or will have to reapply for a visa stamp at a US Consulate abroad virtually every time they travel outside the US.
What was once a one-step process for highly-qualified athletes could turn into a multi-step and multi-year affair, as the EB-1A qualified athlete struggles to maintain interim status while waiting for the green card.
Maximum Periods on O and P may be insufficient
Further complicating the situation of extraordinary ability athletes who would be affected by this legislation, O-1’s and P-1’s are subject to limitations on the maximum admission period, of 3 years and 5 years, respectively. If the EB-1A backlog lasts longer than the validity of the athlete’s O-1 or P-1, extensions will need to be secured to meet the gap. In some cases, multiple extensions of the O-1 or P-1 nonimmigrant visa will be required.
Multi-year backlogs could mean no green card for short athletic careers
Multi-year backlogs can also entirely cut off the possibility of a green card for certain athletes. An EB-1A green card requires that the athlete be coming to the US to “continue work in the field of endeavor.” For athletes, the field of endeavor is narrowly construed as competing in his sport. Unless the EB-1A was approved for coaching, an athlete who retired as a competitive athlete and took up coaching while waiting for the backlog to resolve will be ineligible to receive a green card under that category.
This presents a problem for MLB and NBA players, as well as other sports where the average duration of a professional career is relatively short. Athletes could attain the accolades required for an extraordinary ability green card during their competitive career, only to be retired and ineligible by the time they can apply for adjustment of status.
EB-1A green card eligible athletes should obtain legal advice
The bill includes provisions that may protect athletes who filed their EB-1A applications before the law goes into effect. However, it is unclear whether these protections will be included in the final version of the legislation, if it passes. Athletes whose accomplishments make them eligible for EB-1A should consult with an experienced sports immigration lawyer to develop an individualized legal strategy.
This post was co-authored by our Managing Partner, Ksenia Maiorova, whose sports visa practice is primarily focused on Track & Field, and by Amy Maldonado, whose sports immigration practice focuses on MLB athletes and coaches.