Clients are often perplexed by the complicated requirements in the immigration laws governing various visa categories. For that reason, we have prepared a series of informal memos explaining the basic requirements and process for obtaining appropriate employment-related nonimmigrant visas or permanent residence in the United States.
The “EB-1" immigrant preference classification is for individuals who have “extraordinary ability" in the sciences, arts, education, business, or athletics; “EB-2 immigrant preference classification is for individuals who have “exceptional ability" in the sciences, arts, or business (the government has interpreted this to include athletics); and “EB-3 classification is for individuals who qualify for permanent employment in positions requiring professionals – individuals possessing a minimum of a Bachelor’s Degree in a field directly related to the prospective employment - or “skilled workers" who possess at least two years of employment experience or related training.
There are special handling procedures and requirements related to both the initial filing of applications or petitions on behalf of professional athletes as well as to the “portability" of approved applications or petitions filed by prior employers (teams).
EB-1: Extraordinary Ability in the Field of Athletics
Extraordinary ability in the field of athletics means a level of expertise or accomplishment indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor. Set forth below are the specific criteria for an EB-1 petition establishing “extraordinary ability" in athletics.
Requirements: Although receipt of a major award such as a league MVP or Cy Young Award will arguably establish eligibility for EB-1 classification alone, in most cases establishing such eligibility for a professional athlete requires that an employer (major league team) or Agent file an Immigrant Preference Petition with USCIS demonstrating sustained national or international acclaim and recognition for achievements in a particular sport by providing at least three of the following forms of documentation:
Receipt of “lesser" nationally or internationally recognized prizes or awards for excellence in baseball, such as batting or other “titles", gold glove or silver slugger awards, or selection as “MLB Player of the Month/Week";
Documentation of the alien's membership in “associations" in the field which require outstanding achievements. USCIS has recognized that selection for a national team in major international competition such as the Olympics or World Baseball Classic will satisfy this category;
Published materials in professional or major trade publications or major media about the player concerning his accomplishments in baseball, e. g., SI, ESPN, Baseball America, major newspapers or news magazines, etc;
Athletic or business-related contributions of major significance in baseball. As a practical matter, this would be extremely unusual and is rarely applicable to professional athletes;
Employment in a leading or critical role for organizations and establishments that have a distinguished reputation – league and team records and statistics will help here;
High salary or other remuneration commanded by the player in comparison to other players (as evidenced by multi-year major league contracts or other reliable evidence).
Note, however, that the government has consistently taken the position that submission of only three of the above categories of evidence alone will not be dispositive of whether an alien possesses extraordinary ability. Instead, the categories of evidence serve merely as guidelines, and submission of evidence from three of the above categories may not be adequate.
EB-2 Classification: “Exceptional Ability"
Requirements: Eligibility for EB-2 classification requires that employer (major league team) file Application for Alien Employment Certification from USDOL (“special handling procedures for professional athletes in team sports) and Immigrant Preference Petition with USCIS – application/petition must be supported by at least three of the following:
An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
A license to practice the profession or certification for a particular profession or occupation;
Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
Evidence of membership in professional associations; or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
EB-3 Professional or Skilled Worker
Requirements: Eligibility for EB-3 classification requires that employer (major league team only) file an Application for Alien Employment Certification from USDOL (“special handling procedures for professional athletes in team sports) and Immigrant Preference Petition with USCIS – application/petition must be supported by:
Letter from team confirming requirement for minimum of 10 hours per week employment during the off-season (can be training, conditioning, PR appearances, etc.);
Copy of Uniform Major League Players Contract; if not valid for full 12 months, must be accompanied by letter from team confirming current intention to employ player for one full year from date of filing;
Letter of “No Objection" from Major League Baseball Players Association; and
News articles, statistics, other published materials or information from team media guide.
NOTE: every petition filed under the EB-2 and EB-3 classifications must be accompanied by an individual labor certification from the Department of Labor.
On May 17, 2007, the USDOL published a final rule in the Federal Register making significant changes to the PERM System. Of most importance, these changes – most of which went into effect on July 16, 2007 - include the following:
“Portability" of Labor Certification and Petition: Immigration and Nationality Act (“INA") Section 212 (a)(5) (A)(iii) provides that for professional athletes in team sports, an approved Application for Alien Employment Certification shall remain valid with respect to the athlete after the athlete changes employer, if the new employer is a team in the same sport as the team which employed the athlete when the athlete first applied for certification.
INA Section 204(i) provides that an Immigrant Petition for Alien Worker (Form I-140) filed by an employer to classify a professional athlete under either EB-1, EB-2 or EB-3 preference shall remain valid for the athlete after the athlete changes employers, if the new employer is a team in the same sport as the team which was the employer who filed the petition.
For purposes of portability under both sections of the INA, the term "professional athlete" means an individual who is employed as an athlete by (a) a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or (b) any minor league team that is affiliated with such an association.
Agents as Petitioners – EB-1 Classification Only. A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act on its behalf. A United States agent may be: the actual employer of the beneficiary; the representative of both the employer and the beneficiary; or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.
Caveat.The foregoing is a very broad discussion of general principles and requirements, and must not be construed as definitive legal advice applicable in any specific matter. Facts and circumstances will vary from case to case, and adequate counsel can be provided only upon deliberate consideration of the needs and circumstances of an individual client.