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Hundreds of thousands of student athletes have made money from their name, image and likeness since the National Collegiate Athletic Association first allowed them to do so on July 1, 2021. While these deals have provided financial support for athletes at all levels of college sports, one group has been left out: student athletes from outside of the United States.
This is because most foreign student athletes are in the U.S. on F-1 student visas, which place strict limits on their ability to work. The federal government has not expressly said whether NIL activities, such as signing autographs, making appearances or posting on social media, constitute impermissible “work,” leading to inequities among not only athletes but also schools. Some schools take a cautious approach, while others promise foreign student athletes the chance to participate in NIL activities with little regard to potential visa violations. In order to best advocate for foreign student athletes and their schools, the BAL Sports & Entertainment and Government Strategies teams set up a series of virtual roundtables with NCAA Division I schools to learn more about their experiences and solicit their insights.
The schools hailed from all parts of the country and represented several athletic conferences, including each of the NCAA’s Power Five conferences. And while they all brought a unique perspective, they stressed some of the same themes over and over again:
Across the board, schools said they want clear, precise guidance defining what NIL activities are permissible for F-1 foreign student athletes. More than any specific recommendation, schools were united on this point. They want clarity.
Absent guidance, athletic departments are under tremendous pressure to find workarounds or loopholes to attract and retain foreign student athletes. Some schools have promised foreign student athletes guaranteed NIL participation, despite the lack of clear rules on whether such activities are permissible on F-1 visas. This exposes students to potential visa violations, which could permanently affect their ability to travel to the U.S. to work, study or live.
The lack of immigration policy has led many schools to take a conservative approach, excluding foreign student athletes from NIL activities, including team-wide NIL deals. This creates inequities among not only players but also schools, some of which are less cautious. The exclusion of foreign student athletes from NIL activities complicates team and locker room dynamics, impacting team performance and morale.
Permitting foreign student athletes to engage in NIL activities supports economic growth in the U.S. While a handful of multimillion dollar endorsement deals steal the headlines, most happen at the state or local level, supporting jobs in university communities. These communities do not get the full benefit of NIL-related income when foreign student athletes are not allowed to participate. Rather, few U.S. businesses can partner with foreign student athletes, provided they leave the U.S. to conduct NIL activities abroad.
Participating in NIL activities plays an important part in the student athlete experience and the overall development of the student in their educational and cultural experience in the U.S. Though limited options may exist for some foreign student athletes to change their visa to cash in on their NIL, universities are hesitant to pursue these routes as these athletes are first and foremost students, not employees.
As we see with men’s and women’s college basketball, college sports is an increasingly international affair. As of 2022, there were more than 24,000 foreign student athletes in Division I, II and III sports. Foreign student athletes made up 12.8% of Division I athletes, including 15% of men’s college basketball players and 13% of women’s college basketball players. In both men’s and women’s Division I tennis, more than 60% came from outside of the U.S.
The inability of foreign student athletes to participate in NIL hinders the ability of U.S. schools to compete for the best international collegiate athletic talent. Foreign student athletes must be able to benefit from their NIL just as their U.S.-born teammates do. The need for government action is clear.
The patchwork of state NIL laws have prompted calls for federal NIL legislation more broadly, and at least one proposal would allow foreign student athletes to make money off their NIL without jeopardizing their F-1 status. Thus far, legislative efforts have fallen short, even with recent support from the most prominent collegiate athletic conferences.
In the absence of legislation, as we have previously argued, the Department of Homeland Security can and should publish clarifying policies on permissible NIL activities for F-1 student athletes. The Student and Exchange Visitor Program and Homeland Security Secretary Alejandro Mayorkas have both indicated they will provide guidance, but so far nothing has materialized.
The BAL Sports & Entertainment and Government Strategies teams will continue to support efforts and press the federal government to address NIL for foreign student athletes. Until then, schools must carefully evaluate the NIL landscape when developing policies for foreign student athletes. F-1 student athletes must also be cautious in their NIL activities since visa violations may render them ineligible for visas in the future.
Gabriel Castro is a Senior Associate at BAL who leads the firm’s Los Angeles office and Sports & Entertainment practice. Tiffany Derentz is a Senior Counsel at BAL who leads the firm’s Washington, D.C., office. She is a member of the firm’s Government Strategies and Sports & Entertainment teams.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
With Oscar Night approaching this Sunday, viewers will be looking at a diverse pool of nominees, including Michelle Yeoh, a celebrated Malaysian-born actress who, if she wins, will be the first Asian woman to receive a lead actress Oscar. In fact, 12 of the 20 acting nominees this year are, like Yeoh, foreign-born. Add to that an uptick in U.S. movies shot overseas and actors traveling abroad to star in international productions, and the math is clear: from Hollywood movie studios to independent filmmakers, immigration law is pivotal to the contemporary filmmaking process. In era of backlogged visa issuance, lengthy visa wait times due to less and understaffed consulates, and complex immigration laws, the U.S. entertainment industry faces costly obstacles while navigating this tricky, post-pandemic regulatory climate.
The most typical road to Hollywood for international entertainers is the O-1 visa which requires proving they have “extraordinary ability” through a record of distinguished achievement. Actors and creatives eligible for applying for U.S. permanent residence must either remain in the U.S. throughout the adjudication process, or apply for permanent resident status via an AOS (Adjustment of Status or Green Card), that negates having to return to their home country during processing. In the interim, entertainers must obtain an Advanced Parole travel document that permits them to return from travel outside of the U.S.
However, visa approval numbers, affected by processing restrictions during the pandemic and an immigrant visa ban during the Trump administration, haven’t rebounded substantially from their early FY 2020 nadir of just over 240,500 cases. In fact, post-pandemic visa issuance is still sluggish, backlogged by hundreds of thousands at the U.S. State Department.
In tandem, visa appointment wait times, another casualty of the recent pandemic due to its temporary shuttering of some U.S. consulates and embassies, continue to be lengthy. Prior to pandemic, actors and other entertainers could strategically opt to return to their home country and apply for expedited processing of an immigrant visa at a U.S. consulate, but protracted consular wait times have all but eliminated that strategy. Consular wait times, in fact, are one of the biggest challenges for movie studios and other corporations seeking international talent today. We polled several of our own immigration stakeholders, of all sizes, and 9 out of 10 equally reported consular processing times as their number one hurdle.
And although historically it has been easier for big Hollywood studios to request and expedite visas, Advanced Parole, and Adjustment of Status/Green Card appointments for their actors and other creative talent, approval of either the request or the visa of itself is not guaranteed. Ditto for the smaller, boutique or independent studios and productions, for whom such wait times and non-issuance of visas could actually mean the difference between keeping the doors open or being able to timely pay their actors, other creatives, and staff.
Some actors and other entertainers find it challenging to even qualify for the ever-changing and murky regulatory categories that would enable them to pursue their livelihoods. For example, issuance of O-1 visas are generally weighted toward superstars in the film industry—those actors who have been substantially featured in film, tv, and more. That regulatory reality makes it difficult for aspiring international actors and other artists to reasonably consider using O-1 for entrance to the U.S. and meaningful work at the beginning of their career.
Large Hollywood studios also, unlike small or independent studios, can of course typically afford to pay for all of the above, which include legal fees and USCIS processing fees—however, the recently proposed increases in USCIS fees will substantially increase those costs and ultimately affect any company’s bottom line.
The upcoming Oscars and other entertainment award ceremonies underscore that the business of arts and entertainment is increasingly global. Filmmaking and its continued success are clearly linked to immigration processes. The U.S. should be removing immigration barriers that slow the progress of the arts and entertainment industry, an ever-lucrative sector. In addition to staffing U.S. consulates, the U.S. should review and clarify visa categories that increasingly cause studios and entertainment talent delay and address the sizeable visa backlog that is still plaguing our arts and entertainment field of dreams in FY 2023.
Gabriel Castro is a Senior Associate with BAL and leads the firm’s Sports and Entertainment Immigration Practice in Los Angeles. An experienced attorney who has worked in multiple aspects of immigration law, including business, family, and removal defense, Gabriel offers his clients both skilled legal advice and exceptional service. Gabriel works with companies of all sizes to help retain artists, entertainers, athletes, coaches, and supporting staff through both nonimmigrant and immigrant visa petitions.
With the FIFA World Cup kicking off in Qatar next week, masses of people are converging on the small desert peninsula to attend this major international event.
The next FIFA World Cup will be hosted in the U.S. for the first time in 30 years. While 2026 may seem far off, planning has already begun for what is projected to be the biggest World Cup in history.
Over the next decade, tens of millions of people will be visiting the U.S. for the World Cup and other global sporting events, including the Olympic and Paralympic Games in 2028 and the Rugby World Cup in 2031 and 2033.
The U.S. has the chance to prove we are the global leader in sports. But off the field, there are immigration logistics the U.S. must get right in order to pull off a successful event. Athletes, coaches, event staff, and other personnel, as well as hordes of avid sports fans from around the world, must be issued visas in time to get to the U.S. for these competitions.
Recent events indicate the U.S. is currently unprepared for the surge in travel that comes with hosting major international tournaments. This summer, the U.S. hosted the World Athletics Championships for the very first time, but visa issues stole news headlines, nearly overshadowing the event itself.
At the start of the competition, hundreds of athletes were still trying to get their visas, and several, including one of the fastest men in the world, barely made it to the U.S. in time for their races.
This can’t happen again. It reflects poorly on the U.S. and is a disservice to the athletes who have trained for years to compete in these events.
To come to the U.S., most foreign citizens must apply for and secure a visa before travel – a multi-step process that includes a detailed application and an in-person interview with a consular officer at a U.S. embassy or consulate abroad, among other requirements.
Some travelers may need to petition immigration authorities in the U.S. before applying for a visa abroad, complicating and extending the visa timeline. When millions of people are traveling at the same time for the same event, delays are inevitable – but they can be mitigated.
Without a concerted effort by U.S. immigration agencies to prioritize and streamline visa processing for sports, the U.S. risks losing billions of dollars in sports revenue and will watch world-class sporting events head overseas.
As a former attorney who helped shape visa policy in the State Department’s Visa Office, I know the government can do more to ensure that the next decade in sports is a resounding win for the U.S.
For example, the U.S. could create a streamlined, electronic visa process for accredited travelers attending these mega international sporting events.
We did this for the Olympic and Paralympic Winter Games in 2002 and can do it again. Opening up a “fast lane” for athletes, coaches, staff, and visitors by modifying visa and entry requirements would be a viable solution for facilitating entry to the U.S. and dramatically reducing visa delays while addressing U.S. national security concerns.
The U.S. can also take smaller steps to show it remains committed to the U.S. sports industry and our ability to host international sporting events.
Every agency that touches the process – the State Department, U.S. Citizenship and Immigration Services, and Customs and Border Protection – should have dedicated points of contact whose primary role is to regularly engage with sports industry stakeholders and support them through the immigration process.
Temporary special lanes at airports and other points of entry for major international sporting events would help expedite the arrival process.
If additional resources are needed, there is a strong argument that Congress support funding programs and offices dedicated to facilitating travel for international sports events over the course of the next decade and beyond, as sports are becoming more global.
With 2023 just around the corner – the start of one of the most impactful decades for the U.S. sports industry – the government must proactively work with stakeholders and take meaningful action to show it can and will do more to eliminate unnecessary immigration barriers for international sporting events.
Tiffany Derentz is a Senior Counsel with BAL and a member of the firm’s Government Strategies team and Sports & Entertainment group. Tiffany served in the U.S. State Department for nine years and has been a key advisor to senior leadership within the Visa Office, the Bureau of Consular Affairs, the White House, and other federal agencies on all aspects of immigration law.
DALLAS (Nov. 15, 2022) — Award-winning immigration firm BAL has opened a Los Angeles office focused on sports and entertainment immigration. Building upon its representation of major league sports teams, international athletic organizations and leading entertainment studios, BAL now provides a dedicated boutique for these efforts in the LA office, supported by the firm’s nationwide legal teams.
“Launching this practice is an exciting step,” said Attorney J. Gabriel Castro, BAL Sports and Entertainment Practice Lead. “I’ve been an LA sports fan all my life and love the energy of working in the Entertainment Capital of the World. Now to be in a position to help teams and studios here secure the top talent from all over the world — that’s pretty special.”
A longtime LA resident, Gabriel knew the office needed to be within proximity to the city’s biggest venues to enable the firm’s legendary client service. Located blocks from entertainment complex LA Live, the office is also close to the Crypto.com Arena, Dodger Stadium and the LA Coliseum.
The increasingly globalized worlds of the sports and entertainment industries require frequent travel and location changes, and companies rely on skilled immigration counsel more than ever, especially with added challenges presented by COVID. Gabriel and his team have worked to proactively counsel clients on the effects of processing delays, lockouts, vaccination requirements and other current immigration challenges that can disrupt athletic teams and entertainment projects.
“BAL is all about making a positive difference in people’s lives, and we’ve done that for over 40 years across virtually every industry,” said Managing Partner Jeremy Fudge. “Adding the Sports and Entertainment Practice at this moment — when the world feels heavy for many people — is significant. We’re helping some of the best sports and entertainment stars provide an outlet of enjoyment for audiences across the world.”
The expansion is BAL’s sixth new office in the past five years, growing our presence in major U.S. economic centers, including the recently opened Denver office. The firm’s oneBAL approach incentivizes sharing workloads firmwide, while regional offices provide the personal interaction and on-the-ground support BAL clients have come to expect from the service-oriented firm.
About BAL BAL, the world’s leading corporate immigration law firm, is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable businesses to be more successful. Established in 1980, BAL has consistently provided immigration expertise, people-centered client services and leading technology innovation. In 2018, BAL entered into a first-of-its-kind strategic alliance with Deloitte U.K. to create the world’s first global immigration service delivery model.
BAL’s proprietary Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services and Legalweek‘s Most Innovative Law Firm Operations Team of 2021. BAL and its leaders are highly ranked in every major legal publication, including Best Lawyers, Chambers and Partners, The Legal 500 and Who’s Who Legal. BAL has ranked #1 on multiple industry rankings for diversity, equity and inclusion, including the #1 Law Firm for Women by the National Law Journal four years in a row (2019-2022), #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), and #1 on Law360’s Diversity Snapshot for three years running (2020-2022). BAL won The Best Company for Career Growth and the Best Company for Perks & Benefits by Comparably, based solely on employee ratings. The Dallas Business Journal named BAL one of only a handful of the 2022 Best Places to Work based exclusively on employee feedback. US News & World Report–Best Lawyers named BAL the 2023 Immigration Law Firm of the Year.
See website for details: https://www.bal.com
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174
Effective July 1, 2021, the National Collegiate Athletic Association (NCAA) adopted the Interim Name, Image and Likeness (NIL) policy allowing NCAA student-athletes the opportunity to benefit from their NIL. The NCAA provided clarifying guidance in May. In short, athletes can engage in NIL activities that are consistent with the law of the state where the school is located. College athletes who attend a school in a state without an NIL law can engage in NIL activity without violating NCAA rules.
The federal agencies that regulate foreign student activities have not yet issued guidance on whether, and to what extent, the 20,000 foreign college students on F-1 visas may benefit from their NIL. In this paper we:
Read BAL’s full report on the NCAA’s NIL rules here.
Most people are aware of systemic problems with our immigration system and how it’s affecting the talent pipeline. But what people may not know is how immigration processing delays are impacting the kind of sports and entertainment stars the U.S. is able to attract and keep.
Immigration case backlogs have reached gargantuan levels in the past two years. An astounding 10 million immigration cases are bottlenecked in government caseloads—a 66% increase in pending cases since the end of fiscal year 2019. Delays have acutely impacted sports arenas and Hollywood—two fields where time is always of the essence and international travel comes with the territory.
Most international entertainers and athletes enter the U.S. on temporary work visas, typically “extraordinary ability” (O-1) or “internationally recognized level of performance” (P-1) visas. Those who are able to apply for U.S. permanent residence must remain in the U.S. throughout the adjudication process, unless they obtain a travel document permitting them to leave and return, known as “advance parole.” Before COVID, it only took two to three months for these accomplished stars to regain their ability to travel; now it can take as long as 15 months. Expedite requests are available, but approval is not guaranteed and could still take several months to process.
Asking a pro sports player or Hollywood producer not to travel for over a year is unreasonable and could be detrimental to their careers. Athletes in the NBA, NHL and MLS all travel internationally to face Canadian-based teams every season. Film and music are international industries, requiring entertainers to travel frequently for concerts, filming, awards and other events. The freeze on travel while their green card is being processed is a potentially career-ending suspension in highly competitive fields.
Entertainers who are unable to travel will have to give up lucrative to work in order to maintain their green card case. Recently, a Los Angeles-based British director filed a lawsuit against the U.S. government for delaying her immigration request, potentially hindering a film project in Greece and Bulgaria and costing her a $1 million contract. In that case, USCIS refused the director’s request for expedited processing of her advance parole application that would allow her to leave the U.S. for the months needed for filming without abandoning her green card application.
Athletes and entertainers have few alternate options to obtain a green card, other than staying put in the U.S. while they wait out the delay. Before the pandemic, they might return to their home country to apply for an immigrant visa at the U.S. Consulate as a faster processing route. However, backlogs at Consulates are also significantly delayed, taking away that option.
As a result of these delays, many of my clients are now putting off the green card process indefinitely. They simply cannot afford to be confined to one country for such extended and undefined periods of time. Antiquated immigration policies that fail to respond to highly-mobile 21st century life drive away world-class talent to seek careers in countries with less burdensome policies and a much quicker paths to permanent residency.
Instead of driving away exceptional talent, we should be welcoming the best athletes and artists into our country. Our economic recovery demands that we retain talent who have the potential to lift local economies and allow the U.S. to continue leading the world in sports and entertainment. Reallocation of resources and workloads will not solve the massive backlogs; we need common sense policy changes, such as expanding green card availability and fast-tracking certain categories, that enable leading sports and entertainment stars to flourish in the U.S.
Gabriel Castro is an Immigration Attorney with Berry Appleman & Leiden LLP and leads the firm’s Sports and Entertainment Practice Group in Los Angeles. Gabriel represents organizations, athletes, artists, entertainers, coaches and staff, helping them navigate the complexities of the U.S. immigration system.