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The state of Connecticut is celebrating another NCAA basketball championship, but its U.S. senators are lamenting a broader problem in college sports.
Two weeks ago, Sens. Richard Blumenthal and Chris Murphy, both Democrats, wrote a letter to Homeland Security Secretary Alejandro Mayorkas urging him to address current regulations that make it difficult for foreign student athletes to capitalize on their Name, Image and Likeness.
Blumenthal and Murphy noted that both the University of Connecticut’s men’s and women’s basketball teams had international players who made “significant contributions” this year (Blumenthal later mentioned Adama Sanogo and Aaliyah Edwards specifically), and added that, nationwide, more than 20,000 international students currently compete in collegiate athletics.
“As these athletes compete in their sports’ national championships and other high-profile competitions, any one of them could gain notoriety overnight and have substantial NIL opportunities presented to them,” the senators wrote. “The only thing standing in their way is our outdated regulations on the terms of their visas. This is unacceptable.”
We agree.
The problem stems from the fact that most foreign student athletes are on F-1 visas, which permit work only in limited circumstances. In this context, “work” is often equated with earning money from a U.S. source.
As Blumenthal and Murphy correctly note, current regulations do not “speak to the unique circumstances” of foreign students’ use of their NIL to earn money. This creates two classes of student athletes—U.S. athletes who are able to take any NIL deal they are offered, and foreign athletes who could jeopardize their immigration status for doing the same thing.
There are some workarounds. For example, foreign student athletes can conduct NIL activities while outside the U.S. Others have been successful in converting from an F-1 to an O-1 visa (for individuals with outstanding abilities) or P-1 visa (for athletes, artists or entertainers), which would allow them to work, attend class and participate in their sport.
Neither is a satisfactory long-term solution, however. There are logistical challenges to going abroad, and legal costs and filing fees make applying for a different visa an unattractive option for many student athletes.
A sensible solution would be for DHS to turn to the B-1 Temporary Business Visitor visa as a model. B-1 visitors are barred from “performing skilled or unskilled labor” in the U.S. However, the government has issued rules and guidance regarding a range of business-related activities that are considered permissible (i.e., not “labor”), such as engaging in certain commercial transactions, consulting with business associates, traveling to conferences, short-term training and negotiating contracts.
Even professional athletes can use B-1 visas to participate in tournaments or sporting events if they only receive prize money, which, for some sports, can mean earning millions of dollars.
There is no reason DHS cannot do the same for F-1 international students. After all, they are—first and foremost—students, and most NIL deals are worth far less than the amounts professional athletes can receive competing in multiple tournaments or events.
Many NIL activities require very little of the athlete and may include signing autographs, making personal appearances or posting on social media. These activities are merely incidental to visa holders’ status as student athletes, which requires them to maintain a full course of study. This kind of approach would allow international athletes to secure NIL deals and carry out their end of the bargain in the U.S.—not outside the country.
To date, DHS has not engaged relevant stakeholders on this issue and appears to lack a true understanding of the NIL opportunities available to students. It has been nearly two years since the NCAA adopted its NIL policy, and the government has yet to issue any guidance.
The good news is Blumenthal and Murphy appear to have grabbed Mayorkas’ attention. At a Senate Judiciary Committee hearing last week, Mayorkas thanked Blumenthal for the letter and said he had not previously been aware of the issue.
“We are indeed looking at the issue very carefully,” he said, adding, “We will move with deliberate speed … we will move as quickly as we can.”
Until then, the two-tiered system of college sports will continue. DHS, the ball is in your court.
Gabriel Castro is a Senior Associate at BAL who leads the firm’s Los Angeles office and Sports and 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 and Entertainment teams. Castro and Derentz authored a white paper on the NCAA’s NIL rules in 2022 and appeared on a recent episode of the firm’s podcast to discuss the issue.
U.S. Citizenship and Immigration Services has opened the 90-day filing period for petitioners whose registrations were selected in this year’s H-1B lottery.
Preliminary analysis suggests that this year’s cap-selection rate was even lower than last year’s, when a record number of registrations were submitted. Depending on an employee’s particular circumstances, alternative visa routes may be available.
Employers are encouraged to consider alternatives for those who were not selected in the lottery. These alternatives include:
BAL Analysis: Employers are encouraged to work with their BAL attorney to explore H-1B alternatives for their current job candidates as well as to map out long-term options for their workforce. BAL will provide additional cap-season updates as information becomes available.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
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.
U.S. Citizenship and Immigration Services has removed the requirement that civil surgeons must sign Form I-693, Report of Immigration Medical Examination and Vaccination Record, no more than 60 days before an individual applies for an underlying immigration benefit.
Key Points:
BAL Analysis: USCIS stated that it removed the 60-day civil surgeon signature rule as there was a consensus among applicants, physicians, USCIS officers and other stakeholders that the requirement was confusing and did not “enhance operational efficiency.” Going forward, the agency will accept Form I-693 for up to two years from the date of a civil surgeon’s signature.
A federal judge in Washington, D.C., has ruled in favor of the government in a lawsuit that challenged an Obama-era rule that allows some H-4 spouses to apply for employment authorization documents.
BAL Analysis: Wednesday’s ruling is a significant victory that upholds eligible H-4 spouses’ rights to work in the United States. Save Jobs USA may appeal the ruling, and BAL will continue following the litigation and will provide updates as they become available.
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.
U.S. Citizenship and Immigration Services has issued policy guidance to address instances when the last day to file or respond to a USCIS action is on a Saturday, Sunday or federal holiday.
The guidance clarifies that:
Additional Information: The guidance applies to benefit requests and responses that were pending on or received by USCIS on or after March 29, 2023. USCIS will not apply the policy retroactively.
USCIS considers responses that are submitted electronically to be received immediately; electronic filings are not affected by USCIS not accepting deliveries on Saturdays, Sundays and federal holidays. More information regarding USCIS’ guidance on timeframes for accepting filings and responses on weekends or federal holidays is available here. The updated USCIS Policy Manual is available here.
Processing times for U.S. passports continue to rise as summer travel season approaches, according to the most recent update from the U.S. State Department.
Key Point:
Additional Information: Mailing times are not included in processing time estimates; processing times begin the day the Department receives the application. It may take an additional two to four weeks from the day the application is mailed for the status of the application to state “In Process.” Some applications may be further delayed because the State Department requests additional information. Applicants must respond to such requests in order for processing to resume. Additional details regarding the request for more information can be found here.
BAL Analysis: Passport processing times are expected to continue to increase as the State Department expects this to be its “busiest summer travel season on record.” As passports are in “unprecedented demand,” U.S. citizens intending to travel abroad and in need of a new passport should renew their passport as soon as possible to reduce the chances of travel delays and complications. Passports must generally be valid for at least six months to enter a foreign country. Employers and employees should continue to consult their BAL professional before planning international travel.
U.S. Citizenship and Immigration Services announced today that it had completed the H-1B lottery after registrations exceeded H-1B quotas during the electronic registration period.
BAL Analysis: Employers should begin preparing to file full petitions for selected candidates. While the filing period will remain open for 90 days, employers should prioritize time-sensitive candidates such as F-1 students on cap-gap and others whose status may expire soon. BAL will continue to follow developments related to the H-1B cap season and will provide updates as information becomes available.
The U.S. State Department plans to publish a rule tomorrow, March 28, to increase consular fees for nonimmigrant visa applications and Border Crossing Cards for certain Mexican citizens.
Fee increases include:
The Department previously proposed increasing the exchange visitor waiver of two-year residency requirement (J-Waiver fee). However, the fee will be kept at $120, instead of the proposed $510.
Additional Information: The rule is set to take effect 60 days after it is published. The State Department stated the increases will help ensure that “fees for providing these consular services better align with the costs of providing the services.” The consular fee increases are less dramatic than the U.S. Citizenship and Immigration Services fee increases.
BAL Analysis: The new consular fees will increase overall costs but are lower than what was originally proposed at the end of 2021. The State Department stated that it made the decision to recalculate the fees “before moving forward with the final rule to ensure that it did not implement fees in excess of its actual costs.” Current fees will remain in place until the effective date. BAL will continue following the rule and will provide updated information as it becomes available.
This alert has been provided by BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
U.S. Citizenship and Immigration Services announced Thursday that it would end pandemic-related flexible measures for responding to some agency requests. The move had been expected after USCIS said in January the measures would be extended to March 23 but likely would not be extended again.
BAL Analysis: The U.S. government continues to review pandemic-related policies in light of the Biden administration’s plans of ending the COVID-19 national and public health emergencies on May 11. This includes reviewing temporary Form I-9 measures and its vaccination policies for nonimmigrant foreign nationals traveling to the United States. BAL will provide updates as information becomes available.
The State Department released the April Visa Bulletin, showing retrogression for India EB-2 and “all other countries” EB-2, as well as moderate advancement for China EB-3. U.S. Citizenship and Immigration Services announced it would use the Final Action Dates chart for employment-based filings.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: Family-based applicants must use the Dates for Filing chart next month, according to the USCIS announcement. More information is available here.
The State Department also announced that it listed final action and application filing dates for EB-4 visa applicants from El, Salvador, Guatemala and Honduras in the “All Chargeability Areas Except Listed” column, resulting in a EB-4 retrogression as of April 1, 2023, under final action dates. More information regarding this change is available in this Federal Register notice.