By Sungho Cho, J.D.; Ph.D., Bowling Green State University* and Myung-Ah Lee, Ph.D., Indiana State University*
In recent years, the United States has witnessed a significant surge in international collegiate student-athletes (ICAs), with a growth rate exceeding 1000% over the past decade (Baghurst et al., 2018). This increase has resulted in ICAs comprising nearly 13% of the total NCAA Division I (D-I) student-athlete population, a trend that has steadily evolved over several decades (Newell & Sethi, 2023). The remarkable growth of this demographic poses a significant challenge to faculty, administrators, and coaching staff in advising and supporting ICAs’ educational experience and career planning. While the presence of ICAs within higher education institutions plays a pivotal role in facilitating cross-cultural learning and fostering inclusiveness, equity, and fairness (Newell & Sethi, 2023), many ICAs deal with unique challenges, including cultural adjustment, language barriers, financial needs, academic achievements (Baghurst et al., 2018), and post-baccalaureate career development.
In July 2021, a historic shift occurred in intercollegiate athletics when the National Collegiate Athletic Association (NCAA) enacted new legislation on student athletes’ name, image, and likeness (NIL) rights, primarily because of recent antitrust lawsuits against the governing body, i.e., O’Bannon v. NCAA (2015) and NCAA v. Alston (2020). Under the current regulatory scheme, the NCAA no longer restricts the commercial transactions associated with student-athletes’ NIL rights except for a few exceptions, which enable student-athletes to engage in the personal branding business. Amidst this transformative shift, however, a critical point has been overlooked. While the NCAA’s restrictions have been lifted, the federal law governing F1 VISA (i.e., student visa) prohibits ICAs from working off-campus in most cases. This presents complicated problems and policy questions which warrant careful examination.
This study aims to explore the potential solutions to this controversial issue by scrutinizing immigration statutes and relevant agency regulations. After the project explores non-immigrant VISA regulations for ICAs, possible NIL options will be identified. Given the lack of realistic avenues, a regulatory reform at the federal level is called for.
Immigration and Naturalization Act, Code of Federal Regulations, and Public Policy
The immigration and naturalization process in the U.S. is regulated pursuant to the Immigration and Naturalization Act of 1952 and subsequent amendments, 8 U.S.C. § 1101 et seq. (2011). The statutory scheme has been correspondingly codified in the Code of Federal Regulations, 8 C.F.R. § 1 et seq. (2011), which provides government agencies with enforcement authority. Under 8 U.S.C. § 1103 (2011), the Department of Homeland Security primarily oversees the regulatory system through the U.S. Immigration and Customs Enforcement (ICE) and the United States Citizenship and Immigration Services (USCIS). While the ICE is mainly charged with the policing power against illegal immigration and cross-border crime, the USCIS issues employment authorization, administers lawful immigration processes, and adjudicates petitions for non-immigrant VISAs under 8 C.F.R. §§ 274a.12-274a.14 and 8 C.F.R. § 214.1 (2011). Thus, most matters related to ICAs are subject to the USCIS regulations and its jurisdiction.
While the impact of immigrants on the domestic labor market has been controversial in the academia (Edo, 2019), labor economics research generally indicates that the skill composition of immigrant labor force variably influences different groups of domestic workers in competition (Albert, 2021; Borjas, 2003). The U.S. immigration policy mainly intends to protect the low-skilled domestic labor force from the influx of foreign workers who would be willing to accept lower wages while inviting highly skilled immigrants and innovative entrepreneurship. The USCIS regulations echo such a policy background. Non-immigrant VISA holders such as ICAs with F-1 VISA have very limited access to the U.S. labor market.
Non-Immigrant VISAs for International Student Athletes
Most ICAs hold F-1 VISA, which would not allow off-campus employment with few exceptions. The practical training under 8 C.F.R. § 214.2(f)(10) is one of the limited ways that an international student may work off campus: “[a] student may be authorized 12 months of practical training … An eligible student may request employment authorization for practical training in a position that is directly related to his or her major area of study.” Practical training might be either Curricular Practical Training (CPT) or Optional Practical Training (OPT). The CPT is described: “alternative work/study, internship, cooperative education … that is offered by sponsoring employers through cooperative agreements with the school.” 8 CFR § 214.2(f)(10)(i) (2011). The CPT must be an integral component to an academic course with credit hours. On the other hand, the OPT allows a 12-month internship during an academic year, vacation, or after the degree completion as far as the field experience is directly related to the petitioner’s major. 8 CFR § 214.2(f)(10)(ii)(A)(3) (2011). If an ICA’s major is qualified for the science, technology, engineering, and mathematics, (STEM) category, an OPT period can be extended up to 24 months. 8 CFR § 214.2(f)(10)(ii)(C) (2011).
Some ICAs might be qualified for P-1A or O-1A categories if they participate in elite-level high-profile athletic competitions. P-1A can be issued for an individual or team athlete “who is coming temporarily to the United State: (1) [t]o perform at specific athletic competition as an athlete … at an internationally recognized level or performance.” 8 CFR § 214.2(p)(1)(ii)(A)(1) (2011). Some ICAs who compete in the D-I level intercollegiate athletics may be qualified for this category (USCIS, 2021, March 26). If an ICA is an internationally recognized athlete, O-1A VISA is attainable. The regulation provides that: “(A) [a]n O-1 classification applies to: (1) [a]n individual alien who has extraordinary ability in … athletics which has been demonstrated by sustained national or international acclaim.” 8 CFR § 214.2(o)(1)(ii)(A) (2011). The “extraordinary ability or achievement” required for the O-1 VISA category “means a level of expertise indicating that the person is one of the small percentages who have arisen to the very top of the field.” 8 CFR § 214.2(o)(3)(ii) (2011). If qualified, O-1A is the best option for ICAs. The O-1 VISA category is a dual-intent VISA. Thus, an O-1A petitioner does not need to demonstrate that he or she will not immigrate to the U.S. by seeking permanent residency. Additionally, employment-based immigration through EB-1A might be available for an ICA who is qualified for this VISA category. 8 CFR § 204.5(h)(1) (2011). Both P-1A and O-1A categories would allow ICAs to engage in off-campus NIL deals.
Discussion: NIL Options and Career Development for International Student Athletes
Due to the new NIL landscape in intercollegiate athletics, academic and career advising for ICAs have become more complicated and multifaceted. In general, the F-1 VISA regulation does not allow off-campus active income generation (Johnson, 2023). But international students are not prohibited from receiving passive income such as royalty, endorsement fee, stock dividends, real estate rental income, etc. (Johnson, 2023; Romano & Kamyuka, 2022). Some NIL practices might be conceivable if they are carefully designed to avoid any active income generation. Such practice would call for extra caution, however. Although the IRS Code and immigration law are textually connected for the passive/active income distinction, they are two separate statutory schemes with inherently different legislative intent.
Secondly, NIL deals might be arranged between ICAs and off-campus organizations through CPT or OPT internships. Nevertheless, both CPT and OPT must be directly related to ICAs’ academic majors. It might not be logistically easy to find NIL opportunities perfectly matching with ICAs’ individual majors. In addition, the total length of CPT/OPT terms may not exceed 12 months for the entire baccalaureate period, which would negatively affect the value of potential NIL deals with ICAs. The 12-month limit is also a critical factor in ICAs’ career planning. For ICAs, OPT is the only realistic career bridge between their completion of a college degree and full-time employment in the U.S. Thus, OPT might need to be preserved for their post-graduation job opportunities as they will likely have to go through the H-1B employment VISA process with the OPT status. Given the critical value of OPT, CPT would be a better option for ICAs for NIL activities during regular semesters. In this regard, an academic major qualified for the STEM category might have extra merits for ICAs because it allows extended CPT period (24 months in total).
While P-1A and O-1A categories are not widely available to a majority of ICAs, they allow ICAs to maintain employment in the U.S. P-1A provides a longer duration of stay (5 years) than O-1A (3 years) while requiring less stringent international fame than the latter. While both P-1A and O-1A allow ICAs to engage in NIL deals, they are unlikely realistic options for most ICAs due to their demanding standards, i.e., “internationally recognized (P-1A)” and “extraordinary ability in athletics (O-1A),” respectively. Since O-1A requires petitioners’ unique athletic talent, athletes participating in individual sports would have a better chance than those in team sports (Johnson, 2023). While O-1A provides the option to pursue employment-based immigration via EB-1 process, permanent residency (i.e., green card) may not be automatically granted. Since the EB-1 process requires the Department of Labor’s certification that there is a shortage of domestic labor force in the petitioned area of employment, the USCIS has occasionally rejected EB-1 applicants with extraordinary athletic achievement. Man Soo Lee v. Zigler (2002) (stellar playing career in baseball is not necessarily qualified for EB-1 process for coaching).
The current NIL system in collegiate sports almost categorically excludes ICAs except those few qualified for P-1A or O-1A. While ICAs with F-1 VISA may have some limited access to the NIL market through CPT and OPT, they still need to take significant risks of losing their VISA eligibility. According to Haneman and Weber (2022), the relevant regulatory scheme unambiguously articulates that any unauthorized labor performed by immigrants is considered employment, which is in violation of 8 U.S.C. § 1324a(a)(4). If a U.S. Consular somewhere perceives that an ICA’s CPT/OPT is not a type allowed under the immigration regulation, the revocation or nonrenewal of the petitioner’s VISA will be final without any further legal recourse under the doctrine of non-reviewability (Johnson, 2023). The only safe option for ICAs with F-1 status might be incorporating a business entity offshore, creating passive income (Haneman & Weber, 2022).
Despite the apparent inequality, ICAs do not have viable legal claims to challenge the discriminatory system. Due process or 14th Amendment equal protection claims against the NCAA would be unavailable because the NCAA is not a state actor (NCAA v. Tarkanian, 1988). Since NIL deals are managed by external agencies under the NCAA policy, equal protection claims against public institutions must establish the symbiotic nexus between the third-party contractors and schools as a threshold. Title VII discrimination claims would not be conceivable because student-athletes are not employees as of this writing. The federal legislature is the only entity that has the authority and power to clean up this inequitable and chaotic NIL landscape.
References
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Aliens and Nationality, 8 C.F.R. § 1 et seq. (2011).
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Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq. (2011).
Johnson, D. (2023, August). Name, image, and likeness for international student athletes. Journal of Financial Planning, 44-52.
Man Soo Lee v. Ziglar, 237 F.Supp. 2d 914 (2002).
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NCAA v. Tarkanian, 488 U.S. 179 (1988).
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O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).
Romano, R. J., Kamyuka, D. (2022). Understand how F-1 visas impact NIL for international student-athletes. College Athletics and the Law, 19(1), 1.
USCIS (2021, March 26). P-1A Athlete. Policy Manual Volume 2 – Nonimmigrants. https://www.uscis.gov/working-in-the-united-states/temporary-workers/p-1a-athlete.
