By Brenda Oliver and Amy Peck, of Jackson Lewis
Prior to 2021, collegiate student-athletes were not able to make sponsorship deals and profit from their names, images, and likenesses (NILs). However, in 2021, that changed when the NCAA adopted a new policy allowing student-athletes (those headed for professional teams, as well as less prominent players) to profit from, and build their brands, while in school.
Colleges, sports associations, and states have enacted various rules to help and protect student-athletes. But there is one group of athletes who have yet another hurdle to jump. Foreign students who are on F visas are in murky waters with respect to the work authorization that would allow them to participate in endorsement-type deals in the United States. NIL deals do not currently qualify as authorized on-campus employment for students on F visas. Until the regulations are changed or clarified, there are some options for foreign student-athletes, but these do not hold much promise for most.
Although the standards are difficult to meet, student-athletes could apply for O or P visas. To apply for an O visa, a student must be able to show they have extraordinary ability in athletics, demonstrated by sustained national or international acclaim. The student must be in the small percentage of those who have risen to the very top of their field. Although not impossible (only one has been granted to date), this is a very high standard to meet, especially for a student just coming out of high school.
As for P visas, the student-athlete must come to the United States to perform at an internationally recognized level. Unless the student will be participating in something akin to the Olympics, it could be very difficult to meet the eligibility requirements.
An EB-1 extraordinary ability green card could be another path to work authorization. The student must meet an even more heightened version of the O visa standard– again, a difficult road.
If the student is an immediate family member of a U.S. citizen, a family-based green card is a possibility. This means the student would have to be sponsored by a U.S. citizen spouse or parent (if the student is under 21 years of age and unmarried).
Other Family-Based Possibilities
Students married to certain individuals on H-1B, L, or E visas might be eligible for work authorization based upon their dependent status. Dependents of individuals on L or E visas have work authorization incident to their status. Those married to H-1B visa holders who have reached a certain stage in their green card process are eligible for H-4 employment authorization.
There are various humanitarian statuses that allow for work authorization, including Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), and Deferred Enforced Departure (DED). Students from countries that have been designated eligible for TPS due to country conditions may be eligible for work authorization. The same could be said for students who are eligible for DACA or DED.
The Student and Exchange Visitor Program (SEVP) is overseen by Immigration and Customs Enforcement (ICE). There are reports that ICE is considering whether students can participate in NIL deals on F visas, but guidance has yet to be issued. Participating in NILs without a proper visa could lead to damaging immigration consequences. Given the financial stakes, some students attempt to walk a very narrow line by entering contracts with companies outside of the United States or arguing that some of these endorsement agreements are simply passive investments that do not require them to “work” in the United States. This path must be carefully considered and analyzed by an experienced immigration attorney.