NIL and Immigration: Exploring Opportunities and Challenges

By  Arit Dilip Butani and Jocelyn Campanaro 

In 2021, the landscape of collegiate athletics in the United States underwent a significant shift with the introduction of Name, Image, and Likeness (NIL) regulations. These regulations allow student-athletes to profit from their name, image, and likeness, departing from the traditional model where athletes could not earn income while in college. Sports and marketing have been NIL’s focus. However, its intersection with immigration presents unique challenges for student-athletes in the U.S. on student visas.

What are the challenges faced by Immigrant Student-Athletes?

Visa Restrictions: International students are granted F-1 visas/status so that they may live and attend school in the United States. The F-1 status has strict employment and income regulations that often prohibit international students from working. Engaging in NIL activities could potentially violate these visa terms, leading to complications such as visa revocation or deportation.

Is NIL considered active or passive income? According to the Department of Homeland Security, F-1 students can earn active income in the following ways:

1.  F-1 students are generally allowed to work on-campus part-time (up to 20 hours per week) during the academic year and full-time during breaks and holidays.
2. F-1 students may be eligible for Curricular Practical Training (CPT) or Optional Practical Training (OPT), which allows them to work off-campus in jobs related to their field of study either during school or after graduation.

If the NIL compensation requires minimal or no ongoing effort from the student-athlete, this could be considered passive income, which may be permissible under immigration law.  However, if a student receives NIL compensation for services from the student-athlete, this would be considered active income, though would not be covered by one of the abovementioned exceptions.

Given the gray area, whether NIL income is active or passive, what visa options are available for student-athletes to earn income without violating their immigration status?

P-1 Visa:

The P-1 visa is for athletes and entertainers with internationally recognized talent and achievements. It offers a means for athletes to compete in professional sports leagues, tournaments, or events in the United States. To qualify for a P-1 visa, a student-athlete must be part of a recognized sports league or team or have achieved significant international recognition in their sport.

Requirements for the P-1 Visa:

• Evidence of Achievement: Athletes applying for a P-1 visa must provide documentation demonstrating their significant achievements in their sport. This may include awards, rankings, records, media coverage, and endorsements that attest to their exceptional skill and recognition within their field.
• Contract or Invitation: An essential requirement for the P-1 visa is a contract or written agreement with a U.S.-based sports team, league, or organization. Alternatively, student-athletes may provide evidence of an invitation to participate in a specific sporting event or competition in the U.S.
• Supporting Documentation: In addition to the contract or invitation, student-athletes must submit a written consultation from a governing association or organization stating no objection to their sponsorship along with substantial supporting documentation, such as letters of recommendation from coaches or sports officials, professional references, and evidence of past performances, to strengthen their visa application.

Extraordinary Ability Visa (O-1 Visa):

For athletes who possess exceptional talent and achievements in their sport, the Extraordinary Ability visa, or O-1 visa, offers an alternative to the P-1, which may be prohibitive based on a lack of team affiliation or the nature of the field of excellence. Individuals who qualify for an O-1 visa must demonstrate extraordinary ability or sustained acclaim in their field, whether sports, arts, sciences, or business.

Requirements for the O-1 Visa:

• Extraordinary Ability: To qualify for an O-1 visa, student-athletes must provide evidence of their extraordinary ability or achievement in their sport. This may include accolades such as Olympic medals, world championship titles, national team appearances, or recognition from authoritative sports organizations. If someone does not have a record of such acclaim, they may still qualify if they can provide documentation establishing their extraordinary ability by meeting 3 of 10 listed criteria.
• Expert Consultation: Student-athletes applying for an O-1 visa must obtain an advisory opinion from a recognized expert or industry peer attesting to their extraordinary ability and contributions to their sport.
• National or International Acclaim: To establish extraordinary ability, student-athletes must show that they have garnered sustained national or international acclaim in their sport, as evidenced by media coverage, rankings, endorsements, and other indicators of prominence.

Employment-based preference (“EB-1”) category set aside for “extraordinary ability”

This category requires athletes to demonstrate sustained national or international acclaim and achievements recognized in the field. The U.S. Citizenship and Immigration Services (“USCIS”), the Homeland Security division overseeing immigration, defines “extraordinary ability” as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.” The criteria for an EB-1 extraordinary ability green card is similar to that for an O-1 visa, however, the standard of review is much higher.

Requirements for the EB-1 category:

• Extraordinary Ability: The EB-1 classification requires petitioners to demonstrate extraordinary ability reflected by sustained national/international acclaim, achievements recognized in the field, which must be extensively documented, and show that the foreign national has the intent to enter the U.S. to continue to work in the extraordinary field while substantially benefiting the U.S.

• If the student-athlete cannot present evidence of a highly acclaimed sports recognition or awards such as an international championship, the student-athlete must show evidence of at least three of ten criteria, including Receipt of lesser recognized prizes or awards for excellence; Membership in associations requiring as a condition of membership outstanding achievements as adjudged by recognized experts; Published material in professional or major trade publications or major media about the person and their work; Participation as a judge of others in the field;   Performance in a critical role for an organization with a distinguished reputation; and Command of a high salary or other high remuneration.
  
  

Until the Department of Homeland Security clarifies whether NIL money can be passive income without jeopardizing a student-athlete visa for F-1 student-athletes, there are options available to student-athletes that would allow them to transition from their current F-1 visa to either a P-1 visa or O-1 visa, thereby allowing them to receive monetary compensation for their participation in their sport.  To do so, however, requires meeting the rigorous criteria and providing compelling evidence of their talent, achievements, and international recognition. With a solid record of demonstrated achievement, industry support, and recognition, many student-athletes may find a path to earning NIL money without impacting their immigration status and ability to permanently reside in the United States.