By Amy L. Peck & Gregg E. Clifton, of Jackson Lewis
Is it a significant achievement to make it onto a national sports team?
Would winning a top-ten spot in a European championship constitute an award for excellence?
Would being one of a duo who were U.S. junior ice dance champions constitute an internationally recognized prize?
These are questions U.S. Citizenship and Immigration Services (USCIS) has answered in the negative in denying extraordinary ability (EB-1) permanent resident (“green card”) petitions. The rise in these denials, like the steep increase in denials of employment visas, including H-1B and L-1 visas, results from President Donald Trump’s anti-immigration policies affecting legal and illegal immigration. The approval rate for the extraordinary ability category at the end of the Obama Administration was 82.1%. For FY 2018, the rate fell to 69.4%, and the rate likely will be around 56.3% for FY 2019.
To qualify for an EB-1 green card, a foreign national must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The achievements must be proven through extensive documentation. Scientists, artists, and others who would have qualified easily for EB-1 visas before are facing newly heightened standards. Cases involving athletes are particularly illustrative of this.
Unless an athlete has evidence of a one-time achievement, such as a universally recognized Olympic medal, an individual must show that he or she meets at least three out of 10 criteria set out in the regulations to prove eligibility. As the criteria lend themselves to subjectivity, case decisions are not only influenced by law and policy, but also the adjudicator’s opinions.
The athlete EB-1 extraordinary ability petition brings elite athletes to the U.S. as permanent residents, a critical step that is required before becoming a U.S. citizen. Foreign-born athletes cannot be members of the U.S. Olympic team without U.S. citizenship in hand. Reportedly, Christina Carreira, a Canadian, wants to be able to skate with her American-born partner and represent the U.S. at the Olympic Games. USCIS denied her green card, stating that the duo’s U.S. junior ice dance championship and their 2018 silver medals in the world junior championships were not internationally recognized prizes. Without permanent residency, Carreira cannot qualify for U.S. citizenship.
In the 2016 Olympics, the U.S. topped the medal count with 121 Olympic medals. The U.S. was represented by 50 foreign-born athletes, including Kerron Clemen (gold medalist in the men’s 400 meter hurdles), Paul Chelimo (silver medalist in the men’s 5000 meter race), originally of Kenya, Danell Layva (won two individual silver medals in gymnastics), who defected to the U.S. with his family from Cuba, and Foluke Akinradewo (bronze medalist as part of the U.S. Women’s Volleyball team), born in Canada to Nigerian parents. The diversity of the U.S. Olympic team also was represented through its coaches.
Historically, the EB-1 petition can be a faster way to a green card and therefore, a faster way to U.S. citizenship. But that may change if Congress passes the Fairness for High-Skilled Immigrants Act of 2019 or another bill that cuts the backlog for PERM cases without increasing the number of visas available overall. Potential U.S. Olympians could be too old to compete at that high level by the time they jump through all the hoops for obtaining U.S. green cards and then citizenship.
