By Kristian Lundberg*
As college students across a variety of sports enjoy their new freedom to profit from their names, images, and likenesses, one group of student-athletes remains left out of this $1 billion industry: F-1 visa holders. Because F-1 visas restrict opportunities for student employment, foreign college athletes may begin to look to the O-1 visa—bestowed upon immigrants of “extraordinary ability”—to benefit from the new name, image, and likeness (“NIL”) regime. The O-1 visa would not restrict its holder from entering the NIL market, but obtaining such a visa has required meeting stringent evidentiary burdens that many professional athletes have failed to overcome. This Contribution highlights the benefits of NIL rights for college athletes and suggests a rethinking of the O-1 “extraordinary ability” visa to level the playing field by allowing foreign college athletes to participate in the NIL market on par with their domestic peers.
Following the Supreme Court’s decision two years ago in NCAA v. Alston, which struck down limits on education-related benefits provided to college athletes,1 the NCAA promulgated new rules permitting student-athletes to earn compensation for their name, image, and likeness (“NIL”).2 The NIL market has since exploded, benefiting athletes at big and small schools alike.3 However, due to restrictions for F-1 visa holders, foreign student athletes have been left out of the burgeoning $1 billion industry.4
Most foreign student athletes enter the United States on an F-1 student visa, which comes with restrictions that block college athletes from benefiting financially from endorsements.5 Currently, F-1 visa holders are permitted to obtain employment only if related to their curriculum or studies6—and NIL deals are arguably related to neither. So far, U.S. Citizenship and Immigration Services (USCIS) has remained silent on how NIL rights interact with the F-1 requirements, compelling universities to advise international college athletes that signing NIL deals could jeopardize their visa eligibility.7
As a result, some immigration attorneys have asked the government to clarify that NIL deals count as permissible employment under the F-1 visa.8 However, in the absence of action by USCIS or the Department of Homeland Security, foreign college athletes may begin to explore alternatives to the F-1 visa, including the “extraordinary ability” O-1 visa, under which visa holders are permitted to work in their area of “extraordinary ability.”9 Recent trends suggest that certain student-athletes can demonstrate the requisite ability to qualify for this visa.
By design, the “extraordinary ability” visa is “extremely restrictive.”10 Under section 203 of the Immigration and Nationality Act (“INA”), O-1 visas are designed for persons with “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim.”11 In addition, the applicant must also demonstrate that they will “continue work in the area of extraordinary ability, and [their] entry into the United States will substantially benefit prospectively the United States.”12 Courts have interpreted this “substantial benefit” provision to require the reviewer to compare the athlete’s skill not just to all players of the sport worldwide, but to those at the highest level of the game.13
The O-1 visa, like other temporary work visas, requires the applicant (or any person on their behalf) to first file a petition with USCIS.14 The petition must meet a two-step evidentiary inquiry. First, to show that an applicant has sustained national or international acclaim with achievements recognized in their field, the applicant can either rely on evidence of a “one-time achievement (that is a major, international recognized award),” or provide at least three enumerated types of evidence.15
If the USCIS reviewing officer determines that the evidence proffered sufficiently establishes extraordinary ability, the applicant has one more hurdle to clear. Following the Ninth Circuit’s holding in Kazarian v. USCIS, which criticized the agency’s process of permitting its reviewers to weigh the credibility of the evidence at the same time as they determined whether the applicant had met the criteria,16 USCIS adopted a second layer of filtering on potential applicants.17 Thus, in the second stage of USCIS’s evaluation, the agency conducts a “final merits determination”18 to determine whether the individual has “a level of expertise indicating that the individual is one of that small percentage who ha[s] risen to the very top of the[ir] field of endeavor.”19 This determination is performed by weighing the totality of the evidence.20
If the USCIS reviewer denies the petition, the applicant can then file an appeal in an Article III court under the Administrative Procedure Act (APA).21 However, the reviewing court must adhere to a more deferential “abuse of discretion” standard of review.22 The APA empowers courts to “hold unlawful and set aside agency action, findings, and conclusions” only when they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”23 Under this narrow standard of review, which otherwise encourages courts to defer to the agency’s expertise, an agency merely needs to articulate a reasonable explanation for its action.24 In other words, courts “have held it an abuse of discretion for [an agency] to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law.”25 And, absent a few notable exceptions described below, courts have been reticent to conclude that USCIS abused its discretion to bestow (or, more often, not bestow) O-1 visas on petitioners.
Thus, the regulatory standard and standard of review impose significant hurdles to O-1 visa applicants. Indeed, the scant caselaw reviewing USCIS denials of extraordinary ability visas paint a gloomy picture for prospective applicants. In Noroozi v. Napolitano, the Southern District of New York found that the 284th ranked table tennis player was not sufficiently extraordinary to merit an extraordinary ability visa.26 The court reasoned that, were they to offer a visa to the 284th-best table tennis player, “[it] would effectively oblige CIS to find that the 283 higher-ranked table tennis players in the world . . . would also satisfy the standards for an extraordinary ability visa.”27
The Northern District of Illinois came to a similar conclusion in its review of the visa petitions of a quartet of professional hockey players: Allan Grimson, Craig Muni, Yves Racine, and Cam Russell. In Grimson, Muni, and Racine, the court found that the Immigration and Naturalization Service (INS)—the precursor to USCIS—had improperly diminished the accomplishments of the three players, finding that they were among the best in the National Hockey League (NHL), the top hockey league in the United States.28 In contrast, the court in Russell found that Russell was merely a “competent” player at the NHL level, and even though making it to the NHL is impressive, Russell was not elite compared to his brethren at the NHL level.29
As a third example of the remarkably high standard for O-1 visa eligibility, a court affirmed USCIS’s denial of an O-1 visa petition for a competitive ballroom dancer, noting that while “it has little doubt that [the petitioner] is a very good ballroom dancer, . . . that is a different question from whether USCIS acted arbitrarily when it denied her application for an extraordinary-ability visa.”30 In short, it is not enough to be good or even “very good”; successful applicants must be truly extraordinary.
So why have O-1 visas been gaining additional momentum for use in college athletics? Traditionally, O-1 visas are rarely used for foreign students, as the purpose of O-1 status is to support a star professional’s entry into the United States. While O-1 visa holders are allowed to attend degree programs, such attendance must be incidental to their primary purpose for being in the United States: to “substantially benefit prospectively the United States.”31
However, with the advent of NIL rights comes the recognition that athletes are not merely students but economic actors, which may give a boost to foreign students’ O-1 visa petitions. College athletics are a lucrative industry; estimates suggest that a single season of college football generates over $4 billion in revenue for top schools.32 Furthermore, the rise of the NIL market has helped athletes in a variety of sports. Paige Bueckers, a star basketball player on the University of Connecticut (UConn) women’s team, signed NIL deals with companies like Gatorade and StockX.33 Olivia Dunne, a Louisiana State University (LSU) gymnast with over 6 million social media followers, was projected to earn over $2 million representing American Eagle and Vuori, among other brands.34 As opposed to the F-1 visas generally used by students, granting extraordinary ability visas to college athletes can provide additional options for college athletes to profit from endorsements. The ability to command a high salary—one of the criteria for evaluating an O-1 visa35—is now open to collegians in the NIL era, as opposed to the strict requirements of amateurism in the pre-Alston era. And it is increasingly evident that for many student-athletes, the main reason they are invited to the United States is not to pursue their college major but rather to contribute to their college’s sports team.
Finally, while the regulatory criteria remain formidable, USCIS has recently shown willingness to consider foreign college athletes for O-1 visas: In October 2022, Northwestern State freshman Hansel Emmanuel made history as the first college athlete to receive an O-1 visa.36 As a basketball player with one arm, Emmanuel received significant media attention and multiple scholarship offers from Division I schools. While Emmanuel’s personal story is groundbreaking and unique, other athletes who have achieved similar success in their home countries will be able to point to Emmanuel as favorable precedent for their own petitions.
College athletes have enjoyed new power and new opportunities as beneficiaries of NIL rights, but, so far, foreign athletes have been left on the bench. The O-1 visa provides an intriguing way to level the financial playing field.
* Kristian Lundberg is a 3L at New York University School of Law. This Contribution is a commentary on the 2023 problem at the Mardi Gras Moot Court Invitational at Tulane University. The issue in the problem was whether a foreign-born minor league baseball player should be granted an “extraordinary ability” employment-based visa.
1. NCAA v. Alston, 141 S. Ct. 2141, 2166 (2021).
2. Michelle Brutlag Hosick, NCAA adopts interim name, image and likeness policy, NCAA (June 30, 2021, 4:20 PM), https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx.
3. See Amanda Christovich, One Year of NIL: Becoming a Billion-Dollar Industry, Front Office Sports (July 1, 2022, 11:46 AM), https://frontofficesports.com/nil-billion-dollar-industry/.
4. See id.
5. Under 8 C.F.R. § 214.2(9)(i) (2023), F-1 visa holders are subject to certain restrictions when working. Students on an F-1 visa are limited to 20 hours per week of “on-campus employment,” which is defined as employment “on the school’s premises . . . or at an off-campus location which is educationally affiliated with the school.” However, to participate in “off-campus employment”—which USCIS considers “employment that is for economic need and does not necessarily have to relate to the student’s academic course of study”—students must be in F-1 status for at least a year and show “severe economic hardship.” 8 C.F.R. § 214.2(9)(i) (2023); see also F-1 Student On-Campus, U.S. Immigr. and Customs Enf’t, https://www.ice.gov/sevis/employment#tab0 (last visited Sept. 2, 2023).
6. 8 C.F.R. § 214.2(9)(i) (2023).
7. See, e.g., International Student Athletes and NCAA “Name, Image, & Likeness” (NIL) Legislation, University of Florida International Center, https://internationalcenter.ufl.edu/f-1-student/f-1-status-requirements/employment/international-student-athletes-and-ncaa-nil-legislation (“[I]t is rare that an NIL activity will qualify for [employment] authorization [for F-1 visa holders]. As a result, all NIL opportunities conducted while in the United States in F-1 immigration status would potentially, and likely, violate US immigration law.”).
8. See Andrew Kreighbaum, Star’s Visa Is Rare Win for Foreign Athletes Banking on Likeness, Bloomberg Law (Nov. 3, 2022, 5:35 AM), https://news.bloomberglaw.com/daily-labor-report/stars-visa-is-rare-win-for-foreign-athletes-banking-on-likeness (“[I]mmigration attorneys have asked [the Department of Homeland Security] to issue new guidance that reclassifies NIL deals as permissible campus employment under student visas.”).
9. 8 U.S.C. § 1153(b)(1)(A).
10. Kazarian v. U.S. Citizenship & Immigr. Servs., 596 F.3d 1115, 1120 (9th Cir. 2010) (“The regulations regarding th[e “extraordinary ability”] classification are extremely restrictive.”) (quoting Lee v. Ziglar, 237 F. Supp.2d 914, 918 (N.D. Ill. 2002) and collecting cases).
11. 8 U.S.C. § 1153(b)(1)(A)(i).
12. 8 U.S.C. § 1153(b)(1)(A)(ii).
13. See, e.g., Racine v. INS, No. 94 C 2548, 1995 U.S. Dist. LEXIS 4336, at *13 (N.D. Ill. Feb. 16, 1995) (“[T]he appropriate field of comparison is not a comparison of [the petitioner’s] ability with that of all . . . players at all levels of play; but rather, [the petitioner’s] ability as a professional hockey player within the [National Hockey League].”); Russell v. INS, 2001 U.S. Dist. LEXIS 52, at *18 (N.D. Ill. Jan. 3, 2001) (comparing the petitioner, deemed to be a “competent” defensive hockey player, to a player considered to be “one of the best defensemen in professional hockey”).
14. 8 C.F.R. § 204.5(h)(1) (2023).
15. 8 C.F.R. § 204.5(h)(3) (2023).
16. Kazarian, 596 F.3d at 1121–22 (concluding, in finding error below, that while certain “substantive or evidentiary requirements . . . might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence”) (citing 8 C.F.R. § 204.5(h)(3)).
17. Memorandum on Evaluation of Evidence Submitted with Certain Form I-140 Petitions, USCIS (Aug. 18, 2010) (https://perma.cc/49TA-YQEC) (explaining the two-step process for evaluating O-1 visa petitions).
18. Noroozi v. Napolitano, 905 F. Supp. 2d 535, 539 (S.D.N.Y. 2012) (quoting Memorandum on Evaluation of Evidence Submitted with Certain Form I-140 Petitions).
19. 8 C.F.R. § 204.5(h)(2) (2023).
20. Noroozi, 905 F. Supp. 2d at 545.
21. See 5 U.S.C. 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”).
22. See, e.g., Integrity Gymnastics & Pure Power Cheerleading, LLC v. U.S. Citizenship & Immigr. Servs., 131 F. Supp. 3d 721, 726 (S.D. Ohio 2015) (“Review under the arbitrary and capricious standard is narrow; the reviewing court may not substitute its judgment for that of the agency even if the court might otherwise disagree with the agency’s decision.”); Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376 (1989).
23. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 413–14 (1971) (quoting 5 U.S.C. § 706(2)(a)).
24. See Ziglar, 237 F. Supp. 2d at 916–17 (“[W]e must defer to the INS’ decision unless it: 1) is made without a rational explanation, 2) inexplicably departs from established policies, or 3) rests on an impermissible basis.”).
25. Kazarian, 580 F.3d at 1033.
26. Noroozi, 905 F. Supp. 2d at 535.
27. Id. at 546.
28. Grimson v. INS, 934 F. Supp. 965, 969 (N.D. Ill. 1996); Muni v. INS, 891 F. Supp. 440, 446 (N.D. Ill. 1995); Racine, 1995 U.S. Dist. LEXIS 4336, at *24.
29. Russell, 2001 U.S. Dist. LEXIS 52, at *18.
30. Visinscaia v. Beers, 4 F. Supp. 3d 126, 136 (D.D.C. 2013).
31. 8 U.S.C. § 1153(b)(1)(A).
32. See Steve Berkowitz, Major public college football programs could lose billions in revenue if no season is played, USA Today (Apr. 15, 2020), https://www.usatoday.com/story/sports/ncaaf/2020/04/14/college-football-major-programs-could-see-billions-revenue-go-away/2989466001/ (estimating that schools in the top 5 conferences would lose $4.1 billion were the football season to be canceled due to the COVID-19 pandemic).
33. Jay Bilas, Why NIL has been good for college sports . . . and the hurdles that remain, ESPN (June 29, 2022, 7:00 AM), https://www.espn.com/college-sports/story/_/id/34161311/why-nil-good-college-sports-hurdles-remain.
34. Kurt Streeter, New Endorsements for College Athletes Resurface an Old Concern: Sex Sells, N.Y. Times (Nov. 8, 2022), https://www.nytimes.com/2022/11/08/sports/ncaabasketball/olivia-dunne-haley-jones-endorsements.html.
35. 8 C.F.R. § 204.5(h)(3)(ix) (2023).
36. Andy Wittry, Northwestern State’s Hansel Enmanuel receives historic O-1 visa, On3 (Oct. 20, 2022), https://www.on3.com/nil/news/hansel-emmanuel-basketball-nil-deal-northwestern-state-visa-status/.