Urgency builds to address how employee model affects international athletes

If an employee model takes hold for at least some college athletes, it would radically reimagine the enterprise in ways both known and unknown. But for international athletes, the effects could be devastating.

How an employee model impacts international athletes is a consequential issue in need of a brighter spotlight.

United States immigration regulations prohibit international students in the U.S. on F-1 student visas from participating in employment. F-1 visas provide for only limited employment authorization types, most of which must be connected to the degree the athletes pursue.

A National Labor Relations Board regional director’s conclusion on Feb. 5 that Dartmouth men’s basketball players are employees of their college has heightened the urgency for the government to address this issue – even though avenues for reviews and appeals could take years to exhaust.

If an employee model is ushered in for some athletes, “overnight we could have any number of international student-athletes that are immediately in violation of their [F-1 student] status,” award-winning immigration attorney Ksenia Maiorova, also known as “The Sports Visa Lawyer,” told On3.

Employee model would create significant issues

On Feb. 9, Ksenia’s colleague, attorney Amy Maldonado, sent a four-page letter to U.S. Citizenship and Immigration Services Chief Counsel Ashley Tabaddor and U.S. Department of State attorney-advisor Theresa Repede.

The subject line: Urgent legal issue affecting NCAA international student-athletes.

“The characterization of F-1 international student-athletes as workers, or employees, makes urgent the need to clarify what F-1 international student-athletes may and may not do without violating their F-1 nonimmigrant student status and jeopardizing future visa renewals,” Maldonado wrote.

“We believe that this decision by the NLRB makes it critically important that guidance be issued by DHS and State as soon as possible to the more than 20,000 international student collegiate athletes (who may now be found retroactively to have violated status by USCIS, ICE, CBP or State based on the recharacterization of at least some of their athletics program activities as ’employment’).”

Some 12% of Division I athletes are international, including four players on Dartmouth’s men’s basketball team. Current immigration regulations have made it exceedingly difficult for international athletes to legally partake in NIL in the U.S. Typical NIL opportunities require an athlete to perform a service for compensation, which conflicts with immigration policy.

Plus, an employee model would create a significant issue for international athletes.

Today’s decision by @NLRB that @dartmouthsports @NCAA D1 basketball players are “employees” jeopardizes every international student athlete’s F-1 visa. As @sportsvisalaw and I have been saying, F-1 students have restricted employment authorization that DOES NOT COVER this.

— Amy Maldonado 🗽 (@AmyMaldonadoLaw) February 6, 2024

Regulatory change not coming quickly

A regulatory change is unlikely at this stage in President Joe Biden’s current term, Maiorova said. So, if anything is imminent, it will be in the form of policy guidance from the U.S. Department of Homeland Security. Ideally, she added, the Department of State would also issue some guidance mirroring what DHS does to avoid conflicting interpretations by the two agencies. DOS is the agency over the consulates where the visas are issued, so it’s important for the guidance to be aligned.

Maiorova and her partner, Jonathan Grode, are also trying to raise awareness with the National Association of Foreign Student Advisers (NAFSA) to hopefully generate some advocacy for this issue on that front.

“But overall, I think the more time passes after the decision without some kind of comment or policy pronouncement” from DHS and/or DOS, she said, “the less hopeful I am that they will address this.”