A shifting paradigm…an opportunity for normalizing status
by Joshua P. Bratter, Immigration Counsel to SwimSwam
There has been a veritable paradigm shift in the world of competitive sports. The challenges for international athletes are heightened and intensified by the impact and indefinite scope of the current health crisis.
With student programs, training camps, club teams, and international competition modified, postponed, or even canceled, it is critically important that one take measures in an organized and forward-thinking manner to preserve status, maintain eligibility, and plan for the future.
Whether it’s the Olympics, the ISL, a club team, resumption of studies, or just maximizing this period of inactivity to formulate a plan and put it into action, the field is narrowing, and compliance-related issues are being used with more frequency.
As the iconic Mike Tyson said, “Everybody has a plan until they get punched in the mouth.” What he meant is plans can change, and quickly. Preparation does not. I think it’s fair to say that we have all just been collectively punched in the mouth. The question is: What’s your plan?
What follows is a best-practices list of steps that you can, and should, be taking to navigate the impact of these uncertain times:
ONE
Student visas: If you are under the F-1 student visa based on an athletic scholarship and classes have been shifted to a virtual structure, please make sure to consult with your international student office and coach to coordinate and maintain SEVIS, your I-20 extension. These instruments will be used to determine eligibility for extended status and the impact of the suspended classes and competition on your NCAA athletic eligibility, including extensions for competition. As a corollary, please verify confirmation of existing financial support, including scholarships, work-study, and eligibility beyond the completion of coursework.
TWO
Optional practical training and employment authorization: The foregoing raises a related consideration. Under certain circumstances, given the financial hardship brought on by this indefinite interruption, U.S. Citizenship and Immigration Services allows for student applications to be filed for employment authorization in advance of the traditional post-completion designation. While these applications are reviewed on a case-by-case basis and not a de facto policy for approvals, it is a consideration to be evaluated.
a. Specifically: “An eligible F-1 student may request employment authorization based on severe economic hardship caused by unforeseen circumstances beyond the student’s control. These circumstances may include a loss of financial aid or on-campus employment without fault on the part of the student, substantial fluctuations in the value of currency or exchange rate, inordinate increases in tuition and /or living costs, or unexpected changes in the financial condition of the student’s source of support, medical bills, or other substantial and unexpected expenses.” (Source: 8 C.F.R. 214.2(f))
b. Many of you are experiencing very unexpected restrictions on your financial support; you may consider this option to lighten some of the pressures you are undoubtedly dealing with. It is important to know that time in OPT used now will be deducted from completion OPT. (OPT is employment authorization based on completion of coursework associated with your prospective degree.)
THREE
Passport validity: Check the expiration date of your passport. You can find it here:
FOUR
Visa validity: Check your most recent visa stamp in your passport to confirm the expiration date and that the data is accurate. This is a visa, and where you should be looking:
FIVE
I-94: You may wish to verify your most recent I-94 and use the travel-history function to prepare a log of all travel for the past 30 days. This may become relevant with country-specific restrictions. Your I-94 is the entry document that you receive (virtually) when you pass inspection at the airport before being admitted. It is now issued electronically. You can locate both your I-94 and your travel history at i94.cbp.dhs.gov/I94.
a. In the event that your I-94 is not properly updated, or if there is an error in the data, you may review your profile at www.cbp.gov/contact/ports/deferred-inspection-sites.
SIX
If you are a coach or athlete under an employment-based visa category, as a competitive athlete or coach, in P-1, P-1S, or O-1 and O-2, please know that there are certain rights and benefits you are afforded to allow for interruptions to the existing status.
a. The first is a grace period of 60 days for a termination or change in employment. This 60-day “bridge” can be used very strategically to extend and reinstate status.
b. The second is the need to explore existing categories using creative, unconventional methods, such as management or agency relationships, in lieu of formal employment. In many instances, an agency relationship may favor the ability to explore multiple opportunities at the same time, while providing for a bit more flexibility. This is particularly relevant in the era of the ISL, which has introduced a formal pro league, endorsement and sponsorship opportunities, and the infrastructure and personnel to support it.
SEVEN
Interview preparation: In the immigration life cycle of an athlete, there are two instances in which you may have to interface with an immigration official to corroborate or verify an attestation made on your visa application or residency petition. This occurs either at the consulate during visa issuance or before an immigration officer during your residency interview. In both scenarios, the interview is used by the immigration officer to confirm that the plan/itinerary presented with the petition is met. Further, it allows an immigration officer to confirm or verify the attestations presented in the petition. As most of our clients are either Olympic qualifiers or ISL competitors, or participating as part of a collegiate program, careful preparation will be required to explain gaps in competition, events or engagements that were not met, or general modifications to the underlying status. USCIS has published several memoranda and policy updates addressing the use of favorable discretion in reviewing cases that have been affected by the health crisis; we have begun developing a virtual archive of these documents in preparation for interviews and to supplement existing petitions that have changed because of the circumstances. That would be everyone.
EIGHT
Set new goals: There will be an Olympics and an NCAA and life after COVID-19. Many of the categories for athletes or coaches are based on achievement or merits, as opposed to a conventional job offer. This means that immigration looks to your performance in the sport as the basis for eligibility. One of the more interesting byproducts of the ISL, forums like SwimSwam, and televised swimming is a commercial industry to support the sport. It is really exciting to see the emergence of podcasts, vlogs, swimming influencers, and apparel lines. We have encouraged clients in these related disciplines to grow in the sport out of the pool. We have seen incredible publications by coaches, new seminars on performance and mental health, and an emerging resounding voice for this unique community of athletes.
It is important to note that all U.S. consulates have suspended visa appointments, that there are restrictions on travel throughout the world.
In the world of swimming, more time usually means a slower finish.
In the world of immigration, more time allows for stronger cases.
Let’s use this time to expand options and strengthen existing petitions.
Joshua P. Bratter, Esq.
[email protected]
www.bratterpa.com
Attorney Joshua Bratter currently serves as the official Immigration Counsel to the American Swimming Coaches Association and he’s SwimSwam’s Immigration Expert and partner.
