Foreign Athletes Now Struggle to Demonstrate They Have “Extraordinary Ability”

I have been practicing immigration law and working with private clients in the entertainment industry for a decade. I have practiced law and resided in both Los Angeles and New York – the two largest hubs in the United States for entertainment and sports. As such, many of my clients are high-profile entertainers and athletes, representing some of the world’s most brilliant individuals. I have been exposed to a vast amount of exceptionally talented foreign-born directors, producers, actors, models, scientists and athletes, all of whom are competing to demonstrate to the United States government that their accomplishments and achievements are worthy of a green card.

Foreign-born athletes prospectively immigrating to the United States have typically relied on talent-based green card options to persuade the United States Citizenship and Immigration Service (USCIS) that they are regarded as “extraordinary.” The USCIS defines “extraordinary ability” in athletics as an individual who has attained a level of “sustained national or international acclaim” and whose achievements are recognized through extensive documentation, including major media, awards and high-performing competition results. Historically, athletes who can demonstrate extraordinary accomplishments fall under a First Preference green card category and receive fast-track green card processing.

As this administration has further constricted immigration policies and processes, the smooth path to becoming a Permanent Resident of the United States has become increasingly difficult. Across the board, we have seen a slow-down in visa and green card processing times. This is no exception for a world-recognized athlete applying through this specialized green card category. For instance, an application that used to be adjudicated in a matter of months can now take well over two years. More critically, the exacting legal standards to which these prospective athletes are held are becoming increasingly blurred.

Many of the trends we have seen under the current administration appear to be aimed at slowing even legal immigration, with increasing denial rates as part of that trend. Under the First Preference (“Extraordinary Ability”) green card category (a category not only used by world-renowned athletes, but also individuals in the sciences, arts, education and business), the approval rate for individual petitions fell from 82.1% in 2016, to 69.4% in 2018, to 56.3% in 2019.[1] A drop of almost 26% in three years echoes the difference between the Obama and Trump eras, and emphasizes our country’s current stance on immigration.

Upon adjudicating the green card petition, the Immigration Officer has broad discretion to ask for more information, by issuing a request for additional evidence. The approval rating for petitions receiving such a request has also rapidly declined, from 47.8% in 2016 to 34.4% in 2019.[2]  While USCIS spokesperson Matthew Bourke has explained that such requests for evidence are “an additional opportunity to afford petitioners to submit requisite evidence to avoid being denied,”[3] the numbers speak for themselves and demonstrate a hard-line adjudication approach, evidently making it more difficult for foreign immigrants to access the United States, in spite of their many illustrious talents and achievements. In important ways, immigration policy changes that have flowed from the “Buy American, Hire American” Executive Order have made it more difficult for the United States to attract the world’s best, brightest and most skilled.

Similarly, the O-1 and P-1 visa options, temporary work visa options for highly accomplished athletes, are facing similar adjudication challenges. At the center of these visa applications is the administration’s position that individuals who used to qualify as having extraordinary ability in their athletic field no longer do. The Japanese Olympic gymnast is no longer considered extraordinary. The Swiss world-champion tennis player has not won enough grand slams. The Australian internationally renowned swimmer is no longer fast enough. The world’s top athletes can go on to win Olympic medals, but still face many impediments to reach the standards of the USCIS.

In this current climate, it is imperative to formulate case strategies to overcome the high hurdles set by the USCIS. At Fragomen, we encourage our private clients filing through the Extraordinary Ability green card category to collate as much press, media coverage, evidence of awards and evidence of high achievements in international competitions as possible, to offset the strict scrutiny we are seeing from adjudicating officers, and instead, present a fiercely compelling argument in favor of the individual’s truly extraordinary achievements. In addition, we often encourage athlete applicants to explore other nonimmigrant visa options first, including the O-1 visa, to set a precedent of “extraordinary ability” recognition and approval by USCIS. With one (or several) approved O-1 visa petitions, the applicant can facilitate the approvability of his or her subsequent green card petition. With these, and many other, carefully crafted legal strategies, we put our clients in the best possible position to become permanent residents, even in this turbulent political environment.