Making the Extraordinary Ordinary: Examining the Impact of Shifting Immigration Policies on Professional Athletics in the United States

Volume 28 Issue 1 Article 3

2-3-2021

Making the Extraordinary Ordinary: Examining the Impact of Making the Extraordinary Ordinary: Examining the Impact of

Shifting Immigration Policies on Professional Athletics in the Shifting Immigration Policies on Professional Athletics in the

United States United States

Rachel Insalaco

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Part of the Entertainment, Arts, and Sports Law Commons, Human Rights Law Commons,

Immigration Law Commons, Labor and Employment Law Commons, Law and Race Commons, Legislation

Commons, and the President/Executive Department Commons

Recommended Citation Recommended Citation

Rachel Insalaco,

Making the Extraordinary Ordinary: Examining the Impact of Shifting Immigration

Policies on Professional Athletics in the United States

, 28 Jeffrey S. Moorad Sports L.J. 93 (2021).

Available at: https://digitalcommons.law.villanova.edu/mslj/vol28/iss1/3

This Comment is brought to you for free and open access by the Journals at Villanova University Charles Widger

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MAKING THE EXTRAORDINARY ORDINARY:

EXAMINING THE IMPACT OF SHIFTING IMMIGRATION

POLICIES ON PROFESSIONAL ATHLETICS IN THE

UNITED STATES

I. A G

LOBAL

HENOMENON

: A

NTRODUCTION TO THE

NTERNATIONALITY OF THE

MERICAN

PORTS

NDUSTRY

The beginning of professional sports in the United States can

be traced back to 1871 with the establishment of the National Asso-

ciation of Professional Base Ball Players (“NA”), the country’s first

professional sports league.

The years following the NA’s establish-

ment saw the emergence of competing professional baseball

leagues to capitalize on the sport’s popularity.

Most notable of the

new leages were the National League of Professional Baseball Clubs

(“NL”) and the American League (“AL”), which were established in

1876 and 1901, respectively.

The two leagues merged two years

later, resulting in the Major League Baseball (“MLB”) system we

know today.

Even in the earliest days of professional sports leagues in the

United States, teams’ rosters featured foreign-born players.

Cuban

player Esteban Bellan made his professional debut in 1871 for the

Troy Haymakers, a team in the NA.

In the league’s first year, En-

1. See Steven A. Reiss, Professional Team Sports in the United States,

XFORD

E-

NCYCLOPEDIAS

(Feb. 2017), https://oxfordre.com/americanhistory/view/

10.1093/acrefore/9780199329175.001.0001/acrefore-9780199329175-e-198

[https://perma.cc/8237-JQD4] (recounting origins of professional baseball in

America). The NA folded only five years later in 1876, when its strongest teams

absconded and joined the National League of Professional Baseball Clubs. See “Na-

tional Association of Professional Base Ball Players,”

ASEBALL

EFERENCE

, https://

www.baseball-reference.com/bullpen/Na-

tional_Association_of_Professional_Base_Ball_Players [https://perma.cc/PVR6-

9MDA] (last visited Mar. 1, 2019) (providing brief history of NA).

2. See Reiss, supra note 1 (describing establishment of various leagues during

early days of professional baseball).

3. See id. (noting years of origination for NL and AL).

4. See id. (“[The AL] merged with the NL in 1903, setting up the first World

Series.”).

5. See First Foreign Born Major League Baseball Players,

ASEBALL

LMANAC

https:/

/www.baseball-almanac.com/firsts/first13.shtml [https://perma.cc/3NKT-GYBA]

(last visited Jan. 25, 2020) (listing first players from various countries to play pro-

fessional baseball in United States).

6. See id. (recognizing that, if NA players are considered “Major League play-

ers,” then “the first player from Cuba was Esteban Bellan who made his debut on

May 9, 1871, with the Troy Haymakers”). The Troy Haymakers were dissolved in

1882 to create space in the National League for the New York Gothams (later

(93)

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[Vol. 28: p. 93

gland’s Al Nichols of the New York Mutuals and Ireland’s Andy Le-

onard of the Boston Red Caps were the only two foreign born

players included in the NL.

Similarly, the only two international

players on AL rosters in the league’s first year were Colombia’s Luis

Castro on the Philadelphia Athletics and Switzerland’s Otto Hess

on the Cleveland Indians.

The percentage of foreign-born players

in the MLB has continually grown over time.

For example, in

1900, 2.7% of MLB players were immigrants, but that proportion

increased to 28.5% as of 2019.

International athletes also played a significant role in the early

days of other professional sports and continue to do so today.

renamed the New York Giants and relocated to San Francisco in 1958). See also

Steve Wulf, Remembering the long-ago major league history of Troy, N.Y., ESPN (Aug. 24,

2016), https://www.espn.com/mlb/story/_/id/16292570/remembering-long-ago-

major-league-history-troy-ny [https://perma.cc/8M5W-5RDU] (recounting early

days and eventual end of Troy Haymakers professional baseball team).

7. See First Foreign Born Major League Baseball Players, supra note 5 (noting when

Nichols and Leonard began playing in NL). The Boston Red Caps were eventually

renamed the Boston Braves and relocated to Atlanta, Georgia in 1966. See Lacey

Davis, How Atlanta Became the Home of the Braves,

LEACHER

EPORT

(Mar. 21, 2014),

https://bleacherreport.com/articles/2000953-how-atlanta-became-the-home-of-

the-braves [https://perma.cc/97JH-SCAS] (recounting early days of Boston Red

Caps, also known as Red Stockings, and gradual changes that resulted in Atlanta

Braves of today).

8. See First Foreign Born Major League Baseball Players, supra note 5 (noting when

Castro and Hess began playing in AL). The Philadelphia Athletics relocated to

Kansas City in 1955 and later to Oakland in 1968, where they remain today. See

Willian Nack, Lost in History,

PORTS

LLUSTRATED

(Aug. 19, 1996), https://vault.

si.com/vault/1996/08/19/lost-in-history-from-1929-to-1931-the-philadelphia-as-

were-the-best-team-in-baseball-with-four-future-hall-of-famers-and-a-lineup-that-

dominated-babe-ruths-legendary-yankees-so-why-hasnt-anyone-heard-of-them

[https://perma.cc/Y7K6-2QQZ] (describing dominance of Philadelphia Athletics

baseball team in early twentieth century and recounting moves to Kansas City and

Oakland).

9. See Opening Day rosters feature 254 players born outside the U.S., MLB (Mar. 30,

2018), https://www.mlb.com/press-release/opening-day-rosters-feature-254-play

ers-born-outside-the-u-s-270131918 [https://perma.cc/H6LP-2XFP] (announcing

that twenty-one different countries were represented by players on MLB rosters in

2018, indicating “another year of unprecedented diversity” in league).

10. See Stuart Anderson & L. Brian Andrew, Coming to America: Baseball and the

Contributions of Foreign-Born Players to America’s Pastime,

’

OUND

FOR

MERICAN

OLICY

at 6 (Oct. 2006), http://www.nfap.com/researchactivities/studies/Baseball

Coming1006.pdf [https://perma.cc/5TTJ-HT32] (“2.7 percent of major league

players were foreign-born in 1900”); see also MLB rosters feature 251 international play-

ers,

AJOR

EAGUE

ASEBALL

(Mar. 29, 2019), https://www.mlb.com/news/mlb-

rosters-feature-251-international-players [https://perma.cc/TWH4-9C6P] (noting

251 players from 882-player league were from outside United States for 2019 MLB

season).

11. See A history of international players in the NBA,

’

ASKETBALL

’

(Sept. 12, 2019), https://www.nba.com/history-international-players-nba [https://

perma.cc/6C9X-AMRD] (recognizing participation of international basketball

players in early professional basketball).

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The National Basketball Association (“NBA”)’s first season saw five

foreign players competing.

In the opening games of the 2019-

2020 NBA season, 108 foreign-born athletes took the floor, com-

prising approximately a quarter of the league’s players.

The Na-

tional Hockey League (“NHL”), on the other hand, did not include

a player from outside the United States or Canada until nearly sixty

years after its inception.

Nonetheless, 31% of NHL players today

were born outside of North America.

Even the National Football

League (“NFL”), which is distinctly American, included players rep-

resenting thirty countries outside of the United States by 2011.

The NFL has also spearheaded the International Player Pathway,

which resulted in the addition of four international players to NFL

practice rosters in 2019.

Professional athletes in individual sports have also sought to

enter the United States in order to hone their skills and compete at

12. See id. (“The NBA was far from the global brand it is today when, initially

known as the Basketball Association of America, its first season tipped in 1946. But

even then there was an international presence, with five foreign players seeing

action during that inaugural campaign.”).

13. See Marc Stein, The N.B.A. Elite Are Now From Everywhere,

N.Y. T

IMES

(Jan. 8,

2020), https://www.nytimes.com/2020/01/08/sports/basketball/nba-stars-inter

national-giannis-luka.html [https://perma.cc/JD6S-MXSE] (“There were 108 for-

eign-born players on opening-night rosters this season, meaning there were more

than 300 American-born players.”).

14. See Ed Miller, The Evolution of Europeans in the NHL,

OCKEY

RITER

(Oct.

11, 2017), https://thehockeywriters.com/the-evolution-of-europeans-in-the-nhl/

[https://perma.cc/EY9U-UDVG] (acknowledging Ulf Sterner in 1965 as first Eu-

ropean hockey player to join NHL team).

15. See Active NHL Players Totals by Nationality,

UANT

OCKEY

, https://

www.quanthockey.com/nhl/nationality-totals/active-nhl-players-career-stats.html

[https://perma.cc/Z8FR-7RHP] (last visited Mar. 5, 2020) (providing data about

national origins of NHL players by country).

16. See Cork Gaines, SPORTS CHART OF THE DAY: The International Origins of

NFL Players,

. I

NSIDER

(Nov. 17, 2011), https://www.businessinsider.com/chart-

international-origins-of-nfl-players-2011-11 [https://perma.cc/3GSN-ZQJM]

(“[D]espite the overwhelming dominance by Americans, there are still another 30

countries represented in the NFL.”).

17. See Four international players added to rosters ahead of 2019 season,

’

OOT-

BALL

EAGUE

(Apr. 9, 2019), http://www.nfl.com/news/story/0ap3000001025740/

article/four-international-players-added-to-rosters-ahead-of-2019-season [https://

perma.cc/ZTA3-UB4L] (announcing additions of Australia’s Valentine Holmes to

New York Jets’ practice squad, Germany’s Jakob Johnson to New England Patriots’

practice squad, Brazil’s Durval Quieroz Neto to Miami Dolphins’ practice squad,

and England’s Christian Wade to Buffalo Bills’ practice squad). See generally Inter-

national Player Pathway Program Pro Day,

’

OOTBALL

EAGUE

(Mar. 20, 2019),

http://www.nfl.com/news/story/0ap3000001024156/article/international-player-

pathway-program-pro-day (describing International Player Pathway Program as

“provid[ing] elite international athletes the opportunity to compete at the NFL

level, improve their skills, and ultimately earn a spot on an NFL roster”).

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a high level.

For instance, many European golf fans have raised

concerns about the volume of professional golfers leaving the conti-

nent to play in the United States.

Similarly, many of the world’s

best international tennis players have been relocating to the United

States to live and train since the beginning of the Open Era in the

mid-twentieth century.

Beyond professional athletes, a number of

foreign-born athletes come to the United States each year to com-

pete at the collegiate level.

Experts have opined that diversity in professional sports pro-

duces increased levels of competition, thereby creating better ath-

letes.

However, current trends in the United States’ immigration

law and policy indicate that diversity in professional sports may

18. For further discussion about foreign professional athletes traveling to

America for individualized training and competition, see infra notes 19-21.

19. See Ewan Murray, European Tour concerned about ‘talent drain’ of golfers to

United States,

UARDIAN

(Nov. 20, 2012), https://www.theguardian.com/

sport/2012/nov/20/european-tour-talent-drain-golfers [https://perma.cc/WJD5-

T356] (“The desire of European players to seek fortunes in the United States is

nothing new.”).

20. See Steve Tignor, How Florida Became the Tennis Capital of the World,

ENNIS

(Mar. 24, 2017), https://www.tennis.com/pro-game/2017/03/florida-tennis-capi-

tol-world-nick-bollettieri-chris-evert/64979/ [https://perma.cc/S2CM-6CYA] (re-

marking on expansion of private tennis academies in Florida since Open Era

began, which has attracted international players, including Martina Navratilova of

Czechoslovakia, Maria Sharapova of Russia, Martina Hingis of Switzerland, Mary

Pierce of France, Tommy Haas of Germany, Kei Nishikori of Japan, Monica Seles

and Jelena Jankovic of Serbia, and Ivo Karlovic of Croatia, to live and train in

Florida).

21. See International Student-Athletes,

’

OLLEGIATE

THLETIC

’

http:/

/www.ncaa.org/student-athletes/future/international-student-athletes [https://

perma.cc/9W3L-TPZZ] (last visited Jan. 26, 2020) (“There are over 20,000 interna-

tional student-athletes enrolled and competing at NCAA schools.”); see also, e.g., CJ

Moore, Why Creighton is going overseas to help address its recruiting needs,

THLETIC

(May 18, 2020), https://theathletic.com/1815244/2020/05/18/why-creighton-is-

going-overseas-to-help-address-its-recruiting-needs/ [https://perma.cc/8V72-

V56E] (“A review of the 75 rosters in high-major leagues (the Power 5 football

conferences plus the Big East) in 2019-20 found that 24 [basketball] teams had at

least one player from overseas who had not played high school basketball or at a

previous college in North America. Eight schools had two such players and one

(California) had three.”).

22. See Edmund J. Malesky & Sebastian M. Saiegh, Diversity is good for team

performance in soccer,

ASH

. P

OST

(June 2, 2014), https://www.washingtonpost.

com/news/monkey-cage/wp/2014/06/02/diversity-is-good-for-team-per

formance-in-soccer/ [https://perma.cc/S6YN-M3X3] (noting “almost all interloc-

utors recognize the benefits of diverse talents, perspectives and experiences”); see

also Anderson & Andrew, supra note 10, at 2 (“The [National Foundation for

American Policy] study concludes Americans have benefited from our nation’s

openness toward skilled immigrant baseball players, just as the country has gained

from the entry of other skilled foreign-born professionals.”).

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soon decrease.

A series of travel bans instituted by President Don-

ald Trump’s administration threaten to inhibit professional athlete

immigration from an expanding list of majority Muslim countries,

while a border wall between the United States and Mexico has the

potential to introduce tension into the countries’ athletic relation-

ship.

Additionally, visa issuances to professional athletes have de-

creased on the grounds that applicants fail to demonstrate

“extraordinary ability.”

Further, the recently re-introduced Re-

forming American Immigration for a Strong Economy (“RAISE”)

Act aims to reduce legal immigration to the United States by 50%

within the next decade and eliminate the visa categories most rele-

vant to professional athletes in favor of a generalized, points-based

merit system.

These trends and restrictions all comport with Pres-

ident Donald Trump’s “America First” social and economic policy,

an effort to prioritize American citizens in matters of employment

and employment-related benefits.

This Comment observes the likely impact that immigration pol-

icies and proposed legislation supported by the Trump administra-

23. For further discussion about factors likely to lead to a decrease in diversity

within professional sports in the United States, see infra notes 177-192 and accom-

panying text.

24. For further discussion about the ongoing travel ban imposed by the

Trump administration and its border wall with Mexico, see infra notes 146-152 and

accompanying text.

25. See Louise Radnofsky, Athletes Seeking Green Cards Find Proving They’re Excep-

tional Has Gotten Tougher Under Trump,

ALL

TREET

(Dec. 11, 2019), https://

www.wsj.com/articles/elite-athletes-seeking-visas-face-heightened-scrutiny-by-the-

trump-administration-11576060200?mod=searchresults&page=1&pos=2 [https://

perma.cc/84CF-Z68Q] (noting approval rate for immigrant visa petitions based on

“extraordinary ability” category, often sought by professional athletes, has dropped

from 82.1% in fiscal year 2016 to 56.3% in fiscal year 2019); see also Louis F. Hess,

Why O-1 Visas are Harder to Get,

UIS

F. H

ESS

, PLLC

(May 10, 2019), https://

www.luishesslaw.com/blog/2019/05/why-o-1-visas-are-harder-to-get/ [https://

perma.cc/S8DX-QYU6] (identifying recent policies and procedures making pro-

curement of O-1 nonimmigrant visas, frequently used by professional athletes,

more difficult).

26. See Eric Ruark, Reforming American Immigration for a Strong Economy,

ASH

IMES

(Apr. 17, 2019), https://www.washingtontimes.com/news/2019/apr/17/

american-workers-get-good-news-with-the-reintroduc/ (summarizing provisions

and goals of RAISE Act).

27. See The 45th President of the United States Donald J. Trump,

ONALD

J. T

RUMP

FOR

RESIDENT

, I

, https://www.donaldjtrump.com/about/ [https://perma.cc/

A4D6-5DJF] (last visited Jan. 30, 2020) (“President Trump is working hard to im-

plement his ‘America First’ platform, continuing his promise to the American peo-

ple to lower taxes, repeal and replace Obamacare, end stifling regulations, protect

our borders, keep jobs in our country, take care of our veterans, strengthen our

military and law enforcement, and renegotiate bad trade deals, creating a govern-

ment of, by and for the people.”).

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tion would have on the professional sports industry.

Namely, it

argues that certain characteristics of professional athletics make the

industry likely to be harmed as a byproduct of the current emphasis

on decreasing legal immigration.

Section II begins with an out-

line of the tradition of immigrants participating in American pro-

fessional sports, as well as the historical context of laws and

regulations which control the ability of international athletes’ to

enter the United States today.

Additionally, Section II discusses

the legislative history and provisions of the RAISE Act, as well as

executive orders introduced by the Trump administration to curtail

legal immigration.

Section III analyzes the impact of current im-

migration policy in the United States that may inhibit professional

athletes’ ability to immigrate to the United States and the likely im-

pact the RAISE Act will have on athlete immigration, if passed.

Finally, Section III points to evidence tending to show that a reduc-

tion in athlete immigration may adversely impact the American

sports industry.

II. W

ARMING

: T

AST

, P

RESENT

AND

UTURE OF

THLETE

MMIGRATION IN THE

NITED

TATES

A. Laws Governing Foreign-Born Professional Athletes in U.S.

through History

Professional sports leagues in the United States have included

immigrant athletes since their inception.

Foreign-born profes-

28. For further discussion about the effect of changing visa policies and the

RAISE Act on professional athletes, see infra notes 100-126 and 165-171 and ac-

companying text.

29. For further discussion about factors unique to professional athletics that

make the industry vulnerable to policies and legislation resulting in decreased im-

migration levels, see infra notes 224-239 and accompanying text.

30. For further discussion about the laws governing immigrants playing pro-

fessional sports in America throughout history and today, see infra notes 34-99 and

accompanying text.

31. For further discussion about the RAISE Act and Trump administration

executive orders aimed at legal immigration, see infra notes 127-171 and accompa-

nying text.

32. For further discussion about the consequences that current policy

changes and executive actions, as well as the proposed RAISE Act, will likely have

for foreign-born professional athletes, see infra notes 172-205 and accompanying

text.

33. For further discussion about how reduced athlete immigration would

likely harm the American athletic industry, see infra notes 224-239 and accompany-

ing text.

34. For further discussion about the origins of professional sports leagues in

the United States and immigrants’ participation in them, see supra notes 1-17 and

accompanying text.

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sional athletes in the late nineteenth and early twentieth centuries

had a more straightforward path to American citizenship than to-

day’s immigrant athletes do.

Early immigration law and policies

were originally classification-based; therefore, visa applicants were

rarely required to satisfy positive requirements, with the exception

of paying the requisite tax.

The exclusionary immigration poli-

cies during this time, including the 1917 Immigration Act, which

barred Asian immigrants, and the 1921 Emergency Quota Act,

which created numerical quotas for immigrants in favor of north-

ern and western European countries, tended to be inapplicable to

foreign-born professional athletes.

Due to racial segregation in

professional sports at the time, such immigration policies, failed to

have a blanket effect on professional athletics while potentially im-

pacting some immigrant athletes at an anecdotal level .

It was not until the latter half of the twentieth century that

Congress began instituting immigration acts to prioritize family

reunification and skilled immigrants over national origin quotas.

For one, the Immigration and Nationality Act of 1952 marked the

introduction of the United States’ “exceptional ability” standard by

35. See Early American Immigration Policies,

U.S. C

ITIZENSHIP AND

MMIGRATION

ERVS

, https://www.uscis.gov/history-and-genealogy/our-history/overview-ins-his

tory/early-american-immigration-policies [https://perma.cc/2ZSS-6D3F] (last vis-

ited Feb. 4, 2020) (“Americans encouraged relatively free and open immigration

during the 18th and early 19th centuries, and rarely questioned that policy until

the late 1800s.”).

36. See id. (“The general Immigration Act of 1882 levied a head tax of fifty

cents on each immigrant and blocked (or excluded) the entry of idiots, lunatics,

convicts, and persons likely to become a public charge.”).

37. See, e.g., D’Vera Cohn, How U.S. immigration laws and rules have changed

through history,

ESEARCH

ENTER

(Sept. 30, 2015), https://www.pewresearch.

org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-

through-history/ [https://perma.cc/CR39-LNQY] (summarizing Immigration Act

of 1875, Chinese Exclusion Act, 1891 Immigration Act, Immigration Act of 1903,

and 1917 Immigration Act).

38. See Racial Segregation in American Sports,

PORTS

ONFLICT

NST

, https://

sportsconflict.org/racial-segregation-american-sports/ [https://perma.cc/P6X9-

6V2Y] (last visited Feb. 17, 2020) (noting racial segregation of American profes-

sional sports at beginning of 20th century).

39. See Kevin K. McCormick, Extraordinary Ability and the English Premier League:

The Immigration, Adjudication, and Place of Alien Athletes in American and English Soci-

ety,

39 V

. U. L. R

541, 545 (2004) (describing codification of all prior immi-

gration legislation into Immigration and Nationality Act of 1952, which “made

significant changes to the treatment of professional athletes”); see also Immigration

and Nationality Act of 1965,

U.S. H

OUSE OF

EPRESENTATIVES

https://history.

house.gov/Historical-Highlights/1951-2000/Immigration-and-Nationality-Act-of-

1965/ [https://perma.cc/37Q6-6XXF] (last visited Feb. 17, 2020) (describing Im-

migration and Nationality Act of 1965 as “a legal framework that prioritized highly

skilled immigrants and opened the door for people with family already living in

the United States”).

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authorizing admission for aliens with “exceptional ability in the arts

and sciences” or “distinguished merit and ability.”

Although the

statutory language did not specifically extend this standard to ath-

letes, the USCIS and lower immigration courts interpreted the

“arts” to include athletics.

Further, the Immigration and Nation-

ality Act of 1965 finally abolished the national-origins quota system

that had long been a fixture of American immigration law.

With

the exception of amendatory acts aimed at improving the system

for certain defined immigrant classes, Congress did not pass an-

other wholesale immigration reform act until the Immigration Act

of 1990, which remains the controlling legislation today and con-

tains many provisions directed specifically at immigrant athletes.

B. The Current Regime for Athletes Immigrating to the

United States

Currently, foreign-born athletes hoping to immigrate to the

United States have various options.

The Immigration Act of 1990

(“Immigration Act”) created the EB-1 immigrant visa, as well as the

0-1 and P-1 nonimmigrant visas, each offering international athletes

the opportunity to come to the United States provided they meet a

set of defined criteria.

This section begins by describing the Im-

migration Act’s journey to ratification before analyzing the provi-

40. See McCormick, supra note 39 (citing § 203(a)(3) and § 101(a)(15)(H)(i)

of Immigration and Nationality Act of 1952 and explaining that “‘exceptional abil-

ity’ denoted a higher standard than ‘distinguished merit and ability’ through inter-

pretations made at the administrative and federal levels”).

41. See id. (stating that “immigration courts liberally applied the generic defi-

nition of ‘arts’ to categorize athletes under ‘arts’” and “the USCIS annually placed

athletes among those occupations admissible as temporary workers”).

42. See Muzaffar Chishti, Faye Hipsman & Isabel Ball, Fifty Years On, the 1965

Immigration and Nationality Act Continues to Reshape the United States,

IGRATION

OL-

ICY

NST

(Oct. 15, 2015), https://www.migrationpolicy.org/article/fifty-years-1965-

immigration-and-nationality-act-continues-reshape-united-states [https://

perma.cc/6QQQ-8QW6] (noting “[i]n major revision to U.S. immigration law in

1952, the national-origins system was retained” and “the 1965 law abolished the

national-origins quota system”).

43. See Cohn, supra note 37 (describing series of immigration acts passed be-

tween 1965 and 1990, including 1975 Indochina Migration and Refugee Assistance

Act, Immigration and Nationality Act Amendments of 1976 and 1978, and Refugee

Act of 1980). For further discussion about the Immigration Act of 1990 and its

provisions directly applicable to foreign professional athletes, see infra notes 50-99

and accompanying text.

44. See Lionel Sobel, Chapter 5: Immigration: Performances by Foreign Entertainers

and Athletes,

’

NTM

’

(2013) (“There are several different kinds of visas,

each with its own eligibility requirements.”).

45. See generally Warren R. Leiden & David L. Neal, Highlights of the U.S. Immi-

gration Act of 1990, 14

ORDHAM

’

L. J.

328, 330, 333 (1990) (surveying provi-

sions of Immigration Act of 1990).

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sions most salient for foreign athletes in depth: the O-1, P-1, and

EB-1 visas.

It also notes a downward trend in the number of ac-

cepted visa applications in these categories and examines the

heightened “extraordinary ability” standard immigration officials

appear to be imposing on foreign athletes.

It then discusses the

Trump administration’s ongoing travel ban and the border wall

with Mexico, which are two executive actions currently impacting

professional athletes’ ability to immigrate to the United States.

Fi-

nally, it concludes with an explanation of the RAISE Act, which was

introduced in early 2019 and may impact foreign athletes’ ability to

move to the United States if it is passed.

1. Immigration Act of 1990

The Immigration Act marked the first legislative effort aimed

at legal immigration since the eradication of the national origin sys-

tem in 1965.

The Immigration Act, unlike pieces of legislation

that came before it, was not designed to combat illegal immigration

but to reform immigrants’ ability to come to America legally.

both increased immigration quotas and added and refined a num-

ber of employment-based visa categories.

Senator Ted Kennedy

initially introduced the Immigration Act in 1989, and President

46. For further discussion about the Immigration Act’s legislative history and

relevant provisions, see infra notes 50-60 and accompanying text.

47. For further discussion about the heightened standard of “extraordinary

ability” being used to deny visa applications at a higher-than-average rate, see infra

notes 118-126 and accompanying text.

48. For further discussion about the Trump administration’s ongoing travel

ban and border wall with Mexico, see infra notes 132-152 and accompanying text.

49. For further discussion about the RAISE Act’s legislative history and rele-

vant provisions, see infra notes 153-171 and accompanying text.

50. See Charles C. Foster, The New Immigration Act of 1990: Major Reform of Legal

Immigration,

OUS

. L

. J. 26, 26

(1991) (“The 1990 Act is the first major legal

immigration legislation since 1965, when Congress abolished the national origin

system that gave overwhelming preference to immigrants from European na-

tions.”). See generally The Immigration Act of 1924 (The Johnson-Reed Act),

U.S. D

’

TATE

https://history.state.gov/milestones/1921-1936/immigration-act

[https://perma.cc/E3EN-QCQU] (last visited Jan. 25, 2020) (providing general

overview of Immigration Act of 1924).

51. See Foster, supra note 50, at 26 (highlighting distinction between Immigra-

tion Act and Immigration Reform and Control Act of 1986, which primarily ad-

dressed issues stemming from illegal immigration).

52. See id. at 27 (“In addition to significant quota increases, the 1990 Act pro-

vides the following: protection for certain family members of aliens who were legal-

ized under IRCA; places the first limitation or cap on both permanent and several

forms of temporary immigration; [and] makes significant improvement in the

nonimmigrant working visa classification . . . .”).

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George H.W. Bush ultimately signed it into law on November 29,

1990.

Among the numerous visa categories that the Immigration Act

introduced, the EB-1, 0-1, and P-1 visas were the most closely tied to

foreign athletes’ ability to immigrate to the United States.

The

EB-1 visa is an employment-based, first-preference visa reserved for

those exhibiting extraordinary ability, and it allows its recipients to

remain in the United States permanently as legal residents.

The

0-1 visa authorizes individuals with an extraordinary ability in one of

a number of enumerated fields to remain in the United States for a

limited period (initially, up to three years).

With a P-1 visa, on the

other hand, an athlete may come to the United States temporarily

for the purpose of performing at a specified athletic competition.

O-1 and P-1 visas are so named in accordance with the subsection of

the Immigration and Nationality Act in which their specifications

can be found.

EB-1, on the other hand, is shorthand for “employ-

53. See S.358 (101st): Immigration Act of 1990,

RACK

https://www.gov

track.us/congress/bills/101/s358/summary [https://perma.cc/9GZE-LJQW]

(last visited Jan. 25, 2020) (providing summary of Immigration Act’s legislative

history).

54. For further discussion about the specifications of EB-1, O-1, and P-1 visas,

see infra notes 61-99 and accompanying text.

55. See Employment-Based Immigration: First Preference EB-1,

U.S. C

ITIZENSHIP AND

MMIGRATION

ERVS

, https://www.uscis.gov/working-united-states/permanent-

workers/employment-based-immigration-first-preference-eb-1 [https://perma.cc/

ZJ2S-TLAW] (last visited Jan. 25, 2020) (delineating criteria for EB-1 visa

applicants).

56. See O-1 Visa: Individuals with Extraordinary Ability or Achievement,

U.S. C

ITI-

ZENSHIP AND

MMIGRATION

ERVS

https://www.uscis.gov/working-united-states/

temporary-workers/o-1-visa-individuals-extraordinary-ability-or-achievement

[https://perma.cc/FNG2-GMF4] (last visited Jan. 25, 2020) (explaining eligibility

criteria for O-1 visa applicants).

57. See P-1A Athlete,

U.S. C

ITIZENSHIP AND

MMIGRATION

ERVS

, https://www.

uscis.gov/working-united-states/temporary-workers/p-1a-athlete [https://perma.

cc/U92E-AK7G] (last visited Jan. 25, 2020) (noting how P-1A visa applicants may

support their applications).

58. See Sobel, supra note 44 (“The reason [the visa titles] are not descriptive is

that they actually correspond to the subsections of the U.S. Immigration and Na-

tionality Act that define the various categories of people who are eligible for them

. . . an ‘O-1’ visa is available to those performers who are described in section

101(a)(15) of the Act in subsection ‘O(i),’ a ‘P-2’ visa is available to those who are

described in subsection ‘P(ii),’ and so forth.”) .

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ment-based, first-preference.”

The specific eligibility provisions of

each are discussed in more depth below.

a. Nonimmigrant Visas

Visas that authorize individuals to remain in the United States

for only a temporary duration are called “nonimmigrant visas.”

There are two types of nonimmigrant visas typically sought by pro-

fessional athletes.

The first type is the O-1 visa, which is available

to individuals with extraordinary ability in certain specified fields.

The second is the P-1 visa, which may be granted to athletes of in-

ternational recognition who compete either as an individual or as a

member of a team, or by certain highly regarded performers per-

forming as members of a group.

i. O-1 Visa

Nonimmigrant individuals who possess extraordinary ability in

one of a number of specifically enumerated fields may receive O-1

visas.

Athletes in particular can be eligible for O-1A visas.

O-1

59. Employment-Based Immigration: First Preference EB-1,

U.S. C

ITIZENSHIP AND

M-

MIGRATION

ERVS

, https://www.uscis.gov/working-united-states/permanent-work

ers/employment-based-immigration-first-preference-eb-1 [https://perma.cc/

UER7-9WWN] (last visited Jan. 28, 2020) (defining shorthand meaning of EB-1

visa).

60. For further discussion about the specific criteria of eligibility for EB-1, O-

1, and P-1 visas, see infra notes 65-99 and accompanying text.

61. See Requirements for Immigrant and Nonimmigrant Visas,

U.S. C

USTOMS AND

ORDER

ROTECTION

, https://www.cbp.gov/travel/international-visitors/visa-waiv

er-program/requirements-immigrant-and-nonimmigrant-visas [https://perma.cc/

H9SQ-RAZD] (last visited Mar. 17, 2019) (“Nonimmigrant visas are for foreign

nationals wishing to enter the United States on a temporary basis . . . .”).

62. For further discussion of the two types of non-immigrant visas typically

sought by professional athletes, see infra notes 65-91 and accompanying text.

63. For further discussion about the eligibility criteria of O-1 visas, see infra

notes 65-73 and accompanying text.

64. For further discussion about the eligibility criteria of P-1 visas, see infra

notes 74-91 and accompanying text.

65. See O-1 Visa: Individuals with Extraordinary Ability or Achievement,

U.S. C

ITI-

ZENSHIP AND

MMIGRATION

ERVS

(last visited Jan. 26, 2020), https://www.uscis.

gov/working-united-states/temporary-workers/o-1-visa-individuals-extraordinary-

ability-or-achievement [https://perma.cc/8NPP-3EG6] (stating O-1 visas may be

granted to individuals “who possess extraordinary ability in the sciences, arts, edu-

cation, business, or athletics, or who have a demonstrated record of extraordinary

achievement in the motion picture or television industry and have been recog-

nized nationally or internationally for those achievements”).

66. See id. (providing O-1A visas may be granted to individuals “with an ex-

traordinary ability in the sciences, education, business, or athletics”).

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visa applicants must continue to work in their area of “extraordi-

nary ability” during their temporary tenure in the United States.

The United States Citizenship and Immigration Services (“US-

CIS”) defines “extraordinary ability” in two ways, paralleling the O-

1A and O-1B visa categories.

For O-1A applicants, “extraordinary

ability” is defined as “a level of expertise indicating that the person

is one of the small percentage who has risen to the very top of the

field of endeavor.”

Successful O-1 applicants may remain in the

United States for up to three years, with the USCIS retaining au-

thority to extend the life of the visa up to one year as it deems

necessary for the applicant to accomplish the event or activity the

visa was granted for.

Although the USCIS does exercise discretion in determining

whether applicants qualify for an O-1 visa, it must make such deter-

minations within the framework of a delineated set of evidentiary

criteria.

Athletes may satisfy this criteria by providing evidence of

an internationally-recognized award, such as an Olympic medal.

In the absence of such an award, athletes may also provide evidence

from at least three other sources tending to show their “extraordi-

nary ability,” including nationally or internationally recognized

awards, membership in selective associations within their sports, or

high salaries.

67. See id. (noting O-1 beneficiaries must be “coming temporarily to the

United States to continue work in the area of extraordinary ability”).

68. See id. (providing definitions of “extraordinary ability” specific to O-1A visa

applicants in “sciences, arts, education, business, or athletics” on the one hand,

and O-1B visa applicants in “motion picture or television [industries]” on the

other).

69. O-1 Visa, supra note 65 (defining “extraordinary ability” for purposes of O-

1A visa applications). For O-1B visa applicants, “extraordinary ability” means “dis-

tinction,” defined further as “a high level of achievement in the field of the arts

evidenced by a degree of skill and recognition substantially above that ordinarily

encountered to the extent that a person described as prominent is renowned, lead-

ing, or well-known in the field of arts.” See id. (defining “extraordinary ability” for

purposes of O-1B visa applications).

70. See O-1 Visa, supra note 65 (relating Period of Stay/Extension of Stay for

successful O-1 visa applicants).

71. See id. (listing evidentiary criteria for O-1A and O-1B visas).

72. See id. (noting “[e]vidence that the beneficiary has received a major, inter-

nationally-recognized award, such as a Nobel Prize,” constitutes sufficient evidence

of O-1 visa applicants’ eligibility).

73. See id. (providing O-1A visa applicants may also show eligibility by provid-

ing at least three sources of evidence from following criteria: “receipt of nationally

or internationally recognized prizes” or “awards for excellence in the field of en-

deavor; membership in associations in the field for which classification is sought

which require outstanding achievements, as judged by recognized national or in-

ternational experts in the field; published material in professional or major trade

publications, newspapers or other major media about the beneficiary and the ben-

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ii. P-1 Visa

Athletes of international recognition who compete either as an

individual or as a member of a team, as well as certain highly re-

garded performers performing as members of a group, may obtain

P-1 visas.

In order to acquire a P-1 visa, applicants must maintain

a residence in their home country, among other criteria dependent

on their profession.

While P-1B visas apply to entertainers, P-1A

visas apply to those coming to the United States for a specific ath-

letic purpose.

The statute identifies five categories of potential

athletic applicants, each with slightly varying criteria for approval.

The first two categories for athletic applicants applying for P-

1A visas are (1) individuals and (2) members of teams who are in-

ternationally recognized and traveling to the United States to par-

ticipate in a specific competition.

The eligibility criteria for

athletes in these categories are nearly identical; they are only distin-

guished by the types of evidence required to prove eligibility.

eficiary’s work in the field for which classification is sought; authorship of scholarly

articles in professional journals or other major media in the field for which classifi-

cation is sought; a high salary or other remuneration for services as evidenced by

contracts or other reliable evidence; participation on a panel, or individually, as a

judge of the work of others in the same or in a field of specialization allied to that

field for which classification is sought; [or] employment in a critical or essential

capacity for organizations and establishments that have a distinguished reputa-

tion”); see also, e.g., Wolf Rifkin Lawyer Jordan Butler Obtains O-1 Visa for Tennis Star

Yulia Putintseva,

ENNIS

IEW

AGAZINE

(Aug. 22, 2017), http://www.tennisview

mag.com/wolf-rifkin-lawyer-jordan-butler-obtains-o-1-visa-tennis-star-yulia-putint-

seva [https://perma.cc/FV4F-Q7E8] (noting Russian-born Yulia Putintseva suc-

cessfully supported her O-1 visa application by providing evidence of “an official

letter of invitation to compete in the most prestigious U.S.-based tennis events,

such as the U.S. Open; a quarterfinal appearance at the French Open in 2016; an

accompanying lifetime membership in the exclusive Final Eight Club at Roland

Garros; and, demonstrated success throughout her junior and professional

career”).

74. See Sobel, supra note 44 (providing P-1 visa may be obtained by “interna-

tionally recognized athlete who competes as an individual or as part of [a] team, or

a performer who is part of a nationally or internationally recognized entertainment

group”) (emphasis added).

75. See U.S. Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(B)

(1990) (requiring P-1 visa applicants have “a residence in a foreign country which

[they have] no intention of abandoning”).

76. See 8 U.S.C. § 1101(P)(i)(a) (directing readers to § 1184(c)(4)(A) for

nonimmigrant alien criteria “relating to athletes” and § 1184(c)(4)(B) for nonim-

migrant criteria “relating to entertainment groups”).

77. See P-1A Athlete, supra note 57 (stating five categories of potential P-1A visa

applicants and enumerating evidentiary requirements for each in detail).

78. See 8 U.S.C § 1184(c)(4)(A) (1990) (noting P-1A applicants must compete

“at an internationally recognized level of performance”); see also P-1A Athlete, supra

note 57 (consolidating requisite criteria for P-1A visa applicants).

79. See P-1A Athlete, supra note 57 (noting both individual athletes and teams

must have achieved “international recognition” and must be participating in com-

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Such applicants may prove that they are internationally recognized

by demonstrating “a degree of skill and recognition substantially

above that ordinarily encountered.”

Further, P-1A visa applicants

must do more than show that they have achieved international rec-

ognition; they must also demonstrate the rigor of the United States

competition in which they are competing.

While the USCIS has

supplied a detailed framework for determining the former, it has

provided little guidance for examining the latter, rendering deci-

sions about the rigor of athletic competitions highly subjective and

suggesting that these decisions may primarily turn on the skill and

renown of the competitions’ participants.

P-1A visas are also available to athletes on professional sports

teams.

These athletes may prove their eligibility by demonstrating

petitions that have “distinguished reputation” and “require the participation of

internationally recognized [athletes or teams, respectively]”). The USCIS consid-

ers internationally recognized individuals and teams together in enumerating the

types of evidence sufficient to warrant the grant of a P-1A visa. See id. (enumerating

evidentiary criteria “For Internationally Recognized Individuals or Teams” apply-

ing for P-1A visas).

80. See P-1A Athlete, supra note 57 (describing evidentiary standard for requi-

site skill level of P-1A visa applicants).

81. See id. (stating that “rigor” of athletic competitions may be demonstrated

by showing “distinguished reputation” and “participation of an athlete or athletic

team that has an international reputation”); see also, e.g., Scott Jenkins, Golf’s Rookie

of the Year Sungjae Im Doesn’t Actually Have a Home in the United States,

PORTCASTING

(June 1, 2020), https://www.sportscasting.com/golfs-rookie-of-the-year-sungjae-im-

doesnt-actually-have-a-home-in-the-united-states/ [https://perma.cc/K82G-PL36]

(listing accomplishments and American acclaim of South Korean golfer and P-1

visa recipient Sungjae Im).

82. See P-1A Athlete, supra note 57 (providing evidentiary requirements to

demonstrate “international recognition” of individuals and teams). The USCIS

has provided that individual athletes or teams may offer to prove they have gar-

nered international recognition by demonstrating at least two of the following: “[1

e]vidence of having participated to a significant extent in a prior season with ma-

jor United State sports league; [2 e]vidence of having participated in international

competition with a national team; [3 e]vidence of having participated to a signifi-

cant extent in a prior season for a U.S. college or university in intercollegiate com-

petition; [4 a] written statement from an official of the governing body of the sport

which details how you or your team is internationally recognized; [5 a] written

statement from a member of the sports media or a recognized expert in the sport

which details how you or your team is internationally recognized; [6 e]vidence that

you or your team is ranked, if the sport has international rankings; or [7 e]vidence

that you or your team has received a significant honor or award in the sport.” See

id. (listing types of evidence sufficient to support P-1A visa applications by individ-

ual athletes or teams). However, to gauge the rigor of the athletic competition

that P-1A visa applicants are traveling to the United States to compete in, the US-

CIS has stated only that the competition must have a “distinguished reputation”

and “requires participation of an athlete or athletic team that has an international

reputation.” See id. (listing P-1A evidentiary requirements to support rigor of rele-

vant athletic competitions).

83. See P-1A Athlete, supra note 57 (enumerating eligibility criteria for profes-

sional, including minor-league, foreign athletes).

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that they are employed by a professional sport team in the United

States and that a sport league governs the team’s conduct and ath-

letic competition.

The Creating Opportunities for Minor League

Professionals, Entertainers, and Teams through Legal Entry Act of

2006 (COMPETE Act) slightly amended this section of the stat-

ute.

Today, a professional athlete employed by “[a]ny minor

league team that is affiliated with” an association satisfying the crite-

ria above is also eligible for a P-1A visa.

Athletic applicants can also be eligible to apply for P-1A visas if

the individuals are amateur athletes or coaches who are traveling to

the United States as part of a team or franchise located within the

United States and are members of a foreign league or association.

The foreign leagues or associations referred to are themselves sub-

ject to a number of requirements.

They must be comprised of at

least fifteen amateur sports teams, render participants ineligible to

84. See id. (requiring professional athletes applying for P-1A visas be employed

by “[a] team that is a member of an association of six or more professional sports

teams whose total combined revenues exceed $10 million per year,” and the associ-

ation “must govern the conduct of its members and regulate the contests and exhi-

bitions in which its member teams regularly engage”).

85. See Sobel, supra note 44 (“Section 214(c)(4)(A) was amended in 2006 by

the Creating Opportunities for Minor League Professionals, Entertainers, and

Teams through Legal Entry Act of 2006 . . . .”).

86. P-1A Athlete, supra note 57 (providing professional athletes “coming to the

United States to be employed as an athlete by [. . .] [a]ny minor league team that

is affiliated with an association [of six or more professional sports teams whose

total revenues exceed $10 million per year]” may be eligible for P-1A visas). The

COMPETE Act has made athletes and coaches who compete in amateur or foreign

leagues in any sport eligible for P-1 visas in addition to H-2B visas, which were

previously their only option; critical response to the Act has been mixed, because

on the one hand, athletes and coaches benefit from being eligible for uncapped P-

1 visas, but on the other hand, a scarcity of guidelines have made it difficult to

uniformly determine eligibility under the Act. See Christine Swenson, 11 crucial

concepts about U.S. immigration for international athletes,

AW IN

PORT

(Feb. 27, 2020),

https://www.lawinsport.com/topics/features/item/11-crucial-concepts-about-u-s-

immigration-for-international-athletes [https://perma.cc/7L4Y-JFS5] (“Until the

Code of Federal Regulations is amended to address these inconsistencies, the

COMPETE Act of 2006 will continue to be a hurdle international athletes have to

overcome when looking to the U.S. for a career.”).

87. See P-1A Athlete, supra note 57 (providing amateur athletes or coaches ap-

plying for P-1A visa “must be coming to the United States to perform as an athlete

or coach as part of a team or franchise that is located in the United States and a

member of a foreign league or association”).

88. See id. (noting P-1A applicants must belong to foreign leagues that “consist

of 15 or more amateur sports teams,” “make players temporarily or permanently

ineligible under National Collegiate Athletic Association rules to . . . [e]arn a

scholarship in the sport at a U.S. college or university . . . or [p]articipate in the

sport at a U.S. college or university,” constitutes “the highest level of amateur per-

formance of that sport in the relevant foreign country,” and feature a “significant

number of . . .individuals who play in the league or association” and are “drafted

by a major sports league or a minor league affiliate”).

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play college sports in the United States, constitute the highest level

of amateur competition in the relevant sport in the country at issue,

and send a significant number of participants to professional teams

or their local affiliates.

The final category of individuals eligible for P-1A visas are the-

atrical ice skaters.

These applicants “must be coming to the

United States to participate in a specific theatrical ice skating pro-

duction or tour as a professional or amateur athlete who performs

individually or as part of a group.”

b. Immigrant (Permanent) Visas

Individuals seeking to live and work in the United States as per-

manent residents may also apply for an EB-1 visa, which is an em-

ployment-based, first-preference immigrant visa.

EB-1 visas are

available to (1) those who can “demonstrate extraordinary ability in

the sciences, arts, education, business, or athletics”; (2) outstanding

professors and researchers; and (3) multinational managers or ex-

ecutives.

The USCIS has determined that applicants in the first

category must demonstrate that their achievements have been ex-

tensively documented.

The requirements of “extensive documen-

tation” in this context closely parallel, but do not precisely imitate,

the evidentiary requirements for an O-1A visa.

Like O-1A visa applicants, EB-1 applicants must either provide

evidence of a one-time, internationally recognized award, such as a

Pulitzer Prize or an Olympic Medal, or satisfy three out of ten lesser

89. See id. (enumerating evidentiary criteria for P-1A visa applicants); see also,

e.g., Tal Pinchevsky, A Mexican Hockey Player Looks for a Place to Lace Up His Skates,

N.Y. T

IMES

(Feb. 27, 2019), https://www.nytimes.com/2019/02/27/sports/

hockey/hector-majul-mexico-lithuania.html [https://perma.cc/894W-VVT9] (dis-

cussing Mexican-born hockey player Hector Majul, who secured P1 visa to play

hockey at amateur level during years between high school and college).

90. See P-1A Athlete, supra note 57 (specifying evidentiary criteria for theatrical

ice skaters applying for P-1A visas).

91. See id. (basing P-1A eligibility for theatrical ice skaters on nature of events

in which they participate).

92. See EB-1: Permanent Workers – Extraordinary Ability/Outstanding Professor/Mul-

tinational Executive,

U.S. C

ITIZENSHIP AND IMMIGRATION

ERVS

https://www.uscis.

gov/forms/explore-my-options/eb-1-employment-based-immigration-permanent-

workers-extraordinary-abilityoutstanding [https://perma.cc/948X-7MC9] (last vis-

ited Jan. 28, 2020) (providing applicants can apply to become Legal Permanent

Residents once EB-1 petitions are approved and priority dates are current).

93. See id. (delineating categories of EB-1 visa applicants and providing evi-

dentiary requirements for determining eligibility).

94. See id. (mandating EB-1 visa applicants’ “achievements must be recognized

in [their] field through extensive documentation”).

95. For further discussion about the evidentiary requirements to procure an

O-1A visa, see supra notes 65-73 and accompanying text.

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criteria.

For example, Zimbabwean golfer Nick Price secured an

EB-1 visa after collecting eighteen wins on the PGA tour, a former

“number one” world ranking, and an induction into the World Golf

Hall of Fame.

Another example of an EB-1 visa recipient is Rob-

ert Cheseret, an accomplished collegiate long-distanced runner

from Kenya.

Notably, applicants exhibiting “extraordinary ability”

need not have received an offer of employment from a United

States entity.

c. Decreasing Visa Approval Rates

Since 2016, the percentage of individuals granted EB-1 visas

has been steadily declining.

100

At the end of 2016, 82.1% of EB-1

applicants received a visa.

101

However, by the end of 2018, that rate

96. See EB-1, supra note 92 (providing list of qualifying evidentiary criteria).

The enumerated categories of evidence that may be used to demonstrate “ex-

traordinary ability” is as follows: “[e]vidence of receipt of lesser nationally or inter-

nationally recognized prizes or awards for excellence; [e]vidence of . . .

membership in associations in the field which demand outstanding achievement

of their members; [e]vidence of published material about [the applicant] in pro-

fessional or major trade publications or other major media; [e]vidence that [the

applicant has] been asked to judge the work of others, either individually or on a

panel; [e]vidence of [the applicant’s] original scientific, scholarly, artistic, athletic,

or business-related contributions of major significance to the field; [e]vidence of

[the applicant’s] authorship of scholarly articles in professional or major trade

publications or other major media; [e]vidence that [the applicant’s] work has

been displayed at artistic exhibitions or showcases; [e]vidence of [the applicant’s]

performance of a leading or critical role in distinguished organizations; [e]vidence

that [the applicant commands] a high salary or other significantly high remunera-

tion in relation to others in the field; [or] [e]vidence of [the applicant’s] commer-

cial successes in the performing arts.” Id. (listing potential evidentiary criteria to

support EB-1 visa application).

97. See EB-1 Extraordinary Ability Visa for Athletes,

URAS

IRM

https://juras-

law.com/eb-1-extraordinary-ability-visa-for-athletes/ [https://perma.cc/VY9V-

B3GH] (last visited July 12, 2020) (“An example of a foreign professional athlete

who has been awarded EB-1 visa and green card is professional golfer Nick Price, a

native of Zimbabwe. He has 18 PGA tour wins (3 majors), a former #1 world rank-

ing to his credit and was inducted into the World Golf Hall of Fame.”).

98. See id. (stating Cheseret had “won the men’s title for the U.S. at the 2011

NACAC Cross Country Championships,” “had a total of eight Pac-10 titles during

his career- the most ever by a Pac-10 track and field athlete,” “went on to capture

the NCAA West Regional individual crown, “and “was the Pac-10’s top finisher at

the NCAA Championships with a tenth-place finish”).

99. See id. (noting EB-1 applicants claiming extraordinary ability need not

show offer of employment within United States).

100. See generally Radnofsky, supra note 25 (reporting decreased levels of ap-

proved EB-1 visa applications).

101. See Amy L. Peck & Gregg E. Clifton, USCIS Denials in Extraordinary Ability

Category on the Rise,

ACKSON

EWIS

PC I

MMIGRATION

LOG

(Dec. 17, 2019), https://

www.lexology.com/library/detail.aspx?g=6e55ecb5-0ca9-4d81-bdae-1653f20b2529

[https://perma.cc/LSG4-5GME] (“The approval rate for the extraordinary ability

category at the end of the Obama administration was 82.1%.”).

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had declined to 69.4%.

102

Only a year later, the admittance rate for

EB-1 visa applicants in 2019 dropped drastically again, to 56.3%.

103

Further, the acceptance rate in instances where the government re-

quested applicants to provide additional evidence for their applica-

tions was 34.4% at the end of 2019, which represents a 13.4%

decline since 2016.

104

This phenomenon is not unique to EB-1 visa

applicants.

105

O-1 visa applications have faced declining approval

rates as well.

106

This phenomenon is not unique to athletes, as

highly-skilled immigrants in other fields also rely on EB-1 and O-1

visas to live in the United States.

107

Nonetheless, decreases in ap-

proval rates for these types of visas disproportionally impact foreign

professional athletes, as these athletes primarily rely on EB-1 and O-

1 visas in order to live and work in the United States.

108

Discrete changes to national immigration policy can partially

explain the decreasing rate of acceptance for the O-1visa classifica-

tion.

109

For instance, the processing fee associated with expediting

an O-1 visa application has recently increased from $1,225 to

$1,410.

110

Additionally, as of 2018, USCIS is no longer required to

request further information from an O-1 applicant before declining

102. See id. (“For FY 2018, the rate fell to 69.4% . . . .”).

103. See Radnofsky, supra note 25 (recounting U.S. Citizenship and Immigra-

tion Services data).

104. See id. (“For petitions in which the government requested additional evi-

dence, which it is doing more often, the approval rate fell from 37.8% in fiscal

2016 to 37.3% for fiscal 2018 and 34.4% for fiscal 2019.”).

105. See Latest USCIS Data Confirm Continued High Rates of Nonimmigrant RFEs

and Denials in FY 2019,

RAGOMEN

, https://www.fragomen.com/insights/alerts/lat

est-uscis-data-confirm-continued-high-rates-nonimmigrant-rfes-and-denials-fy-2019

[https://perma.cc/45P8-62KN] (last visited Feb. 16, 2020) (describing decreasing

approval rates for O-1 and O-2 visa petitions).

106. See id. (“During the first three quarters of FY 2019, the approval rate for

O-1 and O-2 petitions fell to 90.9% from 92.8% in 2018.”).

107. See O-1 Visa vs EB-1 Green Card — Differences, Approval Rate, Processing Time,

SGM L

ROUP

(Feb. 2, 2017), https://www.immi-usa.com/o-1-visa-vs-eb-1-green-

card-differences-approval-rate-processing-time/ [https://perma.cc/F5LQ-4XAT]

(providing “scientists, researchers, doctors, business executives, educators, [and]

academics,” amongst others, may petition for EB-1 visas and that “researcher[s],

scientist[s], academic[s], business professional[s], or professional agents,” as well

as workers “in the entertainment industry such as art, television, or theater” may

petition for O-1 visas).

108. For further discussion about how foreign professional athletes rely pri-

marily on EB-1, O-1, and P-1 visas to gain authorization to live and work in the

United States, see supra notes 61-99 and accompanying text.

109. See Hess, supra note 25 (describing various procedural changes making

O-1 visas more difficult to obtain).

110. See id. (noting recent increase in processing fee for O-1 visa

applications).

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to grant them a visa.

111

In another subtle, but significant shift, la-

bor unions providing consultation letters for O-1 visa applicants

may now submit those letters directly to the USCIS.

112

O-1 appli-

cants are typically required to provide such letters from labor orga-

nizations associated with their field of employment, and until this

change, applicants were granted the opportunity to rebut the let-

ters if they were negative.

113

Finally, petitions to extend O-1 visas

are now considered anew, a marked change from the deference

previously afforded to approved O-1 visa applications.

114

However, painting a full picture of the decreasing acceptance

rate for both O-1 and EB-1 visa applications may require going be-

yond changes to national immigration policy and exploring how

immigration officials are responding to the Trump administration’s

efforts to curtail legal immigration.

115

For example, USCIS has nar-

rowed the scope of comparative data used to determine whether O-

1 visa applicants meet the “high salary requirement.”

116

Where

before O-1 applicants’ salary would be provided by their employers

and compared against Bureau of Labor Statistics’ data for average

compensation in the relevant field, applicants are now required to

111. See Policy and Practice Changes Impact the O-1 Visa,

ARLTON

IELDS

(Nov. 7,

2018), https://www.carltonfields.com/insights/publications/2018/policy-and-

practice-changes-impact-the-o-1-visa [https://perma.cc/8P93-3G4F] (describing

“new USCIS policy of denying petitions where the criterion is not met without [a

request for further evidence]”).

112. See id. (“USCIS under Trump has, however, made a subtle change that

allows labor unions, peer groups, or management organizations to submit a nega-

tive consultation letter directly to USCIS.”); see also Policy and Practice Changes, supra

note 111 (“Now, the labor union can address the negative consultation directly

with USCIS without first providing it to the O-1 applicant to rebut.”).

113. See Hess, supra note 25 (considering change in policy “may be denying

legitimate applicants an opportunity to explain their side of the story”).

114. See id. (“USCIS no longer has to give any weight to a prior determination

and can be [denied] an extension even if the O-1 applicant has had no change in

circumstance and was declared eligible previously.”); see also Policy and Practice

Changes, supra note 111 (stating “USCIS no longer gives deference to prior O-1

petitions” and “must apply the same level of scrutiny to an O-1 petition extension

as it would to a brand new O-1 petition”).

115. See Refugee, Asylum, and International Operations Directorate, RAIO Di-

rectorate – Officer Training,

U.S. C

ITIZENSHIP AND

MMIGRATION

ERVS

(Dec. 20,

2019), https://www.uscis.gov/sites/default/files/files/nativedocuments/Discre

tion_LP_RAIO.pdf [https://perma.cc/4D7A-AWJU] (noting USCIS cases involv-

ing employment authorization, such as employment-based visa applications, are

subject to officials’ exercise of discretion and stating that “[e]ligible applicants may

be denied a benefit through an officer’s exercise of discretion”).

116. See Hess, supra note 25 (citing “narrowness” of high salary requirement

interpretation by USCIS).

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personally compare their salary data to that of others holding the

same position, a narrower inquiry.

117

As the eligibility criteria for O-1 and EB-1 visas closely parallel

one another, it is unsurprising that immigration officials are also

exercising their discretion more stringently to deny more EB-1

visas.

118

A recent review of rejected EB-1 petitions by the Wall

Street Journal demonstrates that foreign professional athletes today

have a markedly more difficult time convincing immigration offi-

cials that they possess “extraordinary ability” compared to their

predecessors.

119

In one particularly illustrative case, a Japanese

gymnast named Koji Uematsu was denied an EB-1 visa because he

had allegedly failed to show that he was among the best gymnasts in

the country, despite qualifying for the Japanese national team, one

of the best in the world.

120

In another instance, a swimmer who

had placed within the top ten at the European swimming champi-

onships was denied a visa on the grounds that he had failed to

demonstrate that he had received an award for excellence.

121

These cases interpret immigration eligibility requirements far more

narrowly than courts have indicated is proper.

122

In fact, appellate

courts may even find an abuse of discretion where there is “no evi-

dence to support [a] decision or if the decision was based on an

improper understanding of the law.”

123

117. See id. (noting USCIS now requires “specific corroborating evidence of

the applicant’s salary beyond just statements from the employer” and that appli-

cant shows “comparisons between salaries that are specific to the exact field the

applicant is in”).

118. See Radnofsky, supra note 25 (citing examples of athletes whose EB-1 ap-

plications have been denied due to strict exercises of USCIS discretion). For fur-

ther discussion about eligibility criteria for O-1 and EB-1 visas, see supra notes 65-

73 and 92-99 and accompanying text.

119. See Radnofsky, supra note 25 (“[The reviewed denied EB-1 appeals] show

that it has become significantly harder in the past three years to get green cards for

the would-be coaches, training partners and teammates of Americans through the

longstanding ‘extraordinary ability’ route.”).

120. See id. (describing circumstances surrounding denial of Koji Uematsu’s

EB-1 visa petition).

121. See id. (summarizing grounds of denial of professional European swim-

mer’s EB-1 visa petition).

122. See generally, e.g., Muni v. Immigration and Naturalization Serv., 891 F.

Supp. 440 (N.D. Ill. 1995) (holding Muni’s National Hockey League magazine

awards, high salary in comparison to other league defensemen, and publications

established his extraordinary ability and condemning INS’s “overly grudging inter-

pretation” of standards).

123. See Kazarian v. United States Citizenship and Immigration Servs., 596

F.3d 1115, 1118 (9th Cir. 2010) (holding USCIS’s denial of theoretical physicist’s

extraordinary ability visa did not constitute abuse of discretion).

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Athletes have raised challenges to such visa denials, asserting

that they were based on overly-stringent interpretations of eligibility

criteria.

124

For instance, professional Canadian ice skater Christine

Carreira brought suit after the USCIS denied her visa application,

despite her being one-half of the world’s top junior ice dance team

and having won ten medals in international competition in two

years.

125

Although the USCIS has always maintained that member-

ship on a professional sports team alone is insufficient to satisfy the

extraordinary ability standard, refusals in the face of success at an

elite, nationally-recognized level indicates that the Trump adminis-

tration is raising that standard beyond its previous bounds.

126

2. Trump Administration Executive Orders

President Donald Trump was sworn into office on January 20,

2017, following a campaign that emphasized putting “America

First.”

127

Not long after his inauguration, he began issuing execu-

124. See, e.g., Andrew Keshner, Gold medal-winning figure skater ssues government

over refusal to deem her ‘extraordinary’,

ARKET

ATCH

(Nov. 1, 2018), https://www.

marketwatch.com/story/medal-winning-ice-skater-sues-over-authorities-refusal-to-

deem-her-extraordinary-2018-10-23 [https://perma.cc/72WY-UP6A] (reporting

on lawsuit brought by Canadian ice skater in response to visa petition denial).

125. See Carreira v. United States Citizenship and Immigration Servs., 1:2018-

cv-02406 (D.C. 2018) (challenging USCIS denial of EB-1 visa for professional ice

skater with gold and silver medals in various international competitions). See also

Keshner, supra note 124 (quoting USCIS August 2018 decision denying Carreira’s

visa application as follows: “[Your awards] were not directly awarded to you . . .

They were awarded for your performance as part of a sports team. . . . [W]e do not

consider such honors to be a nationally or internationally recognized prize or

award for excellence in the field of endeavor, because it is limited to members of

that association and participants of those competitions”).

126. See Heather E. Morrow, The Wide World of Sports Is Getting Wider: A Look At

Drafting Foreign Players into U.S. Professional Sports, 26

OUS

. J. I

’

649, 653

(2004) (“The [INS] has stated that membership on a professional team alone does

not fulfill the extraordinary ability standard, making it more difficult for players

with emerging talent to gain entry to American sports.”). Although the Immigra-

tion and Naturalization Service was abolished in 2003 and replaced by three sepa-

rate departments within the Department of Homeland Security, including the

United States Citizenship and Immigration Service, the USCIS retained the INS’s

standards for determining visa eligibility. See Sobel, supra note 44 (noting USCIS

retained INS visa standards following its establishment).

127. See Carrie Johnson, In Inaugural Address, Trump Decries ‘Carnage’ And

Promises ‘America First’,

’

. R

ADIO

(Jan. 20, 2017), https://www.npr.org/

2017/01/20/510746700/donald-trump-sworn-in-as-the-45th-president-of-the-

united-states [https://perma.cc/EZF6-Z23S] (summarizing President Trump’s in-

augural address after being sworn into office on January 20, 2017); see also Ryan

Teague Beckwith, Read Donald Trump’s ‘America First’ Foreign Policy Speech,

IME

(Apr. 27, 2016), https://time.com/4309786/read-donald-trumps-america-first-for

eign-policy-speech/ [https://perma.cc/W972-5QTM] (quoting President Trump

as saying, “America first will be the major and overriding theme of my

administration”).

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tive orders aimed at addressing what he viewed as lax American im-

migration laws.

128

Of these orders, those concerning President

Trump’s colloquially named “travel ban” and border wall with Mex-

ico are most likely to impact foreign athletes trying to compete in

the United States.

129

The travel ban refers to a presidential procla-

mation issued in September 2017 for the stated purpose of restrict-

ing travel from an enumerated list of countries deemed to have

inadequate information-sharing protocols.

130

The Trump adminis-

tration also authorized the construction of a border wall with Mex-

ico in January 2017 in an effort to reduce illegal immigration into

the United States.

131

a. “Presidential Proclamation Enhancing Vetting Capabilities

and Processes for Detecting Attempted Entry Into the

United States by Terrorists or Other Public-Safety

Threats”

On January 27, 2017, President Trump issued Executive Order

13769, entitled “Executive Order Protecting the Nation from For-

eign Terrorist Entry into the United States.”

132

This order sus-

pended visa allowances to residents of countries deemed by the

Secretary of Homeland Security to have inadequate information-

sharing protocols in place with the United States.

133

Executive Or-

der 13769 also automatically barred travelers from seven “high-risk”

countries for ninety days, suspended the United States Refugee Ad-

missions Program for 120 days, and suspended the entry of all Syr-

128. See President Donald J. Trump Achievements: Immigration,

ONALD

J. T

RUMP

FOR

RESIDENT

https://www.promiseskept.com/achievement/overview/immigra

tion/# [https://perma.cc/4ZNB-AYVY] (last visited June 12, 2020) (listing actions

taken by President Trump to restrict immigration and noting “President Trump

protects American communities and restores law and order at the border so Amer-

icans can feel safe in their communities”).

129. For further discussion about how President Trump’s executive orders

instituting a travel ban and border wall may impact professional athletes’ ability to

travel to the United States to train and compete, see infra notes 177-192.

130. For further discussion about President Trump’s ongoing travel ban, see

infra notes 132-145 and accompanying text.

131. For further discussion about President Trump’s border wall between the

United States and Mexico, see infra notes 146-152 and accompanying text.

132. See Exec. Order No. 13,769, 3 C.F.R. § 8977 (Mar. 6, 2017) (“It is the

policy of the United States to protect its citizens from foreign nationals who intend

to commit terrorist attacks in the United States; and to prevent the admission of

foreign nationals who intend to exploit United States immigration laws for malevo-

lent purposes.”).

133. See id. (calling for review of information-sharing protocols between for-

eign nations and United States and “[s]uspension of [i]ssuance of [v]isas and

[o]ther [i]mmigration [b]enefits to [n]ationals of [c]ountries of [p]articular

[c]oncern”).

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ian refugees indefinitely.

134

The district court for the Western

District of Washington temporarily enjoined the order, and the

Ninth Circuit Court of Appeals upheld the injunction.

135

A revised

version of the executive order, entitled Executive Order 13780, was

also enjoined nine days after its issuance.

136

Following a challenge

by the federal government, the Supreme Court allowed Executive

Order 13780 to go into limited effect until the Court could formally

rule on its legality in October of 2017.

137

Prior to the Supreme Court’s formal ruling on Executive Or-

der 13780, President Trump issued a third iteration of his adminis-

tration’s travel ban (“Proclamation”) on September 24, 2017,

restricting travel into the United States by citizens from seven coun-

tries.

138

After the Fourth and Ninth Circuit Courts of Appeals up-

held injunctions barring enforcement of the Proclamation, the

Supreme Court reversed in Trump v. Hawaii.

139

In a five-to-four de-

cision, the Court held that it was within the President’s broad dis-

cretion under the Immigration and Nationality Act of 1990 to

134. See id. §§ 3(c), 5(a), 5(c) (suspending entry into United States by trav-

elers from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days; all

refugees for 120 days; and Syrian refugees indefinitely).

135. See Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (denying

stay of temporary restraining order against Executive Order 13769 on grounds that

federal government (1) did not show likelihood of success on merits of claim that

order did not violate aliens’ rights of due process; and (2) did not show necessity

of emergency stay).

136. See Exec. Order No. 13780, 3 C.F.R. § 13209 (2017) (“[I]n order to avoid

spending additional time pursuing litigation, I am revoking Executive Order 13769

and replacing it with this order, which expressly excludes from the suspensions

categories of aliens that have prompted judicial concerns and which clarifies or

refines the approach to certain other issues or categories of affected aliens.”).

137. See Federal Travel Ban: Trump Administration Actions Limiting Noncitizen

Travel to the U.S. and Courts,

’

ONFERENCE OF

TATE

EGISLATURES

, https://

www.ncsl.org/research/immigration/federal-travel-ban.aspx [https://perma.cc/

T9QK-92PV] (last visited June 14, 2020) (“On June 26, 2017, the Supreme Court

announced that it would allow the president to proceed with a limited version of

the second executive order, while deciding to hear arguments in October and al-

lowing the order to ban travelers from Iran, Libya, Somalia, Sudan, Syria, and

Yemen if the visitors lacked a ‘credible claim of a bona fide relationship with a

person or entity in the United States.’”).

138. See Presidential Proclamation Enhancing Vetting Capabilities and Processes for

Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,

HITE

OUSE

(Sept. 24, 2017), https://www.whitehouse.gov/presidential-actions/

presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-at

tempted-entry-united-states-terrorists-public-safety-threats/ [https://perma.cc/

C8AW-AZ76] (instituting travel restrictions for citizens of Chad, Iran, Libya, North

Korea, Somalia, Syria, and Yemen, as well as certain government officials from

Venezuela).

139. See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (“Under these circum-

stances, the Government has set forth a sufficient national security justification to

survive rational basis review.”).

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restrict foreign travel in matters of national security.

140

Further, the

Court determined that President Trump’s inflammatory public re-

marks regarding Muslims did not render his legitimate purpose

pretextual.

141

As of this writing, the Proclamation remains in effect and has

been expanded to encompass travelers from an increasing number

of countries.

142

Despite the Proclamation’s facial religious neutral-

ity, critics continue to denounce its perceived targeting of Muslim-

majority nations.

143

Further, the Proclamation specifically exempts

certain classes of travelers from the travel ban; however, these ex-

emptions are inapplicable to foreign professional athletes.

144

While

140. See id. at 2422 (acknowledging President’s discretion in matters of na-

tional security by writing: “the Executive’s evaluation of the underlying facts is enti-

tled to appropriate weight, particularly in the context of litigation involving

‘sensitive and weighty interests of national security and foreign affairs’”).

141. See id. at 2418 (framing Court’s decision not as “whether to denounce

[President Trump’s] statements” but “the significance of those statements in re-

viewing a Presidential directive, neutral on its face, addressing a matter within the

core of executive responsibility”).

142. See Tara C. Mahadevan, Trump Administration Adds 6 New Countries to

Travel Ban,

OMPLEX

(Feb. 1, 2020), https://www.complex.com/life/2020/02/

donald-trump-administration-broadens-travel-ban-encompass-6-new-countries

[https://perma.cc/95NC-4QPJ] (reporting new travel restrictions on travelers

from Nigeria, Eritrea, Tanzania, Sudan, Kyrgyzstan, and Burma, in addition to ex-

isting restrictions on travelers from Chad, Iran, Libya, Somalia, Syria, Yemen, Ven-

ezuela, and North Korea).

143. See Stef W. Kight, The evolution of Trump’s Muslim ban,

XIOS

(Feb. 10,

2020), https://www.axios.com/trump-muslim-travel-ban-immigration-6ce8554f-

05bd-467b-b3c2-ea4876f7773a.html [https://perma.cc/YB7Z-Z8BQ] (stating

“Donald Trump’s campaign call for all Muslims to be barred from entering the

United States has morphed over the past three years into a complex web of travel

and immigration restrictions placed, to varying degrees, on 7% of the world’s pop-

ulation” and noting Muslim populations of countries encompassed by travel ban).

144. See Shoba Sivaprasad Wadhia, Trump’s Travel Ban Two Years Later,

MERI-

CAN

ONSTITUTION

’

(Jan. 30, 2019), https://www.acslaw.org/expertforum/

trumps-travel-ban-two-years-later/ [https://perma.cc/XG4U-JPL6] (listing catego-

ries of persons exempt from Proclamation as “[l]awful permanent residents (green

card holders)[, f]oreign nationals admitted or paroled to the United States on or

after the effective date[, f]oreign nationals with travel documents that are not visas

that are valid before or issued after the effective date[, d]ual nationals traveling on

a passport that is not one of the affected countries[, t]hose traveling on a diplo-

matic or related visa[, and f]oreign nationals who have already been granted asy-

lum, refugees who have already been granted admittance, and those who have

been granted withholding of removal, advanced parole, or protections under the

Convention Against Torture”); see also Lester Munson, How Trump’s Immigration

Ban Might Affect Sports and Athletes,

ABC N

EWS

(Jan. 30, 2017), https://abcnews.

go.com/Sports/trumps-immigration-ban-affect-sports-athletes/story?id=45153120

[https://perma.cc/U4P3-NMGK] (stating “the order allows admission into the

United States for citizens from these countries when ‘denying admission would

cause undue hardship,’ but ‘[t]o prove the ‘hardship’ exemption, sports agents

and lawyers for athletes would have to argue and challenge legal authorities on an

issue that is without precedent in immigration law’”).

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the Proclamation created a waiver program to exempt covered indi-

viduals on a case-by-case basis, scrutiny of the program has revealed

few applicants have successfully received visas through the waiver

program.

145

b. “Executive Order: Border Security and Immigration

Enforcement Improvements”

As early as 2014, President Trump touted the construction of a

border wall between the United States and Mexico as a primary

presidential campaign promise.

146

Mere days after taking office,

President Trump acted on this campaign promise by issuing an ex-

ecutive order on January 25, 2017 calling for the “immediate con-

struction of a physical wall on the southern border [of the United

States].”

147

In order to finance the border wall following inade-

quate congressional funding, President Trump declared a national

emergency on February 15, 2019, which authorized his administra-

tion to divert military resources to the project.

148

The United States

145. See Betsy Fisher & Samantha Power, The Trump Administration is Making a

Mockery of the Supreme Court,

N.Y. T

IMES

(Jan. 27, 2019), https://www.nytimes.com/

2019/01/27/opinion/trump-travel-ban-waiver.html [https://perma.cc/FWH4-

UDQG] (noting that visa waivers may be granted under Proclamation where 1)

denial of entry would cause undue hardship, 2) entry would be in national inter-

est, and 3) entry would pose no threat to national security; further, pointing out

lack of published instructions regarding how to apply for waiver and stating that

approximately 98% of waiver applications between December 2017 and April 2018

were denied).

146. See Donald J. Trump (@realDonaldTrump),

WITTER

(Aug. 5, 2014, 4:34

PM), https://twitter.com/realDonaldTrump/status/496756082489171968?ref

_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E49675608248917

1968&ref_url=https%3A%2F%2Fwww.nytimes.com%2F2018%2F01%2F18%2

Fus%2Fpolitics%2Ftrump-border-wall-immigration.html [https://perma.cc/

VUC3-KPJL] (“SECURE THE BORDER! BUILD A WALL!”); see also Ron Nixon &

Linda Qiu, Trump’s Evolving Words on the Wall,

N.Y. T

IMES

(Jan. 18, 2018), https://

www.nytimes.com/2018/01/18/us/politics/trump-border-wall-immigration.html

[https://perma.cc/R97N-Q7E4] (quoting President Trump on October 28, 2015

as saying, “As far as the wall is concerned, we’re going to build a wall. We’re going

to create a border”).

147. See Exec. Order No. 13767, 82 C.F.R. § 8793 (Jan. 25, 2017) (“It is the

policy of the executive branch to . . . secure the southern border of the United

States through the immediate construction of a physical wall on the southern bor-

der, monitored and supported by adequate personnel so as to prevent illegal immi-

gration, drug and human trafficking, and acts of terrorism . . . .”).

148. See Presidential Proclamation on Declaring a national Emergency Concerning the

Southern Border of the United States,

HITE

OUSE

(Feb. 15, 2019), https://www.white

house.gov/presidential-actions/presidential-proclamation-declaring-national-

emergency-concerning-southern-border-united-states/ [https://perma.cc/XQ5Y-

RC2T] (“I hereby declare that this emergency requires use of the Armed Forces

and . . . that the construction authority provided in . . . [the] United States Code, is

invoked and made available . . . .”); see also Jessica Taylor & Brian Naylor, As Trump

Declares National Emergency To Fund Border Wall, Democrats Promise Fight,

’

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District Court for the Western District of Texas initially enjoined

the Trump administration’s use of emergency funds for the project,

but the Fifth Circuit reversed, allowing construction of the border

wall to continue as planned.

149

As of this writing, the Trump administration has erected ap-

proximately 371 miles of a steel-and-concrete wall along the United

States-Mexico border.

150

President Trump publicly guaranteed that

at least 500 miles of the structure would be completed by the end of

2020, coinciding with his campaign for re-election.

151

In accor-

ADIO

(Feb. 15, 2019), https://www.npr.org/2019/02/15/695012728/trump-ex-

pected-to-declare-national-emergency-to-help-fund-southern-border-wall [https://

perma.cc/29UZ-WJG7] (“Trump said he was declaring an emergency because of

‘an invasion of our country with drugs, with human traffickers, with all types of

criminals and gangs.’”). The remainder of funding for the border wall came in

the form of a $1.3 billion congressional grant while $6.7 billion was diverted from

other government projects. See Bobby Allyn, Appeals Court Allows Trump To Divert

$3.6 Billion In Military Funds For Border Wall, NPR (Jan. 9, 2020), https://www.

npr.org/2020/01/09/794969121/appeals-court-allows-trump-to-divert-3-6-billion-

in-military-funds-for-border-wa [https://perma.cc/3LJH-HWD2] (noting “Con-

gress maintained border wall funding at $1.3 billion” in its 2020 spending package

and that “[w]hen the president declared the national emergency over border se-

curity, he ordered federal agencies to find $6.7 billion in funding from other gov-

ernment projects to finance construction”).

149. See El Paso Cty. v. Trump, 408 F.Supp.3d 840, 860 (W.D. Tex. 2019)

(holding President Trump’s redirection of military funds to build border wall vio-

lated Consolidated Appropriations Act § 739); see also El Paso Cty. v. Trump,

1:2020-cv-19-51144 (5th Cir. 2020) (stating “[t]he application for a stay of the dis-

trict court’s injunction pending appeal is GRANTED” and noting the Supreme

Court recently stayed a similar injunction in Trump v. Sierra Club, 140 S. Ct. 1

(2019)). It should be noted that on September 25, 2020, the Court of Appeals for

the District of Columbia Circuit authorized the House of Representatives to pursue

legal action against the Trump administration on the grounds that it was unconsti-

tutional for the President to use emergency funds to spend more on the border

wall than Congress had initially permitted. As of this writing, the House’s underly-

ing claim had not yet been heard on the merits. See United States House of Repre-

sentatives v. Mnuchin, 2020 WL 5739026 at *8 (holding that House of

Representatives had “a distinct injury” and “standing to bring this litigation”); see

also Charlie Savage, Appeals Court Permits House to Sue Over Trump’s Border Wall Spend-

ing,

N.Y. T

IMES

(Sept. 25, 2020), https://www.nytimes.com/2020/09/25/us/polit-

ics/trump-border-wall-lawsuit.html [https://perma.cc/K2ET-5KRD] (“The House

may pursue a constitutional lawsuit challenging President Trump’s use of emer-

gency powers to spend more public funds on a southwestern border wall than

Congress was willing to appropriate . . . .”).

150. See Border Wall System,

U.S. C

USTOMS AND

ORDER

ROTECTION

(Oct. 19,

2020), https://www.cbp.gov/border-security/along-us-borders/border-wall-system

[https://perma.cc/4YXW-J4B7] (stating that approximately 371 miles of border

wall had been constructed as of October 19, 2020).

151. See id. (stating “Trump has promised to build at least 500 miles of new

fencing by early next year” and explaining that “[t]o meet the president’s targets,

crews will need to add about 30 linear miles of barrier per month throughout

2020, more than double the current pace of construction”).

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dance with this goal, construction of the border wall continued,

and even accelerated, during the COVID-19 pandemic of 2020.

152

C. Proposed Reforming American Immigration for a Strong

Economy Act

1. Background and Legislative History of the RAISE Act

On February 13, 2017, Senators Tom Cotton (R-AR) and David

Perdue (R-GA) first introduced the RAISE Act before the Senate.

153

The stated purpose of the bill was “to eliminate the Diversity Visa

Program, to limit the President’s discretion in setting the number

of refugees admitted annually to the United States, to reduce the

number of family-sponsored immigrants, [and] to create a new

nonimmigrant classification for the parents of adult United States

citizens.”

154

The RAISE Act received support from President Don-

ald Trump for “prioritiz[ing] immigrants based on the skills they

bring to our Nation while safeguarding the jobs of American

workers.”

155

Groups across the country praised the bill for its potential to

return jobs to American citizens.

156

For instance, NumbersUSA

president Roy Beck issued the statement, “[s]eeing the President

standing with the bill’s sponsors at the White House gives hope to

the tens of millions of struggling Americans in stagnant jobs or

152. See Simon Romero, Arizona Finds Coronavirus among Border Wall Workers,

N.Y. T

IMES

(June 12, 2020), https://www.nytimes.com/2020/06/12/us/

coronavirus-border-wall-workers-arizona.html [https://perma.cc/T8N2-VVWN]

(reporting at least two individuals working on U.S./Mexico border wall tested posi-

tive for coronavirus after “[t]he federal government declined to suspend construc-

tion and even accelerated work along some stretches of the border”).

153. See S.354 – RAISE Act,

IBRARY OF

ONGRESS

, https://www.congress.gov/

bill/115th-congress/senate-bill/354 [https://perma.cc/2AQM-6TWS] (last visited

Jan. 26, 2020) (providing overview of RAISE Act).

154. See id. (stating purpose of bill as “[t]o amend the Immigration and Na-

tionality Act, to eliminate the Diversity Visa Program, to limit the President’s dis-

cretion in setting the number of refugees admitted annually to the United States,

to reduce the number of family-sponsored immigrants, to create a new nonimmi-

grant classification for the parents of adult United States citizens, and for other

purposes”).

155. President Donald J. Trump Backs RAISE Act,

HITE

OUSE

(Aug. 2, 2017),

https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-

backs-raise-act/ [https://perma.cc/LB29-U8X3] (providing ways Act accomplishes

stated goal, such as implementation of merit-based system).

156. See Priscilla Alvarez, Can a Decades-Old Immigration Proposal Pass under

Trump?,

TLANTIC

(Aug. 21, 2017), https://www.theatlantic.com/politics/

archive/2017/08/can-a-decades-old-immigration-proposal-pass-under-trump/

537138/ [https://perma.cc/L383-RENC] (noting support for President Trump’s

endorsement of RAISE Act from immigration restrictionist groups).

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outside the labor market altogether.”

157

However, the RAISE Act

also attracted some critics.

158

Specifically, immigrants’ rights

groups viewed the bill as “conflict[ing] with many core values the

United States has traditionally embraced, such as providing equal

opportunities for all, fighting discrimination of all sorts, protecting

minorities and disadvantaged groups, and preserving family

unity.”

159

Nonetheless, it stalled after being introduced in the Sen-

ate.

160

There was no word on the bill until it was reintroduced in

April 2019, this time with Senator Josh Hawley (R-MO) adding his

name as a sponsor of the legislation.

161

The stated purpose of the bill, slightly revised from its 2017

iteration, is now 1) to update the Immigration and Nationality Act

by instituting a skills-based point system for immigrants; 2) to limit

family-sponsored immigration to spouses and young children; 3) to

eliminate the Diversity Visa Program; and 4) to reduce refugees in

the U.S., among other things.

162

Ultimately, the RAISE Act is de-

signed to reduce legal immigration by 50% in the United States in

an attempt to increase employment opportunities for American citi-

zens.

163

In particular, the Act’s de-prioritization of many character-

istics unique to professional athletes threatens to disproportionately

reduce legal immigration, and therefore competitive balance, in

that field.

164

157. See id. (quoting praise given to RAISE Act by NumbersUSA president Roy

Beck).

158. See The RAISE Act: What Lies Beneath the Proposed Points System?,

MERICAN

MMIGRATION

OUNCIL

(Aug. 11, 2017), https://www.americanimmigrationcouncil.

org/research/raise-act [https://perma.cc/A2RU-C96M] (identifying intended

and unintended consequences of RAISE Act).

159. See id. (criticizing RAISE Act’s ideology and implications).

160. See S.354 – RAISE Act, supra note 154 (listing “Introduced in Senate” as

only action taken on RAISE Act).

161. See Ruark, supra note 26 (announcing reintroduction of RAISE Act in

April 2019 and noting that companion legislation had been introduced in House

of Representatives).

162. See H.R. 2278: RAISE Act,

RACK

https://www.govtrack.us/congress/

bills/116/hr2278 [https://perma.cc/MRJ5-3QVC] (last visited Jan. 26, 2020) (pro-

viding additional propositions such as creating prerequisite for naturalization).

163. See Ruark, supra note 26 (stating RAISE Act would “reduce . . . labor

competition” and reduce legal immigration by around fifty percent over decade).

164. For further discussion about how the RAISE Act’s failure to accord suffi-

cient weight to immigration characteristics unique to professional athletes and the

likely negative consequences in competitive balance as a result, see infra notes 165-

171 and accompanying text.

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2. Provisions of the RAISE Act Relevant to Immigrant Athletes

Among the measures proposed by the RAISE Act, the elimina-

tion of employment-based immigration categories in favor of a gen-

eralized point system, under which applicants must achieve a

specified number of points in order to gain entry to the United

States, has the greatest potential to negatively impact foreign-born

professional athletes.

165

The RAISE Act’s proposed point system

would continue to take into account some characteristics recog-

nized by the current employment-based immigration regime.

166

For instance, applicants would receive points for certain extraordi-

nary achievements, job offers from United States employers, and

investment activity and entrepreneurialism.

167

However, this system

would also prioritize applicant characteristics that are currently un-

accounted for in the employment-based immigrations system, such

as age, education level, and proficiency of the English language.

168

These provisions fail to take into account the unique circumstances

of immigrants who petition to live in the United States as profes-

sional athletes.

169

For instance, foreign athletes who begin compet-

ing professionally without entering college first would be

disadvantaged by this system.

170

Foreign athletes in individualized

165. See Reforming American Immigration for Strong Employment (RAISE)

Act, H.R. 2278, 116th Cong. § 5 (2019) (enumerating proposed point system to

replace employment-based visa categories). While the RAISE Act contains various

other provisions besides the implementation of a point-based merit system that

would alter the United States’ current immigration system, an in-depth discussion

of these provisions is beyond the scope of this comment. See generally US immigra-

tion proposals: What’s in the Raise Act?,

BBC

EWS

(Aug. 3, 2017), https://

www.bbc.com/news/world-us-canada-40814625 [https://perma.cc/L4CC-62MS]

(summarizing provisions of RAISE Act).

166. See id. § 5(d)(1)(f)-(h) (describing proposed point allotments for job of-

fers, extraordinary ability, and investments).

167. See id. (awarding, for example, twenty-five points for Nobel Prize or com-

parable recognition in scientific study, fifteen points for Olympic or equivalent

medal within past eight years, five points for annual salary at least 150% of average

household income in state of residency, and six points for commercial investment

of at least $1.35 million).

168. See id. § 5(d)(1)(c)-(e) (describing point allotments for age, education

level, and English language proficiency).

169. For further discussion about how the RAISE Act may disadvantage pro-

fessional athletes wishing to immigrate to the United States, see infra notes 192-

205.

170. See, e.g., Jared Diamond & Tom McGinty, MLB Sends a Message to High

Schoolers: Go to College,

ALL

TREET

(June 7, 2019), https://www.wsj.com/arti-

cles/mlb-sends-a-message-to-high-schoolers-go-to-college-11559905200 [https://

perma.cc/9J9F-ZJ2K] (noting twenty-four percent of MLB players in 2019 season

entered draft immediately following high school); see also, e.g., Associated Press, For

elite gymnasts, going pro is a complicated choice,

USA T

ODAY

(July 20, 2016), https://

www.usatoday.com/story/sports/olympics/2016/07/20/for-elite-gymnasts-going-

pro-is-a-complicated-choice/87340808/ [https://perma.cc/9LC7-LW57] (imply-

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sports would also be disadvantaged, because sponsorships consti-

tute the majority of wages in such sports.

171

III. S

CANNING THE

IELD

: T

DVERSE

MPACT OF

RESENT AND

UTURE

MMIGRATION

ESTRICTIONS ON

OTH

MMIGRANT

AND

MERICAN

THLETES

Donald Trump’s presidential campaign was largely focused on

instituting measures to end illegal immigration to the United States

as well as reducing the rate of legal immigration in order to protect

American workers’ employment opportunities.

172

Indeed, since his

earliest days in the White House, President Trump has taken nu-

merous actions in furtherance of these goals, including narrowing

the interpretation of visa eligibility criteria and instituting executive

orders, such as a travel ban and border wall, to reduce immigration

into the United States.

173

This section first observes ways in which

the Trump administration’s crackdown on immigration has

ing gymnasts who wish to compete in United States are pressured by various factors

to go professional during late teenage years, immediately following high school

age); Gary Santaniello, College Hockey Alumni Rise in Prominence in the N.H.L.,

N.Y.

IMES

(Oct. 20, 2018), https://www.nytimes.com/2018/10/20/sports/hockey/

nhl-college-coaches.html [https://perma.cc/K4AQ-J5VN] (stating only one-third

of players in NHL had played in college before competing professionally as of

2018).

171. See RAISE Act, § 5(g) (allocating points for immigrants who have been

offered jobs with salaries constituting at least 150% of median household income

in state in which they are employed); see also Nasha Smith, 13 Athletes who Make

More Money Endorsing Products than Playing Sports,

. I

NSIDER

(June 17, 2019),

https://www.businessinsider.com/athletes-endorsements-nba-golf-tennis-2019-6

(listing high-profile foreign athletes, including Roger Federer, Rafael Nadal, Kei

Nishikori, and Usain Bolt, whose endorsement earnings surpassed athletic

salaries).

172. See Michael Collins, John Fritze, Deirdre Shesgreen, & Paul Davidson,

Build the wall? Travel ban? Tax cuts? After Trump’s State of the Union, here’s where he

stands on promises,

USA T

ODAY

(Feb. 5, 2020), https://www.usatoday.com/story/

news/politics/2020/02/05/state-union-where-donald-trump-stands-promises/

4645277002/ [https://perma.cc/M8YH-8U8G] (“Perhaps no other issue animated

Trump’s campaign as much as immigration. From his proposed ‘impenetrable

physical wall’ on the U.S. border with Mexico to the dramatic changes he pro-

posed to the legal immigration system, Trump hammered away at what he de-

scribed on the campaign trail as one of the ‘greatest challenges facing our country

today.”).

173. See Immigration,

ONALD

J. T

RUMP FOR

RESIDENT

, I

https://www.

promiseskept.com/achievement/overview/immigration/# [https://perma.cc/

27GV-GFGS] (last visited Feb. 18, 2020) (enumerating various actions taken to re-

duce both legal and illegal immigration to the United States). See generally Sarah

Pierce, Immigration-Related Policy Changes in the First Two Years of the Trump Adminis-

tration,

IGRATION

OLICY

NST

(May 2019), https://www.migrationpolicy.org/re-

search/immigration-policy-changes-two-years-trump-administration [https://

perma.cc/6Y9A-ACDD] (noting every change to United States immigration policy

made by Trump administration as of 2019).

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uniquely impacted professional athletes in their efforts to come to

the United States, including not only the decreasing approval rates

for the types of visas traditionally used by professional athletes men-

tioned above, but also the issuance of executive orders and immi-

gration policy changes that implicate foreign athletes.

174

It then

discusses the probability of the RAISE Act passing and asserts that

the Act would exacerbate the hindering effects on professional ath-

lete immigration already being witnessed.

175

Finally, this section

concludes by analyzing the impact of decreased foreign-born ath-

lete immigration on American professional athletics and arguing

that restrictive immigration policies are likely to harm the United

States’ professional sports industry.

176

A. Trump Administration Actions Currently Impacting Athlete

Immigration

Amongst the various actions the Trump administration has

taken to restrict both illegal and legal immigration, two in particu-

lar have the potential to significantly impact professional athletics:

(1) changing policies and standards in the visa context and (2) the

administration’s ongoing travel ban.

177

This section briefly recaps

the factual circumstances surrounding decreasing rates of approval

for EB-1 and O-1 visas as well as their demonstrated impact on pro-

fessional athletes thus far.

178

It then analyzes the direct and indi-

rect repercussions to professional athletics that are likely to result

from the Trump administration’s ongoing travel ban and border

wall in light of present backlash from the affected countries.

179

174. For further discussion about actions already taken by the Trump admin-

istration that have restricted professional athletes’ ability to come to the United

States, see infra notes 177-192 and accompanying text.

175. For further discussion about how passage of the RAISE Act would fur-

ther limit professional athletes’ ability to immigrate to the United States, see infra

notes 193-205 and accompanying text.

176. For further discussion about how restrictions on athlete immigration

would harm the American professional sports industry, see infra notes 224-239 and

accompanying text.

177. See generally Munson, supra note 144 (analyzing travel ban’s potential ef-

fects on domestic and international athletic competition); Rahul Soni, Foreign Ath-

letes Now Struggle to Demonstrate They Have “Extraordinary Ability,”

RAGOMEN

(Dec. 20,

2019), https://www.fragomen.com/insights/blog/foreign-athletes-now-struggle-

demonstrate-they-have-“extraordinary-ability” [https://perma.cc/UU2C-P39Q]

(recounting foreign athletes’ current difficulties in procuring American visas).

178. See Peck & Clifton, supra note 101 (noting decreasing approval rates for

EB-1 visas and analyzing factors responsible for trend); see also Latest USCIS Data,

supra note 105 (stating that approval rates for O-1 and O-2 visa petitions have de-

creased year over year).

179. For further discussion about the Trump administration’s ongoing travel

ban and border wall, the international reaction to the executive orders, and its

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The Trump administration’s stringent interpretations of ex-

isting visa eligibility criteria has already restricted the number of

foreign athletes entering the United States to train and compete,

and enhanced procedural obstacles and narrower discretionary de-

terminations of “extraordinary ability” have resulted in a steady de-

crease of EB-1 and O-1 visas since 2016.

180

Further, President

Trump has taken actions beyond limiting the availability of visas

that may curtail professional athletes’ ability to immigrate to the

United States, namely the ongoing travel ban and border wall de-

scribed above.

181

These restrictions could have negative conse-

quences for certain sports and professional leagues in the United

States which feature a high proportion of Muslim, Central Ameri-

can, or South American athletes.

182

For instance, Iran and the

United States have long enjoyed a close relationship in professional

wrestling, while many NBA and NFL players hail from Muslim-ma-

jority nations.

183

Additionally, MLB teams have long benefited

from an influx of talented athletes from Central and South Ameri-

can countries.

184

While the border wall has no bearing on visa ap-

likely effects on professional athletes, see infra notes 180-192 and accompanying

text.

180. For further discussion about how narrow interpretations of visa eligibility

criteria under the Trump administration have curtailed the number of foreign

athletes entering the United States, see supra notes 100-126.

181. For further discussion about how Trump administration executive ac-

tions threaten to limit professional athletes’ ability to immigrate to the United

States, see infra notes 182-192 and accompanying text.

182. See Jere Longman, Trump’s Immigration Order Could Have a Big Impact on

Sports,

N.Y. T

IMES

(Jan. 28, 2017), https://www.nytimes.com/2017/01/28/sports/

trump-refugee-ban.html [https://perma.cc/YQ7N-E3RP] (discussing potential im-

pact of Trump administration’s travel ban on sports).

183. See Kay Armin Serjoie, U.S. Wrestlers in Iran Practice Hands-On Diplomacy,

IME

(Feb. 17, 2017), https://time.com/4674646/usa-iran-wrestling/ [https://per

ma.cc/F2WY-NQ6P] (“Since [U.S. wrestlers traveled to Iran in 1998, the first U.S.

athletes to do so since the Islamic Revolution of 1979], the United States and Iran

have exchanged wrestling teams 32 times, making the sport a mainstay of people-

to-people diplomacy even when the two governments were at an impasse over

Iran’s nuclear activities.”); see also Allan Smith, Here are some of the greatest Muslim-

American athletes,

. I

NSIDER

(Dec. 7, 2015), https://www.businessinsider.com/

some-great-muslim-american-athletes-2015-12 [https://perma.cc/JBU6-TSK7]

(highlighting various notable Muslim professional athletes, including NBA’s Ha-

keem Olajuwon and Kenneth Faried and NFL’s Ameer Abdullah, Husain Abdul-

lah, and Muhammad Wilkerson, among others).

184. See Laura Depta, Latin American Countries Produce the Most MLB Players,

LEACHER

EPORT

(May 1, 2015), https://bleacherreport.com/articles/2450131-

latin-american-countries-producing-the-most-mlb-players [https://perma.cc/

Q2HZ-Z65Q] (“Latin American countries produce some of baseball’s top talent,

with the Dominican Republic and Venezuela leading the way.”). Some notable

baseball players from South America include David Ortiz of the Boston Red Sox

(Dominican Republic), Miguel Cabrera of the Detroit Tigers (Venezuela), Yasiel

Puig of the Los Angeles Dodgers (Cuba), and Carlos Ruiz of the Philadelphia Phil-

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plications and thus may have a limited direct impact on Central and

South American athletes, the provisions of the ongoing travel ban

contain no exceptions applicable to foreign athletes and thereby

directly inhibit foreign athletes in the affected countries from trav-

eling to the United States.

185

Additionally, beyond harming domestic competition, the ac-

tions undertaken by the Trump administration may also ripple out-

ward to impact nearly every American professional sport which

competes internationally, as the actions have created tension in for-

eign relations between the United States and other governments.

186

This possibility is illustrated by foreign sports officials’ immediate

reactions to the travel ban upon its announcement in 2017.

187

that time, Iranian officials contemplated instituting a retaliatory

ban against American athletes in response.

188

Additionally, experts

feared an impact at that time on the United States’ chances of host-

ing the 2024 Summer Olympics in Los Angeles.

189

Although this

ban apparently never materialized and the United States has been

designated to host the Summer Olympics in 2028, these initial reac-

tions beg considering the types of fallout in international competi-

tion that the United States may experience as the Trump

administration’s travel ban possibly grows to encompass more coun-

lies (Panama), among others. See id. (providing examples of professional baseball

players hailing from Latin American countries).

185. See Munson, supra note 144 (“[T]he order allows admission into the

United States for citizens from these countries when ‘denying admission would

cause undue hardship,’” but “[t]o prove the ‘hardship’ exemption, sports agents

and lawyers for athletes would have to argue and challenge legal authorities on an

issue that is without precedent in immigration law.”).

186. See Rebecca Davis O’Brien, Ben Cohen, Matthew Futterman & Sara Ger-

mano, Sports World Wonders How Trump’s Immigration Order Will Affect Athletes,

ALL

TREET

(Jan. 29, 2017), https://www.wsj.com/articles/sports-world-wonders-how-

trumps-immigration-order-will-affect-athletes-1485731121 [https://perma.cc/

JV2F-Z67B] (discussing athletes’ and officials’ concern that travel ban would im-

pact United States’ ability to compete in or host international athletic events).

187. For further discussion about sports officials’ initial reactions to the

Trump administration’s travel ban upon its announcement in 2017, see infra notes

188-192 and accompanying text.

188. See Munson, supra note 144 (“There was talk from Iranian officials of a

retaliatory ban on American athletes for the men’s freestyle World Cup wrestling

championships scheduled for western Iran in February.”).

189. See Longman, supra note 182 (“President Trump’s ban on visitors from

seven predominantly Muslim nations could have a wide impact on international

sports, including jeopardizing a warm relationship between the United States and

Iran in wrestling competitions and threatening the chances of Los Angeles hosting

the 2024 Summer Olympics and of the United States securing soccer’s 2026 World

Cup.”).

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tries.

190

Similarly, foreign MLB players have expressed fear that

they will experience a “hostile environment” in the United States as

a result of President Trump’s commentary surrounding the border

wall.

191

Additionally, just as some experts feared that President

Trump’s travel ban would negatively impact the United States’ abil-

ity to host an upcoming Olympic Games, others have expressed

worry that his administration’s border wall could complicate the

United States’ bid to co-host the men’s FIFA World Cup with Mex-

ico and Canada in 2026.

192

B. Hypothesizing the Potential Impact of the RAISE Act

1. Analyzing the RAISE Act’s Point System

The RAISE Act would eliminate employment-based immigra-

tion categories in favor of a generalized point system.

193

While it

would continue to take into account certain extraordinary achieve-

ments and job offers in the United States, the Act makes no specific

reference to professional athletes.

194

For those point-bearing char-

acteristics of the RAISE Act that apply to foreign-born professional

athletes, the Act would drastically narrow the field of criteria for

190. See id. (acknowledging USA Wrestling competitors had received visas to

travel to Iran for men’s freestyle World Cup wrestling championships in 2017); see

also Jennifer Calfas, Here’s When the Olympics Will Return to the U.S. Next,

IME

(Feb.

10, 2018), https://time.com/5142839/when-olympics-return-to-united-states/

[https://perma.cc/9B2R-7UJP] (noting Paris will host 2024 Summer Olympics

and Los Angeles will host 2028 Summer Olympics).

191. See Jorge L. Ortiz, A Trump presidency raises concerns among Major League

Baseball players,

USA T

ODAY

(July 7, 2016), https://www.usatoday.com/story/

sports/mlb/2016/07/07/donald-trump-major-league-baseball-mexico-wall/

86828582/ [https://perma.cc/XWA6-ZVG6] (stating President Trump’s commit-

ment to constructing border wall between United States and Mexico “not only

stand in contrast with MLB’s attempts to tap into the Mexican market and talent

pool,” but have “also raised concerns among foreign major leaguers” and quoting

San Francisco Giants infielder Ramiro Pena as saying, “It does worry me a lot that

[Donald Trump] could be elected president . . . [f]or the Latin community, I

think it would make things more difficult when it comes to immigration, based on

what he has said . . . [t]he comments he has made about Mexicans worry you”).

192. See Longman, supra note 182 (“In June, Sunil Gulati, president of the

United States Soccer Federation, told reporters that a Trump presidency could

complicate an American bid [to host the World Cup], especially if it were a joint

bid with Mexico, given Mr. Trump’s plans to build a wall across America’s south-

ern border.”).

193. See Reforming American Immigration for Strong Employment (RAISE)

Act, H.R. 2278, 116th Cong. § 5 (2019) (enumerating proposed point system to

replace employment-based visa categories).

194. For further discussion about characteristics taken into account by the

RAISE Act’s point system, see supra notes 165-171 and accompanying text.

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eligibility.

195

Specifically, “extraordinary ability” in athletics could

only be shown by proving that applicants had “earned an individual

Olympic medal or placed first in an international sporting event in

which the majority of the best athletes in an Olympic sport were

represented.”

196

Further, proof that an applicant satisfied this crite-

ria would still only merit him or her fifteen points, half of the

amount needed to receive an immigrant visa under the Act.

197

This

would significantly inhibit the ability of athletes competing in indi-

vidualized sports to immigrate to the United States, as it would not

only raise the requisite standard of extraordinary ability but also

render such ability a necessary but insufficient ground for entry.

198

For foreign-born athletes competing in team sports, the RAISE

Act’s point system creates an equally bleak outlook.

199

A number of

the most popular team sports in the United States lack extensive

opportunities to compete at a high international level besides the

Olympics.

200

For instance, the International Federation of Basket-

ball World Cup and Pan-American Games are the only global pro-

fessional basketball competitions that approach the competitive

level of the Olympics.

201

Similarly, professional baseball’s only in-

195. For further discussion about the qualifying evidentiary criteria for immi-

grant athletes under the Immigration Act of 1990, see supra notes 61-99 and ac-

companying text. For further discussion about the qualifying evidentiary criteria

for immigrant athletes under the proposed RAISE Act, see supra notes 165-171 and

accompanying text.

196. RAISE Act, § 5(d)(1)(f)(2) (“An applicant may accrue, for extraordinary

achievement under this subsection . . . 15 points if the applicants, during the 8-year

period immediately preceding the submission of an application under section

203(b)(1), earned an individual Olympic medal or placed first in an international

sporting event in which the majority of the best athletes in an Olympic sport were

represented, as determined by the Director of U.S. Citizenship and Immigration

Services.”).

197. See id. § 5(d)(1)(b) (providing thirty points are required to merit accept-

ance of visa petition under proposed RAISE Act).

198. Compare id. § 5(d)(1)(g) (providing immigrant athletes must have com-

peted in Olympics or comparable Olympic-level athletic events), with Employment-

Based Immigration: First Preference EB-1, supra note 59 (providing immigrant athletes

may satisfy eligibility requirements by showing “receipt of lesser nationally or inter-

nationally recognized pries or awards for excellence” in conjunction with at least

two other qualifying criteria).

199. For further discussion about how athletes competing in team sports

could be harmed by provisions of the RAISE Act, see infra notes 200-205 and ac-

companying text.

200. For further discussion about the lack of extensive international competi-

tion beyond the Olympics in certain team sports, see infra notes 201-202 and ac-

companying text.

201. See About USA Basketball,

USA B

ASKETBALL

https://www.usab.com/

about/about-usa-basketball.aspx [https://perma.cc/W82S-GVPL] (last visited Feb.

22, 2020) (describing Olympic Games, FIBA World Cup, and Pan American

Games, as well as discussing amateur competitions, including U19/U18 Champi-

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ternational competition that compares to the Olympics in competi-

tive level is the World Baseball Classic.

202

Given immigration

officials’ recent narrow interpretation of qualifying international

competition in the context of foreign athletes seeking visas, it is

likely that this provision would be scrutinized with equal rigidity

under the RAISE Act.

203

Further, as the provision requires compe-

tition either in the Olympics or in a similarly elite international

event, it is likely that participants in qualifying events would often

overlap.

204

This would effectively cap the number of professional

athletes from any given country receiving visas at the number per-

mitted on an Olympic roster in their respective sports, in contrast

to the current visa system, which more broadly accounts for varied

levels of international athletic competition.

205

2. Comparing the RAISE Act to Merit-Based Systems in Canada and

Australia

Supporters of instituting a point-based immigration system in

the United States may point to similar systems in Canada and Aus-

tralia, where they have been largely successful.

206

However, the ide-

ological and political differences of Canada and Australia

compared to the United States may render such comparisons more

onships, U17/U16 Championships, Nike Hoop Summit, and 3x3 World

Championships).

202. See Austin Schindel, The 25 Coolest International Sporting Events,

LEACHER

EPORT

(Apr. 18, 2011), https://bleacherreport.com/articles/669379-the-25-cool

est-international-sporting-events#slide3 [https://perma.cc/4TJ5-883M] (noting

“[i]nternational baseball competitions have never been a significant part of the

game,” even including Olympics, until introduction of World Baseball Classic in

2005).

203. For further discussion about immigration officials exercising discretion

narrowly in determining whether professional athletes petitioning for visas exhibit

extraordinary ability, see supra notes 115-126 and accompanying text.

204. See Reforming American Immigration for Strong Employment (RAISE)

Act, H.R. 2278, 116th Cong. § 5(d)(1)(f)(2) (2019) (limiting qualifying immigrant

athletes to those who had “earned an individual Olympic medal or placed first in

an international sporting event in which the majority of the best athletes in an

Olympic sport were represented”).

205. See id. (providing qualifying immigrant athletes would have either com-

peted in Olympics or in competition where Olympic athletes were represented).

For further discussion about the various visa types currently available to foreign

athletes, see supra notes 54-99.

206. See generally Tania Karas, Can a ‘merit-based’ immigration system like Canada’s

or Australia’s work in the US?,

ORLD

(May 17, 2019), https://www.pri.org/

stories/2019-05-17/can-merit-based-immigration-system-modeled-canada-or-austra

lia-work-us [https://perma.cc/ZX3X-38B3] (summarizing Canadian and Austra-

lian point-based immigration systems and discussing possible adoption of similar

system in United States).

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complex than they initially appear.

207

Additionally, as the profes-

sional sports industry in the United States is more robust than in

Canada or Australia, a comparison of their systems is unlikely to

illuminate how a point-based system would impact professional ath-

letes in the United States.

208

Employment-based immigration has long been a pillar of the

Canadian and Australian immigration systems.

209

On the contrary,

family-based immigration is foundational in the United States, ac-

counting for a far greater percentage of total immigration than in

almost any other country.

210

These differences are deep-seated and

largely attributable to the unique history of each country.

211

Pas-

sage of the RAISE Act would not only overhaul United States immi-

gration policy but also attempt to redefine the very role of

immigration in our society as a singularly economic pursuit.

212

Sweeping, wholesale changes to American immigration policy are

rare, and it is uncertain at best that one piece of legislation could

bring about a fundamental change in the nation’s long-held immi-

gration narrative.

213

It should also be noted that Canada and Aus-

tralia’s employment-based merit systems result in a far greater

proportion of immigrants as compared to total population than

currently exists in the United States.

214

This implies that adopting

a similar system could cut against President Trump’s “Buy Ameri-

207. See id. (noting differences between Canada and Australia, on one hand,

and United States, on another, that could complicate efforts to implement point-

based immigration system).

208. For further discussion about differences between professional sports in

the United States, on the one hand, and Canada and Australia, on the other hand,

see infra notes 209-223 and accompanying text.

209. See Quoctrung Bui & Caitlin Dickerson, What Can the U.S. Learn From How

Other Countries Handle Immigration?,

N.Y. T

IMES

(Feb. 16, 2018), https://www.ny

times.com/interactive/2018/02/16/upshot/comparing-immigration-policies-a

cross-countries.html [https://perma.cc/C7RM-AWX8] (noting Canada and Aus-

tralia have “relied heavily on immigrants who were admitted based on

employability”).

210. See id. (stating United States immigration system is distinct because of “its

focus on family ties, a framework that accounts for two-thirds of all residency visas,

more than any other country”).

211. See Karas, supra note 206 (providing “[t]he way nations approach immi-

gration is often rooted in their histories” and describing relevant history in Austra-

lia and United States that led to respective immigration systems).

212. See id. (noting “[a points-based system] would require a fundamental

shift in how the US approaches, uses and invests in its immigration system” and

describing RAISE ACT as “moving the United States’ immigration system toward

one that prioritizes high-skilled workers over people with family links to the US”).

213. For further discussion about changes to American immigration policy

through history, see supra notes 34-43 and accompanying text.

214. See Bui & Dickerson, supra note 209 (explaining that both Australia and

Canada “allow in far more immigrants as a percentage of their population”).

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can, Hire American” ideology.

215

Certain aspects of Canada and

Australia’s political systems also make them more conducive to

point-based immigration.

216

For instance, these countries’ parlia-

ments are sufficiently flexible to adjust point-based determinations

according to their economic needs.

217

The United States’ political

system is far less flexible, as changes to immigration policy must

make their way through Congress.

218

The relative sizes of the professional sports industries in Ca-

nada and Australia compared to the United States also complicates

an effort to hypothesize how professional athletes would fare under

a point-based immigration system in the latter based on such sys-

tems’ success in the former.

219

For instance, spectator sports

brought in approximately $4 billion in revenue in Canada in

2019.

220

In contrast, the NFL alone accounts for more than triple

this revenue, bringing in approximately $13 billion per year on av-

erage.

221

Adding to this total, the MLB averages $9.5 billion annu-

ally, while the NBA brings in $4.8 billion per year on average.

222

215. See id. (“If the United States were to follow [Canada’s and Australia’s]

lead, it would involve admitting millions more people.”); see also Exec. Order No.

13788, 82 C.F.R. § 18837 (2017) (stating “[i]t shall be the policy of the executive

branch to buy American and hire American”).

216. For further discussion about political differences that make Canada and

Australia more amenable to a point-based immigration system than the United

States, see infra notes 217-218 and accompanying text.

217. See Karas, supra note 206 (quoting immigration policy analyst Kate

Hooper as stating that “[a] points system only really works if you have an immigra-

tion system that allows you to adjust how the points are administered on a really

regular basis”).

218. See id. (contrasting parliamentary systems in Canada and Australia with

Congress in United States).

219. For further discussion about differences in the sizes of the professional

sports industries in Canada, Australia, and the United States, see infra notes 220-

223 and accompanying text.

220. See Spectator Sports in Canada – Market Research Report,

IBIS W

ORLD

(May

2020), https://www.ibisworld.com/canada/market-research-reports/spectator-

sports-industry/ [https://perma.cc/YVZ2-64XE] (noting spectator sports in Ca-

nada account for roughly $4 billion annually). A parallel statistic is unavailable for

Australia; nonetheless, Canadian and American sports leagues account for a major-

ity of professional sports revenue, implying that Australia’s professional sports

leagues are responsible for less revenue than Canada’s. See Devon Anderson, Rank-

ing Professional Sports Leagues by Revenue,

LTIMATE

ORP

. L

EAGUE

(Apr. 10, 2019),

https://ultimatecorporateleague.com/ranking-professional-sports-leagues-by-rev

enue/ [https://perma.cc/U2EJ-YHS3] (ranking global professional sports leagues

by amount of revenue earned and noting that “the top 5 places are dominated by

American or Canadian sports league”).

221. See Anderson, supra note 220 (providing amount of revenue earned by

NFL, amongst other sports leagues).

222. See id. (providing amount of revenue earned by MLB and NBA, among

other sports leagues).

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This disparity means that Canada and Australia may not be apt

comparators in an attempt to hypothesize how a point-based immi-

gration system like theirs would impact foreign professional ath-

letes attempting to immigrate to the United States.

223

C. Consequences for American Athletic Industry

Foreign professional athletes hoping to immigrate to the

United States to train and compete are uniquely vulnerable to the

restrictive immigration policies already put in place by the Trump

administration.

224

Additionally, pending legislation has the poten-

tial to further exacerbate this state of events.

225

Nonetheless, the

unintended consequences of these policies will likely extend be-

yond foreign professional athletes hoping to immigrate to the

United States and impact American athletes and sports officials, as

well.

226

Sports analysts have considered the role of diversity in various

athletic contexts and have primarily arrived at the same conclusion:

it is good for professional sports.

227

On an anecdotal level, experts

have pointed to the 2013-14 San Antonio Spurs, more than half of

whose wins were achieved by a combination of seven international

players, and the Detroit Tigers, who won four consecutive division

223. For further discussion about differences in the professional sports indus-

tries of the United States, Canada, and Australia, see supra notes 219-222 and ac-

companying text.

224. For further discussion about how immigration policies put in place by

the Trump administration disadvantage foreign professional athletes, see supra

notes 100-126 and 177-192 and accompanying text.

225. For further discussion about how the RAISE Act and supplemental legis-

lation has the potential to further limit professional athletes’ ability to immigrate

to the United States, see supra notes 193-205 and accompanying text.

226. For further discussion about how restrictive immigration policies will

likely harm the American sports industry, see infra notes 227-239 and accompany-

ing text.

227. See, e.g., David Berri, How Sports Makes a Clear Case for Immigration,

IME

(Nov. 20, 2014), https://time.com/3597917/immigration-reform-sports-econo

mists/ [https://perma.cc/43WZ-5WFS] (“By expanding the population of talent a

league draws upon, competitive balance in a sport can improve.”); Keith Ingersoll,

Edmund J. Malesky & Sebastian M. Saiegh, Heterogeneity and Group Performance: Eval-

uating the Effect of Cultural Diversity in the World’s Top Soccer League,

OCIAL

CIENCE

ESEARCH

ETWORK

at 1 (Dec. 1, 2013), https://papers.ssrn.com/sol3/papers.cfm

?abstract_id=2333289 [https://perma.cc/5376-FXL2] (analyzing data from UEFA

Champions League between 2003 and 2013 and finding that “by incorporating

additional (culturally inherent) skills to its roster, an average team could change

an outcome from a tie to a win once in every three games”); Martin B. Schmidt

and David J. Berri, On the Evolution of Competitive Balance: The Impact of an Increasing

Global Search,

CON

. I

NQUIRY

(Mar. 26, 2007), https://onlinelibrary.wiley.com/doi/

full/10.1093/ei/cbg037 [https://perma.cc/3ERK-TT5D] (advocating for increase

in size of labor pool to increase competitive balance in MLB).

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titles while being led by three international players.

228

The phe-

nomenon has also been studied at an academic level, and the re-

sults support the notion that diversity has a tendency to increase

competitive balance in professional athletics.

229

For instance, as far

back as 2007, scholars applied traditional economic principles to

the MLB and concluded that the league should expand the size of

its labor pool in order to increase its talent level, including an in-

creased number of athletes from beyond the United States.

230

Similar findings resulted following an examination of the com-

petitive balance in professional soccer, namely in the UEFA Cham-

pions League, the most elite in the world.

231

In a reflection on this

study, two of its authors specifically distinguished professional soc-

cer as especially likely to be directly aided by increased diversity,

due to the unique aspects of athletic competition as compared to

competition in other fields of employment, where stakeholders’ pri-

orities may diverge more.

232

The authors wrote:

[S]occer teams are engaged in the same pursuit- to score

goals and win games. The benefits of a diverse talent pool

will have the same theorized benefit for every team. This

differs dramatically from business analyses that must com-

pare widely diverse sectors where talent and creativity are

employed very differently in the production cycle.

233

Put more simply, “If you wish to employ the best talent, your talent

search must be global.”

234

For professional athletes and sports personnel already in the

United States, a reduction in competitive balance could eventually

228. See Berri, supra note 227 (noting more than half of Spurs’ games during

the 2013-14 season were won with combination of seven international players on

court and describing success achieved by immigrant-led Detroit Tigers between

2011 and 2014).

229. See, e.g., Schmidt & Berri, supra note 227 (applying economic analysis to

MLB in finding favorable correlation between diversity and team performance);

Ingersoll et al., supra note 227, at 12-18 (applying statistical analysis to determine

more favorable performance by soccer teams with more diverse players).

230. See Schmidt & Berri, supra note 227 (acknowledging increases in size of

MLB’s talent pool over time had paralleled increases in talent and advocating for

continuation of expanding talent pool).

231. See Ingersoll et al., supra note 227, at 1 (“We find that more diverse teams

outperform less diverse ones.”).

232. See id. (noting aspects of professional sports unique from other indus-

tries that render increased diversity more straightforwardly positive).

233. Id. (providing example to explain direct benefit of diversity in athletics).

234. See Berri, supra note 227 (stating also that “[i]f you restrict your talent

search to the population born in the United States- less than 5% of the world

population- your odds of employing the ‘best’ talent seem fairly low”).

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result in decreased profits and a deflated athletic economy.

235

Re-

searchers have illuminated a link between game performance and

profitability in three of the United States’ most popular sports

leagues: the MLB, the NBA, and the NHL.

236

Interestingly, these

leagues are also among the most diverse in the United States.

237

wealth in professional sports tends to increase conversely with suc-

cess, and success tends to increase conversely with diversity, then it

could be argued that greater diversity could ultimately result in in-

creased profitability for professional athletes, teams, and leagues.

238

Further, the possibility remains that the opposite may also be true,

cutting against President Trump’s contention that more restrictive

immigration policies will boost the American economy, at least in

the context of professional sports.

239

IV. T

ALL

OURT

: R

EFORMING

MMIGRATION

ITH

OWARDS

NHANCING THE

MERICAN

PORTS

NDUSTRY

Foreign athletes have played a significant role in American

professional sports since their earliest days.

240

Through extensive

analysis, foreign athletes have been shown to improve the competi-

235. For further discussion about how lower levels of athletic talent may lead

to decreased profits for American athletes and sports teams, see infra notes 236-239

and accompanying text.

236. See John Charles Bradbury, Determinants of Revenue in Sports Leagues: An

Empirical Assessment,

CON

. I

NQUIRY

(Sept. 11, 2018), https://onlinelibrary.wiley.

com/doi/full/10.1111/ecin.12710 [https://perma.cc/QJ7T-7SYE] (“Revenue is

positively associated with on-field success in baseball (MLB), basketball (NBA),

and hockey (NHL), but not in football (NFL).”). Curiously, this is true even in

light of the restricted labor market for professional sports as compared to other

industries. See, e.g., Stuart Anderson, 27% Of Major League Baseball Players Are For-

eign-Born,

ORBES

(Apr. 27, 2018), https://www.forbes.com/sites/stuartanderson/

2018/04/27/27-of-major-league-baseball-players-are-foreign-born/#5f3993047712

[https://perma.cc/9NK2-QWDS] (noting restricted number of jobs in profes-

sional sports as result of roster system, in contrast to traditional labor market).

237. For further discussion about immigration levels in the MLB, NBA, and

NHL, see supra notes 11-17 and accompanying text.

238. See Bradbury, supra note 236 (noting positive slope between athletic per-

formance and revenue); see also Ingersoll et al., supra note 227, at 3 (noting posi-

tive slope between diversity and athletic performance in professional soccer);

Schmidt & Berri, supra note 227 (noting positive slope between diversity and ath-

letic performance in professional baseball).

239. See generally Catherine E. Schoichet, What ‘merit-based’ immigration means,

and why Trump keeps saying he wants it,

CNN

(May 16, 2019), https://edition.

cnn.com/2019/05/16/politics/merit-based-immigration-explainer/index.html

[https://perma.cc/67JX-4644] (recounting President Trump’s rationale for re-

ducing legal immigration and instituting stricter merit-based system).

240. See, e.g., Mark Naison, Why Sports History is American History,

ITH A

ROOKLYN

CCENT

(Mar. 5, 2010, 9:41 AM), http://withabrooklynaccent.blogspot.

com/2010/03/why-sports-history-is-american-history.html [https://perma.cc/

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tive balance of American sports, playing a direct role in the eco-

nomic performance of professional teams and leagues.

241

As a

result, United States immigration policy should presumably ac-

count for these athletes.

242

If recent efforts to curtail both illegal

and legal immigration in the country are successful, however, the

outcome may be the opposite.

243

The Trump administration’s

ongoing travel ban and discrete changes to existing immigration

criteria have already limited certain athletes’ abilities to compete in

the United States.

244

Further, the proposed RAISE Act has the po-

tential to exacerbate this impact if passed.

245

While decreasing im-

migration to the United States may boost American participation in

certain economic industries, unique aspects of the professional

sports industry render the industry particularly likely to be harmed

by the active discouragement of immigration.

246

Any changes to

the United States’ immigration policy should recognize the benefits

of international participation in American professional sports and

attempt to encourage, rather than dissuade, foreign athlete

immigration.

247

Rachel Insalaco*

4CMS-W9BA] (describing “role of sports in Americanizing immigrants” beginning

in early 20th century).

241. For further discussion about foreign athletes’ impact on professional

sports teams’ athletic and economic performance, see supra notes 224-239 and ac-

companying text.

242. See Berri, supra note 227 (“So the world of sports teaches a clear lesson

on immigration. The search for talent can’t be confined to the borders of a single

nation.”).

243. For further discussion about changes and proposed changes to United

States immigration policy that have the blanket effect of decreasing professional

athletes’ ability to immigrate, see supra notes 100-171 and accompanying text.

244. For further discussion about how Trump administration executive or-

ders and immigration policy have limited foreign athletes’ opportunities to immi-

grate to the United States, see supra notes 177-192 and accompanying text.

245. For further discussion about the proposed RAISE Act’s effect on profes-

sional athlete immigration in the United States, see supra notes 193-205 and ac-

companying text.

246. For further discussion about why professional sports in the United States

are particularly likely to be harmed by efforts to decrease immigration, see supra

notes 172-239 and accompanying text.

247. See Berri, supra note 227 (“Not only does immigration increase the pace

of innovation, it also helps improve the performance of the entire economy. So if

you wish to see the economy of the United States improve, you should be in favor

of immigration.”).

* J.D. Candidate, 2021, Villanova University Charles Widger School of Law;

B.M., 2018, New York University. Thank you to my parents, Santo and Geralyn,

whose love and support throughout my life has been nothing short of

extraordinary.