SBJ/20100201/From The Field Of

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  • Marriage just one way foreign athletes can set up U.S. residence

    The entertainment and sports worlds were abuzz in December when singer Carrie Underwood announced her engagement to Ottawa Senators center Mike Fisher. No longer will they likely maintain their long-distance relationship Underwood had described when she was a guest on the “The Ellen DeGeneres Show” in November.

    However, Fisher is a Canadian citizen, and Underwood is a U.S. citizen. If Fisher chooses to live in the United States, and assuming he is not a dual U.S.-Canadian citizen or has not already applied for U.S. immigration status, what are his options? U.S. immigration law provides professional athletes with unique issues, challenges and opportunities. Pro hockey players from outside the United States generally are able to secure proper temporary or nonimmigrant visa status through their hockey teams. When players decide that they would like to make the U.S. their permanent home, the legal options become much more limited.

    There are two primary ways for players to seek permanent residence, or green cards. The easiest approach for Fisher would be to pursue his immigration to the U.S. through his marriage to Underwood. Spouses of U.S. citizens can become immediately eligible for green cards. By showing that they are married and that he is eligible to come to the U.S., Fisher can be approved by U.S. Citizenship and Immigration Services in a relatively short period of time.

    Because he would obtain his green card shortly after their marriage, they would have to file a petition to show that they are still together in about two years, as U.S. immigration law requires that newly married couples return in two years to show that their marriage is real and that they remain together in order for the noncitizen spouse’s green card to become unconditional and permanent.

    Of course, not every marriage survives, and the glare of stardom sometimes shows how fragile celebrity marriage can be. We wish them well, but Fisher may take comfort in knowing that, if their marriage were to not survive, he could still achieve unconditional permanent resident status if he shows, for example, that they had good faith intentions to make their marriage work.

    Ottawa’s Mike Fisher can pursue U.S.
    immigration through his impending
    marriage to singer Carrie Underwood.

    Immigration status opportunities for players through their professional careers are also available, yet limited. In Fisher’s case, he would presently have no such opportunity, as he does not play for a team in the U.S. If, however, he were to be traded to a U.S.-based team, or signs with one as a free agent, he could be sponsored by the team. The team would file an application to demonstrate to the U.S. Department of Labor that it is in need of the player.

    While this process is not necessarily difficult, it is challenging and very dependent on certain variables that are beyond the player’s and the team’s control, such as limited availability of actual immigrant visas or green cards. Only a certain number of immigrant visas are allocated per year to noncitizens offered employment in the U.S., and the demand for such visas is very high. It is not uncommon for delays of years to occur before a person may ultimately obtain his or her green card and full-fledged permanent residence.

    This poses a real inconvenience for an employee in the U.S., as he or she may be limited in employment options and opportunities and have uncertainty in their lives. For a professional hockey player, this delay may be fatal to his future in the U.S., as once a player’s career is over, his eligibility for a green card through this process would end as well, if it is not yet finalized and approved.

    A second opportunity is available for players who are at the top of their game. They may seek lawful permanent resident status in the United States as “aliens of extraordinary ability,” which if approved by U.S. Citizenship and Immigration Services would place them in the fastest available track for employment-based permanent residence. Unlike the other immigration procedures, no job offer or labor certification is required, and an extraordinary ability athlete may petition for himself without being beholden to a team’s willingness to sponsor him.

    Classification as an alien of extraordinary ability requires a high standard of evidentiary proof. It is not necessarily available for all NHL players, as more than an NHL contract is needed. For example, court cases involving some well-known players have established that making an all-star team, being highly paid in comparison to other NHL players, or being considered by others in the sport to be one of the best at a certain skill (such as being a scorer, playmaker or an enforcer) is required in addition to making the major league roster or maybe even winning a Stanley Cup, which might be considered more of a team achievement.

    Thus, Fisher or another NHL player, like any noncitizen, may qualify for lawful permanent residence through marriage to a U.S. citizen, or through his employment as a pro hockey player in the U.S. Like any noncitizen, he’d have to wait in line for his visa opportunity, unless he can show he is the elite of the elite.

    Eric W. Schultz (eschultz@hblaw.com) concentrates his practice in legal services related to U.S. immigration and nationality law involving business development and litigation, with a particular focus on legal issues involving professional sports.

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