Can a history of extraordinary athletic ability help sports coaches work in the USA?

Published 21 September 2016 By: Heather Frayre

Can a history of extraordinary athletic ability help sports coaches work in the USA?

In immigration law in the United States (U.S.), there is a special category through which certain individuals who possess “extraordinary ability” may pursue permanent residency in the U.S.. 

Over the years, many highly accomplished foreign athletes seeking to continue their careers as coaches in the U.S. (“athlete-turned-coaches”) have been denied extraordinary ability classification because of the seeming reluctance of U.S. Citizenship and Immigration Services (USCIS) to recognize achievements as an athlete as part of the extraordinary ability analysis for a coach. 

However, in a recent (albeit non-precedent) decision, Matter of K-S-Y-, USCIS appears to be more receptive to considering athletic achievements as part of the eligibility calculus for a coach, and provides more definitive guidance as to how athletic achievements ought to be weighed.

This article explores:

  • The “extraordinary ability” framework for U.S. immigration
  • The athlete-turned-coach dilemma – proving past “extraordinary ability” is relevant and that you are continuing to work in your “field of endeavor
  • The USCIS’s balancing test for assessing “extraordinary ability” (and its limitations)
  • The decision in Matter of K-S-Y-: a step in the right direction?
  • Author’s comments

 

The Extraordinary Ability Framework

Normally, in order to seek lawful permanent resident status in the U.S. through employment, an individual must be sponsored by an employer through a process called a labor certification.1 Before the employer can submit an application for labor certification, it must perform a fairly rigorous test of the job market to ensure there are no willing and/or qualified U.S. workers who are able to perform the job. 

There are a few special categories of foreign nationals who can bypass this step, including those who qualify as individuals with extraordinary ability in business, science, arts, education or athletics. Not only do individuals with extraordinary ability get to bypass the labor certification, they can also self-petition without employer sponsorship. Further, the extraordinary ability category is attractive because there have historically been very minimal backlogs, so the pathway to permanent residency may be a matter of months versus a matter of years for the traditional employee.

Extraordinary ability is defined as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.2 An individual who possesses such extraordinary ability may seek permanent residency by filing a petition with U.S. Citizenship and Immigration Services (USCIS). In that petition, the applicant (or beneficiary, if the petition is filed by an employer) must demonstrate that he or she has sustained national or international acclaim by providing evidence of a major one-time achievement or by demonstrating the qualifications to satisfy at least three of ten criteria set forth in the regulations.3 Individuals may self-petition, but they must demonstrate that they continue work in their field of endeavor upon becoming a lawful permanent resident.4

 

The Athlete-Turned-Coach Dilemma: Continuing their “Field of Endeavor

For a variety of reasons, it is fairly common for an athlete to transition from athlete to coach. In some sports, especially those without a large public following, athletes turn to coaching in order to earn a living because competing at the highest level can be difficult to sustain from a financial perspective over the long term. In many sports, an athlete’s prime may last only a few years, so coaching the next generation of talent is the next chapter. 

Some athletes may just have a hard time staying away from the game after retirement - take, for example, Wayne Gretzky or Diego Maradona, both considered by many to be the greatest to ever play their respective sports, who both went on to coach at the professional level upon retirement. For whatever the reason, coaching is just the logical next step for many athletes who have spent years practicing and training in their sport, developing the strategies and skills for success. 

However, USCIS is only starting to come around to view coaching as an extension of athletic achievement, making the pursuit of extraordinary ability classification for an athlete seeking to continue his career as a coach uniquely challenging. Much of the debate has turned on the requirement that the athlete-turned-coach continue to work in his or her “field of endeavor” upon becoming a lawful permanent resident, and how “field of endeavor” has been interpreted and defined by the courts and administrative review boards. 

For years, USCIS has relied on the district court case of Lee v. Ziglar,5 in which Man Soo Lee, one of the most successful baseball players in Korean history, argued that he was coming to the U.S. to continue to work in his field of endeavor: baseball. The district court noted that Lee’s accomplishments as a player in the Korean professional baseball league were on par with the achievements of baseball greats Hank Aaron or Babe Ruth, so it is difficult to imagine that Mr. Lee would not have been considered to have extraordinary ability as a baseball player. However, the district court upheld the denial of Lee’s petition by USCIS, then the Immigration and Nationality Service (INS), finding no abuse of agency discretion.6 The underlying denial noted that because Lee was coaching and not playing, he was not continuing to work in the same “field of endeavor.” Rather, the field of endeavor for purposes of his petition was coaching baseball. The Lee decision established that a former athlete seeking to work as a coach in the U.S. could not rely solely on his accomplishments as an athlete to demonstrate extraordinary ability as a coach.

 

The Balancing Test: An Elusive Target

Since Lee, agency guidance as well as a number of cases have recognized the connection between achievements as a player and a coach. USCIS’s Adjudicator’s Field Manual (AFM) instructs adjudicators to apply a balancing test in which the level of success as an athlete, the recent nature of that success, and the level of the individual’s coaching experience are all taken into consideration. 

Despite this guidance, the subjective nature of extraordinary ability adjudications as well as lack of clear precedent has presented a moving target for a standard over the years. As a result, many highly accomplished athletes, including former Olympians, and professional “major league” athletes, have been denied extraordinary ability classification on the grounds that their coaching credentials did not match their athletic achievements. See, e.g. Integrity Gymnastics & Pure Power Cheerleading, LLC v. USCIS7, (upholding a USCIS Administrative Appeals Office (AAO) decision denying the petition on behalf of an Olympic gold medalist in gymnastics, where nearly 20 years had passed since receipt of the medal and her substantial coaching experience was at the elite amateur level).

 

Matter of K-S-Y-: A Step in the Right Direction?

A recent, non-precedent USCIS Administrative Appeals Office (AAO) decision in Matter of K-S-Y- suggests a departure from the rigid requirement set forth in Lee that the individual must demonstrate extraordinary ability in the particular profession within his sport.8 

In K-S-Y-, the AAO reversed a denial of an extraordinary ability petition by a judo competitor-turned-coach seeking to work in the U.S. as an instructor. The applicant achieved great success as a competitor on the Korean judo national team, demonstrated coaching experience at the national level as an instructor for the judo national team of India, and held coaching credentials through his educational background and licensure. The petition was filed within seven months of retirement. While his coaching record in and of itself would likely not have resulted in an approved petition, his outstanding credentials as an athlete were given substantial weight. 

The AAO acknowledges in its decision that the “area of expertise” for extraordinary ability purposes may include the field of endeavor as a whole, provided the individual can demonstrate, through the totality of the evidence provided, a natural progression from athlete to coach through recent athletic achievements sustained through coaching at the national level. K-S-Y- applies the balancing test and notes the two factors that ought to be weighed heavily in the athlete-turned-coach analysis to determine extraordinary ability in the field as a whole:

  1. the length of time that has passed after achieving national or international recognition as an athlete; and
  2. the level at which the athlete has transitioned into coaching.

In applying the law to the particular facts of the case, USCIS provides much needed guidance regarding the weight of evidence and how it will define the athlete’s area of expertise. 

 

Comment

The bar for demonstrating extraordinary ability has been set extraordinarily high and petitions submitted by coaches are closely scrutinized. Experience as an athlete can be used to show extraordinary ability in the field, but USCIS will consider the achievements as an athlete, the level of coaching, and the time that has lapsed between the transition from athlete to coach in making its highly subjective determination as to whether an individual has reached the top of his or her field. 

While the K-S-Y- decision does not completely open the door for coaches, and while the extraordinary ability classification remains one designated for the handful of individuals who have truly reached the top of their field, it is indicative that perhaps USCIS is beginning to recognize that the athlete-coach distinction is a fluid one. 

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Author

Heather Frayre

Heather Frayre

Heather Frayre is an associate specialising in immigration in Dykema Cox Smith's Dallas office.

 

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