View this email in your browser Adjusting to the New Meta: U.S. Immigration Upheavals in 2019 By: Genie Doi Last September, we published an article in Dot Esports that cautioned the esports industry was in for some tough times on the immigration front. While we closed out 2018 virtually unscathed, our fears ultimately proved justified as U.S. Citizenship & Immigration Services (USCIS) adopted a brand new meta earlier this year. Now, they send Requests for Additional Evidence (RFEs) for, and even denials of, applications that would have been easily approved on their merits just months before. What is even more confounding is the inconsistency in adjudications. For example, some RFEs will challenge whether or not the LCS’s reputation is distinguished enough to warrant P-1 athletes, while other applications for similarly situated LCS players will fly by without any opposition at all. This inconsistency not only defies logic, it’s unlawful.



Last month, I attended the Sports Immigration Law Conference in Orlando, Florida where the nation’s leading sports immigration lawyers gathered to share war stories. While I was relieved to learn that esports is not unique in its obstructive treatment by USCIS, it was no less shocking to hear that Olympians, career NHL players, and PGA golfers are being denied visas on similarly inconsistent grounds across the country.



Today, the consensus is that President Trump’s “Buy American, Hire American” policy has finally reached the professional sports industry as a whole. This policy purports to protect the economic interests of U.S. workers through the effective administration of our existing immigration system by paying particular attention to the prevention of fraud and abuse. Since then, every chapter for every visa classification in every adjudicator’s manual has been appended with a preamble that reminds the officer “it is with this spirit in mind that cases...must be adjudicated.” Consequently, some adjudicators have been zealously applying standards that are not only unnecessary, but contrary to decades of immigration practice and policy. This new language effectively urges officers to look for ways to deny an application, rather than objectively adjudicate an athlete on the merits of their skill and achievement.



A popular “new” reason for denial is based upon an old regulation paraphrased below: The athlete must be coming to the United States

to participate in an athletic competition

which has a distinguished reputation, and

which requires participation of an athlete

that has an international reputation. To use the LCS as an example, USCIS will concede that it is a competition of distinguished reputation and that the player himself is highly skilled and internationally recognized; however, USCIS will still deny the application on the basis that having an “international reputation” is not an LCS requirement. The absurdity of this regulation has been noted by Gabe Feldman, Director of the Tulane Sports Law Program when he stated, “I am not aware of any sports teams, leagues, tours or competitions that require that its participants have an international reputation.” Indeed, applying this logic, even Olympic athletes should be denied P-1 visas because the Olympic Games do not require competitors to have international reputations; rather, the only requirement for athletes is to perform at the top of their game. There is no support in the legislative history to justify this overly-restrictive interpretation of the law, nor does its strict application benefit U.S. workers. Regardless, this type of adjudication is being seen with more and more frequency. So, how do we adjust to this new meta? While ESG Law is lobbying behind the scenes to draw attention to this poorly drafted law and potentially change it through federal litigation, all members of the esports ecosystem can take practical steps to help support the free flow of foreign talent and skill to the United States: Teams & Owners: Vet potential imports for P-1 visa qualifications before signing them to your roster. Plan ahead and expect delays in the visa process. Lawyers & Agents: Be careful when negotiating a player’s streaming revenue; if the player is paid for streaming that is unrelated to the team or competition, USCIS is starting to construe it as unauthorized employment. Leagues & Publishers: Establish a transparent global ranking system and consider adding the words “requires international reputation” to the qualifications to compete. Casters & On-Camera Talent: Do not use the visitor visa for doing paid work in the United States. Journalists & Media: Add more detail and analysis in your reporting and explain why a particular player or team’s achievement is significant. Players: Promote yourself and do every interview opportunity that comes your way. Be careful with venturing into coaching or casting, especially if it’s paid. Support Staff: Get your Bachelor’s degree, especially if you’re Canadian, Mexican or Australian. We will continue to vigilantly advocate for our clients on the immigration front. However, everyone in the esports community has the power to support our international friends on their visa journeys, whether it’s through taking one of the above actionable steps or showing a simple kindness. If you’d like to talk about any of the topics addressed in this letter, please don’t hesitate to reach out--we’re here to help. Schedule a call Share Tweet Forward Next issue: June 2019

We'll be sending out our Q3 newsletter in June. In the meantime, don't hesitate to reach out if there's a topic you'd like us to tackle. Until then, connect with us on Twitter for real-time updates on esports immigration.

Bryce | Genie | Harris | Krista