This is a fictional fact pattern case study for the purposes of providing general legal information. No Daryanani Law Group client information is used or revealed and any similarity to real people is entirely coincidental.
With the World Cup set to begin in Brazil on June 12th, soccer fans around the world are eagerly awaiting their chance to support their national teams in the sport’s premier international competition. Brazil last hosted the World Cup in 1950, when they were stunned by neighboring Uruguay who beat the host nation 2-1 in the finals, widely considered one of the greatest upsets in the tournament’s history (since my mother was from Uruguay, I’m especially proud of this achievement). As the World Cup draws near, we thought it was a good time to discuss US visa options for athletes. To help illustrate how some of these options may play out during an athlete’s career, let’s discuss Ms. Victoria Barboza, a fictional soccer player from Colombia.
For as long as she could remember, Victoria was running around with a soccer ball at her feet. With the soul of a striker and a passion for the game she inherited from her grandfather, nothing in this world brought her more joy than the crisp snapping sound of the ball hitting the back of the net. Throughout her childhood, she took every opportunity to play in the few amateur youth leagues available to girls in Colombia. Unfortunately, however, as is the case in far too many countries around the world, the vast majority of resources spent on soccer were dedicated to the professional development of male athletes. As she neared the end of high school, Victoria found herself with little to no avenues to continue pursuing the game that she loved.
All that changed one day when the coach for the Under-17 Colombian women’s national soccer team called to tell her that they had been invited to participate in a soccer tournament being held in Dallas, Texas, and they wanted her to join the team. “It’s a showcase,” he whispered into the phone. “There’s going to be scouts and coaches from big US universities.”
Victoria was in shock. For years she had read articles about the US women’s national soccer team and the youth development system that had led to the team’s success. She was fascinated by the heavily debated Title IX of the US Education Amendments of 1972, which helped pave the way for the fair and equal distribution of resources between male and female athletic programs at US educational institutions. “If only we had that here,” she would dream.
As it was an amateur competition for which none of the players were receiving any payment, the coach had set up visa appointments at the US Embassy for all the players to obtain B-1/B-2 visitor visas to enter the US to participate in the competition. If she was a national of a Visa Waiver Program eligible country, she likely could have just traveled to the US by completing an ESTA application and presenting the invitation letter from the tournament’s organizers. But since Colombia is not part of the Visa Waiver Program, she had no choice but to apply for a visitor visa at the US Embassy. So Victoria completed a DS-160 form and attended her B-1/B-2 visa appointment at the US Embassy in Bogota, taking with her documents to prove her ties to Colombia and that she had no intent to permanently immigrate to the US, including a Colombian bank account statement in her name and the mortgage for her parent’s home.
The day her passport arrived in the mail Victoria could hardly contain her excitement. In the weeks leading up to the tournament, Victoria was up at 6:00 am every morning running drills with her coach before school. She knew the amazing opportunity she had before her and was determined to put herself in the best possible position to make a lasting impression.
On the first day of the tournament, Victoria nearly shed tears when she saw the immaculate fields and facilities where the tournament was being hosted. She had only seen grass that color on television and never dreamed that she herself would have a chance to play on such a beautiful field. From the start of the tournament Victoria played like a person possessed. To her, everything was happening in slow motion. But to the outside observer Victoria was like a lightning bolt, an unstoppable force with an innate talent for scoring goal after glorious goal.
When the competition was over and Colombia was crowned champion, Victoria’s dominance was clear for all to see. She led the competition in both goals and assists, achievements that resulted in her winning the tournament’s Most Valuable Player (MVP) award. After the team’s celebration, the coach pulled Victoria aside and told her that there was someone who wanted to meet her. As Victoria exited the locker room, she came face-to-face with the head coach of one of the best collegiate soccer programs in the US. There were plenty of words said but the first and last ones she could remember were “full” and “scholarship.”
After a moment of stunned silence, Victoria’s thoughts turned to practical matters. “But can I go to college on a visitor visa?” she asked.
“Don’t worry,” the coach said. “Our international student’s office will help you apply for an F-1 student visa at the US Embassy in Bogota.”
“But I’m here now,” Victoria said. “Can’t I just apply while I’m in the US?”
“It’s not that easy,” the coach said, “The Immigration Service places a lot of scrutiny on applications where the foreign national is looking to change their visa status from a B visitor to an F-1 student. Basically, they can question your ‘intent’ when you entered the US with the B visa. If they have reason to suspect that you had the intent to apply to school when you entered the US or shortly thereafter, they can accuse you of making a fraudulent entry and deny the application. I know this isn’t the case with you but it’s just not worth the risk.”
So Victoria went back to Colombia, and after she had applied and was accepted to the university, the international student’s office explained the next steps in obtaining the F-1 visa. She would receive a Form I-20 from the university and would need to pay the $200 Student and Exchange Visitor Information System (SEVIS) fee. As before with the B-1/B-2 visa appointment, she would also need to complete a new DS-160 form and provide updated copies of her Colombian bank account statement as well as her parent’s mortgage to evidence both her ties to Colombia and her “non-immigrant” intent.
And just like that, Victoria’s dreams were starting to take shape. In the ensuing four years, she blossomed into one of the best female collegiate soccer players in the US, being named to the NCAA’s “All-American” team in both her junior and senior years.
As the annual draft of the US National Women’s Soccer League (NWSL) approached, there was a lot of buzz surrounding Victoria. Talent-wise, she was a clear first round pick, but more than a few teams were hesitant to draft her as she was a foreign national who didn’t have a visa to work in the US. In an effort to help improve Victoria’s draft position, her agent set up a conference call between an immigration attorney and top executives from several of the teams interested in drafting her. The attorney explained that the team that drafted Victoria and signed her to a contract would have to apply for a P-1A visa, which is for internationally-recognized athletes.
“That sounds like a pretty high standard,” one executive said. “How on earth is she going to prove that?”
“Well, the contract offer alone may be enough,” the attorney said. He went on to explain the 2006 COMPETE Act, which extended P-1A visa classification to any athlete employed by a team that is part of a league of six or more professional sports teams, whose total combined revenues exceed $10,000,000 per year. “If the teams in the league don’t bring in that level of combined revenue,” he continued, “then it becomes a bit more complicated. She’ll have to prove that she meets the Immigration Service’s definition of an internationally-recognized athlete.”
The attorney explained the considerations that go into making that determination, including having played at the US collegiate level or in professional leagues, having played with national teams during international competitions, evidence of having received significant awards or honors in the sport, team rankings, as well as reference letters from experts in the sport. “You don’t have to prove each of these categories of evidence,” he said. “Just two.”
Fortunately, the league had signed a $15,000,000 a year television deal with the newly formed Women’s Sports Network in its inaugural season, so Victoria would qualify for the P-1A visa based on the 2006 COMPETE Act and contract offer alone. But the teams still found reassurance in the fact that if the television deal ever fell through, Victoria would likely still qualify for P-1A visa classification based on her own merits.
Victoria went on to be drafted third overall by the Western New York Flash. At the end of her first season she was the consensus pick for the league’s “Rookie of the Year” honors. After accepting this major award Victoria thought back to her early days playing soccer with the neighborhood boys on the streets of Bogota and was proud of how far she had come. Just when she thought life couldn’t get any sweeter, she was approached backstage by a woman who introduced herself as a member of the US national team’s selection committee. “The World Cup is in four years,” she said, “and we want you to play for Team USA.” Unfortunately, playing for the US national team was easier said than done. Only US citizens can play for the national team and all Victoria had was her temporary P-1A visa.
Before she could even apply for US citizenship, however, she first had to become a Green Card holder, a process that could take several months to several years depending on which path to a Green Card she decided to pursue. With her Rookie of the Year award, participation in international competitions, and the press attention she had garnered in both the US and Colombia, Victoria had a compelling argument for the EB-1-1 Green Card for people of extraordinary ability in their field. But if she pursued the Green Card via this route, she would have to be a Green Card holder for five years before she could qualify for US citizenship, meaning she would surely miss out on playing for the US at the next World Cup.
She met with an immigration attorney who explained that the other option she may want to consider was obtaining the Green Card through marriage to her US-citizen boyfriend. If she obtained her Green Card this way, she would be eligible for US citizenship in only three years. It would be cutting it close, but it was her best chance at being eligible to play for Team USA’s World Cup squad.
The attorney gave Victoria a brief overview of the process for the marriage-based Green Card, including the different types of evidence they would need to provide in order to demonstrate that it was a legitimate marriage. “We would then file a series of applications for you, including an I-485 Application to Adjust Status,” the attorney said. “We’ll also prepare an I-864 Affidavit of Support on behalf of your husband in which he will demonstrate that he has or makes enough money to support a family of two. Several months after we file you and your husband will be called in for an interview with a USCIS officer, where they’ll go over the documents evidencing your marriage and life together, ask you questions about your relationship, and if all goes well, you may even be approved for your Green Card that same day.”
The attorney explained that since she would be married for less than two years at the time of applying, she would only be issued a two-year conditional Green Card. After two years, they would need to file an application to remove the conditions, at which point she would be issued a ten-year Green Card. But most importantly, she would be eligible to apply for US citizenship after three years of being a Green Card holder, assuming she met certain basic conditions.
Victoria and her boyfriend had been together all throughout college and he had always made his intentions of marrying her very clear. She wanted to marry him too, but she had felt both too young and too busy with her career to even start thinking about planning a wedding. But after talking all night, Victoria and her boyfriend came to a decision: in the morning they would head down to the City Clerk’s office and apply for a marriage license.
A little over three years later, Victoria had applied for and was granted US citizenship with only eight months to go until the World Cup. It was around this time that the US selection committee called Victoria. “We have an issue,” the official said. “We still have to apply for a change of your national association with FIFA.” FIFA is the International Federation of Football Associations, the sport’s highest governing body.
“Oh no, why?” Victoria said.
“Remember when you played for the Under-17 Colombian national team in that tournament years ago? Well, since you’ve already played for a national team, FIFA requires that you apply for a change of national association from Colombia to the US.”
He paused. She remained silent.
“We’ve got just enough time to get this done, but FIFA only allows a player to apply for this once. After this, you can never play for the Colombian national team again.”
Victoria had never really given this part of the process much thought. The idea of never being able to compete for her country of birth again was a sad one. Colombia was where she had learned to play soccer, the country where she developed a passion for the game that would stay with her for the rest of her life. She remembered all the matches she went to with her grandfather, how he would explain the game to her, what this player had done right, what that player had done wrong. She remembered the years of being teased as a “tomboy” by the neighborhood boys. But she also remembered the first time she returned to Colombia after being drafted to the NWSL, when a younger generation of girls from that same neighborhood welcomed her with a banner that read “Victoria para todos,” a play on her name that translated to “Victory for us all.”
Victoria came to a realization: although she had a deep appreciation for all the opportunities the US had afforded her, she could do much more for those young neighborhood girls by playing for the Colombian national team than she could by playing for Team USA. Indeed, the US already had a strong infrastructure in place for the development of young female soccer players. Having experienced first-hand the benefits of that infrastructure, she knew that someone had to fight to achieve the same for Colombian girls. And that someone was her.
Informing the US selection committee that she was going to play for the Colombian national team in the next World Cup was one of the hardest things Victoria ever had to do. With Team USA the heavy favorite to win the World Cup, Victoria knew she had most likely signed away her best chance at winning her sport’s greatest competition. But she also knew the importance of what she was doing for those neighborhood girls that had welcomed her home, and for all the generations of girls that would follow in her footsteps for years to come.