The author, Joshua P. Bratter, Esquire, has been representing extraordinary ability athletes in the O-1 and EB11 Classifications for 17 years, and presently represents Olympic Medalists, World Record Holders and National Champions.
Recent trends in the adjudication of extraordinary ability petitions for athletes seems to represent a strict interpretational inclination on the part of Service Center Adjudicators in the evaluation of the statutory eligibility criteria; specifically, as it relates to 1.) sustained national acclaim, 2.) the lead critical role component, and 3.) prospective intent.
In a career that has spanned 17 years, representing athletes in diverse fields from track and field and soccer to boxing and tennis, and most recently, a specific focus on elite competitive swimming, it is clear that we have entered a new era in the presentation of extraordinary ability petitions on behalf of athletes.
The purpose of this missive is to share certain observations that I have made in this unique practice area. As a threshold matter, it should be noted that the presentation of evidence, and analytical framework proffered by practitioners has been characterized by USCIS adjudicators as “more of an art form than a science”, clarifying the subjective nature of the decision-making process, and consequently removing a degree of adjudicatory predictability, and replacing it with an institutionalized elusiveness. Based on the foregoing, it should be noted that:
- Mere membership on national teams, or federations, and “participating”, in international competitions, including the Olympics, is not determinative of eligibility. If the country of nationality does not represent a strong tradition of extraordinary achievement in the discipline, such evidentiary submissions, in themselves, are subject to a higher level of evaluation. It is becoming evident through recent decisions, that “hardware”, that is, medals, and top placement in international competitions, are a more persuasive method of establishing eligibility.
- Lead-role, in itself, is easily challenged if the lead role is for an organization, or team, that does not represent a tradition of acclaim in the field. This needs to be evaluated on a case by case basis, with clear analysis of the national federation’s membership by-laws governing the national team qualification procedures. Ultimately, we have observed a steady shift towards interpretational rigidity in the application of this criteria, whereby it seems that the athlete must place among the top of the field at their national championships, or trials for international competitions, for this category to be applicable.
- Prospective intent is becoming an increasingly challenging standard to satisfy within the context of the required “Kazarian” analysis, and specifically, within the field of athletics. While an IT innovator, or artist, may develop work product in their field for many years to come, the “shelf life” of an athlete is greatly diminished by age. While an IT innovator/entrepreneur may create jobs, promote technological innovation and generate significant revenue for the US economy, an athlete, while certainly contributing significantly to US athletic prominence, promoting health and fitness and contributing to US competitiveness in sport, does not lend him/herself to clearly articulable raw economic contributions that are readily quantifiable.
- While the foregoing analysis is not meant to represent the categorical ineligibility of athlete self-petitioners, to the contrary, the category still remains a viable option for elite athletes, it is simply written with the caveat that such athletes should recognize the increasingly high standard for adjudications, and work closely with their attorneys to develop the type of targeted evidence that truly represents consistency with the statutory framework, legislative intent and the evolution of jurisprudence in this classification. Petitions should be developed on a case by case basis, with close attention to objectively supported evidence. As the cliché’ states, and as certainly is the case in the practice of representing extraordinary ability athletes, “one size” does not fit all.
Joshua P. Bratter, Esquire
JOSHUA P. BRATTER PA
IMMIGRATION LAW FIRM
MIAMI BEACH, FLORIDA