The EB-1A permanent residence category is reserved only for individuals with extraordinary ability in the sciences, arts, education, business, or athletics. Individuals seeking EB-1A status must demonstrate that they belong to a small percentage of professionals who have risen to the very top of the field of endeavor, that they have sustained national or international acclaim in the field of expertise, and that they intend to continue to work in their area of extraordinary ability. They must produce evidence of one major internationally-recognized award (e.g. a Nobel Prize or an Olympic medal), or alternatively, evidence of at least three out of 10 criteria. The standard has become more stringent over the years and EB-1A petitions are more challenging than they may seem.
EB-1A petitions are particularly complex for coaches and for former athletes who have transitioned into a different profession related to the same sport in which they used to compete – for example, athletic managers or sports analysts. Many coaches can demonstrate substantial successes as athletes – perhaps, even enough to meet the rigorous EB-1A criteria. However, EB-1A applicants must show that they will continue to work in their field of extraordinary ability. USCIS has traditionally interpreted the “field” of extraordinary ability to mean the same profession in the field or sport, which requires the same or similar skillset. Therefore, coaches must show evidence of extraordinary ability in coaching or a similar profession that requires the same or related skillset.
Lee v. I.N.S., 237 F.Supp.2d 914 (N.D. Ill. 2002) is one of the first cases that tightened the EB-1A standard for coaches and former athletes. In Lee, the United States District Court for the Northern District of Illinois upheld USCIS’ distinction between extraordinary ability as a coach and competitor, finding that the distinction is consistent with Congress’s intent to establish the extraordinary ability visa category as extremely restrictive. In Lee, the petitioner sought classification as an alien of extraordinary ability to work as a professional baseball coach with the Chicago White Sox. In support of his visa petition, Lee submitted documentation of his accomplishments as a professional baseball player in Korea, which included evidence of his Korean Baseball Organization (“KBO”) All-Star appearances, his Triple Crown Title, his KBO MVP Award, and his five KBO Gold Glove Awards. From this evidence, Lee argued that he satisfied the INA’s threshold requirements because, although he would be coaching baseball and not playing baseball, he would still be continuing to work in his “area” of extraordinary ability – baseball. USCIS denied the EB-1A petition and the District Court upheld the denial, finding that baseball coaching and competing constitute different professions in the field that require a different skillset.
Following the decision in Lee, coaches have faced resistance from U.S. Citizenship and Immigration Services (USCIS) when attempting to use evidence of accomplishments as athletes to meet the EB-1A standard. In a recent decision, dated September 14, 2015, the United States District Court for the Southern District of Ohio applied the reasoning in Lee to uphold an EB-1A denial for a gymnastics coach who had in the past received an Olympic gold medal as an athlete. The Petitioner in that case had argued that evidence of the beneficiary’s receipt of a 1988 Olympic gold medal, together with other evidence of accomplishments in women’s gymnastics as an athlete and coach, met the EB-1A standard. USCIS denied the case because the beneficiary sought to work exclusively as a coach and had not competed as a gymnast since 1991. USCIS acknowledged that a competitor and a coach may share knowledge of the sport, and that the beneficiary’s accomplishments as a gymnast were not completely irrelevant to her coaching career, but it concluded that the two relied on different skillsets. Therefore, the evidence of accomplishments primarily as a gymnastics competitor was insufficient to show extraordinary ability in coaching. The additional evidence provided of accomplishments as a coach was also insufficient to meet the EB-1A criteria.
The takeaway from the decisions discussed above is that EB-1A cases for coaches and former athletes must focus on demonstrating accomplishments as coaches or in the new profession, not as athletes. They should focus on showing that while the individual has achieved substantial acclaim as an athlete, he or she has also sustained that acclaim in coaching. If any evidence of accomplishments as athletes is included, the petition must show a close nexus between playing and coaching a given sport. Undoubtedly, some of the skills and knowledge needed to excel as an athlete are also essential to being a good coach. USCIS uses a balancing approach when evaluating cases in which the applicant has clearly achieved recent national or international acclaim as an athlete and has thereafter sustained that acclaim in the field of coaching at a national or international level. In such situations, USCIS may consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that it can conclude that coaching is within the petitioner’s area of extraordinary ability. However, the longer an individual waits after beginning his or her coaching career, the more likely it will be for USCIS to request extensive evidence of acclaim in coaching only. USCIS takes the position that in such cases, the foreign national has had ample opportunity to develop acclaim solely as a coach.
The above decisions also emphasize the importance of selecting the appropriate “area” of extraordinary ability. How it is defined is of central importance, because the individual seeking EB-1A status must present extensive evidence of sustained national and international acclaim in that particular area in order to qualify. Perhaps, certain coaches are still competing and, if so, they would be in a hybrid, athlete-coach field that would make it easier to use evidence of acclaim in both professions.
It is not recommended that individuals apply for permanent residence through the EB-1A category without the help of immigration counsel. The standard has toughened over the years and it involves a large amount of discretion. Therefore, a proper presentation of the evidence and a solid theory of the case can prove decisive. Sometimes, coaches and former athletes simply do not qualify for EB-1A. If so, individuals interested in permanent residence should pursue an alternative permanent residence category – for example, a Labor Certification Application (PERM). Notably, certain coaches who have any classroom teaching duties at institutions of higher education may also qualify for a PERM application through a more relaxed, special recruitment process. Experienced immigration counsel can advise on the most appropriate permanent residence option.