USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
EB-1 – Employment-based first preference immigration A professional athlete who demonstrates extraordi - nary ability in athletics through sustained national or international acclaim, supported by extensive docu - mentation, may self-petition for an EB-1 immigrant visa. The athlete must demonstrate his or her inten - tion to continue operating in their field and that their entry will substantially benefit the United States. This standard is extremely high, requiring the athlete to be among the small percentage at the very top of their field, with evidence of a major one-time achievement (such as an Olympic gold medal) or satisfaction of at least three of ten regulatory criteria (prizes, member - ships, leadership roles, etc), with allowance for com - parable evidence if such criteria do not readily apply. B-1 – temporary business visitor Athletes visiting for a professional or commercial pur - pose (contract negotiations, participation in conven - tions, etc) may use a B-1 visa for limited activities. When using this visa, no productive employment in the USA is permitted; eligible entrants include only individual professionals receiving no salary other than prize money and athletes of foreign-based teams in international leagues whose salaries are principally earned abroad. Periods of stay for such athletes are generally up to six months, with a possible extension of another six months, totalling a one-year stay. O-1A – individuals with extraordinary ability or achievement Athletes with sustained national or international acclaim may qualify for O-1A status. O-1A petitions are typically filed by a US employer; however, in 2025, United States Citizenship and Immigration Services (USCIS) began permitting companies owned by the athlete to file the petition on his or her behalf. The initial period of stay for such athletes is up to three years, with extensions permitted in one-year incre - ments. If the athlete changes teams or employers, he or she benefits from a discretionary grace period of up to 60 days after employment ends to file a new petition. Employment authorisation does not continue automatically; the athlete must await USCIS approval of the new petition before resuming work.
Worker Adjustment Retraining Notification Act of 1988 (the “WARN Act”) The WARN Act and its state analogues require employer sports organisations to provide employ - ees, their representatives, and certain governmental officials with advance notice of closings and layoffs affecting a threshold number of employees. Under federal law, and in many states, employers includ - ing sports organisations are not required to provide WARN notices for lockouts during labour disputes. 7.3 Free Movement of Athletes The IRCA The Immigration Reform and Control Act (IRCA), codi - fied at 8 USC § 1324b, prohibits employers with more than three employees from discriminating in hiring, recruitment, referral for a fee or discharge based on national origin or, for “protected individuals”, citizen - ship status. “Protected individuals” include US citi - zens, nationals, lawful permanent residents (with cer - tain exceptions), temporary residents, refugees and asylees. The ICRA does not protect unauthorised aliens and does not apply to: • employers with three or fewer employees; • claims already under consideration by the Equal Employment Opportunity Commission under Title VII (unless dismissed as outside Title VII’s scope); or • situations under which citizenship status is required by law, regulation, executive order or gov - ernment contract. Employers may employ equally qualified US citizens or nationals over aliens, but blanket policies excluding all non-citizens are prohibited. The ICRA also bans retaliation and discriminatory documentary practices in the employment eligibility verification process, such as requesting more or different documents than origi - nally required or refusing to accept facially valid docu - ments for discriminatory reasons. Immigration and Visas The Immigration and Nationality Act (INA), codified at codified at 8 USC § 1101 et seq, governs immigra - tion options for professional athletes, including both immigrant and non-immigrant classifications.
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