If Congress Is Stagnant On Enacting Universal NIL Law, Is There A More Achievable Win By Helping International Student-Athletes With An NIL Carve Out?
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If Congress Is Stagnant On Enacting A Universal NIL Law, Is There A More Achievable ‘Win’ By Helping International Student-Athletes With An NIL Carve Out?
Executive Summary
Without more express clarity from Department of Homeland Security and Student and Exchange Visitor Program, International Student-Athletes have been left in limbo on whether pursuing NIL activities for profit jeopardizes their student visa.
Institutions continue to await express guidance from the Student and Exchange Visitor Program or a related federal agency on if and how international student-athletes can pursue NIL activities with clearer parameters.
Many university advisors in the international student services space remain hesitant to provide an unconditional green-light for international student-athletes to pursue NIL activities
NCAA member schools, conferences, and outside consultants have made efforts to lobby members of Congress about changing the policy to make an express NIL exception for international student-athletes in a way that avoids jeopardizing their visas.
Despite multiple hearings on NIL in front of Congress, dating back to last summer, and multiple members of Congress being vocal about NIL and student-athlete "rights," no federal bill tied to NIL or broader college sports themes has moved anywhere near adoption.
NAFSA and SEVP had issued initial, circumspect guidance for international student-athletes pursuing NIL activities with the central message being to proceed with caution.
As state legislatures have taken the proverbial steering wheel when it comes to establishing NIL policy across the land, one consistent, if not befuddling, subplot to the NIL landscape is the risk and murkiness facing international student-athletes as to whether pursuing NIL activities would trigger employment activities under federal immigration law and, in turn, risk their F-1 visas— leading to deportation.
The primary agency governing the parameters of which international students (including college athletes) can be in the U.S. pursuing studies is the Student and Exchange Visitor Program (SEVP) which is a part of the National Security Investigations Division and, according to the SEVP website, acts as a bridge for government organizations that have an interest in information on nonimmigrants whose primary reason for coming to the United States is to be students.
On behalf of the Department of Homeland Security (DHS), SEVP manages schools, nonimmigrant students in the F and M visa classifications and their dependents. The Department of State manages Exchange Visitor Programs, nonimmigrant exchange visitors in the J visa classification and their dependents. Both SEVP and Department of State use the Student and Exchange Visitor Information System (SEVIS) to track and monitor schools; exchange visitor programs; and F, M and J nonimmigrants while they visit the United States and participate in the U.S. education system.
A recent, high-profile article in The Athletic about University of Kentucky men’s basketball star (and international student-athlete) Oscar Tschiebwe and his support team, including an immigration attorney, caused a national stir as Tschiebwe’s social media (and his advisors) announced he’s “Open for (NIL) Business” as they self-determined a potential path for him to pursue NIL income without running afoul of federal immigration policies.
There was significant reaction and questions raised around the country to this news since the SEVP and DHS and other federal agencies have not issued any express guidance on if and how an international student-athlete could monetize their NIL without jeopardizing their visa status including through a passive-income carve out.
Administrators from NCAA member schools that work in the international student services space appear to hold that unless there is clear regulatory guidance to make for-profit NIL permissive for international student-athletes, there’s inclination to be more guarded on providing any permissive guidance on NIL activities unless it fits within the narrower employment authorization and Curricular Practical Training (CPT) categories as the only means by which international student-athletes could be employed and pursue income including NIL income.
As the Department of Homeland Security (DHS) website indicates, CPT— as a means for employment for international students— needs to be connected directly to the international student’s course of study and integral to the university’s curriculum. This curricular-based exception has not had any history with and how NIL activities are woven in to that CPT fabric.
Until SEVP or DHS says otherwise, most institutions are sticking with their guidance on employment to the letter of published federal policies.
One of the key areas of debate is what is considered active vs. passive income under immigration law and whether there is a carve-out for passive NIL income when a student-athlete’s NIL is being used to profit but others are executing the majority of the transaction especially within the social media influencing arena.
Some believe that if SEVP or other federal authorities believed passive income via social media influencing is a permissible carve-out for all international student-athletes, then SEVP, DHS or another crelated federal agency would have issued that guidance for all international student-athletes at some point since July 1. Such official guidance has yet to be announced or issued by SEVP, DHS, or other agencies.
NCAA eligibility is one major consideration when it comes to NIL activities, but institutional administrators are reticent to provide flexible or permissive guidance on the passive vs active income debate when an international student-athlete’s F-1 visa could be put at risk.
NAFSA, the Association for International Educators, issued the following statement in the early weeks of NIL going live in 2021:
“For international students engaged in college sports, this brings up the question of whether the Department of Homeland Security (DHS) would consider compensated NIL arrangements as "employment" for purposes of maintaining nonimmigrant status, and if so, whether the student athlete's immigration status permits such employment.
Nonimmigrants cannot work in the United States unless the employment is specifically provided for in the regulations. 8 CFR 214.1(e) provides a general rule:
(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure, or section 101(a)(15)(C) of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)(C)(i) of the Act.
DHS has not opined on the topic of whether compensated NIL arrangements constitute employment under federal immigration law, or on the impact of such arrangements on the various nonimmigrant statuses.”
"The Student and Exchange Visitor Program (SEVP) is aware of and actively monitoring proposed federal and state legislation pertaining to the use of name, image and likeness for student athletes, including F and M nonimmigrant students. The program is working with its partners within the U.S. Department of Homeland Security to review how this legislation affects international student athletes and will provide updated guidance via Broadcast Messages, Study in the States, social media and SEVP field representatives."
The NAFSA announcement noted several factors that could impact the outcome for a particular student include:
the nature of the specific NIL activities (which gets to whether the activity constitutes employment)
the student athlete's immigration status (for example, a student could be in F-1 or J-1 status, or be here as a dependent in another nonimmigrant status; each of these statuses would require a separate analysis, unless DHS could craft a general policy that NIL activity authorized under a state statute would be permissible in all nonimmigrant categories, incident to status).
the specific provisions of state, federal, and NCAA rules
"Absent clarification from DHS, schools and international student athletes should approach NIL questions with caution. Schools should assess institutional risk, and international students should seek advice from an experienced immigration lawyer before entering into an NIL agreement or engaging in compensated NIL activity.”
Beyond this initial announcement, there has not been much of any guidance or comment coming from SEVP on the international student-athlete NIL conundrum.
From a sentiment standpoint, there is marked support from within college athletics circles for international student-athletes to be given protection to pursue NIL-related income opportunities like social media influencing, appearances, autograph signings, and running their own camps and clinics without wondering if their visa was at risk.
There have been some efforts across the country to lobby congressional members about providing a clearer path and guidance for international student-athletes to pursue NIL activities with peace of mind. One critique of this ask is whether it needs to be broadened to all international students—not just international athletes on college campuses across the country.
Meanwhile, international student-athletes continue to wait for clearer guidance or, alternatively, take on more perceived risk at this time in moving ahead with their NIL activities.
Athletics Veritas is presented for information purposes only and should not be considered advice or counsel on NCAA compliance matters. For guidance on NCAA rules and processes, always consult your university’s athletics compliance office, conference office, and/or the NCAA.
