Introduction

The employment-based second preference (EB2) immigrant visa category is available to both members of the professions and aliens of exceptional ability in the sciences, arts, or business, provided that the petitioner establishes that the alien beneficiary would substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. When the current EB2 category was codified, there was initially a question as to whether athletes could qualify as aliens of exceptional ability in the arts. The ambiguity was heighted by the fact that the employment-based first preference (EB1) category is available to aliens of “extraordinary ability in the sciences, arts, education, business, or athletics.” (Emphasis added.)

In 1995, the Immigration and Naturalization Service (INS) issued a General Counsel opinion taking the position that athletes could qualify for EB2 visas as aliens of exceptional ability in the arts. This legal position was based in large part on the immigration precedent decision in the Matter of Masters, 13 I&N Dec. 125 (D.D. 1969), wherein the District Director determined that athletes could qualify for the former employment-third preference category as aliens of exceptional ability in the arts. The INS position in 1995 extended the reasoning of Matter of Masters to the current EB2 category based on the fact that the relevant statutes used identical terms in the pertinent aspects.

While INS General Counsel opinions are advisory, rather than binding, the position articulated in 1995 remains the policy of the successor Department of Homeland Security (DHS) today. In this article, we will examine the background of the issue, how the INS reached its conclusion, and what it means for athletes seeking immigrant visas today.

Understanding Matter of Masters

On January 22, 1969, Matter of Masters, 22 I&N Dec. 125 (D.D. 1969) [PDF version] was published. Matter of Masters concerned the immigrant visa petition of Margaret Ann Masters (the beneficiary), a professional golfer from Australia. She sought an immigrant visa under the former section 203(a)(3) of the INA, which made available immigrant visas to aliens “who because of their exceptional ability in the sciences or arts, will substantially benefit prospectively the national economy, cultural interests or welfare of the United States.” The statutory language of former section 203(a)(3) was nearly identical in all relevant aspects to the pertinent portion of the current EB2 statute, section 203(b)(2)(A), which makes available immigrant visas to aliens “who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests.”

The beneficiary in the case sought an immigrant visa to play professional tournament golf in the United States. She had received certification from the U.S. Department of Labor (DOL) under section 212(a)(14) of the INA.

The question before the District Director was whether playing professional golf was in any way covered by the language of former section 203(a)(3). The former section 203(a)(3), similarly to the current section 203(b)(2)(A), encompassed members of the professions as well as certain aliens of exceptional ability. The Director noted that the INA defined the term “profession” at section 101(a)(32) (where the definition remains to this day). The INA did not, however, define the terms “arts” and “sciences.”

The Director began by considering whether the beneficiary was a member of the professions, ultimately concluding that she was not. He noted that prior precedent held “that recognition as a member of the professions normally requires the successful completion of a course of education on the university or college level, culminating in the attainment of a specific degree or diploma.” He added that a degree or experience amounting to the equivalent of a degree was “usually the minimum requirement for entry into the occupation.” He explained that golf and other sports have no such bar to entry: “[a]s golf and other sports do not require high academic or mental preparation but primarily physical dexterity, enhanced by training and experience, it is concluded that the beneficiary, a tournament golfer, is not a member of the professions within the meaning of section 101(a)(32)…” He quickly concluded that professional sports were not “sciences” as contemplated by former section 203(a)(3).

The Director considered whether professional golf fell within the definition of the “arts” under former section 203(a)(3). The Director cited to a contemporary dictionary for the definition of art: “Art is defined as ‘(1) Skill in performance acquired by experience, study, or observation; knack.’” He added that a different dictionary “includes in the definition artiste, a professional singer, dancer, or other public performer and states that when an artiste makes his profession into a fine art, he becomes an artist.” The Director found that professional tournament golfers fell within the commonly understood meaning of “artist”: “It has been determined that professional golfers are basically entertainers and may be included within the arts, in the sense that the term is used in [former] section 203(a)(3) of the Act … if such golfers have the exceptional ability required by that section.” The Director added that “[p]rofessional tournament golfers entertain thousands of paying spectators at the golf courses and literally millions of viewers who watch tournament action on television during the weekends.”

The principal conclusion in Matter of Masters was that professional golfers were covered by the term “the arts” in former section 203(a)(3) of the INA. Thus, if a professional golfer could satisfy the regulatory criteria for establishing “exceptional ability” in the arts, he or she could qualify for an immigrant visa. The Director detailed the evidence which led to his conclusion that the beneficiary was an alien of exceptional ability in the arts:

Evidence in the form of newspaper clippings, professional tournament brochures, and a letter from the President of the Ladies Professional Golf Association of the United States, of which the alien is a member, establishes that the beneficiary has won major professional golf tournaments in the United States, Canada, Australia, New Zealand, and South Africa. She has competed against the best women golfers in the world. During 1967 she was the tenth highest money winner among professional women golfers competing in the United States.”
Matter of Masters, 13 I&N Dec. at 126-27

From this evidence, the Director held that “[t]he evidence submitted establishes that the beneficiary is a person of exceptional ability in the art of playing professional tournament golf who will substantially benefit prospectively the national economy of the United States.”

INS Determines That Athletes Most Likely May Qualify for EB2 Classification

In 1994 and 1995, the INS published two General Counsel opinions reaching opposite conclusions on whether athletes could qualify for the then-new EB2 category as aliens of exceptional ability in the arts. While section 203(b)(2)(A) of the INA is nearly identical to former section 203(a)(3) — which was interpreted in Matter of Masters — Congress had added the EB1 category at section 203(b)(1)(A) of the INA for aliens of extraordinary ability “in the sciences, arts, education, business, or athletics…” (Emphasis added.) Congress’ decision to specify “athletics” in section 203(b)(1)(A), while not including it in section 203(b)(2)(A), left open the question of whether Matter of Masters remained controlling in adjudicating EB2 petitions under the latter statute. Before continuing, it is important to note that INS General Counsel opinions are advisory in nature, rather than binding. R.L. Inv. Ltd. Partners v. I.N.S., 86 F.Supp.2d 1014, 1022 (D. Hawaii, 2000) [PDF version].

Genco Op. No. 94-15 (INS) (Mar. 3, 1994), 1994 WL 1753119 [PDF version]

In 1994, Acting INS General Counsel Paul W. Virtue determined that Matter of Masters was most likely not binding on the then-new EB2 category.

The General Counsel explained that at the time Matter of Masters was decided, the INA made no reference to “athletes” or “athletics.” This was reflected, he noted, in the Matter of Masters decision: “The words ‘athlete’ and ‘athletics’ do not appear in the Masters case.”

The Immigration Act of 1990 revised the employment-based preferences, leaving us with the EB1 and EB2 categories we have today. The General Counsel noted that the EB1 preference for extraordinary ability aliens includes “business,” “education,” and “athletics,” in addition to “arts” and “sciences,” which had also been in the former section 203(a)(3). These categories were mirrored in the nonimmigrant visa category for aliens of extraordinary ability — O1 — codified at section 101(a)(15)(O)(i). He noted that in the nonimmigrant provision, “Congress distinguished between ‘artistic’ and ‘athletic’ performance in [section] 101(a)(15)(O)(ii).” Congress also mentioned “athletes” and “entertainers” separately in the context of the P nonimmigrant visa categories in section 101(a)(15)(P).

While the EB2 preference in section 203(b)(2)(A) was substantially similar to former section 203(a)(3), it is not identical. In addition to adding an advanced degree or equivalent requirement for EB2 professionals, the Congress added “business” as a category for which an alien could establish “exceptional ability” for immigrant classification in addition to the “sciences” and “arts.” Furthermore, section 203(b)(2)(C) makes clear that “the possession of a degree, diploma, certificate, or similar award…” does not in and of itself establish sufficient evidence of exceptional ability. The General Counsel drew two inferences from the statutory changes. First, he took the position that section 203(b)(2)(C) “implies that the categories to which the term ‘exceptional ability’ applies are fields of endeavor in which degrees, diplomas, certificates, awards, licenses, or certifications are granted.” Second, he noted that while Congress specified “athletics” in other sections of the INA, including most notably at section 203(b)(1)(A), it did not add it to the EB2 statute, despite adding “business” as a field for which an alien could establish exceptional ability for purpose of obtaining a second-preference immigrant visa.

The General Counsel found it significant that Congress included the term “athletics” in multiple portions of the INA, distinguishing it from the arts, but omitted it from the EB2 statute. Because he found that Congress specified “athletics” in other parts of the INA, he concluded “that an athlete may not be classified as an alien of exceptional ability in the arts under Section 203(b)(2) of the Act.”

Genco Op. No. 95-3 (INS) (Jan. 20, 1995), 1995 WL 1796310 [PDF version].

On January 20, 1995, the former INS General Counsel, Alexander Aleinkoff, addressed the same issue that General Counsel Virtue had addressed several months earlier. The General Counsel had been asked to reconsider the 1994 General Counsel opinion holding that athletes cannot qualify as aliens of exceptional ability in the arts under section 203(b)(2) of the INA. As we will see, General Counsel Aleinkoff reversed the INS’s prior position on the issue, finding that the conclusion that Matter of Masters remained controlling in the EB2 context was reasonable and that athletes could likely qualify as aliens of exceptional ability in the arts.

The General Counsel noted that the section 203(b)(2)(A) does not explicitly state whether Congress intended to repudiate the INS’s position, articulated in Matter of Masters, that the “arts” include “athletics.” The General Counsel examined the legislative history and came away with the conclusion that Congress did not specifically intend to address the issue.

The General Counsel acknowledged the caselaw supporting the 1994 opinion’s conclusion that the inclusion of the term “athletics” in section 203(b)(1)(A) and other provisions of the INA suggested that the athletics were excluded from section 203(b)(2)(A). He noted, however, that this was not the only principle of statutory interpretation that was applicable. He explained: “If a term in a statute has acquired a settled interpretation, and Congress then reenacts the term without substantial change, it is reasonable to conclude that Congress intended to incorporate the settled interpretation.” The INS had interpreted the “arts” as including athletics since the publication of Matter of Masters in 1969. Furthermore, the Department of Labor (DOL) had similarly interpreted the term as included among the “performing arts” since 1977. From this, the General Counsel reasoned that, “[i]n the absence of any clearly expressed intent in Congress to upset this settled interpretation, it is reasonable to conclude that ‘the arts’ in sections 203(b)(1)(A) and (2)(A) include athletics as a performing art.”

The General Counsel acknowledged that the issue remained ambiguous as a result of the language of the Immigration Act of 1990, which did not clearly state whether athletes were not classifiable as EB2 immigrants . He stated that neither the INS’s 1994 position nor the position of the questioner that the holding of Matter of Masters was applicable to the EB2 exceptional ability category was clearly compelled by the statute. In the same vein, neither interpretation was out of bounds. The General Counsel opted for the latter view because it “has the advantage of maintaining a body of precedent that has been long settled.” Because the Immigration Act of 1990 did not clearly conclude that athletes were not classifiable as EB2 immigrants, the General Counsel concluded that it was “likely” that Matter of Masters remained controlling.

We address another issue from the 1995 General Counsel opinion — whether and when an alien is classifiable as an EB1 immigrant — in a separate article [see article].

Current USCIS Position

The United States Citizenship and Immigration Services (USCIS) has followed the position articulated in the 1995 INS General Counsel opinion that athletes are classifiable as aliens of exceptional ability in the arts in chapter 22.2 of its Adjudicator’s Field Manual (AFM) [PDF version]. The AFM at section 22.2(j)(3) explains the USCIS’s position:

The precedent decision of Matter of Masters … held that a professional golfer could, if [s]he was otherwise qualified, qualify as an alien of exceptional ability in the arts under section 203(b)(2) of the Act. This holding has been interpreted to apply to [EB2] petitions filed on behalf of any athlete.

The FAM explains that the mere fact an alien signed a contract to play for a major league team does not qualify him or her as an alien of exceptional ability in the arts. The FAM defines the term “professional athlete” as an individual who is employed as an athlete by:

A team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or
Any minor league team that is affiliated with such an association.

Beyond these basic requirements, the petitioner has the burden of establishing that the alien is of exceptional ability and will continue to perform in the area of his or her exceptional ability. USCIS officers are instructed to “look for evidence of exceptional ability beyond the mere existence of a contract with a major league team or an approved labor certification.”

Unpublished Decisions of the Administrative Appeals Office

The USCIS’s Administrative Appeals Office (AAO) has issued several unpublished (non-precedent) decisions citing to Matter of Masters. Although these decisions are not binding on USCIS officers, they provide interesting examples of how the USCIS considers EB2 exceptional ability petitions filed on behalf of athletes and the limited applicability of Matter of Masters outside the EB2 context.

Matter of C-C-B-C- LLC, ID# 1443645 (AAO Aug. 14, 2018) [PDF version] — Baseball coach in the field of athletics is classifiable as an alien of exceptional ability.
Matter of Q-C-M- Inc., 2017 WL 2902765 (DHS) (AAO June 27, 2017) [PDF version] — The reasoning of Matter of Masters does not extend to the statute implementing the P3 nonimmigrant visa category [see article] at section 101(a)(15)(P)(iii). The AAO found that soccer was not an art form for P3 purposes and thus that a soccer coach could not qualify for P3 classification.
Matter of K-M-C-O-A-, 2016 WL 8316131 (DHS) (AAO Dec. 12, 2016) [PDF version] — Matter of Masters is inapplicable to P3 category because the implementing regulations for the P3 category expressly define “arts” and do not include athletics. Instructor in Krav Maga was not an “artist” or “entertainer” for P3 purposes.
Matter of _, 1995 WL 18235823 (INS) (AAU Feb. 27, 1995) — The Associate Commissioner, Examinations, found that a soccer coach was classifiable as an EB2 exceptional ability alien in the arts.

Conclusion

In the years immediately following the substantial changes to the employment-based immigrant visa classifications in the Immigration Act of 1990, the INS carefully considered whether athletes were classifiable as aliens of exceptional ability in the arts in the EB2 category. Since the 1995 General Counsel opinion concluding that they were, INS, and its successor DHS, have maintained the position that certain athletes are classifiable as aliens of exceptional ability in the arts.

The EB2 category is an attractive alternative to the EB1 category for certain athletes and sports coaches because the exceptional ability standard is less rigorous than the extraordinary ability standard. The EB2 category has several disadvantages, however, namely that it requires a petitioner to file on the behalf of the beneficiary alien, except in rare cases where the alien may qualify for a National Interest Waiver. The EB1 extraordinary ability classification, conversely, allows for self-petitioning. This limitation means that the EB2 category is most useful to athletes in major team sports in the United States. A sampling of AAO decisions suggests that it may apply slightly more broadly to coaches.

An athlete or coach seeking to immigrate to the United States or an employer seeking to petition for an athlete or coach should consult with an experienced immigration attorney for case-specific guidance. An attorney will be able to determine whether the EB2 category may be appropriate for the particular case, or whether a different immigrant or nonimmigrant category would be more suited to the petition.

To learn more about this and related issues generally, please see our website’s growing sections on employment immigration [see category] and work visas [see category].