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The Explainer: Racing on a student visa

A reader wants to recruit a foreign student to ride for an American pro team, but has concerns about immigration laws.

Dear readers,
First off, my apologies for not offering up an Explainer column these past few weeks during the Vuelta a España. It’s been a busy three weeks, but we were all treated to some terrific bike racing, weren’t we? I was certainly among those who figured that Ezequiel Mosquera was in a solid position to take the red jersey on the Bola del Mundo last Saturday. What I didn’t expect was Vincenzo Nibali’s impressive ride to defend his lead.

I’ve been sorting through a number of questions from readers since getting back to my normal schedule. And while many of them have to do with the ongoing federal investigation of Lance Armstrong and allegations of doping, financial fraud and other nefarious activities, I think I’ll take a pass on that subject for a while. I’d like to see how this thing shakes out before really looking at the potential criminal and civil fallout a grand jury indictment might have. So let’s give that a rest … for now.

Instead, I ran across an interesting question from a rider who hopes to add a talented foreign rider to his team’s roster.

Dear Explainer,
I have raced both at the collegiate level and as a professional while finishing up my bachelor’s in engineering. I have a college teammate who is spectacularly talented, especially in the mountains, and I really believe that he could have a spot available to him on a pro team (hopefully mine) next season.

The problem is that he is from Mexico and here on a student visa. He’s interested in racing and even making a little money on the side, but is seriously worried about how taking a job might affect his immigration status. What should he do?
Robert
Seattle, Washington

Dear Robert,
Well, I’m not really an immigration lawyer and the best advice I can offer is to tell you to sit down with an attorney who specializes in that area of the law. It is often complicated and fraught with potential hazards and penalties if an applicant doesn’t follow the proper steps through what is a veritable alphabet soup of visa categories.

That said, I can offer a thumbnail sketch of some of the issues that your teammate might encounter along the way.

First, he’s right to be concerned about the effect accepting a paid position might have on his status. While you don’t mention the specific visa with which he entered the U.S., my guess is that he’s currently here on an F-1 Student Visa. That allows a foreign national to come to the U.S. in order to pursue a course of study at an accredited academic institution.

Furthermore, that student must be fully able to support himself while engaged in that academic pursuit without taking a job. So the student really needs to come with scholarship support or enough savings to cover tuition and living expenses while here. There are some exceptions for academic assistantships, but again, those elements of the question are best addressed by an immigration attorney.

Typically, an F-1 visa expires 60 days after graduation. A student can request an extension that actually allows him to take a job in a field related to his area of study in order to gain “practical experience.” Assuming that your that your teammate didn’t major in bike racing (man, I wish that had been an option when I was in school), joining a cycling team probably wouldn’t meet that standard.

He does have the option of applying for a temporary non-immigrant work visa or seeking to have his status changed to that of a permanent resident alien (insert the usual “talk to a lawyer” mantra here).

Depending just how close you are in your assessment that he is, indeed, “spectacularly talented,” he might have a few other options. There is something known as an “O-1 Extraordinary Ability Visa,” which could allow him to stay in the U.S. for up to three years.

In order to qualify for the O-1, however, the applicant needs to show that he or she has an extraordinary ability in the arts, science, education, business, entertainment or sports. Part of the challenge facing the applicant for the O-1 is that there is a documentation requirement in which the applicant must demonstrate a record of “distinction” that indicates achievement and skill significantly above the ordinary and is regarded as nationally or internationally recognized in his field.

From the sounds of it, you probably aren’t talking about a former ProTour-level rider coming here on a student visa, so the O-1 visa may present a problem for your teammate. Being the rough equivalent of a successful Cat. 3, for example, would not meet the standard.

There are also things known as “P Visas,” which allow athletes and entertainers to work in the U.S. for up to five years. Again, the standards for the P-1 and P-2 visas require that the applicant can produce evidence of national or international recognition in a specific field and, from the sounds of it, you are asking about a rider who is exhibiting signs of talent and potential, but probably hasn’t risen to the level of being nationally or internationally recognized.

There are other routes available, but it may be his best bet to pursue some of the post-graduation options for an F-1 visa holder and seek a temporary non-immigrant work visa or to apply for permanent resident status.

Again, immigration law is an often-complex legal specialty and your teammate’s best option is to discuss his situation with an attorney who works in that area. He should do so as soon as possible, while his student visa is still current. He may have several options available to him, but encourage him not to write off the opportunity to race here in the U.S. for a paycheck, if that’s something he wants to do.

Good luck.
Charles


“The Explainer” is a regular feature on VeloNews.com. If you have a question related to the sport of cycling that our editors might be able to answer, feel free to send your query to CPelkey@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.