The National Basketball Association’s (NBA) lockout will have immigration implications for foreign players, according to Colleen Caden, a sports and immigration law attorney with Pryor Cashman in New York, who said employers more generally should be aware of immigration implications when there is a work stoppage.
Professional athletes from other countries typically use the P-1 visa, which is available for internationally recognized athletes, she noted. The NBA lockout is a work stoppage for professional athletes, and means that players no longer are performing services for the team.
With a work stoppage, workers on P-1 visas are allowed to remain in the United States. But if they travel abroad and attempt to reenter the United States, they will not be allowed to come back because the players have to be returning to do the work they are supposed to do under their visa, she added.
The same rule applies to workers on H-1B visas during work stoppages, she said.
However, different rules come into play when workers on H-1B visas are terminated. When H-1B employees are terminated, the employer has the obligation to notify immigration authorities. Employers also have to pay for terminated H-1B employees’ travel home and withdraw the underlying labor condition application, she noted.
Employers typically use H-1B visas, TN treaty visas, L-1 visas for international companies that have intracompany transfers and O-1 visas. TN visas are granted in conjunction with treaties with other nations such as the North American Free Trade Agreement. O-1 visas are for individuals with extraordinary ability in the sciences, arts, education, business or athletics, or who have extraordinary achievements in the motion pictures and television. O-1s can be used in sports, as well as for high-level executives and scientists, Caden remarked.
Once there is a lockout, there may be no communication between the teams and players, so Caden said she would not be surprised if foreign players seek their own legal advice.
Allen Smith is SHRM manager, workplace law content.