As of 2022, there were 24,000 foreign student athletes in the U.S. in Division I, II and III sports. In Division I, where the NIL money mostly circulates, foreign national student athletes make up nearly 13 percent of the total student athlete population. 15 percent in basketball. 13 percent in women’s basketball. In Division I tennis, nearly 60 percent of the athletes are foreign students.

Foreign student athletes generally assume F-1 student visa status with strict prohibition on employment unless the United States Citizenship and Immigration Services (USCIS) authorizes such employment (off campus). USCIS or federal law has not expressly stated whether NIL activities, such as signing autographs, making appearances or posting on social media, constitute impermissible “work,” leading to inequities among not only athletes, but also schools.

A foreign student cannot work unless authorized to do so under limited circumstances. If a foreign student engages in unauthorized employment, their university is required to terminate their student status using SEVIS, an online portal used to track and confirm immigration compliance of the foreign student population.

So, how is unauthorized employment defined under the Immigration and Nationality Act (INA)?

Unauthorized employment is any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or the USCIS to accept employment or who exceeds the scope or period of the noncitizen’s employment authorization (8 CFR Sec. 274a.12(a)-(c) for examples of authorized employment).

In fact, the above legal definition, while broad, is still incomplete. Unauthorized employment also includes self-employment that isn’t explicitly authorized by the USCIS.

Since July 1, 2021, when the NCAA began allowing students athletes to earn money based on their name, image and likeness, hundreds of thousands of student athletes have benefited. Unfortunately, by and large, their foreign student athlete teammates have not been afforded the same financial opportunities.

Not only have foreign student athletes been excluded from much of the NIL windfall, but they have also been excluded from events and team outings, etc., if there was a NIL component to such an outing. If University Team X is going to attend an event and each student athlete will be compensated for their attendance, it isn’t enough that the foreign student attends the event, but rejects the compensation. Compensation is not what drives the definition of employment under USCIS rules. If the service to be performed would normally be one that would involve compensation if performed by a U.S. worker (teammate), then the foreign student is unable to perform such service.

The lack of any immigration rules or guidance on this issue has led many schools to take a conservative approach, excluding foreign student athletes from NIL activities, including team-wide NIL deals. This situation has been further complicated by the February 5, 2024, National Labor Relations Board (NLRB) decision finding that Dartmouth University’s men’s basketball players are “employees” of the school because:

1. The players perform work that benefits the institution, not just the basketball program; and
2. The players receive compensation in the form of benefits with tangible value such as room and board, apparel, academic support, physical training, etc.

The recent NLRB decision further emphasizes the need for USCIS to provide clear guidance on the ability of foreign student athletes to participate in NIL and their status as employees of their educational institutions. Absent more clarity, tens of thousands of foreign student athletes remain in legal limbo regarding the stringent restrictions on employment incident to their F-1 student status.

If you have questions about the H-1B lottery process, please reach out to the Immigration Team or the Workplace Solutions lawyer you regularly work with.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.