Can international student athletes engage in compensated NIL arrangements in the U.S.?
The following information is taken from NAFSA, Association of International Educators, which posts regulatory information for International Student & Scholar Services offices nationwide.
According to federal regulations, international students in F-1 visa status cannot work in the U.S. 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 who 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.
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.
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. 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, International Student & Scholar Services cannot advise nor give permission to international student athletes to engage in compensated NIL arrangements in the U.S. (or abroad, for that matter.)
International student athletes should approach NIL questions with caution and seek legal advice from an experienced immigration attorney before entering into an NIL agreement or engaging in compensated NIL activity.