Employment and Immigration Status of Nonimmigrant Alien Soccer Players During Strike in the North American Soccer League ( 1979 )

April 18, 1979
79-26 MEMORANDUM OPINION FOR THE
ASSOCIATE ATTORNEY GENERAL
Immigration and Nationality Act (8 U.S.C. § 1101(a)(15»—Nonimmigrant Aliens—Strikes and Other
Labor Disputes—Status of Nonimmigrant Alien
Soccer Players During Strike in the North American
Soccer League
This responds to the oral request for our views whether nonimmigrant
aliens currently employed by teams in the N orth American Soccer League
(NASL) may lawfully continue to work in the United States notw ithstand­
ing a strike called by the N orth American Soccer League Players Associa­
tion, and whether the nonimmigrant aliens who continue to work and
those who choose not to do so may lawfully remain in the United States.
We conclude that the Immigration and Nationality Act and applicable
regulations o f the Immigration and Naturalization Service (INS) neither
bar this class o f alien workers from continuing to work nor require their
deportation if they honor or refuse to honor the strike.
Under the Immigration and Nationality A ct, the term “ immigrant”
means every alien except an alien who falls within one o f a num ber of
specific classes o f nonimmigrants set forth in 8 U.S.C. § 1101(a)(15). In­
cluded among the classes o f nonimmigrants are the so-called “ H - l” and
“ H-2” aliens:
(H) an alien having a residence in a foreign country which he has
no intention o f abandoning (i) who is o f distinguished merit and
ability and who is coming temporarily to the United States to
perform services o f an exceptional nature requiring such merit
and ability * * *; or (ii) who is coming temporarily to the
United States to perform tem porary services or labor, if unem ­
ployed persons capable o f performing such service or labor can­
not be found in this country * * *. [8 U .S.C . § 1101(a)(15)(H).]
The Act provides that the “ question o f importing any alien as a nonim ­
migrant under § 1101(a)(15)(H) * * * shall be determined by the
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Attorney General, after consultation with appropriate agencies o f the
Government, upon petition o f the importing em ployer.” 8 U.S.C.
§ 1184(c). We understand that INS, after consulting with the Secretary of
Labor, approved petitions filed by the NASL to admit 210 nonimmigrant
aliens under 8 U.S.C. § 1101 (a)( 15)(H)(ii) (H-2 aliens). We also under­
stand that a few players o f distinguished merit and ability may have been
adm itted pursuant to 8 U.S.C. § 1101(a)(15)(H)(i)(H-l aliens).
W hen an employer’s petition has been approved, the alien beneficiary
may be adm itted into the United States to work for the employer. The
authorized period o f his admission is governed by the period o f established
need for his services, not to exceed the period for which the employer’s
petition is valid. 8 CFR 214.2(h)(9). The petitions in the present situation
are, "'as we understand it, valid through the current NASL season.
However, 8 CFR 214.2(h)( 10) provides:
A petition shall be denied if a strike or other labor dispute involv­
ing a work stoppage or layoff o f employees is in progress in the
occupation and at the place the beneficiary is to be employed or
trained; if the petition has already been approved, the approval
o f the beneficiary’s employment or training is automatically sus­
pended while such strike or other labor dispute is in progress.
Because the NASL’s petitions have already been approved for the dura­
tion o f the NASL season, the question is whether the approval o f employ­
ment for each nonimmigrant alien player already employed by an NASL
team is “ automatically suspended” while the present strike is in progress.
We do not believe the regulation may be interpreted in this manner.
The regulation, promulgated in 1965, was apparently issued pursuant to
8 U.S.C. § 1184(a), which provides that the admission o f an alien as a
nonimmigrant “ shall be for such time and under such conditions as the
A ttorney General may by regulations prescribe.” Such a regulation must,
however, be rationally related to the purposes and ends o f the Immigra­
tion and Nationality Act. Cf., Fook Hong Mak v. INS, 435 F. (2d) 728,
730 (2d Cir. 1970).
We understand that INS has no inform ation regarding the original pur­
pose o f the regulation, and that there is no helpful history o f application
o f the regulation. Its apparent purpose, however, is to prevent an
employer involved in a labor dispute from importing nonimmigrant aliens
as “ strike breakers” —i.e., to replace the employer’s current employees
who have gone on strike. Such a restriction may, in our view, be rationally
related to the purposes o f the Act, at least as applied to H-2 aliens. H-2
aliens may only be adm itted “ if unemployed persons capable o f perform ­
ing [the requested] service or labor cannot be found in this country.” It
could, in general, reasonably be concluded that persons on strike are
capable o f performing services for the struck employer, or at least that the
requisite determ ination could not be made while a strike is in progress, and
that the statutory requirement for admitting H-2 aliens could therefore not
be met when the petitioning employer’s need for employees arises from
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a strike. As applied to aliens whose employment would begin after com ­
mencement o f the strike, 8 CFR 214.2(h)(10) merely gives particular con­
tent to the statutory requirement.
We have serious doubt, however, that the regulation may properly be
interpreted to require the autom atic suspension o f the employment ap­
proval o f nonimmigrant aliens who are already employed as beneficiaries
o f an approved petition filed under 8 U.S.C. §§ 1101(a)(15)(H) and
1184(c) at the time o f the strike or other labor dispute. Any such aliens in
the H-2 category were presumably admitted after a finding that
unemployed workers capable o f performing the duties could not be found
in this country. The mere existence o f a strike or other labor dispute does
not suggest that capable unemployed workers can be found, thereby war­
ranting suspension o f approval o f the alien’s employment. The autom atic
suspension o f work approval upon the occurrence o f a strike or other
labor dispute therefore would not be rationally related to the purposes o f 8
U.S.C. § 1101(a)(15)(H)(ii). N or have we been able to identify any other
provision o f the Immigration and Nationality Act to which this interpreta­
tion could be tied.
A second reason for interpreting the regulation as not barring continued
employment o f these classes o f nonimmigrant aliens may be based on the
National Labor Relations Act. Section 7 o f that Act, 29 U.S.C. § 157,
grants to aliens the right to decide for themselves whether they will or will
not engage in concerted activities, i.e., whether, among other things, they
will engage in or honor a strike. If the INS regulation were interpreted to
require the autom atic suspension o f the employment approvals for H-visa
alien employees whenever a labor dispute involving their employer occurs,
this class o f employees would be deprived o f the freedom to decide
whether to engage in these protected activities. In effect, they would be re­
quired to honor the strike. We do not believe that the regulation may be
interpreted in such manner, absent a firm basis o f support in the Immigra­
tion and Nationality Act itself.1 See, Sam Andrews’ Sons v. Mitchell, 457
F. (2d) 745, 748-49 (9th Cir. 1972).
Similarly, we are not aware o f any requirement in the Immigration and
Nationality Act or o f any implementing regulation that a nonimmigrant
who honors a strike and therefore does not work must be deported. The
duration o f each beneficiary’s admission into the United States is condi­
tioned upon the need for his services, up to the length o f time for which
the petition is valid. 8 CFR 214.2(h)(9). As pointed out above, the NASL
petitions are valid for the current NASL season. A player’s going on strike
does not automatically eliminate the employer’s need for his services or
suggest that capable unemployed workers are available in the United
States. Moreover, the striking alien remains an employee o f the struck
1 This interpretation is consistent with the meager prior history o f the application o f the
regulation, under which INS has apparently taken no action against aliens already employed
at the time o f a labor dispute.
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employer within the meaning o f § 2(3) o f the National Labor Relations
Act, 29 U .S.C . § 152(3), and automatically to institute deportation pro­
ceedings against an alien who honors a strike would interfere with the
employee’s rights under that Act to participate or not to participate in the
strike.
Larry A . H am m ond
D eputy Assistant A ttorney General
Office o f Legal Counsel
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