Sources: Esports orgs break US visa law to save money, government to crack down

Even if Denial wanted to pay their players, they wouldn’t legally be allowed.

Call of Duty's Icon Kevin Hitt · 21 May 2019

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Photo via Activision-Blizzard

Some non-United States citizens that travel to the mainland to compete in esports events may find themselves unable to do so very soon.


Several major esport organizations and players are coming under heavy scrutiny from government entities seeking to enforce proper immigration policy. While there are some esports organizations following proper protocols, unfortunately some do not. Worse, those that do not that also try to subvert the rules may find themselves the target of a federal investigation.


Thus far, it has been relatively easy for esports participants to acquire an Electronic System for Travel Authorization visa (ESTA), especially for those that lived in visa waiver program countries such as Australia, Denmark, Germany, France, the United Kingdom, and others.


However, with an esports boom in both popularity and economic prowess under way that is witnessing revenue figures projected to leap over the $1 billion-dollar mark this year, more people are paying attention. Government immigration services, especially those of the United States, are at the forefront of those paying more attention. This doesn’t bode well for some esports organizations.


Upcomer has learned through sources that there are multiple foreign players participating in the Call of Duty World League, various Counter-Strike: Global Offensive events, and other esports leagues using an ESTA visa while competing in the US.


In fact, in a previous piece by Upcomer, we reported that some of Denial Esports’ former Call of Duty players came forward stating they have yet to be paid their prize winnings and salary for the two months they were employed by Denial.


The players who did not get paid were, in fact, competing on ESTA visas, and because of this, they should not have been participating in the Call of Duty World League at all, due to the salary agreement with the organization. Now, those players may not be able to legally recover any money.


This situation should have never occurred, according to Christine Swenson, a preeminent immigration lawyer in the United States from the Swenson Law Office in Colorado.


“Any foreign national who signs with a US team or agent must have a valid P (alien athletes, artists, entertainers, and their spouses/children) or O visa (possesses extraordinary ability in the sciences, arts, education, business, or athletics) in order to earn a salary or prize money while participating in any sport in the US,” Swenson said. “If an athlete wants to come to the United States to play in a promotional game or other type of limited athletic participation, they may be able to obtain a B-1 visa or use the Visa Waiver Program (VWP) provided that they meet several criteria.”


And that criteria has not been met by most of the players and teams according to the information handed to Upcomer.


“In order to be considered for a B-1 visa (entering the US for business purposes) an athlete and/or his team must be located principally outside the U.S. Secondly, the player and the team must earn income primarily from outside of the U.S.,” Swenson continued. “Third, the team must be of international caliber and must play sports in an international league. Finally, athletes cannot receive a salary from a U.S. source, but they can receive prize money. It should be kept in mind that the athlete must be from one of the participating countries as a prerequisite for VWP eligibility.”


Some esports organizations in the United States are signing foreign players and not acquiring the proper visa. More than a few esports organizations have tried to get around the rule by either creating a verbal agreement stating they would suspend the payment of salary while a player or team participated in an event, or by not saying anything at all. This is no small matter, according to Swenson.


“Verbal suspension of a base salary, even with consent from the employee, can be considered human trafficking under the forced labor provision,” Swenson said. “Additionally, if an organization shows a pattern and practice of trying to evading visa issues, that could very well activate enhanced sentencing for those found guilty.”


But why would esports organizations try to get around such rules and let their players compete on an ESTA visa? Simply put, money.


A P-1 visa costs anywhere between $8,000 to $10,000 taking into account lawyer and filing fees. An ESTA visa costs $14.


The penalties associated with getting caught using the wrong visa are tremendous. As mentioned, an esports organization that knowingly allows its players to break visa rules can get hit with fines and even jail time. The players could also bear the burden of the consequences by being banned for life from entering the United States.


Swenson doesn’t understand why esports organizations would try and cheat the system.


“Getting caught and being hit with hefty fines and maybe even prison time because you wanted to save money here and there? Just seems absurd. Why throw your company or players away like that? Rest assured the government is looking into this more and more every day.”


Upcomer held a short question and answer period with Swenson about some of the situations that may occur regarding visas and a players’ lawful ability to participate in events. Here is what she had to say.


If I am an alien signed to a contract from another country am I able to receive a salary, prize money, etc. for participating in events in the United States?


“A foreign national can enter the US for a limited time under a B visa to participate in tournaments. The general rule is “[p]rofessional athletes, such as golfers and auto racers, who receive no salary or payment other than prize money for his or her participation in a tournament or sporting event” can do so on a B visa. 9 FAM 402.2-5(C)(4)(a), emphasis added. She can only earn prize money from the tournament. According to the Department of State’s Foreign Affairs Manual, “[t]he income of the foreign-based team and the salary of its players are principally accrued in a foreign country.” 9 FAM 402.2-5(C)(4)(b)(2). However, this gets complicated if the foreign-based team is only paying its players a salary while they are competing in a tournament located in the US. In my professional opinion, doing this would be a violation of the VWP. We need to know where and how the team is obtaining its income in order to pay its players. The consequences are severe: getting it wrong could subject players to deportation, bars from re-entering the US, and possible denial of future visas they might otherwise qualify for. This is why it is so important to work with a immigration attorney who specializes in representing athletes and teams.”


Am I legally able to receive the prize money myself and my team won? (assuming the whole team is on ESTA)


“If the athlete is from a VWP-participating country and does not receive a salary from a US based company, then they can only earn prize money from the tournament they participated in and not violate immigration laws.”


What are the differences between what an alien can and cannot do on ESTA vs. P1?


“The Electronic System for Travel Authorization (ESTA) is an online registry designed for those nationals of countries which participate in the Visa Waiver Program (VWP). ESTA is controlled by Customs and Border Protection for its convenience and does not guarantee anyone entry into the US. The maximum allowable stay for a VWP visitor is 90 days. This cannot be extended. Anyone violating VWP’s terms or overstaying that period is subject to immediate deportation. To utilize the VWP, foreign nationals are waiving their rights to contest any deportation proceedings. Under this White House administration, the Department of Homeland Security has dramatically increased its enforcement of those who are overstaying their 90-day period.


“In addition, with the exception of what was discussed above regarding competing in tournaments and earning only prize money, one cannot work while in the US under the VWP and cannot change their status to another visa. Abusing the VWP will cause problems for the individual and, depending on how egregious and widespread abuse is, such abuse could jeopardize the entire program.


“In comparison, the P visa is designed for athletes, artists, and entertainers to enter the US alone or as part of a team to compete. Multiple criteria must be met through objective evidence. The length of time an athlete can stay in the US is much longer than the 90-day max under the VWP. The initial grant for a P visa can be as short as the length of a tour or tournament or as long as three years. This visa can also be renewed and extended. The P visa is best for those who are earning a salary from their team, especially when some, if not most of that team’s income is being derived from the very events the team is participating in.”

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