When Hockey and Immigration Collide
In 2003 the Lewiston MAINEiacs broke new ground and became the first Quebec Major Junior Hockey League team to set up operations in the U.S. Founded in 1969, the Quebec Major Junior Hockey League (QMJHL) is made up of 18 teams based throughout Quebec, the Maritime Provinces and, now, Maine. QMJHL along with the Ontario Hockey League and the Western Hockey League comprise the Canadian Hockey League (CHL) a developmental league for hockey players between the ages of 16 and 20 years who have been identified as prospective professional hockey players and selected through a highly competitive process. The highest level of amateur hockey in Canada and the United States, the CHL is in fact the major source of talent for the National Hockey League (NHL). Over fifty percent of the players in the NHL have played in the CHL. To play in the NHL, players must be at least 18 years old. To play in one of the U.S.-based professional minor hockey leagues with NHL affiliated teams like the American Hockey League, players must be at least 20 years old. Many of the CHL players who ultimately made it to the NHL – like Sidney Crosby, Wayne Gretzky, Ray Bourque, Bobby Orr and Patrick Roy – began in the CHL because they were too young to play in the NHL and/or needed additional time and experience to mature and to develop their skills. Although the majority of CHL players are school age and continue to pursue their education, CHL players are not eligible under National Collegiate Athletic Association rules to participate in hockey at a college or university in the United States because they receive small stipends to help defray some of their costs while playing in the CHL.
According to Matt McKnight, President and Governor of the Lewiston MAINEiacs, the team’s inaugural season in the fall of 2003 was incredibly challenging. In addition to starting up all of the business and hockey operations, the team had to put together a coaching staff, select players and obtain immigration status for most of the players, who were either Canadian or European. In addition, the head coach was also a Canadian citizen who needed a work visa to coach the team. The immigration options for both players and coaches were quite limited and complicated. Fortunately, the head coach had a long and illustrious coaching career in the QMJHL, the NHL and at the elite international level, and consequently qualified for O-1 status as a person of extraordinary ability in their field. The players were another matter entirely.
Where QMJHL players are prospects and for the most part are not yet players who have achieved national or international renown, the only viable immigration option involved the H-2B category for temporary non-agricultural workers coming to perform a position for which the employer has a temporary need involving either a one time occurrence or a seasonal, peak-load, or intermittent need. Although the team’s hockey season clearly met the seasonal-need criteria, the H-2B process presented enormous obstacles including competing for a limited number of annual visas. Serious constraints were also associated with obtaining a temporary labor certification from the U.S. Department of Labor, which made it virtually impossible to complete the process far enough in advance to ensure that the players who made the team would be able to acquire the necessary immigration status by the start of the season. Matt McKnight recalls he did not know if the team would have enough players to start the season right up until the team’s first game. In fact, the following season the team could not schedule home games until October 1st because the annual limitation on H-2B numbers had been reached. Consequently the team was forced to spend the first three weeks of its season playing games and practicing in Canada. Although the Lewiston community had welcomed the team with open arms, the immigration process was not nearly so hospitable.
Help was on the way, however. Noting the difficulty the team had encountered in negotiating the immigration process and the importance of the team not only to the city of Lewiston and surrounding communities, but to the state, Senator Susan Collins sponsored legislation in Congress expanding the P-1 visa category for athletes and entertainers to include individual coaches or athletes performing with teams or franchises located in the U.S. that are part of an international league or association of 15 or more amateur sports teams if: 1) the foreign league is operating at the highest level of amateur performance in the foreign country, 2) participation in the foreign league renders players ineligible, whether on a temporary or permanent basis, to earn a scholarship or participate in the sport at a college or university in the United States under the rules of the National Collegiate Athletic Association, and 3) a significant number of players who play in the foreign leagues are drafted by major league or minor league affiliates of such sports teams in the United States. This legislation (Public Law 109-463, Creating Opportunities for Minor League Professional, Entertainers, and Teams through Legal Entry Act of 2006) was passed by Congress and signed into law in December 2006. It provides the Lewiston MAINEiacs, as well as many other amateur and minor league teams in various sports, the ability to bring in foreign prospects and outstanding players in an orderly and timely manner. As explained by Matt McKnight: “The legislation drafted by Senator Susan Collins, dubbed the ‘MAINEiacs amendment,’ was not only effective in resolving our immigration concerns, but came to the aid of many other organizations and leagues who were facing similar problems utilizing the H-2B visa category for their athletes. It was an exciting opportunity to be consulted in the process of amending the P-1 visa category that now provides our team the opportunity to focus on our core business of recruiting and developing the best available talent, regardless of nationality.”
The Lewiston MAINEiacs’ experience is a good illustration of how difficult it can be for many businesses to navigate the immigration process. It is also an example of how a pragmatic and common sense legislative approach can help solve serious obstacles created by an immigration system that is unresponsive to the marketplace and help create jobs that benefit both a business and a community.
The attorneys at Landis & Arn are available to answer any questions related to U.S. immigration procedures and laws, including questions regarding the process involved with employing foreign nationals.
This article is published with the permission of the Lewiston MAINEiacs Hockey Club.