The traditional concept of the student/athlete continues to evolve. Recently, the Dartmouth College men’s basketball team voted to unionize. In the not-too-distant past, the NCAA permitted college athletes to be paid for their Name, Image and Likeness (“NIL”). Restated more simply, college athletes can now receive compensation for their craft and further might soon be able join a union as an employee.

Pulling back a wider lens on the landscape of collegiate athletics in the United States, a rising percentage of college athletes in Division I colleges are international students. These athletes are generally in the United States on the F-1 visa. The basis of this visa is that the player is primarily classified as a student, with the added benefit of being able to participate in sports.

Within the context of the immigration regulations, classification matters. Those foreign nationals attending colleges in the United States are primarily classified as “students” and are issued the F-1 visa. The F-1 visa allows for study and only limited opportunities to work, and generally restricts the student to 20 hours of work on campus when classes are in session. Contrasting this, those foreign nationals in the United States working for their employers are alternatively classified as “employees” and on defined work visas that permit them to both reside and to work.

The movement towards potentially reclassifying students as employees raises questions as to whether this reclassification would negatively impact the entire class of foreign national collegiate players. If foreign student athletes are to be classified as employees, they would no longer be considered students under the immigration regulations and therefore would be ineligible for the F-1 visa they currently hold.

The unique status of the foreign student athlete in the context of the changing landscape of collegiate athletics was highlighted in recent years due to the rise of NIL. While there have been many high-profile deals for collegiate athletes, most foreign national players have been largely watching these deals from the bench due to concerns of the work and compensation restrictions of their F-1 visas.

But while whether to engage in NIL has largely been a choice, it would be arguably problematic for a class of foreign national players to potentially be seen as employees as soon as they arrived in the United States. The impact of NIL and the movement towards re-classifying students as employees underlines the need of Congress and the Department of Homeland Security to consider taking action on a broader scale.

As to NIL, the Student and Exchange Visitor Program which stands as the overwatch for foreign student visa compliance, has indicated that it is monitoring potential introduced legislation and recent court rulings as to college athletes. While the full impact of the Dartmouth case has not been defined, both this case and the ongoing evolution of NIL illustrate how changes in law and policy can have a disparate impact upon the class of collegiate athletes, depending on where they are from.