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 North American Soccer League 

(NASL) may lawfully continue to work in the United States notwithstanding a strike called by the North American Soccer League Players Association, 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 of the Immigration and Naturalization Service (INS) neither 

bar this class of alien workers from continuing to work nor require their 

deportation if they honor or refuse to honor the strike.

Under the Immigration and Nationality Act, the term “ immigrant” 

means every alien except an alien who falls within one of a number of 

specific classes of nonimmigrants set forth in 8 U.S.C. § 1101(a)(15). Included among the classes of 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 of abandoning (i) who is of distinguished merit and 

ability and who is coming temporarily to the United States to 

perform services of an exceptional nature requiring such merit 

and ability * * *; or (ii) who is coming temporarily to the 

United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country * * *. [8 U.S.C. § 1101(a)(15)(H).]

The Act provides that the “ question of importing any alien as a nonimmigrant under § 1101(a)(15)(H) * * * shall be determined by the

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Attorney General, after consultation with appropriate agencies of the 

Government, upon petition of the importing employer.” 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 understand that a few players of distinguished merit and ability may have been 

admitted pursuant to 8 U.S.C. § 1101(a)(15)(H)(i)(H-l aliens).

When an employer’s petition has been approved, the alien beneficiary 

may be admitted into the United States to work for the employer. The 

authorized period of his admission is governed by the period of 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 involving a work stoppage or layoff of 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 suspended while such strike or other labor dispute is in progress.

Because the NASL’s petitions have already been approved for the duration of the NASL season, the question is whether the approval of employment 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 of an alien as a 

nonimmigrant “ shall be for such time and under such conditions as the 

Attorney General may by regulations prescribe.” Such a regulation must, 

however, be rationally related to the purposes and ends of the Immigration and Nationality Act. Cf., Fook Hong Mak v. INS, 435 F. (2d) 728, 

730 (2d Cir. 1970).

We understand that INS has no information regarding the original purpose of the regulation, and that there is no helpful history of application 

of 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 of the Act, at least as applied to H-2 aliens. H-2 

aliens may only be admitted “ if unemployed persons capable of performing [the requested] service or labor cannot be found in this country.” It 

could, in general, reasonably be concluded that persons on strike are 

capable of performing services for the struck employer, or at least that the 

requisite determination 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 commencement of the strike, 8 CFR 214.2(h)(10) merely gives particular content to the statutory requirement.

We have serious doubt, however, that the regulation may properly be 

interpreted to require the automatic suspension of the employment approval of nonimmigrant aliens who are already employed as beneficiaries 

of an approved petition filed under 8 U.S.C. §§ 1101(a)(15)(H) and 

1184(c) at the time of the strike or other labor dispute. Any such aliens in 

the H-2 category were presumably admitted after a finding that 

unemployed workers capable of performing the duties could not be found 

in this country. The mere existence of a strike or other labor dispute does 

not suggest that capable unemployed workers can be found, thereby warranting suspension of approval of the alien’s employment. The automatic 

suspension of work approval upon the occurrence of a strike or other 

labor dispute therefore would not be rationally related to the purposes of 8 

U.S.C. § 1101(a)(15)(H)(ii). Nor have we been able to identify any other 

provision of the Immigration and Nationality Act to which this interpretation could be tied.

A second reason for interpreting the regulation as not barring continued 

employment of these classes of nonimmigrant aliens may be based on the 

National Labor Relations Act. Section 7 of 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 automatic suspension of the employment approvals for H-visa 

alien employees whenever a labor dispute involving their employer occurs, 

this class of employees would be deprived of the freedom to decide 

whether to engage in these protected activities. In effect, they would be required to honor the strike. We do not believe that the regulation may be 

interpreted in such manner, absent a firm basis of support in the Immigration 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 of any requirement in the Immigration and 

Nationality Act or of any implementing regulation that a nonimmigrant 

who honors a strike and therefore does not work must be deported. The 

duration of each beneficiary’s admission into the United States is conditioned upon the need for his services, up to the length of 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 of the struck

1 This interpretation is consistent with the meager prior history of the application of 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 of § 2(3) of the National Labor Relations 

Act, 29 U.S.C. § 152(3), and automatically to institute deportation proceedings 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.

L a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office o f Legal Counsel

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