Ilya should have lawful permanent resident status in the U.S. (a "green card") by Tuna Melt time : A treatise in two parts by bert
Treatise Part 1: Background & Ilya's Likely U.S. Immigration Status Summer 2010-Summer 2017
Do you want to learn about the horrors of a small part of the hydra that is the U.S. immigration system by reading about our fictional friend Ilya Rozanov? Then this is the post for you!
In the name of taking stuff from Heated Rivalry way too seriously as we wait for Season 2, let's talk about Ilya Rozanov's possible immigration statuses in the U.S. during the timeline of Heated Rivalry. I am not a lawyer (please do not take anything I say as legal advice!!). I'm basing what I say in here on having gone to a U.S. law school, having taken several U.S. immigration law classes during the first Trump administration, and internet research (links where relevant). However, the U.S. immigration system is deeply complicated, ever-changing, and deeply unjust and I am far from an expert.
I'll give my T.O.C. above the Read More:
Background: A primer on temporary v. permanent resident status in the U.S. (Treatise Part 1 of 2)
If Ilya had received good legal advice, here's what his likely U.S. immigration statuses would be during the Heated Rivalry timeline: he could have permanent resident status (a green card) by around October 2015. (Treatise Part 1 of 2)
Given Ilya could have a green card by 2015, what should we make of Ilya's claims at the cottage in July 2017 that his status in the U.S. is precarious? [J/K I'm gonna make this part two of the treatise and post it later because I'm old and tired and longwinded. I'll add a link when I do.] (Treatise Part 2 of 2)
I'm a long-winded piece of shit and I can't be tamed (am I procrastinating writing my dissertation, shhhhhhh I can't hear you), so I include a TL/DR at the beginning of each large section.
1. Background: A primer on temporary v. permanent resident status in the U.S.
TL/DR: Temporary resident status is temporary, for a particular purpose. Lawful permanent resident status/green card allows you to live in the U.S. forever as long as you don't get in certain kinds of serious trouble. You have to have permanent status for 3-5 years before you're eligible to apply for citizenship. You only get a U.S. passport with citizenship.
Non-citizens (because I will not be using the technical legal term "aliens") can hold formal legal status in the U.S. in roughly two different categories: temporary resident status and lawful permanent resident status. (Undocumented people fall into neither of these two categories because they do not hold formal legal status. Undocumented people can apply for formal legal status in the U.S. and have a sort of nebulous formal legal status in the meantime--such as while their claim for asylum is adjudicated--but that's beyond the scope of this silly Heated Rivalry post.)
Temporary resident status
There are many different categories by which someone can achieve either residence status (though not as many as right-wing talking points generally suggest). Generally speaking, a temporary resident of the U.S. will enter on a non-immigrant visa for a particular purpose and have permission to stay until that purpose is completed or the allotted time runs out. The temporary period could be as short as a tourist trip to Disneyland or several years in length (including a renewal or two--think student visas or the famous H1-B Skilled Worker visas).
There is a precarity to temporary resident status. If you graduate from school or lose your H1-B job, you are technically required to leave the country within a certain short period, unless you find another source of legal status.
However, it is not uncommon for people to move from one temporary resident status to another. For example, you might lose your temporary student status upon graduation and start your new job as an H1-B skilled worker.
You might also have temporary resident status and then gain lawful permanent resident status ("get a green card"). For example, you might fall in love on a trip to Las Vegas on a tourist visa and get married that weekend to a U.S. citizen, which entitles you to lawful permanent resident status. (There are many more-realistic scenarios that won't result in a bunch of uncomfortable trips by DHS agents suspicious you are in a fraudulent "green card marriage" due to the short timeline that would only happen in a rom-com.)
Lawful permanent resident status ("green card")
Lawful permanent resident status is a much more stable status (Though not completely stable--for example, Mahmoud Khalil had lawful permanent resident status at the time of his immigration arrest and is still legally fighting the government's attempts to deport him.). You can gain permanent status through employment, but you do not need to keep the same job once that status is achieved (There are some complications I'm ignoring here.). Permanent resident status can be renewed indefinitely. However, permanent residents can still be deported for a variety of reasons, most involving criminal convictions.
Citizenship
Once you have held lawful permanent residence status for 3-5 years, you can apply for U.S. citizenship. Some people choose to apply right away, others to wait longer. Some people choose instead to renew their green card every 10 years indefinitely. Some benefits of citizenship over permanent resident status: can't be deported, can vote, eligible for a U.S. passport.
2. If Ilya had received good legal advice, here's what his likely immigration statuses would be during the Heated Rivalry timeline: he could have permanent resident status (a green card) by October 2015.
TL/DR: Ilya would have begun on the Boston team on a P-1A temporary visa that allowed him to live in the U.S. so long as he kept playing professionally. By June 2014, when he has won MVP as Captain of the Stanley Cup-winning team, he would have a very strong case to apply for permanent resident status on an EB-1 Extraordinary Ability visa. With estimated time for application prep & government processing, it would be reasonable for him to have achieved permanent resident status (green card) by October 2015. Once he has that permanent status, he can keep it even if he leaves hockey (as long as he doesn't do anything to get himself deported). He would be eligible to apply for U.S. citizenship 5 years later.
Note: a good deal of the NHL-specific information for this section comes from a 2013 article by a law firm (which still doesn't constitute legal advice but provides a very helpful framework).
Summer 2010: Ilya joins Boston with temporary resident status on a P-1A employment visa
Ilya almost certainly would have entered the U.S. in Summer 2010 on a P-1 employment visa based on moving to the U.S. to play on the Boston team, giving him temporary resident status. That visa lasts up to 5 years before renewal is required. There used to be a 10 year total maximum on this visa, but a change in 2009 allowed it to be renewed indefinitely. Ilya (or Ilya's immigration lawyer I pray exists, or at least the Boston team's immigration lawyer) would have known this in March 2009 before the June 2009 draft.
More specifically, he would have a P-1A visa for athletes, in the professional athlete category, as stated on the U.S. government page:
"Professional Athletes
You must be coming to the United States to be employed as an athlete by:
A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10 million per year. The association must govern the conduct of its members and regulate the contests and exhibitions in which its member teams regularly engage; or
Any minor league team that is affiliated with such an association."
Clearly Boston would qualify.
June 2014: A change in circumstances opens up the possibility of applying for lawful permanent resident status with an EB-1 (Extraordinary Ability) visa
In a dangerous contact sport, temporary employment visas involve precarity. "The ability of a foreign-born player to remain in the United States is directly tied to the maintenance of the P-1A visa. Restated, if the foreign-born professional hockey player is no longer playing, the P-1A visa will be invalidated, the player will effectively fall "out of status," and the player would otherwise have to leave the United States. Recognizing the potential devastation in the event that a player would otherwise have to leave the United States, many NHL players and franchises are choosing to initiate the Permanent Residence process (the "Green Card") for those players on the active roster choosing to make the United States their permanent home after their playing days."
A good immigration lawyer would advise a star player like Ilya to apply for longterm permanent resident status through an EB-1 (extraordinary ability) visa. This visa can be used for people who work in science, art, education, business, or athletics and who will be pursuing that line of work in the U.S.
The 2013 article notes two ways professional hockey players can try to prove they meet the extraordinary ability threshold for this visa, which they call "the NHL All-Star" and "the NHL Role Player/Journeyman," respectively. The article notes specifically that mere membership on an NHL team is insufficient.
It is possible that Ilya could have used just the NHL Role Player/Journeyman strategy to apply for the EB-1 before his MVP/Stanley Cup win in 2014. However, I will not analyze this possibility. In my (relatively uneducated) opinion, by the time he's built up enough of the elements to make a good Journeyman case, it'll already be Summer 2014 or close to it.
Both strategies for the EB-1 require proving that the applicant has "extraordinary ability": "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor."
NHL All Star Strategy
Requirements: "a one-time achievement (that is, a major, internationally recognized award)". In the athletics category, the U.S. government uses the example of an Olympic Medal.
Ilya's Argument: As we know from the text, Ilya has not won an Olympic medal. However, the 2013 article indicates that "play on a Stanley Cup-winning team" could qualify. I suspect this would be an especially strong argument given that Ilya was the Captain of the Stanley Cup-winning team and won League MVP (and a special private performance from Shane Hollander) that same year.
NHL Role Player/Journeyman: Alternate Theory
However, a competent legal team would always offer an argument for the less prestigious alternative. This is especially true in an immigration visa petition, which involves considerable "discretion" by individual decisionmakers (read: the U.S. immigration system is an inequitable hellscape).
Requirements: "evidence of ... 3 of the 10 listed criteria below (or comparable evidence if any of the criteria do not readily apply):
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
Evidence of your membership in associations in the field which demand outstanding achievement of their members
Evidence of published material about you in professional or major trade publications or other major media
Evidence that you have been asked to judge the work of others, either individually or on a panel
Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
Evidence that your work has been displayed at artistic exhibitions or showcases
Evidence of your performance of a leading or critical role in distinguished organizations
Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
Evidence of your commercial successes in the performing arts"
I have bolded the criteria I take to be potentially relevant to a professional athlete.
The government regulations also acknowledge that, "If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility."
Ilya's Argument
A. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence:
Definitely one of the criteria where Ilya's case should be strong.
Ilya's 2014 MVP Award: The 2013 article notes, "Any internal franchise awards presented to a player (such as the Best Defensemen Award, Most Valuable Player Award) have also been proven as useful evidence to establish that a player should be considered as elite in his position."
Ilya being on a Stanley Cup-winning team: This entire argument only matters if such membership wasn't enough on its own to constitute a major award, so presenting it as at least a lesser prize seems legitimate. The U.S. government explicitly acknowledges that team awards can count towards this criterion: "In general, qualifying awards include team awards where each member receives a trophy, certification, or medal; appears on the podium or stage; or is specifically named in the awarding organization’s announcement of the award selection."
Other individual League awards Ilya may have won over the years: (I did a bit of research on NHL awards on Wikipedia) I think especially possible are the Art Ross Trophy ("Awarded to the player who leads the league in total points at the end of the regular season"), Conn Smythe Trophy ("Awarded to the most valuable player for his team in the playoffs."), Ted Lindsay Award ("Awarded to the NHL's outstanding player as selected by the members of the NHL Players Association"), Maurice "Rocket" Richard Trophy ("Awarded to the top goal scorer in the regular season"). Based on all the media vibes about him, I'm assuming Ilya is not winning any sportsmanship-related awards.
Other team League awards that Boston may have won over the years: definitely the Eastern Conference champion trophy in 2014; perhaps the President's Trophy in one or more years ("the club finishing the regular season with the best overall record (based on points").
Ilya's membership on (and captaincy of ??) the Russian Juniors teams that came in first and second respectively. "While limitations on competitors can be a relevant factor, in some instances the evidence may establish that an award or prize is nationally or internationally recognized despite being limited to youth, amateur competitors, or early-career professionals."
B. Evidence of your membership in associations in the field which demand outstanding achievement of their members
Ilya has a case under the "comparable evidence" provision for this criterion specifically contemplated by the government: "Election to a national all-star or Olympic team might serve as comparable evidence for evidence of memberships in 8 CFR 204.5(h)(3)(ii)."
Membership on and captaincy of the Russian Olympic Team
Possibly repeated selections for League All-Stars (it would presumably matter that he wasn't selected by a fan vote but the other relevant selection mechanism)
Potentially membership on (and captaincy of?) the Russian Juniors team
C. Evidence of published material about you in professional or major trade publications or other major media
Another criterion for which Ilya's case should be especially strong.
RIP to the poor paralegal who had to go through all those Man in the Crease transcripts. Actually that podcast probably doesn't have the listenership to be super significant; the feds want major publications: "USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication.... [R]elevant factors include the intended audience (for professional and major trade publications) and the relative circulation, readership, or viewership (for major trade publications and other major media)").
This might also be a good place to talk about him being the first round draft pick (which isn't technically a prize or award but is remarkable and was surely much-discussed in the media at the time).
D. Evidence that you have been asked to judge the work of others, either individually or on a panel
I don't know enough about hockey to know the likelihood of this, but the 2013 NHL-specific article mentioned it as a possible criterion for NHL players, so there you have it. Feel free to let me know if this kind of thing seems likely for Ilya and in what context.
E. Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
What are the odds that some move or tactic has been named after Ilya by this point? Is that the kind of things that happens in hockey? That would be pretty fun.
I suspect this could also be a place to make a "comparable evidence" argument based on Ilya's career statistics and comparisons of them to other past and current NHL players. It's possible stupid Hollander is beating him on some of them, but the visa doesn't require being number one in the field, just in the top (top 1% of the field is a good estimate). Second is still in the top 1%.
What would constitute evidence of these things? The U.S. government says: "Examples of relevant evidence include, but are not limited to: Published materials about the significance of the person’s original work; Testimonials, letters, and affidavits about the person’s original work"
Media coverage, particularly specialist media (rather than the high-audience media emphasized for Criterion C.) would probably be helpful here. Ilya's lawyer could also seek sworn written statements from various "experts," such as professional sports analysts, famous retired players, famous coaches, famous contemporaries (Imagine the look on Ilya's face when his lawyer says they should ask Shane Hollander whether he would be willing to submit a letter; after all you're in all these headlines together.)
F. Evidence of your performance of a leading or critical role in distinguished organizations
One possibility listed by the government: "Leading or critical role for a distinguished organization or a distinguished division of an institution or company, as explained in detail by the director or a principal investigator of the relevant organization or division."
Surely becoming Boston's captain and leading them to Stanley Cup victory should count toward this (as well as his year(s?) of being Alternate Captain). Because the burden of proof in immigration law is so stacked against the immigrant, the petition will likely need to include a whole treatise on the history and significance of the Boston team. As well as witness statements from the coach/owner/manager and perhaps even some other players about Ilya's leadership specifically (Now I'm just imagining the poor lawyer who has to go over Marley's witness statement before it's ready to submit. "I really don't think that quoting Mr. Rozanov screaming 'Fucking fuck San Francisco' is going to be the most helpful example of his motivational leadership style. Does anything else come to mind?")
G. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
This will require a lot of data analysis for Ilya's immigration legal team. But I assume he will in fact command a fairly high relative salary and that this will be another of his strong criteria.
If my brief googling didn't lead me wrong, Ilya's rookie contract would have been three years and thus he would have re-signed with Boston starting with the 2013-14 season, presumably with something of an increase? I don't know how the existence of team caps would bear. Happy for any info from those who know better. But I assume that his pay would be high enough (and others' salaries public enough) that he would clearly be in the top of the pack in the NHL at this point.
Final Merits Determination
It is not enough for Ilya to show that he meets the initial threshold for consideration (having a single big achievement or meeting 3/10 of the minor criteria): "Assess whether evidence meets regulatory criteria: Determine, by a preponderance of the evidence, which evidence submitted by the petitioner objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as "regulatory criteria")."
He must also show he is extraordinary "under the totality of the circumstances": "In the second step of the analysis, the officer should consider the petition in its entirety to determine eligibility according to the standard. To establish eligibility, the petition must demonstrate that the person has sustained national or international acclaim and that their achievements have been recognized in the field of expertise, indicating that the person is one of that small percentage who has risen to the very top of the field of endeavor. The officer applies a preponderance of the evidence standard when making this determination."
"Totality of the circumstances" is a common legal term used for analyzing a situation holistically, allowing for a large amount of discretion by the decisionmaker. Which sucks in an immigration context because you are basically putting your whole life in the hands of some faceless bureaucrat to decide based on vibes. Have I mentioned fuck the U.S. immigration system?
Anyway, if Ilya's legal team does the good job he's paying them to do and they assemble the kinds of evidence discussed above that will be relevant to his case, it's surely a slam dunk. Everything we know from the books/show indicate he's one of the top players in professional hockey in the world.
A counterfactual earlier EB-1 application: What if Ilya had been Rookie of the Year?
In an interesting twist, if Ilya had won Rookie of the Year in 2011 or medaled in the February 2014 Olympics, he would have had a good case to apply for the EB-1 earlier. As already noted, being on an Olympic medal-winning team could be sufficient for the EB-1 all on its own. Rookie awards in major sports leagues are specifically mentioned by the U.S. government as counting towards meeting the lesser awards criterion.
The show doesn't present these possible reasons for Ilya being upset at missing both these opportunities, but I think they could be an interesting additional head canon for Ilya's hard feelings at losing these things to Shane in particular (unclear if Team Canada got gold or silver at the 2014 Olympics in the universe of the show, but they clearly medaled and Russia didn't). Shane has Canadian citizenship whether or not he wins Rookie of the Year, whether or not he medals. These things don't affect his ability to have a secure immigration status in the country he lives in. (Since this is the piss-on-the-poor website, I want to be so clear that I don't think Shane should feel bad about this or is criticizable for this, merely that it is a potential point of emotional difficulty for Ilya, just as their contrasting family situations seem to be.)
July 2014 - October 2015: Estimated Application Preparation to Green Card Timeline
A. July 2014: Case Preparation Begins
This is a lengthy step. It involves a lawyer (or lawyers) interviewing Ilya and preparing the detailed application. Not only will Ilya need official copies of all sorts of things (anything originally Russian will probably need a notarized translation), but a ton of original evidence must be researched and compiled.
Because everything is terrible, the burden of proof is always on someone applying for immigration benefits, so the application has to make a case for various things that might seem obvious or easy to find out. Examples: the importance of various NHL awards, the Boston team's place as a "distinguished organization," how Ilya's salary compares to other NHL players' (relativizing with cost of living for various locations), comparison of Ilya's statistics to other players (past and present), even the mainstream importance of various news sources he is mentioned in. As already noted, some of this will require detailed statistical analysis. Someone will need to survey his presumably broad media coverage and compile sources. His team will also need to solicit and do multiple rounds of editing on sworn statements from his employers, prominent hockey experts, possibly other players.
This is a ton of work. It will cost a lot of money to have a good legal team do this. All estimates I've seen online have said this will take AT LEAST 6 months. Ilya's rich and can afford good legal help to prioritize his case so I'm just gonna say 6 months.
B. Early January 2015: I-140 Petition for EB-1 Visa Filed with Premium Processing
Ilya would file his I-140 Immigrant Petition for Alien Workers with USCIS (acronym pronounced "You-Sis") (U.S. Citizenship and Immigration Services). He would surely pay the extra $1225 for premium processing, which guarantees a response to this petition in two weeks. (The median processing time for the federal government Fiscal Year 2015 (Oct. 2014-Sept 2015) was 5.2 months for regular, non-premium processing.)
For our purposes, I'm assuming that Ilya's application is a slam dunk and that he does not receive a Request for Evidence (RFE) that will delay him further months as his legal team gathers even more evidence and has to wait again for it to be evaluated by USCIS.
There's another important step that Ilya gets to skip with the EB-1 visa, one that applies to most employment-based immigrant visas to the U.S.: PERM processing (Permanent Labor Certification). This requirement applies to the EB-2 and EB-3 employment-based immigrant visas, and is far more stringent than the requirements for temporary employment based visas such as H1-B. The processing time also adds 6 to 24 months to the overall process, largely because "The employer needs to demonstrate that there is no qualified U.S. worker willing to do the job at a comparable wage, and needs to have made a good-faith effort to recruit a U.S. worker."
C. Late January 2015 Step One: I-140 Approval and Visa Eligiblity
Approval of the I-140 Petition means Ilya is eligible for a permanent resident visa, but it does not mean that he will be issued one right away. Many permanent resident visa categories have numerical cutoffs for how many of that kind will be issued per year, to people of various nationalities. Every month, the U.S. State Department publishes the VISA Bulletin. There tend to be large backlogs in many categories for those from several countries.
Let's take a look at the Visa Bulletin from January 2015 as an example. Ilya's EB-1 visa is employment-based, first-level preference. He is not from mainland China, India, Mexico, or the Philippines, so he uses the first column for the rest of the world. 'C' means "current," which means there are visas currently available for all qualified applicants at this time.
The dates listed in some spots on the chart are "Priority Dates." Your priority date is the date your permanent resident visa petition is approved. You can see that an EB-1 is especially valuable, as there are visas available for people even from origin countries which often have a visa backlog in other categories. For someone from China or India, qualifying for an EB-1 over an EB-2 visa can get you into the U.S. (or changed from temporary to permanent status) years, even decades faster.
I'll illustrate with a hypothetical. If Ilya were Indian and applying for an EB-2, he would first have to wait for the PERM process to complete (6-24 months) for his petition to be approved. That would give him his priority date: let's say July 1, 2015 at the earliest. And then he would need to wait until the 2nd/India category read 01JUL15. The entry is 15FEB05 in January 2015. And please don't think that these things reliably advance month by month as time passes--sometimes faster, sometimes slower.
Remember this the next time someone tells you it's "so easy" to immigrate the U.S. "the right way."
I'm also including the family-based immigration visa bulletin from January 2015, to show just how fucked up the system has been (and continues to be). An unmarried person with Mexican nationality whose U.S. Citizen parent applied for their permanent resident visa (F1 category below) in September 1994 would not be eligible for that visa until January 2015. That is twenty goddamn years. And they would have no way of knowing in the meantime how long it was going to take. Literally fuck the U.S. immigration system.
D. Late January 2015 Step Two: Begin Processing of I-485 Application to Register Permanent Residence or to Adjust Status
Anyway, Ilya's priority date is current and his permanent resident status (green card) can begin processing right away.
In fact, by paying for premium processing of his I-180 Visa Petition, he was also eligible to submit his I-485 Application to Adjust Status at the same time. I'm assuming his legal team would have done this given the strength of his case.
That means that the government would immediately begin processing his I-485 Application upon approving his I-180. To get his green card/permanent resident status, Ilya will be applying for an adjustment of status because he is already living in the United States legally (thanks to his P-1A temporary resident status). His status will be "adjusted" from temporary to permanent.
[The alternative for receiving a green card is to apply while living outside the United States to a U.S. embassy/consulate and then enter once that permanent status is granted.]
It can be difficult to travel internationally while one is waiting for an adjustment of status, but presumably there are methods/exceptions/paperwork that professional athletes use that specialty lawyers are well-practiced in. (If you have specific knowledge either about the difficulties or about possible solutions I'd love to hear!)
In FY 2015, the median processing time for an employment-based I-485 was 6 months. Let's be modest and say it took from mid-January until October, about 9 months. It could be even sooner, however.
E. October 2015: Ilya has lawful permanent resident status in the U.S. ("a green card")
Ilya can live and work in the United States as long as he wants, provided he does not become deportable (which usually occurs through criminal convictions or some kind of misrepresentation in immigration paperwork), leave long-term, or fail to renew it every ten years.
However, he still has only a Russian passport that he must renew. He could presumably do this on a summer visit to Russia or at a Russian embassy/consulate in the U.S. (several consulates closed in 2016/17 but not all). While presumably these things would be made relatively easy and quick for Ilya given his fame and money, having to renew one's national passport and being unable to travel internationally in the meantime is a common and precarious experience for many non-citizens living in the U.S.
A U.S. passport would only come with U.S. citizenship, which he would be eligible to apply for 5 years later, in 2020.
To come in Treatise Part 2 (which I will link here once it's written):
3. Given Ilya could have a green card by 2015, what should we make of Ilya's claims at the cottage in July 2017 that his status in the U.S. is precarious?
