Estimated reading time: 12 minute(s)

This week, the best golfers from around the world will tee off at the hallowed Augusta National Golf Club for what will be perhaps the most peculiar edition of The Masters, with it having been delayed more than half a year due to the ongoing Wuhan coronavirus outbreak. To commemorate the occasion, I will examine golf’s Masters in a way that only The New Leaf Journal can. Here, you will not find a detailed breakdown of Tiger Woods’s chances of repeating his triumph at the 2019 Masters – although I will be watching the tournament with interest. Instead, I will example a different golfing Masters, Margaret Ann Masters, the beneficiary in a 1969 immigration precedent decision, the Matter of Masters.

Who is Margaret Ann Masters?

Margaret Ann Masters, born in 1934, is a retired professional golfer from Australia. Known as Margie, she was the first Australian golfer to earn membership on the LPGA Tour, doing so in 1964. Ms. Masters was the 1965 LPGA Tour Rookie of the Year and won an LPGA event in 1967. She consistently featured in the LPGA rankings during the latter half of the 1960s and early 1970s.

The Golf Compendium recounts an interesting anecdote from Ms. Masters about being the lone Australian on the LPGA Tour at the time, told in 2013:

It was nice being the first Aussie on their tour. They kept asking me about kangaroos. I got so sick of it I told them they used to deliver the mail which they carried in their pouches. But people were so good to me and I made some fabulous friends.

Margie Masters, quoted in Golf Compendium

What does Ms. Margie Masters Have to Do With U.S. Immigration?

The Golf Compendium notes that Ms. Masters “remained in America” after retiring from LPGA competition in 1979. Neither this source nor the other sources, however, explain how Ms. Masters became a permanent resident of the United States. As we will find, her immigrant visa petition led to a very significant new immigration precedent that affected many other cases involving foreign athletes, and still holds importance more than five decades later.

I offered a general overview of immigration precedent decisions in the context of immigrant visa petitions in an earlier article on the Matter of Great Wall, 16 I&N Dec. 158 (Acting R.C. 1976). I examined a precedent in the context of deportation proceedings in a separate article.

How Do We Know About Ms. Masters’s Petition?

Ordinarily, the details of a petition for lawful permanent resident status – commonly signified by a “Green Card” – would not be public knowledge. In the 1960s, immigrant visa petitions were decided by officials in the former Immigration Naturalization Service (“INS”). In very rare cases, those decisions were published to serve as precedents, establishing binding rules for adjudicators in other cases. I discussed the concept of a precedent decision in an earlier article.

On January 22, 1969, an INS District Director decided Ms. Masters’s visa petition application – but, unlike the vast majority of similar decisions, the Director’s decision was designated as precedent and selected for publication as the Matter of Masters, 13 I&N Dec. 125 (D.D. 1969).

Before continuing, one may note after inspecting the decision that it at no point uses Ms. Masters’s first name. How can we be sure that the petition beneficiary in Matter of Masters was Ms. Margie Masters? There are two reasons that we can be sure. Firstly, the District Director noted that Ms. Masters “is a citizen of Australia, born October 24, 1934, in Australia.” Wikipedia and the LPGA Tour website both list Ms. Masters’s birthday as being October 24, 1934. Secondly, the District Director explained that Ms. Masters was a professional golfer on the LPGA Tour. Taken together, the evidence in record clearly and beyond doubt establishes that the beneficiary in Matter of Masters was Margie Masters.

If that evidence was not enough, however, Ms. Masters has discussed the precedent decision herself. We will examine Ms. Masters’s thoughts on the decision in the last section of the article.

Analyzing Matter of Masters, 13 I&N Dec. 125 (D.D. 1969)

Top of the District Director precedent decision in the Matter of Masters, 13 I&N Dec. 125 (D.D. 1969).
Matter of Masters, 13 I&N Dec. 125 (BIA 1969).

In the following sub-sections, we will work through the short Matter of Masters decision. The short decision begins on page 125 of volume 13 of the Administrative Decisions Under Immigration & Nationality Laws and concludes on page 127. I will provide page citations while discussing the decision. For those of you who are inclined to follow along with my discussion, you can access the Government PDF of the Matter of Masters, 13 I&N Dec. 125 (BIA 1969) here.

Ms. Masters’s Immigrant Visa Petition

Ms. Masters was the beneficiary of an immigrant visa petition filed under the former section 203(a)(3) of the Immigration and Nationality Act (“INA”). 13 I&N Dec. at 125. The Board explained that former INA 203(a)(3) was available to two categories of aliens: “members of the professions” or “qualified immigrants … who because of their exceptional ability in the sciences or arts, will substantially benefit prospectively the national economy, cultural interests or welfare of the United States.” Id.

Ms. Masters’s case hinged on whether being a professional golfer fell in the ambient of the term “arts” in former section 203(a)(3) of the Act. While the term “profession” was, and still is, defined in section 101(a)(32) of the Act, the term “art” was not defined in the INA. The Director explained on pages 125-26 why professional golf was not a “profession” as contemplated by section 101(a)(32), which included, but was not limited to, “architects, engineers, lawyers, physicians, surgeons and teachers…” The Director noted that each of the “professions” ordinarily “requires the successful completion of a course of education on the college or university level, culminating in the attainment of a specific degree or diploma.” Because being a professional tournament golfer depended on physical ability, training, and experience instead of the attainment of a diploma or equivalent specialized experience, the Director held that professional tournament golf was not a “profession.”

Defining “Art” in Former Section 203(a)(3) of the Act

The Director relied upon Webster’s New Collegiate Dictionary to define the term “science” and summarily conclude that golf did not fall within the scope of “science,” as it was used in the Act. What then of art? The Director found that “art” was defined in the dictionary as “[s]kill in performance acquired by experience, study, or observation; knack.” Id. at 125. The Director also referred to Fowler’s Modern English Usage, which included “in the definition of artiste, a professional singer, dancer, or other public performer and states that when an artiste makes his occupation into a fine art, he becomes an artist.” Id.

Professional Tournament Golfers May Be Included Under “Arts”

“It has been determined that professional tournament golfers are basically entertainers and may be included within the arts, in the sense that the term is used in section 203(a)(3) of the Act, as amended, if such golfers have the exceptional ability required by that section.” Id. With that, the Director concluded that professional tournament golfers such as Ms. Masters could qualify for classification under former section 203(a)(3) of the Act, provided that the evidence in record established that they were of exceptional ability. This decision, of course, would apply to other professional athletes, not only golfers. Regarding golfers specifically, the Director wrote that “[p]rofessional tournament golfers entertain thousands of paying spectators at golf courses and literally millions of viewers who watch tournament action on television during weekends.” One might come away from this section with the impression that the Director himself was a golf fan, but that is one thing that we cannot determine for sure.

Having established that professional tournament golfers could qualify for immigrant classification under former section 203(a)(3) of the Act, the Director moved to assess whether Ms. Masters otherwise met the substantive requirements for such classification.

Ms. Masters Met Standard For “Exceptional Ability”

The Director quoted from the pertinent regulation – former 8 C.F.R. 204.2(f) – for the requirements for establishing exceptional ability in the sciences or the arts: “if the alien’s eligibility is based on a claim of exceptional ability in the sciences or the arts, documentary evidence supporting the claim must be submitted by the petitioner. Such evidence may attest to the universal acclaim and either the national or international recognition accorded to the alien; that he has received a nationally or internationally recognized prize or award, or won a nationally or internationally recognized competition for excellence for a specific product or performance or for outstanding achievements; or that he is a member of a national or international association of persons which maintains standards of membership recognizing outstanding achievements, judged by recognized national or international experts in a specific discipline or field of endeavor.” Id.

Did Ms. Masters satisfy any of the above criteria? The Director found that she did. He summarized the evidence submitted in support of Ms. Masters’s petition as follows: “Evidence in the form of newspaper clippings, professional tournament brochures, and a letter from the President of Ladies Professional Golf Association of the United States, of which the alien is a member, establishes that the beneficiary has won major professional golf tournaments in the United States, Canada, Australia, New Zealand, and South Africa. She has competed against the best women golfers in the world. During 1967 she was the tenth highest money winner among professional women golfers competing in the United States.” Id. at 126-27.

Subsequent History Involving Matter of Masters

Matter of Masters opened up the immigrant visa classification codified in former section 203(a)(3) of the Act to professional athletes by finding that the “arts” included athletics. Matter of Masters was never called into question, and it allowed professional athletes to obtain immigrant visas for just over three decades. However, the Immigration Act of 1990 made significant changes to the structure of the employment visa classifications.

Questions About Continuing Applicability of Matter of Masters Raised by Immigration Act of 1990

The Immigration Act of 1990 codified five employment-based immigrant visa preference categories. Significantly, new section 203(b)(1)(A) of the act created a new employment-based first preference category. That category made, and continues to make, immigrant visas available to aliens who have “extraordinary ability in the sciences, arts, education, business, or athletics…” Note that the EB-1 category specifically makes immigrant visas available to certain foreign nationals who possess “extraordinary ability” – a higher standard than the “exceptional ability” set forth in former section 203(a)(3) – in athletics.

Former section 203(a)(3) was replaced in large part by the new employment-based second preference category codified at section 203(b)(2)(A). Like former section 203(a)(3), one provision of it made immigrant visas available to aliens who possess “exceptional ability in the sciences, arts, or business…” Note, however, that while Congress specified “athletics” for the first time in the INA at section 203(b)(1)(A), it declined to do similarly in section 203(b)(2)(A), leaving the language of the former nearly identical to former section 203(a)(3). At the very least, the inclusion of the term “athletics” in the employment-based first preference category and the exclusion of “athletics” in the employment-based second preference category raised serious questions as to whether Matter of Masters remained applicable to the new statutory scheme. These questions were made more pressing by the fact that Congress did include “arts” in the first preference definition, which would have made it unnecessary to include “athletics” as a separate category if “arts” in fact encompassed athletics.

Former Immigration and Naturalization Service Struggles With the Issue

The memoranda and a fuller discussion are available here.

On March 3, 1994, then-Acting INS General Counsel Paul W. Virtue determined that Matter of Masters was not binding on the new section 203(b)(2)(A) of the Act, despite the fact that the statutory language was nearly identical to former section 203(a)(3). In so doing, Mr. Virtue reasoned that the inclusion of “athletics” in section 203(b)(1)(A) and the exclusion of the term in section 203(b)(2)(A) was best read as excluding athletics from the ambient of the “arts” in section 203(b)(2)(A). He further noted that Congress had elsewhere distinguished between “arts” and”athletics,” notably in the statutes for the O and P nonimmigrant visa classifications.

Thus, the position of INS was that Matter of Masters was effectively rendered nugatory by the Immigration Act of 1990. The effect would be that a smaller group of athletes who could meet the more rigorous demands of establishing “extraordinary ability” could qualify for immigrant visas, but other athletes who would have been eligible for immigrant visas under former section 203(a)(3) would be out of luck.

Mere months after Mr. Virtue issued his opinion, former INS General Counsel Alexander Aleinkoff reversed the INS’s position with a January 20, 1995, General Counsel opinion. Mr. Aleinkoff reasoned that Congress had not expressly repudiated Matter of Masters with respect to section 203(b)(2)(A). Furthermore, Mr. Aleinkoff found it significant that, in declining to specifically exclude athletes from section 203(b)(2)(A) despite having been aware of how INS interpreted former section 203(a)(3) since Matter of Masters, the Immigration Act of 1990 need not be intepreted as rendering Matter of Masters inapplicable to section 203(b)(2)(A). In the end, Mr. Aleinkoff concluded that ambiguities existed, but he adopted the interpretation that Matter of Masters should remain binding on section 203(b)(2)(A) just as it had been on former section 203(a)(3).

The INS, and its successor Department of Homeland Security (DHS), have not diverged from the position adopted in the Aleinkoff legal opinion. It remains the opinion of the current DHS that Matter of Masters is binding on section 203(b)(2)(A), and thus the decision remains pertinent more than five decades after it was decided.

My Doubts About the Current Position

Before concluding the article with some thoughts from Ms. Masters herself, I must throw my cards on the table, and admit my position that Mr. Virtue’s position taken in 1994 was correct. In light of the fact that Congress distinguishes between the terms “arts” and “athletics” in multiple provisions of the INA, most significantly in the employment-based first preference category, Matter of Masters should not be binding on the employment-based second preference category. At the time Matter of Masters was decided, none of the employment-based immigrant visa categories specified “athletics,” making the question of whether they fell within the ambient of the arts a fair one. When Congress expressly included “athletics” in the extraordinary ability category as an alternative to the “arts,” but excluded it in the exceptional ability category, the question should have been deemed settled in favor of leaving Matter of Masters behind with the pre-Immigration Act of 1990 statutory scheme.

One can imagine that professional sports organizations undertook a furious lobbying campaign after Mr. Virtue published his March 1994 memo, successfully persuading INS to reverse its objectively correct legal opinion some nine months later. But if athletes must be included in the employment-based second preference category, it would have been far better for Congress to expand the category through legislation than for INS to have done it through administrative fiat. I fear that given the clear decision to exclude a word from one provision of the employment-based immigrant visa preferences while including it in another, the issue was far less ambiguous that Mr. Aleinkoff would have had us believe.

My position aside, it is highly unlikely that DHS will reverse its reading of section 203(b)(3)(A). If Congress undertakes any sort of substantial immigration reform of the employment-based preferences, it would be instructive for Congress to make clear which categories athletes may actually qualify under.

Ms. Margie Masters on Her Place in U.S. Immigration History

An article from Golf Australia details the story of Matter of Masters from the perspective of the star of the decision herself. The article explains that Ms. Masters sought an immigrant visa with assistance from an immigration official who she had become friendly with.

Regarding the decision, Ms. Masters stated: “A lot of other sportspeople, including a very good tennis player, were then able to come in under that category after that, so I was quite proud of it.”

The article notes that Ms. Masters eventually became a naturalized U.S. citizen in 2016, and she continues to reside in Arizona.

I will conclude with a final quote from Ms. Masters in the article, reflecting on a life well-lived:

I’ve met so many wonderful people in my life through golf. It’s just been a joy to be able to have seen all those places and meet all those people. We had a really great bunch of girls play on tour. We never made great money compared today, but it was a good time. I’ve had a really wonderful life.

Margie Masters, quoted at golf.org.au