On Wednesday the New York Times ran a story entitled “Sanctions Against Iran Mean a Tennis Referee Can’t Work at the Open.” According to the report, Iranian tennis referee Adel Borghei, a veteran of seven Wimbledon’s and an Australian Open Final, was told in May by the United States Tennis Association that he had been selected to work the U.S. Open, which started with qualifying rounds on the same day the story ran. Unfortunately for Mr. Borghei, at some point he received an email from the USTA informing him that “current United States law” prohibited the Open from “retaining the services of a resident of Iran.” Sanctions have had myriad unintended consequences on innocent Iranians and to most observers it would probably not be all that surprising that sanctions seep into the sports world.

But the article contained a very odd section that called into question the entire premise of the piece. The author claimed that the problem preventing Mr. Borghei from working the open was his visa. Under the Iranian Transactions and Sanctions Regulations (ITSR), the importation of services of Iranian origin, is prohibited by 31 CFR § 560.201, while the employment of persons ordinarily resident in Iran is prohibited under § 560.419 unless that employment is covered by one of the visas categories listed at 31 CFR § 560.505.

A Treasury Department spokesman quoted in the article tried to add clarity to the situation by stating that “The U.S. Open would be authorized, for instance, to import the services of an Iranian referee” under certain visa categories, including “aliens with extraordinary ability [O visa]” and “athletics, artists and entertainers [P visa].” That did not answer the question however of what visa Borghei actually held when he was banned from the Open.

So which visa did Mr. Borghei obtain? The article only states that he had a “visitor’s visa,” which is not an official category. After reaching out to the author, the answer received was that Mr. Borghei was in the U.S. on a B-1/B-2, which is a combination of a B-1 Business Visitor and a B-2 Tourism visa. Now it is true that the B class visas are not covered by 31 CFR § 560.505. However, this has no bearing on Mr. Borghei’s ability to fulfill his dream of refereeing at the US Open. It is our understanding that, with very limited exceptions that do not pertain to this case, no foreign national can work and be paid under a B-1/B-2 visa. Even in the case of the “B-1 in lieu of H-1,” visa which can be granted to foreign workers in a “specialty occupation,” payment cannot come from a U.S. source, which excludes the USTA. Thus, Borghei could be Chinese and he still would not be able to referee the Open due to the restrictions of the visa categories.

To add more confusion to the mix, there is also a general license authorization contained at 31 CFR § 560.554, which allows the importation of Iranian origin services “where such services are performed or provided in the United States by or for a person who is ordinarily resident in Iran, other than the Government of Iran, an Iranian financial institution, or any other person whose property and interests in property are blocked pursuant to § 560.211, for the purpose of, or which directly relate to, participating in a public conference, performance, exhibition or similar event, and such services are consistent with that purpose.” This section would seem to include the authorization needed for Borghei to participate in the US Open as a referee since it is a public performance. However, according to some sources we spoke to, this general authorization is not typically thought of as being for the purpose of allowing importation of Iranian-origin services related to sports. In my view that does not seems to coincide with the plain language of the regulation, however, it’s really OFAC’s call to make at the end of the day.

So are sanctions really to blame for Mr. Borghei’s unfortunate situation? Or is it an immigration issue? Or is it neither and really USTA is just at fault for over-compliance? There are a lot of smart folks who are knowledgeable about the subject with differing opinions. According to the article, however, its not a sanctions issue, but one related to immigration and Mr. Borghei holding the wrong visa. Until OFAC officially weighs in via either an advisory opinion or by issuing a specific license authorization, there won’t be a definitive answer. Our thinking is, however, that without obtaining the right visa the sanctions question becomes a non-issue. If Mr. Borghei’s visa category does not allow him to perform services while in the U.S., then the issue of whether his performance of those services is a sanctions violation seems to be moot. Assuming his visa category is appropriate, it’s arguable as to whether OFAC regulations and sanctions present any problem due to the authorizations contained in § 560.505 and/or § 560.554.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrariassociatespc.com. This post was co-written by Samuel Cutler, Policy Adviser at Ferrari & Associates, P.C.