dismissed EB-1A Case: Acrobatics

U.S. Citizenship 
and Immigration 
Services 
In Re: 7861482 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 12, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an acrobatic performer, seeks classification as an alien of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition , concluding that the Petitioner had 
not satisfied any of the ten initial evidentiary criteria, of which he must meet at least three. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
I. LAW 
Section 203(b )( 1 )(A) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has extraordiriary ability in the sciences, arts, education , business , or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
The tenn "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2) . The implementing regulation 
1 We decline the Petitioner's request for oral argument. 8 C.F.R. § 103.3(b). 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of his or her achievements in the field through a one-time achievement 
(that is, a major, internationally recognized award). If that petitioner does not submit this evidence, 
then he or she must provide sufficient qualifying documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material 
in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). 
II. ANALYSIS 
The record reflects that the Petitioner received 0-1 nonimmigrant classification in 2018 and has been 
employed as an acrobatic performer in thel I show I I at the I I I I Between 2016 and 2018, the Petitioner worked as a I O I gymnastics 
coach in England and was employed in J-1 nonimmigrant status as the department head of gymnastics 
and fitness at a summer camp in Pennsylvania. The Petitioner completed his Bachelor of Science degree 
at I I University in England with a concentration in Sport Coaching. He also earned a 
professional qualification certificate in sport and exercise sciences. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner did not meet any of the 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i) -(x). On appeal, the Petitioner asserts that he meets 
the criteria related to lesser nationally or internationally recognized awards, memberships in 
associations requiring outstanding achievements, published materials about him and his work in the 
field, leading or critical roles in organizations or establishments with distinguished reputations, and 
high salary or other remuneration. After reviewing all of the evidence in the record, we find that the 
Petitioner has not established that he meets at least three of the initial evidentiary criteria. 
Documentation of the individual's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 8 C.F.R. 
§ 204.5(h)(3)(i) 
The Director found that the Petitioner did not satisfy this criterion. However, we find sufficient 
documentary evidence to establish that the Petitioner received nationally and internationally 
recognized awards from I I gymnastics events at the junior level, and the Director's 
determination on this issue will be withdrawn. For example, the Petitioner provided documentation 
showing that he received a bronze medal at the 2013 I I Chamf onship, a gold medal 
at the 2015 I I Chamlionship) and a silver medal at the 2016 I Gymnastics 
I I Competition (2016 . 
2 
In light of the above, the Petitioner has established that he meets this criterion. 
Documentation of the individual's membership in associations in the field for which 
class[fication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or _fields. 
8 C.F.R. § 204.5(h)(3)(ii) 
The Petitioner claims that he meets this criterion based on his professional membershil with the 
International Gymnastics Federation (FIG), and as a member of the Great Britain I 
Gymnastics national team. In order to satisfy this criterion, the Petitioner must show that he is a 
member of an association, and that membership in the association is based on being judged by 
recognized national or international experts as having outstanding achievements in the field for which 
classification is sought. 2 
With respect to the Petitioner's FIG membership, the Petitioner provided evidence establishing that 
he has been a member of FIG since[==:]2015. His FIG membership card indicates that this 
membership category is for those participating in FIG-sanctioned events as a competitive gymnast. 
The Petitioner asserts that in becoming a member of the Great Britain National team "my ability was 
assessed by a committee in order to represent Great Britain and allow access to FIG." As 
acknowledged by the Petitioner, however, a governing body of the sport such as FIG "is a separate 
entity" than the Great Britain National Team. The Petitioner has not provided evidence (such as 
bylaws or rules of admission) showing that FIG requires outstanding achievements of its members, as 
judged by recognized national or international experts in the Petitioner's field or an allied one. 
However, we find sufficient evidence to establish that the Petitioner demonstrated membership with 
the Great Britain national team, and that this evidence meets the membership criterion, and the 
Director's determination on this issue will be ghe Petitioner provided the aforementioned 
letter from I lof British Gymnastics. s CV indicates that he is the head coach of 
the senior and junior squads of the Great Britain gymnastics national team. He confirms that 
the Petitioner was a member of the national team between 2014 and 2016, and states as follows: 
I witnessed him achieving a gold medal atthe 20 d I Championships .
1
1 ~as part I I 
of the selection panel that chose him to represent Great Britain at the 2015 
Championships in I I Germany and at the 2016 I I Championships in 
China where I saw him win a silver world medal. 
The Petitioner meets this criterion based on his selection for Great Britain's national team by the national 
governing body in his sport, which can be considered a recognized national expert in the discipline. 
2 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form T-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADl 1-14 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (providing an example of admission to membership in 
the National Academy of Sciences as a Foreign Associate that requires individuals to be nominated by an academy 
member, and membership is ultimately granted based upon recognition of the individual's distinguished achievements in 
original research). 
3 
Published material about the individual in professional or major trade publications or 
other major media, relating to the individual's work in the field.for which class[fication 
is sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 8 C.F.R. § 204.5(h)(3)(iii) 
The Director determined that the Petitioner did not meet this crirerion The Petitioner submitted 
several articles in support of this criterion. One article, titled t I 
~--------~ "was published by the website The Northern Echo in 2016. The submitted 
article is not about the Petitioner; it was written about the 2016.__ ______ __,gymnastics which 
was to be held in China shortly after the publication of the article. The article states that a four-man 
team which includes the Petitioner would be competing and mentions some of their recent competition 
results, but the Petitioner is not otherwise mentioned in the article. The article also indicates that the 
head of gymnastics from thd I Gymnastics Academy would be one of the team coaches and 
quotes him about the team's hard work at that academy. Articles that are not about a petitioner do not 
fulfill this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. 
Nev. Sept. 8, 2008) (upholding a finding that articles regarding a show are not about the actor). In 
addition, the Petitioner has not provided sufficient evidence to establish that this publication, described 
as a "regional daily" newspaper is a professional publication, major trade publication or other major 
media in England. The Petitioner submitted a screenshot from the newspaper's website which states 
that it has a circulation of 44,062 copies but did not provide evidence showing how this circulation 
compares to other English publications. 3 
The Petitioner also submitted a 2015 article titled .__ ___________ ____. published by 
the website Sunderland Echo. As with the previous article, this article is not about the Petitioner; it 
was written about the 2015 ~-..------~Championships which were to be held in Germany 
shortly after the article's publication. The article states that six gymnasts from the I I 
Gymnastics Academy, including the Petitioner, will be competing and identifies the participating 
countries, but the Petitioner is not otherwise mentioned in the article. Further, we note that the author 
of the article is not identified, and the article is not accompanied by sufficient evidence that Sunderland 
Echo qualifies a professional publication, major trade publication, or other major media in England. 
We also note that the Petitioner submitted several articles about him and his work. The article titled 
I , 0 I was written about the Petitioner's anticipated participation in the 
20161 j and the article titled'...._ __________ _.' reported that his team took 
second place in the competition. However, those articles do not identify their source, author or date. 
Furthermore, the Petitioner submitted a I I 2013 online article titled '1 I 
~-------------~ ' published by Gazette Live and written about the Petitioner's 
selection to the Great Britain junior gymnastics squad, but the author of the article is not identified. 
Finally, the Petitioner submitted several additional press releases and articles pertaining to the 
Petitioner's participation in the 2016 I I, 20151 I Championship, and 2013 
3 See USCIS Policy Memorandum PM 602-0005.1, supra, at 7 (indicating that evidence of published material in 
professional or major trade publications or in other major media publications should establish that the circulation (on-line 
or in print) is high compared to other circulation statistics). 
4 
~-----..,...0 lchampionship, and his receipt of a I IA ward in gymnastics, 
but these articles do not identify the author of the material, as required by the regulations. 
For the reasons discussed, the Petitioner has not established that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
The Petitioner asserts that he meets this criterion based on his role with his current em lo 
'----------~--, specifically, as a performer in the roduction ,----'-----'-----,._ ____ __J 
On appeal, the Petitioner claims that the reference letter from .__ ________ __,demonstrates 
that the Petitioner meets this criterion. As it relates to a leading role, the evidence must establish that 
a petitioner is or was a leader. A title, with appropriate matching duties, can help to establish if a role 
is or was, in fact, leading. 4 Regarding a critical role, the evidence must demonstrate that a petitioner 
has contributed in a way that is of significant importance to the outcome of the organization or 
establishment's activities. It is not the title of a petitioner's role, but rather the performance in the role 
that determines whether the role is or was critical. In addition, this criterion requires that the 
organizations or establishments must be recognized as having a distinguished reputation, which is 
marked by eminence, distinction, or excellence. 5 
Upon review, the Petitioner has not shown that he performs a leading or critical role for 
Although the letter from I lthel !gymnastics coach for~------~ 
provides that the Petitioner 1s one of almost 100 performers for that proq.uctiop the Jetter ~oes not 
provide details on whether the Petitioner has had a leading or critical role in L_J I J praises 
the Petitioner's skills in two acts of the production. We note that his letter does not indicate that the 
production features the Petitioner's acts more prominently than the other acts. He indicates that the 
Petitioner performs as al I whose responsibility is to "ensure the safety of other 
performers being launched" into the air. He states that the Petitioner displays the "flawless technique, 
strength, and timing of an experienced I ~---~ t 
In another act called the I I" I I indicates the Petitioner "proved himself as [a] 
uniquely talented! I and dancer." I I provides that "[f]urther act integration can be 
expected for [ the Petitioner]." He states that the Petitioner's "contributions and character" are 
"valuable to the ongoing success of our crowd-pleasing production." I I~, however, 
does not provide specific information on the impact of the Petitioner's performance tol_J as a whole, 
such as but not limited to, specific information on increased revenues resulting from the Petitioner's 
performance. The letter also does not state that the Petitioner's title and asso~duties withinc=] 
rank him above those of other performers, or that the Petitioner's impact onL_J is more significant 
than those of other performers. I ts letter shows that the Petitioner is one of the valued 
performers in the productio~._ _______ _,~ but does not show that he has a leading or er~·, 
role in the D organization. Similarly, the signed employment offer between the Petitioner and 
does not indicate that the Petitioner has had a role in addition to being one of the performers in 
4 See USCIS Policy Memorandum PM-602-0005.1, supra, at 10. 
5 Id at 10-11. 
5 
In light of the above, the Petitioner has not submitted sufficient evidence to establish that he meets 
this criterion. 
Evidence that the individual has commanded a high salary or other sign[ficantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
To establish eligibility under this criterion, the Petitioner must present evidence showing that he has 
earned a high salary or significantly high remuneration in comparison with those performing similar 
services in the field. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering 
a professional golfer's earnings versus other PGA Tour golfers); see also Skokos v. US. Dept. of 
Homeland Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) (finding salary information for those 
performing lesser duties is not a comparison to others in the field); Grimson v. INS, 934 F. Supp. 965, 
968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 
891 F. Supp. 440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of 
other NHL defensemen). The petition was filed in June 2019, and the Petitioner must establish his 
eligibility as of the date of filing. The supporting evidence does not support the Petitioner's claim. 
The Petitioner provided copies of his IRS Forms W-2 indicating that he earned $3,439 in 2018.6 The 
Petitioner also provided a paystub dated June 21, 2019, showing that the Petitioner was receiving a 
monthly salary of $5,000, or $60,000 per year. The Petitioner provided salary data from Neuvoo that 
indicates that the national average base pay for I I is $36,075, but it also indicates "most 
experienced workers make up to $58,500 per year." The Petitioner farther submitted data from 
CareerOneStop, indicating a median salary of $17.09 per hour or approximately $34,180 per year for 
"Entertainers and Performers, Sports and Related Workers, All Others," with those with earnings at 
the 75th percentile earning approximately $53,940 and the top 10% earning at least $85,660. Finally, 
the Petitioner provided data from www.bls.gov, indicating that the average hourly wage for 
"Entertainers and Performers, Sports and Related Workers, All Others" is $39.88 per hour or 
approximately $79,760 per year in the Petitioner's geographic area in Nevada. Overall, based on the 
information provided, the Petitioner has not established that he has commanded a high salary or other 
significantly high remuneration in relation to others in the field. 
C. 0-1 Nonimmigrant Status 
We note that the record indicates that the Petitioner has previously been granted 0-1 status, a 
classification reserved for nonimmigrants of extraordinary ability. Although USCIS has approved at 
least one 0-1 nonimmigrant visa petition filed on behalf of the Petitioner, the prior approval does not 
preclude USCIS from denying an immigrant visa petition which is adjudicated based on a different 
standard - statute, regulations, and case law. Many Form 1-140 immigrant petitions are denied after 
USCIS approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 
2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajfd, 905 F. 2d 41 (2d. Cir. 1990). 
Furthermore, our authority over the USCIS service centers, the office adjudicating the nonimmigrant 
6 The record reflects that the Petitioner was granted 0-1 status in October 2018 and did not begin working for! I I until November 29, 2018. As a result, we acknowledge that his 2018 W-2 only reflected less t~h-an_o_n_e_fu_ll~ 
month of earnings. 
6 
visa petition, is comparable to the relationship between a court of appeals and a district court. Even if 
a service center director has approved a nonimmigrant petition on behalf of an individual, we are not 
bound to follow that finding in the adjudication of another immigration petition. Louisiana 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 199
1). Here, re evidence 
demonstrates that the Petitioner is highly educated in his field and that his gymnastics 
expertise is valued by thd I gymnastics community in both the United States and Great Britain. 
However, the Petitioner has not shown that the significance of his work is indicative of the required 
sustained national or international acclaim or that it is consistent with a "career of acclaimed work in 
the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 
203(b)(l)(A) of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has 
garnered national or international acclaim in the field, and he is one of the small percentage who has 
risen to the very top of the field of endeavor. See section 203(b)(l)(A) of the Act and 8 C.F.R. 
§ 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
7