dismissed EB-1A Case: Acrobatics

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privaq 
PUBLIC COPY 
U.S. Departn~ent of IIomeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
LIN 07 067 50168 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
@Uln& 
f' errv Rhew 
T~hief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, on August 21, 2008. The petitioner filed a motion to reopen on September 
19, 2008. The Director affirmed his decision on October 31, 2008, and the employment-based 
immigrant visa petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien 
of extraordinary ability in athletics as an acrobat. The director determined that the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification as an 
alien of extraordinary ability. More specifically, the director found that the petitioner had failed to 
demonstrate receipt of a major, internationally recognized award, or that she meets at least three of 
the regulatory criteria at 8 C.F.R. $ 204.5(h)(3). 
On appeal, the petitioner argues that she meets at least three of the regulatory criteria at 8 C.F.R. 
$ 204.5(h)(3). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary 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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means 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. 
 8 C.F.R. $204.5(h)(2). 
 The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. $ 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
she has sustained national or international acclaim at the very top level. 
The AAO notes that the petitioner was admitted to the United States as a P-1 nonimmigrant, a visa 
classification that requires the alien to perform as an athlete, either individually or as part of a team, 
at an internationally recognized level of performance, and that the alien seek to enter the United 
States "temporarily and solely for the purpose of performing as such an athlete." See section 
2 14(c)(4)(A) of the Act, 8 U.S.C. fj 1 184(c)(4)(A). 
mle USCIS approved at least one P-1 nonimmigrant visa petition filed on behalf of the petitioner, the 
prior approval does not preclude USCIS from denying an immigrant visa petition based on a different, 
if similarly phrased standard. It must be noted that many 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 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time 
reviewing I- 129 nonimmigrant petitions than I- 140 immigrant petitions, some nonimmigrant 
petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see 
also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding 
that prior approvals do not preclude USCIS from denying an extension of the original visa based on 
a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
This petition, filed on November 27, 2006, seeks to classify the petitioner as an alien with 
extraordinary ability as an acrobat. The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien 
can establish sustained national or international acclaim through evidence of a one-time achievement 
(that is, a major, internationally recognized award). Barring the alien's receipt of such an award, the 
regulation outlines ten criteria, at least three of which must be satisfied for an alien to establish the 
sustained acclaim necessary to qualify as an alien of extraordinary ability. A petitioner, however, 
cannot establish eligibility for this classification merely by submitting evidence that simply relates to 
at least three criteria at 8 C.F.R. 5 204.5(h)(3). In determining whether the petitioner meets a 
specific criterion, the evidence itself must be evaluated in terms of whether it is indicative of or 
consistent with sustained national or international acclaim. A lower evidentiary standard would not 
be consistent with the regulatory definition of "extraordinary ability" as "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." 8 C.F.R. 5 204.5(h)(2). The petitioner has submitted evidence pertaining to the 
following criteria under 8 C.F.R. 5 204.5(h)(3).' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner submitted numerous diplomas and certificates from 1996 to 2003 of various 
placements in tournaments and championships. From 1996 to 2000, the awards won by the 
petitioner were based on junior or youth level tournaments. For example, the petitioner participated 
in the 1996 Junior Ukrainian Championships, 1997 Junior World Championships, 1998 Junior 
European Championships, and 2000 Junior Championships. In addition, many of the diplomas and 
certificates were issued by local provinces within Ukraine (i.e., Mykolaiv, Vinnitsa, etc.). 
In the director's decision on motion, he indicated that the petitioner did not submit "evidence of the 
reputations of the organizations/competitions granting the awards to establish their significance." 
On appeal, the petitioner argues that: 
[I]t is universally accepted that the territorial name of the competition speaks for itself. 
The Continent, National or Regional descriptions were stated in the names of the 
competitions themselves, and do not require proof of their significance. 
We are not persuaded by the petitioner's statements. An award with "Continent," "National," or 
"Regional" in the title does not automatically elevate the award to "extraordinary ability" standards. 
Without documentary evidence regarding the actual competitions themselves, such as the level of 
those who participated or evidence of the selection criteria, we cannot conclude based on the name 
of the competition alone, that the competition is national or international, and therefore that its 
awards are recognized beyond the awarding entities as a national or international award. In this 
instance, however, we find that the evidence regarding the European Championships is sufficient to 
establish the national or international stature of these competitions. 
Regarding the actual awards claimed, in the director's decision on motion, he questioned the 
reliability of the evidence stating: 
For example, it seems unusual that a competitor could place both 2nd and 3'd in the same 
event (the petitioner submitted certificates for both 2nd and 3rd place in the "Athletic 
Acrobatics in Women's Tumbling" event at the "Championship of Ukraine" 
competition held May 23-25, 2000.) The petitioner also submitted two certificates for 
the same award (for 1" place in the "Athletic Acrobatics in Women's Tumbling" event 
at the "Cup of Ukraine" competition held September 28-30, 1999) in which the 
certificates contain different background shading and text, making it appear that each 
certificate was manufactured rather than photocopied from and actual award. 
On appeal, the petitioner argues: 
I 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
[Elnclosed are additional sources of the evidence, which point to the same petitioner's 
results. In addition, please take a note that in the sport of tumbling it is common to 
receive two similar or two different prizes at the same competition for two similar 
routine[s], except that one is a straight routine, and the other is a twist routine. They 
are performed separately and may lead to two different places in the final. An extra 
third place is achieved for a combination of such routines. It is, therefore, not 
uncommon for an athlete to receive a first, a second and a third place at the same 
competition, which facts are then documented by three different diplomas. 
The petitioner submitted two diplomas from 
 State Committee of 
Ukraine for Physical Culture and Sports, and 
 of the Federation of 
Athletic Acrobatics of Ukraine, for the competition from September 28-30, 1999. While the English 
translation for the first diploma indicates that the petitioner was awarded a first place finish in the 
Cup of Ukraine in athletic acrobatics and women's tumbling, the diploma does not reflect the 
petitioner's name and the event. In addition, the diploma reflects "11" for a second place finish. The 
English translation for the second diploma reflects that same information from the first diploma's 
English translation, except the second diploma contains the petitioner's name and the event. The 
second diploma reflects "I" for a first place finish. Neither certification supports the petitioner's 
explanation regarding awards in "straight" routines and awards in "twist" routines. 
The petitioner also submitted two diplomas from fi of the State 
Committee of Ukraine for Youth, Sports and Tourism, for the Championship of Ukraine from May 
23-25, 2000. The first diploma indicates that the petitioner finished in second place in athletic 
acrobatics in women's tumbling while the second diploma indicates that the petitioner finished in 
third place at the same event. As cited above, the petitioner argues on appeal that multiple awards 
may be issued for a single event. While the petitioner's argument is plausible, she did not submit 
any documentary evidence supporting her argument. Both diplomas indicate that the event was 
athletic acrobatics in women's tumbling and did not specify a specific routine as argued by the 
petitioner. 
In support of the appeal, the petitioner also submitted a website page from the European Union of 
Gymnastics (EUG) indicating that the Ukrainian team finished second in women's tumbling at the 
22nd Trampoline World Championships in Odense, Denmark from July 26-28, 2001. However, the 
Web site page shows that either the petitioner's score was not used or the petitioner did not 
participate in the final round. In fact, the Web site does not list the petitioner's name as winning 
second place in the tournament. It is noted that the petitioner did not submit a certificateldiploma 
indicating a second place finish at the 22nd ~ram~oline World Championships. 
The petitioner also submitted a website page from the EUG indicating that the Ukrainian team 
finished first in women's tumbling at the lgth Trampoline European Championships in St. 
Petersburg, Russia in 2002. While the website lists the petitioner's name as a member of the 
Ukrainian team, further review of the website indicates that either the petitioner's score was not used 
or the petitioner did not participate in the final round. It is further noted that the petitioner submitted 
Committee, and - of the Trampoline Federation of Russia, for the 18th 
European Championships. The certificate did not indicate that petitioner's accomplishment of a first 
place finish. 
The director also concluded that the petitioner had failed to establish sustained national or 
international acclaim as of November 27, 2006, the date of filing. On appeal, the petitioner 
submitted three reference letters from individuals who are training with the petitioner. While the 
reference letters discuss her talents and skills as an athlete, they do not establish any evidence of 
sustained national or international acclaim. 
Further the petitioner has not demonstrated that her junior or amateur recognition constitutes 
nationally or internationally recognized prizes or awards. With regard to awards won by the 
petitioner in competition that were limited by her junior or amateur status, such awards do not 
indicate that she "is one of that small percentage who have risen to the very top of the field of 
endeavor." See 8 C.F.R. 5 204.5(h)(2). There is no indication that the petitioner faced significant 
competition from throughout her field, rather than mostly limited to a few individuals in age-based 
or other similarly limited competition. 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. Commr. 1994); 56 Fed. Reg. at 60899.~ Likewise, it does not follow 
that a competitor like the petitioner who has had success in a competition restricted by age or non- 
professional status, should necessarily qualify for an extraordinary ability employment-based 
immigrant visa. To find otherwise would contravene the regulatory requirement at 8 C.F.R. tj 
204.5(h)(2) that this visa category be reserved for "that small percentage of individuals that have 
risen to the very top of their field of endeavor." 
Accordingly, the petitioner has not established that she meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classzfication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 1533 19 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is not a 
comparison of Racine's ability with that of all the hockey players at all levels of play; but rather, 
Racine's ability as a professional hockey player within the NHL. This interpretation is consistent 
with at least one other court in this district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 
1993), and the definition of the term 8 C.F.R. 4 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the 
court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 204.5(h)(2) is 
reasonable. 
The record contains evidence establishing that the petitioner has participated as a member of the 
Ukrainian national team. We find such evidence sufficient to establish that the petitioner meets this 
criterion. 
Accordingly, the petitioner has established that she meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classzfication is sought. 
Such evidence shall include the title, date, and author of the material, and any 
necessary translation. 
The director concluded that the submitted documentation contained English translations of 
summaries of the newspaper articles and not the full English translations of the entire articles as 
required by 8 C.F.R. 3 103.2(b)(3). Without the proper translations we are unable to determine 
whether the evidence supports the petitioner's claims. Accordingly, these articles can be afforded no 
weight in this proceeding. Further, some of the articles did not contain title, dates, and names of 
newspapers as required by 8 C.F.R. 3 204.5(h)(3)(iii). Finally, the director concluded that the 
petitioner failed to establish that the newspaper articles were published in major trade publications or 
other media. 
The petitioner did not contest the decision of the director in this criterion on appeal. We agree with 
the finding of the director. 
Accordingly, the petitioner has not established that she meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the 
work of others in the same or an alliedfield of speczfication for which classzfication is 
sought. 
The director concluded that the petitioner failed to establish that she judged the work of others at a level 
that demonstrates her own national or international acclaim. Although the director may have 
overreached in finding that the criterion requires the petitioner's judging to have earned national or 
international acclaim, we concur that the judging must be commensurate with this highly restrictive 
classification. For instance, evidence that the petitioner judged professional athletes, or athletes in 
national competitions, is far more persuasive than if she judged a local competition of amateurs. 
Regardless, the petitioner did not contest the decision of the director and submitted no further evidence 
to establish that she has judged any athlete or competition. 
Accordingly, the petitioner has not established that she meets this criterion. 
Evidence that the alien has commanded a high salary or other signlJicantly high 
remuneration for services, in relation to others in the field. 
The petitioner indicated that her salary of $26,200 with Magic Star Entertainment would be higher than 
an Olympic coach in the Ukraine, which would be around $1000 per month. The director concluded 
that the petitioner's comparison of an Olympic coach's salary in the Ukraine is not sufficient since the 
petitioner is not employed as a coach with Magic Star Entertainment and is not employed in the 
Ukraine. The petitioner did not contest the decision of the director for this criterion on appeal. We 
agree with the finding of the director. 
Accordingly, the petitioner has not established that she meets this criterion. 
Review of the record does not establish that the petitioner has distinguished herself to such an extent 
that she may be said to have achieved sustained national or international acclaim or to be within the 
small percentage at the very top of his field. The evidence is not persuasive that the petitioner's 
achievements set her significantly above almost all others in her field at a national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A)(i) of 
the Act, and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.