dismissed EB-1A Case: Athletics

identi(ving date, deleted to 
prev~Ht cle~2'!Y unwarranted 
InvaSIOn of personal privacy 
PUBLIC COpy 
DATE: NAY 23 2012 Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with 
the field office or service center that originally decided your case by filing a Form I-290B, Notice of Appeal 
or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. 
§ 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
cfJ~ 2?r-,{::/, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(1)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 CF.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 CF.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, the AAO 
upholds the director's ultimate conclusion that the petitioner has not established his eligibility for the 
exclusive classification sought. 
I. Intent to Continue to Work in the Area of Expertise in the United States 
The AAO notes here that in Part 5 of Form 1-140, Immigrant Petition for Alien Worker, the petitioner 
listed his occupation as a "Professional Coach." In addition, in Part 6, the petitioner listed his 
proposed job title as "Kickboxing Coach." Further, the petitioner submitted a personal statement 
detailing his plans to work as a kickboxing coach and instructor in the United States. Thus, the record 
reflects that the petitioner is seeking classification as an alien of extraordinary ability as an instructor 
or coach rather than as a competitor. Even though the petitioner submitted documentation regarding 
his involvement in earlier tournaments as a competitor, the record reflects the petitioner's intent to 
work in the United States as a coach. 
The statute and regulations require the petitioner's national or international acclaim to be sltstained and 
that he seeks to continue work in his area of expertise in the United States. See sections 203(b )(1 )(A)(i) 
and (ii) of the Act, 8 U.S.C §§ 1153(b)(1)(A)(i) and (ii), and 8 CF.R. §§ 204.5(h)(3) and (5). While 
a kickboxing coach and a kickboxer share knowledge of the sport, the two rely on very different sets of 
basic skills. Thus, instruction and competition are not the same area of expertise. This interpretation 
has been upheld in federal court. In Lee v. I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court 
stated: 
-Page 3 
It is reasonable to interpret continuing to work in one's "area of extraordinary ability" 
as working in the same profession in which one has extraordinary ability, not 
necessarily in any profession in that field. For example, Lee's extraordinary ability as a 
baseball player does not imply that he also has extraordinary ability in all positions or 
professions in the baseball industry such as a manager, umpire or coach. 
Id. at 918. The court noted a consistent history in this area. While the record demonstrates that the 
petitioner intends to works as a coach, there is no evidence indicating that he intends to compete as an 
athlete in the United States. While the AAO acknowledges the possibility of an alien's extraordinary 
claim in more than one field, such as kickboxing coach and kickboxer, the petitioner, however, must 
demonstrate "by clear evidence that the alien is coming to the United States to continue work in the 
area of expertise." See the regulation at 8 C.F.R. § 204.S(h)(S). 
Based on the petitioner's answers to the questions on Form I-140 and the submitted documentation, 
the record reflects that the petitioner intends to continue to work in the area of rather than 
competition. It should also be noted that according to 
the petitioner has been coaching for 13 years enty oppo 
earn acclaim as a coach. Ultimately, the petitioner must satisfy the regulation at 8 C.F.R. § 204.S(h)(3) 
through his achievements as a kickboxing coach. As such, the evidence submitted by the petitioner 
regarding his achievements as a competitor will not be considered here. 
II. LAW 
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. 
-Page 4 
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 H.R. 723 101
st 
Cong., 2d Sess. 59 
(1990); 56 Fed.'Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. Id.; 
8 CF.R. § 204.5(h)(2). 
The regulation at 8 CF.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 CF.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria at 8 CF.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 
8 CF.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. Id. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.5(h)(3)(vi). 
-Page 5 
III. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
While the AAO concurs with the director's finding that "the evidence submitted does not meet this 
criterion," the AAO disagrees that "[t]he awards of your students will be considered for this criterion 
because they reflect on your coaching." The plain language of the regulation at 8 C.F.R. § 
204.5(h)(3)(i) requires "[ d]ocumentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor [emphasis added]." USCIS may not 
utilize novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5. 
Kazarian, 596 F.3d at 1221, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 
2008). Moreover, as the petitioner has not demonstrated that the standards at 8 C.F.R. § 204.5(h)(3) 
are not readily applicable to his occupation, the AAO will not consider comparable evidence 
pursuant to 8 C.F.R. § 204.5(h)(4). Therefore, any prizes or awards that may have been garnered by 
the petitioner's students, rather than by the petitioner, do not meet the plain language of this regulation, 
nor do any prizes or awards that may have been garnered by the petitioner as a competitor, as they are 
not within the petitioner's field of endeavor as a kickboxing coach. See Lee v. I.N.S., 237 F. Supp. 2d 
at 914 (upholding a finding that competitive athletics and coaching are not within the same area of 
expertise ). 
On appeal, counsel references and includes a copy of an unpublished 2009 AAO decision. While 
counsel asserts that the petitioner's students have competed at age-limited competitions that are 
"national in scope," he does not explain how they are nationally recognized, as required by the 
regulation. It should be noted that the unpublished decision referenced by counsel found that the age­
limited national/international competitions were not nationally or internationally recognized. While 
8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in 
the administration of the Act, unpublished decisions are not similarly binding. 
In regard to the evidence submitted as awards won by the petitioner as a coach, the AAO concurs with 
the director's findings that "the Certificate for Best Thai-kickboxing Trainer of NY State ... is limited to 
NY state, so it cannot be considered for this criterion" and that "the Certificate of Rank of Professional 
Kickboxing Trainer and Borodin's Gym's Certificate of Rank of Kickboxing Instructor. .. are not 
considered awards." Furthermore, the petitioner failed to submit any documentary evidence 
establishing that these are nationally or internationally recognized prizes or awards for excellence as a 
kickboxing coach. 
In light of the above, the petitioner has not established that he meets this criterion. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
-Page 6 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish that the evidence was qualifying. On appeal, the petitioner does not contest the director's 
findings for this criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. u.s. At(y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United 
States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see also Hristov v. Roark, No. 09-CY-
27312011,2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30,2011) (plaintiffs claims were abandoned 
as he failed to raise them on appeal to the AAO). 
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 classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The director determined that the petitioner failed to establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p]ublished 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 classification is sought." In general, in order for published material to meet this criterion, it 
must be primarily about the petitioner and, as stated in the regulations, be printed in professional or 
major trade publications or other major media. To qualify as major media, the publication should have 
significant national or international distribution. Some newspapers, such as the New York Times, 
nominally serve a particular locality but would qualify as major media because of significant national 
distribution, unlike small local community papers.3 
On appeal, counsel asserts that "the articles in the .. should be 
deemed acceptable." Counsel also references another unpublished AAO decision stating "it was found 
that if a number of local publications were equivalent to a national publications [sic] such articles 
should be acceptable to meet the Code's criterion." Counsel did not include a copy of the decision. As 
previously stated, AAO precedent decisions are binding on all USCIS employees, but unpublished 
decisions are not. 
As evidence, the petitioner provided circulation information from the papers' own websites. The 
petitioner failed to submit any independent, objective evidence to demonstrate that either of these 
papers is a professional or major trade publication or other major media. See Braga v. Poulos, No. CY 
065105 SJO (c. D. CA July 6, 2007) a/I'd 2009 WL 604888 (9th Cir. 2009) (concluding that the AAO 
did not have to rely on self-serving assertions on the cover of a magazine as to the magazine's status as 
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
, 
-Page 7 
major media). Counsel also asserts that both newspapers have a "web site," [sic] which allows for 
global access. Many newspapers, regardless of size and distribution, post at least some of their stories 
on the Internet. To ignore this reality would be to render the "major media" requirement meaningless. 
International accessibility by itself is not a realistic indicator of whether a given publication is "major 
media." The AAO will not presume that the articles' mere inclusion on the Internet notably increases 
the readership of a paper. 
Regardless, the AAO is not convinced that two U.S. newspapers written in Russian, which is not a 
predominant language in the United States, with a limited distribution area and readership of 100,000 
or less are major media. Furthermore, the articles in Russian Reklama and Russian Bazaar are not 
"about" the petitioner. 
In light of the above, the petitioner has not established that he 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 allied field of specification for which classification is sought. 
The director found that the petitioner "refereed two kickboxing tournaments" and "the evidence 
submitted meets this criterion." The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) 
requires "[e]vidence of the alien's participation ... as a judge of the work of others." Based on a review 
of the record of proceeding, the AAO must withdraw the findings of the director for this criterion. 
was aSSl 
III III in the memory of Warrior-Internationalist 
B. Nametov." The second certificate does not include a date. 
There is no evidence showing the names of the athletes evaluated by the beneficiary or the paperwork 
documenting his assessments. The submitted documentation does not establish that serving as a referee 
in the above instances equates to participating as a judge of the work of others. There is no evidence 
demonstrating that the petitioner actually judged the work of competitors, such as assigning points or 
determining winners, rather than merely enforcing the rules and maintaining a sense of fair play. The 
absence of evidence of the beneficiary'S participation (such as judging slips, event programs identifYing 
the beneficiary as a judge, or a judge's credential from the events) is a significant omission from the 
record. The benefit sought in the present matter is not the type for which documentation is typically 
unavailable and the statute specifically requires "extensive documentation" to establish eligibility. See 
section 203 (b)(1 )(A)(i) of the Act. 
The petitioner also submitted a letter from which 
states, "[ m ] any times I have seen him judging and refereeing during some highest [sic] level 
tournaments" and "[h]e was successful passing all the requirements to get an international license of 
Page 8 
world class referee and judge." However, the petitioner did not submit evidence of the international 
license or any other corroborating evidence. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comrn'r 1998) (citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg'l Comm'r 1972». 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
It should be noted that the petitioner also submitted additional evidence under this criterion with the 
~g a certificate for 
~ tournament seve 
certificate and all of the letters but the one referenced above did not mention the petitioner acting as 
a judge, they will not be considered under this criterion. 
In light of the above, the petitioner has not established that he meets this criterion. 
B. Letters of Reference 
The petitioner submitted a number of letters of reference from colleagues, students and parents of 
students. While recommendation letters can provide useful information about an alien's qualifications 
or help in assigning weight to certain evidence, such letters are not a substitute for objective evidence of 
the alien's achievements and recognition as required by the statute and regulations. The letters 
primarily contain bare assertions of acclaim and compliments on the petitioner's coaching. The 
nonexistence of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 
Further, the classification sought requires "extensive documentation" of sustained national or 
international acclaim. See section 203(b )(1 )(A)(i) of the Act, 8 U .S.c. § 1153(b )(1 )(A)(i), and 
8 C.F.R. § 204.5(h)(3). The commentary for the proposed regulations implementing the statute 
provides that the "intent of Congress that a very high standard be set for aliens of extraordinary ability 
is reflected in this regulation by requiring the petitioner to present more extensive documentation than 
that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). Primary evidence of 
achievements and recognition is of far greater probative value than opinion statements. 
Since these letters do not directly address any of the criterion listed at 8 C.F.R. § 204.5(h)(3)(i)-(x), the 
AAO will not consider them here. 
-Page 9 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
IV. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination. 4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) 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. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. Do.l, 381 F.3d at 145. In 
any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; 
section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 8 C.F.R. § 2.1 (2003); 
8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy 
INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).