dismissed EB-1A Case: Athletics

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OJfice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
~1~07006 50918 
 DEC 0 1 2009 
IN RE: 
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. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER. 
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. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Fonn 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. tj 103.5(a)(l)(i). 
U 
Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter 
is now before the AAO on a motion to reconsider. The motion will be granted, the previous decision of 
the AAO will be affirmed and the petition will be denied. 
According to 8 C.F.R. fj 103.5(a)(3), a motion to reconsider must state the reasons for reconsideration 
and be supported by any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) policy. On motion, 
counsel raises four points, only one of which is supported by any legal authority and the legal authority 
cited is an unpublished decision by this office, which counsel also cited on appeal. In our previous 
decision, we explained that, while designated and published decisions of the AAO pursuant to 
8 C.F.R. 5 103.3(c) are binding precedent on all USCIS employees in the administration of the Act, 
unpublished decisions have no such precedential value. Nevertheless, in the interest of 
thoroughness, we will reopen the matter for the limited purpose of responding to counsel's four 
points raised on motion. The analysis in our March 19, 2009 decision not contested by counsel on 
motion is incorporated into this decision by reference. 
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. fj 1 153(b)(l)(A), as an alien of extraordinary 
ability in athletics. The director determined that the record did not establish that the petitioner achieved 
the sustained national or international acclaim required for classification as an alien of extraordinary 
ability. On appeal, counsel submitted a brief and the unpublished decision by the AAO referenced 
above. The AAO dismissed the appeal in a nine-page decision that addressed the evidence submitted in 
detail and noted the petitioner's failure to respond to specific requests for evidence, such as evidence of 
the significance of the awards received by the petitioner. 
On motion, counsel raises four points: (1) the director and the AAO should have afforded more weight 
to the petitioner's accomplishments as a shooting competitor despite the fact that the petitioner has 
worked primarily as an instructor since 2000; (2) the petitioner's alleged membership on the 
Venezuelan Olympic team constitutes a one-time achievement; (3) the record contains sufficient 
evidence that the petitioner was nationally recognized through "numerous awards/medals" and (4) the 
director and the AAO ignored the published material "about" the petitioner and the expert opinion 
letters. For the reasons discussed below, these conclusory assertions, some of which have been raised 
previously in some form, are not persuasive and cannot overcome the detailed analysis provided in the 
AAO's previous decision. 
Section 203(b) of the Act states, in pertinent part: 
(I) 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. 
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, 60898-9 (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. 5 204.5(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. 5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, 
that the petitioner must show that he has sustained national or international acclaim at the very top 
level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a sharpshooter 
instructor. Both the director and the AAO noted that the petitioner must demonstrate that he seeks to 
enter the United States to continue working in his area of expertise. The director, therefore, concluded 
that the petitioner must demonstrate sustained national or international acclaim as an instructor. In the 
interest of thoroughness, however, the director did consider the petitioner's shooting awards but 
concluded that the petitioner had not demonstrated the significance of those awards. The AAO stated: 
Although experience as an athlete is undoubtedly relevant to coaching or instructing the 
same sport, the two endeavors are not identical and an alien who seeks to enter the 
United States as a coach or instructor under the extraordinary ability immigrant 
classification cannot rely solely on prior acclaim as an athlete. While a competitive 
shooter and an instructor certainly share knowledge of the sport, the two rely on a 
different set of basic skills. Thus, competing as a shooter and instructing other shooters 
are not the same area of expertise. [Footnote referencing Lee v. INS., 237 F.Supp.2d 
914, 918 (N.D.111. 2002), a non-binding district court decision that nevertheless is 
notable for upholding the differences between competing and coaching, omitted]. 
In the present matter, the evidence is clear that the petitioner intends to work as a 
shooting instructor. Although a nexus exists between playing and coaching or 
instructing a given sport, to assume that every athlete's area of expertise includes 
instruction would be too speculative. To resolve this issue, in a case where an alien 
has clearly achieved national or international acclaim as an athlete and has sustained 
that acclaim in the field of coaching or instruction at a national or international level, 
we can consider the totality of the evidence as establishing an overall pattern of 
sustained acclaim and extraordinary ability such that we can conclude that instruction 
is within the petitioner's area of expertise. Specifically, in such a case we will 
consider the level at which the alien acts as an instructor. An instructor who has an 
established successful history of instructing athletes who compete regularly at the 
national level has a credible claim; an instructor of novices does not. Thus, we will 
examine whether the petitioner has demonstrated his extraordinary ability as an 
instructor or as an athlete. If the petitioner has demonstrated extraordinary ability as 
an athlete, we will consider the level at which he has successfully instructed. 
The AAO then concluded that the petitioner had not demonstrated sustained national or international 
acclaim as an athlete or an instructor. On motion, counsel states: "to conclude that [a] person with the 
Petitioner's merit cannot be a coach defies imagination." Counsel mischaracterizes the AAO's decision. 
At no point did the AAO suggest that a successful athlete "cannot be a coach." Rather, the AAO 
acknowledged that there is a nexus between competing and instructing in the same sport. The AAO 
then went on to consider the petitioner's documented accomplishments as a shooter and as an instructor. 
In a case where an athlete demonstrates recent acclaim as an athlete and has shfted to coaching or 
instructing at the national level too recently to document acclaim in coaching or instructing, this office 
is willing to consider athletic accomplishments and the level of coaching in determining whether 
coaching is indeed within the athlete's area of expertise. In this matter, however, the petitioner stopped 
competing six years before the petition was filed and had been instructing long enough to have 
established a reputation as an instructor if instructing is, in fact, within his area of expertise. Thus, in 
the matter before us, it is not unreasonable to require evidence of sustained national or international 
acclaim as an instructor. Regardless, as stated above, both the AAO and the director did consider the 
petitioner's athletic accomplishments but concluded that they did not establish eligibility for the 
exclusive classification sought. Thus, counsel's first assertion on motion has no merit. 
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). The petitioner's initial filing includes no reference to his alleged membership on an 
Olympic team or his receipt of an Olympic medal. In response to the director's request for additional 
evidence, counsel stated: 
BENEFICIARY MEMBER OF NATIONAL TEAM THAT WON THE 
OLYMPICS 
Page 5 
As stated earlier, regulations states [sic] that if one provides evidence of [a] one- 
time achievement such as a major international award, then he or she will meet the 
criterion for establishing Extraordinary Ability and thus qualifies for permanent 
residency. 
1. 
 Receipt of Maior International Award 
[The petitioner] is an outstanding sports shooter and a member of the Venezuelan 
National Olympic team that represented Venezuela in various national/international 
competitions including the Olympics. 
(Emphasis in original.) 
The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). The petitioner submitted a letter from 
of the Sport National Institute, Ministry of Education, Culture and Sport, w in Venezuela. 
states that the petitioner "is recognized by our institution as "National Champion" during the 
rn 
years 1997, 1999 and 2000, in the modality of Olympic Shooting, Defensive Shooting IDPA and 
Practical Shooting IPSC." 
 (Emphasis added.) This statement indicates that the petitioner was a 
national champion in an Olympic orm of shooting, not that he actually competed at the Olympics, 
which is an international event. f goes on to state that the petitioner "is the outstanding 
Shooting Leader from the Venezuelan Olympic Group, being awarded in man occasions for his 
outstanding participation in events [and] national and international contests." d is not clear as 
to whether the "Olympic Group" is limited to the actual athletes who competed at the Olympics. She 
certainly does not suggest that the petitioner actually won an Olympic medal, which he would have 
received if he was actually a member of a winning team as claimed by counsel. Finally, the petitioner 
submitted several affidavits from individuals who claim to know the petitioner but do not explain their 
association with either the Olympics or the Venezuelan national team. These individuals all suggest 
that the petitioner was the team leader for an Olympic team although they do not specifj a year or how 
the team did at the Olympics. 
The director concluded: 
It is noted that the record contains no documentary evidence to establish that the 
petitioner actually competed in the Olympic games let alone that he received an 
Olympic medal. Further, the letter from does not specifically address 
participation in the Olympic games or any prizes or award won in Olympic competition. 
On appeal, counsel stated: "Most importantlv we provided evidence (a letter from the Director General 
fi 
Page 6 
petitioner] was a member of his countrv's national team that participated in the Olvmpics 
competition." (Emphasis in original.) 
The AAO concluded that the petitioner had not adequately documented his participation on an Olympic 
team or receipt of any Olympic medals. On motion, counsel states: "We reiterate that by virtue of his 
membership in [the] Venezuelan Olympic Team, he has attained that one-time achievement 
contemplated by the regulations." Counsel no longer seems to imply that the petitioner is the recipient 
of an Olympic medal. Counsel's inconsistent claims regarding the level of the petitioner's participation 
in the Olympics reinforce why the unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter oflaureano, 19 I&N Dec. at 3 n.2; Matter of 
Ramirez-Sanchez, 17 I&N Dec. at 506. Counsel's emphasized assertions notwithstanding, the AAO 
was concerned that there is insufficient documentary evidence to support those assertions. We reaffirm 
that concern. 
The record is absent any documentary evidence that the petitioner competed at the Olympics, evidence 
that would seem to be readily available if true. The regulation at 8 C.F.R. tj 103.2(b)(2) requires the 
submission of primary evidence absent documentation that primary evidence is unavailable or does not 
exist. Only where both primary and secondary evidence are both documented as unavailable or 
nonexistent can the petitioner rely on affidavits. Id. The petitioner in this matter has not documented 
that primary evidence of his Olympic team membership, such as official team rosters or Olympic team 
identification, are unavailable or nonexistent. The petitioner has also not demonstrated that secondary 
evidence, such as published material covering his selection for an Olyr 
participation, is also unavailable or nonexistent. Thus, the ambiguous letter from 
affidavits cannot be considered sufficient evidence. 
While we do not contest that an Olympic medal, where documented, can serve as evidence of a one- 
time achievement, even counsel no longer asserts that the petitioner received an Olympic medal. 
Rather, counsel asserts that the petitioner's alleged membership on the Olympic team is sufficient 
evidence of a one-time achievement. 
Congress' example of a one-time achievement is a Nobel Prize. H.R. Rep. No. 101-723,59 (September 
19, 1990). The regulation is consistent with this legislative history, stating that a one-time achevement 
must be a major, internationally recognized award. 8 C.F.R. 5 204.5(h)(3). Significantly, lesser 
internationally recognized awards could serve to meet only one of the ten regulatory criteria, of which 
an alien must meet at least three. 8 C.F.R. 5 204.5(h)(3)(i). The selection of Nobel Laureates, the 
example provided by Congress, is reported in major media internationally regardless of the nationality 
of the awardees, is a familiar name to the public at large, and includes a significantly large cash prize. 
While an internationally recognized award could conceivably constitute a one-time achievement 
without meeting all of those elements, it is clear from the example provided by Congress that the award 
must be internationally recognized in the alien's field as one of the top awards in that field. Qualifying 
to compete for a major, internationally recognized award, such as selection for an Olympic team, is not 
the same as actually winning such an award. Thus, even if the petitioner had documented his Olympic 
team membership, which we reiterate that he has not, we would not consider this team membership as 
evidence of a one-time achievement as defined at 8 C.F.R. 5 204.5(h)(3). 
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. 8 C.F.R. fj 204.5(h)(3). The AAO addressed all of the criteria claimed by the 
petitioner: lesser nationally or internationally recognized awards pursuant to 8 C.F.R. 5 204.5(h)(3)(i), 
exclusive memberships pursuant to 8 C.F.R. 5 204.5(h)(3)(ii), published material about the alien 
pursuant to 8 C.F.R. 5 204.5(h)(3)(iii), original athletic contributions of major significance pursuant to 
8 C.F.R. 5 204.5(h)(3)(v) and performance in a leading or critical role for an organization or 
establishment with a distinguished reputation pursuant to 8 C.F.R. 5 204.5(h)(3)(viii). The AAO 
concluded that the petitioner had not established that he meets any of these criteria as an athlete or as a 
trainer. Specifically, the AAO concluded that the petitioner's shooting awards were not indicative of 
sustained national or international acclaim in 2006 when the petition was filed; that the record 
contained no evidence of the membership requirements for the associations of which the petitioner is a 
member, that the published materials submitted were either not "about" the petitioner or postdated the 
filing of the petition in a publication with undocumented circulation; that the petitioner's training 
company, while successfbl, was not original or a contribution of major significance; and that the 
petitioner had not demonstrated the nature of his roles or the reputation of the entities where he 
provided services. The AAO also rejected counsel's assertion that the letters supporting the petition 
constitute comparable evidence to meet the regulatory criteria pursuant to 8 C.F.R. $204.5(h)(4), which 
is only relevant where the regulatory criteria are not "readily applicable." We incorporate all of those 
findings into this decision by reference. 
On motion, counsel asserts that the record contains sufficient evidence that the petitioner was nationally 
recognized through "numerous awards/medals" and that the director and the AAO ignored the 
published material "about" the petitioner and the expert opinion letters. The AAO acknowledged the 
petitioner's shooting awards and prizes but concluded that awards and prizes ending in 2000 could not 
establish sustained national or international acclaim. Counsel cites no precedent decision or other legal 
authority suggesting that the congressionally mandated standard of "sustained" acclaim does not require 
evidence proximate to the date of filing. We reaffirm that, in the absence of more recent acclaim as a 
shooter, the awards and prizes cannot be considered sufficient evidence of sustained acclaim in 2006 
when the petition was filed. 
Next, neither the director nor the AAO "ignored" the published material submitted. Rather, this 
evidence was considered and concluded to be insufficient. As stated above, the AAO concluded that 
the published material initially submitted was not "about" the petitioner as required under the plain 
language of 8 C.F.R. 
 204.5(h)(3)(iii). The article submitted in response to the director's request for 
evidence was about a training session led by the petitioner but was not specifically "about" the 
petitioner relating to his work as required by 8 C.F.R. 5 204.5(h)(3)(iii). Regardless, citing 8 C.F.R. 
$5 103.2(b)(l), (12) and Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Cornm'r. 1971), the AAO 
concluded that the new article postdated the filing of the petition and could not be considered. 
Counsel cites no precedent decision or other legal authority suggesting that the regulation at 8 C.F.R. 
5 204.5@)(3)(iii) requires anything less than the plain language mandates, published material "about the 
alien . . . relating to the alien's work in the field." Counsel also fails to cite any precedent decision or 
other legal authority permitting the AAO to rely on evidence that postdates the filing of the petition. To 
the contrary, two regulatory provisions, a federal court decision and several precedent decisions 
consistently hold in no uncertain terms that such evidence may not be considered. See 8 C.F.R. 
$5 103.2(b)(l), (12); Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008); Matter of Izummi, 22 
I&N Dec. 169, 175 (Comm'r. 1998); Matter of Bardouille, 18 I&N Dec. 1 14 (BIA 198 1); Matter of 
Wing's Tea House, 16 I&N Dec. 158, 160 (Reg'l. Comm'r. 1977); Matter of Great Wall, 16 I&N Dec. 
142, 144-145 (Act. Reg'l. Comm'r. 1977); Matter of Katigbak, 14 I&N Dec. at 49. 
Finally, we acknowledge the submission of two letters from the petitioner's close colleagues 
general terms to his talent as a shooter. The petitioner also submitted the vague letter from 
and the affidavits from friends of the petitioner with no alleged association with the Olympics attesting 
to the petitioner's alleged membership on an Olympic team. As stated above, the AAO considered the 
claims that the petitioner was a member of an Olympic team and found the testimonial evidence 
insufficient in the absence of primary evidence or secondary evidence. The AAO further concluded 
that the petitioner had not demonstrated that the regulatory criteria are not "readily applicable" to his 
occupation (the petitioner, in fact, claims to meet several of them) and, thus, cannot rely on 
"comparable evidence" pursuant to 8 C.F.R. 5 204.5(h)(4). Counsel cites no precedent decision or 
other legal authority suggesting that comparable evidence may be submitted in situations where the 
petitioner has not explained how the criteria are not readily applicable to his field, which would be in 
clear contradiction to the plain language of 8 C.F.R. 5 204.5(h)(4). 
Moreover, we are not persuaded that necessarily subjective letters, while usehl in explaining the 
objective evidence, are "comparable" in and of themselves to the ten objective evidentiary criteria set 
forth at 8 C.F.R. 5 204.5(h)(3). The opinions of experts in the field, while not without weight, cannot 
form the cornerstone of a successful claim of sustained national or international acclaim. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795. USCIS may even give less weight to an opinion that is not corroborated, 
in accord with other information, or is in any way questionable. Id at 795; see also Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg'l. Comm'r. 1972)). Vague, solicited letters from local colleagues or letters that do not 
specifically identify contributions or how those contributions have influenced the field are 
insufficient. Kazarian v. USCIS, 2009 QTL 2836453, *5 (9th Cir. 2009). 
In light of the above, counsel's brief, conclusory assertions on motion, none of which are supported by 
precedent decisions or other binding legal authority, are not persuasive and cannot overcome the 
detailed analysis provided in the AAO's previous decision. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner has not sustained that burden. Accordingly, the previous decision of 
the AAO will be affirmed, and the petition will be denied. 
ORDER: 
 The AAO's decision of March 19,2009 is affirmed. The petition is denied.