dismissed EB-1A Case: Athletics

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PWC COPY 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
c LIN 07 174 51803 
 JUL 2 9 2009 
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: 
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. 
5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a 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. 
5 103.5(a)(l)(i). 
Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The 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 1 153(b)(l)(A), as an 
alien of extraordinary ability in athletics. 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. More specifically, the director found that the petitioner had 
failed to demonstrate receipt of a major, internationally recognized award, or that he meets at 
least three of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
On appeal, counsel for the petitioner argues that the petitioner meets the statutory requirements and 
at least three of the regulatory criteria at 8 C.F.R. 5 204.5(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 to the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and the 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 has 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 she has sustained national or international acclaim at 
the very top level. 
This petition, filed on June 19, 2007, seeks to classify the petitioner as an alien with 
extraordinary ability as a professional baseball player. 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 of the criteria outlined in 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 AAO notes that the petitioner is currently in 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 seeks 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. 5 1 184(c)(4)(A). 
While USCIS approved at least one P-1 nonirnmigrant 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 standard. It must be noted that 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 Brothers Co. Lta'. 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 petitioner has submitted evidence that, he claims, meets the following criteria under 8 C.F.R. 
5 204.5(h)(3).' 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
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 documentation indicating that he had received the "Rolaids Relief Man 
Award 1998 Team Champion." The petitioner submitted no documentation to establish that the 
award is a nationally or internationally recognized award for excellence in his field. On appeal, 
counsel asserts that the award "is only available to honor the top reliever pitchers" and "is based 
on a system of points where different amounts are allocated to each save and/or win and the 
highest scoring relief pitchers are honored each year." Although counsel referenced the website 
for the award, he did not provide any corroborative documentation from the website. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 
(BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). The petitioner again 
submitted no documentation to establish that the Rolaids Relief Man Award is nationally or 
internationally recognized as an award for excellence in his field. 
Additionally, section 203(b)(l)(A)(i) of the Act requires the alien to demonstrate sustained 
national or international acclaim. A single award, received nine years prior to the date the 
petition was filed, is not consistent with sustained acclaim. 
Counsel also asserts on appeal that the petitioner "is recognized as one of the most prestigious 
members of the Mexican League of the Pacific" and that his team "in this league went on to win 
two titles in the Series of the Caribbean competitions in 1996 and 2002, in addition to nine 
championships within the league." Counsel does not explain, however, how these titles and 
championships constitute an award to the petitioner. 
The petitioner has failed to establish that he 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. 
To demonstrate that membership in an association meets this criterion, the petitioner must show 
that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, 
minimum education or work experience, standardized test scores, grade point average,. 
recommendations by colleagues or current members, or payment of dues do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. The overall prestige 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
The petitioner claims to meet this requirement based on his profession as a major league baseball 
player. According to counsel, "Major League Baseball teams require outstanding achievements 
of their members, as only a very small percentage of baseball players ever make it to the Major 
Leagues." While it may be true that only a very small percentage of baseball players play in the 
major league, the petitioner submitted no evidence that in order to become a major leaguer, a 
player must have an outstanding achievement. Baseball scouts recruit players based on "talent" 
and potential.2 Recruiting a good or talented player is not the equivalent of requiring outstanding 
achievement as a condition of employment or "membership' in the major leagues. 
The petitioner also claims to meet this criterion based on his membership in the Major League 
Baseball Players Association (MLBPA). In his unsigned April 29, 2008 letter accompanying the 
petitioner's response to the RFE, counsel stated that membership in the MLBPA is limited "only 
to those players who play for an MLB [Major League Baseball] team." Counsel further asserts, 
"A high percentage of professional baseball players never make the major leagues and by virtue 
of earning a spot on a major league team, [the petitioner] has demonstrated outstanding 
achievements in the field of professional baseball." Nothing in the record supports counsel's 
assertion regarding membership in the MLBPA. Counsel's assertions are not evidence. Matter of 
Obaigbena, 19 I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. 1; Matter of Ramirez- 
Sanchez, 17 I&N Dec. at 506. 
Counsel renews his argument on appeal, citing to the webpage for the MLBPA. However, 
counsel did not include documentary evidence from the MLBPA website to corroborate his 
statements. Further, counsel acknowledges that the MLBPA is the collective bargaining unit for 
major league baseball players, but argues that membership is only "open to the best baseball 
players." Nonetheless, the petitioner submitted no documentary evidence to establish that 
membership in the MLBPA is limited to those who have achieved outstanding achievement as 
judged by recognized national or international experts in their disciplines or fields. USCIS has 
long held that 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. Comrnr. 1994); 56 
Fed. Reg. at 60899. 
The petitioner has failed to establish that he 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 Jield for which classfication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
- - 
2 
 See, e.g., McAdam, Sean, "Scouts Must Dig Deeper Than Tools," Special to ESPN Sportszone, 
www.hsbaseballweb.com/vro-scoutindscouts dig deep,htm; "Major League Baseball Scouting Bureau 
Questions & Answers," www.hsbaseballweb.com/pro-scouting/mlsb interview.htm, both accessed on 
July 20,2009 and copies of which have been incorporated into the record. 
Page 6 
In order to meet this criterion, published material must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as The New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner submitted a copy of a newspaper article about him that appeared in the Post- 
Gazette. The article is not dated and the petitioner submitted no documentation to establish that 
the Post-Gazette is a professional or major trade publication or is other major media. On appeal, 
counsel asserts that the article appeared in the August 3 1, 1997 edition of the Pittsburgh Post- 
Gazette. However, the petitioner's evidence does not corroborate counsel's statement. Counsel 
also references, in a footnote, a website for the newspaper that apparently describes the paper's 
circulation. However, no documentation from this website was included in the record. Counsel's 
unsupported statements are not evidence. See id. 
The petitioner submitted a copy of a November 19, 1998 article from the post-gazette.com 
website reporting that he had been traded. The petitioner also submitted a copy of an article 
about him from the December 13, 2005 edition of the St. Louis Post-Dispatch, and a copy of a 
February 16, 2007 edition of the newspaper that was reprinted on STLtoday.com and accessed 
by the petitioner on February 27, 2007. The petitioner submitted no documentation to establish 
that post-gazette. com, the St. Louis Post-Dispatch, or STLtoday. com, is a professional or major 
trade publication or is other major media. 
The petitioner submitted a copy of an August 25, 1998 edition of the St. Louis Post-Dispatch 
reporting that he was the pitcher at the time Mark McGwire become only the third MLB player 
to hit 53 home runs. This article is about Mark McGwire and not the petitioner. Copies of other 
articles frompost-gazette.com, the Los Angeles Times, The New York Times, and The Sun Diego 
Union-Tribune, reprinted from the website of ProQuest, report on the results of games in which 
the petitioner played. Although he is mentioned in the articles, the articles are not primarily 
about the petitioner. 
The petitioner also submitted copies of articles retrieved from the esmas.com and 
worldbaseballclassic.com websites. However, all of these documents are in Spanish and are not 
accompanied by English translations. The regulation at 8 C.F.R. fj 103.2(b)(3) requires that 
documents submitted in a foreign language "shall be accompanied by a full English translation 
which the translator has certified as complete and accurate, and by the translator's certification 
that he or she is competent to translate from the foreign language into English." Because the 
petitioner failed to submit certified translations of the documents, the AAO cannot determine 
whether the evidence supports the petitioner's claims. Accordingly, the evidence is not probative 
and will not be accorded any weight in this proceeding. Another article in Spanish does not 
identify the source, the date or an author of the work. Therefore, it also lacks probative value. 
Other documentation submitted included information taken from the website of the Cleveland 
Indians and the Oakland Athletics, teams for which the petitioner played, and statistics about the 
petitioner taken from the websites of sportplanet.com and baseball-almanac.com, and his career 
highlights taken from the MLB website. These documents do not include the date or author of 
the material as required by the regulation. Further, in today's world, many news articles and 
printed materials, regardless of size and distribution, are posted on the Internet. To ignore this 
reality would be to render the "major media" requirement meaningless. We are not persuaded 
that international accessibility via the Internet by itself is a realistic indicator of whether a given 
publication is "major media." The petitioner must still provide evidence, such as a widespread 
distribution, readership, or overall interest in the publication in order to demonstrate that the 
publication is a professional or major trade publication or major media in order for us to credit 
this material. 
The petitioner submitted documentation indicating that he has appeared on baseball cards. On 
appeal, counsel asserts that this is evidence that the petitioner meets this criterion and is further 
evidence of his achievements as an MLB player. However, baseball cards do not contain a title, 
date or author and are therefore not published material as contemplated by the regulation. 
The petitioner has failed to establish 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. 
To meet this criterion, the petitioner must show that he performed in a leading or critical role for 
organizations or establishments and that the organizations or establishments have a distinguished 
reputation. 
The evidence establishes that the petitioner was a member of the 2002 Oakland Athletics when it 
had a 20-game winning streak and won the American League West Division Championship, and 
was a member of the St. Louis Cardinals when the team won the 2006 World Series. The 
evidence sufficiently establishes that the petitioner has played for organizations with 
distinguished reputations. 
In his April 29,2008 letter accompanying the petitioner's response to the RFE, counsel stated: 
[The petitioner] served for five MLB teams from 1997 - 2006. As a relief pitcher, 
[he] participated in an average of 68 of his team's 162 games each season (i.e. 
42% of the time). As a professional pitcher, participation in 42% of a team's 
games amounts to performance of a "critical role" for that team. [The petitioner] 
performed this critical role for ten seasons. [His] salary history evidences how 
critical his role was to each of the teams he played for. 
We note first that it should be emphasized that the regulatory criteria are separate and distinct 
from one another. Because a separate criterion exists for remuneration, USCIS does not view 
these criteria as being interchangeable. If evidence sufficient to meet one criterion mandated a 
finding that an alien met another criterion, the requirement that an alien meet at least three 
criteria would be meaningless. The petitioner's salary and other compensation are the subject of 
the criterion discussed immediately below. 
The petitioner submitted a copy of a page from the website of baseball-reference.com. A review 
of that website reveals that the owner of the site uses 68 as the average number of appearances 
for all relief pitchers. The site indicates that during his 10-year history, the petitioner played in 
557 games, an average of approximately 34.4% instead of the 42% alleged by counsel. As noted 
by the director, the document indicates that the petitioner pitched in 439.7 innings, 
approximately 3% of the innings that would have been played during his 10-year career. 
On appeal, counsel asserts that as a "left-handed specialist, [the petitioner] will not have the 
opportunity to pitch as much as a regular pitcher, therefore, his statistics must be compared in 
light of the fewer opportunities to pitch." Nonetheless, the petitioner provided no evidence that 
his pitching as a "left-handed specialist" was in the nature of a critical or leading role for any of 
the teams on which he played. 
The petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signzficantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted documentation, including copies of his contracts, federal tax returns, 
and a page from the USA Today website indicating that his salary, without bonuses, ranged, 
according to his contracts, from $150,000 in 1997 to $1,900,000 in 2005 and back to $1,600,000 
in 2007. 
The petitioner submitted information from the USA Today website listing the salaries of his 
teammates during 2004, 2005 and 2006. However, while this data reflects the petitioner's salary 
as it compares to his teammates, it is not evidence of his salary relative to all others in his field. 
Other documentation from the USA Today website shows the median salary of major league 
baseball teams for 2006 and 2007. This documentation only reflects the median salary of major 
league players in each team. It does not reflect the salaries of those who were in the upper 
echelon of salaried players. Therefore, it cannot be determined from the evidence submitted that 
the petitioner's compensation was significantly high compared to those players who earned more 
than the median salary. 
The petitioner also submitted documentation regarding 2008 salaries of major league players. 
However, as these salaries were paid in 2008, they are not evidence of this criterion. A petitioner 
must establish eligibility at the time of filing; a petition cannot be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. 8 C.F.R. $5 103.2(b)(l) 
and (12); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). The petition was filed on June 
Page 9 
19,2007. Therefore, salaries paid in 2008 cannot establish that the petitioner was compensated at 
a significantly high level relative to others in his field prior to the filing of the petition. 
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 his field of endeavor. Review of the record, 
however, does not establish that the petitioner has distinguished himself to such an extent that he 
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. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(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.