dismissed EB-1A Case: Athletics

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DATE: Office: TEXAS SERVICE CENTER 
INRE: 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, 
~;Z5/,-
PerryRhew ~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 C.F.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 c.F.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. In addition, as noted by the director in his denial, the evidence 
submitted does not establish that the petitioner is "coming to the United States to work as an athlete," 
as required by 8 C.F.R. § 204.5(h)(5). 
I. 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 
Page 3 
(iii) the alien's entry into the United States will substantially benetit 
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 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)). 
While counsel asserts that the final merits determination "is still in [sic] issue," counsel's assertions are 
not persuasive. Counsel relies on Buletini v. INS, 860 F. Supp. 1234 (E.D. Mich. 1994) for the 
proposition that submission of evidence under three criteria alone is sufficient to establish eligibility. 
Notably, the court in Buletini did not reject the concept of evaluating the quality of the evidence at 
any time. Specifically, the court in Buletini acknowledged that "the examiner must evaluate the 
quality, including the credibility, of the evidence presented to determine if it, in fact, satisfies the 
criteria." Buletini, 860 F. Supp. at 1234. The court continued: 
I 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 4 
Once it is established that the alien's evidence is sufficient to meet three of the criteria 
listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability 
unless the INS sets forth specific and substantiated reasons for its finding that the alien, 
despite having satisfied the criteria, does not meet the extraordinary ability standard. 
Id. (Emphasis added.) As is clear from the italicized language, the Buletini court considered the 
possibility that an alien can submit evidence satisfying three criteria and still not meet the extraordinary 
ability standard provided legacy INS explains its reasoning. 
Regardless, in contrast to the broad precedential authority of the case law of a United States circuit 
court, the AAO is not bound to follow the published decision of a United States district court. See 
Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's decision 
will be given due consideration when it is properly before the AAO; however, the analysis does not 
have to be followed as a matter of law. Id. at 719. Ultimately, the subsequent reasoning of a circuit 
court decision outweighs the reasoning of an earlier district court decision. Significantly, the 
Kazarian court cited Buletini for the nature of the alien's achievements in that case. 
In this matter, the AAO will review the submitted evidence under the plain language requirements for 
each applicable criterion. While the director concluded that the petitioner met at least three of the ten 
regulatory categories of evidence, the AAO finds that the petitioner met only two of the criteria. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 
683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO 
conducts appellate review on a de novo basis). Therefore, 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 
antecedent regulatory requirement of three types of evidence. 
II. ANALYSIS 
A. Evidentiary Criterii 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The director found that the petitioner satisfied the plain language requirements of the regulation at 
§ 204.5(h)(3)(i) and the AAO concurs with that finding. 
Documentation of the alien's membership in associations in the field for which class(fication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 5 
The director concluded that the petitioner did not meet this criterion under 8 C.F.R. § 204.5(h)(3)(ii). 
Although the AAO finds that the director erred when he determined that the International Olympic 
Committee (IOC) is the only membership associated with the Olympic Games, the AAO agrees with 
the director that this criterion has not been satisfied. 
An athlete can earn a place on an Olympic team through rigorous competition which separates the very 
best from the great majority of participants in a given sport. The AAO agrees with counsel's assertion 
that an athlete's membership on an Olympic team or a major national team may serve as evidence to 
qualify as membership in an association, as such teams are limited in the number of members and have 
a rigorous selection process. The AAO reiterates, however, that it is the petitioner's burden to 
demonstrate that he or she meets every element of a given criterion, including that membership on the 
team requires outstanding achievements of its members, as judged by recognized national or 
international experts. The AAO will not presume that every national "team" is sufficiently exclusive. 
In addition, the plain language of the regulation at 8 c.F.R. § 204.S(h)(3)(ii) requires "evidence of the 
alien's membership in associations" in the plural, which is consistent with the statutory requirement for 
extensive evidence. Section 203(b )(1 )(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R. 
§ 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 c.F.R. §§ 204.5(h)(3)(iv) and 
(ix) only require service on a single judging panel or a single high salary. When a regulatory criterion 
wishes to include the singular within the plural, it expressly does so as when it states at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, the AAO can 
infer that the plural in the remaining regulatory criteria has meaning. In a different context, federal 
courts have upheld uscrs' ability to interpret significance from whether the singular or plural is used 
in a regulation.3 
Among the documentation contained in the record is evidence that the petitioner was a member of the 
Chinese delegation at the 2008 Olympic Games in Beijing, the 10th and 11 th National Games of the P.R. 
of China, as well as a member of the Chinese Athletic Association (CAA). 
As stated above, it is the petitioner's burden to demonstrate that membership requires outstanding 
achievements of its members, as judged by recognized national or international experts. While the 
AAO finds that the petitioner's membership on the Chinese delegation at the 2008 Olympic Games in 
Beijing is evidence of membership in one association, the petitioner did not submit any evidentiary 
documentation regarding the requirements for the others, including the National Games of the P.R. of 
China and the CAA. As such, the AAO is unable to determine whether these memberships satisfy this 
criterion. 
3 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com 
Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the 
regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
Page 6 
In light of the above, the petitioner has not submitted qualifying evidence under 8 CF.R. 
§ 204.5(h)(3)(ii). 
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 found that the petitioner satisfied the plain language requirements of the regulation at 
8 CF.R. § 204.5(h)(3)(iii). The AAO finds that director erred in his finding. The plain language of the 
regulation requires "any necessary translation." The petitioner submitted copies of a number of 
publications written in Chinese accompanied by translations into English. However, the petitioner 
provided only one "Certificate of Accuracy" for the "annexed documents." The certificate of accuracy 
does not identify which translations the affiant is certifying. Therefore, the translations of the 
publications did not comply with the terms of 8 CF.R. § 103.2(b )(3): 
Translations. Any document containing foreign language submitted to [USCIS] shall 
be accompanied by a full English language 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. 
In light of the above, the petitioner has not submitted qualifying evidence under 8 CF.R. 
§ 204.5(h)(3)(iii). 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The director concluded that the petitioner did not meet this criterion under 8 CF.R. § 204.5(h)(3)(v). 
While the AAO agrees with the director that "[l]etters of support alone are not sufficient to meet this 
criteria," the AAO finds that the director erred in his conclusion. Although the AAO concurs with the 
director that this criterion could be satisfied "with a World Record," the AAO agrees with counsel that, 
"in the regulation, nothing indicates that the contributions of major significance in the field must be 
international." The record contains evidence that the petitioner holds the record in China in the 800m, 
was the first athlete to compete for China in the 800m at the Olympics and was the first person to win 
Gold medals in two consecutive games at the National Games of the P.R. of China in the 800m. 
In light of the above, the petitioner has submitted qualifying evidence under 8 CF.R. § 204.5(h)(3)(v). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director concluded that the petitioner submitted qualifying evidence under 8 CF.R. 
§ 204.5(h)(3)(viii). The record does not support this conclusion. The AAO finds that the director erred 
when he stated in the denial that "it can be said that your consistent 1
51 
place finishes indicate that you 
Page 7 
have performed in a leading role for the CAA." The petitioner's first place finishes have already been 
addressed under 8 C.F.R. § 204.5(h)(3)(i). The AAO will not presume that evidence relating to or even 
meeting the awards criterion is presumptive evidence that the petitioner also meets this criterion. To 
hold otherwise would render meaningless the regulatory requirement that a petitioner meet at least three 
separate criteria. Therefore, the petitioner's awards will not be considered under this criterion, as the 
awards criterion has already been addressed above. 
In addition, as previously discussed, the use of the plural is consistent with the statutory requirement for 
extensive evidence. Section 203(b)(1)(A)(i) of the Act. Therefore, even if the AAO agreed with the 
director, which it does not, the plain language of this regulatory criterion requires evidence of 
performing in a leading or critical role for more than one organization or establishment. 
In light of the above, the petitioner has not submitted qualifying evidence under 8 C.F.R. 
§ 204.5(h)(3)(viii). 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
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. Upon review of the evidence, the AAO 
concurs with the director. 
B. Summary 
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 antecedent regulatory requirement of three types of evidence. 
C. Continue to work in the area of extraordinary ability 
While counsel is correct that the classification sought does not require an "employment letter," it is an 
employment-based classification that requires that the alien seek to enter the United States to continue 
working in his area of expertise. Section 203(b)(1)(A)(ii) of the Act. It is "by virtue of such work" that 
aliens under this classification will substantially benefit prospectively the United States as envisioned 
under section 203(b)(1)(A)(iii) of the Act. H.R. Rep. No. 101-723,59 (Sept. 19,1990). Congress did not 
intend for aliens of extraordinary ability to immigrate to the United States and remain idle. 56 Fed. Reg. 
30703, 30704 (July 5, 1991). While neither the statute nor the regulations specify that the employment 
must be full-time, minimal hours of employment as a hobby or incidental to the alien's primary source of 
income does not substantially benefit prospectively the United States. 
The regulation at 8 C.F.R. § 204.5(h)(5) provides: 
Page 8 
No offer of employment required. Neither an offer for employment in the United States 
nor a labor certification is required for this classification; however, the petition must be 
accompanied by clear evidence that the alien is coming to the United States to continue 
work in the area of expertise. Such evidence may include letter(s) from prospective 
employer(s), evidence of prearranged commitments such as contracts, or a statement 
from the beneficiary detailing plans on how he or she intends to continue his or her 
work in the United States. 
While the petitioner did submit a statement, he does not provide sufficient detail regarding his intentions 
to continue to work in the United States. The petitioner states that he hopes to "first enter an American 
College [sic] to study for a doctoral degree," "find a suitable athletic coach" and "gradually merge 
[him]selfinto the American track and field circle." It is clear from the petitioner's own statement that his 
initial focus will be on attending school. Beyond vague references that the petitioner hopes to find a 
coach and compete, the record contains no evidence that the petitioner will be employed as an athlete. 
On appeal, counsel asserts that a recommendation letter from_should be considered as evidence 
that the petitioner is coming to the United States to work as an athlete. Review of the letter fails to 
support this claim. According to _'after he has got [sic] his green card, he will be able to make 
more contributions to promoting the exchange between the [sic] Chinese and American athletes and the 
US National Track and Field Team may have another excellent runner in [the] men's 800m." This is an 
employment-based visa classification and the petitioner has offered no evidence that his athletic career 
will continue on anything more than an extra-curricular basis. Even counsel states on appeal that "[i]t is 
reasonable for a graduate and postgraduate student to concentrate on his study [sic] and temporarily out 
[sic] off many track meets." 
For these reasons, the AAO concurs with the director's finding that the petitioner has not submitted 
qualifying evidence under 8 C.F.R. § 204.5(h)(5). 
III. CONCLUSION 
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 deterrnination.4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
4 The AAO maintains de novo review of all questions of fact and law. See Sollane v. DOl, 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 l03(a)(l) of the Act; 
Page 9 
antecedent regulatory requirement of three types of evidence. Id. at 1122. Furthermore, the petitioner 
has also failed to provide sufficiently detailed evidence that he intends to continue to work in his area of 
expertise. 
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. 
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).