dismissed EB-1A Case: Athletics

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:'
WAC 05 12451018
Office: CALIFORNIA SERVICE CENTER Date:
INRE: , Petitioner:
Beneficiary:
r·
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:
This is the decision of the Adfninistrative 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 ..:
J!Ju;JtCf)~de ..
c. i Robert P. Wiemann, Chief
t(V Ad~inistrative Appe~ls Office
www.uscis.gov·
Page 2
DISCUSSION : The Director,Califomia Service' Center, denied the employment-based immigrant
visa petition, which is now before the .Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks classification as an "alien of extraordinary ability".jn 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 hadn9t established the sustained national or international acclaim necessary
to qualify for classification as an alien of extraordinary ability. '. .
On appeal, counsel submits a brief and additionaleyidence. While not all of the director's analysis is
persuasive, we concur with the director that the petitioner has not demonstrated that she enjoyed
sustained national' or international' acclaim as of the date of filing.. Specifically, the most persuasive
evidence submitted relates to'two regulatory criteria; awards for excellence and exclusive memberships
pursuant ·to 8 C.F.R. § 204.5(11)(3)(i),(ii),but even the strongest of that evidence is not indicative of
sustained acclaim as of the date of filing. Regardless, as will be discussed below, the record :ralls far
short of establishing that the petitioner meets a third criterion as required.
Section 203(b) of the Act states, inpertinent part,that:
(1) Priority W~rkers; -- Visas shall first be made available ... to qualified immigrants who are.
aliens described in any ofthe following subparagraphs (A) through (C):
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph if~-
(i) th~ alien has extraordinary ability in the scjences, arts, education,
. business, or athletics which has been demonstrated by sustained national. or
international acclaim and whose achievements have been recognized in the
fi.eldthrough extensive documentation,. . .
. (ii) the alien seeks t~ enter the Uniteq 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.
Citizenship and Immigration Services (CIS) ffiId 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 (November 29,
1991)~ As used in this seCtion, the term "extraordinary-ability" means a level of expertise indicating
that the individual is one of that small percentage who have risen to the very top of the field of
endeavor. 8 C.F.R. § 204.5(h)(2). The specific requirements for supporting documents to estaplish that
an alien has sustaiIled national ·or international acclaim and recognition in his or her field of expertise
· Page 3
, ' ,
are set forth in the regulation at 8 C.F.R. § 204.5(h)(3). The relevant criteriawill be addressed below.
It should be reiterated, however, that the, petitioner must show that she has sustained national or
international acclaim at the verytop level.
,Thi~ petition seeks to classify the petitioner as an alien with extraordinary ability as a track and field
runner. The regulation at 8 C.F.R. § 204.5(h)(3) indicates that analien can establish sustained national
or international acclaim through evidence of a one~time achievement (that is, a major, international
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; The petitioner has submitted evidence that, she claims, meets the
following criteria.I ,
Documentation of the alien'~ receipt of lesser ,nationally or internationaily recognized prizes or
" awards for excellence in thefield ofendeavor. .
As evidence to meet this criterion, the petitioner relies on official meet results posted on the Internet.
The director concluded this was "secondary" evidence that could not serve to establish that an alien
,meets this criterion. On appeal, counsel challenges this conclusion, noting that the results provided
were official results posted on official websites. ' ,
While newspaper coverage may be "secondary" evidence of the results of an athletic event; official
results published by the sponsors of the event are credible evidence that the direptor should have
accepted. At issue, then, are whether the petitioner's results rise to the level of lesser nationally or
internationally recognized prizes or awards and whether they are indicative of sustained acclaim' on '
March 30, 2005, when the petition was filed. '
At the outset, we note that counsel has asserted that ~ome competitions are so exclusive that merely
qualifying to race in them is a prize or award for excellence. We disagree'. The plain language of the
regulation at' 8 c.P.R. § 204.5(h)(3)(i) requires the submi~sion of evidence of the alien's r~ceipt of a
lesser nationally orinternatiomilly recognized prize or award. In athletics, qualifying to compete is a
prerequisite to winning an award or prize, but is not the'award or prize itself. ' Even ifwe accepted that
qualifying to compete is somehow "comparable" to actually winning, and we do not, the regulation at
8 c.P.R. § 204.~(h)(4) provides that comparable evidence will only be c,onsideredwhere a criterion is
not readily applicable 'to the alien's field. The petitioner has not established that awards o~ prizes are
not applicableto her fie1ei of track and field. In fact, the record contains ample evidence that awards
and prizes are issued in track and field. Thus, we will only consider the petitioner's actual awards and
prizes. In addition, we will not consider the petitioner's junior awards, as they do not represent
competition against the best athletes nationally. '
1 The petitioner does not cl<).im to meet ~r submit evidence relating to the criteria not discussed in this
decision.
Page 4
. . . .
The petitioner .was the Polish champion in the 800 meter,run in 1998 anci the Polish champion in the
same event indoors in 1998 and 2000. The petitioner earned her best time, 2:00.31, at the European
Outdoor Championship in 1998, but still came in third in a semifinal heat. The record contains no
evidence that she won an award or prize at this competition.. In July 1998, the petitioner finished
· second at the Nurnberg International Meeting.
The petitioner submitted a University of Southern California (USC) press release about the school's
performance at the 2002 NCAA Outdoor Track and Field Championships. The press release indic~tes
that the petitioner "earned All-American honors and scored two points for usC by finishing seventh in
· the 800m in a time of 2:06.35. It's the fifth consecutive year that a Woman of Troy has scored in the
800m. at the NCAAs." In 2002, the petitioner finished second for USC at the Track and Field
Invitational College and Club event. The record contains no information about the national reputation
· of this event. . .
The petitioner finished first in the 800 meter run at the. Invitational
in 2004, representing Poland. The University of California, Los Angeles (UCLA). hosts the
· competition, consisting of collegiate teams."and some of the nation's elite athletes" competing in the
invitational. .. The petitioner; whose affiliation,is.listed as "unattached," also finished first in the 800 . '.
meter run at the Stanford University Invitational in 2004. This competition accepts a limited number of
"open athletes" in order "to enhance the quality" of the competition.. In order to qualify for
consideration as an open athlete in the 800 meter run, the competitor must have finished the event in
2:12 or less in 2004.
The petitioner did submit evidence that the Home Depot Invitational awards more than $140,000 and
attracts more than 40 Olympians.as well as others seeking Olympic "A" standards: WhIle'the record
demonstrates that the petitioner competed at this event, the record does not.reflect that she won any
· award or prize at this event. .. '
. .
The petitioner's awards while competing for the Polish national team and her natiomil championship
status are notable. The most recent of these awards, however, was in 2000, approximately five years
before the petition was filed:' In order to demonstrate that she enjoyed sustained acclaim as of the date
of filing;.the petitioner must demonstrate continued awards and prizes more proximate t6 the filing of
the petit~on.Moreover,the petitioner must also be eligible as ofthat date. See 8 C.F.R. § 103.2(b)(12);
Matter of Katigbak,14 I&N Dec. 45, 49 (Reg. Comm. 1971). Thus, while the petitioner submitted
evidence of awards and prizes received after the date of filing, we cannot consider these awards as .
evidynce ofthe petitioner's eligibility as ofthat date: . .
, .
On appeal, the petitioner submits letters· from Presidertt of the Los Angeles Sports
'Council, and the petition~r's personal coaches <;lttestingto the caliber of athletes competing at the ~.
•••••••••. iii•• an4 Stanford University Invitatiorials. Far more persuasive would have
been h:~tters from' sport,s authorities' outside of California confirming the national reputation of these
invitationals or media coverage ofthe eventsthymselves in national trade journals or general media.
Page 5
Considering the evidence as a whole, we are persuaded that 'the petitioner meets this criterion, although
we note that her awards prior to 2001 ,appear to outshine,her more recent accomplishments.
. . . . .
Documentation of the alien's membership in associations in the field for which' classificati~n is'
sought, which require outstanding achievements oftheir members, as judged by recognized national
or international experts in their disciplines orjields.
The petitioner has competed; for USC and is a member of VS Athletics Track Club,'one of 30 USA
Track arid Field ,Elite Development Clubs. The record does not establish that she was a member of the
VS Athletics Track Club as of the date of filing. Regardless, college,teams and elite athletic clubs are
not national teams and cannot serve to meet this criterion. We note that the Supplementary information
at 56 Fed. Reg. 60899 (November 29, 1991) states:
The Service disagrees that all athletes performing at the major league level should,
automatically meet the "extraordinary ability" standard.... A blanket rule for all major':
l~ague athletes would contravene Congress' intent to reserve this category to "that small
percentage of individuals who have risen to the very top of their field ofendeavor." , ,
.". ",'
. ",
If major leagUeteam status is insufficient, we cannot conclude that college level play or sponsorship by ,
an elite athletic club can serve to meet this criterion. ,In addition"counsel asserts that"the petitioner's
, best time would qualify her for the U.S. Olympic team but that Poland sends few athletes and, thus,
requires a: lower time 'to qualify. Counsel notes that the petitioner's best time 'is below some of the
winning times in some Olympic heats. Counsel is not persuasive. The plain language of the regulation
at '8 C.F.R. § 204.5(h)(3)(ii) 'requires membership, not potentially qualifying fOf membership.
Moreover, the fact that the petitioner's best time is lower than some of the winning times in some
Olympic heats several years later is not persuasive. 'We will not speculate that the petitioner could have
'matched or outperformed, her' best time had she been there. The record does not reflect that the
petitioner routinely runs t1?e 800 meter run at or .close to her best time. ' ,
We' acknowledge thatthe petitioner competed for the Polish national team. The record, however, does,
not establIsh that the petitioner was a competing member of the Polish national team after 2000. In
light of the above, the petitioner has not submitted recent evidence that serves to meet this criterion.
'Even,ifwe w~reto conclu;dethat the petitioner meets this criterion, and we do not, the ~vidence falls far
short pf meeting a third criterion as required. '
Publishedmaterial$ 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. ' Sitch evidence
shall {ncludethe title; date, and author ofthe material, and any necessary translation.
, " Initially, the petitioner submitted two 1995 articles and a 1997 article appearing in Polish newspapers
with an' unknown circulation. ,In response to the director's request for additional evidence, the
petitioner submitted. a July 2005 article in an unidentified English-language publication, a July 2005.·
· 'article in News ofPolonia and an August 2005 article in Ziemia Gorzowska. Counsel asserts that Ne!Vs
.ofPoland is a mpnthly newspaper distributed to.the Polish community in southern California and that .
Ziemia Gorzowska is one of the ,two largestweekly newspapers in Poland. 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, 17I&N Dec. 503, 506
· (BIA 1980). The petitioner did not submit any, evidence of the circulation of these newspaper~.
Moreover, all ofthe new articles postdate the filing ofthe petition.' '
Finally, the petitioner submitted an undated ·letter from the Chief Editor of•••••••••
advising that a show about the petitioner would air in Poland in October. Counsel asserts that the show
would air in October 2005, after the filing date of~his petition. The. editor indicates that the show
reaches 300,000 television viewers in Western Poland. He does not clearly indicate that this show is
televised nationally. Regardless, the record does riot establish that this show aired prior to the date of
· filing. Similarly, the petitioner submitted a letter .from _,Host of "The Competitors" radio
show and publisher of Competitor Magazine discussing upcoming coverage of petitioner. All of this
.. ebveragepostdates the filing of the petition~
The director' sdiscussion of this·criterion does not appear to relate to the facts of this case oreveIi the.
petitioner's field of athletics. Rather, the director concluded that "citation of the work of others is
expected and ro~tine." As noted by counsel on appeal, however; the 'petitioner was not merely "cited"
or named, but is the subject of full-length articles.
. '
While we find the director's analysis insufficient, we agree that the materials submitted cannot serve to
meet this criterion. The initial materials date from more than eight years prior to the d,lteof filing and,
thus, cannot establish sustained acclaini at that time. We cannot consider the materials ,submitted in
response to the director's request for additional evidence because they postdate the filing of the petition.
See 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, ·14 I&N Dec. at 49. Regardless, the regulation at
8 CF.R. § 204.5(h)(3)(iii) expresslyrequires that the published material appear in professional or major
trade publications or other major media. The petitioner has not demonstrated that any ,of the
publications that have covered her enjoy a national circulation.
In light ofthe above, the petitioner has not established that she meets this criterion.
Evidence that the alien lias commanded, a high salary or other significantly highremuneratidnfor
services, in relation to others in thefield. .
The director concluded, without discussion"that the record did not establish that,the petitioner meets
this criterion. Additional discussion is warranted.
••••••• the petitioner's former coach in Poland, asserts that the petitioner'received a
monthly salary of $200 while a, member of the Polish Track and Field Association. Mr. ••••
, ,
. further indicates that the petiticmer won 16 medals for a total of $1,600. Mr. suggests this
award money represents the petitioner's total over six years. In addition, a Polish company agreed to
sponsor the petitioner with bi-monthly payments of $1,900 in 2005. Counselattenipts to compare this
with the per capita income in Poland, although the data provided is actually Gross National Product per
capita. Regardless, the petitioner's remUnerationmust compare with the highest remuneration for track
and field athletes, not the average income for all citizens of Poland.
Further, the petitioner submitted evidence that she has been receiving "athletic aid" from USC totaling
$26,956 tuition grant-in-aid, $8,512 as a subsistence grant and $400 for books in 2002-2003 and
.slightly less in Fall 2003. On appeal, the petitioner's coach at USC asserts that the petitioner had a full
$40,000 scholarship at USC. This assertion is not supported by the evidence submitted previously.
Regardless, an athletic' scholarship is not remuneration for services in her occupation. Specifically,'
academic study, including athletic participation, is preparation for employment in an occupation. It is
not an occupation in and of itself.
Even if we considered the petitioner's athletic aid as remuneration for professional services, and we do
not, the petitioner has not provided sufficient comparable data establishing the highest remuneration for
traCK and 'field athletes. Rather, the petitioner. submitted. evidence that the 75th percentile of
professional athletes earns a base pay of $31,665 or more. The petitioner's remuneration need not
merely fall .. within the top 75th percentile for all professional athletes. Rather, the petitioner's
remuneration must compare with the highest remuneration for her occupation~ Moreover, "professional
athletes" is too broad a category. The petitioner need not demonstrate that her remuneration compares
.. with the top baseball, hockey and footbail players nationally. Thus, the data provided is insufficient,'as,
it does not specify the very top remuneration received by track and field athletes..
In respon~e to the directo(s request for additional evidence, the petitioner submitted evidence of club'
and corporate support as well as prize money earned after the date of filing. We cannot consider this
documentation as evidence of eligibility as of the date of filing. See 8 C.F.R. §103.2(b)(12); Matter of
Katigbak, 14 I&N Dec. at 49.,
Comparable evidence pursuant to the regulation at 8 C.P.R. § 204.5(h)(4) .
Initially, counsel asserted'that the petitioner was submitting "comparable evidence" pursuant to the
regulation at 8 C.F.R. § 204.5(h)(4) but did not assert that the ten regulatory cnteria set forth at 8 C.F.R. .
§ 204.5(h)(3) are, in general,inapplicable to the petitioner's field. Counsel then references letters from
the Consul General of Poland in Los Angeles and the opinions of the petitioner's coaches but does not
explain how t~is evidence 'is "comparable" witp. the objective evidence required under th~ ten
regulatory criteria or to the evidence required under a specific criterion that is inapplicable to the
petitioner's fieM. On appeal, the petitioner submits additional letters from the petitioner's coaches, a'
fellow athlete at VS Athletic's Club and sports officials in California. ' The opinions regarding the
significance ·of the events at which the petitioner won awards and prizes have been considered above.
In aqdition,the authors provide general praise of the petitioner and rank her highly in the field.
".
Pilge 8
..
'The regulation at 8 C.F.R.."§ 204.5(h)(4) peImits the submission'of "comparable" evidence where the
criteria are not "readily applicable." fu order to rely on this provision, the petitioner must, first
'. 'demonstrate that the regulatory criteria are not readily applicable. The petitioner's inability to meet any
of the criteria does not necessarily make them inapplicable to her field. The.criteria are designed for
several fields' and will not all be applicable to a speCifiq field. Thepetitioner in this matter has not
'. demonstrated that the .criteria as a group are not applicable. fu fact, the petitioner claims to meet four
. criteria. ..
" .
.E~eri if the petitioner had established that the regulatory criteria were inapplicable, th~petitioner has
not established that the. evidence provided is "comparable" to the objective evidence of acclaim
nOImallyrequired under the ten criteria listed at 8CF.R. § 204.5(h)(3). The subjective opinions of the
petitioner's coaches, sponsors, fellow athletes or even independent experts, while not without weight, .
cannot fOIm the cornerstone of a successful claim of s~stained national or international acclaim. CIS
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. 1988).. However, CIS is ultimately
. responsible for making the final deteImination regarding an alien's eligibility for the benefit sought.
!d. The submission of letters from experts supporting the petition is not presumptive evidence of
eligibility; CIS may eva:Iuate·the content of those letters as to whether they support the alien's
eligibility. See id. at 795-796. CIS may even give less weight to an opinion that i's not corroborated,
in accord with other infopnation or is in any way questionable. Id. at 795; See also Matter ofSoffici;
.22 I&N Dec.. 158, 165 (Corom. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec..
190 (Reg. Comm. 1972)).
Ultimately,' evidence in existence prior to the preparation of the petition carries greater weight than
new materials prepared especially for submission with the petitiori. An individual with sustained
national or international accla.lm should be able to produce unsolicited materials' reflecting that
acclaim. ' .
Thedocumerttation submitted in support of a claim of extraordinary ability must clearlYdemonstrate
that th~ allen has achieved sustained national or international acclaim and is one of the small percentage
who,has risen to the very top ofthe field of endeavor..
Review of the record, however, does not establish that the petitioner has distingui~hed herself as a track
and .field runner to such an extent that she may be said to have achieved sustained national or
international acclaim as of the date of filing or to be within the small percentage at the very top of her
field. :The evidence indicates that the petitioner ,shows talent as a track and field runner, but is not
persuasive that the petitioner's achievements set her significantly abovealmost all others in her field.
Therefore, the petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and
the petition may not be approved. .
, .
Page 9
.The burden' of pro~f 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.