dismissed EB-1A Case: Athletics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
prevent c!e. . aarranted 
invasion of personal privacy 
pWLEG COPY 
Office: TEXAS SERVICE CENTER 
 Date: SEP 2 2 2006 
SRC 05 059 52224 
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. 
 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. 
ZRobert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas 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" in athletics, 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). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualifjr for classification as an alien of extraordinary ability. 
On appeal, counsel asserts that the director's decision is inconsistent with the approval of a 
nonimmigrant petition filed in behalf of the beneficiary under a similar category. Counsel fiuther 
asserts that approval of the petition would not displace any U.S. workers because there are no U.S. 
workers seeking employment in the beneficiary's area of expertise. Thus, counsel concludes, the labor 
certification process is unnecessary. Finally, counsel addresses the specific bases of denial. 
We will address counsel's assertions regarding the beneficiary's nonimmigrant status in detail at the 
end of this decision. In brief, we do not find that an approval of a nonimmigrant visa mandates the 
approval of a similar immigrant visa. Each case must be decided on a case-by-case basis on the 
evidence of record. 
Counsel's assertions regarding the absence of U.S. workers seeking employment in the beneficiary's 
area of expertise are irrelevant. First, while the classification sought does not require the petitioner to 
go through the labor certification process, the applicability of that process is not an issue under the law 
or regulations. Regardless of whether U.S. workers are seeking employment in the alien's field, the 
alien must meet the statutory standard of national or international acclaim. In fact, the issue of 
available U.S. workers is never an issue before Citizenship and Immigration Services (CIS). Rather, 
the issue of whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction 
of the Department of Labor. Matter of New York State Dep 't of Transp. 22 I&N Dec. 21 5,221 (Comm. 
1998). In fact, the assertion that the beneficiary would not displace any U.S. workers is an argument for 
utilizing the labor certification process. Id. at 220-221. We will consider counsel's specific assertions 
regarding the beneficiary's eligibility under the pertinent regulatory criteria below. 
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 
Page 3 
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. 
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 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. 204.5(h)(3). The relevant criteria will be addressed below. It 
should be reiterated, however, that the petitioner must show that the beneficiary has sustained national 
or international acclaim at the very top level. 
This petition seeks to classifi the beneficiary as an alien with extraordinary ability as a "horse trainer 
and competitor." The petitioner relies almost exclusively on reference letters, a membership card in a 
non-exclusive professional association, an article authored by the beneficiary and photographs. 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. 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 
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; CIS may evaluate 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 is not corroborated. Id. at 795; See also Matter of 
SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg. Comm. 1972)). 
We note at the outset that vague letters containing general praise are less persuasive than letters that 
specifically explain the significance of the primary evidence submitted as it relates to the regulatory 
criteria. Ultimately, evidence in existence prior to the preparation of the petition canies greater 
weight than new materials prepared especially for submission with the petition. An individual with 
sustained national or international acclaim should be able to produce unsolicited materials reflecting 
that acclaim. 
The regulation at 8 C.F.R. § 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, 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 qualifL 
as an alien of extraordinary ability. The petitioner has submitted evidence that is claimed to meet the 
following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
Initially, the petitioner submitted several reference letters, four of which assert generally that the 
beneficiary had won many championships at the national and international level. While one reference 
names locations and another discusses "Colombian awards," none of them identi@ a single specific 
competition where the horse the beneficiary rode won. Other similarly worded letters assert only that 
the beneficiary is "one of the few trainers capable of training and riding horses in the Champion and 
Champion of Champion events." These letters do not reference any awards or prizes won by the 
beneficiary or his horse at such events. The petitioner also submitted photographs that appear to be of 
the beneficiary riding horses with attached ribbons. Photographs are not primary evidence of awards or 
their significance. 
In response to the director's request for additional evidence, the petitioner submitted a letter from 
~reasurer and Acting 
 American Trote y Trocha Association, asserting tha in 
April 2004 the 
t 
to a first place win in his class at a Grand Championship 
"among 18 other 
 drew 53 participants from the United States, 
Dominican Republic and Colombia. The petitioner 
=president of Asdepaso, 
and the Grand Championship at 
competed in the event. Internet 
greatest business generator in [the] Latin America agricultural sector." We note that the petition was 
filed on December 27,2004. Thus, only the American Trote y Trocha Association event occurred prior 
to the filing of the petition. ~oreoveri while much of the evidence discusses 
on in the trot and gallop class. 
The director concluded that the beneficiary meets this criterion. We cannot agree. While we concur 
with counsel that awards won by horses ridden by the beneficiary can serve as comparable evidence to 
meet this criterion, the record contains no primary or secondary evidence of such awards. Specifically, 
primary evidence would be copies of the awards themselves while secondary evidence might include 
contemporaneous news coverage of the awards. The nonexistence or unavailability of primary 
evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2). Only where the petitioner has 
demonstrated that primary evidence is unavailable or does not exist can the petitioner rely on secondary 
evidence and only when secondary evidence is similarly unavailable or does not exist may the 
petitioner rely on affidavits. Thus, the petitioner has not demonstrated that the beneficiary or a horse he 
presented has ever won at any event. 
1 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Even if we accepted the more specific letters submitted in response to the director's request for 
additional evidence, the petitioner must demonstrate the beneficiary's eligibility as of the date of filing. 
See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Cornm. 1971). As stated 
above, one of the beneficiary's two awards referenced in response to the request for additional evidence 
occurred after the date of filing. While MS asserts that horses from more than one country 
competed at the American Trote y Trocha Association event, it is insuficient that the competitors were 
fkom more than one country. The regulation requires that the award or prize be nationally or 
internationally recognized. The record lacks evidence that the trade journals covering ores 
or other major media report on the results of the American Trote y Trocha Association event or 
comparable evidence of the event's national or international recognition. 
 We note that the 
Confederation of 
 oversees the major competitions for these horses, 
including the M 
 cord lacks evidence that CONFEPASO oversees the 
American Trote y Trocha Association event. 
In light of the above, the petitioner has not established that the beneficiary 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. 
Counsel does not challenge the director's conclusion that the petitioner had not established that the 
Paso Fino Horse Association requires outstanding achievements of its members and we concur with the 
director. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business-related 
contributions of major signzjkance in the field. 
The director concluded that the petitioner had not demonstrated the impact of an article authored by 
the beneficiary. On appeal, counsel references two letters written in support of the petition. 
According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. To be considered a contribution of major 
significance, the contribution must be one that has impacted or influenced the field as a whole. 
Significantly, the regulations include a separate criterion for awards and prizes, 8 C.F.R. 
4 204.5(h)(3)(i). To conclude that awards and prizes are also contributions of major significance would 
render meaningless the statutory requirement for extensive evidence and the regulatory requirement that 
an alien meet at least three criteria. 
We concur with the director that, regardless of the circulation of the magazine that published the 
beneficiary's article, the petitioner has not demonstrated that the article has had sufficient impact in the 
field to be considered a contribution of major significance. In addition to the article, the petitioner 
initially submitted reference letters praising the beneficiary's abilities as a horse trainer and competitor, 
his character and his professionalism. A former employer asserts that the beneficiary performed his job 
duties in a "satisfactory manner" and made "great progress" with the horses he trained. These vague 
and general letters cannot establish that the beneficiary has made specific original contributions of 
major significance to the field. 
director's request for additional evidence, the petitioner submitted new letters. 
owner of El Paso Ranch, asserts that when the beneficiary began training horses at 
Los Amigos Ranch, the horses at that ranch began to win important competitions for the first time in 
an experienced trainer, asserts-that the beneficiary acquired 
:heaply for the petitioner because the horse was not viewed as having potential, but the 
beneficiary transformed the horse into a champion. Mr. 
returned to Colombia and won nine grand champions, thr 
Contest" status. 
The record does not corroborate the assertions of Mr. 
 Specifically, the 
record does not contain awards or prizes issued to ho 
 or confirmation 
from the owners of that ranch that they previously had not produced champion horses. The record also 
lacks evidence ohampionships. Moreover, Does not appear to have 
approached "Out of Contest" status prior to the date of filing the petition. 
asserts that based on the beneficiary's advice, he purchased a mare for a low 
er into a champion in 2003. We note that, according to the record, Mr. 
as been exhibiting championship horses since at least 1999. As such, it is not clear that the 
ignificant role in Mr. uccess. 
Assuming the above assertions to be true, the beneficiary is a successful trainer. Simply succeeding in 
training horses capable of competing successfully, the job the petitioner was hired to do, is not 
necessarily an original contribution of major signzficance. The letters in the record, without additional 
corroborating materials, cannot establish the beneficiary's impact in the field. Thus, the petitioner has 
not established that the beneficiary meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
In response to the director's request for additional evidence, the petitioner submitted an "Opinion" 
letter by the beneficiary published in Fedequinas. The letter, entitled "The Trocha is Something Else," 
differentiates between "the trocha" and a trot. The beneficiary concludes by refuting the idea that other 
horses with a diagonal gate can pass over to the lateral gate of m This observation appears 
aimed at horse fans, as opposed to horse trainers who presumable are aware of the differences in gates. 
The petitioner asserted that the magazine has an international circulation. The director concluded that 
the record did not support the assertion that the magazine has an international circulation. 
Page 7 
On appeal, the petitioner submits evidence that Fedequinas is circulated in Colombia, Puerto Rico and 
elsewhere in the United States, the Dominican Republic and Venezuela. The circulation in Colombia is 
5,000. Counsel acknowledges on appeal that the article is not "scholarly" but asserts that scholarly 
articles do not exist in the beneficiary's field. Counsel requests that the article be considered as 
comparable evidence as it is a professional article addressed to other trainers or breeders. 
The regulation at 8 C.F.R. 9 204.5(h)(4) permits the submission of "comparable evidence" where a 
criterion is not readily applicable to the alien's field. It is not self-evident that scholarly articles on 
athletics and even horse breeding or training do not exist such that we will accept counsel's assertion on 
this matter without additional corroboration. Moreover, we are not persuaded that the article is 
comparable to a scholarly article. As stated above, the article is listed as an "opinion" and appears to 
discuss very basic elements of diagonal verses lateral gaits. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has per+ormed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director concluded that no evidence was submitted to meet this criterion. On appeal, counsel 
references the assertions abou-d concludes that they establish the beneficiary's leading and 
critical role for the petitioner. Counsel then the petitioner now enjoys a distinguished 
reputation based on the beneficiary's training o for the petitioner. 
At issue are the role the beneficiary was hired to fill and the reputation of the enti that hired him. The 
is the breeding and exhibition in competition o dand Trot and Gallop 
horses. 
 as a trot and gallop horse. The record lacks evidence regarding the number 
employs or an organizational chart. Thus, we cannot determine whether the 
- - 
beneficiary's position as a trainer and competitor sets him apart from other employees working for the 
petitioner. Even if we were to consider the beneficiary's accomplishments for the petitioner, the record 
lacks evidence that s the petitioner's most successful horse. As stated above, the petitioner 
breeds and shows m!m' inos and Trot and Gallop horses. Regarding the petitioner's reputation, 
the record lacks evidence that the petitioner has been featured in trade journals or otherwise recognized 
nationally for breeding and showing horses. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
horse trainer and competitor 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 hls field. The evidence 
indicates that the petitioner shows talent as a horse trainer and competitor, but is not persuasive that the 
petitioner's achievements set him significantly above almost all others in 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. 
As stated above, counsel asserts that the director's decision is inconsistent with a prior approval by 
the same Service Center of a nonimmigrant visa petition in behalf of the beneficiary. While CIS has 
approved at least one 0-1 nonimmigrant visa petition filed on behalf of the beneficiary, the prior 
approval does not preclude CIS from denying an immigrant visa petition based on a different, if 
similarly phrased, standard. It must be noted that many 1-140 immigrant petitions are denied after 
CIS 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. Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989). Because CIS spends less time reviewing 1-1 29 
nonimmigrant petitions than 1-140 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 CIS from denying an extension of the original visa based on a 
reassessment of beneficiary's qualifications). 
Moreover, if the previous nonimmigrant petition was approved based on the same unsupported 
assertions that are contained in the current record, the approval would constitute material and gross 
error on the part of the director. Due to the lack of required initial evidence in the present record, the 
AAO finds that the director was justified in departing from the previous nonimmigrant approval by 
denying the present immigrant visa petition. 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The director is instructed to review the previous nonimmigrant approval for possible revocation, 
pursuant to 8 C.F.R. 5 214.2(0)(8). 
Page 9 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.