dismissed EB-1A Case: Athletics

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u.s. Citizenship 
and Immigration 
Services 
DATE: JAN 1 2 2012 Office: TEXAS SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
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)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents rclated to this matter have been returned to the office that originally decided your easc. PI case 
be advised that any further inquiry that you might have concerning your case must be made to that ollice. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petitIon was denied by the Director, 
Texas Service Center. The petitioner filed a motion to reopen and reconsider, which the director 
denied. The matter is now before the Administrative Appeals Otfice (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an 
alien of extraordinary ability in athletics. The director detennined that the petitioner had not 
established the requisite extraordinary ability through extensive documentation and sustained 
national or international acclaim. 
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 asserts that the petitioner has achieved sustained national and international 
acclaim and that his achievements have been recognized in his field of expertise. Counsel further 
states that the director disregarded comparable evidence of the petitioner's extraordinary ability 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). The AAO acknowledges that the standard of 
proof is preponderance of the evidence, as noted by counsel on appeal. The "preponderance of the 
evidence" standard, however, does not relieve the petitioner from satisfYing the basic evidentiary 
requirements required by the statute and regulations. Therefore, if the statute and regulations 
require specific evidence, the petitioner is required to submit that evidence. See section 
203(b)(1)(A)(i) of the Act, 8 U.S.c. § 1153(b)(I)(A)(i), and 8 C.F.R. §§ 204.5(h)(2) and (3). In 
this matter, the documentation submitted by the petitioner fails to demonstrate by a preponderance 
of the evidence that he has achieved sustained national or international acclaim and that he is one of 
the small percentage who has risen to the very top of the field of endeavor. 
For the reasons discussed below, the J\J\O will uphold the director's decision. 
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 --
Page 3 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or international acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
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" 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. ld. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) 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; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
Page 4 
(vi) Evidence of the alien's authorship of scholarly articles In the field, III 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence oI"commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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 (9
th 
Cir. 201 0). 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.! With respect to the criteria 
at 8 C.F.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." ld. 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 C.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both 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," 
8 C.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.c. § 1153(b)(I)(A)(i). 
ld. at 1119-20. 
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 5 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Elllerprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9
th 
Cir. 2(03); 
see also Soltane v. Do.l, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on November 17, 2008, seeks to classify the petitioner as an alien with 
extraordinary ability as a light middleweight professional boxer. The record reflects that the 
petitioner competed as a welterweight during his amateur career in Ireland and that he began his 
professional career in the United States in August 2005. The petitioner has submitted 
o 
documentation pertaining to the following categories of evidence under 8 C.F.R. § 204.5(h)(3).-
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards ji)r excellence in the field of endeavor. 
The petitioner submitted documentary evidence indicating that he received 
The petitioner also 
submitted documentation indicating that he won national intermediate titles as an amateur boxer 
in Ireland and Accordingly, the 
petitioner has established that he meets this regulatory criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relatinfi 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. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of significant national distribution, 
unlike small local community papers? 
2 The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this 
decision . 
.1 Even with nationally·circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
-Page 6 
The petitioner initially submitted an article about himself in the 
_ but the date of the article was not provided as required by the plain language of this 
regulatory criterion. The petitioner also submitted a February 14, 2007 blog entry posted on the 
internet site of announcing an upcoming fight for the petitioner at the 
but the author of the article was not identified as 
required by the regulation at 8 C.F.R. § 204.5(h)(3)(iii). The petitioner's initial evidence also 
included an April 20, 2007 article about himself posted on the internet site of 
It's all about " The 
The article states: "Though [the petitioner] should easily 
be garnering widespread attention, he is still very much in the shadow .... While [the petitioner], 
29, has struggled to create a buzz for his career .... " 
initial submission also included a November 3, 2004 article about him entitled 
but the author of the article was not 
The 
the date and author of the article were not identified as 
required as required by the 
petitioner "was honored 
their monthly meeting at 
GgllldllUlI at 8 C.F.R. The article states that the 
association "has been helping indigent boxers since the 1950s." 
at 
8 
The petitioner also submitted his entry in Wikipedia, an online encyclopedia. With regard to 
information from Wikipedia, there are no assurances about the reliability of the content from this 
open, user-edited internet site.
4 
See Lami/em Badasa v. Michael Mukasey, 540 F.3d 909 (8
th 
Cir. 
2008). Accordingly, the AAO will not assign weight to material for which Wikipedia is the 
source. 
4 Online content from Wikipedia is suhject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a 
common resource of human knowledge. The structure of the project allows anyone with an Internet 
connection to alter its content. Please be advised that nothing found here has necessarily been reviewed by 
people with the expertise required to provide you with complete, accurate or reliable information . .. 
Wikipedia cannot guarantee the validity of the information found here. The content of any given article 
may recently have been changed, vandalized or altered by someone whose opinion does not correspond 
with the state of knowledge in the relevant fields. 
See hltQ:/lcn.wikiPl~dia.un!/\,,,'ikii)Y~LUJ]~_~liil:(i~"lJ;"!J'!1_(h~_~JaiITICl, accessed on January 6, 2012, copy incorporatcd into 
the record of proceedings. 
Page 7 
In response to the director's request for evidence, the petitioner submitted a November 3, 2008 
article about himself entitled 
the publication dates of these articles were not provided as required by the plain 
language of this regulatory criterion. 
Aside from the preceding deficiencies, there IS no circulation evidence showing that _ 
The petitioner'S response to the director's request for evidence included additional articles about 
The AAO notes that the preceding articles 
were published subsequent to the petition's November 17, 2008 filing date. A 
petitioner must demonstrate his eligibility at the time of filing. 8 C.F.R. §§ 103.2(b )(1), (12); 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Rcg'l Comm'r 1971). Accordingly, the AAO will not 
consider the _ articles in this proceeding. Nevertheless, there is no circulation evidence 
showing that the preceding New York City-based newspapers qualify as major media in the 
United States or in any other country. 
·tioner submitted an incomplete copy of a February 2007 article 
In 
identified as required by the plain 
submitted a May 2008 article in 
The author of the preceding article was not 
criterion. The also 
_ As previously discussed, there circulation evidence showing that 
qualifies as a form of major media. s motion also included a 
photograph of himself appearing in the The plain language of the 
regulation at 8 C.F.R. § 204.S(h)(3)(iii) requires "published material about the alien'· including 
"the title, date and author of the material." The captioned photograph does not meet these 
requirements. Further, there is no circulation evidence showing that the •••••••• , 
qwdi·f ies as a fonn of media. The petitioner also submitted an article entitled '_ 
but the date of the article and the name of 
the publication were not provided as required by the plain language of this regulatory criterion. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Page 8 
Evidence of the alien's original scielllijic, scholarly, artistic, athletic, or hllsiness­
related contributions of major significance in the field. 
The petitioner submitted several recommendation letters discussing his boxing career and talent 
as a fighter, but they do not specify exactly what his original contributions in the sport of boxing 
have been, nor is there an explanation indicating how any such contributions were of major 
significance in his field. 
states: 
Our records reflect that [the petitioner] possesses an j'T nnrp,:<j, 
2-0 (seventeen wins, 2 losses and no . In 
for and won 
It must be noted that fifteen (15) of those bouts took place in New York State and were 
sanctioned by this ot1ice. As such I was able to witness [the petitioner's] boxing skills 
and can sincerely state that he possesses well above average skills for a professional 
boxer of his comparable experience. Combining good boxing skills along with 
impressive achievements in the ring he ... should be permitted to remain in the United 
States to continue his promising career. 
comment that the petitioner ••••••• 
notes that the petitioner's awards have already been addressed 
under the regulatory criterion at t; C.F.R. § 204.S(h)(3)(i). Here it should be emphasized that the 
regulatory criteria are separate and distinct from one another. Because separate criteria exist for 
awards and original contributions of major significance, USCIS clearly does not view the two as 
being interchangeable. To hold otherwise would render meaningless the statutory requirement for 
extensive evidence or the regulatory requirement that a petitioner meet at least three separate 
criteria. _ opines that the petitioner's eareer is "promising," but he does not provide 
specific examples of how the petitioner's achievements as a professional boxer have already 
impacted his sport at a level indicative of original athletic contributions of major significance in 
the field. 
states: 
[The petitioner] has trained for the past several years and has improved 
in the He was a highly ranked amateur boxer from Ireland when he first 
Now he is a professional contender ranked in the top 1 % of his 
does not provide comprehensive official rankings or boxing statistIcs from 
les (such as the World Boxing Association (WBA), the World Boxing Council 
(WBC), the International Boxing Federation (IBF), or the World Boxing Organization (WBO)) 
to support his comment that the petitioner is "ranked in the top 1% of his junior lightweight 
division." Going on record without supporting documentary evidence is not sufficient for 
Page 9 
purposes of meeting the burden of proof in these proceedings. Matter of Softiei, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). Furthermore, USCIS need not accept primarily conclusory assertions. 1756, 
Inc. v. The General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Moreover, fails to provide specitic examples of how the petitioner's original 
boxing contributions have significantly influenced the field at large or otherwise equate to 
original contributions of major significance in his sport. 
states: 
We had the privilege of hosting three of [the petitioner's] professional tights here at ... 
Madison Garden - including the 
The hard work and professionalism of [the petitioner] and 
his entire team, coupled with his extraordinary popularity among the New York fans, 
helped make the promotion a success. 
_ does not provide any specific information regarding the attendance for the show 
headlined by the petitioner at Madi~rden or whether or not the show was broadcast 
by any major networks. Further, _ fails to explain how the petitioner's work is 
indicative of an original athletic contribution of major significance in the sport of boxing. 
states: 
I met [the petitioner] four years ago, when he was working out at and 
within 5 minutes, I realized that [the petitioner] was a very special person; bright, 
intelligent, warm, great sense of humor, and you have to absolutely love his brogue. On 
that day I was shooting a test for a full-length do~e petitioner] became 
the focal point for my tilm. The title of the tilm is __ Over the years, [the 
petitioner] and his wife ... became more than subjects in my film; we became good 
friends. 
The record does not include any information about the release of the film 
number of people who have seen the film, or its commercial success. Moreover, 
does not specify exactly what the petitioner's original contributions in the sport of boxing have 
been, nor is there an explanation indicating how any such contributions were of major 
significance in his field. 
states: 
* '" * 
Page 10 
I train in and I have known him for 
years. [The petitioner] is of the Top Fighters in his 
The AAO notes that the petitioner's loss to 
••• occurred subsequent to the petition's November 17, 2008 filing date. As previously 
discussed, a petitioner must demonstrate his eligibility at the time of filing. 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter 14 I&N Dec. at 49. the AAO will not 
consider the . In 
this proceeding. Nevertheless, does not provide specific examples of how the 
petitioner's work has influenced others in his sport or otherwise constitutes original athletic 
contributions of major significance in the field. 
[W]e performed public relations work for professional boxer [the petitioner], who was 
born in Ireland but currently lives in New York, and is currently one of the top-ranked 
junior middleweight boxers in the world. 
Colleen and I got to know [the petitioner] ... during the time that we represented him. 
He is bright, articulate, and dedicated, not only to boxing, at which he excels, but also to 
his family and his community. 
It is not enough to be a talented boxer, to have others attest to that talent, and to secure 
professional bouts. An alien must have demonstrably impacted his field in order to meet this 
regulatory criterion. According to the regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's 
contributions must be not only original but of "major signiiicance" in the field. The phrase 
"major significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich 
Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3'" Cir. 1995) quoted in APWU v. Potter, 343 F.3d 
619,626 (2
0
" Cir. Sep 15, 2(03). While the petitioner has earned the admiration of those who 
met him in New York, there is no evidence demonstrating that he has made original athletic 
contributions of major significance in the field. For example, the record does not indicate the 
extent of the petitioner's influence on other boxers throughout the sport, nor does it show the 
field as a whole has specifically changed as a result of his work. 
The reference letters submitted by the petitioner are not without weight and have been 
considered above. USClS may, in its discretion, use as advisory opinions statements submitted 
as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). 
USCIS is ultimately responsible for making the tinal determination regarding an alien's 
eligibility for the benefit sought. Id. The suhmission of letters from experts supporting the 
petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those 
letters as to whether they support the alien's eligibility. See id. at 795-796; see also Matter of v­
K-, 24 I&N Dec. 500, n.2 (BIA 2(08) (noting that expert opinion testimony does not purport to 
be evidence as to "fact"). Thus, the content of the experts' statements and how they became aware 
of the petitioner's reputation are important considerations. Even when written by independent 
Page 11 
experts, letters solicited by an alien in support of an immigration petition are of less weight than 
preexisting, independent evidence that one would expect of a professional boxer who has made 
original contributions of "major significance." Without extensive documentation showing that 
the petitioner's work equates to original contributions of major significance in his field, the AAO 
cannot conclude that he meets this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
On motion to the director, the petitioner submitted material printed from the website filmmaker _ 
_ stating: 
atform of a boxing ring 
and the intense movement of fighting. exposes the brute 
physicality of a sport whieh pushes participants to their utmost limits, to the edges of 
physical force - one that, through its severity, captures the inexplicable will to live. 
Shot on location at the world-famous 
Starring pro hnXF" 
Release slated for_ 
Featuring a collaboration with world-renowned dance photographer 
whose stills from the production will he incorporated into the film . 
. are advisors on the project. 
__ received a New York City Media Arts grant from the 
The AAO notes that release of the preceding short As 
previously discussed, a petitioner must demonstrate his eligibility at the time of filing. 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. Additional material submitted by 
the from Ms. website indicates that the "first edit" had 
in February 2007 and at the 
On appeal, website and 
Slallll~ that the petitioner "became the focal point" 
Counsel states: plays a leading role in a 
a Documentary The plain language of this 
regulatory ,pr",;"pe evidence that the petitioner "has performed in a leading or critical role 
for organizations or a distinguished reputation." The AAO is not 
persuaded that the short film and the documentary film equate to 
Page 12 
"organizations or establishments." Rather, these films are temporary prc).QlJlfti~s. 
record does not include information about the release of the film 
information posted on website states indicates that official release 
post -dates the filing date of the petition. Regardless, there is no documentary evidence showing 
that the films have earned a distinguished reputation. For instance, there is no evidence showing 
that the films have attracted a substantial audience, that the films earned widespread critical 
acclaim, or that the films significant commercial success. Regarding the self-serving 
material printed from website, USClS need not rely on self-promotional material. 
See Braga v. POll los, No. CY 06 5105 SJO (c. D. CA July 6, 2007) aftd 317 Fed. Appx. 680 (9
th 
Cir. 2009) (concluding that the AAO did not have to rely on self-serving assertions on the cover of a 
magazine as to the magazine's status as major media). The documentation submitted by the 
petitioner fails to demonstrate that he has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. Accordingly, the petitioner has not established 
that he meets this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remllneration for services, in relation to others in the field. 
The petitioner initially submitted his U.S. Individual Income Tax Return for 2007 reflecting total 
income of $14,790. The plain language of this regulatory criterion, however, requires the 
petitioner to submit evidence demonstrating he has earned a high salary or other significantly 
high remuneration "in relation to others in the field." The petitioner offers no basis for 
comparison showing that his earnings are significantly high in relation to other professional boxers. 
See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994) (considering professional 
golfer's earnings versus other PGA Tour golfers); see also Grimson v. INS, 934 F. Supp. 965, 
968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); Mllni v. 
INS, 891 F. Supp. 440, 444-45 (N. D. 111. 1995) (comparing salary of NHL defensive player to 
salary of other NHL defensemen). 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Summary 
The AAO concurs with tbe director's determination that the petitioner has failed to demonstrate 
his receipt of a major, internationally recognized award, or that he meets at least three of the ten 
categories of evidence that must be satisfied to establish the minimum eligibility requirements 
necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). 
B. Comparable Evidence Under 8 C.F.R. § 204.5(h)(4) 
On appeal, counsel states: 
[T)he director overlooked or failed to recognize that the usual evidence as sct forth at in 
the regulation at 8 C.F.R. § 204.5(h)(3) regarding extraordinary ability may not be read 
applicable in the instant petition. The extraordinary ability of a 
Page 13 
weight boxer can be demonstrated by "comparable evidence" as set forth at 8 C.F.R. 
§ 204.5(h)(4). 
The regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" 
only if the ten categories of evidence "do not readily apply to the beneficiary's occupation." 
Thus, it is the petitioner's burden to demonstrate why the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3) are not readily applicable to the alien's occupation and how the evidence submitted is 
"comparable" to the specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). 
Counsel points specificall y to "the wins garnered by [the petitioner] from both national and 
international title bouts," the venues where the petitioner's fights were held, and "the expert opinion 
letters." In counsel's appellate brief, he does not explain why the categories of evidence at 
8 C.F.R. § 204.5(h)(3) are not applicable to the petitioner's occupation of professional boxer and 
how the evidence submitted is "comparable" to the specific objective evidence required at 8 C.F.R. 
§§ 204.5(h)(3)(i) - (x). The regulatory language precludes the consideration of comparable 
evidence in this case, as there is no indication that eligibility for visa preference in the 
petitioner's occupation as a professional boxer cannot be established by the ten criteria specified 
by the regulation at 8 C.F.R. § 204.5(h)(3). In fact, as indicated in this decision, the petitioner 
submitted evidence that specifically addresses five of the ten categories of evidence set forth in 
the regulation at 8 C.F.R. § 204.5(h)(3). Where an alien is simply unable to satisfy the plain 
language requirements of at least three categories of evidence at 8 C.F.R. § 204.5(h)(3), the 
regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. 
The AAO notes that the petitioner's boxing victories, titles, and awards from national and 
international competition readily apply to the prizes and awards criterion at 8 C.F.R. 
§ 204.5(h)(3)(i) and have already been considered there. While the petitioner may have earned 
national titles during his amateur boxing career in Ireland, there is no documentary evidence 
showing that the petitioner has won any national or international boxing "titles" since turning 
professional in August 2005. Even if the petitioner were to establish that the regulatory criterion 
at 8 C.F.R. § 204.5(h)(3)(i) does not readily apply to the occupation of professional boxer, which 
he clearly did not, the petitioner failed to establish that his victories in professional houts were 
comparable to the regulation at 8 C.F.R. § 204.5(h)(3)(i) that requires "[d]ocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in 
the field of endeavor." Under the awards criterion, the petitioner must demonstrate that he 
received nationally or internationally recognized prizes or awards for excellence in the field. 
Competitive success in various professional boxing fights in pursuit of a national or international 
title is not sufficient meet the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) unless 
prizes or awards for excellence were garnered as a result of the petitioner's participation. For 
example, a tennis player who wins his initial match and advances to the next round at 
Wimbledon or at the U.S. Open Tennis Championships would not meet the awards criterion 
unless the tennis player ultimately received an award or a prize in the finals. The documentation 
submitted by the petitioner fails to demonstrate that any of his sixteen professional boxing 
victories at the time of filing had garnered a level of national or international recognition 
comparable to the regulation at 8 C.F.R. § 204.5(h)(3)(i). 
Page 14 
With regard to the venues where the petitioner's tights were held, counsel states: "The fact that 
[the petitioner's] fights were held at the world famous boxing arenas such as Madison Square 
Garden and at Atlantic City as well as in the Yankee Stadium is it and itself evidencing [sic] that he 
has achieved national if not international acclaim in "The petitioner submitted a 
comprehensive list of his professional bouts printed from but there is no indication 
that he had fought at Yankee Stadium as of the petition's tiling date. On appeal, the petitioner 
submits a schedule from that he was scheduled to 
compete at 
main event Tp."Tllrm<J 
title. The petitioner's undercard tight at Yankee Stadium post-dates the petition's tiling date. As 
previously discussed, a petitioner must demonstrate his eligibility at the time of filing. 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not 
consider the petitioner's June 5, 2010 undercard tight at Yankee Stadium in this proceeding. 
Counsel does not explain how the documentation showing that the petitioner fought at Madison 
Square Garden and in Atlantic City is "comparable" to any specific objective evidence required at 
8 C.F.R. §§ 204.5(h)(3)(i) - (x). There is no documentary evidence demonstrating that the 
petitioner's boxing matches at Madison Square Garden and at Boardwalk Hall in Atlantic City were 
indicative of his national acclaim as a professional boxer as claimed by counsel. 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 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 
1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). For 
instance, the petitioner failed to submit supporting evidence indicating that his professional boxing 
matches at Madison Square Garden and at Boardwalk Hall regularly attracted a substantial audience 
or were heavily promoted as the main event. 
Regarding the expert opinion letters submitted by the petitioner, the AAO notes that they have 
already been considered under the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(v) and (viii). 
Further, counsel does not explain how the reference letters submitted by the petitioner are 
"comparable" to the specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). While 
reference letters can provide useful information about an alien's qualifications or help in assigning 
weight to certain evidence, such letters are not comparable to extensive evidence of the alien' s 
achievements and recognition as required by the statute and regulations. The nonexistence of 
required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). The 
classification sought requires "extensive documentation" of sustained national or international 
acclaim. See section 203(b)(l)(A)(i) of the Act, 8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. 
§ 204.5(h)(3). The commentary for the proposed regulations implementing the statute provide that 
the "intent of Congress that a very high standard be set for aliens of extraordinary ability is reflected 
in this regulation by requiring the petitioner to present more extensive documentation than that 
required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). Primary evidence of 
achievements and recognition is of far greater probative value than opinion statements from 
references selected by the petitioner. Moreover, the AAO notes that references limited to those 
who have interacted with the petitioner in New York are not sufficient to demonstrate his 
reputation outside of that particular region. 
Page 15 
C. Final Merits Determination 
The AAO will next conduct 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," 8 C.F.R. § 204.5(h)(2); 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." Section 
203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. In the 
present matter, many of the deficiencies in the documentation submitted by the petitioner have 
already been addressed in the discussion of the categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(iii), (v), (viii), and (ix) and in the subsequent comparable evidence discussion. 
With regard to the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(i), the AAO notes that the petitioner failed to submit evidence of his receipt of 
nationally or internationally recognized awards in professional boxing. While the AAO 
acknowledges that the petitioner received nationally or internationally recognized awards as an 
amateur boxer in Ireland, there is no evidence showing that his amateur boxing awards are 
commensurate with a level of expertise indicating that he is one of that small percentage who 
have risen to the very top of his field. See 8 C.F.R. § 204.5(h)(2). USCIS has long held that 
even athletes performing at the major league level do not automatically meet the statutory standards 
for immigrant classification as an alien of "extraordinary ability." Matter of Price, 20 I&N Dec. at 
953,954; 56 Fed. Reg. at 60899. Likewise, it does not follow that a boxer who receives awards at 
the amateur level should necessarily qualify for approval of an extraordinary ability employment­
based immigrant visa petition. While the AAO acknowledges that a district court's decision is not 
binding precedent, the AAO notes that in Matter of Racine, 1995 WL 153319 at *4 (N.D. Ill. 
Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not 
a comparison of Racine's ability with that of all the hockey players at all levels of play; 
but rather, Racine's ability as a professional hockey player within the NHL. This 
interpretation is consistent with at least one other court in this district, Grimson v. INS, 
No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and 
circuit, the court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 
§ 204.5(h)(2) is reasonable. To find otherwise would contravene the regulatory requirement at 
8 C.F.R. § 204.5(h)(2) that this visa category be reserved for "that small percentage of 
individuals that have risen to the very top of their field of endeavor." Moreover, there is no 
evidence showing that the petitioner has received nationally or internationally recognized prizes 
or awards in boxing to his 2005. For instance, the 
petitioner's winning of the reflects regional 
recognition rather than a nationally or internationally recognized award in boxing. The statute 
and regulations require the petitioner to demonstrate that his national or international acclaim has 
Page 16 
been sustained. See section 203(b)( I )(A)(i) of the Act, tl V.S.C § 1153(b)(1 )(A)(i), and 8 CF.R. 
§ 204.5(h)(3). The documentation submitted for the regulatory criterion at tl CF.R. 
§ 204.5(h)(3)(i) is not commensurate with sustained national or international acclaim in 
professional boxing as of the November 17,2008 filing date of the petition. 
In regard to the documentation submitted for the category of evidence at 8 CF.R. 
§ 204.5(h)(3)(iii), all of the petitioner's submissions were deficient in at least one of the 
regulatory requirements such as not including a date or an author, or not being accompanied by 
evidence that they were published in major media. Moreover, the articles submitted by the 
petitioner portray him as an up-and-coming professional fighter rather than a boxer who has 
sustained national or international acclaim at the very top of his field. The petitioner seeks a 
highly restrictive visa classification, intended for individuals already at the top of their respective 
fields, rather than for individuals progressing toward the top at some unspecified future time. 
The published material submitted by the petitioner not indicative of or consistent with sustained 
national acclaim or a level of expertise indicating that he is one of that small percentage who 
have risen to the very top of his field of endeavor. 
Regarding the documentation submitted for the category of evidence at 8 C.F.R. § 204.5(h)(3)(v), 
there is no documentary evidence demonstrating that the petitioner's work had major 
significance in the field, let alone an impact consistent with being nationally or internationally 
acclaimed as extraordinary. Aside trom the petitioner's failure to submit evidence demonstrating 
that he has made original athletic contributions of major significance in the field, the AAO notes 
that the petitioner's claim is based on recommendation letters. While such letters can provide 
important details about the petitioner's boxing career, they cannot form the cornerstone of a 
successful extraordinary ability claim. The statutory requirement that an alien have achieved 
"sustained national or international acclaim" necessitates evidence of recognition beyond those 
who have interacted with the petitioner in New York. See section 203(b )(1 )(A)(i) of the Act, 
8 V.S.C § 1153(b)(I)(A)(i), and 8 CF.R. § 204.5(h)(3). The documentation submitted by the 
petitioner for the category of evidence at 8 CF.R. § 204.5(h)(3)(v) is not indicative of or 
consistent with sustained national acclaim or a level of expertise indicating that he is one of that 
small percentage who have risen to the very top of his field. 
With regard to the documentation submitted for the category of evidence at tl CF.R. 
§ 204.5(h)(3)(viii), as previously discussed, there is no evidence showing that the petitioner has 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation. The petitioner has not established that his film roles are indicative of or consistent 
with sustained national acclaim or a level of expertise indicating that he is one of that small 
percentage who have risen to the very top of his field. 
Regarding the documentation submitted for the category of evidence at 8 CF.R. § 204.5(h)(3)(ix), 
there is no evidence demonstrating that petitioner's remuneration is "significantly high" in 
relation to other professional boxers or that his level of compensation places him among that 
small percentage who have risen to the very top of the field. The documentation submitted by 
the petitioner is not indicative of or consistent with sustained national acclaim or a level of 
Page 17 
expertise indicating that he is one of that small percentage who have risen to the very top of his 
field. 
While the petitioner need not demonstrate that there is no one more accomplished than himself to 
qualify for the classification sought, it appears that the very top of his field of endeavor is above the 
level he has attained. The petitioner has not established that his achievements at the time of filing 
were commensurate with sustained national or international acclaim as a professional boxer, or 
being among that small percentage at the very top of the field of endeavor. The submitted 
evidence is not indicative of a "career oj" acclaimed work in the field" as contemplated by 
Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 1990). 
D. Prior P-l Nonimmigrant Visa Status 
The AAO notes that the petitioner has been in the United States as a P-l 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 seek to enter the 
United States "temporarily and solely for the purpose of performing as such an athlete." See 
section 214(c)(4)(A) of the Act, 8 U.S.c. § 1184(c)(4)(A). While USCIS has approved a prior p­
I nonimmigrant visa petition filed on behalf of the petitioner, this prior approval does not preclude 
USCIS from denying an immigrant visa petition based on a different, if similarly phrased standard. 
Each case must decided on a case-by-casc basis upon review of the evidence of record. It must bc 
noted that many 1-140 immigrant petitions are denied after USCIS approves prior nonimmigrant 
petitions. See, e.g., Q Data Consultinli, Ine. v. INS, 293 F. Supp. 2d 25 (D.D.C. 20(3); IKEA US 
v. US Dept. of.Tustice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-129 nonimmigrant 
petitions than J-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. 2(04) (finding that prior approvals do 
not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the alien's qualifications). 
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 USCJS 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). 
Furthennore, 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 has approved a 
nonimmigrant petition on behalf of the alien, 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.), aif'd, 248 F.3d 1139 (5th Cir. 2(01), cert. denied, 122 S.C!. 51 (2001). 
III. Conclusion 
Page 18 
Review of the record 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 and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(1)(A) of the Act and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Sollalle v. DO.l , 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.