dismissed EB-1A Case: Athletics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
data ded- t~ 
 U. S. Citizenship 
Pmvmt bly wwprrpnted 
 and Immigration 
-a@flaersanslmm 
PUBLIC COPY 
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. 
 1153(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. 
be* 
sobert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 03 140 541 94 
Page 2 
DISCUSSION: The Director, California 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 to classifL the beneficiary 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 1153(b)(l)(A). The director determined the petitioner had not established that the beneficiary's 
sustained national or international acclaim. Specifically, the director concluded that the beneficiary met 
only two of the ten regulatory criteria, of which an alien must meet at least three. In conclusion, while 
the director acknowledged the submission of evidence demonstrating some recognition, the director 
concluded the evidence did not rise to the level of sustained national or international acclaim. 
On appeal, the petitioner overcomes one of the director's concerns. Specifically, the petitioner submits 
additional evidence regarding the selection process for the beneficiary's government subsidy. 
On March 24, 2006, this office issued a notice of intent to dismiss advising the petitioner of derogatory 
information discovered by this office. The notice afforded the petitioner 30 days in which to respond. 
As of this date, more than 60 days later, this office has received no response. As the petitioner has been 
advised of the derogatory evidence and afforded an opportunity to address that evidence, such evidence 
may be used in our evaluation of the merits of the appeal. 
More specifically, 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 1025, 
1043 (E.D. Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 
n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
For the reasons discussed below, we fully concur with the director's final conclusion on page 5 that 
while the petitioner submitted evidence that the beneficiary "has some recognition or acclaim, the 
petitioner has not provided sufficient evidence to clearly1 establish sustained national or international 
acclaim." (Emphasis added.) We also find that the petitioner has not demonstrated the beneficiary's 
reasonable intent to continue working in his area of expertise or that his entry into the United States 
will substantially benefit prospectively the United States. 
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 -- 
1 
We acknowledge the proper standard is preponderance of the evidence and do not read the director's 
vernacular use of "clearly" as an articulation of the higher clear and convincing evidentiary standard. 
WAC 03 140 541 94 
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 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 classi& the beneficiary as an alien with extraordinary ability as a track and field 
coach. 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 qualify 
as an alien of extraordinary ability. 
In considering whether the beneficiary enjoys sustained acclaim, this office noted that the record 
contained no evidence after mid-2001, although the petition was filed in April 2003. In an effort to 
determine whether the beneficiary enjoyed any sustained recognition in his field as of April 2003, this 
office searched the Internet for more recent accomplishments by the beneficiary or his athletes. This 
office discovered a November 1, 2001 article in the People's Daily revealing that four athletes from 
Shanxi, including the beneficiary's star athletes, and their coaches, including the beneficiary, were 
banned from the Chinese National Games upon the discovery of $24,100 worth of performance 
enhancing drugs in the hotel room of the team's doctor. Our Internet search revealed no additional 
stories indicating that the beneficiary had been exonerated and permitted to resume coaching at other 
events. 
On March 24,2006, we issued a notice of intent to dismiss, noting the above information and enclosing 
the story in the People's Daily. We allowed 30 days in which to respond. The petitioner did not do so. 
The above information reveals that the beneficiary had not sustained any acclaim he may have once 
enjoyed as of the date of filing. 
WAC 03 140 54194 
Page 4 
Finally, the beneficiary's ban from his area of expertise over a year prior to the submission is material 
to whether the beneficiary's recognition in his field was sustained as of the date of filing, whether the 
beneficiary reasonably intends to continue in his field of expertise and whether the beneficiary will 
substantially benefit prospectively the United States. Thus, the concealment of this ban was a 
concealment of a material fact and seriously compromises the credibility of the evidence of record. 
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence, and 
attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing 
to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 586 (BIA 1988). 
With these considerations in mind, we will evaluate the evidence as it relates to the regulatory criteria. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in thefield of endeavor. 
The petitioner submitted evidence that the beneficiary received local honors and that, on June 27,2001, 
the State Council of the Republic of China granted the beneficiary a special government subsidy. The 
director determined that the petitioner had failed to establish the criteria for granting such a subsidy. 
On appeal, the petitioner submits evidence that such subsidies are limited to professional sports coaches 
who meet the following two conditions: 
1. 
 His or her students have won a gold, silver or [bronze] medal at [an] Olympic, 
World Championship or World Cup; or have won a gold medal at an Asian 
Games competition; or have superceded an Olympic record or the world record 
which has been recognized by the international organization in that sports [sic]; 
and 
. . 
11. 
 The coach has trained the qualified student for the consecutive two years during 
the four years before his students attained the qualimng achievements as 
described in paragraph (i) above. 
The petitioner also submitted evidence that the beneficiary's students have won several national and 
international awards. Thus, the petitioner has overcome some of the director's concerns regarding this 
criterion on appeal. As stated above, however, the director did acknowledge in his conclusion that the 
beneficiary has some recognition, but concluded that it did not rise to the level of sustained acclaim. 
None of the evidence relating to this criterion dates from after the middle of 2001. Thus, while the type 
of evidence is persuasive, it is not evidence of the beneficiary's sustained acclaim in April 2003 when 
the petition was filed. As discussed above, the petitioner has not challenged our evidence that the 
beneficiary was banned from the national games in China in 2001. Thus, the evidence submitted to 
WAC 03 140 54194 
Page 5 
meet this criterion, while persuasive of the beneficiary's recognition prior to late 2001, is not evidence 
of sustained acclaim in 2003. 
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. 
The director concluded that the beneficiary's coaching for various teams could not serve to meet this 
criterion as the teams were not associations. Counsel does not contest this conclusion in the new brief 
submitted on appeal. We find consideration of the beneficiary's role as a coach for distinguished teams 
is better considered under the leading or critical roles criterion set forth at 8 C.F.R. § 204.5(h)(3)(viii). 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classzfication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner submitted published materials about Olympic delegations and competition results, some 
of which mention the beneficiary by name. We acknowledge that the director erred in concluding that 
none of the published material is about the beneficiary and in stating that the translations were not 
certified. That said, counsel is not persuasive on appeal in asserting that the materials need only be 
about the alien's work, and not the alien himself. The regulation at 8 C.F.R. 5 204.5(h)(3)(iii) specifies 
that the materials must be "about the alien . . . relating to the alien's work." Most of the materials in the 
record that are about the beneficiary appear in regional publications and in large dictionaries featuring 
numerous Chinese personalities. Articles in local publications cannot serve to meet this criterion. 
Appearing as one of thousands, or even hundreds of other successful individuals in a frequently 
published directory is not evidence of national acclaim. 
We acknowledge the submission of a translation for a September 2000 article about the beneficiary 
from "Xinhua Net." The translation of this article, however, is not accompanied by the original foreign 
language document. Regardless, in November 2001, as we advised the petitioner, the People's Daily 
published a highly negative article reporting the beneficiary's ban from the national games based on 
doping allegations. We cannot conclude that Congress intended those with negative press coverage 
and, thus, negative acclaim, to qualify for the exclusive classification sought. As such, any positive 
value the Xinhua Net article might cany is more than outweighed by the negative publicity in 
November 2001. As discussed above, the petitioner was advised of this information and offered an 
opportunity to respond, including by submitting evidence that the beneficiary was exonerated and 
reinstated within the sport. The petitioner failed to do so. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
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 alliedfield of specflcation for which classzfication is sought. 
WAC 03 140 541 94 
Page 6 
The director concluded that the beneficiary meets this criterion based on his duties as a coach. The 
evidence submitted to meet a given criterion must be evaluated as to whether it is indicative of or 
uniquely consistent with national or international acclaim. Duties inherent to the alien's occupation 
cannot serve to meet this criterion. It is inherent to the occupation of coach to evaluate one's students. 
Not every coach enjoys national or international acclaim. As such, we must withdraw the director's 
finding that the beneficiary's coaching responsibilities can serve to meet this criterion. 
The record does contain evidence that in 1998, the beneficiary was selected to serve on the Evaluation 
Committee for the Senior Sports Coaches in Shanxi province. Given the lack of evidence relating to 
accomplishments after mid-2001, however, we cannot consider the 1998 selection as evidence of 
sustained acclaim in 2003 when the petition was filed. 
Evidence of the alien S original scientzfic, scholarly, artistic, athletic, or business-related 
contributions of major signzJicance in the field. 
The director concluded that the evidence was insufficient to establish that the beneficiary's coaching 
techniques were original or constitute contributions of major significance in the field of track and field. 
Counsel does not contest this conclusion on appeal. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The director acknowledged the beneficiary's authorship of scholarly articles in the field but concluded 
that without evidence of the circulation of the publications in which the articles appeared, the petitioner 
could not establish that the articles appeared in major media. On appeal, counsel asserts that the 
articles appeared in professional publications, as is clear from the covers of the publications. 
The petitioner authored articles in 1996 and 2000 in Field and Track, published by the China Athletics 
Association. We acknowledge that the regulation at 8 C.F.R. fj 204.5(h)(3)(vi) uses the phrase 
"professional or major trade publications or other major media." The use of the phrase "or other major 
media," (emphasis added) suggests that the alternative must also constitute major media. On the other 
hand, because "major" modifies "trade" and not "professional," it could be argued that the professional 
publications need not be "major." The ultimate standard for the classification sought, however, is 
national or international acclaim. Thus, it is the petitioner's burden to demonstrate that the evidence is 
indicative of or consistent with national or international acclaim. Authorship in a professional 
publication that does not enjoy national circulation is not persuasive. We will not presume national 
circulation from the fact that the publication is published by the China Athletics Association. In light of 
the above, the petitioner has not overcome the director's legitimate concerns. 
WAC 03 140 541 94 
Page 7 
Moreover, the articles were published in 1996 and 2000 and are not evidence of sustained acclaim in 
April 2003, when the petition was filed. As such, the petitioner has not established that the beneficiary 
meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
Counsel does not contest the director's finding that the record contains no evidence relating to this 
criterion, which applies to the visual arts. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director found that the beneficiary's services as an Olympic coach for China at the 2000 Olympics 
serves to meet this criterion and we concur with that finding insofar as it is indicative of the 
beneficiary's recognition in 2000. As discussed above, the director also found that while the evidence 
demonstrated the beneficiary's recognition, it did not establish his sustained national or international 
acclaim. The record contains no evidence of the beneficiary's roles after the middle of 2001 and, as 
stated above, the petitioner has not responded to evidence we obtained revealing that the beneficiary 
was banned from the national games in November 2001. As such, while the evidence submitted is 
persuasive for 2000, it is not indicative of sustained acclaim in 2003, when the petition was filed. 
Evidence that the alien has commanded a high salary or other signzJicantly high remuneration for 
services, in relation to others in thefield. 
Counsel does not contest the director's finding that the record contains no evidence relating to this 
criterion. 
Evidence of commercial successes in the per$orming arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
Counsel does not contest the director's finding that the record contains no evidence relating to 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 beneficiary has distinguished himself as a 
track and field coach to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field. The evidence 
indicates that the beneficiary enjoyed some earlier recognition as a track and field coach, but is not 
WAC 03 140 54194 
Page 8 
persuasive that the beneficiary's recent achievements set him significantly above almost all others in his 
field. 
As evidence to meet the evidentiary requirements at 8 C.F.R. § 204.5(h)(5) regarding the alien's intent 
to continue working in his area of expertise, the petitioner submitted the beneficiary's statement of 
intent to work as a coach at schools at various levels and athletic clubs. While such evidence might fall 
within the type of evidence required by the regulation, in this matter, the beneficiary was banned fi-om 
the national games in China based on doping allegations. The petitioner has been offered an 
opportunity to respond to this derogatory evidence and has failed to do so. The record contains no 
evidence that the beneficiary would be able to secure employment in his area of expertise without 
concealing his ban in China. Thus, we are not persuaded that the petitioner has established that the 
beneficiary reasonably seeks to enter the United States to continue working in his area of expertise. 
Further, as stated above, the statute requires that the alien's entry to the United States will substantially 
benefit prospectively the United States. Section 203(b)(l)(A)(iii) of the Act. While there are no 
evidentiary requirements for this provision in the regulations, we are not precluded fi-om addressing this 
statutory requirement where evidence suggesting no prospective benefit exists. The petitioner was 
afforded an opportunity to respond to our concerns that the beneficiary was banned from the national 
games in China based on doping allegations. Given this record, we are not persuaded that the 
beneficiary's entry into the United States will substantially benefit prospectively the United States. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.