dismissed EB-1A Case: Athletics

(b)(6)
DATE : MAY 0 7 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529- 2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
Enclosed please fmd the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not f'de any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www .uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal 
will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to 
section 203(b)(l)(A) ofthe hnrnigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A) as 
a professional jockey. The director determined that the petitioner had not established the requisite 
extraordinary ability and failed to submit extensive documentation of his 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)(l)(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 meets the regulatory categories of evidence at 
8 C.F.R. §§ 204.5(h)(3)(i), (iii), and (viii)- (x) and that the petitioner has submitted comparable 
evidence of his eligibility pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). For the reasons 
discussed below, the AAO 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--
(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 
(b)(6)
Page 3 
(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 inunigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability'' 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009) aff'd in 
part 596 F.3d 1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the 
petition, the court took issue with the AAO's evaluation of evidence submitted to meet a given 
evidentiary criterion.1 With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court 
concluded that while users may have raised legitimate concerns about the significance of the 
evidence submitted to meet those two criteria, those concerns should have been raised in a 
subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
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 this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. I d. 
1 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.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
(b)(6)
Page4 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted an August 12, 1994 "Good Standing Certificate" from the 
stating: 
We certify that the professional jockey [the petitioner] has had excellent conduct since he 
started performing as apprentice jockey, that he has had no problems at our racetrack, that 
due to this competence, hard work and performance he has been successful, which 
includes being the leader of the 1994 jockeys' standings. 
The preceding certificate states that the petitioner was "the leader of the 1994 jockeys' 
standings" at the racetrack, but there is no documentary evidence demonstrating that he 
received a nationally or internationally recognized prize or award for the achievement. The 
petitioner also submitted a May 24, 2004 certification from the listing his 
racing record and stating that he performed at as a professional jockey. 
Neither of the preceding documents specifically identifies any "nationally or internationally 
recognized prizes or awards for excellence in the field" received by the petitioner. 
The petitioner submitted a March iO, 2009 letter from _ 
from Peru" and a ' stating: 
_ __ ... "a thoroughbred jockey 
I am familiar with [the petitioner's] reputation and racing record in Peru. It is clear to me 
from [the petitioner's] racing history in Peru alone that he is a jockey of extraordinary 
ability and achievement in the field of thoroughbred racing. Moreover, [the petitioner's] 
overall achievements in Peru and in the U.S., where he has competed with great success 
at several local tracks, further corroborate and cement his standing as a thoroughbred 
jockey of extraordinary ability. 
In my opinion, the statistics.issues by the _ _ 
definitive proof that [the petitioner] is a jockey of extraordinary ability. 
alone serve as 
comments that the petitioner has "competed with great success at several local tracks," 
but he does not specifically identify any "nationally or internationally recognized prizes or 
awards for excellence in the field" that were received by the petitioner. While 
repeatedly refers to the petitioner as a "jockey of extraordinary ability," merely repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
(b)(6)
Page 5 
1990); Aryr Associates , Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Further, USCIS 
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 final determination regarding an alien's eligibility for the benefit 
sought. Id. The submission of reference letters 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 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). 
The petitioner submitted photographs showing that he received the "Leading Jockey" trophy at 
the and that he received the "Leading Jockey" award plaque at 
the There is no documentary evidence showing that the 
petitioner's "Leading Jockey" awards from are nationally or 
internationally recognized awards for excellence in the field rather than local awards issued by 
the racetrack where the petitioner often competed. 
The petitioner 
submitted his "Jockey Profile Page" posted on the website of an online 
thoroughbred racing information source. According to the petitioner's profile, his 
"Best Racing Class Achieved" was "Multiple Stakes Winnin~ Jockey." In addition, the 
petitioner ranked The petitioner also 
submitted multiple photographs from his winning rides at in Ohio and 
in West Virginia. There is no documentary evidence 
showing that any of the racing stakes won by the petitioner were equivalent to nationally or 
internationally recognized prizes or awards for excellence in the field. 
With regard to the above documentation submitted by the petitioner, he did not submit evidence 
demonstrating the national or international recognition of his particular awards and honors. The 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically requires that the petitioner's 
awards be nationally or internationally recognized in the field of endeavor and it is his burden to 
establish every element of this criterion. In this case, there is no documentary evidence 
demonstrating that the petitioner's specific awards and honors were recognized beyond the 
presenting organizations at a level commensurate with nationally or internationally recognized 
prizes or awards for excellence in the field. Accordingly, the petitioner has not established that 
he meets this regulatory criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The petitioner submitted a January 24, 2011 article in (Hot Springs, Arkansas) 
entitled ' The newspaper article is about brothers 
first stakes victory at and the $50,
000 American Beauty stakes race; the 
article is not about the petitioner. The petitioner is only briefly mentioned in the article and two 
captioned photographs from the event. The plain language of the regulation at 8 C.F .R. 
(b)(6)
Page 6 
§ 204.5(h)(3)(iii) requires that the published material be "about the alien ... relating to the alien's 
work in the field." Thus, an article that mentions the petitioner but is "about" someone or 
something else cannot qualify under the plain language of this regulation. See Noroozi v. 
Napolitano, 11 CV 8333 PAE, 2012 WL 5510934 at *1, *9 (S.D.N.Y. Nov. 14, 2012); also see 
generally Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) 
(upholding a finding that articles about a show or a character within a show are not about the 
performer). In addition, there is no circulation evidence showing that The Sentinel-Record 
qualifies as a form of major media. 
The petitioner submitted a May 1, 2009 article in (Cleveland, Ohio) entitled 
The newspaper article is about the Thistledown racetrack and 
its financial situation, not the petitioner. The petitioner is only briefly mentioned in a captioned 
photograph accompanying the article. Further, there is no circulation evidence showing that 
qualifies as a form of major media. 
The petitioner submitted a captioned photograph entitled ' 
' but the English language translation accompanying t,he material was not a full 
translation as required by the regulation at 8 C.F.R. § 103.2(b)(3). Any document containing 
foreign language submitted to USCIS shall be accompanied by a full English language 
translation that the translator has certified as complete and accurate, and by the translator's 
certification that he or she is competent to translate from the foreign language into English. Id. 
Further, the plain language of the regulation at 8 C.F.R. § 204.5(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. In addition, there is no evidence showing that the 
captioned photograph was in a professional or major trade publication or some other form of major 
media. 
The petitioner submitted an article entitled ' ' but the English language 
translation accompanying the article was not a full translation as required by the regulation at 
8 C.F.R. § 103.2(b)(3). Without a full English language translation, the petitioner has not 
established that the article is about him. The date of the article was not identified as required by 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, there is no 
documentary evidence showing that the article was in a professional or major trade publication or 
some other form of major media. 
The petitioner submitted an article entitled ' but the English 
language translation accompanying the article was not a full translation as required by the 
regulation at 8 C.F.R. § 103.2(b)(3). Without a full English language translation, the petitioner 
has not established that the article is about him. In addition, the date of the article was not 
identified as required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
Furthermore, there is no documentary evidence showing that the article was in a professional or 
major trade publication or some other form of major media. 
The petitioner submitted a "cover page" dated November 28, 2000 and entitled 
' but the English language translation accompanying the material was not a full 
(b)(6)
Page 7 
translation as required by the regulation at 8 C.F.R. § 103.2(b)(3). Further, the author of the 
material was not identified as required by the plain language of the regulation at 8 C.F .R. 
§ 204.5(h)(3)(iii). In addition, there is no documentary evidence showing that the material was 
from a professional or major trade publication or some other form of major media. 
The petitioner submitted the cover page of dated June 7, 1997, but the author of the 
material was not identified as required by the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). Furthermore, there is no documentary evidence showing that 
qualifies as a professional or major trade publication or some other form of major media. 
The petitioner submitted an August 6, 2001 article in entitled ' 
' but the English language translation accompanying the article was not a full 
translation as required by the regulation at 8 C.F.R. § 103.2(b)(3). Without a full English 
language translation, the petitioner has not established that the article is about him. The petitioner 
also submitted a December 15, 2003 article about himself (accompanied by a full English 
language translation) in entitled ' 
The author of the preceding articles in was not identified as 
required by the plain language ofthe regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, there is 
no circulation evidence showing that qualifies as a form of major media. 
The petitioner submitted information about the horse on the cover page of _ 
the official magazine of the _ The date and author of the material were 
not identified as required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
The petitioner also submitted information about the horse on the cover page of the May 3, 
2003 issue of but the author of the material was not identified. The preceding 
material on the two cover pages of focuses on the horses and only briefly 
mentions the petitioner. In addition, there is no documentary evidence showing that 
qualifies as a professional or major trade publication or some other form of major media. 
The petitioner submitted an article entitled ' " but the English 
language translation accompanying the material was not a full translation as required by the 
regulation at 8 C.F.R. § 103.2(b)(3). Further, the author of the material was not identified as 
required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, the date 
of the article is illegible and there is no documentary evidence showing that the article was in a 
professional or major trade publication or some other form of major media. 
None of the above articles meet all of the requirements of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). For example, the articles were deficient in that they did not include a date or 
an author, they were not about the petitioner, they lacked a full English language translation, or 
they lacked evidence that they were published in major media. 
On appeal, counsel asserts that the submitted articles should be considered as comparable 
evidence for this regulatory criterion. Counsel states: 
(b)(6)
Page 8 
As stated in the RFE, the stories in this field are not focused on jockeys and their success. 
Most mentions of jockeys in published material are about what place they came in, the 
time and winnings. For this reason, the petitioner presented comparable evidence to 
show that even being mentioned in publications is equivalent to publication in this field. 
In the original filing, [the petitioner] included material published about him and his 
success in racing. In addition, he has included articles dating back to his career in Peru, 
where he was mentioned and celebrated several times . 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or 
international acclaim "shall" include evidence of a one-time achievement or evidence of at least 
three of the ten regulatory categories of evidence to establish the basic eligibility requirements. 
The ten categories in the regulations are designed to cover different areas; not every criterion 
will apply to every occupation. For example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) 
implicitly applies to the visual arts, and the criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly 
applies to the performing arts. The AAO further acknowledges that the regulation at 8 C.F.R. 
§ 204.5(h)(4) provides that "[i]f the above standards do not readily apply to the [petitioner's] 
occupation, the petitioner may submit comparable evidence to establish the [petitioner's] 
eligibility." It is clear from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that the rule, not 
the exception, is that the petitioner must submit evidence to meet at least three of the regulatory 
criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not readily 
applicable to his occupation and how the evidence submitted is "comparable" to the objective 
evidence required at 8 C.F.R. § 204.5(h)(3)(i)- (x). 
Counsel asserts that "stories in this field are not focused on jockeys and their success" and that 
"[ m ]ost mentions of jockeys in published material are about what place they came in, the time 
and winnings," but there is no evidence demonstrating that the regulatory criterion at 8 C.F .R. 
§ 204.5(h)(3)(iii) is not readily applicable to the jockey profession. 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). After first claiming that 
published material does not focus on jockeys and their success, counsel then undermines his 
claim by stating: "In the original filing, [the petitioner] included material published about him 
and his success in racing." [Emphasis added.] In addition, as previously discussed, the 
petitioner submitted a December 15, 2003 article "about the alien" in entitled ' 
The submission of this article is 
not consistent with counsel's assertion that the "published material about the alien" criterion 
does not readily apply to the petitioner's occupation. As such, the petitioner has failed to 
demonstrate that the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(iii) does not apply to his 
occupation as required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(4). 
In addition, there is no evidence that eligibility for visa preference in the petitioner's occupation 
as a jockey cannot be established by the ten categories of evidence specified by the regulation at 
8 C.F.R. § 204.5(h)(3). In fact, the petitioner has submitted evidence that pertains to multiple 
(b)(6)
Page9 
categories as indicated in this decision. An inability to meet a criterion is not necessarily 
evidence that the criterion does not apply to the petitioner's occupation. 
Even if the petitioner demonstrated that he was eligible for the provisions of the regulation at 
8 C.F.R. § 204.5(h)(4), which he clearly did not, the petitioner failed to establish that only being 
briefly mentioned in an article is comparable to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) that 
requires "[p ]ublished 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." Lesser 
evidence and less restrictive standards are not equivalent to "comparable evidence." The 
regulation at 8 C.F.R. § 204.5(h)(4) is not a provision to simply allow an alien to circumvent the 
regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i) - (x) when an alien is unable to meet or submit 
documentary 
evidence of the criteria. Rather than submitting evidence that is comparable to the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii), counsel asserts that simply "being mentioned in 
publications" demonstrates the petitioner's eligibility. As "being mentioned in publications" is 
less restrictive than the plain language of the regulation, the AAO cannot conclude that the 
petitioner's evidence is comparable. Where an alien is simply unable to meet or submit 
documentary evidence of three of the criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3), 
the plain language of the regulation at 8 C.F .R. § 204.5(h)( 4) does not allow for the submission 
of comparable evidence. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner does not contest the 
director's findings for this criterion or offer additional arguments. The AAO, therefore, 
considers this issue to be abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 
(E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be abandoned as he failed to 
raise them on appeal to the AAO). Accordingly, the petitioner has not established that he meets 
this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The petitioner submitted a May 7, 2012 letter from stating: 
I ... declare (i) that I am a professional Thoroughbred Trainer currently licensed in the 
States ofWest Virginia, Ohio, Pennsylvania and Kentucky; (ii) that I have performed and 
perform as such in the United States; (iii) that I currently rank in North American 
racing starters; and (iv) that I currently rank among the leading North American 
Trainers in earnings. 
(b)(6)
Page 10 
I also declare that I am familiar with Professional Jockey [the petitioner's] performance 
at the Racetracks of In my opinion, [the 
petitioner's] international experience and strong work ethic make him uniquely qualified 
to fulfill his duties as a Professional Jockey in the U.S. 
As an expert in Thoroughbred racing and from my knowledge of [the petitioner's] 
abilities and qualifications, I write in support of the request to obtain immigration visa 
classification, based on the reputation he has built for himself. 
The petitioner also submitted a May 3, 2012letter from stating: 
I ... declare (i) that I am a professional Thoroughbred Trainer currently licensed in the 
States of West Virginia, Ohio, Pennsylvania and Kentucky; (ii) that I have performed and 
perform as such in the United States; (iii) that I currently rank in North American 
racing starters; and (iv) that I currently rank among the leading North American 
Trainers in earnings. 
I also declare that I am familiar with Professional Jockey [the petitioner 's] performance 
at the _ In my opinion, [the 
petitioner's] international experience and strong work ethic make him uniquely qualified 
to fulfill his duties as a Professional Jockey in the U.S. 
As an expert in Thoroughbred racing and from my knowledge of [the petitioner's] 
abilities and qualifications, I write in support of the request to obtain immigration visa 
classification, based on the reputation he has built for himself. 
In addition, the petitioner also submitted a May 3, 2012 letter from stating: 
I ... declare (i) that I am a professional Thoroughbred Trainer currently licensed in the 
States ofWest Virginia, Ohio, Pennsylvania and Kentucky; (ii) that I have performed and 
perform as such in the United States; (iii) that I currently rank in North American 
racing starters; and (iv) that I currently rank among the leading North American 
Trainers in earnings. 
I also declare that I am familiar with Professional Jockey [the petitioner's] performance 
at the In my opinion, [the 
petitioner's] international experience and strong work ethic make him uniquely qualified 
to fulfill his duties as a Professional Jockey in the U.S. 
As an expert in Thoroughbred racing and from my knowledge of [the petitioner's] 
abilities and qualifications, I write in support of the request to obtain immigration visa 
classification, based on the reputation he has built for himself. 
The second and third paragraphs of the preceding three references' letters contain identical 
language when describing the petitioner's qualifications , suggesting the language in at least two 
(b)(6)
Page 11 
of the three letters is not the authors' own. Cf Surinder Singh v. Board of Immigration Appeals, 
438 F.3d 145, 148 (2d Cir. 2006) (upholding an immigration judge's adverse credibility 
determination in asylum proceedings based in part on the similarity of some of the affidavits); 
Mei Chai Ye v. US. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007) (concluding that an 
immigration judge may reasonably infer that when an asylum applicant submits strikingly similar 
affidavits, the applicant is the common source). While it is acknowledged that 
have lent their support to this petition, it appears that at least two 
of them did not independently prepare the full content of their letters. Accordingly, the AAO 
finds their duplicative statements to be of limited probative value. Regardless, none of the three 
trainers state that the petitioner has "performed in a leading or critical role" for their horse 
training operations or the Instead, 
they simply express familiarity with the petitioner's racing performances and compliment him on 
his international experience, strong work ethic, abilities, and qualifications. 
On appeal, counsel states: "[The petitioner] has held leading positions at 
track and was awarded as the "Leading Jockey" at in 2010 and 2009. 
He is ranked first place jockey at and is ranked seventh at '' As 
previously discussed, the petitioner submitted photographs showing that he received the 
"Leading Jockey" trophy at the and that he received the 
"Leading Jockey" award plaque at the The petitioner also 
submitted statistics from the website for the period "7/01/12- 9/30/12" indicating that 
the petitioner was the seventh-ranked jockey by race earnings at In 
addition, the petitioner submitted statistics from the website for the period "5/4/12 -
5/14/12" indicating that the petitioner was the first-ranked jockey by race earnings at 
The petitioner also submitted information about 
from the online 
encyclopedia Wikipedia. With regard 
to information from Wikipedia, there are no assurances about the reliability of the content from 
this open, user-edited internet site.3 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8th 
Cir. 2008). Accordingly, the AAO will not assign weight to information for which Wikipedia is 
the source. Thus, the petitioner has not established that the preceding organizations have a 
distinguished reputation. 
3 Online content from Wikipedia is subject 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 http://en.wikipedia.org/wiki!Wikipedia:General disclaimer, accessed on April 25, 2013, copy incorporated into 
the record of proceeding. 
(b)(6)
Page 12 
In general, a leading role is evidenced by the nature of the role itself and a critical role is one in 
which the individual was responsible for the success and standing of the organization or 
establishment. While the petitioner's participation may have been leading at the two 
(2009 and 2010) and while his race earnings for the ten-day period 
of "5/4/12 - 5/14/12" made him the first-ranked jockey by race earnings at , such 
evidence does not translate to a leading or critical role for the as a whole. 
Regarding the statistics from the website for the period "7/01112- 9/30112" indicating 
that the petitioner was the seventh-ranked jockey by race earnings at . the 
AAO cannot conclude that being the seventh-ranked jockey for the preceding three-month period 
is equivalent to a leading or critical role for that organization. This 
criterion has not been met 
because the submitted evidence does not indicate that the role the petitioner performed for the above 
racetracks was leading or critical. Moreover, the letters from 
fail to adequately explain how the petitioner's role as a jockey was leading or critical 
to their racing operations and the racetracks where he competed. 
Counsel asserts that the above evidence should be considered as comparable evidence for this 
regulatory criterion. Counsel states: 
[T]he petitioner does not have a fixed role at the track. The petitioner presented 
comparable evidence that he has performed as a jockey for several well-known and 
prominent trainers. . . . Without the petitioner's stellar performances, the trainers for 
whom he rides would see no winnings, and it is his exceptional ability to hold top spots 
that makes him invaluable. 
The AAO notes that none of trainers who submitted letters of support claim to be ranked in the 
top two hundred in racing starters or earnings for North America. Counsel fails to explain how 
the rankings mentioned in the trainers' letters demonstrate that they "have a distinguished 
reputation" in the sport of horseracing. In addition, none of the trainers' letters mention any 
specific "stellar performances" or "top spots" held by the petitioner. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
Regardless, there is no evidence demonstrating that the regulatory criterion at 8 C.P.R. 
§ 204.5(h)(3)(viii) is not readily applicable to the jockey profession. 
In addition, there is no 
evidence that eligibility for visa preference in the petitioner's occupation as a jockey cannot be 
established by the ten categories of evidence specified by the regulation at 8 C.P.R. 
§ 204.5(h)(3). Once again, an inability to meet a criterion is not necessarily evidence that the 
criterion does not apply to the petitioner's occupation. Even if the petitioner demonstrated that 
he was eligible for the provisions of the regulation at 8 C.P.R. § 204.5(h)(4), which he clearly did 
not, the petitioner failed to establish that submitting duplicative letters from trainers expressing 
familiarity with the petitioner's racing performances and complimenting him on his international 
experience, strong work ethic, abilities, and qualifications is comparable to the regulation at 
8 C.P.R.§ 204.5(h)(3)(viii) that requires "[e]vidence that the alien has performed in a leading or 
critical role for organizations or establishments that have a distinguished reputation." Rather than 
submitting evidence that is comparable to the regulation at 8 C.P.R. § 204.5(h)(3)(viii), counsel 
(b)(6)
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asserts that performing well for three Ohio horse trainers at nearby race tracks demonstrates the 
petitioner's eligibility. As the quality of the submitted documentation is not equivalent to the 
more restrictive evidence required by the plain language of the regulation at 8 C.F .R. 
§ 204.5(h)(3)(viii), the AAO cannot conclude that the petitioner's evidence is comparable. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. · 
The petitioner submitted statistics from the website reflecting race earnings of 
$933,167 in 2012, $1,005,509 in 2011, $948,756 in 2010, $1,067,739 in 2009, $801,066 in 2008, 
$446,933 in 2007, $717,266 in 2006, $481,326 in 2005, and $165,634 in 2004. The submitted 
information, however, does not specify the petitioner's share of the preceding race earnings. In 
counsel's November 4, 2012 letter responding to the director's request for evidence, counsel 
noted that winnings are divided among multiple parties including the horse owners, trainers, and 
jockeys. There is no documentary 
evidence (such as payment records or U.S. income tax forms) 
showing the yearly remuneration actually paid to the petitioner. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 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)). The petitioner also 
submitted information from the U.S. Bureau of Labor Statistics for "Athletes and Sports 
Competitors" reflecting that they earn a mean annual wage of$79,830. 
On appeal, counsel states: 
The petitioner presented comparable evidence to show the amount he makes would 
constitute high remuneration. The evidence provided from the Department of Labor is 
for athletes and sports competitors. The petitioner presented that information as the 
closest available from the Bureau of Labor Statistics. That is the general title given to 
what the petitioner does. As a sports competitor, he earns well above average. 
As a professional jockey, the petitioner must submit evidence showing that he has earned a "high 
salary'' or other "significantly high remuneration" in relation to others performing 
similar work in 
his specific field, not simply relative to the broad occupational group of "Athletes and Sports 
Competitors." In addition, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(ix) 
requires 
the petitioner to submit evidence showing that he has earned a "high salary" or other 
"significantly high remuneration" in relation to others in the field, not simply a salary that is above 
"average" in his field. Mean annual wage information is not a proper basis for comparison. 
Instead, the petitioner must submit documentary evidence showing the earnings of those in his 
occupation performing similar work at the top level of the field. See Matter of Price, 20 I&N 
Dec. 953, 954 (Assoc. Comm'r 1994) (considering professional golfer's earnings versus other 
PGA Tour golfers); see also Skokos v. U.S. Dept. of Homeland Sec., 420 F. App'x 712, 713-14 
(9th Cir. 2011) (finding average salary information for those performing lesser duties is not a 
comparison to others in the field); Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) 
(b)(6)
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(considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 
444-45 (N.D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL 
defensemen). 
Regarding counsel's statement that the petitioner submitted "comparable evidence to show the 
amount he makes would constitute high remuneration," there is no evidence demonstrating that 
the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(ix) is not readily applicable to the jockey 
profession. Moreover, even if the petitioner demonstrated that he was eligible for the provisions 
of the regulation at 8 C.F.R. § 204.5(h)(4), which he clearly did not, the petitioner failed to 
establish that submitting documentation which does not show the petitioner's specific 
remuneration and which includes only average salary data across a large group of occupations is 
comparable to the regulation at 8 C.F.R. § 204.5(h)(3)(ix) that requires "[e]vidence that the alien 
has commanded a high salary or other significantly high remuneration for services, in relation to 
others in the field." Rather than submitting evidence that is comparable to the regulation at 
8 C.F.R. § 204.5(h)(3)(ix), counsel points to the petitioner's undocumented share of race 
earnings and asserts that the petitioner's remuneration is "above average" for the broad 
occupational cluster of "Athletes and Sports Competitors." As the quality of the submitted 
documentation is not equivalent to the more restrictive evidence required by the plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(ix), the AAO cannot conclude that the petitioner's 
evidence is comparable. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The regulatory criterion at 8 C.F.R. § 204.5(h)(3)(x) focuses on volume of sales and box office 
receipts as a measure of "commercial successes in the performing arts." The petitioner's field, 
however, is not in the performing arts. None of the evidence submitted by the petitioner 
demonstrates· that he has achieved "commercial successes in the performing arts." 
On appeal, counsel states: 
The petitioner presented comparable evidence of earnings to satisfy this criterion. The 
petitioner has enjoyed commercial success when looking at his earnings, which are 
similar to counting tickets sold or box office earnings. . . . The petitioner included 
several photos of successes at ·races that indicate commercial gains to owners and 
trainers, as well as to himself, which were completely overlooked. 
As previously discussed, the race earnings information for the petitioner from the 
website does not specify his actual share of the winnings. In addition, while the photographs 
submitted by the petitioner show the "purse" for the horse races that were won, the submitted 
documentation again fails to indicate the petitioner's specific share of the race earnings. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden ofproofin these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. Moreover, even if 
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Page 15 
the petitioner demonstrated that he was eligible for the provisions of the regulation at 8 C.F.R. 
§ 204.5(h)( 4), which he clearly did not, the petitioner failed to establish that submitting 
documentation which does not show the petitioner's specific earnings is comparable to the 
regulation at 8 C.F.R. § 204.5(h)(3)(x) that requires "[e]vidence of commercial successes in the 
performing arts, as shown by box office receipts or record, cassette, compact disk, or video 
sales." Rather than submitting evidence that is comparable to the regulation at 8 C.F.R . 
§ 204.5(h)(3)(x), counsel asserts that the petitioner's undocumented share of race earnings 
demonstrates eligibility. As the quality of the submitted documentation is not equivalent to the 
more restrictive evidence required by the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(x), the AAO cannot conclude that the petitioner's evidence is comparable. 
In light ofthe above, the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence or to submit comparable evidence demonstrating his eligibility . 
C. Prior 0-1 Nonimmigrant Visa Status 
The petitioner submitted documentation indicating that he is the beneficiary of an approved 0-1 
nonimmigrant visa petition for an alien of extraordinary. This prior approval does not preclude 
USCIS from denying an immigrant visa petition based on a different, if similarly phrased standard. 
Each case must be decided on a case-by-case basis upon review of the evidence of record. It must 
be noted that many 1-140 immigrant petitions are denied after USCIS 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing I-
129 nonimmigrant petitions than I-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 (5th Cir. 2004) (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'r 1988). USCIS or any agency is 
not required to treat acknowledged errors as binding precedent. See Sussex Eng 'g 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 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, No. 98-2855, 
(b)(6)
Page 16 
2000 WL 282785, *1, *3 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). 
III. CONCLUSION 
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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits . 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination.4 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the 
petition may not be approved. 
The AAO may deny an application or petition that fails to comply with the technical 
requirements of the law 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 Soltane v. DOJ, at 145 
(noting that the AAO conducts appellate review on a de novo basis). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
4 
The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) . In any future proceeding, the AAO maintains the jurisdiction to conduct a fmal merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).