dismissed EB-1A Case: Athletics

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAY 3 0 2012 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find 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 with 
the field office or service center that originally decided your case by filing a 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 file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~Jf--
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks to classify the beneficiary as an "alien of extraordinary ability" in athletics as a 
squash professional, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 
8 U.s.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained 
national or international acclaim on behalf of the beneficiary necessary to qualify for classification as an 
alien of extraordinary ability. 
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 CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.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 CF.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence on behalf of the alien under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel submits a brief. For the reasons discussed below, the AAO upholds the director's 
ultimate conclusion that the petitioner has not established the beneficiary'S eligibility for the exclusive 
classification sought. 
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 
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 immigrant visas as aliens of extraordinary ability. See H.R. 723 101
st 
Cong., 2d Sess. 59 
(1990); 56 Ped. 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.P.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, 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.P.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." 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.P.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 on behalf of the beneficiary under at least three criteria, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. 
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). 
Page 4 
II. ANAL ysrs 
A. Prior 0-1 
While uscrs has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude uscrs from denying an immigrant visa petition 
based on a different, if similarly phrased, classification. It must be noted that many r-140 immigrant 
petitions are denied after uscrs 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). 
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 r&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that uscrs or any 
agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director 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.), affd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
B. 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 director concluded that the petitioner did not submit qualifying evidence on behalf of the 
beneficiary under 8 C.F.R. § 204.5(h)(3)(i). The record does not support this conclusion. 
On appeal, counsel asserts that the beneficiary meets this criterion based upon being "ranked # 18 IN 
THE WORLD." It should be noted that uscrs 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. 953, 954 (Assoc. Comm'r 1994); 
56 Fed. Reg. at 60899. While the AAO does not find counsel's assertion persuasive and concurs with 
the director that "ranking in a competition is not considered an award or prize," there is sufficient 
documentary evidence in the record including, but not limited to, two Challenger titles to determine that 
the beneficiary has satisfied this criterion. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 5 
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. 
The director concluded that the petitioner did not submit qualifying evidence on behalf of the 
beneficiary under 8 C.F.R. § 204.5(h)(3)(ii). On appeal, counsel asserts that "being a member of a 
winning team" should satisfY this criterion, but fails to provide any additional evidence. 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). 
It is the petitioner's burden to demonstrate that the beneficiary meets every element of a given criterion, 
including that membership on the team requires outstanding achievements of its members, as judged by 
recognized national or international experts. In addition, the plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(ii) requires "evidence of the alien's membership in associations" in the plural, 
which is consistent with the statutory requirement for extensive evidence. Section 203(b)(I)(A)(i) of 
the Act. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. 
Specifically, the regulations at 8 c.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single 
judging panel or a single high salary. When a regulatory criterion wishes to include the singular within 
the plural, it expressly does so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence of 
experience must be in the form of "letter(s)." Thus, the AAO can infer that the plural in the remaining 
regulatory criteria has meaning. In a different context, federal courts have upheld USCIS' ability to 
interpret significance from whether the singular or plural is used in a regulation.3 
In light of the above, the AAO concurs with the director that the petitioner has not established that the 
beneficiary meets the plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
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 director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. 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. Atty Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United States v. 
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see also Hristov v. Roark, No. 09-CV-27312011, 
2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed 
to raise them on appeal to the AAO). 
3 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com 
Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the 
regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.P.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
Page 6 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. 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. Id. 
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 petitioner established that the beneficiary satisfies the plain language 
requirements of the regulation at § 204.5(h)(3)(viii) and the AAO concurs with that finding. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
The director concluded that the petitioner submitted qualifying evidence on behalf of the beneficiary 
under 8 C.F.R. § 204.5(h)(3)(ix). The record does not support this conclusion. The AAO finds that the 
director erred when she concluded that exceeding the O*Net Level 4 wage for Coaches and Scouts in 
the same metropolitan area was sufficient evidence that the beneficiary meets this criterion. 
The plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(ix) requires the petitioner to submit 
evidence of the beneficiary's "high salary or other significantly high remuneration for services, in 
relation to others in the field." Average salary information for those performing work in a related, but 
distinct occupation, with different responsibilities is not a proper basis for comparison. Rather, the 
petitioner must submit documentary evidence of the earnings of those in the beneficiary's occupation 
performing similar work at the top level of the field.4 In this instance, the record is void of information 
regarding the top salaries for other squash professionals who perform similar duties. The provided 
O*Net wage was far too broad, encompassing coaches and scouts in every athletic discipline, not just 
squash, to constitute evidence that the beneficiary's salary or remuneration is high "in relation to others 
in the field." Furthermore, according to the provided duties of the position, the beneficiary's role will 
4 While the AAO acknowledges that a district court's decision is not binding precedent, we note 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. 
, . 
Page 7 
include duties far beyond that of just coaching. 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 
Crimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (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). 
Finally, the plain language of the regulation requires that "the alien has commanded a high salary." The 
submitted contract was dated 6 days before filing. There is no evidence in the record to determine 
whether the beneficiary had already received the referenced remuneration. Eligibility must be 
established at the time of filing. 8 C.F.R. §§ l03.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(ix). 
C. Summary 
As the petitioner did not submit qualifying evidence on behalf of the beneficiary under at least three 
criteria, the proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory 
requirement of three types of evidence. 
III. CONCLUSION 
Had the petitioner submitted the requisite evidence on behalf of the beneficiary 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: (l) 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. 5 Rather, the proper conclusion is that the petitioner failed to 
demonstrate that the beneficiary has satisfied the antecedent regulatory requirement of three types of 
evidence. Id. at 1122. 
5 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d at 145. In 
any future proceeding, the AAO maintains the jurisdiction to conduct a final 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); l 
8 C.F.R. § 103.1(f)(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). 
... . 
Page 8 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b )(1 )(A) of the 
Act and 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. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.