dismissed EB-1A Case: Athletics

(b)(6)
Date: Office: NEBRASKA SERVICE CENTER 
NO~ \ 2 20\3 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
APPLICATION: 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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~n~~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner in this instance seeks classification as an "alien of extraordinary ability" in athletics, 
pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(A). The director determined the petitioner had not established the sustained national or 
international acclaim 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)(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 director determined that the petitioner submitted sufficient qualifying 
evidence under three of the ten regulatory categories but erroneously failed to consider relevant 
information in the merits analysis. Considering the evidence in the aggregate, the petitioner has not 
established eligibility for the benefit sought by a preponderance of the evidence. 
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 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
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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 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. !d.; 
8 C.P.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.P.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 P.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 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." !d. 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)." !d. 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 under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. 
II. ANALYSIS 
A. Prior 0-1 Nonimmigrant Visa 
While U.S. Citizenship and Immigration Services (USCIS) has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does not preclude 
users from denying an immigrant visa petition based on a different, if similarly phrased, 
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). 
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standard. USCIS denies many I-140 immigrant petitions after approving 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 1-140 immigrant petitions, USCIS approves some nonimmigrant petitions in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude USCIS 
from denying an extension of the original visa based on a reassessment of petitioner'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 need not treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
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. 8 C.P.R. § 204.5(h)(3)(i). 
The director determined in his decision that the petitioner met this regulatory criterion. The record, 
however, does not support the director's finding in this regard. The petitioner submitted evidence ofhis 
own awards for consideration under this criterion. However, the petitioner won those awards for his 
performance as an athlete, rather than as a coach. See Lee v. I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 
2002) (upholding a finding that coaching and competing are separate areas of expertise). The 
petitioner also submitted evidence of awards that his gymnastics students won. However, the plain 
language of 8 C.P.R. § 204.5(h)(3)(i) regulation does not allow for consideration of prizes or awards 
that a petitioner does not win on his or her own behalf. Moreover, the record does not establish that 
his students won nationally or internationally recognized awards while under this tutelage such that 
they are comparable to the standards at 8 C.P.R.§ 204.5(h)(3) pursuant to 8 C.P.R.§ 204.5(h)(4). 
Accordingly, the petitioner has not satisfied the regulatory requirements and the AAO withdraws the 
director's finding with regard to 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. 
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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. 8 C.F.R. § 204.5(h)(3)(ii). 
The director concluded in his decision that the petitioner met this criterion. The record, however, does 
not support the director's conclusion in this regard. 
This criterion contains several evidentiary elements the petitioner must establish. First, the petitioner 
must demonstrate that the beneficiary is a member of more than one association in his field. Second, 
the petitioner must demonstrate that the associations require outstanding achievements (in the plural) of 
its members. The final requirement is nationally or internationally recognized experts in their field 
judge admittance. The petitioner must submit evidence satisfying all of these elements to meet the plain 
language requirements of this criterion. 
The petitioner submitted a letter indicating that he is a member of the . 
However, the submitted evidence does not include information showing that the 
requires outstanding achievements of its members. Furthermore, the submitted evidence 
with respect to the does not provide information indicating that 
nationally or internationally recognized experts in the field judge individuals for admission as members. 
Counsel asserted in the response to the director's Request for Evidence (RFE) that: "[o]nly people who 
cultivated 01 mpic champions, and senior coaches, national coaches are qualified to be in the members 
of ' The independent evidence of record documenting the petitioner's 
membership in the however, does not substantiate counsel's 
assertions. The submitted evidence is not bylaws or similar evidence outlining the requirements of 
membership. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Consequently, 
the petitioner's membership in the does not meet the regulatory 
requirements under 8 C.F.R. § 204.5(h)(3)(ii). Even if the petitioner had established that membership in 
the constitutes a membership in an association which requires 
outstanding achievements of their members, the plain language of the regulation at 8 C.F.R. § 
204.5(h)(3)(ii) requires membership in associations (in the plural), which is consistent with the statutory 
requirement for extensive evidence. Section 203(b)(1)(A)(i) of the Act. Significantly, not all of the 
criteria at 8 C.F.R. § 204.5(h)(3) use 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 plural in the remaining regulatory criteria has meaning. In a different context, federal courts 
have upheld USC IS' ability to interpret significance from whether the singular or plural is used in a 
regulation.3 
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). 
(b)(6)
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The petitioner also submitted his certification as a ''National Coach." In the response to the RFE, 
counsel asserts that "National Coach" is the highest professional level in the field of endeavor of the 
petitioner. The record does not include independent documentation supporting counsel's assertion. See 
Matter of Obaigbena, 19 I&N Dec. at 534. Moreover, the petitioner's designation as a "National 
Coach" is a certification or license rather than a membership in an association. Licenses are evidence of 
exceptional ability under the lesser qualification set forth at section 203(b )(2) of the Act, 8 C.F.R. § 
204.5(k)(3)(ii)(C), and does 
not constitute membership in an association. 
Accordingly, the petitioner has not satisfied the regulatory requirements and the AAO withdraws the 
director's finding with regard to 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 allied field of specification for which classification is sought. 
The director determined in his decision that the petitioner met this regulatory criterion and the record 
supports the director's conclusions in this regard. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The petitioner previously submitted evidence under this criterion. The director's denial concluded that 
the petitioner did not meet this criterion and the petitioner does not identify any factual or legal error 
relating to this criterion on appeal. The record supports the director's conclusion. 
B. Summary 
In light of the above, the petitioner has not submitted the requisite evidence under at least three of the 
evidentiary categories for which evidence must be submitted to meet the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. Nevertheless, the AAO will 
review all of the evidence in the aggregate as part of the final merits determination. 
C. Final Merits Determination 
In accordance with the Kazarian opinion, the AAO must 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.P.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." 8 C.P.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20. 
On appeal, counsel maintains that the director failed to properly consider and weigh the petitioner's 
coaching influence on gymnasts who had won international competitions because the petitioner was no 
longer coaching the athletes at the time of competition. In the appeal brief, counsel asserts that the 
difference in coaching systems mandates that gymnasts become part of the national team prior to 
participation in international competitions and must separate from long-time coaches. The record, 
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outside of counsel's assertions, lacks information regarding the system of coaching in China and 
counsel's assertions do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. at 534. The record 
does support the conclusion that the petitioner participated as a judge of the work of others. However, 
as the director noted in the denial, judging is inherently a part of the coaching process. Also, the record 
only contains evidence of the petitioner's participation as a judge in one competition and contains no 
information regarding the importance of that gymnastics competition. In addition, the petitioner has 
submitted evidence of his own success as a gymnast and evidence indicating his employer's acclaim as 
a gymnastics coach, but such evidence is not persuasive in demonstrating the petitioner's eligibility as a 
gymnastics coach of extraordinary ability. See Lee, 237 F. Supp. 2d at 917. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of the small 
percentage who has risen to the very top of the field of endeavor. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
gymnastics 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 petitioner is a talented former athlete who has is beginning to see some of his students 
succeed in competitions, but is not persuasive that the petitioner's achievements sets him significantly 
above almost all others in his field. Therefore, the petitioner has not established eligibility pursuant to 
section 203(b)(1)(A) of the Act and the petition may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.