dismissed EB-1A Case: Athletics

identifying de'lctd ti? 
psvent clearly unwarranted 
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COP '"" 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 08 015 52830 
 JuL 2 0 2009 
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. 5 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
Appeals Office 
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 employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien 
of extraordinary ability in athletics. The director determined that the petitioner had not established the 
sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. More specifically, the director found that the petitioner had failed to demonstrate 
receipt of a major, internationally recognized award, or that he meets at least three of the regulatory 
criteria at 8 C.F.R. 5 204.5(h)(3). The director also determined that the petitioner had not submitted 
clear evidence that he would continue to work in his area of expertise in the United States. 
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
9 204.5(h)(3) and that he will continue to work in his area of extraordinary ability in the United States. 
In his supplemental brief pertaining to the instant appeal, counsel references prior AAO decisions for a 
previous Form 1-140, Immigrant Petition for Alien Worker, filed by the petitioner on February 2,2006, 
EAC 06 092 52754, stating that "all of the articles and letters attached hereto have been submitted to 
USCIS [U.S. Citizenship and Immigration Services] in support of his 1-140 petitions." The initial 
Form 1-140 petition, EAC 06 092 52754, and the appellate and certification proceedings relating to 
the revocation of the approval of that petition have been incorporated into the record of proceeding 
now before the AAO.' 
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 
' The initial Form 1-140 petition, EAC 06 092 52754, was initially approved by the Director, Texas Service Center, on 
September 18,2006. Subsequently, the director issued a notice of intent to revoke (NOIR) the approval of the petition. In a 
September 13, 2007 Notice of Revocation (NOR), the director revoked the approval of the Immigrant Petition for Alien 
Worker (Form 1-140). The petitioner filed an appeal with the AAO, which remanded the matter to the director for further 
action and consideration in a decision dated May 12, 2008. The director again served the petitioner with a NOIR, and 
ultimately revoked the approval of the petition on July 24, 2008. On August 27, 2008, the AAO affirmed the decision of 
the director on certification finding that the petitioner met only two of the regulatory criteria, three of which are required 
to establish eligibility. 8 C.F.R. $ 204.5(h)(3). The AAO also affirmed the director's findings that the petitioner had not 
submitted clear evidence that he would continue to work in his area of expertise in the United States and had not 
demonstrated that his participation in his sport would substantially benefit prospectively the United States. 
Page 3 
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. 
USCIS and the 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 56 Fed. Reg. 60897,60898-99 (Nov. 29, 1991). 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. 5 204.5(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. 5 204.5(h)(3). It should be reiterated, however, that the petitioner must show that he has 
sustained national or international acclaim at the very top level. 
This petition, filed on October 1, 2007, seeks to classify the petitioner as an alien with extraordinary 
ability as a swimmer. The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish 
sustained national or international acclaim through evidence of a one-time achievement (that is, a 
major, internationally 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. A petitioner, however, 
cannot establish eligibility for this classification merely by submitting evidence that simply relates to 
at least three criteria at 8 C.F.R. § 204.5(h)(3). In determining whether the petitioner meets a 
specific criterion, the evidence itself must be evaluated in terms of whether it is indicative of or 
consistent with sustained national or international acclaim. A lower evidentiary standard would not 
be consistent with the regulatory definition of "extraordinary ability" as "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. 5 204.5(h)(2). The petitioner has submitted evidence pertaining to the 
following criteria under 8 C.F.R. 5 204.5(h)(3).~ 
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 evidence showing that he was a gold medalist (2000) and a silver medalist 
(2002) in the 400 Meter Individual Medley at the European Championships. The petitioner also 
submitted results from the National Spring Championships in Indianapolis (2003) reflecting that he 
placed third in the 200 Meter Individual Medley. While the preceding competitive achievements can 
serve to meet this criterion, there is no evidence showing the petitioner's receipt of nationally or 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 4 
internationally recognized prizes or awards in the four years preceding the petition's filing date. 
Accordingly, the petitioner has not demonstrated that his national or international acclaim as a 
competitive swimmer has been sustained. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
9 1153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). The preceding evidence is not consistent with 
sustained national or international acclaim as of the date of filing of this petition and, thus, is 
insufficient to meet this criterion without additional evidence under this criterion or other criteria 
documenting the petitioner's more recent acclaim as a ~wimmer.~ 
On appeal, counsel states that the petitioner received a bronze medal in the 400 Individual Medley at 
the 2002 and 2004 South Eastern Conference (SEC) championships, but these awards reflect 
regional recognition at the collegiate level rather than nationally or internationally recognized prizes 
or awards. Further, the record does not include evidence from the SEC documenting or verifying the 
petitioner's receipt of the bronze medals. 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. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). A petition must be filed with any initial evidence required by 
the regulation. 8 C.F.R. 9 103.2(b)(l). The nonexistence or other unavailability of primary evidence 
creates a presumption of ineligibility. 8 C.F.R. 9 103.2(b)(2)(i). In this instance, the petitioner has 
not overcome the absence of primary and secondary evidence demonstrating that he received the 
preceding bronze medals from the SEC. Even if we were to accept the petitioner's 2004 South 
Eastern Conference bronze medal as qualifying evidence for this criterion, which we do not, it was 
received more than three years prior to the petition's filing date and therefore is not indicative of 
sustained acclaim at the time of filing. 
In light of the above, the petitioner has not established that he meets this criterion with evidence 
proximate to the date of filing. 
Documentation of the alien's membership in associations in the field for which 
class$cation is sought, which require outstanding achievements oftheir members, as 
judged by recognized national or international experts in their disciplines or$elds. 
The petitioner submitted an August 28, 2007 letter from the Secretary General of the Hungarian 
Swimming Association listing the petitioner's achievements and stating that he participated in three 
Olympic Games (1996, 2000, and 2004) as a member of the Hungarian national swim team.4 The 
3 
 With regard to the petitioner's 1-140 petition filed on February 2, 2006, the AAO's May 12, 2008 and August 27, 2008 
decisions concluded that the preceding awards, in conjunction with the petitioner's 2004 Hungarian Olympic team 
participation, met this criterion as the later achievement had occurred within eighteen months of the initial petition's 
filing date. The petition relating to the instant appeal, however, was filed on October 1, 2007, more than three years 
after the petitioner's last significant competitive achievement of competing in Athens as a member of the Hungarian 
Olympic team in August 2004. 
Membership on an Olympic Team or a major national team such as a World Cup soccer team can serve to meet this 
criterion. Such teams are limited in the number of members and have a rigorous selection process. We reiterate, 
however, that it is the petitioner's burden to demonstrate that he meets every element of a given criterion, including that he is 
Page 5 
letter further states that the petitioner "is a member of the Hungarian National Swimming Team" and 
that he is "preparing" for the "2008 Olympic ~ames.""es~ite the comment from the Secretary 
General indicating that the petitioner was a member of the national team in 2007, there is no 
evidence (such as official swim meet results) showing that the petitioner has competed for the 
Hungarian team at swimming events subsequent to 2004. In fact, the Secretary General's letter does 
not mention a single swimming achievement of the petitioner subsequent to 2004. While 
membership on an Olympic team can serve to meet this criterion, we note that the record lacks 
supporting evidence showing the petitioner's participation in competition for the Hungarian national 
team in the three years preceding the petition's filing date. As previously noted, the statute and 
regulations require the petitioner to demonstrate that his national or international acclaim as a 
competitive swimmer has been sustained. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
6 1153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). The preceding evidence is not consistent with 
sustained national or international acclaim as of the date of filing of this petition and, thus, is 
insufficient to meet this criterion without additional evidence under this criterion or other criteria 
documenting the petitioner's more recent acclaim as a ~wimmer.~ 
In light of the above, the petitioner has not established that he meets this criterion with evidence 
proximate to the date of filing. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the Jield for which classiJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner 
and, as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualifL as major media, the publication should have significant national or international 
distribution. An alien would not earn acclaim at the national level from a local publication. Some 
a member of a team that requires outstanding achievements of its members, as judged by recognized national or international 
experts. We will not presume that every national "team" is sufficiently exclusive. 
5 
 The record, however, which was last supplemented by the petitioner on appeal in June 2009, does not include evidence 
showing that the petitioner participated in the 2008 Olympic Games as a member of the Hungarian national swim team. 
Rather, the record includes a May 12, 2008 letter from the petitioner stating: "Because 1 have been suffering from a 
shoulder injury, . . . I decided to focus on my well-being, and only trained but did not compete for a year. Due to two further 
injuries in the fall of 2007, and in the Spriig of 2008, a broken foot and a knee injury, I realized that my Olympic preparation 
could not be continued . . . . Because my injuries prevent me from swimming as much as it is necessary for my Olympic 
preparation. . . . " 
6 
With regard to the petitioner's 1-140 petition filed on February 2, 2006, the AAO's May 12, 2008 and August 27, 2008 
decisions concluded that the petitioner's 2004 Hungarian Olympic team participation met this criterion as it had occurred 
within eighteen months of the initial petition's filing date. The petition relating to the instant appeal, however, was filed 
on October 1, 2007, more than three years after the petitioner's achievement of competing for the Hungarian Olympic 
team in August 2004. 
Page 6 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.7 
The petitioner submitted swimming results posted at http://sportsillustrated.cnn.com reflecting that he 
competed in Heat 7 of the qualifying round at the 2000 Olympics. The petitioner also submitted a July 
27, 2003 article posted at http://usatoday.com entitled "Phelps finishes with another world record." At 
the conclusion of the article, the petitioner's name appears in the results section among dozens of other 
swimmers who competed in the men's 400 individual medley at the 2003 World Swimming 
Championships. The petitioner's initial submission also included results for the European Swimming 
Championships (1926 to present) posted at http://qbrsports.com. The petitioner's name appears among 
the medalists for the 2000 and 2002 European Championships. The petitioner submitted similar event 
results posted at http://swimnews.com, http://fina.org, and http://sportsfacts.net for other international 
competitions in which he participated. In response to the director's second NOIR, the petitioner 
submitted a listing of top times for the 2000-01 University of South Carolina men's swimming season 
posted at http://gamecocksonline.cstv.com. The preceding internet postings merely list the petitioner's 
name among numerous competitive participants and are not primarily about him. The plain language of 
this regulatory criterion, however, requires that the published material be "about the alien." Further, the 
plain language of this criterion requires the title, date, and author of the material. We cannot conclude 
that the preceding documentation meets these requirements. 
The petitioner submitted the University of South Carolina "Men and Women 2003-04 Media Guide" 
for swimming and diving. The media guide mentions the petitioner in various sections, but there is no 
evidence that this promotional item from the university's athletic department constitutes a professional 
or major trade publication or some other form of major media. 
On appeal, the petitioner submits a July 19, 2000 article in Hungarian Success Sports entitled 
"Swimming." This three-page article includes one sentence about the petitioner's receipt of a gold 
medal in 400 Meter Individual Medley at the European Championships in 2000. This article is about 
Hungarian swimming in general rather than being about the petitioner. The plain language of this 
regulatory criterion, however, requires that the published material be "about the alien." The 
petitioner also submits a July 1 1, 2000 four-sentence piece and photograph of him in Nemzeti Sport 
entitled "Golden Days All Over Europe." The brief piece also mentions the achievements of several 
other athletes and includes their photographs as well. In addition, the petitioner submits a July 12, 
2000 interview of the petitioner in Nemzeti Sport entitled "[The petitioner]: The Consistent Golden 
Man." The petitioner's appellate submission also includes a July 11, 2000 article about him in 
Nepszava entitled "A Surprise Bomb's After Shakes." However, there is no evidence (such as 
circulation statistics) showing that the preceding publications qualify as professional or major trade 
publication or some other form of major media. Further, we cannot ignore the lack of articles about the 
petitioner in major publications from 2001 through the petition's filing date. As previously noted, the 
statute and regulations require the petitioner to demonstrate that he has national or international acclaim 
7 
 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
and that it has been sustained. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. tj 1153(b)(l)(A)(i), 
and 8 C.F.R. § 204.5(h)(3). 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientijic, scholarly, artistic, athletic, or business- 
related contributions of major signzJicance in the field, 
On appeal, counsel states: "In the year 2000, [the petitioner] won the gold medal in the 400 Meter 
Individual Medley at the European Championships. This was an original contribution of major 
significance." 
Counsel cites the July 19, 2000 article in Hungarian Success Sports entitled "Swimming" which states: 
"In addition to usual gold medals, hs year [the petitioner] won the gold in 400 Individual 
Medley, and earned the first gold medal for Hungary after 7 years of gold medal freeze since the 1993 
Championships after 
 anduccesses." The article further states: 
The most gold medals were collected in the European Championships. Hungary won no less 
than 58 gold medals, 50 of which were earned in individual events, 4 in relays, and 4 in long 
distance swimming . . . . Out of the 50 gold medals, almost half, exactly 24 were won by three 
swimmers: on 9,on 8 and- 7 gold medals. 
In addition, the article in Nepszava entitled "A Surprise Bomb's After Shakes" notes that = 
a Hungarian male swimmer, won a gold medal in the individual medley at the 1996 
Olympics. 
Given the individual medley gold medalists from Hungary that preceded him, we find no evidence to 
support counsel's argument that the petitioner's achievement "was completely original." Further, the 
petitioner's gold medal in the 400 Meter Individual Medley at the 2000 European Championships has 
already been addressed under the regulatory criterion at 8 C.F.R. 8 204.5(h)(3)(i). Here it should be 
emphasized that the regulatory criteria are separate and distinct from one another. Because separate 
criteria exist for awards and original contributions of major significance, USCIS clearly does not 
view these criteria as being interchangeable. If evidence sufficient to meet one criterion mandated a 
finding that an alien met another criterion, the requirement that an alien meet at least three criteria 
would be meaningless. In this case, there is no evidence establishing that the petitioner has made 
original athletic contributions of major significance in the field. Further, we cannot ignore the lack of 
achievements for this criterion from 2001 through the petition's filing date. As previously noted, the 
statute and regulations require the petitioner to demonstrate that his national or international acclaim has 
been sustained. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 5 1153(b)(l)(A)(i), and 8 C.F.R. 
$ 204.5(h)(3). 
In light of the above, the petitioner has not established that he meets this criterion. 
Page 8 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The record includes adequate documentation (such as published material) to demonstrate that the 
Hungarian national team has a distinguished reputation in the sport of swimming. With regard to the 
petitioner's leading or critical role for the team, the petitioner submits a September 17, 2008 letter from 
~ead Coach of the Hungarian National Swim Team, stating: 
[The petitioner] always stood out as a leader of the team which only increased when he won 
the European Championship and permanently joined the best individual medley swimmers of 
Hungary and of Europe. 
 With his European gold medal [the petitioner] continued the 
Hungarian line of world class individual medley swimmers which 
 left off 
seven years ago. 
[The petitioner's] work ethic and results in 2000 encouraged everyone in the national team to 
follow him and train harder . . . . Further, [the petitioner's] determination to continuously 
veterans such as former ~uri~e& champion and Olympic silver medalist 
continue swimming at the age of 33. [The petitioner] became a role model for 
younger athletes, especially those are in individual medley. [The petitioner] also mentored 
, who is a world champion and Olympic silver medalist individual medley 
swimmer when he became a young member of the team in 1999. Without his mentoring he 
would not have become the swimmer he is today. 
After recovering from his injuries and a knee surgery, [the petitioner] is expected to continue 
his leading role in the Hungarian swimming team as he continues to train in America for the 
Short Course U.S. Nationals and next year's World Cup events. I predict that his 
extraordinary work ethic combined with his world class skills and international experiences 
will bring him back to the top of the field. 
letter only mentions the petitioner's 2000 European Championships gold medal and 
in discussing the petitioner's competitive achievements for the national team. With 
regard to the petitioner's role for the Hungarian swim team, we find that the petitioner's evidence 
does not establish that his role as a team member was leading or critical. The petitioner, who 
specialized in the individual medley, also submitted the August 28, 2007 letter from the Secretary 
General of the Hungarian Swimming Association stating the petitioner "has been a valuable member 
of the Hungarian National Swimming Team since 1995." The preceding letters, however, do not 
provide specific information differentiating the petitioner's role from that of the other national team 
members, including its Olympic medalists (such a and). For example, 
the record lacks evidence comparing the petitioner's results at swim competitions to those of the 
other members of the team (such as a comprehensive tally of the men's first place finishes or medals 
won) during the years he competed. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 
I&N Dec. at 158, 165. Without objective evidence showing that the petitioner's achievements 
differentiated him from those of his team members, we cannot conclude that he was responsible for 
his team's success or standing to a degree consistent with the meaning of "leading or critical role" 
and indicative of sustained national or international acclaim. While all team members certainly play 
a vital role in a swimming competition, the evidence submitted by the petitioner does not 
demonstrate that his role significantly differentiated him from the other members of the team 
(including those competing in freestyle, backstroke, breaststroke, butterfly, and relay events), or 
indicate how his role was leading or critical for the team as a whole. 
With regard to 
 comments that the petitioner's "determination to continuously improve" 
influenced m to continue swimming and that the petitioner's mentoring helped -1 
in his swimming career, the evidence of record does not establish that the success of these 
Hungarian swimmers was primarily attributable to the petitioner's influence rather than their own 
competitive talents or guidance from their swim coaches who directly supervised their athletic 
training. We note that the petitioner submitted a July 29, 2008 letter from 1, Head 
Swimming Coach during the four years the petitioner attended the University of South Carolina 
(USC), indicating that the petitioner competed and trained there from 2001 to 2004. The 
documentation submitted by the petitioner, however, does not specify the dates when he trained at 
the same facilities as his fellow Hungarians and. Even if the petitioner 
were to submit substantive evidence reflecting his significant influence upon two of the Hungarian 
V 
national team's swimmers in 2000, the opinion: expressed by 
 and the other 
documentation in the record is not sufficient to demonstrate that the petitioner's role was leading or 
critical and indicative of sustained national or international acclaim. 
We cannot ignore 
 final statement predicting that the petitioner's "extraordinary work 
ethic combined with his world class skills and international experiences will bring him back to the 
top ofthe field." [Emphasis added.] This statement indicates that the petitioner isno longer among 
that "small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. 
5 204.5(h)(2). The highly restrictive visa classification sought by the petitioner is intended for aliens 
who have sustained acclaim at the very top of their respective fields, rather than for individuals 
attempting to re-establish themselves at some unspecified future time. 
The petitioner also submits a September 4, 2007 letter from Head Diving Coach, 
University of Miami, stating that "all swimmers and divers . . . " satisfy the regulatory criteria at 
8 C.F.R. $8 204.5(h)(3)(i),(ii), and (viii) " . . . when the athlete wins hi8 or her national 
championship."x 
 Here it should be emphasized that the ten regulatory criteria at 8 C.F.R. 
$ 204.5(h)(3) are separate and distinct from one another. Because separate criteria exist for awards, 
memberships, and performing in a leading or critical role for distinguished organizations, USCIS 
clearly does not view the three criteria as being interchangeable. As previously discussed, if 
evidence sufficient to meet one criterion mandated a finding that an alien met another criterion, the 
requirement that an alien meet at least three criteria would be meaningless. The plain language of 
the statute requires "extensive documentation'' of sustained national or international acclaim. See 
section 203(b)(l)(A)(i) of the Act, 8 U.S.C. $ 11 53(b)(l)(A)(i). USCIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 
According to his letter, 
 coaching expertise is diving rather than swimming. 
I&N Dec. 791, 795 (Commr. 1988). USCIS, however, is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters 
from experts supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate 
the content of those letters as to whether they support the alien's eligibility. See id. at 795. Thus, the 
content of the experts' statements and how they became aware of the petitioner's reputation are 
important considerations. Even when written by independent experts, letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of 
achievements and recognition that one would expect of a swimmer who has sustained national or 
international acclaim. 
Finally, we note that the record does not include evidence showing the petitioner's successhl 
participation in competition for the Hungarian national team in the three years preceding the petition's 
filing date. As previously noted, the statute and regulations require the petitioner to demonstrate that his 
national or international acclaim as a competitive swimmer has been sustained. See section 
203(b)(l)(A)(i) of the Act, 8 U.S.C. $ 1153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). The preceding 
evidence submitted by the petitioner is not consistent with sustained national or international acclaim 
as of the date of filing of this petition and, thus, is insufficient to meet this criterion without 
additional evidence under this criterion or other criteria documenting the petitioner's more recent 
acclaim as a competitive swimmer. 
In light of the above, the petitioner has not established that he meets this criterion with evidence of his 
leading or critical role for the Hungarian national team proximate to the date of filing. 
Evidence that the alien has commanded a high salary or other signiJicantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted letters from the Office of Student and Financial Aid at USC reflecting that he 
received an "athletic grant-in-aid of full tuition and fees from Fall 2001 through Spring 2005. The 
petitioner also submitted a May 22,2008 letter from -stating: 
As a head coach, one of my responsibilities was to determine who received scholarship monies 
based on their ability to impact the overall program. Like every other Division I school that was 
fully funded, I had 9.9 scholarships to distribute among ow male swimmers for a squad that 
numbered a least eighteen members and more often more. It is the individual schools discretion 
to decide how they wish to use the 9.9 scholarships, however, my personal experience is that 
only exceptional swimmers (top 5% of Division I swimmers) are likely to receive a "full ride." 
On appeal, the petitioner submits a September 19, 2008 letter from Executive Director, 
College Swimming Coaches of America, stating: 
Even the world's most elite swimmers, some of whom are ranked first globally in their 
events, generally cannot make as much money with sponsorships as they receive when they 
accept a full scholarship from an American university. By receiving a full scholarship at a 
state university, for instance at USC (University of South Carolina), they actually receive 
education, lodging, books, etc., in the amount of approximately $17,000 - $24,000.00 per 
year until they complete their degrees. [The petitioner] completed 4.5 years at South 
Carolina from January 9, 2001 to May 7, 2005 (see [the petitioner's] 1-20 highlighted 
amount). 
In other words, while all but the half dozen or so most outstanding swimmers in the world 
find it difficult to make a living out of sponsorships, if they are good enough in the water and 
sufficiently adept academically, they can accept a full scholarship and actually receive over 
$100,000.00 worth of a first-rate college education. 
For international world-class swimmers, receiving a "full ride" is the best payoff for their 
years of dedication and outstanding results . . . . 
The petitioner also submits a June 2, 2009 letter from Director of Research, College 
Swimming Coaches of America, stating: 
In terms of scholarships to Division I schools in the United States "in relation to others in the 
field," [the petitioner] received the exact same amount of remuneration during his career at USC 
as all of the other decorated, world class swimmers who received an NCAA full scholarship. 
By receiving a full ride, [the petitioner] earned the highest possible remuneration, because there 
is no higher compensation that a scholarship NCAA swimmer can receive. 
Counsel argues that the petitioner meets this criterion by receiving an athletic scholarship from USC 
and that "[tlhere is no higher compensation that an NCAA scholarship swimmer (or any other NCAA 
athlete, for that matter) can receive." The plain language of this regulatory criterion requires the 
petitioner to submit evidence showing that he has earned "a high salary or other significantly high 
remuneration for services, in relation to others in the field." The petitioner cannot artificially restrict his 
field to only swimmers in the NCAA Division I program. A collegiate scholarship represents funding 
to pursue educational studies rather than a salary or remuneration for services. Further, there is no 
evidence comparing the dollar amount of the petitioner's total scholarship to the amounts received by 
other collegiate swimmers. In addition, we cannot conclude that receipt of a "grant-in-aid" limited to 
college athletes is evidence that the petitioner "is one of that small percentage who have risen to the 
very top of the field of endeavor." See 8 C.F.R. 5 204.5(h)(2). USCIS has long held that even 
athletes performing at the major league level do not automatically meet the "extraordinary ability" 
standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Cornmr. 1994); 56 Fed. Reg. at 60899.~ 
9 
 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of Racine, 1995 
WL 1533 19 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[Tlhe 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 
Likewise, it does not follow that a collegiate swimmer who receives financial aid at the discretion of his 
university should necessarily qualify for an extraordinary ability employment-based immigrant visa. To 
find otherwise would contravene the regulatory requirement at 8 C.F.R. 4 204.5(h)(2) that this visa 
category be reserved for "that small percentage of individuals that have risen to the very top of their 
field of endeavor." 
In this instance, there is no evidence establishing that top swimmers' remuneration is limited to 
collegiate scholarships rather than aid endorsements or some other form of com ensation. 
 For 
example, the letter from 
 indicates that top swimmers such as  and-^ 
- receive sponsorships. As discussed, the plain language of this criterion requires the petitioner 
to submit evidence of a high salary "in relation to others in the field" (rather than restricted to those 
at the collegiate level). The petitioner offers no appropriate basis for comparison showing that his 
remuneration was significantly high in relation to others in his field. Further, we cannot ignore that the 
petitioner's collegiate scholarship terminated in the Spring of 2005. There is no evidence showing 
that the petitioner has received a high salary or other significantly high remuneration as a swimmer 
subsequent to May 2005. As previously noted, the statute and regulations require the petitioner to 
demonstrate that his national or international acclaim as a competitive swimmer has been sustained. 
See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 5 1 153(b)(l)(A)(i), and 8 C.F.R. 4 204.5(h)(3). The 
preceding evidence submitted by the petitioner is not consistent with sustained national or 
international acclaim as of the date of filing of this petition and, thus, is insufficient to meet this 
criterion without additional evidence under this criterion or other criteria documenting the 
petitioner's more recent acclaim as a competitive swimmer. 
In light of the above, the petitioner has not established that he meets this criterion with evidence 
demonstrating that he has commanded a high salary or other significantly high remuneration as a 
swimmer proximate to the date of filing. 
In this case, we concur with the director's determination that the petitioner has failed to demonstrate 
receipt of a major, internationally recognized award, or that he meets at least three of the criteria that 
must be satisfied to establish the national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 
 8 C.F.R. 9 204.5(h)(3). 
 Further, there is no evidence showing that the 
petitioner's national or international acclaim as a swimmer has been sustained. 
 See section 
203(b)(l)(A)(i) of the Act, 8 U.S.C. tj 1153(b)(l)(A)(i), and 8 C.F.R. tj 204.5(h)(3). Specifically, the 
record does not include evidence of his nationally or internationally acclaimed achievements and 
recognition in competitive swimming subsequent to 2004. 
district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
4 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 5 204.5(h)(2) is reasonable. 
On appeal, counsel argues that the petitioner's 2000 European Championship Gold Medal in the 400 
Individual Medley, 2000 U.S. Open Silver Medal in the 400 Individual Medley, 2002 European 
Championship Silver Medal in the 400 Individual Medley, 2002 Hungarian Swimmer of the Year 
Award, 12 Hungarian Championship titles, and top ten world ranking listed in the August 28, 2007 
letter from the Secretary General of the Hungarian Swimming Association are comparable evidence 
of the petitioner's extraordinary ability pursuant to 8 C.F.R. § 204.5(h)(4). Counsel further states 
that that the petitioner received bronze medals in the 400 Individual Medley at the 2002 and 2004 
SEC championships. Without documentary evidence from the SEC 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). 
The regulation at 8 C.F.R. 4 204.5(h)(4) allows for the submission of "comparable evidence" only if 
the ten criteria "do not readily apply to the beneficiary's occupation." The regulatory language 
precludes the consideration of comparable evidence in this case, as there is no evidence that 
eligibility for visa preference in the petitioner's occupation cannot be established by the ten criteria 
specified by the regulation at 8 C.F.R. 9 204.5(h)(3). Where an alien is simply unable to meet three 
of the regulatory criteria, the plain language of the regulation at 8 C.F.R. $204.5(h)(4) does not 
allow for the submission of comparable evidence. Nevertheless, the petitioner's prizes and awards 
identified by counsel and listed in the August 28, 2007 letter from the Secretary General of the 
Hungarian Swimming Association have already been addressed under the regulatory criterion at 
8 C.F.R. tj 204.5(h)(3)(i). For example, the petitioner's bronze medals in the 400 Individual Medley 
at the 2002 and 2004 SEC championships reflect regional recognition at the collegiate level rather 
than national or international recognition at the very top level of the sport. Further, with regard to 
the petitioner's top ten world ranking, there is no evidence showing that the petitioner has occupied 
such a ranking since his loth place finish in the 400 Meter Individual Medley at the 2000 Olympic 
Games in Sydney. In this case, the documentation that the petitioner requests evaluation of as 
comparable evidence does not establish that his national or international acclaim has been sustained 
during the three years preceding the petition's October 1,2007 filing date. See section 203(b)(l)(A)(i) 
of the Act, 8 U.S.C. 5 1 153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). The petitioner has not submitted 
comparable evidence of achievements and recognition indicative of sustained national or 
international acclaim in competitive swimming proximate to the date of filing. 
The remaining issues to be determined are whether the petitioner will continue work in his area of 
extraordinary ability in the United States and whether his entry will substantially benefit prospectively 
the United States. See sections 203(b)(l)(A)(ii) and (iii) of the Act, 8 U.S.C. $9 1153(b)(l)(A)(ii) 
and (iii), and 8 C.F.R. $4 204.5(h)(5). Part 5 of the Form 1-140 petition, filed on October 1, 2007, 
lists the petitioner's occupation as "Swimmer." 
The petitioner initially submitted an August 20,2007 letter from 
 Head Coach of the USC 
Swimming and Diving Team, stating that the petitioner was "continuing his preparation for the 2008 
Olympics." The record also includes a May 12,2008 letter from the petitioner stating: 
After graduation I stayed in Columbia, South Carolina to train for . . . the 2008 Olympics. 
Because I have been suffering from a shoulder injury, . . . I decided to focus on my physical 
well-being, and only trained but did not compete for a year. Due to two further injuries in the 
fall of 2007, and in the Spring of 2008, a broken foot and a knee injury, I realized that my 
Olympic preparation could not be continued . . . . 
The petitioner's appellate submission includes an October 15,2008 letter from him stating: 
After the series of unfortunate injuries and surgeries of the past few years I can finally say 
that my knee surgery of July 25, 2008 proved to be a success, so now I am happy to 
announce that I will be able to continue swimming. After my recovery and rehab I began to 
practice with the university's swim team every morning (Monday through Saturday) from 
5:45 a.m. to 8:00 a.m. and with the club team in the afternoons (every day except 
Wednesday) from 6:00 p.m. to 8:00 p.m. 
My short term goals include the participation in the U.S. Short Course Nationals in 
December. My long term plans include the preparation for the 20 10 European Championship 
held in Budapest Hungary, and possibly achieving my old-time dreams of participating in my 
fourth Olympic Games in 201 2. 
The petitioner's letter was accompanied by a swirnrnin event schedule for the 2009-2010 seasons. The 
petitioner also submits a March 20, 2009 letter fiom 
 USC Head Swimming Coach, 
stating: 
I am writing this letter to confirm that [the petitioner] is preparing for his future swim meets 
with me. The three-time Olympian and European Champion [the petitioner] is practicing 
with the university's swim team under my supervision every morning (Monday through 
Saturday) from 5:45 a.m. to 8:00 a.m. and with the club team in the afternoons (every day 
except Wednesday) from 6:00 p.m. to 8:00 p.m. [The petitioner] is currently preparing for 
2009 Swimming World Cup events and 201 0 European Championship held in Hungary. Our 
long-term goal is to participate in the 2012 Olympic Games. 
The documentation submitted on appeal indicates that the petitioner intends to continue his 
participation in swim competitions at the national and international level. Accordingly, we withdraw 
the director's finding that the petitioner has not submitted clear evidence that he would continue to work 
in his area of expertise in the United States. 8 C.F.R. 5 204.5(h)(5). 
Beyond the director's decision, we find the petitioner has failed to establish that his entry into the 
United States will substantially benefit prospectively the United States. As discussed above, the 
Page 15 
petitioner has failed to establish his national an international acclaim as a swimmer has been 
sustained. Given his failure to satisfy the statutory and regulatory requirements for this 
classification, the petitioner's substantial benefit to the United States cannot be automatically 
assumed. In this case, it is unclear how the petitioner, as a member of the Hungarian national team, 
will substantially benefit prospectively the United States by competing on behalf of the Hungarian 
national team at international swimming events. On appeal, counsel states that "world class 
swimmers add to the fabric of this country's identity and its cultural norms." Further, the March 20, 
2009 letter from states: 
I am honored to have [the petitioner] training with us as he is the best swimmer USC ever 
had, and a great leader who always encouraged his teammates. [The petitioner] is not only 
the most experienced world-class swimmer in South Carolina but he . . . also possesses 
special leadership qualities; [the petitioner] is able to inspire his teammates and encourage 
swimmers to work harder and achieve more . . . . 
We note that the petitioner's career as a collegiate swimmer for USC has long since ended. While 
the petitioner may continue to inspire current university and club team members by training along 
side them at USC's aquatic facilities, the proposed benefit of his training with a few dozen 
swimmers in South Carolina would be so attenuated at the national level as to be negligible. 
Accordingly, the petitioner has not established that that his training in this country will substantially 
benefit prospectively the United States. 
Review of the record does not establish that the petitioner has distinguished himself to such an extent 
that he may be said to have achieved sustained national or international acclaim or to be within the 
small percentage at the very top of his field. Further, the evidence is not persuasive that the 
petitioner's entry into the United States will substantially benefit prospectively the United States. 
Therefore, the petitioner has not established eligibility pursuant to sections 203(b)(l)(A)(i) and (iii) 
of the Act and the petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. 
U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.