dismissed EB-1A Case: Athletics

U.S. Deoartment of Homeland Security 
U S Cltlzenshlp and Immlgratlon Services 
identifyin? dn:~ dcIetcd to 
 of$ce ofAdmrnlstratrve Appeals. MS 2090 
Washington, DC 20529-2090 
prevent cicar !ji ur,\va=2nte$ 
invasion of p-nonsl privacy 
 U.S. Citizenship 
and Immigration 
puBLlC COPY 
FILE: Office: TEXAS SERVICE CENTER Date: JUN ) 6 2009 
SRC 07 233 50799 
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. 9 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. 9 103.5(a)(l)(i). 
Un F. Grissom 
Acting Chief, Administrative Appeals Office 
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 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. 5 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. 
On appeal, counsel submits a brief. For the reasons discussed below, we uphold the director's decision. 
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. 
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 56 Fed. Reg. 60897, 60898-9 (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. 4 204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
On the Form 1-140 petition, the petitioner did not indicate his proposed employment in Part 6 as 
required. Rather, the petitioner submitted a personal statement asserting that he would like to work in 
Page 3 
the United States as a swimming athlete andlor as a swimming coach. 
 The director noted the 
petitioner's lack of coaching experience and the lack of evidence that he has prospective job prospects 
as a coach. On appeal, counsel asserts that the petitioner's current college coach thinks the petitioner 
"will be a marque [sic] national type swimmer" and submits the petitioner's page on his college team's 
website. 
At issue, then, is whether the petitioner has demonstrated that he has 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, international 
recognized award). Counsel no longer asserts that the petitioner's Chinese awards, in the aggregate, 
served as a "one-time" achievement and we find that the one-time achievement must be a single event, 
namely a major internationally recognized award. 8 C.F.R. 5 204.5(h)(3). We note that Congress' 
example of a one-time achievement is a Nobel Prize. H.R. Rep. No. 101 -723,59 (Sept. 19, 1990). The 
regulation is consistent with this legislative history, stating that a one-time achievement must be a 
major, internationally recognized award. 8 C.F.R. 5 204.5(h)(3). The regulation at 8 C.F.R. 
5 204.5(h)(4) does not permit the submission of comparable evidence to meet this one-time 
achievement standard. Rather, meeting three of the ten regulatory criteria that follow is considered 
comparable to the one-time achievement. Significantly, multiple lesser internationally or nationally 
recognized awards serve to meet only one of the ten alternative regulatory criteria, 8 C.F.R. 
5 204.5(h)(3)(i), and, thus, cannot be considered a one-time achievement. 
Barring the alien's receipt of a major internationally recognized 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. The director does not appear to contest that the petitioner 
meets the lesser nationally or internationally recognized prizes or awards criterion set forth at 8 C.F.R. 
5 204.5(h)(3)(i). We find that the record supports this finding. As noted by the director, however, the 
evidence for that criterion ends in 2005, approximately two years before the petition was filed. Thus, 
the evidence submitted to meet another criterion must demonstrate acclaim more proximate to the date 
of filing if the petitioner is to demonstrate sustained acclaim as of that date. 
The petitioner has submitted evidence that, he claims, meets the following other criteria.' 
Documentation of the alien's membership in associations in the field for which classijication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
Initially, counsel asserted that the petitioner's title of "Sports Master," conferred in 2000, serves to meet 
this criterion. The director did not specifically discuss this criterion. On appeal, counsel asserts that the 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 4 
title is a "membership associated with outstanding achievement." The petitioner submits what purports 
to be a translation of ranlung standards for the China Swimming Association. This document states 
that a Sports Master "must be one who has reached the standard of achievement at any national 
competition organized by the Swimming Sports Administrative Center, in addition to the above 
mentioned competitions." Counsel asserts that "only athletes who reach the standard (of a speed) at a 
competition at a level at the National Games can earn the title of Sports Master." 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). Counsel subsequently appears to acknowledge that the title merely qualifies 
an athlete to compete at the national level. 
A title is not a membership in an association and counsel has not explained how this evidence is 
comparable to a membership in an association pursuant to 8 C.F.R. 9 204.5(h)(4). Regardless, that 
regulation only permits the submission of evidence where a criterion is not readily applicable to the 
alien's field, which is not claimed in this matter. 
Even if we considered this title to be comparable to a membership pursuant to 8 C.F.R. 5 204.5(h)(4), 
the petitioner must establish that the "membership" criteria require outstanding achievements. The 
record does not support counsel's attestations regarding the title's "standard of achievement." 
Significantly, the petitioner received this title in 2000, before he had won any of the awards 
documented in the record. The timing is consistent with counsel's implication that the title merely 
qualifies an athlete to compete at the national level. Significantly, the supplementary information at 
56 Fed. Reg. 60899 (Nov. 29, 1991) states: 
The Service disagrees that all athletes performing at the major league level should 
automatically meet the "extraordinary ability" standard. . . . A blanket rule for all major 
league athletes would contravene Congress' intent to reserve this category to "that small 
percentage of individuals who have risen to the very top of their field of endeavor." 
Thus, eligibility to compete at the national level is not an outstanding achievement. In light of the 
above, the petitioner has not demonstrated that he meets this criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the Jieldfor which classzJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner submitted news coverage of events where he competed that include his own results in 
addition to the results of the other successful swimmers. The director concluded that the articles are not 
about him and did not demonstrate the petitioner's "success over others who do the same work." On 
appeal, counsel asserts that the articles report the petitioner's awards, which does place the petitioner 
above other swimmers. Counsel further notes that one article mentions that the petitioner came close to 
breaking a national record during one of his second place finishes. 
Page 5 
We concur with counsel that the awards are significant. Those awards, however, have already been 
considered sufficient to meet the criterion at 8 C.F.R. fj 204.5(h)(3)(i). To conclude that the petitioner's 
awards can also meet this criterion, however, would render meaningless the statutory requirement for 
extensive evidence and the regulatory requirement that the alien meet at least three criteria. 
At issue for this criterion is whether the published material is about the petitioner. We concur with the 
director that the materials are about the events where the petitioner competed and cannot be credibly 
considered to be about the petitioner. Accord Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 7 (D. 
Nev. Sept. 8,2008) (upholding a finding that articles about a show are not about the actor). 
In light of the above, while the director's assertion that the articles did not set the petitioner apart fiom 
others may have confused the matter, the articles submitted cannot serve to meet this criterion as they 
do not meet the plain language of the criterion at 8 C.F.R. § 204.5(h)(3)(iii), which requires that the 
published materials be about the alien. Thus, the petitioner has not established that he meets this 
criterion. 
Evidence of the alien 's original scienttJic, scholarly, artistic, athletic, or business-related 
contributions of major signficance in thejeld. 
Initially, counsel referenced the petitioner's November 2005 Honorary Certificate from the People's 
Government of Shanghai City issued in recognition of the petitioner's contribution to the 1 oth National 
Games as evidence to meet this criterion in addition to the petitioner's awards. The director concluded 
that the petitioner had not demonstrated that he had had a major impact on swimming such as initiating 
an influential new style or stroke. On appeal, counsel asserts that the petitioner's sport is judged on 
speed, not creativity, and asserts that has made an original contribution of major 
significance without contributing a new style or stroke. 
According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be both 
original and of major significance. We must presume that the word "original" and the phrase "major 
significance" are not superfluous and, thus, that they have some meaning. While counsel may be 
correct that contributions to the petitioner's field, are unlikely to include contributing a new style or 
stroke, we are not persuaded that merely winning awards, which fall under a separate criterion, is 
original or a contribution of major significance. Moreover, the petitioner has not demonstrated that 
the Honorary Certificate, while using the word "contribution," recognizes anything other than 
participation in the competition. Without more evidence as to what "contribution" the certificate 
recognizes, we cannot determine whether it is either original or of major significance. 
We concur with the director that the contribution must be both original and have had a demonstrable 
impact on the field of swimming. Without evidence of a truly original contribution of major 
Page 6 
significance, such as setting a national or world record for speed,2 we cannot conclude that the 
petitioner meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
Neither counsel nor the petitioner initially asserted that the petitioner meets this criterion and the 
director did not address it. On appeal, counsel merely asserts in his conclusion that the petitioner meets 
this criterion without providing any explanation as to what role counsel is referring or the organization 
or establishment for which the petitioner performed this role. We have already considered the 
petitioner's alleged contributions above. This criterion requires evidence that the petitioner was 
selected to perform in a role that is leading or critical for an organization or establishment as a whole 
and evidence that the organization or establishment enjoys a distinguished reputation nationally. 
The record establishes that the petitioner has successfully competed and we have acknowledged that he 
meets the lesser nationally or internationally recognized awards criterion. As stated above, the "Sports 
Master" designation appears to merely qualify the petitioner to compete at the national level and does 
not appear to represent a specific leading or critical role for an organization or establishment with a 
nationally distinguished reputation. The record lacks evidence establishing the basis of the Honorary 
Certificate from Shanghai City. Ultimately, the record contains no evidence that the petitioner was 
selected to perform as team captain or in another leading or critical role beyond team member for an 
organization or establishment with a nationally distinguished reputation. 
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 have 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 
swimmer 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 shows talent as a swimmer, but is not persuasive that the petitioner's achievements set him 
significantly above almost all others in his field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(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. 
2 Or, as in the case with the swimmer named by counsel on appeal, setting a record for the 
most Olympic gold medals at a single Olympics.