dismissed EB-1A Case: Athletics

hti&lng data deleted to 
Prevent clearly unwaranted 
hasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
IN RE: Petitioner: 
Beneficiary: 
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 1153(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). 
John F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition 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. 8 1153(b)(l)(A), as an 
alien of extraordinary ability in athletics. 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. 
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 to the United States will substantially benefit 
prospectively the United States. 
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 has risen to the very top of the field of 
endeavor. 8 C.F.R. 8 204.5(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. 8 204.5(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. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a jockey. 
The regulation at 8 C.F.R. 8 204.5(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. 
The petitioner has submitted evidence that appears to be relevant to the following criteria. 
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 a copy of a page from the website of :- 
accessed on Jul 14, 2006, which indicates that the petitioner was among the leading jockeys at 
- from April 26, 2004 to August 31, 2004. The petitioner also submitted a 
copy of a page from the website of-, accessed on July 14, 2006, which 
indicates that the petitioner was among the leading jockeys at from January 1, 2006 
to April 15, 2006. Neither of these documents listed the petitioner as the number one leading 
jockey for the race course. 
In response to a request for evidence (RFE) dated May 18, 2007, the petitioner submitted a page 
from the website of accessed on August 2,2007, indicating that he was one of the 
leading jockeys at the Timonium racecourse from August 26, 2006 to September 4, 2006. 
However, these dates are after the filing date of the petition, July 19, 2006. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. 8 C.F.R. $9 103.2(b)(1),(12); 
Matter of Katigbak, 14 I&N Dec. 45,49 (Comrn. 197 1). Therefore, the document does not serve 
to establish the petitioner's acclaim and accomplishments as of the filing date of the petition. 
The petitioner has failed to submit evidence of his receipt of any nationally or internationally 
recognized prize or award. Accordingly, he has failed to establish that he meets this criterion. 
Published materials about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classiJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published materials must be about the petitioner and be printed in 
professional or major trade publications or other major media. To qualify as major media, the 
publication should have significant national distribution and be published in a predominant 
language. Some newspapers, such as the New York Times, nominally serve a particular locality 
but would qualify as major media because of a significant national distribution. 
The petitioner submitted copies of articles from several documents that are in Spanish, 
accompanied by only partial translations of the articles. The regulation at 8 C.F.R. $ 103.2(b)(3) 
requires that documents submitted in a foreign language must be accompanied by a full English 
translation. Accordingly, the partial translations submitted by the petitioner are not in compliance 
with the requirements of the regulation and therefore are of no probative value in this 
proceeding. Even if they were probative, however, we note that while the articles appear to 
mention the petitioner, they are not about the petitioner or his work. Further, many of the 
Page 4 
documents do not identify the media in which they appeared, the date, or the author of the 
material, as required by the regulation at 8 C.F.R. 204.5(h)(3)(iii). 
The petitioner provided a copy of an article about his agent; however, the article is not about the 
petitioner or his work, does not identify the media in which it appeared or the date of the article. 
other articles that appeared on the website 
 in the and - 
describe an accident in which the petitioner was involved, and although they mention his 
name, are not about the petitioner. 
Regardless, even if the materials could be considered to be about the petitioner, the petitioner 
failed to provide evidence that any of the publications in which his name or photo appears are 
considered professional, major trade publications or major media. Counsel's mere assertion that 
these publications are "leading sources" or the top 7h or 1 lh newspapers in the U.S., without 
documentary evidence, are not sufficient to meet 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). 
Finally, the petitioner submitted a copy of a Google search of his name. An internet search of an 
alien's name does not amount to published material about the alien. Further, the material does not 
include the information required by the regulation including the title of the piece, the date, the 
author's name, or information about the publication so as to qualify it as a professional or major 
trade publication or other form of major media. 
The petitioner has failed to establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that he performed a leading or critical role for an 
organization or establishment and that the organization or establishment has a distinguished 
reputation. 
The petitioner submitted copies of numerous photographs of himself astride horses at different 
race courses where he was identified as the winning jockey. However, the petitioner submitted 
no documentation that any of the individuals who owned the horses, the horses themselves, or 
the courses in which he rode, enjoyed a distinguished reputation within the field of horse racing. 
Thus, while his performance as a winning jockey may be considered a leading or critical role, he 
has failed to demonstrate that this role was performed for any organization or establishment with 
a distinguished reputation. 
The petitioner failed to establish that he meets this criterion. 
Page 5 
Evidence that the alien has commanded a high salary or other signiJicantly high 
remuneration for services, in relation to others in the3eld. 
The petitioner submitted copies of his federal income tax returns for the years 2004 and 2005. 
However, the petitioner submitted no documentation regarding salaries earned by leading 
jockeys to establish that his earnings as reported on his tax returns are significantly high in 
relation to others in his field. 
The petitioner failed to establish that he meets this criterion. 
The regulation at 8 C.F.R. fj 204.5(h)(4) states: "lfthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." [Emphasis added]. 
In response to a request for evidence (RFE) and again on appeal, counsel asserts: 
In the horse racing industry it is well established that the ability of a jockey, or of 
a trainer for that matter, is measured solely by races won. 
Receipt of international awards, association membership that require outstanding 
achievements, acting as a judge, authorship of scholarly articles, display of work 
at artistic exhibitions, critical roles for reputable organizations clearly do not 
apply in the case of any professional jockey, who furthermore are not teachers. 
We are not persuaded by counsel's assertion that the regulatory criteria are inapplicable to the 
petitioner. The ten criteria in the regulations are designed to cover different areas; not every 
criterion will apply to every occupation. An inability to meet a criterion, however, is not 
necessarily evidence that the criterion does not apply to the petitioner's occupation. It is clear fi-om 
the record that a jockey could be the subject of published materials about him or his work, that a 
jockey could play a leading or critical role for an organization with a distinguished reputation, 
and that a jockey could command a significantly high remuneration in relation to others in his 
field. Further, although the petitioner failed to claim these additional criterion, we do not find 
that a jockey could not receive awards, either major international or lesser nationally or 
internationally recognized, could not participate as a judge, or make an original contribution of 
major significance. The petitioner provided no documentation as to why these provisions of the 
regulation would not be appropriate to the profession of a jockey. 
On appeal, counsel again states that the petitioner was among the leading jockeys at - 
in Florida in 2004 and 2007, at Laurel Park in Maryland in 2006 and Timonium in 
Maryland in 2006. The petitioner submits additional documentation dated subsequent to the 
filing date of the petition, including his standing as one of the leading jockeys at - 
in 2008. The petitioner's status as a jockey in 2007 or 2008 is not relevant for this proceeding, as 
it occurred after the filing date of the petition, July 19,2006. These documents are not probative 
Page 6 
in determining the petitioner's eligibility for this visa preference petition at the time of filing. 8 
C.F.R. $5 103.2(b)(1),(12); Matter ofKatigbak, 14 I&N Dec. at 49. 
Finally, we note that although the record contains evidence of the petitioner's prior approval as a 
P-1 nonimrnigrant, the prior approval does not preclude USCIS from denying an immigrant visa 
petition based on a different standard. It must be noted that many 1-140 immigrant petitions are 
denied after USCIS approves prior nonirnrnigrant 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. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989). Because 
USCIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, 
some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004) (finding that prior approvals do not preclude CIS 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. at 597. It would be absurd to suggest that 
USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomeiy, 825 F.2d at 1090. 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 nonirnrnigrant 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The documentation submitted by the petitioner does not show that he is among the top of his 
profession as a jockey. While he submitted documentation that placed him among the leading 
jockeys at two race tracks for a period in 2004 and 2006, a review of the evidence indicates that 
he placed at the lower end of the scale, with others placing far ahead of him in wins and 
earnings. Further, the petitioner submitted no documentation as to his standing among all 
jockeys, not just a discrete few at two race courses. 
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 his field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as 
a jockey 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 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. 
Page 7 
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.