dismissed EB-1A Case: Athletics

U.S. Citizenship 
and Immigration 
Services 
MA TIER OF A-A-
APPEAL.OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 18, 2018 
·PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
' The Petitioner, a badminton player, seeks classification as an individual of extraordinary ability in 
athletics. See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. 
§ 1153(b)(l)(A). This first preference classification makes immigrant visas available to those who 
can demonstrate their extraordinary ability through sustained national or. international acclaim and 
whose achievements have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner had satisfied only two of the ten initial evidentiary criteria, of 
which he must meet at least three. 
On appeal, the Petitioner submits additional documentation and a brief, arguing that he meets at least 
three of the ten criteria. 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes visas available to immigrants with extraordinary ability 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 m the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
The terin "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of ~ndeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
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Matter of A-A-
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is, a major, 
internationally recognized award). If that petitioner does not submit this evidence , then he or she 
must provide documentation that meets at least three of the ten categories listed at 8 C.F.R. 
§ 204.5(h)(3)(i)- (x) (including items such as awards, published material in certain media, and 
scholarly articles). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit comparable 
material if it is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily 
apply to a beneficiary's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS , 596 F.3d I I 15 (9th Cir. 2010) 
(discussing a two-part review where the ·documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers , 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter of Chawathe, 25 I&N Dec. 369,376 (AAO 2010). 
IL ANALYSIS 
The Petitioner is a badminton player who has competed in tournaments around the world with his 
most recent events in the United States. Because he has not indicated or established that he has 
received a major, internationally recognized award, he must satisfy at least three of the alternate 
regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). In denying the petition, the Director found that 
the Petitioner met only two of the initial evidentiary criteria, awards under 8 C.F.R. 
§ 204.5(h){3)(i) and published material under 8 C.F.R. § 204.5(h)(3)(iii). The record reflects that the 
Petitioner received medals at sanctioned tournaments. In addition, major 
publications in India wrote articles about him relating to his performances in badminton 
tournaments. Accordingly, we agree with the Director that the Petitioner satisfied the awards and 
published material criteria. 
On appeal, the Petitioner maintains that he meets two additional criteria, discussed below. We have 
reviewed all of the evidence in the record and ·conclude that it does not support a finding that the 
Petitioner satisfies the plain language requirements of at least three criteria. 
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Matter of A-A-
A. Evidentiary Criteria 
Evidence that the alien has commanded a high salary or other significantly high remuneration 
for service .\~ in relation to others in the fteld. 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner submitted a contract with showing an annual salary of 
$36,000, and evidence of a yearly housing allowance of $13,908. Although the Petitioner argued 
that his total salary is $49,908 per year, the Director determined that "the plain language of this 
criterion makes distinction between salary and remuneration." Thus, the Director found that "[a] 
salary must be high and remuneration must be significantly high." On appeal, the Petitioner cites to 
the definition of "salary" from merriam-webster.com and oxforddictionaries.com as "fixed 
compensation paid regularly for services" and "a fixed regular payment." In addition, the Petitioner 
references "remunerate" as "to pay an equivalent for" and "money paid for work or a service." 
Moreover, the Petitioner contends that since his housing allowance is a fixed monthly amount, it 
falls within the definition of "salary." 1 
Although the Petitioner cites selected definitions in support of his argument that any fixed 
remuneration can be considered a "salary," we note that the regulations make a distinction between 
"remuneration" and "salary." 2 Here, the Petitioner has not established that the housing allowance is 
part of the Petitioner's salary. While the Petitioner provided copies of his paystubs, they do not 
reflect that a housing allowance was included in his bi-weekly salary. Rather, the Petitioner 
provided a letter from president of who stated that the housing 
allowance is "$1159 per month and payable directly to the landlord." Regardless, as noted below, 
even if we were to include the housing allowance as part of the Petitioner's salary, he has not 
demonstrated that such salary meets the requirements of this criterion. 
The Petitioner also argues that since the $36,000 per year is based on 24 working hours per week, his 
"annualized/full time salary would have been $60,000 a year" if he worked 40 hours per week.3 He 
did not, however, establish that he worked 40 hours per week or earned $60,000 a year. Again, the 
Petitioner's paystubs reflect bi-week I y gross earnings of $1,500, and his contract stipulates "24 
working hours per week." We will, however, evaluate his actual hourly rate, discussed further 
below. 
1 The Petitioner docs not argue, and the record docs not reflect, that his $13,908 housing allowance demonstrates a 
significantly high level of remuneration for services. 
2 In addition, other sources defining "remuneration" and "salary" suggest that housing would fall under the former. See, 
e.g., https://www.wisegeek.com/what-is-the-difference-between-salary-and-remuneration.htm, accessed on July 18, 
2018, and incorporated into the record of proceedings. 
3 Although the Petitioner also contends that his employer recently increased his total compensation to $5,000 per month 
and offers an addendum to his contract reflecting "a yearly salary of $60,000 base pay .. . in return of 24 working hours 
per week," he must establish that all eligibility n:quircmcnts for the immigration benefit have been satisfied from the 
time of filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(1). 
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Matter of A-A-
In order to satisfy this criterion, the Petitioner must demonstrate that he commands a high salary or 
other significantly high remuneration for services in relation to others in his field. The Petitioner 
provided the median range of "athletes and sports competitors" in the Texas area from the 
_ reflecting $32,040 for a Level 1 Wage 
to $160,320 for a Level 4 Wage. 4 While a badminton player falls within the general purview of 
"athletes and sports competitors," the Petitioner did not submit salary data specific to badminton 
players. See Matter of Price, 20 I&N Dec. _953, 954 (Assoc. Comm'r 1994) (considering a 
professional golfer's earnings versus other PGA Tour golfers); see also Crimson v. INS, 934 F. 
Supp. 965, 968 (N.0. Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); 
Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player 
to salary of other NHL defensemen). Regardless, the Petitioner's $39,000 salary is slightly above a 
Level 1 Wage and does not reflect a high salary. Even considering the Petitioner's recent salary 
increase to $60,000 per year, as well as his $13,908 housing allowance, his salary is under a Level 2 
Wage of $74,800. Furthermore, the Petitioner's hourly salary is far below the hourly salary for fully 
competent employees. For instance, the Petitioner made approximately $17 per hour and now 
receives approximately $29 per hour. In contrast, a Level 1 Wage employee earns approximately 
$15 per hour while a Level 4 Wage employee commands $77 per hour. For these reasons, the 
Petitioner did not establish that he has commanded a high salary in relation to others in his field. 
Evidence of commercial successes in the performing arts, as shown hy hox office receipts or 
record, cassette, compact disk or video sales. 8 C.F.R. § 204.5(h)(3)(x). 
The Petitioner argues that his player ranking "is comparative to box office receipts or record, 
cassette, compact disk, or video sales for a performance artist." The regulation at 8 C.F.R. 
§ 204.5(h)(4) allows for the submission of comparable evidence if the listed criteria do not readily 
apply to his occupation. 5 Although we agree that the regulation at 8 C.F.R. § 204.5(h)(3)(x) relates 
to performing artists rather than athletes and badminton players, the Petitioner did not demonstrate 
his eligibility to substitute the commercial succdsses criterion for comparable evidence. He should 
explain why he has not submitted evidence that would satisfy at least three of the criteria set forth in 
8 C.F.R. § 204.5(h)(3) as well as why the evidence he has submitted is "comparable" to that required 
under 8 C.F.R. § 204.5(h)(3). 6 Here, the Petitioner has not shown why he cai:inot offer evidence that 
meets at least three of the criteria. The fact that the Petitioner did not provide documentation that 
fulfills at least three is not evidence that a b~dminton player could not do so. As previously 
discussed, the Petitioner claimed to meet three c,riteria. Moreover, the Petitioner did not show that 
badminton players cannot present evidence relating to the other criteria, such as memberships at 8 
4 The Level 1 wage relates to entry level employees, while the Level 4 wage rclall:s 10 fully competent employees . See 
Prevailing Wage Determination Policy Guidance, http://Ocdatacenter.com/download/NPWHC_ Guidancc_Rcviscd _ 11 
_ 2009.pdf at page 7, accessed on July 13, 2018, and incorporated into record of proceedings. 
~ See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form f-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, A FM Update A DI /-/4 12 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTMUPolicyManual.html. 
6 id. 
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Matter of A-A-
C.F.R. § 204.5(h)(3)(ii), original contributions at 8 C.F.R. § 204.5(h)(3)(v), and leading or critical 
roles at 8 C.F.R. § 204.5(h)(3)(viii). 7 · 
Regardless, the Petitioner did not demonstrate how his rankings are "truly comparable" to the· 
commercial successes criterion. 8 Here, the Petitioner did not provide evidence, for example, 
reflecting that he sold-out venues or that fans flocked to his tournaments, which would be more 
comparable to a performing artist with commercial successes. In addition, the Petitioner's rankings 
appear more analogous to the awards criterion, which he has already satisfied, as his finishes and 
tournament results impact his rankings. Accordingly, the Petitioner did not establish that he meets 
this criterion through the submission of comparable evidence. 
B. P-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received P-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved at least one P-1 
nonimmigrant visa petition filed on behalf of q1e Petitioner, the prior approval does not preclude 
USCIS from denying an immigrant visa petition :which is adjudicated based on a different standard -
statute, regulations, and case law. Many Form/1-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 
(D.D.C. 2003); IKEA US v. US Dept. of Justice/48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). 
Furthermore, our authority over the USCIS service centers, the office adjudicating the nonimmigrant 
· visa petition, is comparable to the relationship between a court of appeals and a district court. Even 
if a service center director has approved a nonimmigrant petition on behalf of an individual, we are 
not bound to follow that finding in the adjudication of another immigration petition. Louisiana 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of 
final merits determination referenced in Kazarian,_ 596 F.3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a finding that 
the Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long 
7 The Petitioner also argues that the standards of comparable evidence for "outstanding professors and researchers•· under 
section 203(b)( I )(B) of the Act should be universally applied to "aliens of extraordinary ability" and references 81 Fed. 
Reg. 2068, 2075 (January 15, 2016). The response to the comments in_ the final rule, however, specifically distinguished 
the need to apply different standards to the classifications. ! 8 . 
See USCIS Policy Memorandum PM 602-0005.1, supra, at 12. 
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Matter of A-A-
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. at 954. Here, the Petitioner has not 
shown that the significance of his athletic accomplishments is indicative of the required sustained 
national or international acclaim or that it is consistent with a "career of acclaimed work in the field" 
as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 
203(b)(l)(A) of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner 
has garnered national or international acclaim in the f\eld, and he is one of the small percentage who 
has risen to the very top of the field of endeavor. See section 203(b)CJ)(A) of the Act and 8 C.F.R. 
§ 204.5(h)(2). 
For the foregoing reasons, the Petitioner has not shown that he qualifies for classification as an 
individual of extraordinary ability. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-A-, ID# 1522847 (AAO July ts, 2018) 
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