dismissed EB-1A Case: Athletics

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PUBLlCCOPY 
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u.s. Citizenship 
and Immigration 
Services 
DATE: Office: NEBRASKA SERVICE CENTER FILE: 
APR 19 2011 
LIN 08 2 I 7 521 2S 
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 USc. ~ 1153(b)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. ~ 103.5. 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 fcc of $630. Please be aware that 8 C.F.R. § I 03.5(a)( I lei) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
, i / ('!; 'j,~~L 
! -%"ry Rfiew 
': Chief, Administrative Appeals Office 
WWW.Usds.gfn 
Page 2 
DISCUSSION: The employment-based immigrant visa petItIon was denied by the Director. 
Nebraska 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)(1 )(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § lI53(b)(1 )(A), as an 
alien of extraordinary ability in athletics. The director determined that the petitioner had not 
established the requisite extraordinary ability through extensive documentation and sustained 
national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the 
Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel argues that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.5(h)(3). For the reasons discussed below, we uphold the director's 
decision. 
L Law 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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. 
Page 3 
USCIS and legacy Immigration and Naturalization Service (INS) have consistently recognized that 
Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of 
extraordinary ability. See H.R. 723 I01
s1 
Cong" 2d Sess, 59 (1990); 56 Fed. Reg. 60897,60898-99 
(Nov. 29, 1991). The term "extraordinary ability" refers only to those individuals in that small 
percentage who have risen to the very top of the field of endeavor. lei. and 8 C.F.R. 
* 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or busincss­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles III the field, 111 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases: 
(viii) Evidence that the alien has performed in a leading or critical rolc for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USc/S, 596 F.3d 1115 (9
th 
Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issuc with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion. I With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits detcrmination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[irl field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have gamcred 
"sustained national or intemational acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.s.c. § 1153(b)(l)(A)(i). 
Id. at 1119-1120. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In reviewing Service Center decisions. the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United Slates, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), a[fd, 345 F.3d 683 (9
th 
Cir. 2003): 
see a/so So/tane v. DO}, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
I Specifically. the court slated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond tho,e ,et forth in the regulation; at 8 c.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 5 
II. Analysis 
A. Evidentiary Criteria 
According to counsel's July 27, 2008 cover letter, this petition, filed on July 29. 2008. seeks to 
classify the petitioner as an alien with extraordinary ability as a "Crew Chief and Lead 
Mechanic" in the sport of auto racing. The petitioner has submitted documentation pertaining to 
the following categories of evidence under 8 C.F.R. § 204.5(h)(3)? 
Documentation of' the alien's receipt of lesser nationally or intematiollallv 
recogniced prizes or awards for excellence in the field of endeavor. 
The petitioner submitted an August 16,2007 online article posted at www.cilampcaratlantic.colll 
entitled "Champions and 
(exhibit 9). Paragraph 12 of the article states: . 
petitioner 1 claimed the 
received a 
a September 26. 2007 online article posted at 
rew chief I the 
I The petitioner I also 
. also submitted 
Mechanic Honored in the U.S." (exhibit 10). Paragraph of the article 
"Portuguese 
indicates that the 
6 states: "In petitioner received the 
2005 I the petitioner J went to the 
as the driver, winning the team championship and the driver cham~ with 
with his driver winning the first race at _and the second a~' Counsel argues that 
the September 26, 2007 online article (exhibit 10) is evidence that the petitioner won a team 
championship and driver championship at the 2005 Renault World Series. 
The director issued a request for evidence to the petitioner stating: 
llaVlllL~ won awards in the field, you indicate that you have received the 
that you were part of the 2005 
Submit documentary evidence of having won 
the Renault award as well as documentary evidence which demonstrates your role in 
receiving the award. For both awards, submit documentary evidence to establish the 
criteria for winning the award or prize, including evidence regarding who is eligible to 
compete for the award or prize. Submit documentary evidence to establish the reputation 
of the organization granting the award in the field of endeavor and any other 
documentary evidence to establish the significance of the award or prize. 
In response, the petitioner submitted a December 2005 letter from 
, stating: 
2 The petitioner does not claim to meet or submit evidence relating to the categories of evidence nol discussed in this 
decision. 
Page 6 
nr,,,,;irlp this letter confirming [the petitioner'sl full-time employment 
as January II until October 12, 2005. 
In this role, I the petitioner] supervised 2 mechanics in the preparation and maintenance of 
an open wheel formula race car for testing and competition in the 2005 season of the 
World Series by Renault. [The petitioner] was responsible for meeting with our crew 
chief and race engineers to determine optimum set-up specifications for the car and for 
making and directing appropriate adjustments to all race car components .... 
Nothing mentions the petitioner a team championship and driver 
championship at the 2005 Further, does not indicate 
jrt,,,j,>s were attributable to the petitioner's work rather than the 
team's two drivers or its crew chief. The petitioner also submitted information about the _ 
_ racing team and the World Series by Renault racing series from Wikipedia, an online 
encyclopedia. Regarding information from Wikipedia, there are no assurances about the 
reliability of the content from this open, user-edited internet site] See Lamiiem Badas(l v. 
Michael Mukasey, 540 F.3d 909 (Sth Cir. 200S). Accordingly, we will not assign weight to 
information for which Wikipedia is the source. 
With regard to the petitioner's 2007 of the Year 
Award, the petitioner's response to the director's request for evidence included a photograph of 
his trophy and general information about the from its website, but his 
response did not include any evidence regarding the award, its significance, or eligibility criteria. 
The brief mention of the petitioner's award in articles whose national or international circulation 
is undocumented docs not establish the national or international recognition of the award. The 
plain language of the regulation at S C.F.R. § 204.5(h)(3)(i) specifically requires that the petitioner's 
awards be nationally or internationally recognized in the field of endeavor and it is his burden to 
establish every element of this criterion. In this instance, the submitted documentation does not 
establish that the petitioner's of the Year Award constitutes a 
"nationally or internationally recognized" prize or award for excellence in the field. 
"\ Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF V ALlDlTY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and group .... working 10 develop a 
common resource of human knowledge. The structure of the project allows anyone wilh an Internet 
connection to alter its content. Please be advised that nothing found here has necessarily been reviewed by 
people with the expertise required to provide you with complete, accurate or reliable information. 
Wikipedia cannot guarantee the validity of the information found here. The content of any given article 
may recently have been changed, vandalized or altered by someone whose opinion does not correspond 
with the stale of knowledge in the relevant fields. 
See hHP://('J!.-'_~~jhipc-dia.\lrg/wi.kiN/ihipcdia:Gcneral disclaimer, accessed on April I, 20 II, copy incorporated into 
the record of proceeding. 
Page 7 
also included an October 9, 2008 article posted at 
entitled "Series 2008 Awards Banquet report" which discusses the 
l1rilvelCS and team members' season-ending awards banquet in Fall 2008. 
Paragraph 3 of the article states that the petitioner "earned the Top Wrench Award." The 
petitioner received the preceding award subsequent to the petition's July 29, 2008 filing date. A 
petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. §§ I 03.2(b)( I), (12); 
Mattero(Katigbak, 14 I&N Dec. 45, 49 (Reg!. Commr. 1971). A petition cannot be approved at 
a future date after the petitioner becomes eligible under a new set of facts. Maller of' hummi, 22 
I&N Dec. 169, 175 (Comm'r. 1998). That decision further provides, citing Matter of' Bardolliile, 
18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. Accordingly, the AAO will not consider the 
petitioner's Top Wrench Award from October 2008 in this proceeding. Nevertheless. there is no 
evidence showing that the award equates to a nationally or internationally recognized prize or 
award for excellence in the field. 
asserts that the petitioner also won a 
the Year in 2007, vice champion at the 
Series with 2002, third place at 24 Hours at 
Motorsport in 2003, second place in the Driver 
fourth place in the Atlantic Formula with driver in 2004, and four races with 
Intersport Racing in the Series becoming the class vice champion and the 
team champion in 2004, Counsel, however, does not point to specific evidence or exhibits in the 
record to support these claims, Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings, Maller ,,(Softiei, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter ()f'Treasure Craft (>f'Cali/c)rnia, 141&N Dec. 
190 (Reg. Comm. 1972)). A petition must be filed with any initial evidence required by the 
regulation. 8 C.F.R. § 103.2(b)(I). The nonexistence or other unavailability of primary evidence 
creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). According to the same 
regulation, only where the petitioner demonstrates that primary evidence docs not exist or cannot be 
obtained may the petitioner rely on secondary evidence and only where secondary evidence is 
demonstrated to be unavailable may the petitioner rely on affidavits. Where a record does not 
cxist, the petitioner must submit an original written statement on letterhead from the relevant 
authority indicating the reason the record does not exist and whether similar records for the time 
and place are available. 8 C.F.R. § 103.2(b)(2)(ii). 
In light of above, the petitioner has not established that he meets this criterion. 
Documentation of'the alien '.\' membership in associations in the field F)r which 
classification is sought, which require outstanding achievements of' their 
members, as judged by recognized national or international experts ill their 
disciplines orfields. 
In ordcr to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for 
admission to membership. Membership requirements based on employment or activity ill a 
Page 8 
given field, mlnlmum education or experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues, do not satisfy this 
criterion as such requirements do not constitute outstanding achievements, Further, the overall 
prestige of a given association is not determinative; the issue here is membership requirements 
rather than the association's overall reputation. 
The petitioner submitted the aforementioned December 2005 letter from 
confirming the petitioner's "full-time employment as a Number I Mechanic with _ 
_ 'rom January II until October 1 2005." The also submitted information 
~oW at 
a High Perforrnance 
European motor racing: 
Obtaining international sporting titles. 
Generating human and technological resources. 
to be a 
Generatin!; jobs and opportunities for young people: engmeers, meciulIlics WId 
drivers. 
Increasing development of the great competition motor racing industry. 
Generating the greatest repercussion by means of all its activities, with competitions 
as its most attractive international showcase, escaparate internacional. 
In short, giving back to society the financial and personal support which it receives. by 
developing the following activities: 
a) In the is participating with 2 single-seater racing 
cars (F3000) and 2 drivers with international prestige. This cateRory is considered to 
he the .f{Jrerunner to Formula 1. 
b) In the Formula Renault 2000 there are 3 drivers and their respective single-seaters 
(2000cc). A prior step which promotes younger drivers up towards the World Series 
by Renault. 
c) Development of a Junior Cup for Karting. This category is a good starting point for 
drivers who really wish to become professionals, preparing them to rise lip the 
aforementioned categories. 20 drivers and 20 karts can participate in this Junior Cup. 
d) This category, in which_participates with 2 drivers and 2 
prototypes, IS an to the single-seaters. This gives drivers the opportunity to 
participate in different international car competitions, just as demanding as Formula 
1, even though it is not necessarily their ultimate professional objective. 
Due to the 
fllnnll1g a 
in collaboration with the 
* * * 
Page 9 
due to its characteristics and reference within Europe giving students the opportunity to 
carry out practical work on international circuits. 
An exceptional 0pp0l1unity for 24 newly graduated engineers or professionals who wish 
to orient their professional career towards top class competition in world of motor racing. 
The important qualification which they obtain also equips them to join the conventional 
automotive industry. 
Training mechanics to be specialists in competillOn vehicles is also an area in which 
Epsilon participates in a special way, collaborating actively with different Professional 
Schools by giving training and practical expenence to these future technicians. 
* * * 
"We are probably one of the last race car manufacturers to offer students ({nd younR 
desiRners the steppinR stones which are needed to be a successful race car designer or 
racing car engineer." 
[Emphasis added.J 
The petitioner also submitted an October 4, 2005 article in Motor entitled '_Honors 
••••••• stating: 
The World Series by Renault held at a rare opportunity for 
••••••• a> call attention to a "son of the country," [the petitioner [ who despite 
his youth has already made a name for himself as an accredited mechanic on international 
race tracks, 
After a few seasons in North-American racing, namely in the Atlantic Formula, he 
decided to take a chance on Europe when he received an invitation to join the ranks of 
Epsilon Euskadi, one of the foremost names in the World Series. 
The petitioner's "full-time employment" as a mechanic with Epsilon Euskadi does not constitute 
membership in an association in the field. Merely submitting documentary evidence reflecting 
the petitioner's employment with a particular organization or providing background information 
about the employer without evidence reflecting that the petitioner is a member of an association 
that requires outstanding achievements of its members, as judged by recognized national or 
international experts, is insufficient to meet the plain language of the regulation. Clearly, the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires the petitioner to show 
"membership in associations" and not the petitioner's employment with organizations or 
businesses. In this instance, the petitioner was hired to perform the duties of a mechanic and not 
nominated or elected to membership based on his outstanding achievements. The submitted 
evidence does not establish that Epsilon Euskadi requires outstanding achievements of its 
members, as judged by recognized national or international experts in the petitioner's field. 
Moreover, consistent with the statutory requirement for "extensive documentation" at section 
Page 10 
203(b)(I)(A)(i), the regulation at 8 c.F.R. § 204.5(h)(3)(ii) expressly requires qualifying 
membership in "associations" in the plural. A single association membership does not meet the 
plain language requirements of this regulatory criterion. Accordingly, the petitioner has not 
established that he meets this criterion. 
Published material about the alien in prrJ/essional or major trade publica/ions or 
other mqjor media, relating to the alien's work in the fieldfor which c1assificatio/1 is 
sought. Such evidence shall include the title, date, and author uf the material. and 
any necessary translation. 
In general, in order for published material to meet this criterion, it must he primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade puhlications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times. nominally serve a 
pat1icular locality but would qualify as major media because of significant national distrihution. 
unlike small local community papers 4 
The petitioner submitted articles about him in Motor entitled "An Experienced Engineer" (April 
1,2003), ' (October 4, 2005), 'The Fidalgo Siblings Other 
Champions" (December 5, 2006), "Pot1uguese Named Mechanic of the Year in Atlantic 
Formula" (September 18,2007), and "A Winning Team" ( November 27,2007). The petitioner 
also submitted an online duplicate of the September 18, 2007 article posted on the website or 
journal Motor Oil-Line. The petitioner's evidence also included an October 4. 2005 article in 
Motor entitled "Kubica Anticipates Title," but the at1icle does not mention the petitioner. The 
regulation at 8 C.F.R. § 204.5(h)(3)(iii), however, requires that the published material he "about the 
alien."s Fut1her, the authors of the preceding articles in Motor and journal M%r On-Line were 
not identified as required by the plain language of this regulatory criterion. The petitioncr also 
submitted an October 31. 2005 article in Motor entitled "To be a champion. consistency is 
essential." The primary article includes a subsection entitled "The Portuguese Contribution" 
which mentions the petitioner. The primary section of the article, which is not about the 
petitioner. states: 
After the World Series title, the dream of the Formula 1. At 
then in his first season in this discipline, secured the World Series by Renault title. 
Considering thc way in which he dominated the season and his talent which he had 
already demonstrated in go-cart racing, this came naturally, and even then he had dreams 
of one day racing in the Formula 1. 
* * * 
--+ 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 im,tance, cannot serve to spread an individual's reputation outside of that county_ 
\ SCI'. e.g .. Accord Negro-Plumpe v. Okin. 2:07-CV-820-ECR-RJJ at 7 (D. Nev. Sept. S. 200S) (upholding a finding that 
articles about a show are not about the actor). 
Page 11 
Regarding the fact that the World Series is a learning curve for the Formula 1, the next 
step in the career of a driver, the Pole stated: "It will be difficult to enter the F I, but I 
think that this category, after the Formula 1, is one of the best." 
* * * 
Having won the World Series, the next step 111 ••••••• career may be the 
Formula 1. 
The content of the preceding article indicates that Formula 1 racing is above the racing level 
where the petitioner is working as a mechanic. Moreover, there is no evidence (such as 
readership statistics from an independent source) showing that Motor and loumol Motor 011-
Line qualify as professional or major trade publications or other major media. 
The petitioner submitted a 2005 article in Gondomor Economico entitled "Gondomar Governing 
Board Honors [the sJ Team." The petitioner also submitted articles in Reporter or 
Gondomar entitled' [the petitioner's1 Team" (October 25, 
2005) and "Man from the Year [the petitioner I Honored in 
Atlantic Formula in the U.S.A." (September 26, 2007). The authors of the preceding articles in 
Gondomar Economico and Reporter of Gondomar were not identified as required by the plain 
language of the regulation at 8 C.F.R. § 204.S(h)(3)(iii). Further, the director noted that these 
publications "appear to be regional periodicals of the petitioner's birthplace, Gondomar, 
Portugal." There is no evidence showing that these publications from the petitioner's native 
region equate to professional or major trade publications or other major media. 
The petitioner submitted an August 16,2007 online article posted at ......... Ii ••• 
entitled "Champions and Award Winners Honored at Champ Car Atlantic Awards Banquet" 
(exhibit 9). The article briefly mentions the petitioner's name (paragraph 12) among more than a 
dozen individuals honored at the banquet. The article does not include any further information 
about the petitioner and is primarily about the awards banquet in general. The petitioner also 
submitted a September 26, 2007 online article posted at entitled 
"Portuguese Mechanic Honored in the U.S." The authors of the preceding articles were not 
identified as required by the plain language of this regulatory criterion. Further. there is no 
evidence showing that the preceding websites qualify as professional or major trade publications or 
other major media. 
In light of above, the petitioner has not established that he meets this criterion. 
Evidellce that the alien has performed in a leading or critical role .fi)r organizotio/lS 
or estahlishments that have a distinguished reputation. 
Team 
competing in the 
Manager for Intersport Racing, a professional race team that has been 
the past ten years, states: 
-Page 12 
During his Career in motorsports, [the petitioner] has had many great accomplishments 
including winning the 2005 European World Series by Renault, winning a Toyota 
Atlantic race in the United States in 2007, and also being named 2007 Toyota Atlantic 
Crew Chief of the Year. [The petitioner] also graduated from the racmg 
school in California where he was the mechanic of the month in May of 2002. 
I have been involved in professional racing for the past ten years and I can honestly say 
that I have yet to come across someone with as much determination, drive and 
professionalism as [the petitionerJ. Along with his qualified credentials the experience 
and expertise that [the petitioner] brings with him will benefit any tcam that wishes to 
hire him. 
* * * 
He is by far the best have ever had the pleasure of working with. 
....................................... forboth 
parent company, 
is recognized worldwide as a premier professional sports 
car racing series with events held throughout North America. The series attracts large 
crowds to each event and all events are broadcast on network and cable television in 70+ 
countries around the world. 
I have personally been involved at the executive level in motors ports for two decades and 
for this reason have been requested to comment on [the petitioner'sj significance to our 
sport. jThe petitioner'sj proposed involvement would be as Crew Chief / Lead Mechanic 
for one of the sport's top teams in the world, with a multitude of wins and championships 
(more detailed information is available on their website at ................. . 
Therefore the role of Crew Chief for this team is critically important to their continued 
success. jThe petitioner] has a wealth of in this role beginning with his 
graduation from the well know in California where he was 
honored as Mechanic of the Month in May of 2002. 
[The petitionerj has had many successes as a professional Crew 
Mechanic including a much coveted and very competitive ..... lililililii 
Renault championship in 2005. In this role he has also been on winning teams in the 
•••••••••••••••• """"""""" .... 111 in which he took 
top honors as the Crew Chief of the Year in 2007. 
Executive Vice President, states: 
j The petitioner j participated in the as a Chief Mechanic for one of 
the Atlantic teams and was recognized as the ''Top Wrench of the Year" in 2008. 
its 
Page 13 
This honor was based upon his 
chief. The team he worked for, 
Championship the same year. 
a"'"LV as an auto racing mechanic and crew 
won the 2008 Atlantic Series 
I have organized and administered the Atlantic Racing Series for over 25 years and can 
honestly say that Ithe petitioner] stands atop the list of very successful auto racing expert 
mechanics .... 
As previously discussed, the petitioner received the "Top Wrench of the Year" award subsequent 
to the petition's July 29,2008 filing date. A petitioner, however, must establish eligibility at the 
time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg!. 
Commr. 1971). Accordingly, the AAO will not consider the petitioner's Top Wrench Award 
from October 2008 in this proceeding. 
states: 
I The petitioner J and I have worked together in the Atlantic championship and ALMS 
now for 4 years. In that he has earned my respect both personally and professionally. But 
don't take my word for it. Success on the race track seems to follow him where ever he 
goes. As cars that he was responsible for have won many races induding the 2008 
Formula Atlantic Championship. In 2008 he was voted for as the top mechanic on his 
championship winning car. 
I am responsible for the department at Cos worth in America. I The 
petitioner I has displayed all the talents professionally that are required to be successful in 
racmg. 
Thc documentation submitted petitioner performed in a 
critical role as a crew chief for as a lead mechanic with _ 
_ The record, however, does not establish that these organizations have a distinguished 
reputation when compared to other racing teams. As previously discussed, the petitioner 
submitted information about the racing team from Wikipedio, but there are no 
assurances about the reliability of the content from this open, user-edited internet site. See 
at 910. Accordingly, we will not assign weight to 
is the source. Further, there is no documentary evidence 
showing that has a distinguished reputation in auto racing. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter ofSojjici, 22 I&N Dec. at 165. 
In I ight of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other sigllificlInllv high 
remuneralionjiJr services, in relation to others in the field. 
Page 14 
In response to the director's request for evidence, the petItIoner submitted his 2007 U.S. 
Individual Income Tax Return reflecting "total income" of $29,611. The petitioner also 
submitted a letter to USCIS stating that he "received a Lincoln Welders precision TIG 225 
welding package in 2007 for winning the Lincoln Welders Mechanic of the Ycar Award. The 
estimated cash value for this item is $1900." The petitioner's response also included an August 
3, 2004 article entitled "Last Lap: Answering fan mail" written by Marty Smith of 
NASCAR.COM. The article states: 
It's very difficult to get a true midline crewman salary, because there are so many 
different types of positions, some that require travel, others that don't. Some shop guys 
might make 30 grand, while a guy who stays back and sets up the car for the following 
weekend might make six figures. For guys that have a duty at the shop, travel and have 
an over-the-wall position on Sundays, $75,000 is a legitimate average salary. Then there 
are bonuses. 
The article from that "$75,000 is a legitimate average salary" for a 
midline crewman, but the petitioner seeks classification as a "Crew Chief and Lead Mechanic." 
not as a midline crewman. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3 )(ix) 
requires the petitioner to submit evidence of a "high salary or other significantly high 
remuneration for services, in relation to others in the field." Average salary information for 
those performing work in a related but distinct occupation with different responsibilities is not a 
proper basis for comparison. Rather, the petitioner must submit documentary evidence of the 
earnings of those in his occupation performing similar work at the top level of the field. See 
Marter o( Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994) (considering professional golfer's 
earnings versus other PGA Tour golfers); see also Crimson v. INS, 934 F. Supp. 965, 968 (N.D. 
Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers): MUlli Y. INS, 891 F. 
Supp. 440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other 
NHL defensemen). Nevertheless, the petitioner's total income in 2007 of $29,611 falls below all 
of the salary amounts discussed in Mr. Smith's 2004 article. 
The petitioner also submitted a September 30, 2009 earnings statement from CRF Racing LLC 
reflecting year to date gross earnings of $38,250.03. The petitioner's earnings from 2009 post­
date the petition's filing date. As previously discussed, a petitioner must establish eligibility at 
the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Marter of' Katigbak, 14 I&N Dec. at 49. 
Accordingly, the AAO will not consider earnings received after July 29, 2008 in this proceeding. 
The evidence submitted by the petitioner does not establish that he has received a high salary or 
other significantly high remuneration for services in relation to others in the field as of the petition's 
filing date. 
In light of the above, the petitioner has not established that he meets this criterion. 
Summar\' 
Page IS 
In this case, we concur with the director's determination that the petitioner has failed to 
demonstrate his receipt of a major, internationally recognized award, or that he meets at least 
three of the ten categories of evidence that must be satisfied to establish the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we will next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (I) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of thelir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has 
sustained national or international acclaim and that his or her achievements have been recogni/.ed in 
the field of expettise." Section 203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazariall. 
596 F.3d at 1119·1120. In the present matter, many of the deficiencies in the documentation 
submitted by the petitioner have already been addressed in our preceding discussion of the 
categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i) - (iii), (viii), and (ix). 
With regard to the documentation submitted for 8 C.F.R. §§ 204.5(h)(3)(i) . (iii), the petitioner 
submitted published and online material indicating that Formula I racing is a icvel above the 
competitive series in which the petitioner has participated (such as the World Series by Renault). 
For example, the information submitted by fhe petitioner from www.ullimatccarpagc.com states 
that the Renault World Series "category is considered to be the forerunner to Formula 1." 
Further, the October 31, 2005 article in Motor entitled "To be a champion, consistency is 
essential" states: "Regarding the fact that the World Series is a learning curve for the Formula I, 
the next step in the career of a driver, the Pole stated: 'It will be difficult to enter the FI, but I 
think that this category, after the Formula 1, is one of the best.'" The petitioner has not 
established that his level of success as a crew chief or mechanic in the Atlantic Championship 
Powered hy Mazda and the World Series by Renault is an indication that he "is one of that small 
percentage who have risen to the very top of the field of endeavor." See 8 C.F.R. * 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. Commr. 
1994); 56 Fed. Reg. at 60899." Likewise, it does not follow that a crew chief or mechanic whose 
racing teams do not compete at the very top level of the sport should necessarily qualify for an 
() While we acknowledge that a district court's decision is not binding precedent we note thai in MOiler of Racint'. 
1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[TJhe 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 district. Crimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 
8 c.F.R. S 204.S(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 USClS' interpretation of the regulation at 8 C.F.R. § 204.5(h)(2) is reasonable. 
Page 16 
extraordinary ability employment-based immigrant visa. To find otherwise would contravene 
the regulatory requirement at 8 C.F.R. § 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." 
Regarding the documentation submitted for 8 C.F.R. § . the August 3. 2004 article 
entitled "Last Lap: Answering fan mail"' written by provides average salary 
information rather than high salary information. The must submit evidence 
demonstrating that his salary places him at the very top of his field rather than simply above 
average in his field. See 8 C.F.R. § 204.5(h)(2). 
In this case, the evidence of record falls short of demonstrating petitioner's sustained national or 
international acclaim as an auto racing crew chief or mechanic. While the petitioner need not 
demonstrate that there is no one more accomplished than himself to qualify for the classification 
sought, it appears that the very top of his field of endeavor is above the level he has attained. The 
conclusion we reach by considering the evidence to meet each category of evidence at 8 C.F.R. 
§ 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. Ultimately. 
the evidence in the aggregate does not distinguish the petitioner as one of the small percentage who 
has risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The submitted evidence 
does not establish that the petitioner's achievements at the time of filing were commensurate with 
sustained national or international acclaim in auto racing, or being among that small percentage at 
the very top of his field. 
C. Prior P-I Nonimmigrant Visa Status 
The AAO notes that the petitioner has been in the United States as a P-I nonimmigrant, a visa 
classification that requires the alien to perform as an athlete, either individually or as part of a 
team, at an internationally recognized level of performance, and that the alien seek to enter the 
United States "temporarily and solely for the purpose of performing as such an athlete." See 
section 214(c)(4)(A) of the Act, 8 U.S.c. § I I 84(c)(4)(A). While USCIS has approved a prior p­
I nonimmigrant visa petition filed on behalf of the petitioner, this prior approval does not preclude 
US CIS from denying an immigrant visa petition based on a different, if similarly phrased standard. 
Each case must decided on a case-by-case basis upon review of the evidence of record. It must be 
noted that many \-140 immigrant petitions are denied after USCIS approves prior nonimmigrant 
petitions. See, e.K., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 20(3); iKEA US 
v. US Dept. olJustice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. 
Supp. 1103 (ED.N.Y. 1989). Because USCIS spends less time reviewing \-129 nonimmigrant 
petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply approved in 
error. Q Duta Consulting, Inc. v. iNS, 293 F. Supp. 2d at 29-30; see also Texas A&M Uni,·. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do 
not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the alien'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.K., Matter or 
Church Scientology Internatiollal, 191&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
Page 17 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. 1M'), 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Ill. Conclusion 
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 and 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 signiticantly above almost all others in his tield at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(l)(A) of the Act and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DO.!, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
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. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.