dismissed EB-1A Case: Athletics

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PUBLIC COpy 
V.S. [)cparlrncnl of Homeland Sccuritj 
U.S. Cili/cnship and Immigralion Sen'il'cs 
Administrative Appeals Office (i\AO) 
20 l'vlassachw.,clts Ave" N.W., MS 20l)() 
WashinQloH. DC :20:i2'J-2090 
u. S. Ci tizenshi p 
and Immigration 
Services 
DATE: APR 0 2 2012 Office: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(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 fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~ 
Perry Rhew . 
Chief, Administrative Appeals Office 
www.llscis.gov 
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. § 1153(b)(1)(A), as an 
alien of extraordinary ability in athletics. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of his 
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)(1)(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 asserts that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.5(h)(3) and that he submitted comparable evidence of his 
extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). The AAO 
acknowledges that the standard of proof is preponderance of the evidence, as noted by counsel on 
appeal. The "preponderance of the evidence" standard, however, does not relieve the petitioner 
from satisfying the basic evidentiary requirements required by the statute and regulations. 
Therefore, if the statute and regulations require specific evidence, the petitioner is required to 
submit that evidence. See section 203(b )(1 )(A)(i) of the Act, 8 U .S.c. § 1153(b )(1 )(A)(i), and 
8 C.F.R. §§ 204.5(h)(2) and (3). In this matter, the documentation submitted by the petitioner fails 
to demonstrate by a preponderance of the evidence that he has achieved sustained national or 
international acclaim. 
For the reasons discussed below, the AAO will uphold the director's decision. 
I. LAW 
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 --
Page 3 
(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 H.R. 723 WIst 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. Id.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) 
or through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
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. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.1 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 determination." 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». 
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 this matter, the AAO will review the evidence under 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 4 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. Id. 
II. INTENT TO CONTINUE WORK IN THE AREA OF EXPERTISE IN THE U.S. 
The statute and regulations require that the petitioner seeks to continue work in his area of 
expertise in the United States. See section 203(b)(I)(A)(ii) of the Act, 8 U.S.c. 
§ l1S3(b)(I)(A)(ii); 8 C.F.R. § 204.S(h)(S). On the Form 1-140, Immigrant Petition for Alien 
Worker, in Part 6, "Basic Information About the Proposed Employment," the petitioner lists his 
job title as "Fencing Coach." Subsequent to his arrival in the United States in 2006, the record 
reflects that the 'tioner has worked as an 
The petitioner submitted a 
stating: "We, petitioned and received an 0-1 
visa for [the petitioner] in 2006. He our AssIstant . Coach since that time. We 
support his desire to have permanent residency so that he may continue to ... work in the U.S. as 
an elite fencing coach." Based on the letter from the president of the OFA, the petitioner's 
ongoing employment as a fencing coach after his arrival in this country in 2006, and the 
information provided on the Form 1-140, the record is clear that the petitioner intends to continue 
to work in the area of coaching in the United States. 
Aside from documentation establishing the petitioner's intention to continue to work in the 
United States as a fencing coach, the petitioner submitted documentation pertaining to his 
athletic achievements as a fencing competitor in the 1990s. There is no documentary evidence 
showing that the petitioner has competed nationally or internationally as a fencer since that time 
period. While a fencing competitor and a coach may share knowledge of the sport, the two rely 
on very different sets of basic skills. Thus, competitive athletics and coaching are not the same 
area of expertise. This interpretation has been upheld in Federal Court. In Lee v. I.N.s., 237 F. 
Supp. 2d 914 (N.D. Ill. 2002), the court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary ability" as 
working in the same profession in which one has extraordinary ability, not necessarily in 
any profession in that field. For example, Lee's extraordinary ability as a baseball player 
does not imply that he also has extraordinary ability in all positions or professions in the 
baseball industry such as a manager, umpire or coach. 
[d. at 918. The court noted a consistent history in this area. While the record demonstrates that the 
petitioner intends to continue working as a fencing coach, there is no evidence indicating that he 
intends to compete as fencer in the United States. The AAO acknowledges the possibility of an 
alien's extraordinary claim in more than one field, such as a coaching and competitive fencing, but 
the petitioner must demonstrate "by clear evidence that the alien is coming to the United States to 
continue work in the area of expertise." See 8 C.F.R. § 204.S(h)(S). In this case, there is no 
documentary evidence establishing that the petitioner intends to continue working in the United 
States as a competitive fencer. Accordingly, the petitioner must satisfy the statutory requirement 
Page 5 
at section 203(b)(1)(A)(i) of the Act as well as the regulations at 8 C.F.R. §§ 204.5(h)(2) and (3) 
through his achievements as a coach. 
USCIS recognizes that there exists a nexus between competing and coaching in a given sport. To 
assume that every extraordinary athlete's area of expertise includes coaching, however, would be 
too speculative. To resolve this issue, a balanced approach is appropriate when reviewing the 
evidence of record. Specifically, in a case where an alien has achieved recent national or 
international acclaim as a competitive athlete and has sustained that acclaim in the field of 
coaching at a national level, the AAO can consider the totality of the evidence as establishing an 
overall pattern of sustained acclaim and extraordinary ability such that the AAO can conclude that 
coaching is within the alien's area of expertise. However, as the petitioner in the present matter 
has had an extended period of time to establish his reputation as a coach beyond the years in which 
he successfully competed as an athlete in 1990s, the petitioner must demonstrate his extraordinary 
ability as a coach. 
III. ANALYSIS 
A. Evidentiary Criteria 
The petitioner has submitted documentation pertaining to the following categories of evidence 
under 8 C.F.R. § 204.5(h)(3).2 
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 an August 30, 2006 letter 
"[The petitioner' greatest successes were 
Furthermore, he competed in the Olympic Games in 
was the winner of....... The petitioner also submitted 
an August 16, 2006 letter from the stating that he competed 
for 
's team won 3 place in 
The letter also states that the petitioner was the 
Rather than submitting primary evidence of his prizes and 
awards from the preceding fencing competitions, the petitioner instead submitted letters attesting to 
their existence. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158,165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972». A petition must be filed with any initial evidence required by the regulation. 
8 C.F.R. § 103.2(b)(1). 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 does not exist or cannot be obtained may 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 6 
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 exist, 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. 
~)(2)(ii). The August 16, 2006 letter from the 
_ and the August 30, 2006 letter from the 
comply wIth the preceding regulatory requirements. 
Regardless, the "field of endeavor" for which classification is sought is coaching. There is no 
evidence indicating that the petitioner seeks to work in the United States as a competitive fencer. 
Awards resulting from the petitioner's athletic victories as a fencing competitor during the 1990s 
cannot be considered evidence of his national recognition as a coach. As previously discussed, the 
statute and regulations require that the petitioner seeks to continue work in his area of expertise 
in the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(I)(A)(ii); 8 
C.F.R. § 204.5(h)(5). See also Lee v. I.N.S., 237 F. Supp. 2d at 914. Accordingly, awards won 
by the petitioner in national or international fencing competitions do not meet the elements of this 
regulatory criterion for purposes of establishing his extraordinary ability as a coach. 
On March 15, 2010, the director requested the petitioner to submit evidence of nationally or 
internationally recognized prizes or awards for excellence that he "received as a fencing coach." 
In response to the director's request for evidence (RFE), counsel asserts that the director should 
consider the gold medals and other awards won by fencers coached by the petitioner as evidence 
for this regulatory criterion. Counsel further states: 
There are no fencing coach recognitions in the United States awarded by the national 
governing body. Some nations ... recognize their top fencing coaches by providing a 
cash award if their fencers win the World Championships or Olympics. However, there 
are currently no awards in the United States dedicated to honoring fencing coaches. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 
1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The AAO 
cannot ignore that the documentation submitted by the petitioner shows that national awards do 
exist for . coaches. For i the titioner submitted a November 11 
letter from 
U.S. Olympic Committee for 
RFE included a "Biography 0 
was named the 
In recognition of 
United States, the U. 
stating: 
contributions to fencing have been 
ground-breaking contributions to fencing 
s Association presented him with the 
Page 7 
his excellent results at the international 
level. 
The petitioner also submitted an""History" document stating: 
who was recently named the 
Coach of the Year in fencing" by the United States 
Fencing Coaches Association. Thus, counsel's statement that there are "no awards in the United 
States dedicated to honoring fencing coaches" appears to be incorrect. Unh and 
there is no evidence showing that the petitioner has received nationally 
recognized prizes or awards for excellence in coaching. 
Regarding counsel's assertion in response to the RFE that the director should consider the gold 
medals and other awards won by fencers coached by the petitioner as evidence for this regulatory 
criterion, the AAO notes that the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) 
requires documentation of "the alien's receipt" of nationally or internationally recognized prizes 
or awards for excellence in the field of endeavor. Prizes or awards received by individuals other 
than the petitioner himself do not meet the plain language requirements of the regulation. 
"[N]either USCIS nor an AAO may unilaterally impose novel substantive or evidentiary 
requirements beyond those set forth at 8 C.F.R. § 204.5." See Kazarian v. USCIS, 596 F.3d at 
1121 (citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008)). Medals 
received by the petitioner's students in fencing competitions do not equate to his receipt of those 
awards. Nevertheless, the awards received by athletes the petitioner has coached will not be 
ignored and shall be considered later in this decision under the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(v). 
As there is no evidence demonstrating that the petitIOner has received nationally or 
internationally recognized prizes or awards for excellence in coaching, the petitioner has not 
established that he meets the plain language requirements of this regulatory criterion. 
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. 
:1 See http://usfca.org/, accessed on March 26, 2012, copy incorporated into the record of proceeding. 
Page 8 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of significant national distribution, 
unlike small local community papers.4 
titioner submitted ned photograph 
In that identifies him and eight others, but the 
author of the material was not provided and there is no circulation evidence showing that 
qualifies as a form of major media. The plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii) requires "published material about the alien in professional or major 
trade publications or other major media" including "the title, date and author of the material." The 
preceding captioned photograph does not meet the requirements of this regulatory criterion. 
The petitioner submitted a December 14, 2000 article entitled 
_' but the name of the publication and the author of the material were not identified as 
required by this regulatory criterion. Further, the article, which only briefly mentions the 
petitioner in passing, is not about him. Instead, the article is about the competitive fencing 
accomplishments of the petitioner's brother_and fellow club mem 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the pu 
material be "about the alien." See, e.g., Accord Negro-Plllmpe v. Okin, 2:07-CV-820-ECR-RJJ at 
* 1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not about the 
actor). Moreover, there is no circulation evidence showing that the article was in a professional or 
major trade publication or some other form of major media. 
~er submitted an article in entitled 
_ but the author of the material was not identified as req by the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, the article is not about the petitioner and there 
is no circulation evidence showing the article was printed in a professional or major trade 
publication or some other form of major media. 
The petitioner submitted a _ article entitled on top," but the name of the 
publication and the author of the material were not identified as required by this regulatory 
criterion. Further, the article is not about the petitioner. Instead the article is about the 
competitive fencing accomplishments of the petitioner's brother and fellow club 
members Moreover, there is no 
circulation Wlllg or major trade publication or 
some other form of major media. 
4 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 9 
The petitioner submitted an article entitled but the 
name of the publication, the author of the article, and the date of the material were not identified 
as required by the plain language of the regulation at 8 CF.R. § 204.5(h)(3)(iii). Further, the 
article is not about the petitioner and there is no circulation evidence showing the article was printed 
in a professional or major trade publication or some other form of major media. 
The petitioner submitted an article entitled but the name of 
the publication, the author of the article, and the date of the material were not provided as 
required by this regulatory criterion. Further, the article is not about the petitioner and there is no 
circulation evidence showing the article was printed in a professional or major trade publication or 
some other form of major media. 
The petitioner submitted a captioned newspaper photograph from 2000 entitled but 
name of the newspaper and the author of the material were not identified as required by the plain 
language of the regulation at 8 CF.R. § 204.5(h)(3)(iii). Further, the material is not about the 
petitioner and there is no circulation evidence showing that it was printed in a professional or major 
trade publication or some other form of major media. Accordingly, the preceding captioned 
photograph does not meet the plain language requirements of this regulatory criterion. 
entitled 
that includes a single sentence mentioning the petitioner. A press 
release is a written communication directed at the news media for the purpose of announcing 
information claimed as having news value rather than "published material ... in professional or 
major trade publications or other major media." The AAO cannot conclude that a press release, 
which is not the result of independent media reportage and which is sent to journalists in order to 
encourage them to develop articles on a subject, meets the plain language requirements of this 
regulatory criterion. 
The petitioner submitted additional articles in the German language (RFE response, Exhibit 15) 
that appear to discuss his achievements as an athlete in the 1980s and 1990s, but he failed to 
submit certified English language translations of the articles as required by the regulation at 
8 CF.R. § 103.2(b)(3). Any document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation that the translator has certified as complete 
and accurate, and by the translator's certification that he or she is competent to translate from the 
foreign language into English. Id. Further, none of the preceding articles appear to meet all of 
the requirements of the regulation at 8 CF.R. § 204.5(h)(3)(iii). For example, the articles were 
deficient in that they did not identify the author and they lacked evidence that they were 
published in major media. Moreover, the plain language of this regulatory criterion requires that 
the published material be "about the alien ... relating to the field for which classification is 
sought." In this matter, the "field for which classification is sought" is coaching. The AAO 
cannot conclude that the Exhibit 15 articles relate to the petitioner's work as a coach. As 
previously discussed, the statute and regulations require that the petitioner seeks to continue work 
in his area of expertise in the United States. See section 203(b)(I)(A)(ii) of the Act, 8 U.S.C 
§ 1153(b)(I)(A)(ii); 8 CF.R. § 204.5(h)(5). See also Lee v. I.N.5., 237 F. Supp. 2d at 914. 
Accordingly, published material about the petitioner's accomplishments as a competitive fencer 
Page 10 
does not meet the elements of this regulatory criterion for purposes of establishing his extraordinary 
ability as a coach. 
In light of the above, the petitIOner has not established that he meets the plain language 
requirements of this regulatory criterion. 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The petitioner submitted letters of support from fencing experts discussing his accomplishments 
as a coach. 
states: 
to 
and to the 
European Team n 2001. In late 1990's and early 2000's, I had an 
exceptional opportunity to observe and admire [the petitioner's] coaching abilities at" 
in Germany, where the U.S. National Women's Sabre Team used to hold its European 
training camps between World Cup Tournaments. 
* * * 
A few years before the 2008 Beijing Olympic Games, I began searching for an Assistant 
Coach to ensure that the OFA's top fencers were ready to defend their medals and take 
new ones at the upcoming Olympics. 
* * * 
Although [the petitioner] was my first choice, it was by no means certain whether he 
would be willing to leave where he used to be 
and depart Germany in order to assist me in training American fencers at 
- * * * 
Since [the petitioner] joined the medal count has increased by 
eleven (11) new medals, rising from 37 to a total of 48 medals in only three years. 
Working as a coaching team with [the petitioner] allows both of us to bring out the best 
in our fencers because our respective fencing styles are different but complementary to 
one another. The fencers greatly benefit from being exposed to this diversification in 
Page 11 
training sess~able to adapt and use various techniques when fighting their 
opponents. ~ with whom [the petitioner] worked particularly closely in 
preparation for her national and international competitions, has increased her personal 
medal count from eight (8) to fourteen (14) since [the petitioner] joined the ••• 
states: 
I feel that my work with [the petitioner] in the two years leading up to the Olympic 
games in Beijing was crucial to my performance and I do not believe I could have made 
it to the medal stands without his help, support and kindness. 
[The petitioner] and I had private lessons, worked out together and he coached me during 
practice bouts. 
Director of Programs,-"tates: 
Very few Olympic athletes have the ability to translate what they have learned as 
exceptional athletes into being a high caliber, elite coach. [The petitioner] has done that 
in Germany where he devel d four outstan German fencers to the level where they 
could win dent at 
the to a 
become the_ 
[The petitioner] was hired by_ specifically to help the club train and prepare 
our top fencers for ~mpics. In just two short years of working closely as a 
personal coach to _ . .. he became a crucial reason for ••••••• 
medal performance. . .. In addition to _ he also provided tactical training 
advice and assistance to ... [The petitioner] not only had 
these two stellar athletes he assisted but also has coached other fencers of note. 
made it in two intensive years of work with to the top 3 
ran kings in the U.S. and was able to compete at the ·onships. 
. also played an active and critical role in . _ 
took 
states: 
During my business trips to the 
had the opportunity to observe [the petitioner] as a fencing coach, both in 
through accomplishments of his students. Among them are 
many other top 
World Cups series. 
a member of the German natlO team, 
finalists of the biggest tournaments in the Fencing 
fencing team has several outstanding athletes who 
Page 12 
] in Oregon. Among them . 
states: 
I have known [the petitioner] for 5 years. I first met him in 2004 when I attended a 
training camp at the Olympic Training Center in Tauberbischoffsheim, Germany. As a 
member of the U.S. national fencing team I have trained often at this very well equipped 
fencing center as my teammates and I traveled throughout Europe between our World 
Cup competitions. I also spent time in Tauberbischoffsheim for my training preceding the 
•••• !!I!!!!I!!!!I!!!!I!!I!!!!I!!iI!!I!!!!I!!!!I!!!!I!!!!I!!!!I!!~~~~~1 At this time the ti 0 n e r] 
was the and so I 
worked 
Two years ago, [the petitioner] came to Portland, Oregon as he was hired to be an 
Assistant Fencing Coach at my club, the Since that time and 
during my training and leading up to the Beijing Olympic Games, I worked closely 5 
days a week with [the petitioner] and my other personal coach to prepare for the Olympic 
Games. I attribute much of my success to his expertise, coaching, guidance, and support 
he provided me during this period. 
states that the 
expenence 
skilled person at the international level in his profession." 
states: ·'[The petitioner] possesses extensive training as a coach with 
us mternational experience." 
varsity fencing team, states: 
[The petitioner] is one of the most renown [sic] fencing coaches on the international 
fencing scene today. His own fencing record, his experience as a fencing coach to the 
and most of all his particular teaching technique make him one of 
the foremost masters of our sport in the world today .... [The petitioner's] international 
achievements include training of winners and medalists of Olympic Games, World, and 
European Championships. In spite of his relatively young age he is instrumental in 
teaching coaching cadres for one of the most prominent fencing 
powers in the World. 
women's and men's 
varsity fencing team, states: 
since 
many of [the petitioner's] students have achieve 
championship titles. Among these students, [the petitioner] coached 
Page 13 
[The petitioner] retired from active fencing 
become a saber fencing coach, focus his time on other athletes. 
accumulated ten years of coaching experience at the 
and a number of . ssive results throu his students. Most 
.M.",,,"u''-'lation, states: 
ner] worked as a trainer for the youth 
where he coached the sabre fencer 
_11IIIIIIII11IIIIIIII11IIIIIIII11IIIIIIII11IIIIIIII11IIIIIIII11 th 
In the meantime he also acted on behalf of the 
discipline trainer for the men's sabre juniors. 
deciding to 
To date, his has 
as a 
states: 
finished his active career, [the petitioner] worked as a coach for the_ 
and passed his large experience and knowledge on to young 
the cadre athletes who were coached him. Thus he led the 
and 
[The petitioner] worked as a trainer at the and passed 
on his broad experience to the young fencers, as we 
Page 14 
In support of the above references' statements, the petitioner submitted documentary evidence of 
the medals, competitive results, and rankings of the fencers coached by him. The AAO finds 
that the preceding documentation is sufficient to demonstrate that the petitioner meets this 
regulatory criterion as a coach. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The preceding letters of support and further evidence in the record (such as the medal counts for 
the petitioner's fencers) demonstrate that he has performed in a critical coaching role for 
distinguished organizations such as the _ and the 
Accordingly, the AAO affirms the director's finding that the petitioner meets the plain language 
requirements of this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner initially submitted an October 30, 2006 "Letter of Agreement" executed by him 
and_stating: _will pay you a minimum yearly wage of $35,000 payable on a monthly 
basis at the end of each calendar month. _ may also pay you additional bonuses based on 
your performance in the teaching of your classes, camps, and individual lessons and other_ 
programs." 
In response to the director's RFE, the petitioner submitted a September I, 2009 "Letter of 
Agreement stating: '_ will pay you a minimum yearly wage of 
$60,000 at the end of each calendar month. _may also pay you 
additional bonuses based on your performance in the teaching of your classes, camps, and 
individual lessons and other" programs." The September 1, 2009 "Letter of Agreement" 
was executed subsequent to the petition's February 19, 2009 filing date. Eligibility must be 
established at the time of filing. 8 C.F.R. §§ 103.2(b )(1), (12); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Reg'l Comm'r 1971). Accordingly, the AAO will not consider the September 1, 2009 
"Letter of Agreement" in this proceeding. 
The petitioner's response included his 2009 Form 1099-MISC, Miscellaneous Income, and his 
2009 Form W-2, Wage and Tax Statement, from the OFA reflecting that he received total 
compensation of $87,465 in 2009. The petitioner submitted additional Forms 1099-MISC 
showing that the_ paid him $70,929.52 in 2007 and $69,910 in 2008. As evidence that the 
petitioner earns "a high salary or other significantly high remuneration for services, in relation to 
others in the field," the petitioner submitted Economic Research Institute salary survey results for 
the position of "Coach Athletic" and the "Job Group/Class" of "Fitness Trainers and Aerobics 
Instructors" in the ' area reflecting a "2010 Trended Mean" 
(emphasis added) salary reliance on "mean" salar data relating to 
"Fitness Trainers and Aerobics Instructors" is not a proper 
basis for comparison for multiple reasons. First, the petitioner must submit evidence showing 
Page 15 
that he has earned a "high" salary or other "significantly high" remuneration in relation to others in 
the field, not simply a that is above in the field. Second, the petitioner's reliance 
on salary data limited to is not an appropriate basis for 
comparison in demonstrating that his earnings constitute a high salary or other significantly high 
remuneration in relation to coaches in the field working outside of those three localities. Third, the 
petitioner has not established that the preceding salary survey results for "Fitness Trainers and 
Aerobics Instructors" are relevant to his occupation of fencing coach. The record is void of 
earnings data showing that the petitioner has received a "high salary" or "significantly high 
remuneration" in comparison with those performing similar work. See Matter of 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); Mllni v. INS, 891 F. Supp. 440, 444-45 (N. 
D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL defensemen). In 
the present matter, the documentary 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 other 
fencing coaches. Accordingly, the petitioner has not established that he meets the plain language 
requirements of this regulatory criterion. 
B. Summary 
The petitioner has failed to demonstrate that he satisfies the antecedent regulatory requirement of 
three types of evidence. 
C. Comparable Evidence Under 8 C.F.R. § 204.5(h)(4) 
On appeal, counsel states: "To the extent that any of the letters, articles, medal counts, or other 
evidence do not satisfy the enumerated criteria for this unique occupation, it constitutes other 
comparable evidence of extraordinary ability under 8 c.F.R. § 204.5(h)(4)." The regulation at 
8 c.F.R. § 204.5(h)( 4) allows for the submission of "comparable evidence" only if the ten 
categories of evidence "do not readily apply to the beneficiary's occupation." Thus, it is the 
petitioner's burden to demonstrate why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are not 
readily applicable to the alien's occupation and how the evidence submitted is "comparable" to the 
specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). The regulatory language 
precludes the consideration of comparable evidence in this case, as there is no indication that 
eligibility for visa preference in the petitioner's occupation cannot be established by the ten 
criteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). Where an alien is simply unable to 
satisfy the plain language requirements of at least three categories of evidence at 8 C.F.R. 
§ 204.5(h)(3), the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of 
comparable evidence. Counsel's appellate brief does not explain why the regulatory criteria are 
not readily applicable to the petitioner's occupation. For instance, counsel does not explain why the 
published material, judging, and high salary categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(iii), 
(iv), and (ix) are not readily applicable to coaching. Moreover, counsel fails to explain how the 
letters of support, articles, medal counts, and other unspecified evidence are "comparable" to any 
specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). The AAO notes that the 
letters of support were considered under the criteria at 8 C.F.R. §§ 204.5(h)(3)(v) and (viii), the 
Page 16 
published articles were considered under the criterion at 8 C.P.R. § 204.5(h)(3)(iii), and the medal 
counts for the petitioner's fencers were considered under the under the criteria at 8 c.P.R. 
§§ 204.5(h)(3)(v) and (viii). 
The opinions of experts in the field are not without weight and have been considered in the 
AAO's discussion of the categories of evidence at 8 c.P.R. §§ 204.5(h)(3)(v) and (viii). USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See 
Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence 
as to "fact"). Thus, the content of the experts' statements and how they became aware of the 
petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than 
preexisting, independent evidence that one would expect of a fencing coach who has sustained 
national or international acclaim at the very top of his field. The nonexistence of required 
evidence creates a presumption of ineligibility. 8 C.P.R. § 103.2(b )(2)(i). The classification sought 
requires "extensive documentation" of sustained national or international acclaim. See section 
203(b)(I)(A)(i) of the Act, 8 U.S.c. § 1153(b)(I)(A)(i), and 8 C.P.R. § 204.5(h)(3). The 
commentary for the proposed regulations implementing the statute provide that the "intent of 
Congress that a very high standard be set for aliens of extraordinary ability is reflected in this 
regulation by requiring the petitioner to present more extensive documentation than that required" 
for lesser classifications. 56 Ped. Reg. 30703, 30704 (July 5, 1991). 
D. Prior 0-1 Nonimmigrant Visa Status 
The petitioner submitted documentation indicating that he is the beneficiary of an approved 0-1 
nonimmigrant visa petition for an alien of extraordinary. This prior approval does not preclude 
USCIS from denying an immigrant visa petition based on a different, if similarly phrased standard. 
Each case must be decided on a case-by-case basis upon review of the evidence of record. It must 
be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 P. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. of Justice, 48 P. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 P. Supp. 1103 (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 P. Supp. 2d at 29-30; see also 
Texas A&M Univ. v. Upchurch, 99 Ped. Appx. 556 (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.g., Matter of 
Church Scientology International, 19I&N Dec. 593, 597 (Comm'r 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. INS, No. 98-2855, 
2000 WL 282785, *1, *3 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). 
III. CONCLUSION 
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 the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, 
in accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "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)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination.) Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three categories of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1 )(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. 
~ The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2(04). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2(03); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1(1)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BrA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).