dismissed EB-1A Case: Athletics

U.S. Citizenship 
and Immigration 
Services 
In Re: 12589199 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 28, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a long-distance runner, seeks classification as an alien of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S .C. § l 153(b)(l)(A) . This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation . 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required . 
The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to aliens with extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation , 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
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." 8 C.F.R. § 204.5(h)(2) . The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate 
international recognition of his or her achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If that petitioner does not submit this evidence, then 
he or she must provide sufficient qualifying documentation that meets at least three of the ten criteria 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, published material in certain 
media, and scholarly articles). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit 
comparable material ifhe or she is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)­
(x) do not readily apply to the individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner has competed in various marathons and other long-distance races since 2013, winning first 
place in the 20131 I Marathon; the 20141 !Marathon; and the 20181 I Marathon, 
among others. The Petitioner is in the United States in P-1 nonimmigrant status. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner claims to have met three criteria, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (iii), Published material about the alien in professional or major media; and 
• (v), Original contributions of major significance. 
The Petitioner also asserted that "expert opinion letters" constituted comparable evidence under 8 C.F.R. 
§ 204.5(h)( 4). The Director disagreed, and the Petitioner does not pursue the claim on appeal. Therefore, 
we consider the argument to be abandoned. 1 The letters will receive appropriate consideration below. 
The Director concluded that the Petitioner met one evidentiary criterion, relating to prizes and awards. 
On appeal, the Petitioner asserts that he also meets the other two claimed evidentiary criteria. 
1 See Matter of R-A-M-, 25 T&N Dec. 657, 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. U.S. Att:v Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to 
raise them on appeal to the AAO). 
2 
We have reviewed all of the evidence in the record, and, as explained below, we conclude that it does 
not show that the Petitioner satisfies the requirements of at least three criteria. 
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. 8 C.F.R. § 204.5(h)(3)(iii) 
The Petitioner received local newspaper coverage for winning races in Bermuda and in ~I--~ 
Pennsylvania. Some of the articles simply list the Petitioner among several other runners, but others 
include biographical information and otherwise focus on the Petitioner in particular. The article from 
Bermuda's Royal Gazette includes six sentences about the Petitioner and names him in a photograph 
caption. The Petitioner provides circulation statistics for some of these papers, showing that their websites 
receive between 1400 and 2900 unique visitors per day, but the Petitioner provides no basis for 
comparison to show that these figures qualify the publications as major media in their respective 
countries. 
For the reasons discussed above, the Petitioner has not established his eligibility for this criterion. 
Evidence of the alien's original scient#fic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the.field. 8 C.F.R. § 204.5(h)(3)(v) 
The Petitioner submits four letters from individuals involved with various running organizations. An 
official of I I Road Runners states that the Petitioner "has represented I I 
admirably against world-class competition in our events," "and his accomplishments as an athlete 
inspire many." Another official of that same organization states that the Petitioner's "Qassion for 
running is outdone only by [his] talent." The president of the I I Runners' Club inl I 
c=]details the Petitioner's performance in various competitions. None of the writers explains how 
winning or placing highly in a given race amounts to an original contribution of major significance in 
the field. 
The director of the Safety and Health Foundation states that the Petitioner's "accomplishments and 
athletic contributions" consist rimaril of winning various races. For example, the Petitioner was the 
youngest-ever winner of the1r-------,......JMarathon at age 23, with "the second fastest time in the history 
of the race"; and he won the~_~HalfMarathon with a record-breaking time of 1:05:04. 
Winning nationally or internationally significant races satisfies a separate criterion relating to prizes 
and awards. The existence of two separate criteria (one for prizes, one for contributions) demonstrates 
that neither implies the other. An athlete may, of course, win a prize or award as a result of an athletic 
contribution of major significance, but the burden is on the Petitioner to show that is the case. Here, 
the record does not contain evidence demonstrating that the Petitioner's racing wins have impacted 
the field of running in a way that could be characterized as having major significance. 
Neither the Petitioner nor the individuals writing on his behalf explain why, for instance, being the 
youngest winner ofthel I Marathon is an original athletic contribution of major significance 
3 
in the field. The Petitioner has not established how his record time at thel!Half Marathon 
compares to half marathons overall, or that his record is significant beyondc==J' 
The Petitioner states that "a long line of Federal court decisions" established that: "In athletics, evidence 
of the beneficiary's contributions may take the form of selection for an all-star team, selection to play on 
a national team in an international competition, rankings, or performance statistics." In the cited cases, 2 
the Court did not specifically refer to team membership, rankings, or performance statistics as athletic 
contributions of major significance. Rather, the Court referred to such achievements more generally 
as evidence of extraordinary ability. The cited cases predate the Kazarian decision and its two-step 
analysis which separates the ten criteria at 8 C.F.R. § 204.5(h)(3) from the issue of sustained acclaim. 
Therefore, the Petitioner has not demonstrated that he has made an original contribution of major 
significance to the field. 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a conclusion that the 
Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long 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. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of his work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section203(b)(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner is one of the small 
percentage who has risen to the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act 
and 8 C.F.R. § 204.5(h)(2). The Petitioner lists dozens of races in which he has competed, and 
indicates that he won 11 of them. He has not provided a basis for comparison to show how he ranks 
among long-distance runners overall, rather than among only those who participated in the same races 
as he did. The media coverage documented in the record is limited to local newspaper coverage of 
area races, which does not indicate wider recognition or exposure. The evidence in the record shows 
some degree of success, but success is not the same as sustained national or international acclaim. 
2 Grimson v. INS, 934 F. Supp. 965 (N.D. Ill. 1996); Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995); and Racine v. INS, 
19995 WL 153319 (N.D. Ill. 1995). As district comt decisions, one of them unpublished, the cited decisions are not binding 
authority in this proceeding. We are not bound to follow the published decision of a U.S. district court in matters arising 
within the same district. Matter of K-S-, 20 l&N Dec. 715 (BIA 1993). Although the reasoning underlying a district 
judge's decision will be given due consideration when it is properly before us, the analysis does not have to be followed 
as a matter oflaw. Id. at 719. 
4 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
5