dismissed EB-1A Case: Athletics

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. 3000 
Washington, DC 20529-2090 
identifying data deleted to 
prevent clemi y unw~van ted 
invasion of personal privacy 
PUBLIC copy 
U. S. Citizenship 
and Immigration 
Services 
e: NEBRASKA SERVICE CENTER 
 DateFEB 1 2 2009 
LIN 07 032 53 155 
Petition: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(A) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i). 
J,/d (klji: )'/f<., 
{' John F. Grissom, Acting Chief 
c' Administrative ~~~eal;~ffice 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extraordinary ability. Specifically, the director concluded that 
the petitioner meets only two of the regulatory criteria, of which an alien must meet at least three to be 
eligible. 
On appeal, counsel's sole assertion is that the petitioner meets the membership criterion set forth at 
8 C.F.R. 8 204.5@)(3)(ii). For the reasons discussed below, counsel is not persuasive that evidence 
already found to be sufficient to directly meet the leading role criterion set forth at 8 C.F.R. 
8 204.50(3)(viii) must also be considered as comparable evidence to meet the membership criterion, a 
completely separate criterion. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics whch 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 56 Fed. Reg. 60897, 
60898-9 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top 
of the field of endeavor. 
 8 C.F.R. 5 204.5@)(2). 
 The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. 5 204.5@)(3). The relevant 
Page 3 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
he has sustained national or international acclaim at the very top level. 
According to the petition, this petition seeks to classify the petitioner as an alien with extraordinary 
ability as a track and field coach. The petitioner was working as an assistant coach for the University of 
Alabama at the time. The regulation at 8 C.F.R. 8 204.5(h)(3) indicates that an alien can establish 
sustained national or international acclaim through evidence of a one-time achievement (that is, a major, 
international recognized award). Barring the alien's receipt of such an award, the regulation outlines 
ten criteria, at least three of which must be satisfied for an alien to establish the sustained acclaim 
necessary to qualify as an alien of extraordinary ability. The regulation at 8 C.F.R. 5 204.50(4) 
provides that, where the regulatory criteria are not readily applicable, a petitioner may submit 
comparable evidence to meet those criteria. 
The record contains evidence that the petitioner coached Olympic athletes for the Bahamas who won 
Olympic medals under his tutelage. While the record contains several assertions that the petitioner 
served as head coach for at least some Olympic teams, the only official Bahamas team roster in the 
record is for the 2000 Olympic Team. The roster lists the petitioner only as an assistant coach. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591 -92 (BIA 1988). As the record does not resolve the inconsistency regarding 
whether the petitioner was a head coach or assistant coach for the 2000 team, the assertions that he 
served as a head coach for other national teams have less credibility. 
As the criterion set forth at 8 C.F.R. 5 204.5(h)(3)(i), the alien's receipt of lesser nationally or 
internationally recognized prizes or awards, does not readily apply to coaches, the director accepted that 
the Olympic medals won by the petitioner's athletes constitute sufficient comparable evidence to meet 
this criterion. The director Mer found that the petitioner had performed in a leading or critical role 
for organizations or establishments that have a distinguished reputation pursuant to 8 C.F.R. 
8 204.5@)(3)(viii). 
On appeal, counsel cites a non-precedent decision by this office finding that serving as an Olympic 
coach could serve as comparable evidence 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 pursuant to 8 C.F.R. 
5 204.5@)(3)(ii). First, while the regulation at 8 C.F.R. 5 103.3(c) provides that AAO precedent 
decisions are binding on all USCIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. Moreover, the AAO is not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm'r. 1988). It would be absurd to 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). 
The non-precedent decision cited by counsel did not find that serving as an Olympic coach could 
meet both the leading or critical role criterion and the membership criterion. In this matter, the 
director acknowledged that serving as an Olympic coach, even at the assistant coach level, carries 
significant evidentiary weight. The director concluded that the evidence directly relates to the 
leading role criterion and that the petitioner thus meets that criterion. Upon reflection, while an 
athlete's membership on an Olympic team may warrant consideration under the membership 
criterion, we concur with the director that the most appropriate criterion for an Olympic coach (who 
is appointed for the team rather than selected as a member of the team) is the leading or critical role 
criterion. Where evidence directly relates to one of the regulatory criteria, USCIS is not obligated to 
consider that same evidence as comparable evidence to meet a second criterion. Significantly, 
section 203(b)(l)(A)(i) of the Act requires the submission of "extensive evidence." The regulation 
at 8 C.F.R. 4 204.5@)(3) requires that an alien meet at least three of the ten regulatory criteria. To 
consider the petitioner's role as a coach not only as a leading or critical role but also as comparable 
evidence of a membership would undermine the statutory and regulatory requirements for extensive 
evidence and that an alien meet at least three separate and independent criteria. 
Finally, counsel also notes on appeal that the petitioner is the beneficiary of a non-immigrant visa in a 
similar classification. While USCIS has approved at least one 0-1 nonimrnigrant visa petition filed 
on behalf of the petitioner, the prior approval does not preclude USCIS from denying an immigrant 
visa petition based on a different, if similarly phrased, standard. It must be noted that many 1-140 
immigrant petitions are denied after CIS approves prior nonimmigrant petitions. See e.g. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Because USCIS spends less time reviewing I- 129 nonimmigrant petitions than I- 140 immigrant 
petitions, some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d at 29-30; see also Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 
WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude CIS from denying an 
extension of the original visa based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See e.g. Matter of 
Church Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that USCIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 
825 F.2d at 1090. 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1 139 (5th Cir. 2001), cert. denied, 122 S.Ct. 5 1 (2001). 
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. 
Page 5 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
coach to such an extent that he may be said to have achieved sustained national or international acclaim 
or to be within the small percentage at the very top of his field. The evidence indicates that the 
petitioner shows talent as an assistant coach, but is not persuasive that the petitioner's achievements set 
him significantly above almost all others in his field. Therefore, the petitioner has not established 
eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.