dismissed EB-1A Case: Athletics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 30, 2023 In Re: 28580526 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a swimmer and multisport athlete, seeks classification as an individual of extraordinary 
ability in athletics. Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U .S.C. 
§ 1153(b)(l)(A). This first preference classification makes immigrant visas available to those who 
can demonstrate their extraordinary ability through sustained national or international acclaim and 
whose achievements have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met three of the ten initial evidentiary criteria required for eligibility. The 
matter is now before us on appeal. 8 C.F.R. § 103 .3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
An individual is eligible for the extraordinary ability classification if they have extraordinary ability 
in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim and their achievements have been recognized in the field through 
extensive documentation; they seek to enter the United States to continue work in the area of 
extraordinary ability; and their entry into the United States will substantially benefit prospectively the 
United States. Section 203(b )(1 )(A) of the Act. 
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 a one­
time achievement (that is, a major, internationally recognized award). If that petitioner does not 
submit this evidence, then they must provide documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material 
in certain media, and scholarly articles). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner 
to submit comparable material if they are 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 evidentiary 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). 
The sole issue on appeal is whether the Petitioner meets at least three of the ten initial evidentiary 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 1 In the underlying case, the Petitioner stated that he meets the 
following criteria: 
• (i) Receipt of lesser nationally or internationally recognized prizes or awards; 
• (ii) Membership in associations requiring outstanding achievements of their members; 
• (iii) Published material about the noncitizen in professional or major trade publications or other 
major media; and 
• (v) Original contributions of major significance in the field. 
The Director concluded that the Petitioner meets the criteria for lesser awards and published material, 2 
but not those for membership in associations or original contributions. Since the Petitioner only met 
two of the required three initial evidentiary criteria, the Director denied the petition. 
On appeal, the Petitioner submits a letter3 stating that his Master of Sports of Ukraine certificate was 
incorrectly considered by the Director as a prize or award under 8 C.F.R. § 204.5(h)(3)(i) rather than 
as proof of his membership in associations requiring outstanding achievements of their members under 
8 C.F.R. § 204.5(h)(3)(ii). 4 According to the appeal statement, this certificate "serves as a document 
showing the proof of association with the Ukrainian Swimming Federation (USF), National Olympic 
Committee of Ukraine (NOC), and Ministry of Youth and Sports of Ukraine ... " and as "proof of 
outstanding achievements as a member of the association in the field for which classification is 
sought." 
The criterion at 8 C.F.R. § 204.5(h)(3)(ii) requires a showing that the Petitioner is a member of an 
association, that this association is in his field of expertise, that the association requires outstanding 
achievements of its members, and that these achievements are judged by recognized national or 
international experts in their disciplines or fields. Contrary to the Petitioner's statement on appeal, the 
1 The Petitioner does not claim, and the evidence does not indicate, that he has a one-time achievement under 8 C.F.R. 
§ 204.5(h)(3). 
2 The record supports a finding that the Petitioner meets these two criteria. 
3 The Petitioner stated on Form T-129B, Notice of Appeal or Motion, that he would submit a brief and/or additional 
evidence to the AAO within 30 calendar days of filing his appeal. To date, we have not received a brief or additional 
evidence, and so will base our decision on the provided appeal statement and the underlying record of proceedings. 
4 On appeal, the Petitioner does not contest the Director's finding regarding the criterion at 8 C.F.R. § 204.5(h)(3)(v) for 
original contributions of major significance to his field. As such, we consider the issue to be waived. See, e.g.. Matter of 
O-R-E-, 28 l&N Dec. 330, 336 n.5 (BIA 2021) (citing Matter ofR-A-M, 25 l&N Dec. 657, 658 n.2 (BIA 2012) (finding 
that when a filing party fails to appeal an issue addressed in an adverse decision, that issue is waived)). 
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regulation does not require him to have outstanding achievements while being a member of an 
association in his field. Instead, it requires documentation showing that the association in question 
required outstanding achievements for him to become a member of it in the first place. The Petitioner 
has not made such a showing in this case. 
The record includes extensive documentation regarding the Ukrainian Unified Sports Classification 
system, which awards various titles and degrees based on differing levels of athletic achievement. For 
Olympic sports such as swimming, the highest-ranked titles in this system are, in descending order, 
Honored Master of Sports, which "is awarded to athletes of the highest category," Master of Sports 
International Class, and Master of Sports of Ukraine, which is the Petitioner's title. The latter two 
titles are awarded to athletes "for their compliance with qualifying norms," which vary by sport. In 
the sport of swimming, the Master of Sports International Class is awarded for placing highly in 
international competitions such as the Olympics and world championships, while the Master of Sports 
of Ukraine is awarded for placing highly in Ukrainian national competitions at the junior or senior 
level. Such competitions must be adjudicated by judges "of no lower than the first category." 
As noted by the Director, there is no indication in the record that the title of Master of Sports of Ukraine 
constitutes membership in an association. While the Ministry of Youth and Sports awards this title, 
the documentation provided does not state that this title grants athletes membership in the ministry. 
Similarly, the documentation does not state that a Master of Sports of Ukraine title constitutes 
membership in the Ukrainian NOC or USF. Instead, it states that this is an honorary title awarded by 
the Ukrainian government for certain levels of athletic achievement. 
Furthermore, even if the Master of Sports of Ukraine title grants membership in these organizations, 
which the record does not support, the Petitioner still has not established eligibility for this criterion. 
Because the record does not include documentation of the membership requirements of the relevant 
organizations, it does not establish that outstanding achievements in the field of swimming are a 
prerequisite for entry. For the above reasons, the Petitioner has not established that he qualifies for 
the criterion at 8 C.F.R. § 204.5(h)(3)(ii). 
Because 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 at 8 C.F.R. § 204.5(h)(3)(i)-(x), we need not 
provide the type of final merits determination described in Kazarian, 596 F.3d at 1119-20. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision). Nevertheless, we advise that we 
have reviewed the record in the aggregate, determining 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 are at the very top 
of their respective fields. U.S. Citizenship and Immigration Services has long held that even athletes 
performing at the major league level do not automatically meet the "extraordinary ability" standard. 
See Matter ofPrice, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). Here, the Petitioner has submitted 
documentation of his success in Ukrainian national swimming competitions, much of it at the junior 
level, approximately ten years prior to when the visa petition was filed. Since then, the Petitioner has 
competed at the collegiate level in the United States, qualifying for the 2014 National Collegiate 
Athletic Association (NCAA) Division II championships and earning NCAA All-American honors in 
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2014 by finishin] in 15th place i~ thel !individual medley. He also qualified for the 2017 
Championship,) where he took 12th place. However, the vast majority of his press 
coverage concerns his long-distance swim in thel lin 2011, and he has not otherwise 
established that his achievements have translated to a level of recognition that constitutes sustained 
national or international acclaim or demonstrates a "career of acclaimed work in the field" as 
contemplated by Congress for this visa classification. H.R. Rep. No. 101-723, pt. 1, at 59 (1990), 
reprinted in 1990 U.S.C.C.A.N. 6710, 6739; section 203(b)(l)(A) of the Act. Furthermore, the record 
does not otherwise demonstrate that the Petitioner is one of the small percentage who have risen to the 
very top of his field of endeavor. Section 203(b )(1 )(A) of the Act; 8 C.F.R. § 204.5(h)(2). 
The Petitioner has not established his eligibility as an individual of extraordinary ability. The petition 
will remain denied. 
ORDER: The appeal is dismissed. 
5 Aquathlon is a multisport competition consisting of swimming and running segments. World Triathlon, Aquathlon, 
https ://www.triathlon.org/mul tisports/ aquathlon. 
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