dismissed EB-1A Case: Athletics

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBtlCCOPY 
DATE: MAY 2 4 2012 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. I)cpartmcnt or Homeland Sccurit), 
U.S, Cilil:en~hip and Immigration Services 
Adrnini~tralive Appl'3.1~ Office (AAO) 
20 Massachusetts Ave" N.\\'" MS 2090 
Washiu\lIO!l. DC 20:"2()·20()O 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
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)(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 casco Please 
be advised that any further inquiry that you might have concerning your case must he made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you havc additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
with the field office or service center that originally decided your case by filing a Form 1-2908, Notice of 
Appeal or Motion, with a fcc of $630. The specific requirements for filing such a motion can be found at 
8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Plcase he aware that 8 C.F.R. 
§ 103.5(a)(I)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
~.kkYY°tl( 
.~,(.~ 
CA~ . 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: Thc employment-based immigrant visa pelitlOn was denied by the Director, 
Texas Service Center, and 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)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(I)(A) as 
a basketball player. 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 CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.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 CF.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 states that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 CF.R. § 204.5(h)(3). More specifically, counsel asserts that the petitioner meets the 
regulatory categories of evidence at 8 CF.R. §§ 204.5(h)(3)(iii), (viii), and (ix) and that the 
petitioner submitted letters of support from experts in the field "demonstrating his extraordinary 
abilities." For the reasons discussed below, the AAO will 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 
Page 3 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States, 
U.S. Citizenship and Immigration Services (USerS) 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. 723 101" 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. ld.; 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. USc/S, 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. 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 determination." ld. 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)." ld. 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 
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. ld. 
[ Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forlh in the regulations al8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.S(h)(3)(vi). 
-Page 4 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
At the time of filing, in response to the director's request for evidence (RFE), and on appeal the 
petitioner did not specifically claim eligibility for this regulatory criterion. The director found 
that the petitioner had failed to demonstrate his receipt of nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. The AAO notes that petitioner's 
appellate submission includes a March 3, 2011 article posted at www.krepsinis.net entitled "[The 
petitioner] Kuwait became champion" and photographs of the petitioner holding a team trophy 
and an individual medal from a basketball tournament. The five-sentence article contains 
multiple grammatical and punctuation errors and its author was not identified. Regardless, the 
article and award post-date the petition's filing date. A petitioner must establish eligibility at the 
time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg' I 
Comm'r 1971). Accordingly. the AAO will not consider awards received by the petitioner aftcr 
May 28, 2010 in this proceeding. 
On appeal, counsel states: 'The Service considered the awards separately although the 
Petitioner's sale purpose for submission [sic] evidence of his individual awards was to 
demonstrate his leading role in the establishments and events having a distinguished reputation." 
The AAO, therefore, considers the issue of the petitioner's eligibility for the regulatory criterion 
at 8 C.F.R. § 204.5(h)(3)(i) to be abandoned. Sepulveda v. u.s. Att'y Gen., 401 F.3d 1226, 1228 
n. 2 (11th Cir. 2(05); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at * 1, *9 
(E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he failed to 
raise them on appeal to the AAO). Regardless, the petitioner did not submit evidence of the 
national or international recognition of his particular awards, such as national or widespread local 
coverage of his awards in sports or general media. The plain language of the regulation at 8 C.F.R. 
§ 204.S(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 case, there is no documentary evidence demonstrating that the petitioner's awards were 
recognized beyond the presenting organizations and therefore commensurate with nationally or 
internationally recognized prizes or awards for excellence in the field. Accordingly, the 
petitioner has not established that he meets 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 
.\'(Jl/Rht. Such evidence shall include the title, date, and author of the material, and 
allY necessary translation. 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
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.' 
Wikipedia, an online encyclopedia. With regard to information 
are no assurances about the reliability of the content from this open, user­
edited internet site: See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (Sth Cir. 200S). 
Accordingly, the AAO will not assign weight to information for which Wikipedia is the source. 
Thus, the petitioner has failed to submit evidence establishing that Komsomolskaya Pravda 
qualifies as a form of major media. 
The petitioner submitted an October 28, 2005 article posted on the website of Russian 
Information Agency (RIA) Novosti at www.rian.ru. but the title of the article and some of the 
article's content was omitted from the submitted English language translation. Pursuant to the 
regulation at 8 C.F.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. Further, the author of the material was not identified as 
required by the plain language of the regulation at S C.F.R. § 204.5(h)(3)(iii). Moreover, the 
article includes only a single sentence about the petitioner and is primarily about a basketball 
game between ·'Dinamo" of Moscow and "Spartak - Primorye" of Vladivostok. The plain 
:1 Even with nationally·circuiatcd 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. 
~ Online content from Wikipeclia is subject to the following general disclaimer: 
WIKIPEDIA Y!AKES NO GUARANTEE OF VALIDITY. Wikipedia tS an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a 
common resource of human knowledge. The structure of the project allows anyone with 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 heen changed, vandalized or altered by someone whose opinion docs not 
correspond with the state of knowledge in the relevant fields. 
See http://en.\vikipedia.mg/wiki/\Viki[?qi.i.;.\~Deneral disclaimer, accessed on May 17,2012, copy incorporated into 
the record of proceeding. 
--Page 6 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii), however, requires that the published 
material be "about the alien." See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-S20-ECR-RJJ at 
*1,*7 (D. Nev. Sept. 8, 200S) (upholding a finding that articles about a show are not about the 
actor). The petitioner also submitted information about RIA Novosti from Wikipedia, an online 
encyclopedia. As previously discussed, there are no assurances about the reliability of the content 
from Wikipedia's, user-edited internet site. See Lamilem Badasa v. Michael Mukasey, 540 F.3d 
at 909. Thus, the petitioner has failed to submit evidence establishing that RIA Novosti's website 
qualifies as a form of major media. 
11l'llCl.ldl was not lUCllll.llGU 
§ 204.5(h)(3)(iii). Further, no evidence 
www.unillans.ru qualifies as a form of major media. 
language of the regulation at 8 C.F.R. 
(such as readership data) showing that 
The petitioner submitted a December 20, 2005 article entitled 
After the Match" posted at www.ural-great.ru. but the English language translation 
accompanying the article was not a full and complete translation as required by the regulation at 
8 C.F.R. § 103.2(b)(3). Accordingly, the petitioner has not established that the article is mostly 
about him rather than the game in which he played. Further, there is no evidence showing that 
www.ural-great.ru qualifies as a form of major media. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
.T.hiiie •••• s.ubmitted information printed that the_ 
petitioner also submitted 
a May 18, 2010 letter stating: "The league was comprised of 11 teams and since my position is 
forward, my contribution to the success of Silute was recognized as significant." The petitioner has 
not established that placing third in a youth league consisting of eleven teams is indicative of a 
distinguished reputation in the sport of basketball. Further, the petitioner failed to submit 
documentary evidence to support his claim that his contribution to the success of the team '·was 
recognized as significant" or otherwise indicative of a leading or critical role. 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)). 
The petitioner submitted his diploma from •••••••••••••• 
2010 letter states: 
Page 7 
The submitted information states: 
The Distinguished Athlete Award, unlike others of its type, need not recognize that naturally 
talented high school athlete who is in line for MVP [Most Valuable Player] honors or an 
athletic scholarship to college. Although selection of the award recipient is left completely 
to the school's athletic director, the Marine Corps has designed the Distinguished Athlete 
Award to be given to young persons ... who have perhaps "played over their head" or are 
the athletes with a "never-say-die" attitude. 
~chool student award reflects institutional recognition by the 
___ s athletic director rather than a nationally recognized award for 
basketball. Further, the petitioner failed to submit documentary evidence to support his claim that 
his high school's basketball team won that his role lor 
the team was leading or critical role. As on supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
Please note that during the time I was playing for the 
In addition to the petitioner's team's 
accomplishments as those of the the AAO notes that the ACC did not 
have 347 basketball teams playing in its league in 2000 or 2001. If USCIS fails to believe that a 
fact stated in the petition is true, USCIS may reject that fact. Section 204(b) of the Act, 8 U.S.c. 
§ l1S4(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); LIl-Ann Bakery 
Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 
7, 15 (D.D.C. 2(01). There is no evidence demonstrating that the Clemson University men's 
basketball team had a distinguished reputation during the petitioner's tenure with the team from 
1999 ~ 2003. 
The petitioner submitted evidence showing that he received the following awards while playing for 
Page H 
l. 
2. 
3. 
~~l1llg collegiate awards reflect institutional recognition by local 
supporters rather than nationally recognized awards for The 
the preceding awards demonstrate that the petitioner's role for the 
team was leading or critical during his collegiate career. The 
;U"'1Ill."'.U11 includes his "senior" year player "pro tile" from the _ 
website stating that he "has started only nine games, but averages 13 minutess [sic] per 
game over his career, including 15 per game each of the last two seasons ... did not have a start 
as a junior, but averaged 15 minutes ... shot career high 47 percent last year .. one of 
three three-year lettermen on the .. " There is no documentary evidence showing 
that the petitioner's role was leading or critical relative to his teammates who were regular starters 
and who scored more points for the team. For instance, there is no evidence showing that the 
petitioner led his team in points scored, rebounds, assists, or steals. 
The petitioner submitted documentation indicating that he played for the Lithuanian junior national 
team and European professional league basketball teams with a distinguished reputation, but there is 
no documentary evidence showing that his role was leading or critical relative to his teams' other 
starting players. For example, the petitioner failed to submit official player statistics (such as 
comprehensive team player rankings for the seasons he played) differentiating his 
accomplishments from those of his teammates. s assertion that he np"fnrrn 
"leading or critical role" for the 
••••••• s unsupported eVIUelll;e UV.Hv.,oUldllLlg 
any offensive or defensive statistical performance rankings during the full seasons he played. 
USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of 
the United States, 745 F. Supp. 9, 15 (D.C. Dis!. 1990). Further, as previously discussed, going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Mutter of Soffici, 22 I&N Dec. at 165. The petitioner has 
not established that he was responsible for the preceding teams' success or standing to a degree 
consistent with the meaning of "leading or critical role." 
Finally, with regard to the National Basketball Association 
the 18. 2010 letter states: 
s comment, s own could reasonably be 
assumed that the small percentage that has risen to the top of the field probably plays or has been 
considered for playing by the NBA. The petitioner has presented no evidence of NBA 
consideration." On appeal, counsel takes issue with the director's observation stating: 'The fact of 
playing in the European League, and not in the NBA, does not diminish the petitioner's eligibility to 
Page 9 
be qualified as a person of extraordinary abilities in any way." The AAO agrees with counsel's 
statement and further notes that participation in the NBA, or in any national or international 
professional league for that matter, is not automatic evidence of extraordinary ability. USCIS has 
long held that even athletes performing at the major league level do not automatically meet the 
statutory standards for immigrant classification as an alien of "extraordinary ability." Matter of 
Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994); 56 Fed. Reg. at 60899. The AAO also 
notes that in Matter of Racine, 1995 WL 153319 at *1, *4 (N.D. Ill. Feb. 16, 1995), the court 
stated: 
[T)he 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, Grimson v. INS, 
No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
The preceding court decisions indicate that simply playing in the NBA or in a European 
professional basketball league is not sufficient. A basketball player must differentiate his 
accomplishments from those of other professional players participating at the top level of his sport. 
In light of the above, the petitioner has not established that he meets 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. 
player contract with 
nu<",1S that the club agreed to pay 
The petitioner also submitted an unexecuted 
agreement that it agreed to pay the petitioner "a 
guaranteed net salary of -08 season. The director found that the 
petitioner had failed to offer a proper basis for comparison showing that his compensation was 
significantly high in relation to others in the field. On appeal, the petitioner submits 2010-11 
prevailing wage search results from the Foreign Labor Certification Data Center Online Wage 
Library for "Athletes and Sports Competitors" in "Atlanta - Sandy Springs - Marietta," Georgia. 
According to the submitted prevailing wage search results for "Athletes and Sports Competitors" 
in Georgia, the Level 3 (experienced) wage is _er year and the Level 4 (fully competent) 
wage is _per year. The preceding wage results, however, are not relevant to other 
professional basketball players in Greece, Russia, or the United States. Moreover, the 
petitioner's reliance on wage data limited to local "prevailing" wages in Georgia for 2010-11 is 
not an appropriate basis for comparison in demonstrating that his compensation constitutes a 
"hiRh salary or other significantly high remuneration for services, in relation to others in the field." 
[Emphasis added.] The record is void of reliable earnings data showing that the petitioner has 
earned a "high salary" or "signiticantly high remuneration" in comparison with those performing 
similar work during the same time period. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. 
Commr. 1994) (considering professional golfer's earnings versus other PGA Tour golfers); see 
--Page 10 
also Crimson v. INS, 934 F. Supp. 965,968 (N.D. Ill. 1996) (considering NHL enforcer's salary 
versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 1995) 
(comparing salary of NHL defensive player to salary of other NHL defensemen). Accordingly, 
the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
C. Comparable Evidence Under 8 C.F.R. § 204.5(h)(4) 
In response to the director's RFE, counsel indicated that the letters of support from experts in the 
field were "comparable evidence of recognition of the petitioner's achievements." The 
regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" only if 
the tcn 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 does not explain why the regulatory criteria are not readily 
applicable to the petitioner's occupation. Moreover, counsel fails to explain how the letters of 
support are "comparable" to any specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i)­
(x). 
Nevertheless, in the interest of thoroughness, the AAO will address these letters even though 
there is no evidence demonstrating that the categories of evidence at 8 C.F.R. § 204.5(h)(3) do 
not readily apply to the petitioner's occupation or that the letters of support are "comparable" to 
any specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). 
I met [the petitioner] in .... [The petitioner] was without a doubt able to 
rise to the top tier power on an international level. [The petitioner] brought 
extreme rebounding capabilities on the table, along with impressive pair of hands to work 
with down low in the post. 
* * * 
Page 11 
I think that [the petitioner] can be a rare commodity for any basketball team in the United 
States. 
nI"'ven for a Gold 
Medal Winner in the was ranked the "Number One_ 
. in the was also named Player of the Year, Guard of the Year, 
and Import Player of the Year He states: "As a professional basketball player, I 
can acclaim [sic] that [the petitioner] was a distinguished athlete. He always backed up his drives 
with high shooting percentages, so defending him was nearly impossible." 
and a former professional basketball 
player. He states: 
I ... was selected by the 
draft. 
* * * 
I was awarded 
While playing for 
My most successful 
We became the 
m 
* * * 
Working with the most prestigious 
basketball competition in Europe. 
* * '" 
[The petitioner] was an unstoppable forward and un-guardable in one-to-one situations 
due to his incredible driving and shooting skills. [The petitioner] had a real dominant 
force in the game. 
states that he played in the 
~== for _ While playing for 
of teams 
and the IS a 
mature young man who is determined, intelligent, athletic, and hard working. His team playing 
qualities are exceptional. . .. My strong professional opinion is that [the petitioner] can be 
classified as a basketball player with exceptional ability ... ,'. 
-Page 12 
I am still impressed by a h~owing basketball player [the petitioner] 
who was a member of the __ while I was coaching there. 
* * * 
It is my assertion that is a phenomenal athlete with a unique combination 
of fundamental soundness, grace, speed, artistry, improvisational ability and 
unquestionable competitive desire. 
petitioner as "an young coaches and 
teammates." _further states: "Given his set of skills, competency, and knowledge 
base, I would recommend [the petitioner] without any reservation for any basketball team." 
Assuming the petitioner's skills are unique, the classification sought was not designed merely to 
alleviate skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of 
the Department of Labor through the alien employment certification process. See Matter of New 
York State Department of Transportation, 22 J&N Dec. 215, 221 (Comm'r 1998). 
[The petitioner] distinguished himself as a hardworking and extremely talented basketball 
player. Although a basketball is a team game, [the petitioner] made a particular 
contribution to the team's play by his particular style, temperament and character that 
profoundly helped him to become one of the most talented players I have ever coached. 
His extraordinary skills are exceptionally rare and deserve to be highly honored. 
* * * 
Not only he will bring the tremendous wealth of experience and skills but is constantly 
improving himself in wisdom and maturity. 
asserts that the petitioner has "extraordinary" skills, but merely repeating 
the language statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
-Page 13 
a retired and now works as an 
international scout and recruiter for the NBA. He states: 
:~ * * 
I assert that [the petitioner] is one of the most distinguished players .... The elements of 
[the petitioner's] game which separate him from the rest of players is [sic] his 
competitive fire and desire to win. In his competitiveness, I may even compare him with 
Michael Jordan and Bill Russell. 
With regard to Michael Jordan, the NBA's internet website states: 
A brief listing of Michael Jordan's top accomplishments would include the following: 
Rookie of the Year; Five-time NBA MVP [Most Valuable Player]; Six-time NBA 
champion; Six-time NBA Finals MVP; Ten-time All-NBA First Team; Nine time NBA 
All-Defensive First Team; Defensive Player of the Year; 14-time NBA All-Star; Three­
time NBA All-Star MVP; 50th Anniversary All-Time Team; Ten scoring titles - an NBA 
record and seven consecutive matching Wilt Chamberlain; Retired with the NBA's 
highest scoring average of 30.1ppg [points per game].s 
Regarding Bill Russell, the NBA' s internet website states: 
Bill Russell was the cornerstone of the Boston Celtics' dynasty of the 1960s, an uncanny 
shotblocker who revolutionized NBA defensive concepts. A five-time NBA Most 
Valuable Player and a 12-time All-Star, the angular center amassed 21,620 career 
rebounds, an average of 22.5 per game, and led the league in rebounding four times. He 
had 51 boards in one game, 49 in two others, and a dozen consecutive seasons of 1,nOO or 
more rebounds."" 
UP""" that the petitioner's competitiveness is comparable to Michael Jordan and 
preceding information from the NBA' s internet website indicates that the 
competItIve accomplishments of Michael Jordan and Bill Russell far exceed those of the 
petitioner. The AAO further notes that the petitioner's references' credentials are also far more 
impressive than those of the petitioner. For example, many of the petitioner's references have 
played for more prestigious basketball teams (such as Olympic or NBA teams) and have received 
S See hllp:llwww.nba.com/hislory/players/jordan_bio.html accessed on May 21, 2012, copy incorporated into the 
record of proceedings. 
(, See hllp:llwww.nba.com/history/players/russell_summary.html accessed on May 21, 2012, copy incorporated into 
the record of proceedings. 
-Page 14 
far more individual and team recognition as players. 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 far above the level he has attained. In this case, the 
petitioner has not established that his achievements at the time of filing were commensurate with 
sustained national or international acclaim as a basketball player, or being among that small 
percentage at the very top of the field of endeavor. The submitted evidence is not indicative of a 
"career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723,59 
(Sept. 19, 1990). 
On appeal, counsel states: 'The Service did not accord any weight to the '" at1idavits the 
petitioner submitted. Those at1idavits, sworn by the world's top sportsmen describing the 
petitioner's achievement taking him above and beyond the requirements enumerated under INA 
§ 203(b)(I)(A)." The letters of support that have been submitted by the petitioner are not 
affidavits as they were not sworn to or affirmed by the declarant before an officer authorized to 
administer oaths or affirmations who has, having confirmed the declarant's identity, administered 
the requisite oath or affirmation. See Black's Law Dictionary 58 (9th Ed., West 2(09). Nor, in 
lieu of having been signed before an officer authorized to administer oaths or affirmations, do 
they contain the requisite statement, permitted by Federal law, that the signers, in signing the 
statements, certify the truth of the statements, under penalty of perjury. 28 U.S.c. § 1746. 
Regardless, the opinions of experts in the field are not without weight and have been considered 
above. While reference letters can provide important details about the petitioner's talent as a 
player and experience in his sport, they cannot form the cornerstone of a successful extraordinary 
ability claim. The statutory requirement that an alien have "sustained national or international 
acclaim" necessitates evidence of recognition beyond the alien's personal and professional 
contacts. 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)(3). USCIS may, in its discretion, use as advisory opinions statements submitted as 
expert testimony. See Matter oJ 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; uscrs may evaluate the content of those 
letters as to whether they support the alien's eligibility. See id. at 795-796; see also Matter oJ 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 of competitive 
achievements that one would expect of a basketball player 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.F.R. § 103.2(b)(2)(i). 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 Fed. Reg. 
30703, 30704 (J uly 5, 1991). Moreover, the letters of support, while indicating that the petitioner is 
Page 15 
a talented player, do not consistently establish his sustained national or international acclaim at the 
very top of the field. Talent alone is not the statutory standard for the classification sought. Rather, 
Congress mandated that eligibility would be established by extensive evidence of national or 
international acclaim. Section 203(b)(1)(A)(i) of the Act. Congress expressed its intent that this 
classification be limited to those who could demonstrate a one-time achievement (not claimed in 
this case) or a career of acclaimed work. H.R. Rep. No. 101-273,59 (Sept. 19, 1990). 
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, Ine. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2(03); fKEA 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 1-
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are 
simply approved in error. Q Data Consulting, fne. v. INS, 293 F. Supp. 2d at 29-30; see also 
Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556 (5th Cir. 2(04) (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 oj' 
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). 
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 (Sth Cir. 2001), cert. denied, 122 S.Ct. SI 
(2001). 
III. CONTINUING WORK IN THE AREA OF EXPERTISE IN THE UNITED STATES 
Beyond the decision of the director, 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. § l1S3(b)(I)(A)(ii); 8 C.F.R. § 204.S(h)(S). Such evidence may include letter(s) 
from prospective employer(s), evidence of prearranged commitments such as contracts, or a 
statement from the petitioner detailing plans on how he intends to continue his work in the 
United States. The petitioner's May 18,2010 letter states: "Currently, I am employed by the 
Impulse Media Group, LLC as a Basketball Coaching Instructor pursuant to an approved 0-1 visa," 
Page 16 
[Emphasis added.] However, there is no documentary evidence establishing that coaching falls with 
the petitioner's area of expertise. See Lee v. J.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002) 
(upholding a finding that competitive athletics and coaching are not within the same area of 
expertise ). 
In response to the director's RFE, the petitioner submitted a June 30, 2009 agreement executed 
by him with Omega Action Inc. stating that the company would "advise, assist and represent the 
Player in connection with the engagement of the Player as a skilled basketball player by clubs 
worldwide:' but the agreement does not specify where the petitioner would play professional 
basketball in the United States. The regulation at 8 C.F.R. § 204.5(h)(5) requires "clear 
evidence" demonstrating that the petitioner intends to continue to work in his area of expertise in 
the United States. The s response also included an undated letter from _ 
stating: 
Currently, we have been negotiating several contracts for [the petitioner] to play in the 
United States in the near future. . .. The list of basketball sport events that [the 
petitioner] plans to attend in the years of 2010 and 2011 is attached. 
We will forward the employment contract with the basketball team to you as soon as it is 
finalized. 
letter, however, did not include the attachment listing the "basketball sport 
petitioner would play in the United States in 2010 and 2011. Further, the 
record of proceedings does not include an employment contract demonstrating that the petitioner 
will play for basketball for a team in the United States. Regarding letter, 
depending on the specificity, detail, and credibility of a letter, USCIS may give the document 
more or less persuasive weight in a proceeding. The Board of Immigration Appeals (the Board) 
has held that testimony should not be disregarded simply because it is "self-serving." See, e.g., 
Matter of S-A, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). The Board also held, 
however: "We not only encourage, but require the introduction of corroborative testimonial and 
documentary evidence, where available." Jd. If testimonial evidence lacks specificity, detail, or 
credibility, there is a greater need for the petitioner to submit corroborative evidence. Matter of 
Y-B-, 21 I&N Dec. 1136 (BIA 1998). In the present matter, there is no "clear evidence" 
demonstrating that the petitioner (age thirty at the time of filing) has specific prospects for 
playing professional basketball in the United States. Accordingly, the petitioner has failed to 
submit "clear evidence" that he would continue to work in his area of expertise in the United 
States as required by the regulation at 8 C.F.R. § 204.5(h)(5). 
IV. 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. 
Page 17 
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 detennination 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 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 detennination. 7 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three categories of evidence. [d. 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. 
7 The AAO maintains de novn review of all questions of fact and law. See Soltane v. DO}. 3S1 F.3d 143. 145 (3d Cir. 
2004). 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; scction 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1. 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ IIJ3.1(1)(3)(iii) (2003); Matter of Aurelio. 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS. now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).