dismissed EB-1A Case: Athletics

(b)(6)
' U.S.·Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washinlrton. DC 20529-2090 
U.S. Citizenship 
. and Immigration 
Services 
DATE: MAR 2 8 2013 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) ofthe Immigration and Nationality Act, 8 U.S.C. § ll53(b)(l)(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 AAO inappropriately applied the law iri reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee 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. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~ndu 
(}Ron Rosenberg · . . 
~ · Acting Chief, Administrative.Appeals Office 
www .uscis.gov 
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'! ,, 
I . 
DISCUSSION: The employment-based inuiligrant visa petition was denied by the Director, 
I 
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)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A) as 
a long distance runner. The director determined that the petitioner had not established the requisite 
extraordinary ability and failed to submit extensive documentation of her 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)(l)(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 the categories of evidence at 8 C.F.R. 
§ 204.5(h)(3)(i)- (iii) and (v). Counsel also asserts that the petitioner has submitted comparable 
evidence of her extraordinary ability pursuant to the regtilation at 8 C.F.R. § 204.5(h)( 4). 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 availabie ... 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 ~bility, and 
(b)(6)Page3 
(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 101st 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 sniall percentage who have risen to the very top of the field of · 
endeavor. I d.; 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 .. t4rough 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, 580 F.3d 1030 (9th Cir. 2009) aff'd in 
part 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 "fmal merits determination." /d. 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 proCedl!re 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 th.en considered 
in the context of a fmal 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 lea8t three criteria, the proper ~onclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. /d. 
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). 
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:i . 
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. 
The petitioner submitted documentation of race results and awards that she received at various 
international running competitions. ·. The AAO affirms the director's fmding that ·the petitioner's 
evidence meets this regulatory criterion. 
Documentation 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. , 
The AAO withdraws the director's fmding that the petitioner meets all the elements of this 
regulatory criterion. The petitioner submitted e:vidence indicating that she was a member of the 
team. While the AAO affirms the director's determination that the 
petitioner's membership on the team constitutes membership in an 
association requiring 
outstanding achievements of its members, as judged by recognized national 
or international experts, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(ii) requires 
"membership in associations" in the plural. The use of the plural is consistent with the statutory 
requirement for extensive evidence. Section 203(b)(l)(A)(i) of the Act. Significantly, not all of 
the criteria at 8 C.P.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 
8 C.P.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a single 
high salary. When a regulatory criterion wishes to include the singular within the plural, it 
expressly does so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience 
must be in the form of "letter(s)." Thus, the AAO can infer that the plural in the remaining 
regulatory criteria has meaning. In a different context, federal courts have upheld US CIS' ability 
to interpret significance from whether the singular or plural is used in a regulation. See 
Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at *1, *12 (D.C. Cir. March 26, 2008); 
Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *1, *10 (D. Or. Nov. 30, 2006) 
(upholding an interpretation that the regulatory requirement for "a" bachelor's degree or "a" 
foreign equivalent degree at 8 C.P.R. § 204.5(1)(2) requires a single degree rather than a 
combination of academic credentials). As the petitioner has failed to demonstrate membership in 
more than one association requiring outstanding achievements of its members, as judged by 
recognized national or international experts, she does not rrieet the plain language requirements 
of the regulation at 8 C.P.R. § 204.5(h)(3)(ii). 
In light of the above; the petitioner has not established that she meets this regulatory criterion. 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
(b)(6)
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Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the fieldfor which classification is 
sought. Such evidence shall include the title, do.te, and author of the material, and 
any necessary translation. · 
In general, in order for published material to meet this criterion, it must be about the petitioner and, 
as stated in the regulations, be printed in professional or major trade publications or other major 
media. The director concluded that the articles submitted were either not primarily about the 
petitioner or did not appear in professional or major trade publications or other major media. 
Specifically, the director's decision stilted: 
The r~gulation at 8 C.F.R. § 204.5(h)(3)(iii) requires published material "about the alien." 
As explained in the RFE [request for evidence], the articles submitted are about particular 
events, the results of competitions, etc. The fact that the beneficiary is quoted or briefly 
mentioned in an articl~, among numerous other athletes, events, etc., does not make the 
·article an article "about the alien," as required in the regulation. It is not reasonable to 
conclude that a sentence or two, or even an entire paragraph, in an article that may identify, 
briefly mention or quote the beneficiary constitutes published material about the alien; the 
beneficiary and his/her work must be the 
subject of the article itself. 
On appeal, counsel states: "It is true that the articles discuss events and other athletes as well but 
there is nothing in the regulations that requires the published material to be exclusively about the 
beneficiary." The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the 
published material be "about the alien ... relating to the alien's work in the field." Thus, an article 
that mentions the petitioner but is "about" someone or something else cannot qualify under the plain 
language of this regulation. See Noroozi v. Napolitano, 11 CV 8333 PAE, 2012 WL 5510934 at 
*1, *9 (S.D.N.Y.Nov. 14, 2012); also see generally Negro-Plumpe v. Okin, 2:07-CV-820-ECR­
RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a fmding that articles about a show or a character 
within a show are not about the performer). 
The petitioner submitted _ 
posted at http://adventure-marathon.com that list the petitioner as placing second in 2008. The 
plain language of this regulatory criterion requires "published material about the alien" including 
"the title, date and author of the material." The extensive list of men and women's results ~oes 
not meet the preceding requirements. Further, there is no documentary evidence showing that 
http://adventure-marathon.com qualifies as a professional or major trade publication or some 
other form of major media. 
The petitioner submitted a 
- ~~~ 
http://www.coolrunning.com, but the author of the preceding articles was not identified as 
required by the nlain lamruaQ_e o(_the reQ'I.]}ation at 8 C.F.R. § 204.5(h)(3)(iii). Further, the articles 
are about the 
and only briefly mention the petitioner. The petitioner also sublpltted intormattOn aoout 
(b)(6)Page6 
Cool Rwming from its own website, but USCIS need not rely on self-promotional material. See 
. ~ 
Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 2007) aff'd 317 Fed. Appx. 680 (9 Cir. 
2009) (concluding that the AAO did not have to rely,on self-serving 
assertions on the cover of a 
magazine as to the magazine's status as major media). There is no objective readership data 
showing that the Cool Running website qualifies as a major trade publication or some other form 
of major media. 
The petitioner submitted a in Dong-A 
Ilbo. While the article briefly mentions the petitioner, the article is not about her. Instead, the 
article is about the and itS field of multipie women competitors. 
The petitioner also submitted information. about Dong-A llbo from its own website. As previously 
discussed, USCIS need not rely on self-promotional material. There is no objective evidence 
showing the distribution of Dong-A Ilbo relative to other newspapers to demonstrate that the 
submitted article was published in a form of "major'' media. 
The oetitioner submitted a 
The Herald (Scotland). The petitioner also submitted a ~ article in 
Evening Times (Scotland) entitled The preceding 
articles are about the in general and only briefly 
mention the petitioner. The petitioner also submitted infonnation about The Herald and Evening . 
Times from their publisher's website, but once again, USCIS need not rely on self-promotional. 
material. There is no objective documentary evidence showing that the preceding newspapers 
qualify as major media. 
The petitioner submitted an _ 
posted on the website of All-Athletics.com. While the article includes two 
sentences mentioning the petitioner, the article is primarily about the Further, 
there is no objective readership data showing that All-Athletics.com qualifies as a major trade 
publication or some other form of major media. 
The petitioner submitted a 
entitled 
in The Straits Times 
While the article includes a few sentences 
mentioning the petitioner, the article is primarily about the 
The petitioner also submitted promotional material about The Straits Times from the 
newspaper's own website and from its publisher. As previously discussed, USCIS need not rely on 
self-promotional material. There is no objective circulation evidence showing that The Straits 
Times is a form of major media. 
The petitioner submitted documentation indicating that the 
was also posted at www .live2run.com, 
but there is· no documentary evidence demonstrating that this website qualifies as a professional 
or major trade publication or some other form of major media. 
The petitioner submitted an. article entitled 
posted at http://www.takethemagicstep.com, but the pe.titioner submitte e first and fffth 
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pages of the seven-page article. · Furt.lter, the date the article was not identified as required by the 
plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii). In addition, the article is not about 
the petitioner and only briefly lists her name among numerous other runners. Moreover, there is 
no objective readership data showing that http://www.takethemagicstep.com qualifies as a major 
trade publication or some other form of major media. 
The petitioner-submitted an article entitled ' ~ 
posted at http://www.timesocket.com, but the .author of the article was not identified as required 
by the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii). In addition, the article is not 
about the petitioner and only briefly mentions her as fmishing second in the women's race. 
Moreover, there is no-documentary evidence showing that http://www.timesocket.com is a major 
trade publication or some other form of major media. 
The petitioner submitted an article entitled 
posted on the website of the International Association of Athletics 
.Federations (IAAF), but the petitioner submitted only ''Page 3 of 4" of the article. In addition, 
the date the article was not identified as required by the plain language of the regulation at 
8 C.P.R. § 204.5(h)(3)(iii). Further, the article is about the in general and 
only briefly mentions the petitioner among multiple other participants. Moreover, there is no 
objective readership data showing that the IAFF's website qualifies as a major trade publication 
or some other form of major media. 
The petitioner submitted pages 1 and 3 of an 
posted on the website of the Association of International Marathons and 
Distance Races (AIMS), but the petitioner failed to submit page 2 of the article. Further, the 
author of the article was not identified as required by the plain language of the regulation at 
8 C.P.R. § 204.5(h)(3)(iii). In addition, the article is about the marathon in general and only 
mentions the petitioner in passing. The petitioner also submitted information about the AIMS 
from its own website, but once again, USCIS need not rely on self-promotional material. There is 
no objective readership data showing ·that the _ AIMS' website qualifies as a major trade 
publication or some other form of major media. 
The petitioner submitted an 
posted on the "Running Network" website at 
http://www.runningnetwork.com, but the author of the article was not identified as required by 
the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii). Further, the article is about the 
and only briefly mentions the petitioner. Moreover, there is no objective 
readership data showing that the Running Network's website qualifies as a major trade 
publication or some other form of major media. 
The petitioner submitted an article entitled __ o _ , _ _ _____ ;,-- - --- _ ~ 
posted on the website of the North County Times 
(California), but the date of the article was not identified as required by the plain language of the 
regulation at 8 C.P.R. § 204.5(h)(3)(iii). In addition, the article is about the 
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in general and only briefly mentions the petitioner. Further, there is no documentary 
evidence showing that the North County Times' website is a form of major media. 
The petitioner submitted a posted on the website of the 
Seattle Times entitled . The petitioner also submitted objective 
circulation data compiled by the Associated Press indicating that the Seattle Times is a form of 
major media. Regardless, the author of the Seattle Times article was not identified as required by 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, the article includes only 
one sentence mentioning the petitioner. 
The petitioner submitted a posted on the 
website of the Chicago Tribune. The petitioner also submitted objective circulation data compiled 
by the Associated Press indicating that the Chicago Tribune is a form of major media. Regardless, 
the author of the Chicago -Tribune article was not identified as required by the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, the article is not about the petitioner and 
only mentions her in passing. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." [Emphasis added.] Here, the evidence must be reviewed to see 
whether it rises to the level of original athletic contributions "of major significance in the field." 
The phrase "major significance" is not superfluous and, thus, it has some meaning. Silverman v. 
Eastrich Multiple Investor Fund, LP., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 
. 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003)~ 
The petitioner submitted a "Certeficate of Apprecitation" [sic] that states: 
"Acknowledging the outstanding contribution you have shown at the .L 
has awarded this certificate with 
admiration and grate~lness." The P!eceding certificate does not specifically identify the result 
achieved by the petitioner at the & but the record 
includes a letter from the _ listing the 
petitioner's "Foreign Achievements" and stating that . she ranked 3rd i 
The submitted evidence fails to demonstrate how placing 3rd is an 
· "original" athletic contribution or how her specific achievement was majody significant in the 
field of long distance running. The petitioner also submitted race results indicating that she 
nll'll"Pti firs.t ~t thP 
The AAO notes that the 
petitioner won the subsequent to the petition's September 2, 2011 filing date. 
Eligibility, however, must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&NDec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at 
(b)(6)Page9 
a future date after the petitioner becomes eligible under a new set of facts. Matier of Izummi, 22 
I&N Dec. 169, 175 (eomm'r 1998). That decision further provides, citing Matter of Bardouille, 
18 I&N Dec. 114 (BIA 1981), that USeiS cannot "consider facts that come into being only 
subsequent to the filing of a petition." /d. at 176. Accordingly, the AAO will not consider · 
awards received by the petitioner after September 2, 2011 as evidence to establish her eligibility. 
In addition, the petitioner submitted race results indicating that she placed 
Once again, the submitted evidence fails to 
demonstrate how the petitioner's competitive results equate to "01jginal'; athletic contributions or 
how her specific achievements were majorly significant in the field of long distance running. 
I 
Further, the AAO notes that the race results and, awards submitted by the petitioner have already 
been addressed under the regulatory criterion at 8 e.F.R. § 204.5(h)(3)(i). Here it should be 
emphasized that the regulatory criteria are separate and distmct from one another. Because 
separate criteria exist for awards and original contributions of major significance, users clearly 
does not view the two as being interchangeable. To hold otherwise would render meaningless the 
statutory requirement for extensive evidence or the regulatory requirement that a petitioner meet at 
least three separate criteria. 
The petitioner submitted a certificate from the 
The preceding certificate does not 
specifically identify the "immense contribution" made by the petitioner at the 
The submitted evidence also fails to demonstrate how participating for an 
is an "original" athletic contribution or how her achievement was majorly 
stgnittcant m the field of long distance running. Further, the AAO notes that the petitioner's 
membership on the team has already been addressed under the 
regulatory criterion at 8 e.F.R. § 204.5(h)(3)(ii). As separate criteria exist for memberships and 
original contributions of major significance, users clearly does not view the two as being 
interchangeable. · · 
In addition to the preceding evidence, the petitioner submitted letters of support discussing her 
various athletic accomplishments. 
, states: 
Athlete [the petitioner] had served for 13 years and we .have 
attached herewith this letter the achievements she scored in athletics competition during 
her stay in this club. As indicated under the table annexed herewith Athlete [the 
petitioner] had taken part on different domestic, Africa and international competitions 
· and she had scored significant achievements for our club and country. This athlete is one 
of several famous and celebrity athletes produced by Ethiopia and she had finished 
nwnerous local and international competitions standing 1 fJrst on more than ten times and 
she' had been rewarded Gold Medals and Cups . . Victories achieved by Athlete [the 
(b)(6)Page 10 
petitioner] have not only helped her to become international fame and celebrity but also 
they have enabled our country to take special position in athletics in the world. 
The victories Athlete [the petitioner] achieved and the medals and cups she won· are 
special witnesses · that she is one of few athletes who have special and high skill in the 
world. 
:omments that the petitioner has made significant achievements for the 
and her country, but does not provide specific examples of how the 
petitioner's original athletic contributions have significantly impacted the field of long distance 
running or otherwise equate to original contributions of major significance in the field. It is not 
enough to be highly skillful and competitively successful and to have others attest to those 
talents. An alien must have demonstrably impacted her field in order to meet this regulatory 
criterion. Vague, solicited letters from colleagues that do not specifically identify original 
contributions or provide specific examples of how those contributions influenced the field are 
insufficient. Kazarian, 580 F.3d at 1036. In 2010, the Kazarian court reiterated that the AAO's 
conclusion that "letters from physics professors attesting to [the alien's] contributions in the field" 
were insufficient was "consistent with the relevant regulatory language." Kazarian, 596 F.3d at 
1122. The record lacks documentary evidence showing that the petitioner has made original 
athletic contributions that have significantly influenced or impacted others in the field. 
Ethiopia, states: 
I feel confident to give this expert testimony on [the petitioner's] athletic abilities and 
achievements. I have closely foliowed and reviewed [the petitioner's] track ~ record in 
long-distance running and' have come to the conclusion that she is an athlete of 
exceptional and extraordinary ability. Her stellar athletic credentials place her in a 
special place among the elite athletes of the world. A brief overview of her achievements 
shows that she has taken part in over _ winning 
many of them. Among her wins are included the 
She has been dubbed Ethiopia's 
due to her continued athletic prowess. 
While comments on the petitioner's competitive results at national and international 
races, fails to provide specific examples of how the petitioner's specific achievements 
have impacted the field of long distance running as a whole or otherwise constitute original 
athletic contributions of major significance in the field. According to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v), an alien's contributions must be not only original but of "major significance" in 
the field. Once again, the submitted evidence fails to demonstrate how the petitioner's 
competitive results equate to "original" athletic contributions or how her specific achievements 
were majorly significant in the sport of long distance miming. Further, the AAO again 
notes that 
the race results and awards submitted by the petitioner have already been addressed under the 
regulatory criterion at 8 C.P.R. § 204.5(h)(3)(i). 
(b)(6)Page 11 
states: 
[The petitioner], a fabled J has, for over a decade, been one of 
the most talented and fmest long distance runners in the world, deftly competing in the 
most prominent international road races with remarkable success including victories in a 
multitude of countries in many long distance venues throughout l 
She has become so famous in her native country, Ethiopia, that she is widely 
called the by fans and sports journalists alike. 
The name of [the petitioner] has become legendary among her peers. She was born in 
and leaped to fame in the international running community when 
she, then 
a respectable QOsition in the 
a spectacular 
full marathons where she achieved 
garnered 
followed by 
the first of many 
Mter her international breakthroughs in long distance ~g. [the petitioner] has been a 
sought after athlete by race directors all over the world. In 
a string of superb results annually in the 
several 'times and never outside of the 
placed her among the world's most elite marathoners. 
selected to compete in the 
and commenced 
where she fmished 2nd 
which 
Based upon that result she was 
At the highly competitive [the 
petitioner] had another breakthrough with her Personal Best 2nd place marathon finish in 
a time of . . She returned to Paris in 2009 with two stunning fmishes in distances 
of 25 and 30 kilometers. With a constant success list of triumphs in Europe, (more 
recently in Germany in~ and an extremely busy schedule of top level 
competitions worldwide, [the petitioner] also found time to compete with success in the 
United States, specifically in the in 
and also in the i the results of which bolstered her 
reputation as a superb competitor. 
It is fascinating to note that [the petitioner] has devoted much of her running career to the 
most grueling and punishing distances from 15 kilometers to the full marathon of 26.2 
miles. This indicates her total dedication to hard work, extensive and unrelenting training 
which illustrates her ethic that consistently good results only come from toil in the purest 
sense of training and sport. She is well known among her colleagues for her 
sportsmanship and graciousness in victory or in defeat. 
comments on the petitioner's long distance race results, but he does not 
specify how the petitioner's personal competitive achievements equate to "original" athletic 
contributions of major significance in the field: also asserts that the petitioner 
(b)(6)Page 12 
is who "has become so famous in her native country," but 
he fails to provide specific examples of how the petitioner's original contributions have 
significantly influenced the field at large or otherwise constitute athletic contributions of major 
significance in the field of long distance running. The fact that the· petitioner has enjoyed 
success in international running competitions does not demonstrate that she has made original 
athletic contributions of major significance in the field. For example, the record does not 
indicate the extent of the petitioner's influence on other long distance runners, nor does it show 
that the field has significantly changed as a result of her work so as to demonstrate the major 
significance of her original athletic contributions. 
a professional race director and running coach, states: 
Having reviewed [the petitioner's] ~redentials, I conclude that [the petitioner] is a woman 
of sterling athletic accomplishments and an athlete of extraordinary abilities. 
* * * 
An athlete of [the petitioner's] caliber is quite rare. 
\ 
[The petitioner's] accomplishments: [The petitioner] ha8 been running and winning long­
distance races since She has devoted herself to the most rigorous of long-distance 
races: the marathon. She has won over 
includim! the nrestil!ious 
My conclusions: I conclude that [the petitioner] is a highly-capable athlete with rare 
abilities and outstanding accomplishments who earned iJ:!temational recognition as a first­
class long-distance runner. She is one of the few extraordinary aliens who should be 
granted permanent residence in the United States, where she will be a great contributor in 
the field of athletics. I give her my highest accolades and recommendations, and I have 
confidence she will be successful In her continued athletic endeavors. 
asserts that the petitioner is an "athlete of extraordinary abilities," but merely repeating 
the language of the statute or regulations does not satisfy the petitioner's burden of proof. F edin 
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, No. 95 civ 10729, 1997 WL 188942 at *1, *5 
(S.D.N.Y.). While lists various long distance races won by the petitioner, he fails to 
provide specific examples of how the petitioner's original contributions were majorly significant 
to the field at large. The record does not show how the petitioner has changed or affected her 
(b)(6)Page 13 
sport in an original way that other runners have not already done. 3 There is no documentary 
evidence showing that the petitioner's original contributions have had a majorly significant 
impact in the field of long distance running~ have significantly influenced other competitive runners 
in her sport, or otherwise equate to original athletic contributions of major significance in the 
field. · 
The opinions of the petitioner's references are not without weight and have been considered 
above. 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 fmal determination regarding an 
alien's eligibility for the benefit sought. /d. The submission of reference letters 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 references' 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 long distance runner 
who has made original contributions of major significance in the field. Without additional, 
specific evidence showing that the petitioner's original contributions have been unusually 
influential, have substantially impacted her sport, or have otherwise risen to the level of athletic 
contributions of major significance in the field, the AAO cannot conclude that she 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) 
On appeal, counsel asserts that the petitioner submitted comparable evidence in the form of 
expert opinion letters from _ ___ --- ~ _ -
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). In fact, as 
indicated in this decision, the petitioner submitted evidence that specifically addresses four of the 
3 For example, the petitioner submitted a biography for 
(b)(6)
Page 14 
categories of evidence set forth in 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 specific occupation. For instance, the 
published material submitted by the petitioner indicates that international marathon runners such as 
the petitioner receive prize money for winning their races and, therefore, the remuneration criterion 
at 8 C.P.R. § 204.5(h)(3)(ix) would appear to be applicable to the petitioner's occupation. 
Moreover, counsel fails to explain how the expert opinion letters submitted by the petitioner are 
"comparable" to any specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i)- (x). 
Regarding the four expert opinion letters submitted by the petitioner, the AAO notes that they 
were considered under the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i) and (v). As 
previously discussed, USCIS may, in its discretion, use as advisory opinions statements submitted 
as expert testimony. See Matter of Caron International, 19 I&N at 795. However, USCIS is 
ultimately responsible for making the fmal determination regarding an alien's eligibility for the 
· benefit sought. ld. While such letters can provide useful information about an alien's 
qualifications or help in aSsigning weight to certain evidence, such letters are not comparable to 
extensive evidence of the alien's achievements and recognition as required by the statute and 
regulations. The nonexistence of required evidence creates a presumption of ineligibility. _8 C.F.R. 
§ 103.2(b)(2)(i). The classification sought requires "extensive documentation" of sustained 
national or international acclaim. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
§ 1153(b)(l)(A)(i), and 8 C.F.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 Fed. Reg. 30703, 
30704 (July 5, 1991). Primary evidence of achievements and recognition is of far greater probative 
value than opinion statements from references selected by the petitioner. 
~-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 fmal 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 th~ 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 s·ustained 
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 evidenee 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 
(b)(6)Page i5 
not explain that ci>nclusion in a fmal merits determination.4 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 AAO may deny an application or petition that fails to comply with the technical 
requirements of .the law even if the Service Center does not identify all of the grounds for denial 
in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 
th' 1043 (E.p. Cal. 2001), aff'd, 345 F.3d 683 (9 Cir. 2003); . see also Soltane v. DOJ, at 145 
" (noting that the 
AAO conducts appellate review Qn a de novo basis). 
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 app~al is dismissed. 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 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)(l) of the Act; section 
204(b) of the Act; DHS Delegation N~ber 0150.1 (effective March l, 2003); 8 C.P.R. § 2:1 (2003); 8 C.P.R. 
§ 103.l(f)(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).