dismissed EB-1A Case: Athletics

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
~LICCOP~ 
FILE: Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Inunigration Services 
Office of Administrative Appeals MS 2090 
Washington. DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
Date: 
SEP 2 7 2010 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(I )(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 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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
erry Rhew 
Chief, Administrative Appeals Office 
www.ulcis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center. The petitioner appealed the decision to the Administrative Appeals Office (AAO). The 
AAO dismissed the petitioner's appeal. The matter is now before the AAO on motion to reopen and 
reconsider. The motion will be granted, the previous decision of the AAO will be affirmed, and the 
petition will remain denied. 
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. § I I 53(b)(l)(A). The director 
determined that the petitioner had not established the requisite extraordinary ability through extensive 
documentation and 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 motion, counsel argues that the petitIOner meets the categories of evidence at 8 C.F .R. 
§§ 204.5(h)(3)(i), (ii), (iii), and (v), and that the AAO erred in concluding the petitioner had not 
established sustained national or international acclaim at the very top of his field. For the reasons 
discussed below, we affirm our prior decision. 
I. 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 (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. 723 101 st 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. 
Id and 8 C.F .R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim 
and the recognition of his or her achievements in the field. Such acclaim and achievements must be 
established either through evidence of a one-time achievement (that is, a major, international recognized 
award) or through meeting at least three of the following ten categories of evidence. 
(i) Documentation of the alien's receipt oflesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and any 
necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification, See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 20 I 0). 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.! 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." Id. 
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)." Id. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as the corollary to 
this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir 1 field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. § I 153(b)(l)(A)(i). 
Id. at 1119-1120. 
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 reviewing Service Center decisions, the AAO will 
apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a 
new analysis if the director reached his or her conclusion by using a one-step analysis rather than the 
two-step analysis dictated by the Kazarian court. See Spencer Enterfrises, Inc. v. United States, 229 
F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9' Cir. 2003); see also Soltane v. 
DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo 
basis). 
II. Analysis 
J 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). 
Page 5 
A. Evidentiary Criteria 
This petition, filed on June 18, 2007, seeks to classify the petitioner as an alien with extraordinary 
ability as a professional cyclist. The petitioner has submitted evidence pertaining to the following 
categories of evidence at 8 C.F.R. § 204.5(h)(3)2 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in thefield of endeavor. 
~mitted evidence showing that he won the 
__ and that his four-man team fHW."U 
••••••• Iarld second in •. 
In the appellate decision, the AAO found that the record lacked evidence establishing "the national 
or international of the claimed awards." On the submits a 
letter from The new 
information in letter and published material in the record are sufficient to 
demonstrate that the preceding awards are nationally or internationally recognized in the sport of 
cycling. Accordingly, the petitioner has established that he meets this 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. 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's appellate decision 
stated: 
f'''''UU'll''' inil:ially submitted evidence to show that he is a member of the_ 
More specifically~ 
that indicated he was a ••••• 
and that provided some general team 
from II ........ .. 
The petitioner also provided 
In addition, the petitioner's evidence 
which cited his membership in the 
After a review of the 
evidence submitted by the petitioner, the director found that "the record lacks documentation 
that the [petitioner] belongs to an association that requires outstanding achievements of its 
members." 
2 The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this 
decision. 
Page 6 
On appeal, the petitioner attempted to bolster this evidence, providing new, additional 
evidence. The petitioner provided a credential for his membership in the International 
Cycling Union [UCI] in 2008, as well as background information regarding this organization 
from internet sites including www.powerseat.com and www.uci.ch. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. 8 C.F.R. 
§ 103.2(b)(1); 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). As the petitioner's membership in this organization occurred after his petition was 
filed, this new evidence cannot be considered. Nonetheless, even if the AAO considered this 
evidence, we would not find it sufficient to meet this criterion. 
* * * 
In this case, the petitioner failed to provide any evidence, such as membership bylaws or 
official admission requirements, showing that any of the groups require outstanding 
achievements of [their] members, as judged by recognized national or international experts in 
the petitioner's field or an allied one. The printouts provided of the organizations' websites 
failed to state the requirements of membership, the types of outstanding achievements necessary 
for membership, or whether membership is judged by recognized national or international 
experts in the field. 
On motion, counsel states: "In order to get selected as a team member and join a professional cycling 
team which is a of his " The letters of 
support from note that the 
petitioner has cOlnpete,d 
required for becoming a team member. team is not strictly speaking an 
"association," it is nonetheless equally true that an athlete can earn a place on a national or an 
Olympic team through rigorous competition which separates the very best from the great majority of 
participants in a given sport. Therefore, an athlete's membership on an Olympic team or a major 
national team such as a World Cup soccer team may serve to meet this criterion as such teams are 
limited in the number of members and have a rigorous selection process. We reiterate, however, that 
it is the petitioner's burden to demonstrate that he meets every element of a given criterion, 
including that he is a member of a team that requires outstanding achievements of its members, as 
judged by recognized national or international experts. Without evidence showing, for instance, the 
selection requirements for the petitioner's professional cycling teams, we cannot conclude that the 
petitioner meets the elements ofthis regulatory criterion. 
In light of the above, we reaffirm our appellate finding that the petitioner does not meet this 
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 sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
Page 7 
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. 3 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's appellate decision 
stated: 
The petitioner initially submitted the following evidence: 
I. A newspaper articlee".::::::::::::: ••••• ~~~~~~ entitled, I 
2. A nev.'spar)er 
3. 
4. 
5. 
6. 
7. 
8. 
dated 
10. An article entitled, 
name; 
entitled, 
dated only with the month and day, Monday, 
wi1:holut a date, entitled, 
ublic,lticm name or 
entitled 
without a translated date or publication 
II. An article dated •••••••• was submitted (out of 
written in by hand as the 
3 Even with nationally-circulated 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. 
Page 8 
14. An article without any translation from a Chinese n~''''''<t'"n,~r· 
15. A newspaper article, dated from the 
entitled, ' ••••••••• 
16. A newspaper article, dated _ entitled, 
2 without a publication UQ.lU", 
17. An article background information on its_ 
team; and 
18. Articles from web sites including 
In response to the RFE [request for evidence], the petitioner provided one additional article 
from a website entitled www.internationalcycling.com. which failed to cure any missing 
information mentioned in the RFE including a translation and various article dates. Further, 
no new evidence was provided on appeal. Despite the deficiencies cited in the RFE, the 
director's decision found that there was sufficient evidence provided to satisfy this criterion. 
We disagree with the director, and reverse his decision with respect to this criterion. 
* * * 
Although the director generally stated that "several" of the petitioner's articles were 
published in major publications, we find there is no evidence (such as circulation statistics) 
showing that any of the preceding articles submitted by the petitioner were printed in 
professional or major trade publications or some other form of major media. In fact, many of 
the articles appear in regional papers, including Items 1 through 7, II, 12, 13, 15, and 16, rather 
than nationally or internationally circulated publications. Regional coverage is not indicative 
of national or international acclaim. Moreover, Item 18 includes articles on various internet 
sites. No evidence about these sources or the reliability of their contents was provided. We 
note that in today's world, many newspapers, regardless of size and distribution, post at least 
some of their stories on the internet. To ignore this reality would be to render the "major 
media" requirement meaningless. However, we are not persuaded that international 
accessibility via the internet by itself is a realistic indicator of whether a given publication is 
a form of "major media." The petitioner must still provide evidence, such as, a widespread 
readership or overall interest in the publication in order to demonstrate that the publication is 
a professional or major trade publication or a form of major media in order for us to credit 
these articles. 
Moreover, Item 14 was not submitted with a translation. Without a complete translation, the 
actual content of the article cannot be ascertained and is of minimal evidentiary value. See 8 
C.F.R. § I03.2(b)(3). Item 17 also fails to serve as probative evidence, as it comes from his 
sponsor's website and is therefore self-serving. Further, Items 2, 5, 9 and 13 were not written 
primarily about the petitioner. If mentioned at all, the articles only briefly mentioned the 
petitioner or captioned his name under a photograph. Finally, while the article in Item 9 may 
have been featured in a prominent magazine, we cannot conclude that the article is PHU""U 
about the petitioner or his work. Instead, the article, entitled 
-Page 9 
reflects that it is about fashion and the petitioner's looks rather than his competItIOn or 
notoriety. The petitioner also submitted only what appears to be the first page of the article 
rather than the entire article which contains the photographs of two bikers with captions near 
their pictures on the page. The petitioner is one of the bikers photographed and his caption 
states that he has the "type of looks that make modeling agents stop him in the streets." The 
caption also mentions the petitioner is a "former junior world champion [who 1 has the chops 
to become a great cyclist." As such, it appears this article, as well as the petitioner's 
placement within it, featured the petitioner more for his physical appearance and style than 
for his "work in the field." 
Finally, the AAO concluded that even if the article in was found to be about the 
petitioner and his work, which it is not, a single article is not sufficient to meet the plain language of 
this regulatory criterion. The statute requires the submission of "extensive documentation." See 
section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A). Consistent with that statutory 
requirement, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires the submission 
of published material about the alien in more than one qualifYing source by specifYing "professional or 
major trade publications or other major media." 
The petitioner's motion does not specifically challenge any of the AAO's appellate findings for this 
regulatory criterion. Rather, counsel simply asserts that "numerous publications in important media 
markets and professional publications ... wrote articles about him." The record, however, does not 
include circulation information for the publications listed at items 1 - 18 demonstrating that they equate 
to professional or major trade publications or other major media. The unsupported statements of 
counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. 
See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503 (BIA 1980). Upon review, we find the AAO properly considered the evidence submitted, 
thoroughly addressed the petitioner's arguments, and appropriately addressed the evidence and 
arguments in its decision. Accordingly, we reaffirm our appellate finding that the petitioner does not 
meet this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's appellate decision 
stated: 
The pehtlOner initially submitted various photographs of himself in cycling races and 
accepting awards, with only some of the pictures containing captions. The petitioner also 
argued that he contributed athletically to the sport of cycling by his many wins, honors and 
recognitions, and submitted many printouts from websites documenting his statistics and 
placements in various cycling the RFE, the y 
provided a reference letter from In 
the letter, he states: 
Page 10 
I have coached and directed elite cycling teams in the United States for seventeen 
years and my athletes have won ninety national championships and two world 
championships and I can say that [the petitioner] was one of the best, most talented, 
loyal racers I have ever had the privilege to direct. 
In his decision, the director states that this recommendation letter attests to the petitioner's 
talents and accomplishments, but does not provide enough evidence to demonstrate he has 
made contributions of major significance in his field of cycling. The director also notes that 
"competing would not be considered a contribution of major significance." 
On appeal, the petitioner argues that competition is a contribution in athletics. To this end, 
the petitioner argues that Babe Ruth contributed to baseball by hitting 60 home runs during 
competition. Further, in his brief he states, 
There is nothing more important to cycling than the winning of the competition. The 
fact that he can win is no different than the fact that Babe Ruth could hit 60 home 
runs. 
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. We must presume that the phrase "major 
significance" is not superfluous and, thus, that it has some meaning. The AAO concedes that 
the petitioner appears to have a successful cycling career and now competes at a professional 
level. However, the record, including the documentation of his racing accomplishments and 
letters of recommendation, fail to rise to the level of his making a "contribution of major 
significance" in cycling. The letters of recommendation provided discuss the petitioner's 
talents, training, and examples of the races that he has won. However, they do not 
demonstrate that he has made original contributions of major significance in his field. The 
letters include no substantive discussion as to which of the petitioner's specific achievements 
rise to the level of original contributions of major significance in the field. Moreover, the 
record does not indicate the extent of the petitioner's influence on other cyclists nationally or 
internationally, nor does it show that the field has somehow changed as a result of his 
participation in competitions. Therefore, there is insufficient evidence to demonstrate that 
the petitioner has made a contribution of major significance in the field. 
The petitioner argued that his competition and his awards in races should be enough to fulfill 
this criterion. He equated himself with Babe Ruth. This comparison is not persuasive. Babe 
Ruth was an extremely well-rounded baseball player, who was both a talented pitcher and 
hitter. This remains quite unusual and original to the sport today. Moreover, Babe Ruth held 
world records for home runs for decades, and continues to hold world records in many 
Page 11 
aspects of his game at the major league level. The petitioner, however, has no comparable 
impact on the field of cycling as a whole, much less at a level commensurate with the major 
leagues. The record contains no evidence to show, for instance, that his techniques in cycling 
have been original or that his records have been making contributions of major significance. 
On motion, counsel repeats his appellate argument that the petitioner's competitive victories are 
contributions of .. s competitive awards (such as his 
have already been addressed under 8 C.F.R. 
c.riterion we find that the petitioner has met. Here it should be emphasized that 
the regulatory criteria are separate and distinct from one another. Because separate criteria exist for 
awards and original contributions of major significance in the field, USCIS clearly does not view 
these criteria 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. Moreover, the plain language of this regulatory criterion requires "original" athletic 
contributions of major significance in the field. Counsel does not explain how winning or competing 
in cycling events equates to "original" contributions of major significance in the field. 
The letter 
!I!!I!!I!!I!!I!!I!!I!!I!~ informs that [the petitioner] was one of the most talented 
during the period of •••• 
His name had been heard among the first ones not only in _ but also in Europe since 
he was 17 years old. 
At the age of 18 [the petitioner] became 
_ . .. Due to [the petitioner's] participationllil ••• I111!!!!!!! 
winner of World Cups and bronze-winner in the 
* * * 
Starting from 2003 [the petitioner's] career is basically connected with road races. During 
this period he more than once has already become a winner of big competitions, that took 
place in and Asia where he took as a member of}J!'(Jfr~()!J;ill 
clubs and 
Although the record adequately documents the other awards mentioned, the record does not contain 
World Cup competitive results or prizes to claim that the petitioner was a 
"World Cup" prize winner in cycling. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SojJici, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972)). Nevertheless, as previously discussed, the petitioner's competitive awards 
Page 12 
criterion at 8 C.F.R. § 204.5(h)(3)(i) and have already been addressed there. 
does not specify exactly what the petitioner's "original" contributions 
in the sport of cycling have been, nor is there an explanation indicating how any such contributions 
were of major significance in his field. It is not enough to be talented and to have others attest to 
that talent. An alien must have demonstrably impacted his field in order to meet this regulatory 
criterion. 
In this case, the letters of recommendation submitted by the petitioner are not sufficient to meet this 
regulatory criterion. 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 (Commr. 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; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796. Thus, the content of the writers' 
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 
professional cyclist who has made original contributions of major significance. Without supporting 
evidence showing that the petitioner's achievements equate to original contributions of major 
significance in his field, we reaffirm our appellate finding that the petitioner does not meet this 
criterion. 
Summary 
In this case, the petitioner has failed to demonstrate his receipt of a major, internationally recognized 
award, or that he meets at least three of the ten categories of evidence that must be satisfied to 
establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary 
ability. 8 C.F.R. § 204.5(h)(3). A final merits determination that considers all of the evidence follows. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final 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 the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); 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." Section 203(b)(l)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1119-1120. In the present matter, many of the deficiencies in the documentation submitted by the 
petitioner have already been addressed in our preceding discussion of the regulatory criteria at 
8 C.F.R. §§ 204.5(h)(3)(ii), (iii), and (v). 
With regard to the documentation submitted for the reg:uhlto:ry 
the petitioner's evidence showed that he won the 
and that his four-man cycling team placed third in the 
--Page 13 
. We cannot conclude that such awards limited to 
"Junior" competitors or cyclists under 23 years of age establish that the petitioner "is one of that 
small percentage who have risen to the very top of the field of endeavor." See 8 C.F.R. 
§ 204.5(h)(2). USCIS has long held that even athletes performing at the major league level do not 
automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Commr. 1994); 56 Fed. Reg. at 608994 Likewise, it does not follow that a cyclist who 
received awards in age-restricted or amateur competitions should necessarily qualify for an 
extraordinary ability employment-based immigrant visa. To find otherwise would contravene the 
regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa category be reserved for "that small 
percentage of individuals that have risen to the very top of their field of endeavor." Moreover, the 
statute and regulations require the petitioner to demonstrate that his national or international acclaim 
in the sport of cycling has been sustained. See section 203(b)(1)(A)(i) of the Act, 8 U.S.c. 
§ I I 53(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). In this case, there is no evidence showing that the 
petitioner has received any nationally or internationally recognized prizes or awards as a 
professional cyclist subsequent to 2005. 
Regarding the evidence submitted for the l~~:UU"Ul 
petitioner submitted a June 2003 article 
great cyclist" and that he has "still 
Moreover, the [J~ILlllUll'~l 
all-around capabilities and nose 
experienced Navigators teammates." 
criterion at 8 C.F.R. §§ 204.5(h)(3)(iii), the 
stating that he "has the chops to become a 
till he hits his prime." 
states: "His 
'U'~"'b~ of his more 
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 above the 
level he has attained at this stage of his professional cycling career. In this case, the petitioner has not 
established that his achievements at the time of filing the petition were commensurate with sustained 
national or international acclaim at the very top of the field. The conclusion we reach by considering 
the evidence to meet each criterion at 8 C.F.R. § 204.5(h)(3) separately is consistent with a review of 
the evidence in the aggregate. Even in the aggregate, the evidence does not distinguish the petitioner 
as one of the small percentage who has risen to the very top of the field of endeavor. 8 C.F.R. 
§ 204.5(h)(2). 
4 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of Racine, 1995 
WL 153319 at *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. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. § 204.5(h)(2) is reasonable. 
Page 14 
C. Prior 0-1 Nonimmigrant Visa Status 
The AAO notes that the petitioner has been in the United States as a P-l nonimmigrant, a visa 
classification that requires the alien to perform as an athlete, either individually or as part of a team, 
at an internationally recognized level of performance, and that the alien seek to enter the United 
States "temporarily and solely for the purpose of performing as such an athlete." See section 
214(c)(4)(A) of the Act, 8 U.S.C. § II 84(c)(4)(A). While uscrs has approved a prior P-I 
nonimmigrant visa petition filed on behalf of the petitioner, this prior approval does not preclude 
uscrs from denying an immigrant visa petition based on a different, if similarly phrased standard. 
Each case must decided on a case-by-case basis upon review of the evidence of record. It must be 
noted that many r-140 immigrant petitions are denied after uscrs approves prior nonimmigrant 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); lKEA 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 uscrs spends less time reviewing 1-129 nonimmigrant petitions 
than 1-140 immigrant petitions, some nonimmigrant petitions are simply approved in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude uscrs 
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 of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest 
that uscrs 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, 2000 WL 282785 (E.D. La.), ajj'd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
III. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an extent 
that he may be said to have achieved sustained national or international acclaim and to be within the 
small percentage at the very top of his field. The evidence is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(1 )(A) of the 
Act and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO 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 at 1043, affd, 345 
-Page 15 
F.3d at 683; see also Soltane v. DO}, 381 F.3d at 145 (noting that the AAO conducts appellate 
review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, 
that burden has not been met. 
ORDER: The AAO's June 22, 2009 decision dismissing the appeal is affirmed. The petition will 
remain denied.