dismissed EB-1A Case: Athletics

ide~fifyifiz . -. Gsta deleted to 
 U.S. Department of Homeland Security 
preveri: c\tm-\y UIV! ananted 
 U.S. Citizenship and Immigration Serv~ces 
Office of Administratwe Appeals, MS 2090 
in.l&~io:l of pcrs?r.zl privacy 
 Washington, DC 20529-2090 
PIJBLlC COPY 
 U. S. Citizenship 
and Immigration 
Services 
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Office: TEXAS SERVICE CENTER Date: J UN 0 5 2009 
EAC 06 082 51872 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 4 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 4 103.5(a)(l)(i). 
b/~ctin~ Chief, Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, initially approved the preference visa petition. 
Subsequently, the director issued a notice of intent to revoke the approval of the petition (NOIR). In a 
Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for 
Alien Worker (Form 1-140). The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
Section 205 of the Act, 8 U.S.C. 5 1155, states, in pertinent part, that the Secretary of Homeland 
Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval 
of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient 
cause for the revocation of the approval of an immigrant petition. Id. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary 
step in the visa application process. Id. at 589. The beneficiary is not, by mere approval of the 
petition, entitled to an immigrant visa. Id. 
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). The director 
ultimately determined the petitioner had not established the sustained national or international acclaim 
necessary to qualify for classification as an alien of extraordinary ability. The director also questioned 
whether the petitioner sought to enter the United States to continue working in his field of expertise. 
We note that the regulation at 8 C.F.R. 5 103.3(a)(2)(vii) allows the affected party to make a written 
request to the AAO for additional time to submit a brief. The same regulation provides that the AAO 
may allow additional time "for good cause shown." Counsel dated the initial appeal June 2,2008 and 
checked the box indicating that a brief and or additional evidence was attached. Counsel has never 
requested additional time to supplement the appeal. We note that there is no provision that allows the 
petitioner to continue to supplement the record indefinitely. Thus, even if counsel had checked the box 
Page 3 
that a brief or additional evidence would be submitted within 30 days, the date as of which all briefs 
and evidence supplementing the appeal should have been submitted is July 2, 2008. We note that 
counsel has continued to supplement the record after that date, mostly with briefs that provide no new 
information relating to the petition before us. Rather, counsel relies on assertions and evidence that 
relate to counsel's other clients, or evidence that does not relate to the instant petitioner's eligibility as 
of the date of filing as required. See 8 C.F.R. $8 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Reg'l. Comm'r. 1971). Specifically, counsel submitted a "Supplemental Brief' on September 
8, 2008, a "Second Supplemental Brief' on September 11, 2008, a "First Emergency Motion" on 
October 16, 2008 and a "Second Emergency Motion" on November 14,2008. Nevertheless, the new 
submissions are part of the record and will be referenced below where relevant. 
At the outset, we must address the fact that in 2008, 18 months after filing the petition, the petitioner 
won a bronze Olympic medal. Counsel emphasizes this accomplishment several times on appeal. This 
decision in no way attempts to diminish that accomplishment. Rather, it remains that this 
accomplishment postdates the filing of the petition and simply cannot be considered. See 8 C.F.R. 
$6 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. The reasoning in Matter of Katigbak is 
clearly expressed as follows: 
If the petition is approved, he has established a priority date for visa number 
assignment as of the date that petition was filed. A petition may not be approved for a 
profession for which the beneficiary is not qualified at the time of its filing. The 
beneficiary cannot expect to qualify subsequently by taking additional courses and 
then still claim a priority date as of the date the petition was filed, a date on which he 
was not qualified. 
Section 204 of the Act requires the filing of a visa petition for classification under 
section 203(a)(3). The latter section states, in pertinent part: "Visas shall next be 
made available to qualijied immigrants who are members of the professions.'' 
(Emphasis added.) It is clear that it was the intent of Congress that an alien be a 
recognized and fully qualified member of the professions at the time the petition is 
filed. Congress did not intend that a petition that was properly denied because the 
beneficiary was not at that time qualified be subsequently approved at a future date 
when the beneficiary may become qualified under a new set of facts. To do otherwise 
would make a farce of the preference system and priorities set up by statute and 
regulation. 
Id. The Regional Commissioner continued this reasoning in Matter of Wing 's Tea House, 1 6 I&N Dec. 
158, 160 (Reg'l. Cornm'r. 1977). That decision reemphasizes the importance of not obtaining a 
priority date prior to being eligible based on future experience. In fact, this principle has been extended 
beyond the alien's eligibility for the classification sought. For example, an employer must establish its 
ability to pay the proffered wage as of the date of filing. Matter of Great Wall, 16 I&N Dec. 142, 144- 
145 (Act. Reg'l. Cornm'r. 1977). That decision provides that a petition should not become approvable 
under a new set of facts. Recognizing that Matter of Katigbak, 14 I. & N. Dec. at 49 was not 
"foursquare with the instant case" in that it dealt with the beneficiary's eligibility, Matter of Great 
Wall, 16 I&N Dec. at 145 still applies the reasoning. The decision provides: 
In sixth-preference visa petition proceedings the Service must consider the merits of 
the petitioner's job offer, so that a determination can be made whether the job offer is 
realistic and whether the wage offer can be met, as well as determine whether the 
alien meets the minimum requirements to perform the offered job satisfactorily. It 
follows that such consideration by the Service would necessarily be focused on the 
circumstances at the time ofJiling of the petition. The petitioner in the instant case 
cannot expect to establish a priority date for visa issuance for the beneficiary when at 
the time of making the job offer and the filing of the petition with this Service he 
could not, in all reality, pay the salary as stated in the job offer. 
Id. (Emphasis in original.) Finally, when evaluating revisions to a partnership agreement submitted in 
support of a petition seeking classification as an alien entrepreneur pursuant to section 203(b)(5) of the 
Act, th~s office relied on Matter of Katigbak, 14 I. & N. Dec. at 49 for the proposition that "a petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts." 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. 1 14 (BIA 1981), that we cannot "consider facts that come into 
being only subsequent to the filing of a petition." Id. at 176. As the petitioner's bronze medal is 
clearly a fact that came into being subsequent to the filing of the petition, it cannot be considered in 
these proceedings. To hold otherwise would allow an athlete to secure a priority date in the hopes that 
subsequent achievements will demonstrate eligibility. 
On appeal, counsel spends little time responding to specific concerns raised by the director. Rather, 
counsel asserts generally that the decision is "an unlawful act" by the adjudications officer who 
rendered the decision, which we note was signed on behalf of the director and not the officer 
individually. Counsel discusses the petitions filed by several of his other clients, none of which are 
currently before us in this proceeding. It is counsel's position that the sole basis of revocation was that 
the petitioner was an athlete represented by counsel, whose clients the Service Center is allegedly 
targeting. Counsel requests that the AAO investigate a specific adjudications officer at the Service 
Center, but provides no authority suggesting that the AAO is an investigative body. Thus, the sole 
issue this decision will decide is whether the record supports the petitioner's claims of eligibility for the 
benefit sought as of the date of filing, January 26,2006. 
Significantly, in a May 28, 2008 pleading before the Southern District Court of Florida, Miami 
Division, a copy of which was submitted on appeal, counsel asserted that the AAO's May 12, 2008 
decision withdrawing a decision by the director regarding another of counsel's clients demonstrates that 
the AAO "in effect, upheld the Class Plaintiffl'ls allegations in regard to unlawful acts by Defendant 
Officer 1014." Counsel submits a copy of th~s May 12, 2008 decision in support of the "Second 
Emergency Motion." A review of this decision does not suggest or imply that the AAO made any 
findings of unlawful activities by the Service Center or a particular officer. Rather, the AAO simply 
withdrew the basis of revocation but remanded the matter because the AAO found that the petition was 
not approvable. Counsel's attempt to use this decision by the AAO, which is not an investigative body, 
to suggest that the AAO has made findings of unlawful activity, is not persuasive and is, in fact, of 
serious concern to this office. 
Counsel's specific assertions and the evidence relating to the petition now before the AAO will be 
discussed below. As will be discussed, while we withdraw the director's concern regarding the 
petitioner's intention to continue working in his field of expertise, we uphold the director's finding that 
the petitioner had not demonstrated eligibility as of the filing date in this matter. We stress that the 
petitioner's Olympic medal was not part of the record before the director when the final notice of 
revocation was issued. Thus, the director could not have erred in failing to consider this medal. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics 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 
(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 
seelung immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897,60898-9 (Nov. 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating 
that the individual is one of that small percentage who have risen to the very top of the field of 
endeavor. 8 C.F.R. 8 204.5@)(2). The specific requirements for supporting documents to establish that 
an alien has sustained national or international acclaim and recognition in his or her field of expertise 
are set forth in the regulation at 8 C.F.R. 8 204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level as of the date of$ling. See 8 C.F.R. $8 103.2(b)(l), (12); 
Matter ofKatigbak, 14 I&N Dec. at 49. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a track and field 
athlete. The regulation at 8 C.F.R. tj 204.5(h)(5) provides: 
No ofer of employment required. Neither an offer for employment in the United States 
nor a labor certification is required for this classification; however, the petition must be 
accompanied by clear evidence that the alien is coming to the United States to continue 
work in the area of expertise. Such evidence may include letter(s) from prospective 
employer(s), evidence of prearranged commitments such as contracts, or a statement 
fiom the beneficiary detailing plans on how he or she intends to continue his or her 
work in the United States. 
The director concluded that the record did not demonstrate that the petitioner would support himself 
primarily as a track and field athlete rather than competing in his "spare time." 
As stated above, the petitioner has since won a bronze medal at the Olympics. Thus, we are persuaded 
that he continues to compete at the top level of his sport.' As such, we withdraw the director's 
concerns on this issue. Any new petition supported by that medal, however, will have to include 
evidence that the petitioner still intends to continue competing. 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). We acknowledge that the petitioner won a bronze medal at the 2008 Olympics in 
Beijing. The petitioner, however, must demonstrate eligibility as of the date of filing, January 26,2006. 
See 8 C.F.R. tjtj 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. Thus, this medal would 
need to support a new petition with a new priority date. This decision is without prejudice to a new 
petition with a new priority date supported by the petitioner's recent Olympic medal. 
Barring the alien's receipt of such an award as of the date of$ling, the regulation outlines ten criteria, at 
least three of which must be satisfied as of the date offiling for an alien to establish the sustained 
acclaim necessary to qualify as an alien of extraordinary ability. On appeal, counsel cites Buletini v. 
INS, 860 F. Supp. 1234 (E.D. Mich. 1994), for the proposition that the petitioner need only 
demonstrate national acclaim. In contrast to the broad precedential authority of the case law of a 
United States circuit court, the AAO is not bound to follow the published decision of a United States 
district court in cases arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 
1993). The reasoning underlying a district judge's decision will be given due consideration when it 
is properly before the AAO; however, the analysis does not have to be followed as a matter of law. 
Id. at 719. That said, the plain language of the statute requires extensive evidence of sustained 
national or international acclaim. Thus, we do not contest that the petitioner need only demonstrate 
1 
We note that while the petitioner was suspended from competition for six months, that period of suspension 
ended in September 2006. See http://www .thenassauguardian.co1~I/sports/3230672 1 1 8333 55 .php (accessed 
May 21,2009 and incorporated into the record of proceeding). 
sustained national acclaim as of the date of filing. In addition, the court stated that "the examiner 
must evaluate the quality, including the credibility, of the evidence presented to determine if it, in 
fact, satisfies the criteria." Buletini, 860 F. Supp. at 1234. 
Prior to the appeal, counsel has never attempted to explain which criteria the petitioner claims to meet. 
On appeal, counsel only claims that the petitioner meets three criteria. We will discuss those three 
criteria below in addition to two criteria that warrant discussion in light of certain evidence submitted. 
If it is counsel's contention that the record actually contains evidence relating to other criteria, he has 
never explained which criteria they are or how the evidence relates to those criteria. The petitioner has 
submitted evidence that relates to the following  riter ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
Initially, the petitioner submitted Auburn University materials about 
 who is not one and 
the same as the petitioner, but shares the same last name of the petitioner. Specifically, we note that 
both Shamar Sands and the petitioner are pictured on the front cover of one of the Auburn University 
booklets. Thus, the evidence regarding will not be considered. 
The petitioner also submitted two All-NCAA Region Awards issued to the petitioner on May 29,2004 
for his first place finish in the mid-east region in long jump and triple jump. In addition, the petitioner 
submitted a certificate of appreciation issued to the petitioner by the Games of the XXVIII Olympics in 
2004. Further, the petitioner submitted what appear to be certificates issued by the International 
Amateur Athletic Federations (IAAF). The photocopies of these certificates, however, are mostly 
illegible. Nevertheless, the numbers six, eight and six are legible, suggesting these certificates do not 
reflect any finishes in the top three. An undated article in the Birmingham News indicates that the 
petitioner was favored to win long jump and triple jump at a national meet and had previously won the 
NCAA national championship in long jump while finishing second in the triple jump. An August 27, 
2003 article in the Opelika-Auburn News, asserts that the petitioner won a bronze medal in the triple 
jump at the IAAF World Championships in Paris. An April 28, 2003 article in the same newspaper 
reported that the petitioner placed first in the triple jump at the Penn Relays in Philadelphia. A May 19, 
2003 article in the same newspaper reported that the petitioner won a title at the Southeastern 
Conference (SEC) Track and Field Championships. 
In response to the director's July 25, 2006 request for additional evidence, the petitioner submitted a 
certificate for the petitioner's 2003 third place finish at the IAAF "Championnats du Monde 
d'AthletismeV in Paris. The petitioner also submitted a 2003 certificate from the U.S. Track Coaches 
Association recognizing the petitioner as "Mondo Regional Athlete of the Year" for the NCAA 
Division I Indoor Track and Field, South Region and other similar certificates. Finally, the petitioner 
2 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
submitted a letter from , the petitioner's mother, listing other undocumented awards, such 
as a gold medal in the triple jump at the 2003 London Nonvich Union British Grand Prix. 
The director initially approved the petition. On April 16, 2008, the director issued an NOIR, advising 
that additional evidence was required regarding the significance of the above awards, such as media 
coverage of the awards. In response the petitioner submitted a 2008 IAAF ranking placing the 
petitioner second in the triple jump and evidence about the IAAF. The petitioner also submitted 
photographs of two triple jump trophies issued at the Qatar Athletic Super Grand Prix in 2007 and 
2008, well after the date the petition was filed. Similarly, the petitioner submitted other certificates and 
a medal dated in 2007, after the petition was filed. - the assistant coach for Auburn 
University Track and Field, asserts that the petitioner won a bronze medal at the Commonwealth 
Games in Manchester England in 2002. 
The director concluded that the petitioner had not submitted primary evidence of the following awards 
referenced by others: (I) the gold medal in the triple jump and long jump at CARIFTA in 2000; (2) the 
silver medal in the long jump in Guatemala City in 2001; (3) the gold medal at the London Nonvich 
Union British Grand Prix in the trip jump in 2003; (4) the gold medal in the CAC at St. Georges in 
2003; (5) a bronze medal at the World Championships in 2003 and (6) the gold medal in the CAC and 
bronze medal in the triple jump in 2005. The director concluded that the awards documented in the 
record with primary evidence were insufficient to meet this criterion and that even if the awards 
referenced in the record were document, they would not establish sustained acclaim in 2006 when the 
petition was filed. 
On appeal, the petitioner resubmitted a copy of the certificate for the 2003 bronze medal at the IAAF 
World Championship in Paris. In counsel's supplemental brief, he asserts that the petitioner's prizes 
and awards are not "merely going on the record" but "historical fact." Counsel notes that he is 
submitting a copy of the petitioner's Olympic bronze medal. This medal, however, postdates the filing 
of the petition and cannot be considered. See 8 C.F.R. $9 103.2(b)(l), (12); Matter of Katigbak, 
14 I&N Dec. at 49. 
We acknowledge that the petitioner's 2003 award at the IAAF World Championships in Paris was 
documented in the record before the director. That said, the petitioner did not submit primary evidence 
of the remaining five awards listed by the director as undocumented. The assertions by the petitioner's 
mother and Coach Rolle are insufficient. Specifically, the regulation at 8 C.F.R. $ 103.2(b)(2)(i) 
provides that the non-existence or unavailability of required evidence creates a presumption of 
ineligibility. According to the same regulation, only where the petitioner demonstrates that primary 
evidence does not exist or cannot be obtained may the petitioner rely on secondary evidence (such as 
news articles) and only where secondary evidence is demonstrated to be unavailable may the petitioner 
rely on affidavits. 
The only non-collegiate award in the record is the petitioner's 2003 bronze medal at the IAAF World 
Championships in Paris. We concur with the director that a single qualifying prize or award in 2003 is 
not evidence of sustained national or international acclaim as of January 26, 2006, the date of filing. 
Furthei-, the petitioner has not demonstrated that his collegiate or amateur recognition constitutes 
nationally or internationally recognized prizes or awards. With regard to awards won by the petitioner 
in competitions that were limited by his amateur or collegiate status, such awards do not indicate that 
he "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). There is no indication that the petitioner faced significant competition from 
throughout his field, rather than mostly limited to a few individuals in age-based or other similarly 
limited competition. 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 60899.~ Likewise, it does not follow that a competitor like the 
petitioner who has had success in a competition restricted by age or non-professional status, should 
necessarily qualify for an extraordinary ability employment-based immigrant visa. To find otherwise 
would contravene the regulatory requirement at 8 C.F.R. 5 204.5(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." 
Even if we were to conclude that the petitioner meets this criterion, which we do not, for the reasons 
discussed below, the petitioner would meet only a single other ~riterion.~ Thus, the petitioner would 
still not meet at least three criteria as required. 
3 
 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 1533 19 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[Tlhe 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. 6 204.5(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. 4 204.5(h)(2) is 
reasonable. 
4 
The evidence to meet that criterion is also well before the date of filing. Thus, even considering the evidence 
in the aggregate would not demonstrate sustained acclaim in 2006 when the petition was filed. While the 
petitioner may have subsequently regained (and, in fact, surpassed) his former standing in the field in 2008, that 
evidence cannot be considered as it postdates the filing of the petition by approximately 18 months. 
Documentation of the alien's membership in associations in the field for which classiJication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines orjelds. 
The record confirms that the petitioner was a member of the Bahamian Olympic Team at the 2004 
Olympics in Athens. The director concluded that an Olympic team is not an association and, thus, team 
membership could not serve to meet this criterion. 
On appeal, counsel references a non-precedent decision by this office concluding that Olympic team 
membership can serve as comparable evidence to meet this criterion pursuant to the regulation at 
8 C.F.R. 5 204.50(4). 
 While 8 C.F.R. 
 103.3(c) provides that AAO precedent decisions are 
binding on all USCIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. Nevertheless, we are satisfied that Olympic team membership, resulting from 
selection among the top athletes nationally, is comparable to membership in an exclusive association 
that requires outstanding achievements for membership. 
In light of the above, the petitioner has established that he meets this criterion. That said, the 
evidence dates from 2004, and is not indicative of sustained acclaim in 2006 when the petition was 
filed. Regardless, for the reasons discussed below, the petitioner falls far short of meeting any other 
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 classijication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
On appeal, counsel does not contest the director's conclusion that the published material submitted is 
either not primarily about the petitioner or did not appear in professional or major trade publications or 
other major media. We concur with the director that articles reporting the results of a specific 
competition that mention the petitioner are not "about" the petitioner. We further concur with the 
director that the record lacks circulation data, or other comparable evidence, suggesting that the 
publications featuring the petitioner are professional or major trade publications or other major media. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director acknowledged a letter from 
 discussing the petitioner's record of prizes of 
awards, only some of which are documented in the record, but concluded that the petitioner had not 
established that he performed in a leading or critical role for Auburn University or the Bahamas. 
Page 11 
On appeal, counsel asserts that the petitioner has performed in a leading or critical role for the IAAF, 
Auburn University, the Bahamian National Team and the Bahamian Olympic Team because he 
successfUlly competed at an IAAF event and for Auburn University and the Bahamas. Counsel asserts 
that Auburn University's distinguished reputation is demonstrated through the number of its students 
who have won Olympic medals. 
For the reasons discussed above, we will not consider the petitioner's 2008 Olympic medal. Rather, 
that medal must support a new petition. We have already considered the petitioner's documented 
prizes and awards above. We have also already considered the petitioner's membership on a national 
Olympic team. We will not presume that winning a qualifjmg prize or award or securing team 
membership is also evidence that the alien has performed in a leading or critical role for his team 
whether a national or university team. We will also not presume that winning a prize or award 
constitutes performing a leading or critical role for the entity sponsoring the competition. To hold 
otherwise would render meaningless the statutory requirement for extensive evidence and the 
regulatory requirement that an alien meet at least three separate criteria. 
At issue for this criterion is the nature of the role the petitioner was selected to fill, not whether he 
successfully competed as a regular member of a team. The nature of the role must be such that 
selection to fill that role is indicative of or consistent with national or international acclaim. While the 
petitioner successllly competed as a member of his university team and, in 2003, as a member of the 
Bahamian National Team, the record lacks evidence that he was selected for a special role within the 
team, such as team captain, or any type of role within the IAAF. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signiJicantly high remuneration for 
services, in relation to others in the field. 
On appeal, counsel does not contest the director's conclusion that a scholarship cannot serve to meet 
this criterion. We concur with the director that a scholarship, even an athletic scholarship, is not 
remuneration for services as an athlete. Regardless, the record does not compare the petitioner's 
scholarship with track and field scholarships nationally. 
In light of the above, the petitioner has not established that he meets this criterion. 
Finally, beyond the director's decision, we find the petitioner has failed to establish that his entry 
into the United States will substantially benefit prospectively the United States. In his "Second 
Emergency Motion," counsel argues that it is USCIS policy to not require evidence regarding this 
benefit. Counsel cites to a letter written by I, Immigration Branch, Adjudications in 
1995, published in 72 No. 12 Interpreter Releases, 443. First, letters and correspondence issued by 
the Office of Adjudications are not binding on the AAO. Therefore, contrary to counsel's assertion, 
letters written by the Office of Adjudications do not constitute official USCIS policy and will not be 
Page 12 
considered as such in the adjudication of petitions or applications. Although the letter may be useful 
as an aid in interpreting the law, such letters are not binding on any USCIS officer as they merely 
indicate the writer's analysis of an issue. See Memorandum from Thomas Cook, Acting Associate 
Commissioner, Office of Programs, SigniJicance of Letters Drafted by the Office of Adjudications 
(December 7,2000). 
Moreover, it appears that counsel has taken the language of the letter out of context and 
inappropriately applied it to the instant case. Although the letter does initially acknowledge that the 
regulations do not require a petitioner to submit evidence to show that he or she will substantially 
benefit the United States, the letter goes on to state that "Congress did not intend for aliens of 
extraordinary ability to immigrate to the United States and remain idle" and that the language in 
section 203(b)(l)(A)(iii) cannot be "written off." 
 The letter concludes that "ordinarily the 
'substantial benefit' criterion is met through satisfling the other statutory requirements. . . ." In this 
instance, the petitioner has failed to demonstrate the required sustained acclaim and has also failed to 
establish through extensive documentation that his achievements have been recognized. Given his 
failure to satisfy these statutory requirements, the petitioner's substantial benefit cannot be 
automatically assumed. The petitioner has provided little documentation regarding his future plans in 
the United States such as future prospects, opportunities, plans or intent. Moreover, it is unclear 
how, in his current position as a member of the Bahamian National team, that he will substantially 
benefit prospectively the United States by training for and competing with a foreign national team. 
For this additional reason, the petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
 557(b) ("On 
appeal fiom or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as. it may limit the issues on notice or by rule."); see also Janka v. 
US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has 
been long recognized by the federal courts. See, e.g., Dor v. INS, 89 1 F.2d 997, 1002 n. 9 (2d Cir. 
1989). 
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. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
track and field athlete to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field as of the date of 
filing. The evidence indicates that the petitioner shows talent as a track and field athlete, but is not 
persuasive that the petitioner's achievements set him significantly above almost all others in his field as 
of the date of filing. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(l)(A) of the Act and the petition may not be approved. As stated above, this decision is without 
prejudice to the filing of a new petition supported by the petitioner's Olympic medal (and other 
documented achievements) and evidence of his hre plans to continue competing and, if he plans to 
continue competing for the Bahamas, evidence of how he will prospectively benefit the United States. 
Given counsel's previous assertions in federal court about a recent AAO decision, we must stress that 
while we have withdrawn some of the director's adverse findings in this decision, we are not an 
investigative body, we have not conducted an investigation in this matter, and we are making no 
findings of criminal or unlawful conduct on the part of the Service Center. Specifically, the petitioner 
has overcome the director's concerns regarding his intent to continue competing by submitting 
evidence of his recent Olympic medal. As the medal was not before the director, his failure to consider 
it was not a criminal or unlawful act. In addition, we make no finding that the director's factual error in 
concluding that the 2003 IAAF award was not part of the record was a criminal or unlawful act, 
especially as the certificate names the competition in French. Finally, our conclusion that Olympic 
team membership may constitute comparable evidence to meet the regulatory criterion at 8 C.F.R. 
§ 204.5(h)(3)(ii) is not meant to suggest that the director's stricter interpretation was a criminal or 
unlawful act rather than an interpretation with which we disagree. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.