dismissed EB-1A Case: Athletics

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
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. 9 1153(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. fj 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. 5 103.5(a)(l)(i). 
zlohn F. ~rissomyctin~ Chief 
Administrative Appeals Office 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which 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. 5 1 153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualifL for classification as an alien of extraordinary ability. 
On appeal, counsel submits a brief. For the reasons discussed below, the petitioner has not overcome 
all of the director's concerns. Specifically, while the petitioner has demonstrated that he minimally 
meets two criteria, counsel asserts that the petitioner meets the remaining criteria with the same 
evidence, some of which does not relate to those criteria or is simply not persuasive. 
For example, counsel relies on the broadcast of competitions where the petitioner has competed on 
ESPN to meet several criteria. First, while ESPN may operate nationally recognized television stations, 
we cannot ignore that the stations broadcast sports and sports related programs 24 hours a day. The 
petitioner has not established that every event televised on an ESPN station is a major sports event. 
Moreover, the supplementary information at 56 Fed. Reg. 60899 (Nov. 29, 1991) states: 
The Service disagrees that all athletes performing at the major league level should 
automatically meet the "extraordinary ability" standard. . . . A blanket rule for all major 
league athletes would contravene Congress' intent to reserve this category to "that small 
percentage of individuals who have risen to the very top of their field of endeavor." 
Every major league player is likely to have appeared on network television during a game. Clearly, 
however, the language quoted above reveals that the regulations did not contemplate such appearances 
to be used to meet multiple criteria. While the ESPN appearances will be considered below, they do 
not carry the evidentiary weight imputed to them by counsel. 
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, 
Page 3 
(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 
seeking 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. 5 204.5(h)(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. 5 204.5(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. 
Before we can determine whether the petitioner has sustained national or international acclaim in the 
field he seeks to pursue in the United States we must determine what he intends to do here. Initially, 
the petitioner submitted a letter from er of in 
Virginia. Ms. asserts that the gym wishes to employ the petitioner as a trainer in Sport Aerobics 
and would like him to represent the gym at Sport Aerobics competitions. 
In response to the director's request for additional evidence, the petitioner submitted a letter from 
addressed to the petitioner confirming SOBE's 
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sponsorship of the petitioner at the upcoming World Cup Sports Aerobics Championship in Los 
Angeles in 2007. The petitioner also submitted a class schedule for the club listing the petitioner as the 
instructor for two classes. 
The director concluded that the letters from Gold's Gym and SOBE conflicted with each other and, 
thus, could not establish the petitioner's intent to work in his area of expertise. On appeal, counsel 
affirms the prestige of both gyms and asserts that the SOBE letter was submitted "in addition to prior 
letters" relating to the petitioner's employment intentions. 
The regulation at 8 C.F.R. 5 204.5(h)(5) provides: 
No offer 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 
Page 4 
from the beneficiary detailing plans on how he or she intends to continue his or her 
work in the United States. 
The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). Moreover, counsel's assertions do not resolve whether the 
petitioner intends to work for and be sponsored by SOBE or Gold's Gym. That said, the regulation at 
8 C.F.R. $204.5(h)(5), quoted above, does not require a specific job offer. Rather, the regulation 
expressly allows letters (plural) fi-om prospective employers (also plural). We are satisfied that the 
petitioner intends to work both as an instructor and a competitor. Thus, while we concur with the 
director that the record lacks extensive evidence' relating to the regulatory criteria regarding the 
petitioner's abilities as an instructor, we will consider his achievements as a competitor. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a sport aerobic 
athlete, instructor and choreographer. The regulation at 8 C.F.R. $ 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). Barring the alien's receipt of such an award, the 
regulation outlines ten criteria, at least three of which must be satisfied for an alien to establish the 
sustained acclaim necessary to qualify as an alien of extraordinary ability. The petitioner has submitted 
evidence that, he claims, meets the following i rite ria.^ 
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 several certificates. The majority of these certificates confirm only the 
petitioner's participation in various events. Participation is not a prize or award. Thus, we will only 
consider those certificates that confirm the petitioner's placement in first through third place. 
The petitioner submitted a certificate from the Association of National Aerobic Championships 
(ANAC) confirming that the petitioner placed in the 2004 Italian national championships. The place 
number is handwritten and illegible. A second certificate from ANAC appears to confirm the 
petitioner's first place finish in the same championship in 2003. The petitioner placed second at the 
2003 Nokia World Aerobic competition in Prague, a Federation of 
Fitness (FISAF) sanctioned event. 
 In 2000, the petitioner placed 
Championship in the Czech Republic, a FISAF sanctioned event. 
finished third at a FISAF sponsored event in France. Information downloaded from the website 
www.nac-italia.org and submitted by the petitioner references a second place finish in 2004, but the 
certificate for that award is not in the record. 
1 
As quoted above, section 203(b)(l)(A)(i) requires extensive evidence of sustained national or international 
acclaim. 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
While some of the petitioner's references list other awards, those awards are not documented in the 
record. The regulation at 8 C.F.R. 5 103.2(b)(2)(i) requires the submission of primary evidence. 
According to the regulation at 8 C.F.R. 5 103.2(b)(2)(ii), affidavits are only acceptable once the 
petitioner has established that primary and secondary evidence are unavailable. The petitioner has not 
provided such evidence. Nor do the letters meet the definition of an affidavit. Thus, we cannot 
consider these additional awards. 
The petitioner submitted information from FISAF's website asserting that it is "an international, 
independent, non-profit federation dedicated to sports aerobics and the development of the 
aerobiclfitness industry, internationally." The website lists 26 countries that are members. In addition, 
the petitioner submitted newspaper articles that, while not primarily about the petitioner, do cover the 
events where he competed. Finally, the petitioner submitted evidence that competitions where the 
petitioner has competed have been televised on ESPN. This evidence relates to the significance of the 
events where he competed. 
In response to the director's request for additional evidence, the petitioner submitted information on 
NAC Italia Sport & Dance letterhead. The document is unsigned and does not appear to be an official 
pamphlet of the organization. According to this document, ANAC is the governing worldwide 
association for Sports Aerobics. The petitioner also submitted a 2004 draft agreement between the 
Federation of International Gymnastics (FIG), the worldwide governing body for gymnastics 
recognized by the International Olympic Committee (IOC) and ANAC. While labeled a draft, the 
document is signed by officials of both ANAC and FIG. The record also contains a December 2005 
addendum. In the 2004 agreement, ANAC accepted that FIG and its Unions and Member Federations 
are the only organizations entitled to organize World and National Championships except where 
ANAC and FIG have come to an agreement otherwise and that ANAC will not name national or world 
champions or organize world championships. ANAC further agreed that its competitors would not 
participate in events organized by FISAF or any other non-recognized organization or accept 
competitors that had competed in such events. The December 2005 addendum provides that ANAC 
will use FIG rules and judges. The petitioner also submitted a history of FIG which indicates that FIG 
organized a Sports Aerobics commission and the first world championship in that field in 1994 and 
subsequently recognized Sports Aerobics as an official discipline in 1996, all several years before 
entering its agreement with ANAC. 
The director concluded that the petitioner had not established that the competitions where the 
beneficiary won awards were "world class events." The director also noted the lack of evidence that 
the petitioner had won awards as an instructor or that students under his tutelage have won nationally or 
internationally recognized awards. 
On appeal, counsel reviews the materials previously submitted and asserts that there are a large number 
of competitors at Sports Aerobics championships and that the competitions award prizes as high as 
$1,000. As stated above, the unsupported assertions of counsel do not constitute evidence. Matter of 
Page 6 
Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez- 
Sanchez, 17 I&N Dec. at 506. 
The agreement between ANAC and FIG suggests that FISAF competitions are not recognized and that 
FIG views itself as the worldwide governing authority for Sports Aerobics, for which it has organized 
international competitions since 1994. The record contains no evidence that the petitioner won an 
ANAC sanctioned event after the agreement with FIG or that he has ever won an award at an FIG 
sanctioned event. 
While the record is somewhat ambiguous regarding the various levels of significance of FISAF, ANAC 
and FIG, we acknowledge that the record contains evidence that the petitioner has competed 
successfully at events that have warranted media coverage. Thus, we withdraw the director's finding 
that the petitioner does not meet this criterion. 
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 or fields. 
Aerobics Championship (NAC), confirming that the petitioner was selected by Italy NAC to represent 
Italy in Los A&eles in July 2006. That letter is not in the record. Rather, the record contains an 
October 17,2005 letter from affirming the petitioner's participation in Italy NAC events and 
Sports Aerobic events abroad. She concludes: "ANAC Italy enjoyed his talent for many years with 
consistent successes." We acknowledge that the record does contain evidence that the petitioner has 
competed internationally for Italy, although not at FIG sanctioned events. 
In response to the director's request for evidence, which specifically requested evidence of the 
actual membership and evidence that the association requires outitanding achievements of 
its members, counsel references 2005 letter and the sentence quoted above. Counsel 
affirms the prestige of ANAC and also asserts that the petitioner "is a member" of FISAF, another 
The director concluded that the record does not demonstrate that the petitioner is a member of an 
association that requires outstanding achievements of its members as judged by nationally or 
internationally recognized experts. 
On appeal, counsel merely reiterates his statements in response to the director's request for additional 
evidence. 
There are three elements to meeting this criterion. First, the petitioner must be a member of an 
association. Second, the association must require outstanding achievements in the field. Finally, the 
achievements of prospective members must be judged by nationally or internationally recognized 
experts. 
The petitioner has not established that participation in FISAF or ANAC sanctioned events constitutes a 
"membership" as that term is commonly understood. Significantly, counsel asks us to infer 
membership from comments in letters rather than through the submission of a membership card. While 
this office has, on a case-by-case basis, accepted Olympic team membership as comparable evidence to 
meet this criterion pursuant to the regulation at 8 C.F.R. 5 204.5(h)(4), Olympic team membership is 
far more exclusive than being among the large number of athletes qualified to compete internationally 
for a country at events sponsored by entities of varying distinction. 
In addition, the petitioner has not established that mere qualification to compete internationally is an 
outstanding achievement. As stated above, competing in the major leagues does not create a 
presumption of eligibility. 56 Fed. Reg. 60899 (Nov. 29, 1991). Thus, we must carefully consider 
claims that team membership is qualifling. 
The ANAC rules submitted by the petitioner reflect that participants in ANAC worldwide events need 
only have won a local cup challenge, which can be hosted by a health club, gym or recreational center. 
Such local competitions can even be part of a regularly scheduled aerobics class. In light of the above, 
we are not persuaded that qualifying to compete at FISAF or ANAC events is an outstanding 
achievement such that the petitioner's alleged "membership" in these associations is qualifying. While 
an athlete must continue to compete successfully to move up, at issue for this criterion are the basic 
"membership" requirements. 
Finally, the petitioner had not established that nationally or internationally recognized experts judge 
whether an athlete may participate at FISAF or ANAC events. Rather, as stated above, winning a local 
cup challenge can be the original basis of eligibility to compete in ANAC sanctioned events. 
In light of the above, we uphold the director's 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 jield for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
Initially, the petitioner submitted stills from television broadcasts of competitions on ESPN, 
photographs of the petitioner appearing in print publications, a mention of the petitioner's name on Italy 
NAC's website, coverage of events in which the petitioner was scheduled to participate or had 
participated that named the petitioner and what is labeled as an interview with the petitioner. The 
record does not contain the publication name or date for the "interview." A July 26, 2004 article 
appears in I1 Giorno. The petitioner also submitted an article he wrote for Effetto Club magazine. In 
response to the director's request for additional evidence, the petitioner submitted evidence that I1 
Giorno is one of Milan's leading newspapers, with a decreasing circulation from 106,071 copies sold in 
1996 to only 69,009 sold in 2005. The petitioner failed to submit any circulation data for the other 
media. 
The director concluded, incorrectly, that the article in I1 Giorno was not accompanied by a certified 
translation. The director further concluded that the article did not appear to be about the petitioner and 
that the ESPN broadcasts were not published materials. 
On appeal, counsel asserts that the live transmission of competitions in which the petitioner participated 
on ESPN serves to meet this criterion and that "media" should not be limited to print media. 
Subsequently, counsel asserts that it would be "difficult to find a more public display of the 
beneficiaries [sic] work than on ESPN whether as part of a performance with two other people or 
alone." Counsel further asserts that the mention of the petitioner on Italy NAC's website, "the most 
prestigious organization of sports aerobics in Italy" serves to meet this criterion as the Internet "is a 
primary news source and method of acquiring knowledge." Finally, counsel reiterates that the 
petitioner is discussed in I1 Giorno, one of Milan's leading newspapers. 
Counsel is not persuasive. First, counsel appears to confuse this criterion with the artistic display 
criterion set forth at 8 C.F.R. 5 204.5(h)(3)(vii). At issue for this criterion is not whether any media 
outlet has televised or pictured a "display" of the petitioner's work, but whether the petitioner has been 
the subject of journalistic coverage in major media. As the regulatory criteria are designed to 
demonstrate national or international acclaim, the petitioner must demonstrate national media coverage, 
either in a nationally distributed publication or, at the very least, coverage in several major regional 
publications representing, in the aggregate, national coverage. 
We do not question that some television coverage can qualify under this criterion provided it is "about" 
the alien. We concur with the director, however, that the ESPN stills cannot serve to meet this 
criterion. They represent coverage of a competition, not media coverage of the petitioner individually. 
As an analogy, a football player featured as the primary subject of a television expose demonstrates far 
more national acclaim than every National Football League player who, playing for a major league 
team, is necessarily visible on major television networks. As noted above, playing in the major leagues 
is not presumptive evidence of eligibility. 56 Fed. Reg. 60899 (Nov. 29, 1991). Thus, we concur with 
the director that the ESPN coverage is not "about" the petitioner as required under the plain language of 
the regulation at 8 C.F.R. 5 204.5(h)(3)(iii). 
In addition, while some Internet coverage may serve to meet this criterion, we cannot ignore that 
anyone with a computer can create a website. Thus, we must evaluate Internet coverage on a case-by- 
case basis. The record contains no evidence regarding the traffic Italy NAC's website receives. 
Moreover, independent journalistic coverage of the alien is far more persuasive than promotional 
material by the entity sponsoring the competitions at which the petitioner competes. Finally, the 
petitioner is merely named on this website along with several other athletes. Thus, these materials 
cannot be considered to be "about" the petitioner. 
Finally, I1 Giorno is documented as a purely local Milan newspaper. The record does not suggest it has 
a notable circulation outside the Milan area. Moreover, the article merely mentions the petitioner and 
other athletes. It is not primarily about the petitioner. 
In light of the above, we concur with the director that the petitioner has not submitted published 
materials about himself that have appeared in major media. As such, the petitioner has not established 
that he meets this criterion. 
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 alliedfield of specijication for which classijication is sought. 
Initially, the petitioner submitted a letter from 
 of FISAF Italy. Ms. = 
asserts that the petitioner judged a national aerobic championship in 1998. In response to the director's 
request for additional evidence, the petitioner submits ;new letter from 
 asserting that the 
petitioner passed th 
rrrr 
ite examination to be a judge in 1998 and judged "several national Italian 
competitions." Ms. 
 explains that ANAC judges must pass a written and video exam and that 
"many judges have been top competition winners with sustained national and international 
championships." Ms. otes that after 2005, ANAC judges who wished to continue judging had 
to be certified by FIG. She does not indicate that the petitioner has been, in fact, certified by FIG. 
Thus, the record does not support counsel's assertion that the petitioner has been trained to judge 
competitions according to the rules accepted by the Olympic Committee. 
While there may be an overlap between acclaimed athletes and judges, does not indicate that 
judges are selected from a pool of acclaimed athletes. Rather, an applicant to be a judge need only pass 
a written and video test. 
The director concluded that the petitioner had only established having judged a single competition in 
1998, which could not be considered evidence of sustained acclaim sufficient to meet this criterion. On 
appeal, counsel reviews the evidence of record. 
Once again, the petitioner's achievements were at events sanctioned by FISAF and ANAC prior to its 
association with FIG, which was concurrently sponsoring its own competitions in Sports Aerobics. 
Nevertheless. contrarv to the director's conclusion. the record does contain affirmation that the 
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petitioner judged "several" national events. s letter would have been more persuasive had 
she named the specific events and supported her assertion with programs listing the petitioner as a 
judge. We are satisfied, however, that the petitioner minimally meets this criterion. 
Evidence of the alien's original scientijic, scholarly, artistic, athletic, or business-related 
contributions of major signlJicance in the field. 
Initially, counsel asserted that the petitioner meets this criterion through his appearances on ESPN, his 
awards and the "accolades from his peers." In response to the director's request for additional 
Com~etitive Aerobics Federation (USCAF). who states that the ~etitioner has demonstrated athleticism 
and creativity. Counsel further notes that efers to th; petitioner's "unique" talent. 
The director concluded that the petitioner had not demonstrated his impact on others in the field. On 
appeal, counsel reiterates previous assertions, noting that 
 also refers to the petitioner's 
talent as "unique." 
According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major signzjicance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. To be considered a contribution of major 
significance in the field of Sports Aerobics, it can be expected that the petitioner would be able to 
show a demonstrable impact on the field. 
Counsel's initial assertion that the petitioner's televised performances and awards serve to meet this 
criterion is not persuasive. We are not persuaded that every athlete who participates in a televised 
sport, which includes major league sports, minor league sports in some cases and numerous college 
leagues, has made a contribution of major significance to that sport. In addition, the regulations 
already include an awards criterion, which we acknowledge the petitioner meets. We are not 
persuaded that meeting the awards criterion is presumptive evidence that the alien also meets this 
criterion. To hold otherwise would render the statutory requirement for extensive evidence and the 
regulatory requirement that an alien meet at least three separate criteria meaningless. 
characterizes the petitioner as have "unique talent and skill." In 
addition "unique talent and skill." mentions the 
etitioner's "amazing creativity." Other references, including Sports Aerobics champion- 
I) and -1 owner of a fitness club in Milan where the petitioner worked as an 
instructor, also use the phrase "unique talent and skill." 
While we do not question the sincerity of the petitioner's references, it remains that, as stated above, 
it is not enough that the petitioner's work be original. Moreover, the extent of the petitioner's 
originality is not documented. For example, the ANAC rules provide for specific elements to be 
included in routines. Rule 3.5(C) provides that new elements may be added and assigned a difficulty 
value if introduced by an athlete and evaluated by the panel judges and ANAC headquarters. The 
record contains no evidence that the petitioner initiated a "new element" in Sports Aerobics that has 
been adopted by ANAC and assigned a difficulty value. 
Moreover, the record does not establish that any of the petitioner's originality has had a major impact 
on the field. The record includes no evidence that the field of Sports Aerobics has evolved in a 
major way due to the petitioner's original contributions to that field. Thus, we concur with the 
director that the petitioner has not demonstrated that he meets this criterion. 
Page 11 
Evidence of the display of the alien's work in thejield at artistic exhibitions or showcases. 
Initially, counsel asserted that the ESPN coverage of events in which the petitioner participated and the 
published material discussed above serve to meet this criterion. In the request for additional evidence, 
the director noted that this criterion applies to the arts. In response, counsel asserts that there is 
"nothing in the regulations that indicates this criterion only applies to the arts" and that the director's 
"narrow interpretation is contrary to the intention of the legislature." Counsel then asserts that a statute 
must be interpreted in favor of the applicant, but provides no legal authority for that proposition. 
Counsel then asserts that Sports Aerobics includes "artistic expression." Counsel concludes that a 
national competition is a showcase of ability. 
The director concluded that this criterion does not apply to the petitioner. On appeal, counsel reiterates 
the assertions made in response to the request for additional evidence. 
We concur with the director. The plain language of the regulation at 8 C.F.R. $204.5(h)(3)(vii) is not 
ambiguous. We are satisfied that "artistic" modifies both "exhibitions" and "showcases." Thus, this 
criterion is clearly applicable almost exclusively to artists. Significantly, this language appears not in 
the statute, as implied by counsel, but in USCIS' regulations. USCIS is entitled to interpret its own 
regulations and we are satisfied the director's interpretation was not only rational but is consistent with 
our own interpretation. 
The petitioner's sports competitions, and their sporting nature is clear from their broadcast on the sports 
station ESPN, are not artistic exhibitions or showcases. We have already considered the petitioner's 
awards at these competitions above. Their broadcast on ESPN was considered in evaluating whether 
the awards were nationally or internationally recognized. The broadcast, however, in and of itself, is 
not evidence to meet this criterion. We note that athletic competitions are routinely attended by fans or 
televised. We are not persuaded that this fact transforms an athletic competition into an artistic 
exhibition or showcase. 
Finally, the published material has already been considered under the published material criterion set 
forth at 8 C.F.R. 5 204.5(h)(3)(iii). We are not persuaded that evidence directly related to but 
insufficient to meet that criterion must be considered under this criterion, to which it does not appear to 
directly relate. 
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. 
Initially, counsel referenced the ESPN broadcasts and other photographs of competition as evidence to 
meet this criterion. Counsel did not explain how this evidence relates to this criterion. In response to 
the director's request for additional evidence, counsel asserts that the petitioner played a leading role 
Page 12 
Italy NAC. While counsel affirms the distinguished reputations of ESPN and Italy NAC, he merely 
asserted without explanation that the petitioner played a critical role for these entities. 
The director concluded that the petitioner had not been hired to fill a specific role and did not otherwise 
fill an official role with either ESPN or Italy NAC. On appeal, counsel erroneously states that the 
director accepted the petitioner's critical role with the above associations but concluded that they were 
not distinguished. Counsel then affirms their distinguished reputation. Counsel mischaracterizes the 
director's concerns as stated in the notice of denial.3 
At issue for this criterion are the position the petitioner was selected to fill and the reputation of the 
entity that selected him. In other words, the position must be of such significance that the alien's 
selection to fill the position, in and of itself, is indicative of or consistent with national or international 
acclaim. We concur with the director that competing in competitions broadcast by ESPN does not 
constitute a leading or critical role for ESPN. Similarly, the petitioner's competition in Italy NAC 
events is not evidence of his selection to play a leading or critical role for that association. Thus, we 
uphold the director's ultimate conclusion that the petitioner has not established that he meets this 
criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
Counsel asserts that the ESPN broadcasts serve to meet this criterion because they attracted high 
ratings. As stated above, the unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez- 
Sanchez, 17 I&N Dec. at 506. In response to the director's request for additional evidence, which 
stated that this criterion does not apply to athletes, counsel asserts that the regulation does not support 
that interpretation and that the "legislation" does not specifically exclude athletes. Counsel also 
reiterated that Sports Aerobics includes artistic elements. 
The director concluded that the record did not support a claim to meet this criterion. On appeal, 
counsel reiterates previous assertions. 
Once again, the plain language of the criterion is clear. It requires evidence of commercial success in 
the performing arts. The types of evidence listed, box office receipts and recorded media sales are 
evidence relating to the performing arts. Even if we were to conclude that evidence of commercial 
success as an athlete could serve as comparable evidence to meet this criterion, the petitioner must 
demonstrate personal commercial success, not merely an association with another entity that enjoys 
commercial success. The broadcast of competitions in which the petitioner participated is not evidence 
of the petitioner's personal commercial success. Moreover, the petitioner did not submit box office 
receipts or evidence of recorded media sales as required by the regulation at 8 C.F.R. 5 204.5(h)(3)(x). 
3 
 The director does appear to acknowledge the petitioner's role for various teams in the request for additional 
evidence, but the director's final conclusions as stated in the denial represent his ultimate conclusions. 
Page 13 
In light of the above, the petitioner has not established that he meets this criterion. 
Comparable evidence pursuant to 8 C. F. R. § 204.5@) (4) 
Initially, counsel asserted that the reference letters constitute comparable evidence to the regulatory 
criteria. The regulation at 8 C.F.R. $204.5(h)(4) provides that comparable evidence may be submitted 
where the regulatory criteria at 8 C.F.R. fj 204.5(h)(3) do not "readily apply." 
The petitioner has not established that the regulatory criteria are not readily applicable. In fact, the 
petitioner claims to meet eight of ten criteria, of which an alien need meet only three. As discussed 
above, we are persuaded that the petitioner meets two of those criteria. While some of the other criteria 
are not applicable, there are other criteria that are applicable but the petitioner simply does not meet 
them. 
Finally, even if the regulatory criteria were not readily applicable, the petitioner has not demonstrated 
that inherently subjective opinion letters are comparable to the objective evidence required under the 
regulatory criteria set forth at 8 C.F.R. fj 204.5(h)(3). 
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. 
For the reasons discussed above, we find that the petitioner has minimally established that he meets two 
criteria. According to the regulation at 8 C.F.R. fj 204.5(h)(3), an alien must meet at least three to be 
eligible for this exclusive classification. The record falls far short of establishing that the petitioner 
meets a third criterion. In fact, as discussed above, even the value of the evidence found sufficient to 
meet the criteria at 8 C.F.R. fj 204.5(h)(3)(i) and 8 C.F.R. fj 204.5(h)(3)(iv) is somewhat reduced given 
the remaining questions regarding how competitions sanctioned by FISAF and ANAC, prior to 2005, 
compared with those sanctioned by FIG. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
Sports Aerobics competitor, instructor or choreographer 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. The evidence indicates that the petitioner shows talent as a Sports Aerobics competitor, but 
is not persuasive that the petitioner's achievements set him significantly above almost all others in his 
field. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the 
Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
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ORDER: The appeal is dismissed.