dismissed EB-1A Case: Athletics

idcntiCying data dtletcQ co 
prevent clearly unwamrnted 
invasion of ~nal privacy 
PUBLIC COPY 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
IN RE: 
AUG 0 6 2010 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the 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. 5 103.5. 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. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 

Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition and affirmed that decision on motion. The matter is now before the Administrative Appeals 
Ofice (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 11 53(b)(l)(A). The 
petitioner is an athletic trainer. The director determined the petitioner had not established the sustained 
national or international acclaim necessary to qualify for classification as an alien of extraordinary 
ability. 
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. 5 204.5(h)(3). The implementing regulation at 8 C.F.R. 5 204.50(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. $204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, counsel submits a brief and a newspaper article that postdates the filing of the petition. The 
petitioner must establish his eligibility as of the filing date. See 8 C.F.R. $5 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Reg'l. Comm'r. 1971). As such, we cannot consider this new evidence 
under 8 C.F.R. 5 204.5@)(3)(iii) (requiring evidence of published material about the alien). For the 
reasons discussed below, we uphold the director's ultimate finding that the petitioner has not established 
eligibility for the exclusive classification sought. 
While U.S. Citizenship and Immigration Services (USCIS) approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the beneficiary, the prior approval does not preclude USCIS fiom 
denying an immigrant visa petition based on a different, if similarly phrased standard. It must be noted 
that many 1-140 immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. 
See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd v. Sava, 724 F. Supp. 1 103 
(E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-129 nonimmigrant petitions than I- 
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 USCIS 
fiom denying an extension of the original visa based on a reassessment of beneficiary's 
qualifications). 
Moreover, if the previous nonimmigrant petition was approved based on the same unsupported 
assertions that are contained in the current record, the approval would constitute material and gross 

Page 3 
error on the part of the director. Due to the lack of required initial evidence in the present record, the 
AAO finds that the director was justified in departing from the previous nonimmigrant approval by 
denying the present immigrant visa petition. 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of a prior approval that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged error 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 had approved a nonirnmigrant 
petition on behalf of the beneficiary, 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.), afd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
I. Law 
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. 
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 10lSt 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. ; 8 C.F.R. 5 204.5(h)(2). 

Page 4 
The regulation at 8 C.F.R. tj 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the following ten categories of 
evidence. 
(i) Documentation of the alien's receipt of lesser 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 
(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. Kazarian v. USCIS, 596 F.3d 1 1 15 (9th Cir. 20 10). Although the 

Page 5 
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. 
5 204.5@)(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. at 1 121 -22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1 122 (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] 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. 11 53(b)(l)(A)(i). 
Id. at 1 1 19-20. 
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 8 C.F.R. 103.3(a)(l)(iv); Soltane v. DOJ, 381 
F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), afd, 345 F.3d 683 (9' Cir. 2003) (recognizing the AAO's de novo authority). 
11. Analysis 
At the outset, we note that 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 
' 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. 8 204.5(h)(3)(iv) and 8 C.F.R. 
204.5(h)(3)(vi). 

Page 6 
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." 
We find that the reasoning expressed in this language is equally applicable to athletic trainers serving 
major league teams. 
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. 
documenting these memberships. The director noted the lack of evidence documenting the petitioner's 
membership in these societies and concluded that the petitioner had also not provided any evidence of 
the membership requirements for these societies. Counsel did not challenge these conclusions on 
motion or appeal. 
In light of the above, the petitioner has not submitted the required initial evidence under 8 C.F.R. 
5 204.5(h)(3)(ii). 
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 classlJication is sought. Such evidence shall 
include the title, date, and author of the material, and any necessary translation. 
Initially, counsel asserted that the petitioner "is featured in Major Magazines and Newspapers 
throughout the world." The petitioner initially submitted several foreign language articles with 
uncertified translations that are barely comprehensible. The regulation at 8 C.F.R. 5 103.2(b)(3) 
requires that all foreign language documents be accompanied by complete certified translations. Most 
of the translations do not provide the date and author and some do not identifl the publication. The 
petitioner did not submit the circulation or distribution data for the publications or any other evidence 
that would confirm that the publications are professional or major trade publications or other major 
media. The director concluded that with one exception, the articles were not about the petitioner. 
On motion, the petitioner submitted a 2007 article in the Los Angeles Times about - 
The article notes that the petitioner would return for 
a fourth season as the team's massage therapist. The article, however, also discusses new hires and 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 

Page 7 
provides updates on injured players. The article identifies the Cleveland Indians as having the medical 
department as "among the best in baseball at preventing injuries." Counsel asserted that the article was 
being submitted "in addition to the numerous articles previously submitted." 
The director noted that qualifying evidence under 8 C.F.R. tj 204.5(h)(3)(iii) consists of published 
material where the petitioner is the "focal point" and that appears in professional or major trade 
publications or other major media. The director concluded that the submitted evidence did not meet 
these requirements. 
On appeal, counsel submits another article in the dated September 11, 2009 and 
asserts that this article demonstrates how the petitioner was part of the 
under Ueadership. Counsel notes that the article states that, of the trainers on the 
staff, the petitioner w 
 The article is primarily about the 
Dodgers' goal of finishing the season with six or more players with at least 500 plate appearances. The 
nearly three-page article mentions the petitioner in only a single sentence. 
The petition was filed on May 14, 2009. Thus, any qualifying published material submitted under 
8 C.F.R. tj 204.5(h)(3)(iii) must have been published prior to that date. See 8 C.F.R. tjtj 103.2(b)(l), 
(12); Matter of Katigbak, 14 I&N Dec. at 49. All of the case law on this issue focuses on the policy of 
preventing petitioners fiom securing a priority date in the hope that they will subsequently be able to 
demonstrate eligibility. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Reg'l. Comm'r. 1977); 
Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Izummi, 22 I&N Dec. 169, 175-76 
(Comm'r. 1998) (citing Matter of Bardouille, 18 I&N Dec. 1 14 (BIA 198 1) for the proposition that 
we cannot "consider facts that come into being only subsequent to the filing of a petition.") 
Consistent with these decisions, a petitioner cannot secure a priority date in the hope that he will 
subsequently be covered by qualifying media. Ultimately, in order to be meritorious in fact, a 
petition must meet the statutory and regulatory requirements for approval as of the date it was filed. 
Ogundipe v. Mukasey, 541 F.3d 257,261 (4th Cir. 2008). 
We concur with the director that the 2007 Los Angeles Times article is not "about" the petitioner 
relating to his work. Rather, it is primarily about 
 change in his department's philosophy 
and structure. 
Regarding the initial published material submitted, as stated above, the translations are not certified as 
required under 8 C.F.R. tj 103.2(b)(3) and are difficult to comprehend. Even assuming that any of these 
articles are primarily "about" the petitioner, the record lacks any evidence of the circulation or 
distribution of the publications in which these articles appeared. As stated above, the petitioner also 
failed to comply with the regulation at 8 C.F.R. tj 204.5(h)(3)(iii) by providing the date and author of 
each article. 
In light of the above, the petitioner has not submitted the required initial evidence under 8 C.F.R. 
$ 204.5(h)(3)(iii). 

Page 8 
Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related 
contributions of major signlJicance in the field. 
According to the plain language of the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's 
contributions must be both original and of major significance. We must presume that the word 
"original" and the phrase "major significance" are not superfluous and, thus, that they have some 
meaning. To demonstrate an original contribution of major significance in the field of athletic 
training, it can be expected that other teams would be demonstrably influenced by training 
techniques developed by the petitioner. The application of traditional methods in a different region 
from where they were developed does not transform those traditional methods into something 
"original." 
Initially, counsel stated: 
The distinguished reputation of the - will be a driving force in the 
establishment of [the petitioner's] career in the United States, particularly in Southern 
California. The reputable professional baseball organization will lead to events, 
competitions and possible championships nationwide with [the petitioner] as a 
(Emphasis in original.) This statement does not explain how the petitioner has already made 
contributions of maior significance in the field of athletic training. Counsel references "EXHIBIT D." 
which consists of 'letters from individuals associated with &e a representative of the 
1 and an official with the the Japanese 
team for which the petitioner previously worked. 
seen Japanese massage and acupuncture introduced to Major League training rooms over the years and 
confirms its effectiveness, he does not suggest that the petitioner developed these methods or that he 
has influenced the introduction of such treatments. 
are Japanese massage and acupuncture, which he does not suggest the petitioner developed or 
does not suggest that the petitioner has influenced athletic trainers beyond the 

Page 9 
at the Japanese massage and acupuncture provided 
during his previous service for the 
While 
 asserts that his ability to perform at the level he does for the 
petitioner's abilities, he does not assert that the petitioner has developed original techniques rather than 
apply traditional Japanese techniques or explain how the petitioner is influencing athletic training as a 
whole. 
, asserts that when in Japan, he received treatments based on 
Japanese "teachings" and "was very happy that I was able to receive the same kind of treatment by [the 
petitioner] here in the [Sltates too." This statement confirms that the petitioner is familiar with 
Japanese techniques that, while possibly less practiced in the United States, are not "original." 
The petitioner also provides similar letters from other mplayers who praise the petitioner's skills 
and credit him with their own performances. None of these letters explain how the petitioner's 
techniques are original in that he developed them or how the petitioner's influence has extended outside 
the - 
the petitioner's "extraordinary ability" but does not explain how the petitioner's contributions, if any, are 
original or of major significance in the field of athletic training. 
- confirms that the petitioner was an 
iscusses the reputation of this 
professional baseball team in Japan. He explains that the petitioner served as an for the 
team and its subsidiary minor league teams, as head athletic trainer for a minor league team and as a 
explains that the petitioner prepared individualized exercise and training programs 
grams and therapies for injured athletes. While the programs may have been 
individualized for 
 oes not assert that they were "original" in that they utilized 
novel techniques. 
 that other trainers have been influenced by the 
petitioner. 
The director acknowledged the submission of letters, but concluded that they did not establish that the 
petitioner has made significant contributions to the field of athletic training. On motion, counsel 
asserted that the letters provided "did in fact praise the rare techniques Ithe petitioner] uses to 
rehabilitate these professional baseball players." "Rare" is not synonymous with "original." The issue 
of whether similarly-trained workers are available in the United States is an issue under the 
jurisdiction of the Department of Labor. New York State Dep't of Transp., 22 I&N Dec. 215, 221 
(Cornm'r 1998). The director concluded that the petitioner had not demonstrated that his contributions 
have been significantly influential and noted that performing one's job competently is not a contribution 
of major significance to the field. 

Page 10 
On appeal, counsel submits the 2009 article in the Los An eles Times and asserts that it demonstrates 
the petitioner's contribution to the philosophy of the and the health of the team's players. 
Insofar as the article discusses the petitioner's employment prior to the date of filing, we will consider 
this article. The article discusses the importance of keeping players off the disabled list, noting that of 
the seven teams that were proiected to finish the season with six or more wlavers with 500 date 
appearances, only the had a losing record. The article fkther states that has 
been responsible for increasing the number of players with 500 or more plate appearances. While Mr. - - 
allowed the petitioner ti remain, the article reveals that the of in'uries increased with 
arrival, not the petitioner's. The article also references 1 use of platelet rich 
plasma. The record contains no evidence that the petitioner developed this technique. 
The record reveals that the petitioner is skilled in Japanese massage and acupuncture treatments, 
traditional techniques that the petitioner did not develop or expand. Even assuming that introducing 
those techniques to the 
- 
s somehow "original," the petitioner has not established that these 
techniques are contributions o major significance in the field as a whole. The record contains no 
evidence that other teams have taken notice of the techniques being used by the and are 
emulating their use rather than simply following a national trend of using Eastern-based massage and 
acupuncture techniques. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 C.F.R. fj 204.5(h)(3)(v). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted his contract with Major League Baseball listing his position as - - The 2007 article in the dentifies the petitioner 
as the team's massage therapist. The record also contains the above-mentioned letter from - 
regarding the petitioner's position with the  he director concluded that the petitioner's 
position within the team's hierarchy did not suggest that the petitioner's role was either leading or 
critical. On motion, counsel asserted that the petitioner performed a leading or critical role for the 
and, as the team's only massage therapist and acupuncturist, serves a leading or critical 
role for the The director reaffirmed his previous conclusion. On appeal, counsel reiterates 
previous assertions. 
According to the plain language of the regulation at 8 C.F.R. fj 204,5@)(3)(viii), the petitioner must 
demonstrate that the role for which he was selected is leading or critical and that the organization or 
establishment that selected him enjoys a distinguished reputation. While letters and contracts 
explaining the petitioner's title and position are useful evidence, other helpful evidence may also 
include organizational charts that explain how the petitioner fits within the organization's or 
establishment's hierarchy. 

Page 11 
As stated above, onfirrns that the petitioner was an athletic trainer for the - 
and the head athletic trainer for an associated minor league team. The petitioner was also one of an 
unknown number of athletic trainers for an All-Star game in 2003 and a Japan Championship series in 
2003. oes not state how many athletic trainers worked for the major league team 
and how the petitioner fit within the hierarchy of these trainers. We acknowledge that the petitioner 
played a leading or critical role for the minor league team, but the record lacks evidence that this team 
enjoyed a distinguished reputation. As stated above, the record lacks evidence regarding the number of 
trainers for the All-Star game or the championship series or evidence explaining how the petitioner fit 
within the hierarchy of these trainers. 
Even if we concluded that the petitioner played a critical role for the 
 the regulation at 
8 C.F.R. $ 204.5(h)(3)(viii) requires evidence of such a role for organizations or establishments in the 
plural, consistent with the statutory requirement for extensive evidence at section 203(b)(l)(A)(i) of the 
Act. Significantly, not all of the criteria at 8 C.F.R. $204.5(h)(3) are worded in the plural. 
Specifically, the regulations at 8 C.F.R. $5 204.5(h)(3)(iv) and (ix) only require service on a single 
judging panel or a single high salary. Thus, we can infer that the plural in the remaining regulatory 
criteria has meaning. In a different context, federal courts have upheld USCIS' ability to interpret 
significance from whether the singular or plural is used in a reg~lation.~ 
We are not persuaded that the petitioner's role as the team's sole massage therapist and acupuncturist is 
determinative. The existence of the petitioner's position demonstrates that the team wishes to employ a 
competent massage therapist and acupuncturist, but the existence of a position does not establish that it 
is a critical or leading role for the employer within the context of 8 C.F.R. $ 204.5(h)(3)(viii). 
The petitioner's contract identifies him as an assistant athletic trainer. He is referenced in the 2007 
article as a massage therapist. The record contains no organizational chart or other evidence of how the 
petitioner fits into the hierarchy of the team's staff. Serving as an assistant athletic trainer is not a 
particularly leading or critical role for an athletic trainer. While we recognize that the petitioner is 
affiliated with a major league team, the regulation at 8 C.F.R. 5 204.5(h)(3)(viii) does not suggest that 
employment for a distinguished entity alone is sufficient. As stated above, the supplementary 
information at 56 Fed. Reg. 60899 (Nov. 29, 1991) states that there is no blanket rule for athletes 
playing on a major league team. 
In light of the above, the petitioner has not submitted qualifling evidence that meets the plain language 
requirements of the regulation at 8 C.F.R. $ 204.5(h)(3)(viii). 
Evidence that the alien has commanded a high salary or other signlJicantly high remuneration for 
services, in relation to others in the$eld. 
3 
 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26,2008); Snapnames.com 
Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the 
regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. 3 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 

Page 12 
The petitioner initially submitted the petitioner's contract for 2008 and 2009 reflecting a salary of 
$43,000 in 2008 and $45,000 in 2009 with a housing stipend of an additional $5,400. A 2006 letter 
from indicates that the team was offering the petitioner a salary 
of $30,000 at that time. Counsel asserts that the petitioner would also receive "per diem." 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). The petitioner did not submit any wage data for athletic 
trainers. 
The director initially concluded that the petitioner had not submitted qualifying evidence under 8 C.F.R. 
fj 204.5(h)(3)(ix). The director reached this conclusion by going outside the record of proceeding and 
considering wage data at htt~://www.bls.gov/oes/2009/mav/oes299091 .htm, stating that the website 
indicates that the top ten percent of athletic trainers earn $60,960 or more. The director did not, 
however, add this information to the record of proceeding. We accessed the site on August 5, 2010 
and have incorporated the data into the record of proceeding, which now indicates that the top ten 
percent earn at least $65,140. 
On motion, the petitioner submitted his 2008 Form W-2 Wage and Tax Statements issued by the 
The petitioner appears to have been issued several Form W-2 statements, all but one of which 
are blank. The statement with wage data indicates that the petitioner earned $152,757.26 in 2008, well 
above the 9oLh percentile wages in his field. Thus, the director concluded on motion that the petitioner 
had submitted qualifying evidence under 8 C.F.R. $204.5(h)(3)(ix). 
The petitioner, however, submitted no explanation from the 
 regarding the huge discrepancy 
between his contract and the Form W-2. 
 It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Id. 
At issue is how the alien's basic salary compares with the salary of other athletic trainers irrespective of 
any overtime the alien may work. Any remuneration other than salary, such as bonuses or 
reimbursement of travel expenses, must be compared with bonuses and expense reimbursement in the 
field and must be "significantly high."' 8 C.F.R. fj 204.5(h)(3)(ix). The record is absent any evidence 
explaining the type of remuneration represented by the difference between the $43,000 salary and 
$5,400 housing stipend stated in his contract and the $152,757.26 he actually received. The record is 
also absent evidence that this other remuneration, distinct from his salary, is "significantly high" among 
athletic trainers. 
Without additional evidence about the petitioner's compensation and that provided to other athletic 
trainers, the petitioner cannot meet his burden under the plain language requirements of 8 C.F.R. 
fj 204.5(h)(3)(ix). 
Regarding overtime, an alien cannot meet this criterion simply by working extra hours. 

Page 13 
Summary 
In light of the above, the petitioner has not submitted the requisite evidence under at least three of the 
evidentiary categories for which evidence must be submitted to meet the minimum eligibility 
requirements necessary to qualifl as an alien of extraordinary ability. Nevertheless, we will review the 
evidence in the aggregate as part of our final merits determination. 
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. 8 204.5(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." 8 C.F.R. 8 204.5@)(3). See Kazarian, 596 F.3d at 1 1 1 9-20. We reiterate that the 
supplementary information at 56 Fed. Reg. 60899 (Nov. 29, 1991) states that there is no blanket rule for 
athletes playing on a major league team, which would appear equally applicable to the staff for such 
teams. 
The published materials do not focus on the petitioner or the articles appear in publications with 
unknown circulation. While the content of these articles suggests that the petitioner's skills are 
valued by his employer, the articles are not indicative of or consistent with national or international 
acclaim. 
As stated above, the petitioner's skill at his job is not a contribution of major significance. We note 
that, according to a June 20, 2006 letter from developing individualized treatments, 
rehabilitation schedules and reconditioning programs is an inherent duty for the position of athletic 
trainer. 
The petitioner's role as an assistant athletic trainer is inherent to working in that occupation and does 
not set him apart from other athletic trainers. Finally, the record does not resolve the discrepancy 
between the petitioner's contract salary and the 2008 Form W-2. 
Considering all of the evidence in the aggregate, the petitioner has not established that he enjoys 
sustained national or international acclaim or that his achievements have been recognized in the field of 
expertise. 
111. Conclusion 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 

Page 14 
Review of the record, however, does not establish that the petitioner has distinguished himself as an 
athletic trainer 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 an athletic trainer, 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. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.