dismissed EB-1A Case: Athletics

PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Admill!strative Appeals Ofticc (1\1\0) 
20 Ma,;,achusetts Ave., N.W .. MS 2090 
Washi!1gton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: DEC 0 2 2011 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficial)"" 
PETITION: Immigrant P~tition tur Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) ofth ... ~ Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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 ca',e 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 requiremmts for filing such a reouest can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by tiling a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Piease be aware th~t 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the moti<.n seeks to reconsider or reopelJ. 
Thank you, 
~~ 
~ Perry Rhew . 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an 
alien of extraordinary ability in athletics. The director determined that the petitioner had not 
established the requisite extraordinary ability through extensive documentation and sustained 
national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the 
Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel states: 
~is a world-class competitive swimmer. She has competed at a 
_, and at an international level in Europe, since she was a teenager. The 
evidence shows that she was a national champion in _ and she was a leading 
swimmer on the from 1995 to 2003. 
In 2003, she came to the United States as a member of the ••• 
team at the perennially leading 
team college sports. . .. She left _ after one season, 
but returned to the United States in 2004 and joined the women's swim team at_ 
Mississippi. 
Counsel argues that the petitioner meets at least three of the ten regulatory categories of evidence at 
8 C.F.R. § 204.5(h)(3) as a competitive swimmer and that she has submitted comparable 
evidence of her extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). For the 
reasons discussed below, the AAO will uphold the director's decision. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made 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 seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(i) Documentation of the alien's receipt 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; 
Page 4 
(vi) Evidence of the alien's authorship of scholarly articles III the field, III 
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. USClS, 596 F .3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.l With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." ld. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that ''the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufticient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." ld. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 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. § 1153(b)(1 )(A)(i). 
ld. at 1119-20. 
1 Specifically, the court stated that the AAO had unilaterally impnsed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 5 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
II. Intent to Continue to Work in the Area of Expertise in the United States 
The statute and regulations require that the petitioner seeks to continue work in her area of 
expertise in the United States. See section 203(b)(1)(A)(ii)· of the Act, 8 U.S.C. 
§ 1153(b)(I)(A)(ii); 8 C.F.R. § 204.5(h)(5). On the Form 1-140, Immigrant Petition for Alien 
Worker, in Part 6, "Basic information about the proposed employment," the petitioner lists her 
job title as "Coordinator of Aquatic Operations & Assistant Men and Women Swim" and the 
nontechnical description of her job as "Assistant in Coaching Men and Women Swim Team; 
.. . . Center." Further, the petitioner submitted a letter from_ 
and employs [the petitioner] 
•••••• and [The petitioner] is responsible for the 
following duties: running and managing of the _ swim and diving practice; 
supervising Aquatic staff in maintaining the facility, conducting aquatic programs; 
maintaining staff certification; maintenance of both aquatic facilities; aquatic program 
development, instruction, and supervision of staff; hiring, training and evaluation of staff 
and program personnel; observance of operation and maintenance of pool, monitoring 
staff and observance of safety regulations; and coordinating and supervising swimming 
meets. She assists the Head Coach in recruitment of student athletes; in promoting and 
running events in both facilities. 
also submitted a September 1, 2009 letter from 
"[The petitioner] has worked at 
seasons as a to Advanced. [The petitioner] was responsible for working 
primarily with our swimmers ages 5 - 10, who were just beginning their skills in our team's 
learn to swim " The petitioner's evidence also includes an April 19, 2010 letter from 
stating: "As a coach for [the petitioner] has 
been instrumental in developing our swimmers." Based on letters and the 
information provided on the Form 1-140, the record is clear that the petitioner intends to continue 
to work in the area of swim coaching and aquatics operations in the United States. 
Aside from documentation establishing the petitioner's intention to continue to work in the 
United States as an assistant swimming coach and a 
the petitioner submitted evidence of her accomplishments as a competitive swimmer in Bulgaria 
Page 6 
and as collegiate swimmer in Division II of the _ The documentation accompanying the 
petition focuses primarily on the petitioner's national achievements as a competitive swimmer 
from the 1990s to 2006. The submitted documentation reflects that the petitioner's collegiate 
swimming career ended in 2006 upon her graduation from _ ~rhe petitioner also submitted 
local newspaper articles mentioning her non-competitive swim across the . 
IJL".lHV'''~ 2008 and her participation in a triathlon relay ( a 1.2 
in the "Medical Co-Ed" division of the 
in April 2009, but there is no evidence demonstrating that recreational open-water 
swimming or triathlon competition constitutes the petitioner's area of extraordinary ability, or 
that she intends to continue to work in those areas in the United States. Rather, the record is 
clear that the petitioner intends to continue to work in the area of swim coaching and aquatics 
operations at _ While a competitive swimmer and a coach may share knowledge of the 
sport, the two rely on very different sets of basic skills. Thus, competitive athletics and coaching 
are not the same area of expertise. This interpretation has been upheld in Federal Court. In Lee 
v. INS., 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary ability" as 
working in the same profession in which one has extraordinary ability, not necessarily in 
any profession in that field. For example, Lee's extraordinary ability as a baseball player 
does not imply that he also has extraordinary ability in all positions or professions in the 
baseball industry such as a manager, umpire or coach. 
Id. at 918. The court noted a consistent history in this area. While the record demonstrates that the 
petitioner intends to continue working as a swim coach, there is no evidence indicating that she 
.. intends to compete in national or international swimming pool competitions as she has done in the 
past. The AAO acknowledges the possibility of an alien's extraordinary claim in more than one 
field, such as a swim coach and a competitive swimmer, but the petitioner must demonstrate "by 
clear evidence that the alien is coming to the United States to continue work in the area of 
expertise." See 8 C.F.R. § 204.5(h)(5). In this case, there is no evidence establishing that the 
petitioner intends to continue working in the United States as a competitive swimmer. Although 
the petitioner's accomplishments as a competitive swimmer are not completely irrelevant and will 
be given consideration, ultimately she must satisfy the statutory requirement at section 
203(b)(1)(A)(i) of the Act as well as the regulations at 8 C.F.R. §§ 204.5(h)(2) - (4) through her 
achievements as a coach and an aquatics coordinator. 
USCIS recognizes that there exists a nexus between competing and coaching in a given sport. To 
assume that every extraordinary athlete's area of expertise includes coaching, however, would be 
too speculative. To resolve this issue, a balanced approach is appropriate when reviewing the 
evidence in the aggregate in the final merits determination. Specifically, in a case where an alien 
has achieved recent national or international acclaim as an athlete and has sustained that acclaim in 
the field of coaching at a national level, the AAO can consider the totality of the evidence as 
establishing an overall pattern of sustained acclaim and extraordinary ability such that the AAO 
can conclude that coaching is within the petitioner's area of expertise. A coach who has an 
established successful history of coaching athletes who compete regularly at an advanced national 
level has a credible claim; a coach of intermediates or novices does not. 
Page 7 
III. Analysis 
A. Evidentiary Criteria 
The petitioner has submitted documentation pertaining to the following categories of evidence 
under 8 C.F.R. § 204.5(h)(3).2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
submitted two February 17,2006 certificates from the 
honoring her for making the 
These certificates are regional collegiate honors rather than nationally or 
internationally recognized prizes or awards for excellence in swimming. 
ph()toJ~ralphs of award plaques from the 3ih and 38th 
a" .. ·uu.<;;' that she received the 
(2006) and the are 
institutional honors from the petitioner's alma mater rather than nationally or internationally 
recognized prizes or awards for excellence in swimming. 
award from the_ 
There is no evidence demonstrating the 
..,.F,uu .• "" ......... ·"" and magnitude of the • division won by the petitioner and her 
male teammates. For instance, the petitioner failed to submit evidence of the official results 
indicating the total number of relay entrants in the ._, division. A victory in a 
division with only a small pool of entrants is ~national or international 
recognition. Moreover, a competition may be open to athletes from throughout a particular 
country or countries, but this factor alone is not adequate to establish that an award or prize is 
"nationally or internationally recognized." The burden is on the petitioner to demonstrate the 
level of recognition and achievement associated with her awards. Further, the AAO is not 
persuaded that triathlon competition falls within the petitioner's field of endeavor. Finally, while 
the record includes local of the petitioner's award dated May 2009 in the _ 
of Mississippi), the petitioner 
did not submit evidence of the national or international recognition of her award, such as national 
coverage of the award in the general media. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) specifically requires that the petitioner's awards be nationally or internationally 
recognized in the field of endeavor and it is her burden to establish every element of this criterion. 
There is no documentary evidence demonstrating that the petitioner's "1st Place 
award from the 
2 The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this 
decision. 
Page 8 
recognized beyond the presenting organization or her local community and therefore 
commensurate with a nationally or internationally recognized award in swimming. 
~ubmitted separate letters from 
____ stating: "In 1996 
she was the leader on the 
the 
until 1996, it is unclear how she 
in 1995. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Id. If USCIS fails to believe that a fact stated in the petition is true, USCIS may 
reject that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. INS., 876 
F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 
(D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 . 2001 Rather than 
submitting primary evidence of her from 1995 -
2003, the petitioner instead submitted third-party letters from 
attesting to her receipt of the awards. Going on record without supporting documentary 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
SojJici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg'l Comm'r 1972)). A petition must be filed with any initial evidence required 
by the regulation. 8 C.F.R. § 103 .2(b)(1). The nonexistence or other unavailability of primary 
evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 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 and only where secondary evidence is 
demonstrated to be unavailable may the petitioner rely on affidavits. Where a record does not 
exist, the petitioner must submit an original written statement on letterhead from the relevant 
authority indicating the reason the record does not exist and whether similar records for the time 
and place are available. 8 C.F.R. § 103.2(b)(2)(ii). The letters from Ronnie Mayers and Jeremy 
McClain do not comply with the preceding regulatory requirements. 
Page 9 
a competitive swimmer. The preceding awards resulted from the petitioner's 
accomplishments as a competitive swimmer during her collegiate career and thus cannot be 
considered evidence of her national recognition as a coach or an aquatic operations coordinator. As 
previously discussed, the statute and regulations require that the petitioner seeks to continue work 
in her area of expertise in the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C. 
§ 1153(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). See also Lee v. INS., 237 F. Supp. 2d at 914. 
Accordingly, the petitioner's competitive swimming awards from the mid-1990s to the mid-
2000s do not meet the elements of this regulatory criterion for purposes of establishing her 
extraordinary ability as a coach. There is no evidence showing that the petitioner has received 
nationally or internationally recognized prizes or awards for excellence in coaching. 
In light of the above, the AAO withdraws the director's finding that the petitioner meets this 
regulatory criterion. 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
stating: as a achieved the best 
results in comparison with all competitors who have been _ 
discusses the petitioner's swimming accomplishments, but aside from his own club he does not 
identify any associations of which the a member. There is no evidence 
demonstrating that the outstanding achievements of its 
members, as judged by experts in the petitioner's field. 
~ed a letter from 
~ stating that the n"1~1t-""'""" 
"one of the most-distinguished 
letter, the director's decision 
champion," a 
e swimmers." In discussing 
The letter reiterates events from the petitioner's past as a _competitive 
swimmer, however the author fails to state that the petitioner is or was a member of the 
Nor does the author provide any details regarding the 
The AAO concurs with the director's observations. letter does it 
state that the petitioner is a member of the A petition must be 
filed with any initial evidence required by the regulation. 8 C.F.R. § 103.2(b)(1). The 
nonexistence or other unavailability of primary evidence creates a presumption of ineligibility. 
~i). Further, there is no evidence demonstrating that the _ 
_ requires outstanding achievements of its members, as judged by 
recognized national or international experts in the petitioner's field. 
Page 10 
~discussed, the petitioner submitted separate letters from and 
~ stating: "In 1996 . oined the and 
she was the leader on the . From 1995 to 2003, [the petitioner] received 
the preceding letters provide the same conflicting 
information regarding the petitioner's participation on the Bulgarian national team. As the 
petitioner did n~ until 1996, it is unclear how she 
would receive _in 1995. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 
591-92. Rather than submitting evidence of her team membership from an official representative of 
team, the petitioner instead submitted third-party letters from ...... . 
attesting to her participation. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. at 165. A petition must be filed with any initial 
evidence required by the regulation. 8 C.F .R. § 103 .2(b)(1). The nonexistence or other 
unavailability of primary evidence creates a presumption of ineligibility. 8 C.F.R. 
§ 103.2(b)(2)(i). 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 and only where secondary evidence is demonstrated to be unavailable may the petitioner 
rely on affidavits. Where a record does not exist, the petitioner must submit an original written 
statement on letterhead from the relevant authority indicating the reason the record does not exist 
and whether similar records for the time and are available. 8 C.F.R. § 103.2(b)(2)(ii). The 
letters from and do not comply with the preceding regulatory 
requirements. 
Nevertheless, the record does not include documentary evidence showing that membership on 
the required outstanding achievements, as judged by recognized national 
or international experts. While an athletic team is not strictly speaking an "association," it is 
nonetheless equally true that a player can earn a place on a national or an Olympic team through 
rigorous competition which separates the very best from the great majority of participants in a 
given sport. Therefore, a player's membership on an Olympic team or a major national team 
such as a W orId Cup soccer team may serve to meet this criterion as such teams are limited in 
the number of members and have a rigorous selection process. The AAO reiterates, however, 
that it is the petitioner's burden to demonstrate that she meets every element of a given criterion, 
including that she is a member of a team that requires outstanding achievements of its members, 
as judged by recognized national or international experts. The AAO will not presume that every 
national "team" is sufficiently exclusive. Without evidence showing, for instance, the selection 
requirements for the the AAO cannot conclude that the petitioner meets 
the elements of this regulatory criterion. 
Aside from the preceding deficiencies, the plain language of this regulatory criterion requires 
evidence of the "alien's membership in associations in the field for which classification is 
sought." In this case, the field for which classification is sought is swim coaching. There is no 
evidence indicating that the petitioner seeks to continue work in the United States as a competitive 
Page 11 
swimmer. As previously discussed, the statute and regulations require that the petitioner seeks to 
continue to work in her area of expertise in the United States. See section 203(b)(l )(A)(ii) of the 
Act, 8 U.S.C. § 1153(b)(l)(A)(ii); 8 C.F.R. § 204.5(h)(5). See also Lee v. INS., 237 F. Supp. 2d 
at 914. Accordingly, the petitioner's participation as a competitor on the Bulgarian national team 
from the late 1990s to mid-2000s does not meet the elements of this regulatory criterion for 
purposes of establishing her extraordinary ability as a coach. 
The director discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish her eligibility. On appeal, the petitioner does not contest the director's 
findings for this criterion or offer additional arguments. The AAO, therefore, considers this 
issue to be abandoned. Sepulveda v. us. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (lith Cir. 2005); 
Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30,2011) 
(the court found the plaintiffs claims to be abandoned as he failed to raise them on appeal to the 
AAO). Accordingly, the petitioner has not established that she meets this regulatory criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in thefieldfor which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of significant national distribution, 
unlike small local community papers. 3 
The petitioner submitted for 2005, 2006-2007, 2007-
2008, and 2008-2009. s top tImes and swimming awards in 
various sections and include her biography along with those of the other _team members and 
coaches. The biographies from the 2007-2008 and 2008-2009 identify the petitioner as one of three 
assistant coaches for the _ team. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii) requires "published material about the alien in professional or major trade 
publications or other major media" including "the title, date and author of the material." The 
AAO cannot conclude that the content of a university athletic team's media guide, which is not the 
result of independent media reportage, meets the elements of this regulatory criterion. For instance, 
there is no evidence identifying the author of the material or showing that the media guide 
qualifies as a form of major media. 
The petitioner submitted a May 3, 2009 article about her in the September 
12,2008, December 19,2005, and March 14,2005 articles briefly mentioning her in the_ 
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
and a photograph of her in the 
evidence showing that these two 
media. Further, the AAO notes 
about a birthday swim across the The December 19,2005 
article includes sentence mentioning the petitioner and instead focuses on the _ 
article highlights 
and only briefly 
mentions the petitioner's results along with those of multiple other members. The 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii), however, requires that the published 
material be "about the alien." See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 
* 1, *7 (D. Nev. Sept. 8, 2008) (upholding a fmding that articles about a show are not about the 
actor). 
The petitioner submitted articles in the_ language entitled 
.1Ii •••• for [the petitioner]" (December 23, 2003) and "[The petitioner] won the silver 
medal in the USA" (March 21, 2003), but the English language translations accompanying these 
articles were not certified by the translator as required by the regulation at 8 C.F.R. § 103.2(b)(3). 
Any document containing foreign language submitted to USCIS shall be accompanied by a full 
English language translation that the translator has certified as complete and accurate, and by the 
translator's certification that he or she is competent to translate from the foreign language into 
English. Id Further, the name of the publication and the author of the articles were not 
identified as required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
Moreover, there is no circulation evidence showing that the articles were published in professional 
or major trade publications or other major media. 
The petitioner submitted an article entitled "Hein opens new era of men's and women's 
swimming and diving," but the name and date of the publication were not identified and the article 
was not about the petitioner as required by the plain language of the regulation at 8 C.F.R. 
The also submitted a December 1 2005 article entitled •••• 
and a December 19, 
but 
the name of the publication and the author of the articles were not identified. Further, the articles 
were not about the petitioner and only briefly mentioned her in passing. Moreover, there is no 
evidence showing that any of the preceding three articles were published in professional or major 
trade publications or other major media. 
Aside from the preceding deficiencies, the plain language of this regulatory criterion requires 
"published material about the alien ... in the field for which classification is sought." In this case, 
the field for which classification is sought is swim coaching. There is no evidence indicating that 
the petitioner seeks to continue work in the United States as a competitive swimmer. As previously 
discussed, the statute and regulations require that the petitioner seeks to continue to work in her 
area of expertise in the United States. See section 203 (b)(1 )(A)(ii) of the Act, 8 U.S.C. 
§ 1153(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). See also Lee v. INS'., 237 F. Supp. 2d at 914. 
Accordingly, published material solely about the petitioner's achievements as a competitive 
-Page 13 
swimmer does not meet the elements of this regulatory criterion for purposes of establishing her 
extraordinary ability as a coach. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The petitioner submitted letters of support from the ••• 
the 
and The 
preceding reference letters discuss the petitioner's competitive swimming achievements and 
talent in her sport, but they fail to provide specific examples of how the petitioner's original 
work has significantly influenced or impacted her sport at a level indicative of original athletic 
contributions of major significance in the field . 
••••• states: 
[The petitioner] has ... developed many close relationships throughout the local 
community which has helped bring in new community users and supporters to 
the aquatics facility and other fitness facilities on campus. She is a motivator who 
encourages anyone she comes in contact with to work hard to become the best that they 
can be at any endeavor they may choose. Through the masters swimming program, [the 
petitioner] has brought many local adult swimmers back to the pool to train for events 
such as local triathlons or to simply improve or maintain their health. 
states that the petitioner's work has impacted the local community and her 
university, but there is no documentary evidence showing that her work has notably influenced 
the field at large or otherwise constitutes original contributions of major significance in the sport of 
competitive swimming. 
_states: 
As a [the petitioner] has been instrumental in developing 
our swimmers. Her style of coaching demands the best of our athletes while offering 
encouragement so that they can continue to grow and improve. In fact, I've had several 
parents over the years tell me how much they appreciate the way [the petitioner] is tough 
with their children while still being accessible to them and encouraging their 
development both as swimmers and as individuals. 
_ compliments the petitioner on her coaching style, but he does not provide specific 
examples of how the petitioner's work has significantly impacted swimmers and coaches 
throughout the field at large. 
states: 
Page 14 
[The petitioner] has worked with for 3 seasons as a ••••••••• 
[The petitioner] was responsible for working primarily with our swimmers 
ages 5 - 10, who were just beginning their skills in our team's learn to swim program. 
[The petitioner] was always prompt for team meeting and was never late to any 
practices. . .. On a regular basis she would talk to parents after practice about their 
athletes' progress and share with them the new skills they have learned. 
the petitioner's work for the _ but he does not provide specific 
examples of how the petitioner's contributions have impacted the field such that her work rises 
to the level of original contributions of major significance in the field. Vague, solicited letters 
from local colleagues that do not specifically identify contributions or provide specific examples 
of how those contributions influenced the field are insufficient. Kazarian v. USCIS, 580 F.3d 
1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian court 
reiterated that the AAO's conclusion that "letters from physics professors attesting to [the alien's] 
contributions in the field" were insufficient was "consistent with the relevant regulatory language." 
596 F.3d at 1122. 
With regard to the petitioner's athletic and coaching achievements, the reference letters 
submitted by the petitioner do not specify exactly what the petitioner's "original" contributions 
in competitive swimming have been, nor is there an explanation indicating how any such 
contributions were of major significance in her sport. None of the references provide specific 
examples of how the petitioner's original contributions rise to a level consistent with major 
significance in the field. It is not enough to be talented and to have others attest to that talent. 
An alien must have demonstrably impacted her field in order to meet this regulatory criterion. 
According to the regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's contributions must be not 
only original but of "major significance" in the field. The phrase "major significance" is not 
superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 
51 F. 3d 28,31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 
2003). While the petitioner has earned the admiration of her references, there is no evidence 
demonstrating that she has made original athletic contributions of major significance in the field. 
For example, the record does not indicate the extent of the petitioner's influence on other 
coaches or swimmers in the sport, nor does it show that the field has significantly changed as a 
result of her original work. 
The opinions of experts in the field are not without weight and have been considered above. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter o/Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination :egarding an alien's eligibility for the 
benefit sought. Id The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id at 795-796; see also Matter o/V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence 
as to "fact"). Thus, the content of the experts' statements and how they became aware of the 
petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than 
Page 15 
preexisting, independent evidence that one would expect of a swimmer or coach who has made 
original contributions of major significance. Without supporting evidence showing that the 
petitioner's work equates to original contributions of major significance in her field, the AAO 
cannot conclude that she meets this criterion. 
Evidence that the alien has performed in a leading (ir critical role for organizations 
or establishments that have a distinguished reputation. 
..... u ..... ,'l'> or critical role for the 
The 
are 
~"UUjl~ or critical role as a swimmer for 
but there is no documentary evidence showing that either of these teams 
has earned a distinguished reputation in the sport of swimming. Regarding the self-serving 
information in the for 2005,2006-2007,2007-2008, and 
2008-2009, USCIS need not rely on self-promotional material. See Braga v. Poulos, No. CV 06 
5105 SJO (C. D. CA July 6, 2007) aff d 317 Fed. Appx. 680 (9th Cir. 2009) (concluding that the 
AAO did not have to rely on self-serving assertions on the cover of a magazine as to the magazine's 
status as major media). 
The petitioner submitted letters of support from discussing her 
achievements as a competitive swimmer, but neither of their letters states that the petitioner 
performed in a leading or critical role for the The preceding 
letters do not provide specific information differentiating the petitioner's role from that of the 
other members who swam for the let alone its top competitors, coaches, 
and captains. Further, there is no evidence distinguishing the petitioner's results at international 
swim competitions from those of the other successful members of the national team (such as a 
comprehensive tally of the women's first place finishes or medals won). Moreover, there is no 
documentary evidence demonstrating that the has earned a 
distinguished reputation in the sport of swimming. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter ofSoffici, 22 I&N Dec. at 165. 
Aside from the preceding deficiencies, there is no evidence indicating that the petitioner seeks to 
continue work in the United States as a competitive swimmer. As previously discussed, the statute 
and regulations require that the petitioner seeks to continue to work in her area of expertise in the 
United States. See section 203(b)(I)(A)(ii) of the Act, 8 u.s.c. § 1153(b)(1)(A)(ii); 8 C.F.R. 
§ 204.5(h)(5). See also Lee v. INS., 237 F. Supp. 2d at 914. Accordingly, letters of support 
focusing on the petitioner's leading or critical role as a competitive swimmer do not meet the 
elements of this regulatory criterion for purposes of establishing her extraordinary ability as a coach. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Summary 
Page 16 
The AAO concurs with the director's determination that the petitioner has failed to demonstrate 
her receipt of a major, internationally recognized award, or that she meets at least three of the ten 
categories of evidence that must be satisfied to establish the minimum eligibility requirements 
necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). 
B. Comparable Evidence Under 8 CF.R. § 204.5(h)(4) 
On appeal, counsel argues that the petitioner's competitive victories, 
iiiiiiiiiiiiiiiiijiiiiiiiiiiiiiiiifrom 1995 - 2003 are comparable evidence that 
for the classification sought. Regarding the petitioner's 
from 1995 - 2003, as previously 
discussed, the petitioner submitted conflicting information regarding her participation on the 
Bulgarian national team. As the petitioner did not join the until 
1996, it is unclear how she would receive in 1995. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record independent, 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. at 591-92. Moreover, rather than submitting primary evidence of her 
from 1995 - 2003, the petitioner instead 
submitted third-party letters from attesting to her receipt of 
the awards. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165. The nonexistence or other unavailability of primary evidence creates a presumption of 
ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 
Nevertheless, the regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable 
evidence" only if the ten categories of evidence "do not readily apply to the beneficiary's 
occupation." The regulatory language precludes the consideration of comparable evidence in 
this case, as there is no evidence that eligibility for visa preference in the petitioner's occupation 
cannot be established by the categories of evidence specified by the regulation at 8 C.F.R. 
§ 204.5(h)(3). Where an alien is simply unable to meet three of the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3), the plain language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the 
submission of comparable evidence. The AAO notes that the awards listed by counsel readily 
apply to the awards criterion at 8 C.F.R. § 204.5(h)(3)(i) and have already been considered there. 
Although the director found that the petitioner submitted qualifying nationally recognized 
awards for excellence in competitive swimming, the "field of endeavor" in which the petitioner 
intends to work in the United States is coaching and aquatics operations. There is no evidence 
indicating that the petitioner seeks to work in the United States as a competitive swimmer. The 
awards listed by counsel as comparable evidence resulted from the petitioner's accomplishments as 
a competitive swimmer and thus cannot be considered evidence of the petitioner's national 
recognition as a coach or an aquatic operations coordinator. As previously discussed, the statute 
and regulations require that the petitioner seeks to continue work in her area of expertise in the 
United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(1)(A)(ii); 8 C.F.R. 
§ 204.5(h)(5). See also Lee v. INS., 237 F. Supp. 2d at 914. Accordingly, the petitioner's 
Page 17 
competitive swimming honors from the mid-1990s to the mid-2000s do not establish her 
extraordinary ability as a coach. 
C. Final Merits Determination 
The AAO will next conduct a final merits determination that considers all of the evidence in the 
context of whether or not the petitioner has demonstrated: (I) a "level of expertise indicating that 
the individual is one of that small percentage who have risen to the very top of the[ir] field of 
endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." Section 
203(b)(l)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. In the 
present matter, many of the deficiencies in the documentation submitted by the petitioner have 
already been addressed in our preceding discussion of the categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(i) - (iii), (v), and (viii). 
With regard to the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(i), the AAO cannot conclude that the petitioner's New South Intercollegiate 
Swimming Conference honors, NCAA Division II All-American Swimmer honors, and NCAA 
Division II Women's Swimming and Diving Championships awards are indicative of a level of 
expertise indicating that she is one of that small percentage who have risen to the very top of her 
field.4 See 8 C.F.R. § 204.5(h)(2). USCIS has long held that even athletes performing at the 
major league level do not automatically meet the statutory standards for immigrant classification as 
an alien of "extraordinary ability." Matter o/Price, 20 I&N Dec. 953,954 (Assoc. Commr. 1994); 
56 Fed. Reg. at 60899. Likewise, it does not follow that a swimmer who has received awards or 
records limited to the NCAA Division II level or age group level should necessarily qualify for 
approval of an extraordinary ability employment-based immigrant visa petition. While the AAO 
acknowledges that a district court's decision is not binding precedent, the AAO notes that in 
Matter o/Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not 
a comparison of Racine's ability with that of all the hockey players at all levels of play; 
but rather, Racine's ability as a professional hockey player within the NHL. This 
interpretation is consistent with at least one other court in this district, Grimson v. INS, 
No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
4 "Division II is an intermediate-level division of competition, which offers an alternative to both the highly 
competitive level of intercollegiate sports offered in Division I and the nonscholarship level offered in Division 
III. ... Total Division II Membership: Division II has 302 member institutions, with 281 currently classified as 
active member institutions and 21 institutions advancing through the membership process. These schools range in 
size from less than 2,500 to over 15,000, with the average enrollment being around 4,500.... Public/Private: 
Division II schools tend to be smaller public universities (52 percent) and many private institutions (48 percent)." 
See http://www.ncaa.org/wps/wcm/connect/publicIN CAl\! About+the!-NCAA/Who+ W e+ Are/Differences+ Among+ 
the+Divisions!Division+IIIAbout+Division+Il, accessed on November 14,2011, copy incorporated into the record 
of proceeding. 
.-
Page 18 
Although the present case arose within the jurisdiction of another federal judicial district and 
circuit, the court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 
§ 204.5(h)(2) is reasonable. To find otherwise would contravene the regulatory requirement at 
8 C.F.R. § 204.5(h)(2) that this visa category be reserved for "that small percentage of 
individuals that have risen to the very top of their field of endeavor." 
The AAO acknowledges the documentation showing that from 2000 to 2004 the petitioner won 
multiple national swimming championships in Bulgaria in butterfly and individual medley 
events. However, there is no evidence showing that the petitioner has received nationally or 
internationally recognized prizes or awards in swimming competitions subsequent to 2005. The 
statute and regulations require the petitioner to demonstrate that her national or international acclaim 
has been sustained. See section 203 (b)(1 )(A)(i) of the Act, 8 U.S.C. § 1153(b)(1 )(A)(i), and 
8 C.F.R. § 204.5(h)(3). The documentation submitted for the regulatory criterion at 8 C.F.R. 
§ 204.5(h)(3)(i) is not commensurate with sustained national or international acclaim as of the 
November 4, 2009 filing date of the petition. Moreover, the statute and regulations require that 
the petitioner seeks to continue work in her area of expertise in the United States. See section 
203(b)(1)(A)(ii) of the Act, 8 U.S.C. § 1 I 53(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). See also Lee v. 
INS., 237 F. Supp. 2d at 914. Accordingly, the petitioner's awards and competitive results 
demonstrating her past record of success as a competitive swimmer are not an indication that she 
has sustained national or international acclaim as a swimming coach. 
Regarding the documentation submitted for the category of evidence at 8 C.F.R. § 204.5(h)(3)(ii), 
there is no evidence showing that the petitioner's associations require outstanding achievements 
of their members, as judged by recognized national or international experts in her field. The 
petitioner has not established that her memberships are indicative of or consistent with sustained 
national acclaim or a level of expertise indicating that she is one of that small percentage who 
have risen to the very top of her field. Moreover, there is no evidence showing that the petitioner 
has competed as a member of the Beroe Swimming Sports Club, the Bulgarian Swimming 
Federation, and the Bulgarian National Team subsequent to 2005. The statute and regulations, 
however, require the petitioner to demonstrate that her national or international acclaim as a 
competitive swimmer has been sustained. See section 203(b)(I)(A)(i) of the Act, 8 U.S.C. 
§ 1153(b)(I)(A)(i), and 8 C.F.R. § 204.5(h)(3). The documentation submitted for the regulatory 
criterion at 8 C.F.R. § 204.5(h)(3)(ii) is not commensurate with sustained national or 
international acclaim as of the petition's filing date. Further, as previously discussed, the statute 
and regulations require that the petitioDer seeks to continue work in her area of expertise in the 
United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(1)(A)(ii); 8 C.F.R. 
§ 204.5(h)(5). See also Lee v. INS., 237 F. Supp. 2d at 914. Accordingly, the petitioner's 
memberships based on her accomplishments as a competitive swimmer are not an indication that 
she has sustained national or international acclaim as a swimming coach. 
In regard to the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(iii), as previously discussed, there is no evidence of qualifying published material 
about the petitioner in professional or major trade publications or other major media. The petitioner 
has not established that her level of media coverage is indicative of or consistent with sustained 
Page 19 
national acclaim or a level of expertise indicating that she is one of that small percentage who 
have risen to the very top of her field. Further, the record lacks evidence of qualifying published 
material about the petitioner relating to her work as a swimming coach. As previously discussed, 
the statute and regulations require that the petitioner seeks to continue work in her area of 
expertise in the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C. 
§ 1153(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). See also Lee v. INS., 237 F. Supp. 2d at 914. 
Accordingly, published material relating to the petitioner's work as a competitive swimmer is not 
an indication that she has sustained national or international acclaim as a swimming coach. 
With regard to the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(v), as previously discussed, the petitioner did'not submit evidence establishing that 
she has made original athletic contributions of major significance in the field. Aside from the 
petitioner's failure to submit evidence demonstrating that she has made original athletic 
contributions of major significance in the field, the AAO notes that the petitioner's claim is 
based on recommendation letters. While such letters can provide important details about the 
petitioner's experience and activities, they cannot form the cornerstone of a successful 
extraordinary ability claim. The statutory requirement that an alien have "sustained national or 
international acclaim" necessitates evidence of recognition beyond the alien's personal contacts. 
See section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The commentary for the proposed regulations implementing section 203(b)(1 )(A)(i) of the Act 
provide that the "intent of Congress that a very high standard be set for aliens of extraordinary 
ability is reflected in this regulation by requiring the petitioner to present more extensive 
documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 
1991). Even when written by independent experts, letters solicited by an alien in support of an 
immigration petition are of less weight than preexisting, independent evidence that one would 
expect of a swimmer or coach who has sustained national or international acclaim at the very top 
of the field. The documentation submitted by the petitioner for the category of evidence at 
8 C.F.R. § 204.5(h)(3)(v) is not indicative of or consistent with sustained national acclaim or a 
level of expertise indicating that she is one of that small percentage who have risen to the very 
top of his field. 
Regarding the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(viii), the petitioner has not established that she has performed in a leading or 
critical role for organizations that have a distinguished reputation. Moreover, there is no 
documentary evidence showing that the petitioner has performed in a leading or critical role for the 
Bulgarian National Swim Team, the Drury University swim teanl, or the DSU swim team 
subsequent to 2006. As previously discussed, the statute and regulations require the petitioner to 
demonstrate that her national or international acclaim as been sustained. See section 
203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). The 
documentation submitted for the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(viii) is not 
commensurate with sustained national or international acclaim as of the filing date of the 
petition. The AAO acknowledges that the petitioner has worked for DSU in recent years as an 
assistant but there is no evidence showing that her present role is leading or critical in 
relation to 'stant coaches ~d md 
Director of , there is no evidence showing that the Drury 
Page 20 
University swim team and the DSU swim team have a distinguished reputation when compared to 
teams competing at a more advanced level of competition (such as the numerous NCAA Division I 
swim teams). Cj, Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. 
at 60899 (USCIS has long held that even athletes performing at the major league level do not 
automatically meet the "extraordinary ability" standard). 
In this case, the petitioner has not established that her achievements at the time of filing were 
commensurate with sustained national or international acclaim as a competitive swimmer or coach, 
or being among that small percentage at the very top of the field of endeavor. Demonstrating that 
the petitioner enjoyed success as a competitive swimmer in the United States at the intermediate 
NCAA Division II level is not useful in setting her apart from other swimmers and coaches through 
a "career of acclaimed work." H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). That page (59) also 
says that "an alien must (1) demonstrate sustained national or international acclaim in the sciences, 
arts, education, business or athletics (as shown through extensive documentation) ... " The 
conclusion we reach by considering the evidence to meet each category of evidence at 8 C.F.R. 
§ 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. Ultimately, 
the evidence in the aggregate does not distinguish the petitioner as one of the small percentage who 
has risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The submitted evidence 
does not establish that the petitioner has sustained national or international acclaim as competitive 
swimmer subsequent to 2005, that she has earned national or international acclaim based on her 
achievements as a swim coach and aquatics coordinator, or that she is among that small percentage 
at the very top of her field. 
IV. 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. 
Review of the record does not establish that the petitioner has distinguished herself to such an 
extent that she may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(1)(A) of the Act and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
• 
Page 21 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.