dismissed EB-1A Case: Athletics

U.S. Department of Homeland Securit) 
U.S. Citizenship and Immigration Services 
Office of Adn~ini.sfrafrve Appeals MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 09 065 52680 
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 1 1 53(b)( 1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(I)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on April 16, 2009, and is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 1 53(b)(l)(A), as 
an alien of extraordinary ability in athletics. The director determined that the petitioner had not 
established that the beneficiary had the sustained national or international acclaim necessary to qualify 
for classification as an alien of extraordinary ability. More specifically, the director found that the 
petitioner had failed to demonstrate the beneficiary's receipt of a major, internationally recognized 
award, or that he meets at least three of the regulatory criteria at 8 C.F.R. $ 204.5(h)(3). 
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. 
On appeal, the petitioner argues that the director erred in denying the petition without first issuing a 
request for evidence (RFE). The regulation at 8 C.F.R. $ 103.2(b)(8) provides in pertinent part: 
(ii) Initial evidence. If all required initial evidence is not submitted with the application or 
petition or does not demonstrate eligibility, USCIS in its discretion may deny the 
application or petition for lack of initial evidence or for ineligibility or request that the 
missing initial evidence be submitted within a specified period of time as determined by 
USCIS. 
(iii) Other evidence. If all required initial evidence has been submitted but the evidence 
submitted does not establish eligibility, USCIS may: deny the application or petition for 
ineligibility; request more information or evidence from the applicant or petitioner, to be 
submitted within a specified period of time as determined by USCIS; or notify the 
Page 3 
applicant or petitioner of its intent to deny the application or petition and the basis for the 
proposed denial, and require that the applicant or petitioner submit a response within a 
specified period of time as determined by USCIS. 
A review of the record reflects that the director adjudicated the petition based on the evidence submitted 
at the time the petition was filed. The director did not deny the petition because initial evidence was 
missing; rather the submitted evidence failed to establish eligibility for the benefit. We find that in 
denying the petition, the director complied with 8 C.F.R. $5 103.2(b)(8)(ii) and (iii). Furthermore, 8 
C.F.R. $8 103.2(b)(8)(ii) and (iii) provides for discretionary authority to request additional evidence, 
provide notice of the director's intent to deny the application or petition, or deny the petition or 
application. In this case, the director exercised his discretionary authority and denied the petition based 
on the evidence submitted by the petitioner not establishing eligibility for the benefit. For these reasons, 
we are not persuaded by counsel's argument that the director erred in his decision regarding this matter. 
In addition, counsel argues that the director erred in denying the petition because the petitioner failed to 
submit evidence for six of the regulatory criteria under 8 C.F.R. 9 204.5(h)(3). However, a review of 
the director's decision reflects that the petition was denied based on the petitioner's failure to meet at 
least three of the regulatory criteria. Further, counsel argues: 
Receipt of international awards, association membership that require outstanding 
achievements, acting as a judge, authorship of scholarly articles, display of work at artistic 
exhibitions, critical roles for reputable organizations clearly do not apply in the case of any 
professional jockey, who furthermore are not teachers. 
We are not persuaded by counsel's assertion that all of the regulatory criteria mentioned by counsel 
are inapplicable to the beneficiary. The ten criteria in the regulations are designed to cover different 
areas; not every criterion will apply to every occupation. An inability to meet a criterion, however, is 
not necessarily evidence that the criterion does not apply to the beneficiary's occupation. It is clear 
from the record that a jockey could wrin lesser nationally or internationally recognized prizes and 
awards, that a jockey could be the subject of published materials about him, and that a jockey could 
command a high salary or other significantly high remuneration for services. Further, although the 
petitioner failed to claim these additional criteria, we find that a jockey could participate as a judge, 
that a jockey could make an original contribution of major significance, and that a jockey could play 
a leading or critical role for an organization with a distinguished reputation. Counsel provided no 
documentation as to why these provisions of the regulation would not be appropriate to the 
profession of a jockey. 
In addition, counsel states: 
The foregoing mentioned evidence is comparable evidence in the field of thoroughbred 
horse racing, since most of the criteria for this classification does not readily apply to this 
field. The regulations do not preclude some fields from this classification and do allow 
comparable evidence to be submitted. In this case, they are: continuously being ranked 
among leading jockeys, performance at major U.S. horse racing venues and publication of 
the Beneficiary's wins at major U.S. newspapers and major publications in the filed. 
Page 4 
The regulation at 8 C.F.R. tj 204.5(h)(3) provides that evidence of sustained national or international 
acclaim "shall" include evidence of a one-time achievement or evidence of three of the following ten 
criteria. We note that it is unlikely that all ten criteria are applicable to any one occupation. For 
example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts and the criterion 
at 8 C.F.R. 5 204.5(h)(3)(x) expressly applies to the performing arts. We firther acknowledge that the 
regulation at 8 C.F.R. fj 204.5(h)(4) provides "[ilf the above standards do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's 
eligibility." It is clear from the use of the word "shall" in 8 C.F.R. tj 204.5(h)(3) that the rule, not the 
exception, is that the petitioner must submit evidence to meet at least three of the regulatory criteria. 
Thus, it is the petitioner's burden to explain why the regulatory criteria are not readily applicable to the 
beneficiary's occupation and how the evidence submitted is "comparable" to the objective evidence 
required at 8 C.F.R. tj 204.5(h)(3)(i)-(x). The regulatory language precludes the consideration of 
comparable evidence in this case, as there is no indication that eligibility for visa preference in the 
beneficiary's occupation as a jockey cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. tj 204.5(h)(3). In fact, as cited above, counsel mentions evidence that 
specifically addresses two (awards and published material) of the ten criteria at 8 C.F.R. 
tj 204.5(h)(3). Where an alien is simply unable to meet or submit documentary evidence of three of 
these criteria, the plain language of the regulation at 8 C.F.R. tj 204.5(h)(4) does not allow for the 
submission of comparable evidence. 
Finally, counsel specifically raises the issue of "comparable evidence" for the first time on appeal. 
Thus, the director cannot be considered to have erred by following the regulatory criteria set forth at 8 
C.F.R. tj 204.5(h)(3). 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top 
of the field of endeavor. 8 C.F.R. tj 204.5(h)(2). The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
the beneficiary has sustained national or international acclaim at the very top level. 
The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, internationally 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, 
at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to 
qualify as an alien of extraordinary ability. A petitioner, however, cannot establish the beneficiary's 
eligibility for this classification merely by submitting evidence that simply relates to at least three 
criteria at 8 C.F.R. $204.5(h)(3). In determining whether the beneficiary meets a specific criterion, 
the evidence itself must be evaluated in terms of whether it is indicative of or consistent with 
sustained national or international acclaim. A lower evidentiary standard would not be consistent 
Page 5 
with the regulatory definition of "extraordinary ability" as "a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor." 8 
C.F.R. 5 204.5(h)(2). As counsel has failed to specify which of the regulatory criteria at 8 C.F.R. 
9 204.5(h)(3) the beneficiary purportedly meets, we have considered the evidence submitted under 
the criterion we find to be most applicable. 
Documentation of the alien's receipt qflesser nationally or internationally recognized 
prizes or a~vard,~ for excellence in the.field of endeavor. 
At the time of the original filing of the petition, the petitioner submitted the following 
documentation: 
Website page for Leading Trainers at Calder Race Course from 
~1.1~ .esui basc.com reflecting that from October 20, 2008 to December 2 1, 
2008, the petitioner was the 8th leading trainer; 
Various website pages for Leading Jockeys at Calder Race Course from 
\\\\\c.t.quihese.com reflecting that the beneficiary has been ranked from 7"' to 
1 4th from January I, 2006 to December 2 1,2008; 
Two Facts and Figures at Calder Race Course from April 21, 2008 to October 
19, 2008, reflecting that the beneficiary won between 1 1 % to 15% of his races; 
A copy of Jockey Standings from the Daily Racing Form for April 25, 2007 to 
July 17, 2007, reflecting that the beneficiary was the 26th leading jockey at the 
Calder Race Course; 
Several website pages for Leading Jockeys at Calder Race Course from 
~y\+~?i.thcht'~tda~~~~~~po~sforr~~n.com reflecting that the beneficiary has been 
ranked from 1 5th to 1 7th from April 26,2004 to August 3 1,2004; 
Website page for Leading Jockeys at Gulfstream Park from Equibase Company 
LLC reflecting that from January 3, 2008 to April 5, 2008, the beneficiary was 
the 1 9th leading jockey; 
Two website pages for Leading Jockeys at Laurel Park from 
\\\\u.ecluihasc.com reflecting that from January 1, 2006 to April 15, 2006, the 
beneficiary was the 1 3th and 1 4th leading jockey; 
Advertisement from u ww.~ulfstreampask.corn; 
Advertisement from ~w.laiirelpark.com; 
Advertisement from ~~v.marylandst:ttefitir.co~n; 
A certificate, along with a picture and advertisement, for congratulating the 
beneficiary for Jockey of the Month at Calder Race Course in September; 
Information for Calder Race Course, Gulfstream Park, and Laurel Park from the 
website, Wikipedia; and 
A multitude of photographs with captions reflecting that the beneficiary won at 
least 177 races. 
On appeal, the petitioner submitted a website page for Leading Jockeys at Calder Race Course from 
unu.cquibasc.com reflecting that the beneficiary was the 11 th leading jockey from April 24, 2009 to 
June 15, 2009. In addition, the petitioner submitted a website page for Leading Trainers at Calder 
Page 6 
Race Course from w~vw.cquibase.con~ reflecting that the petitioner was the 4"' leading trainer from 
April 24, 2009 to June 15, 2009. However, the petition was filed on December 24, 2008. Since 
these documents reflect events occurring after the filing of the petition, we will not consider these 
items as evidence to establish the petitioner's eligibility. Eligibility must be established at the time 
of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 
1971). A petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That decision further 
provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts 
that come into being only subsequent to the filing of a petition." Id. at 176. In addition, the 
petitioner submitted on appeal partial extracts from the 2009 International Cataloguing Standards 
and International Standards (ICSIS). On page 1-83, ICSIS indicates that "[flor those tracks whose 
schedules were not available, race information is based on 2008 data." Therefore, ICSIS is 
comprised of racing statistics from 2009 with the exception of those tracks whose schedules were 
not available in which racing statistics from 2008 are utilized. Moreover, as the petitioner only 
submitted a partial extract of ICSIS and a review of this extract does not distinguish between 2008 or 
2009 statistical data, we are unable to determine which races contained in ICSIS used the respective 
yearly data. As such, we cannot accept ICSIS as evidence since it is not clear which data occurred 
after the filing of the petition. 
Generally, the beneficiary's jockey rankings at local race tracks are not evidence of nationally or 
internationally recognized awards or prizes. The beneficiary is not awarded a ranking based on 
placement at a specific competition or race. Instead, the beneficiary's ranking is based on the collective 
placement of finishes at a race track over a period time. We find that the beneficiary's finishes (i.e., 
first, second, third) at race tracks to be a more determinative finding than the beneficiary's ranking as it 
relates to this criterion. In this case, the beneficiary has demonstrated that he has garnered success at 
the Calder Race Course, Gulfstream Park, and Laurel Park. 
However, the plain language of the regulatory criterion at 8 C.F.R. 5 204.5(h)(3)(i) specifically 
requires that the beneficiary's awards be nationally or internationally recognized in the field of 
endeavor, and it is the petitioner's burden to establish every element of this criterion. In this case, 
there is no evidence showing that the beneficiary's awards at these local tracks commanded a 
significant level of recognition beyond the context of the events where they were presented. For 
example, there is no evidence showing that the beneficiary's awards were announced in major media 
or in some other manner consistent with a national or international award. 
The petitioner failed to submit any documentary evidence regarding any of the actual races that the 
beneficiary competed in and won. We note that the petitioner submitted documentary evidence 
regarding the race tracks from the website Wikipedia. However, there are no assurances about the 
reliability of the content from this open, user-edited internet site.' See Lamilem Badasa v. Michael 
' Online content from Wikipedia is subject to the following general disclaimer: 
WlKIPEDIA MAKES NO GURANTEE OF VALIDITY. Wikipedia is an online open-content collaborative 
encyclopedia, that is, a voluntary association of individuals and groups working to develop a common resource 
of human knowledge. The structure of the project allows anyone with an Internet connection to alter its content. 
Page 7 
Mukasey, 540 F.3d 909 (8th Cir. 2008). Accordingly, we will not assign weight to information from 
Wikipedia. 
In addition, the information from the websites from Gulfstream Park and Laurel Park were 
advertisements for the parks rather than information regarding the stature of the races, the level of 
jockeys who participated, or evidence of the jockey selection criteria. While the beneficiary has won 
numerous races, and placed second and third at a significant number of other races, there is no 
evidence demonstrating that his finishes were tantamount to nationally or internationally recognized 
prizes or awards for excellence in the beneficiary's field of endeavor. We acknowledge that the 
beneficiary has accumulated an impressive history of wins and high finishes. However, the record 
appears to reflect that those wins and high finishes were at race courses that featured local 
competition. As such, we cannot conclude based on the submitted documentary evidence that the 
races were national or international competitions, and therefore those awards were recognized 
beyond the awarding entities as national or international awards. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classz~cation is sought. 
Such evidence shall include the title, date, and author of the material, and any 
necessary translation. 
The petitioner submitted the following documentation: 
The Right Track, \I u 11 .\I ashingtont?ost.conl, dated May 7, 2006; 
The Day at the Races, Daily News, December 4,2004; 
An Ugly Spill Mars Opener, New York Post, December 4,2004; 
Laurel Lands a Winning Ride, www.ba1ti1noresun.com, September 6,2006; 
UP1 Thoroughbred Racing Roundup, www . upi .corn, August 4,2008; 
Amazing, Finallymadeit Score at Calder, uuu.blood11orse.com, November 8, 
2008; 
Hypocrite Prompt Favorite in Valid Video, kt \\ ~t .drf.co~n, August 2, 2008; 
Black Russian is First Winner.for Black Mambo, \I. II. \I. .thorou~h brudtimes.cont, 
July 2 1,2008; 
Weekend Stakes Action, IV\I w.caIderracecourse.com, 2008; 
Mysterious Jule Likely Choice in Georgia Oaks Sunday at Calder, 
w~\v.cald~rra~~~ourse.co~i~, 2008; 
- -- 
Please be advised that nothing found here has necessarily been reviewed by people with the expertise required 
to provide you with complete, accurate or reliable information. . . . Wikipedia cannot guarantee the validity of 
the information found here. The content of any given article may recently have been changed, vandalized or 
altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields. 
See lit~p:~~t.n.~viki~~edi~~.~r~~~viki~Wiki~~ediii:~~~tel cJisclailner, accessed on January 19, 2010, and copy incorporated 
into the record of proceeding. 
11. Crowd at 153,563 Witness Mine That Bird Win Derby 135, 
nc\u .winhentuckvdcrb, .coni, May 2,2009; 
12. Borel, Mine That Bird Soar in Derby Shocker, .bloocfhorsc.com, May 2, 
2009; 
13. Racing Is His Main Event, unspecified publication and date; 
14. Charles Town Races and Slots, www.cto\$nraces.com, unspecified date. 
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. kn alien would not earn acclaim at the national level from a local publication 
or from a publication printed in a language that the vast majority of the country's population cannot 
comprehend. 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. 2 
Regarding item I, the article is not about the beneficiary but about - In fact, the 
beneficiary is not mentioned in the article but is noted in a picture and caption. Regarding items 2 
and 3, the articles are a recap at an unspecified racetrack of several races. While the articles briefly 
describe a racing accident involving the beneficiary, the articles also discuss other races at the track. 
Regarding item 4, the article is about and mentions the beneficiary one time as a 
competitor. Regarding items 5 and 6, the articles recap thoroughbred racing at various venues, and 
the beneficiary is mentioned one time in each article as the jockey of a race. Regarding items 7, 9, 
and 10, the articles are about several races at Calder Race Course, and mention the beneficiary one 
time as the jockey of the races. Regarding item 8, the article is about Black Russian winning the 
race with the beneficiary mentioned one time in the article. Regarding items 11 and 12, the articles 
are about the 2009 Kentucky Derby and mention the jockey,. The beneficiary is not 
mentioned anywhere in the articles. In addition, these two articles were published after the filing of 
the petition aid cannot be considered as evidence in this proceedin R; arding item 13, while the 
article contains a picture of the beneficiary, the article is about a jockey agent. In 
addition, the regulation at 8 C.F.R. 5 204.5(h)(3)(iii) requires "[s]uch evidence shall include the title, 
date, and author of the material, and any necessary translation." As the article fails to contain the 
date of article and the name of the publication, it fails to conform to the regulatory criteria at 8 
C.F.R. 3 204.5(h)(3)(iii). Regarding item 14, the article is about Charles Town Races and Slots, and 
the beneficiary is not mentioned at all in the article. In addition, the article fails to contain the date 
of the article as required by the regulation. 
Further, regarding wmu..u~~i.com, uww.bloodhor.sc.com, unu.dr-f'.com, \$.~.\.~.u.thoroughbrcd 
ti~~~cs.coln. www.caldesracccoursc.con_l, and \\\~l.~.cto\i\nracc~.co~n, although the petitioner 
submitted background information from these sources themselves, the petitioner failed to submit any - 
independent, supporting information establishing that these sources are professional or major trade 
2 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
Page 9 
publications or other major media. In addition, these sources appear to be exclusively Internet 
sources. In today's world, many newspapers, regardless of size and distribution, post at least some 
of their stories on the Internet and make their stories available to large electronic databases. To 
ignore this reality would be to render the "major media" requirement meaningless. We are not 
persuaded that international accessibility by itself is a realistic indicator of whether a given 
publication is "major media." We will not presume that the mere inclusion of articles exclusively 
online or from local publications that post articles online will notably increase the readership of that 
paper if it is otherwise unknown or distributed nationally. 
As discussed above, while the petitioner submitted articles that mentioned the beneficiary, as well as 
some articles that did not mention the beneficiary at all, none of the submitted articles featured or 
were about the beneficiary as required under the regulation at 8 C.F.R. 204.5(h)(3)(iii). In addition, 
the petitioner failed to establish that the websites were professional or major trade publications or 
other major media. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other signijicantly high 
remuneration for services, in relution to others in the field 
As mentioned previously, the petitioner submitted the following documentation: 
1. Various website pages for Leading Jockeys at Calder Race Course from www.equibase.com 
from January 1,2006 to December 21,2008; 
2. Several website pages for Leading Jockeys at Culder Race Course from 
u\~\v.thchestdsrn~,s~~ortsfor~~~~~.c~ from 1 5th to 1 7th from April 26, 2004 to August 3 1, 
2004; and 
3. Website page for Leading Jockeys at Gulfitream Park from Equibase Company LLC from 
January 3,2008 to April 5,2008. 
A review of the above documents reflects that the beneficiary's earnings are also included with the 
beneficiary's racing finishes. For example, in 228 starts at Calder Race Course, the beneficiary is 
listed to have earned $443,207 from April 21,2008 to August 12,2008. However, these documents 
appear not to reflect how much the beneficiary actually received in earnings, but the total amount of 
money awarded to the owners of the horses in races, which the beneficiary was a jockey. 
The plain language of this regulatory criterion requires the petitioner to submit evidence showing 
that the beneficiary has commanded a high salary "in relation to others in the field." The petitioner 
failed to submit any documentary evidence demonstrating the beneficiary's salary or other 
compensation. Furthermore, the petitioner offers no basis for comparison showing that the 
beneficiary's salary or other compensation was significantly high in relation to others in his field. There 
is no evidence establishing that the beneficiary has earned a level of compensation that places him 
among the highest paid jockeys in his field. While the documentation demonstrates evidence of 
financial winnings for the owners of the horses in races, which the beneficiary was a jockey, the 
Page 10 
petitioner failed to submit documentation demonstrating the beneficiary's salary or other compensation 
was high compared to other jockeys. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
In addition, the AAO notes that at the time of the filing of the original petition, counsel claimed: 
[The petitioner] has already found an alien with extraordinary ability when granted P-1 
status by the Department. This petition alone establishes that he was internationally 
recognized as a thoroughbred jockey. 
While USCIS approved at least one P-1 nonimmigrant visa petition filed on behalf of the beneficiary, 
the prior approval does not preclude USCIS from 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 USClS 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. 
1 999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N. Y. 1 989). Because USClS 
spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant petitions are simply approved in error. Q Duta 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 from denying an extension of the original 
visa based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g, Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisia~a Philharmonic Orchestra v. IM, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
We concur with the director's finding that the petitioner has failed to demonstrate the beneficiary's 
receipt of a major, internationally recognized award, or that he meets at least three of the criteria that 
must be satisfied to establish the national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. 4 204.5(h)(3). The conclusion we reach by considering the evidence 
to meet each criterion separately is consistent with a review of the evidence in the aggregate. Even 
in the aggregate, the evidence does not distinguish the beneficiary as one of the small percentage 
who has risen to the very top of the field of endeavor. 8 C.F.R. 8 204.5(h)(2). While the beneficiary 
demonstrated success as a jockey anlong local competition, the record fails to reflect that the 
beneficiary has amassed a record of accomplishment at the national or international level which 
places him among that small percentage at the very top of his field. 
Page 1 1 
Regarding counsel's claim of "comparable evidence," we again reiterate that the regulation at 
8 C.F.R. 5 204.5(h)(4) allows for the submission of "comparable evidence" only if the ten criteria 
"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 beneficiary's occupation cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. 5 204.5(h)(3). Where an alien is simply unable to meet three of the regulatory 
criteria, the plain language of the regulation at 8 C.F.R. 5 204.5(h)(4) does not allow for the 
submission of comparable evidence. 
Review of the record does not establish that the beneficiary has distinguished himself 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 is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(l)(A)(i) of the Act, and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.