dismissed EB-1A Case: Athletics

, identifyingda.tadeletedto "
prevent clearly unwarr~ted ,
invasion of per~nal pnvacy,"
pUBLICCOfY ,
",' , .
U.S. Department of Homeland SecuritY
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services,
FILE:
LIN 03 268 50150
Office: NEBRASKA SERVICE CENTER Date:
APR 8. Zlt7
IN RE: Petitioner:
Beneficiary:" ,
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability PurSuant to
, Section 203(b)(l)(A) of the Imrlligratiori and Nationality:Act, 8 U.S.C. § 1153(b)(l)(A)
.' . " .
ON BEHALF OF PETITIONER:
, "
INSTRUCTIONS:
, This is the decis'ion of the Administrative Appeais Office ih your case. All docwnents have been returned to
the office that originally decided your case. ' Any further inquiry must be made to that office:
, '1,
"', ' ."'
,~~~Uc
, ~ '/ Robert P. Wiemann, Chief '
TV Administrative Appeals Office
....
I: .
www.uscis.gov
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DISCUSSION: The Director; Nebraska S~ce Center, denied the employment-based immigrant visa,
petition, which is now bef6re the Administrative Appeals Office on appeal. ' The appeal will be
dismissed.' " " '
The petitioner ~eeks classificatIon as an "alien of extraordinary ability" in athletics pursuant'to section
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A). The director
determined the petitioner hag not established the sustained national or international acclaim necessary
to qualify for classification as an alien of extraordinary abiliryand questioned the petitioner's job
opportunities.
On appeal, counsel submits a brief and additional:evidence. Counsel has not overcome the director's
valid bases for denial.' Ultimately, the extremely small number of professional gladiators and the lack
of amateur gladiators somewhat diminishes'the significance of the petitioner's apparent rank among
" that group. We are not persuaded that 'the very fact that the petitioner qualifies for employment in her
field creates a presumption of national or international acclaim. Regardless, while counsel asserts that
the witness letter in the record is ,submittedto explain the evide~ce rather than in lieu of evidence, we
concur with the director that the record lacks the primary initial required evidence for petitions filed
pursuant to section 203(b) of the A~t as setforth in the n~gulation 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 a~i:lilable ... to qualified immigrants who are
aliens described in any of the following subparagraphs (A) through (C):
,(A) Aliens wi~h Extrao~dinary Ability. -- An alien'is described in this subparagraph if --
(i) the,' alien .has extraordinary ability in' the sciences, arts, education, '
'business, or at4lt::ticswhich has b~en 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, ~d ' . , '
(iii) the 'alien's entry to the United States will substantially benefit
prospectively the United States.
Citizenship and ~igrationServices (CIS) and legacy Immigration and Naturalization Service (INS)
,'have consistently recognized that Congress intended to s~t a very'highstandard for individuals seeking
immigrant visas as aliens of extraordinarYability. 'See 56 Fed. Reg. 60897, 60898-9 (November 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 perceritage',who have riserito the very top of the field of '
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f,',
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endeavor. 8 C.f.R. § 204.5(h)(2). The specific requirements fOf 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 ar8 C.F.R. § 204.5(h)(3): The relevant criteria will be addressed below.
It should be reiterated, however, that the petitioner must show that she has sustained national or.
international acclaim,at the very top level.
This petition seeks tq classifYth~ petitioner as an alien with extraordinary abilityas a "gladiator/coach."
The regulation at 8 ~.F.R:' §204.5(h) requires the petitioner to "continue work in the area of
expertise." The petitioner intends to work as a gladiator and coach in the United States. Most of the
, documentation submitted'relates to the petitioner's role as a gladiator on the South African television
game show, "MSN Gladiators." While that show grew out of the popularity of American Gladiators,
the petitioner has not' established 'that American Gladiators continues to produce new episodes for
broadcast. .While a letter submitted on appeal references American Gladiator fitness challenges and
sporting .events,'the record lacks evidence that these events mimic the television show's format.
Without evidence that employment opportunities exist in the United States for performing gladiators, .
we cannot conclude that'the petitioner intends to seek employment in the, United States as a
performing gladi';ltor.
The 'petitioner also expresses her interest in training gladiators and hosting American Gladiator
events. ' While an athiete/performerand a trainer certainly share knowledge of fitness, the two rely on
. very different sets of basic skills. Thus,competitive athletics and training are not the same area of
expertise. This interpretation has been upheld, in Federal Court. In Lee v. I.NS., 237 F. Supp. 2d
914 (N.D. Ill. 2002), the court stated:'
It is reasonable to interpret 90ntinuing 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: Th~ court noted a consistent history in this area. Thus, the petitioner must establish that
she enjoys national or international acclaim as a trainer. For the reasons discussed below, the
petitioner has not demonstrated sustained national or international acclaim as either a gladiator or a
trainer as defined in the pertinent regulations. .
, The regulation at 8 C.F.R., § 204.5(h)(3) indicates that an alien can establish sustained national or
.' international acclaim through evidence of a one-:time achievement (that is, a major, international
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at .
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualifY
as an alien of extraordinary ability.
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,At the outset, we note that the petitioner relies heavily ona letter from a fellow gladiator,
'_ Ms. reviews the regulatory criteria and, with littl~ discussion, concludes that the
petitioner meets six of. them. The director concluded that the letter could not support the petitioner's
eligibility. On appeal, counsel asserts that Ms "established her expertise in her affidavit and •
',testified that she considered the following evidence to meet the criteria." Counsel further asserts that as '
, ,an expert, Ms.... has the knowledge to judge the significance of the petitioner's accomplishments.
, ' The opinions of experts in the field, while not without weight, cannot form the cornerstone of a
successful, claim of sustained national or international acclaim. CIS may, in its discretion, use as
advisory opinIons, statements submitted as expert testimony. , See Matter of Caron International, 19
'I&N Dec. 791, 795 (C0rn.t:n. 1988). However, CIS.is ultimately responsible for making the final
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters
from experts supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the
content of those letters as to whether they support the ali~n's eligibility. Seeid. at 795-796. CIS
,may even give less weight to an opinion that is not corroborated, in accord with other information or
is in any, way questionable. Id. at 795; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm.
1998) (citing Matter of Treasure Craft of Ca'tifornia, 14I&N Dec. 190 (Reg. Comm. 1972)).
Moreover, w~ile we' do not question M~:' knowledge of the .gladiator industry or her
sincerity, it remains that she was the petition.er's fellow cast member and her opinion is highly
subjeCtive. Ultimately, .e,:"idence in existence prior to the' preparation of the petition carries greater
weigl1t than new materials prepared especially for submi~sion with the petition. An individual with
sustained national or international acclaim should be able to produce unsolicited materials reflecting
that acclaim. The only unsolicited materials' s.ubmittedin this matter relate to a single criterion,
'publi~he~niaterials about the petitioner, and are not persuasive for the reasons discussed below.
the petitioner haS s~bmitted evidence that, she elaims,'meets the following cnteria. 1
". . . . . .
. ." ..
,",Documentation of the ~jien ,'s receipt of lesser' nationally or int('!rnationallyrecognized prizes or
awardsfor excellence"in thefield oflfnde.avor.
Ms. asserts that in 2000, the petitioner won Best Acltieving Female Gladiator of the 'year in
South Africa. 'Ms; _ further asserts that the beneficiary won 91, percent of hereompetitions and
was the second highest ranked female memb~ on the team.
" As rioted by the director, the record does not contain the actual award issued to the petitioner in 2000
and none ofthe publiCity materials discuss suchan award. On appeal, counsel asserts that Ms.••••
letter was submitte<:ito assist the director inunderstanding the evidence submitted, not in lieu of it.
, . Counsel acknowledges the director's conclusion that the 2000 award was notsubmitted but fails to
rebut this conclusion or submit the award itsel£,' , .
r The petitioner does. not chlim to meet ~r submit~vidence relating to the <::riteria not discussed in this
decision.
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Further, it is not clear the _significance of the beneficiary's win percentage or ranking. The record of
· proceeding includes the rules for the gladiator televisipn events, which suggest that the program was a
type of game show where contestants or "contenders" compete for points with the "gladiators" serving
mostly as obstacles. The teleVision events described do not suggest that gladiators typically compete
against other gladiators,as part of the regular series,' although the record contaiIis evidence of at leaSt
one publicity event where gladiators from the South African show competed against the cast of the.
,British show.. The record contains no evidence that, as with other sports, gladiato~ regularly compete
· against other gladiators for recognized prizes. To illustratethe difference between the petitioner's fi~ld'
and other professional sports, soccer teams play.in regular seasons against other teams in to~amerits ..
of ever increasing prestige, with the World Cup as the ultimate· prize. The ultimate purpose of a
gladiator, however, IS to thwart the efforts of "contepders" to win points as part of a physical game
show. Any competition between the casts of different gladiator shows is secondary.
In response to the director's·request for additional evid~nCe, , founder of _
_ , asserts that the petitioner meets this criterion because she completed the company's obstacle course
faster than any other woman. The record lacks evidence that . obstacle course is
nationally recogcized such that completing it in the' fastest time is significant. As the coprse was
designed by the cOmpanyto evaluate potential tniiriers, ihs not clear that anyone other than trainers or
possibly clients have even run it. Regardless, it does not appear that the petitioner was honored with a
nationally recognized award or prize for this "recoid." .. .
In light ofth.e above, the petitioner'has not established thatshe meets this critetion. '
Documentation of the alien's membership in associations in the field for which classification is
sought, which require outstcindingachievements oftheir members, asjudged by recognized national
..or international experts in their disciplines orfields.
·Counsel has consistently asserted that the petitioner meets this criterion through being caSt on South
Africa's MTN Gladiators television show. Ms.· asserts that 400 athletes compete for two to three
open slots annually, that there are only approximately 100 gladiators·in the world, averaging about 20 .
per natiop. Finally, Ms; _asserts thatthe petitioner remained in the cast for three and a half years
while only,25 percent of the gladiators in South Africa "make it for consecutive or numerous years."
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,The director concluded that the cast of MTN Gladiators Was not an association that required
outstanding achievements, of its members. On appeal, GOunsel asserts that this office has previously
concluded that national and,Oiympic team me~bership can serve as comparable eVidenceto meet this
criterion.
We are not persuaded that being cast in MTN Gladiators is comparable to national or Olympic team
membership. National and Olympic teams are fielded from the thousands ofathletes competing in the
saine sport· who have proven themselves in, that sport through competition in college, in national
competitions or for regional teams. When competing for national or' Olympic teams, they must reach
specified benchmarks in 'the trials; Most national and Olympic team members have been training in
their specific sport since early childhood. In contrast, th,e petitioner has not established that thousands
of gladiators compete in lesser,gladiator leagues with ,the top gladiators ill these lesser leagues earning
the'right to compete for the television show. As stated above, Ms.~indicates that there are only
100 gladiators worldwide, all of whom have been cast in a versIon of the television ~how. In fact,'the
record dqes not even establjsh that those who try out forthe cast must have experience in: the gladi~tor
events that are part ofthe television show. ' ' '; , '
,In light of the above, the petitioner has not established that she meets this criterion:
~ , . ,.. .. , .
Published materials ~bout the alien in professional or major' trade,publications' or other 'major
media; rela,ting to the alien's work in ihe field for which classification is sought. Such evidence
shall incl~d~ the title, date, and author ofthe material, and a~y necessary translation. ' '
The director concluded ,that the published material was generally not "about" the petitioner, providing
three examplesf The director further concluded that the petitioner had not established that any of the
,publicationssubrriitted have a national or international circulation. Finally, the director conduded that
ail article in MTN Gladiators Magazine was promotional rather than independent. ',. ,
On appeah.counsel asserts that the director dismissed "the numerous articles submitted in newspapers"
programs and rriagazines with reference to two." Counsel asserts that the director's conclusion
regarding MtN Gladiators Magazine waS "beyond the scope of analysis." Finally,coUnsel notes that
Ms.' , "an expert in the field, determined that the articles in Gladiator Magazine and others met the
critena." , ,
While Ms: ' I may be a' fonner gladiator' and have knowledge of the television series, CIS is the
,,' ultimate'authorityon inimigration law. 'Weare, not bound by Ms. opinion regarding an
interpre~ation of our' 0'v\'n regulations. ~~reover, ,MS. _ is not the. pu~lis~er., ?fany ~fthe
publIcatIOns and, as such, her personal 0plmon that the petitioner meets this cntenon IS not pnmary
,'evidence that the publications enjoy a national circulation, an issue she does not even expressly address.
, ,Primary evidence of the circulation of these publications would include official circulation'data or an
official letter from the circulation departrrient of the publi9ation, evidence that has not been submitted
in this matter.
"
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The plaiillanguage of the regul~tion at S'C.F.R. § 204.5(h)(3)(iii) requires that the materials published,
be "about" ,the alien and that they appear in major trade publications or other major media. It was not
, "beyond the scope of analysis" for the director to inquire as to the circulation of the publications
submitted to meet this criterion. Rather, it is the petitioner's burden to establIsh every,element of a
,given regulatory criterion, including that the materials appeared in a major trade,publication or other,
~m~~ " ,.'
A program, while printed, is not "published material" or' a "major trade publication or other major
'media." Thus, the program for the promotional Competitionbetween the South African cast and the,
British cast and another program for a regular show cannot be considered under this criterion.
Similarly, trading cards arid promotional paid advertisements cannot serve to meet the plain language of
this criterion."" " '
'The director's use of examples'in arialyzingwhether therernaining articles were "a~out" the petitioner'
was not in errOrand in no Way indicates that the director failed to review each article. Although we are
not persuaded by counSel's assertion on app~al that the director erred in this regard, we will discuss
each article and photograph caption. "
The July 1999 article in the "Special Launch Issue" of Gladiators provid~s a history 'of the television
show. It is not "about" the petitioner and does not even mention her by name. "Another One Bites the
Dust," in You relates the journalist's experience competing unofficially as a contender and does not
even mention the petitIoner by name. A similar arti~le, "Muscling in on the Act," appeared, in the
" Sunday Times. In this article, the petitioner IS pictured, named in the caption, included as an example
of a gladiator name and finally named as the gladiator against whom the journalist competed in the
"Travelator" event. This article is clearly not "about" the petitioner. ,Finally, the petitioner is
,mentioned in an article ab~ut the upcoming season of "Gladiators," but is not the focus of a story ~n the
,Mail and Guardian. ' ,
Other materials are more ,persuasively "about" the petitioner. Specifically, the' July 2001 issue of
Gladiators contains a lengthy interview with the petitioner. A one-paragraph photograph 'caption in the
Southern, Courier reports the petitioner's promotional local appearance. Similarly, a one-paragraph
article in the RClndburgSun reports the petitioner's local appearanceandJuture advertising spots due to
, ' 'sponsorship by a local business. While these materials may be about the petitioner,,'we concur with the '
,director that the petitioner inust'establishthat these materials appeared in a major trade journal or other
, major'media., "
'The petitioner does not, subinit the circulation datafof, Gladiators, the Southern Courier or, the
Randburg Sunon"appeal. As such~ the petitioner has not ,overcomethe director's valid concern that the
record lacks evidence of the circulatio~ of the publications submitted.' While "MSN Gladiators" has,
'been documented as, a popular show, it does not necessarily follow that the magazine promoting the
show enjoyed \Vide national circulation. Moreover, independent journalistic coverage is far more
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, , persuasive than co~erage in a magazine created exclusivelyto'promote the petitioner's own television
show. It is the petitioner's burden to provide primaiyevidence establishing every element of a given
,criterion, including that the publish~ material appeared in major media. Finally, the remaining two
publications appear from their names to be local or regional in nature. ' ,
'" , In light of the above, the petitioner has not established that she meets this criterion.
, ,
Evidence of the alien's participation, either individtiallyor on a panel, as a judge of the work of
(Jthersin the same or an alliedfield ojspecificationfor Whichclassification is sought.
In response to the director's request for additional evidence, Ms. 7 asserts that as a part-time
trainer for " the petitioner judged, the progress of the company's clientele. The director
did not address this claim and counsel does not raise this issue on appeal. We simply note that judging
one's students 9r clients is an inherent, duty of a trainer and is not mdicatiye of or consistent with
national or international acclaim.' The record lacks yvidence that the petitioner has judged major
gladiator competitions or similar events where ju<;lging would be indicative of or consistent with '
national or international acclaim.
In light of the above, th~ petitioner has not established that the petitioner meets this criterion.
Evidence' 0/ the alien's" original sdentific," scholarly" artistic, athletic, or business-related
contributions ofmajorsignificclnce in thefield. "
Counselaq.d Ms. ~ assertthaf thepetition~t meets this criterion based on her .91 percent ''win
, record" and by ranking as 'the second female within the South African MSN Gladiator cast.' The ,
d~re~tor ,Con~ludedthat thes~ were hO~ origin.al' athletic contributions' recognized', as havin~'
sIgmficance In the sport natIOnally or mternatIOnally.' On appeal, counsel asserts that Ms._
,testimony is evidence that the petitioner's contributions 'are recognized in the sport.
, Counsel js not persuaSive. The Gladiator television show'· concept began' in the United States and
spread to several other ool,mtriesbefore being picked up in South Africa, according to thematerials
submitted by th~ petitioner. The petitio-nerhas nqt demonstrated that her'success in competing against
"contenders" who lack her training is original. thesho~ is designed to provide powerful obstacles that
limit the ability of the "contenders" to s~cceed. Performing as trained knot an original contribution to
the concept of the gladi.ator g~es. ' r:ven if the win percentage r~fers to the few times the petitioner has
cQmpeted 'against other gladiators, ,simply cOmpetirig~, successfully is not, an original contribution as
every gladiator competition results in so'meone winning. Similarly ranking second among avery small
pool of cast members is not ail original contribution such that it is a unique cOnceptwithin the show. '
According to the regulation )1t8 c.F.lf § 204.5(h)(3)(v), an alien's~ontributions must be not only
original but of major significance:' We must presume that the, phrase "major significance" is not
superfluous and, thus, that it has 'some meaning.' .To be considered a contribution of major
':...
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, significance in athletics, the athlete must change the field, such as by setting th~O,whiCh the
'most accomplished athletes aspire as in a world record. As acknowledged by Ms_ the number
'of gladiators nationally and' even worldwide is extremely smail. The record does not establish that
the beneficiary's success rate against minimally trained contenders or her rank within asmall group
,of gladi~tors is of major significance in the field of gladiator athletes: The record lacks evidence that
'the gladiator show was significantly influenced and changed by the petitioner's win record or
ranking. In fact,' the petitioner has not demonstrated that any country continues to broadcast new
episodes of the show.
As stated above, in response to the director's request for additional 'evidence, Ms.' asserts
that the petitioner set a "record" for completing the company's "purpose built" obstacle course. The
record lacks evidence that this isa goal to whichthe most renowned athletes aspire, su,ch as a world
'or national record in a nationally renowned event.
'_ ',In light of the above, the petitioner has not established that she meets this criterion.
'Evidence that the alien has performed in a leading or' critical role for orgariizatioJ?S or
establishments that have a distinguished reputation.
Ms. _ asserts that the petitioner meets this criterion based on her, alleged award as Female
'Gladiator of the Year and her membership on the South African gladiator team that competed against
'the Bntish cast "with 89% win record." , , '
On appeal, counsel reiterates the petitioner's claiin to meet this criterion but does not directly rebut the '
director's conclusion that the petitioner's individual role and her employer's reputation were not
sufficiently documented. '
, ,
At issue for this criterion,ate the nature of the position the petitioner was hired to fill and the nationa;l '
reputation of the entity that hired, her. MSN Gladiators, while popular during its, broadcast years,
"appears .lobe an ensemble s,how. Whil~ the petitioner's win rate may relate to het ability to fulfill her
job duties; it does not reflect a 'selection by her employer for a leading or critical role that set her apart
, from the remaining ensemble ofgladiators. ,Moreover, a distinguished reputation implies a reputation
"that has stood the test of time. 'The petitioner has not established' that the MSN Gladiators television
, show continues to be aired and enjoy popularity. ,
In response to the director's request for additional evidence, the petitioner submitted evidence that she
served as a founding part-'time trainer and spokesperson for . The company now has
five locations, 12 permanent,staff and 20 part.:tiine instructors. 'It is not clear how many part-time
instructors or spokespersons tl:te company employed while the petitioner worked there: Moreover,
while the founder of the company asserts that Boot Camp SA is' now"~e undisputed leader in military
themed events speCializing in corporate team building, ki4sparties and activities as well as health and'
strength training," he does not indicate that the company enjoyed that reputation while the petitioner
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worked there. In' addition, 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. 158,
165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.Comm.
1'972)). The record lacks press coverage of the company Of other independent evidence documenting
.',its distinguished reputation. ' , "
'In light of the above, the petitioner has not established that she meets this criterion.
Evidence that the alien has commanded a,high'salary or other significantly high remuneration for
services, in relation to others in thefield. " '
Initiaily, Ms. _ asserted that the petitioner earned $6,000 per week in wages and a $400 per hour'
appearance fee as' a MSN Gladiator. Ms. 'however, implies that these wages and, fees are
consistent with the other cast members. As the field of professiona.lgladiators' appears limited to the
cast members of the show; the 'only meaningful comparison is with other cast members: A letter
purportedly from Director of ITProductioi1s, which promoted the gladiators, ~serts that
the petitioner was, with two other gladiators, the most popular at promotions. As this letter is Urisigned,
however, it ~has no evidentiary value.
"'In response'to the director's r~uest for addi~~onal"evi~ence, Ms_asserts that the petitioner
earned $800 per week part-tinie and, had she worked full-time, would have been the highest'
compensated trainer. , Ms. . ; reaches this conclusion, however, by doubling the petitioner's part­
time'salary even though the petitioner worked three days'per week, which is more than,half of full-time
emplOyment.
The director' concluded that the 'petitioner had not 'documented her actual remooeration as an MSN
Gladiator and had not established that her remuneration 'compared with thetop,tier in the entertainment
or profe~sional sports industries. On appeal, the petitioner &ubmitsseveral contracts for appearances in
2000 and 2001. ". '
The tecordstilliacks data of comparative wages of television entertainer/athletes and trainers in South
Africa. Without such data; wecarlnot determine whether the petitioner's remuneration was comparable
,to the remuneration of the most renowned members of these fields, "
The documentation submitted in support"of a ~laim of extraordinary ability must clearly demonstrate
,that the alien has achieved'sustained national or international acclaim and is one of the small percentage
wh~ has risen to the very top of the field of endeavor, , '
, .Review of the record, 'howe.v:er,does not establish that the petitioner has distinguished herself as a
gladiator trainer to such an' extent that she may be' said to have" achieved sustained national or
international acclaim Of to b'e within the small percentage at the very top of her field. The evidence
,:. indicates that the petitioner shows talent as a glad'iatorand fitness trainer, but is not persuasive that the
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petitioner's achievementssethet significantly above aimost all others in her field. Therefore, the ' '
petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition
may not lle approved.
Finally, the regulation at 8 C.F.R. § 204.5(h)(5) provides:
NO,offer ofemployment required. Neither an offer,for employment in the United States
nor a -laborcertification is required for this classification; however, the petition must be "
accompanied by clear evidence that the alien is coming to the United States to continue
work in the area of expertise. Such evidence may include letter(s) from prospective
employer(s), evidence of prearranged commitments such as contracts,' or a statement
from the beneficiary detailing plans' on how. he or she intends to, continue his or her
work in the United States., . ,
Initially, the petitioner asserted that she was licensed to ''train, compete and hostA.tTIericanGladiator
events from Action, Inc., the owner of the American Gladiator name." The director requested the
actiIallicense. The petitioner's response did not include the license. Thus, the director questioned the
petitioner's reasonable intent to continue working in her area of expertise. On appeal~ the' petitioner
submits her license ''to train participants for exclusive American Gladiators fitness challenges and
sporting events." s, CEO of indicates that thepetitiorier will also be
able to participate in celebrity eventsll11dhost Gladiator contests.' .
'" The regul~tiori states that the petitioner shall submit additional evidence as the director, in his or her
discretion, may' deem neces~ary. The purpose of the request for evidence is to elicit further
'infofrriation that clarifies whether eligibility for the benefit sought has been established, as of the
time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The failure tp submit requested
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R.
§ 103.2(b)(14). '"'
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given
an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first
time on appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena,
19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered,
. she should have submitted the documents in response to the director's reque~t for evidence. Id.
Under the circumstances, the AAO need not and. does not consider the sufficiency of the evidence
submitted on appeal. . '
The burden ofproof 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.