dismissed EB-1A Case: Athletics

U.S. Department of Homeland Security 
identifying data deleted to 
 U. S. Citizenship and Immigration Services 
prevent clear! y unwarranted 
 Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
invasion of personal privacy 
 U. S. Citizenship 
COPY 
 and Immigration 
!$ % 
Office: TEXAS SERVICE CENTER Date: 
SRC 07 181 52416 
JUN 0 5 2009 
IN RE: 
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. § 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any hrther 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. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form 1-290B, 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. $ 103.5(a)(l)(i). 
&'q$ (k 
f ohn F. rissom 
I~~ctin~ Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1153(b)(l)(A), as an alien of extraordinary ability in 
athletics. The director determined that the record did not establish that the petitioner had achieved the sustained 
national or international acclaim required for classification as an alien of extraordinary ability. The director also 
found the petitioner had not established that she is one of that small percentage who have risen to the very top of 
her field of endeavor. Finally, the director determined that the petitioner failed to establish that she is coming to 
the United States to work in her area of expertise. 
On appeal, counsel for the petitioner refers to an unpublished decision of the AAO and claims that unrelated 
decision "overmle[s]" the decision of the director. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
United States 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. 
3 204.5(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. 3 204.5(h)(3). 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, filed on May 23, 2007, seeks to classify the petitioner as an alien with extraordinary ability as a 
swimmer. Initially, the petitioner submitted a letter from the Zimbabwe Aquatic Union about her national 
records, 2007 World Championships results, and verification of her prospective competition to compete at the 
Page 3 
2008 Olympics. In response to a Request for Evidence ("WE") dated October 18,2007, the petitioner submitted 
letters of recommendation, news articles, and evidence of her Olympic scholarship. 
At no point in this proceeding, either before the director at the time of filing or in response to the RFE or on 
appeal to us, has counsel ever identified the specific regulatory criteria the petitioner purportedly meets. 
Further, on appeal, counsel fails to dispute any of the director's specific findings. Instead, on the Fonn I-290B, 
counsel simply refers to an unpublished May 12, 2008 decision of the AAO and contends that the unpublished 
decision overrules the director's decision in this unassociated case. Counsel does not indicate that the facts of 
the previous case are analogous to the instant case or provide any fb-ther information to support a finding that 
the AAO's previous decision (which was, in fact, not sustained but remanded for further review by the director) 
has any relevance to the current case. We note that in contrast to the instant case, the petitioner in the 
unpublished case "won medals at European Championships and has been a member of three Olympic teams." 
Regardless, while the regulation at 8 C.F.R. 5 103.3(c) provides that precedent decisions of USCIS are binding 
on all its employees in the administration of the Act, unpublished decisions are not similarly binding. 
Further, although the petitioner also submitted a letter on appeal from 
 stating that the petitioner 
was selected for the 2008 Olympic Games, the letter indicates that her selection was based on her qualifylng 
time in the 100 meter butterfly at the 2007 All Africa Games, two months after the filing of the petition. 
Therefore, while this decision in no way attempts to diminish the petitioner's success, because her qualifylng 
times and the selection based upon the qualifylng times postdate the filing of the, this evidence may not be 
considered in this proceeding. See 8 C.F.R. $9 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l. Cornm'r. 1971). The sole issue to be determined in this proceeding is whether the record supports the 
petitioner's claims of eligibility for the benefit sought as of the date of filing, May 23,2007. 
The regulation at 8 C.F.R. 5 204.5(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 a such an award, the regulation at 8 C.F.R. 9 204.5(h)(3) 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 eligibility for this classification merely by 
submitting evidence that simply relates to at least three criteria at 8 C.F.R. 5 204.5(h)(3). In determining 
whether the petitioner 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 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. 
§ 204.5(h)(2). As counsel has failed to specify which of the regulatory criteria at 8 C.F.R. $ 204.5(h)(3) the 
petitioner purportedly meets, we have considered the evidence submitted under the criterion we find to be most 
applicable. If it is counsel's contention that the petitioner meets a particular criterion not addressed in this 
decision, he has never provided such a statement or argument in this regard. 
6) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in thefield of endeavor. 
The petitioner submitted letters from the Zimbabwe Aquatic Union stating that she represented Zimbabwe in a 
number of different swim meets, and that she holds the Zimbabwean record in the 50 meter, 100 meter, and 200 
meter Long Course butterfly. The petitioner submitted no primary evidence of these achievements and no 
evidence regarding dates or competitions for these purported records. The letter from- 
Page 4 
president, owner, and head coach at King Aquatic Club, states that the petitioner "won 7 medals in 5 different 
swimming events" at the All Africa Games between 1999 and 2007 and that the petitioner "has consistently 
ranked in the top 10 in the world at [FINAIGrand Priflorld Championships]." The letter from - 
secretary general of the Zimbabwean Olympic Committee, states that the petitioner won five of these 
seven medals at the 2007 All Africa Games. As stated above, the 2007 All Africa Games occurred after this 
petition was filed so cannot be used to establish the petitioner's eligibility. See 8 C.F.R. $3 103.2(b)(l), (12); 
Matter of Katigbak, 14 I. & N. Dec. at 49. The petitioner presented no evidence to show when the other two 
medals were won or to otherwise support Mr. Hutchison's statements. 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 1. & N. Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I. & 
N. Dec. 190 (Reg. Cornm. 1972)). The petitioner also submitted results from the 2007 World Championships 
where she placed 31" in the 200 meter butterfly, 48' in the 100 meter freestyle, 40' in the 100 meter butterfly, 
55" in the 50 meter freestyle, and 35" in the 50 meter butterfly. The claims regarding the petitioner's top ten 
ranking appear to be exaggerated given the aforementioned placement at the 2007 World Championships where 
the petitioner's best finish was 3 1" place. 
The petitioner also submitted evidence of the scholarship she received "to train and try to qualify for [the 
Beijing Olympics]." The information submitted by the petitioner related to this scholarship indicates that it 
"remains conditional until the athlete has qualified for the [2008 Beijing Olympics]. As soon as qualification is 
obtained, the scholarship is confied until the Beijing Games." As the terms of the scholarship indicate that it 
was contingent upon the petitioner actually qualifying for the 2008 Olympics and given that the petitioner did 
not qualiQ until after the filing of the petition, the scholarship is not evidence of her eligibility at the time of 
filing. See 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I. & N. Dec. at 49. Further, even if it could be 
considered, we would not find this scholarship to be considered a nationally or internationally recognized prize 
or award. This scholarship represents "technical and financial assistance" for the petitioner's training rather 
than a nationally or internationally recognized award for excellence in her field. Moreover, the information 
reflects that for the preceding three Olympics in 1996, 2000, and 2004, nearly 2000 scholarships were 
awarded. Such numbers do not evidence that the scholarship is awarded only to that "small percentage who 
have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The petitioner's receipt of this 
scholarship, therefore, is not illustrative of an alien who should qualify for this highly restrictive 
classification. 
Finally, the record contains evidence regarding the petitioner's success while competing as a student at 
Louisiana State University ("LSU") such as news articles that mention her participation at various collegiate 
swim meets. The article from The Sunday Mail entitled "Top swimmer eyes 2008 Olympics" states that the 
petitioner "won a bronze medal at the South Eastern Conference (SEC) championships in the 4x200 freestyle 
relay in which she anchored the LSU team and won the 100 fly at both the Summer-sectional and Pacific North 
West championships." The article also states that the petitioner had the third fastest time in the 100 fly in LSU 
history and that she was an All-American. The petitioner submitted no primary evidence of the achievements 
contained in this article, but did submit a letter from her former coach referring to the petitioner's status as an 
All-American. With regard to awards won by the petitioner on a collegiate level, we cannot conclude that 
such awards indicate that she "is one of that small percentage who have risen to the very top of the field of 
endeavor." See 8 C.F.R. 8 204.5(h)(2). USCIS has long held that even athletes performing at the major 
league level do not automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 
953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. at 60899.' Likewise, it does not follow that an athlete who has 
had success in competitions that are restricted to college level competitors should necessarily qualify for an 
extraordinary ability employment-based immigrant visa. To find otherwise would contravene the regulatory 
requirement at 8 C.F.R. 5 204.5(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." 
Accordingly, the petitioner failed to demonstrate eligibility under this criterion. 
(ii) Documentation of the alien's membership in associations in the$eld for which classiJication is sought, 
which require outstanding achievements of their members, as judged by recognized national or 
international experts in their disciplines or$elds 
In order to demonstrate that membership in an association meets this criterion, a petitioner must show that the 
association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or experience, 
proficiency certifications, standardized test scores, grade point average, recommendations by colleagues or 
current members, or payment of dues, do not satisfy this criterion as such requirements do not constitute 
outstanding achievements. Further, the overall prestige of a given association is not determinative; the issue 
here is membership requirements rather than the association's overall reputation. 
The letter from the Zimbabwe Aquatic Union states that the petitioner has been representing Zimbabwe at 
international swim meets for nine years and that the petitioner would represent Zimbabwe at the 2008 Olympic 
Games. Although the petitioner's 2008 Olympic selection cannot be considered, her prior competition as part 
of a team representing the country as a whole qualifies as an association requiring outstanding achievement 
as judged by recognized national experts in the field. Accordingly, we withdraw the determination of the 
director on this issue and find that the petitioner has demonstrated eligibility under this criterion. 
(iio Published material about the alien in professional or major trade publications or other major media, 
relating to the alien S work in the$eld for which classiJication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
1 
While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 1533 19 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[Tlhe 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 with 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. 6 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
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. fj 204.5(h)(2) is 
reasonable. 
Page 6 
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. An alien would 
not earn acclaim at the national level from a local publication. 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 
Although the petitioner submitted several articles in support of her claim under this criterion, the evidence is 
deficient for several reasons. First, the petitioner has failed to establish that any of the publications in which the 
articles were published are considered professional or major trade publication or other major media. The 
petitioner failed to submit evidence such as circulation statistics, rankings, or any other information which 
demonstrates that the publications qualify as major media under this criterion. Second, even if any of the 
publications were shown to be major media, the majority of the articles are not about the petitioner as 
required by the regulation. Rather, the articles contain information such as the results of swim meets which 
mention the petitioner as one among many other competitors or are about the club with which the petitioner 
trains but are not about the petitioner. Similarly, while the petitioner also submitted a page from the LSU 
Swimming and Diving Media Guide (Guide) which features her picture and a five line statement, that short 
blurb is insufficient to show that the Guide or article is primarily about her as opposed to being about the 
other individual whose picture appears next to hers with a four line blurb or the other 12 individuals whose 
pictures appear on the page. 
In addition, the petitioner submitted a page from El-Djazair dated July 18, 2007, however, that publication 
appears in a foreign language and no translation was provided as required by 8 C.F.R. 8 103.2(b)(3), which 
states that "[alny document containing foreign language submitted to USCIS shall be accompanied by a full 
English language translation which 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." 
Without such a translation, we are unable to determine the article's applicability under this criterion. The 
petitioner also submitted an article with no title that appeared on www.xinhuanet.com and an article on 
Beijing2008.com. As it relates to internet articles, we note that in today's world, many newspapers, 
regardless of size and distribution, post at least some of their stories on the internet. To ignore this reality 
would be to render the "major media" requirement meaningless. We are not persuaded that international 
accessibility via the internet by itself is a realistic indicator of whether a given publication is "major media." 
The petitioner must still provide evidence, such as, a widespread distribution, readership, or overall interest 
in the publication in order to demonstrate that the publication is a professional or major trade publication or 
major media in order for us to credit these articles. Regardless, all three of these preceding articles were 
published in July 2007, which was after the date that this petition was filed and therefore cannot be 
considered. A petitioner must establish the elements for the approval of the petition at the time of filing. 
8 C.F.R. $9 103.2(b)(l), (12); Matter of Katigbak, 14 I. & N. Dec. at 49. 
Even with nationally-circulated newspapers, consideration must be given to the placement of the article. 
For example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Finally, the petitioner submitted "A Student and a Serious Swimmer" published in the fall 2006 in the LSU 
School of Renewable Natural Resources newsletter, which although primarily about her was authored by the 
petitioner so is insufficient to demonstrate eligibility under this criterion." 
Accordingly, the petitioner has not established her eligibility under this criterion. 
(viii) Evidence that the alien has pei$ormed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
In letter, he asserts that the petitioner satisfies this criterion based upon her participation on 
the national athletic team of Zimbabwe at various international swim meets, including the 2008 Olympic Games, 
which had not even taken place at the time that he wrote this letter. The petitioner's awards and membership on 
the national team have already been addressed under the regulatory criterion at 8 C.F.R. fj 204.5(h)(3)(i) and (ii). 
We emphasize that the regulatory criteria are separate and distinct from one another. Because separate criteria 
exist for membership in associations requiring outstanding achievement and leading or critical role in 
organizations with distinguished reputations, USCIS clearly does not view these criteria as being 
interchangeable. If evidence sufficient to meet one criterion mandated a finding that an alien met another 
criterion, the requirement that an alien meet at least three criteria would be meaningless. Therefore, we will not 
presume that mere membership or participation on a team is sufficient to meet this criterion. Rather, the issue is 
whether the petitioner can show the significance of his or her role to the performance or success of the team. 
In this case, the evidence does not distinguish the petitioner from other members of the te 
 le 
on the team can be said to have been leading or critical. For instance, in the letter from 
 a 
teammate of the petitioner's on the Zimbabwe National team, -states that she received gold, silver 
and bronze medals at the 2004 Athens Olympic Games and the 2005 and 2007 World Championships. In 
contrast, the petitioner's best performance was her 30~ place finish at the 2007 World Championships. The 
petitioner failed to show how her performance set her apart fiom her teammates such that she can be said to 
have demonstrated a leading or critical role for her team. As indicated above, simply being selected for this 
team is not sufficient to demonstrate eligibility under this criterion. The record contains no mher evidence 
from the Zimbabwean Olympic Committee or Zimbabwe Aquatic Union which identifies the petitioner's 
distinct performance for her team or a specific role, such as team captain, to differentiate the petitioner from her 
teammates in such a way that she can be considered to have performed in a leading or critical role for the 
Zimbabwean national team. 
The record also does not demonstrate that the petitioner meets this criterion through her participation with the 
LSU Swimming and Diving program. We acknowledge that the petitioner was selected as an All-American 
while enrolled at LSU and that she served as the captain of her college team. However, while such evidence 
may establish the petitioner's leading or critical role for that team, we need not reach such a determination as the 
petitioner failed to demonstrate that LSU has a distinguished reputation. The petitioner submitted no evidence 
regarding LSU7s swimming accomplishments or evidence which compares those accomplishments to other 
swimming programs or otherwise demonstrates that LSU enjoys a distinguished reputation. 
For all of the above reasons, the petitioner has not demonstrated eligibility under this criterion. 
3 
 The criterion at 8 C.F.R. 5 103.2(b)(3)(vi) provides for articles authored by the petitioner, however, as that 
criterion is limited to scholarly articles this article would not establish eligibility under that criterion. 
Page 8 
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)(l)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(l)(A)(ii); 8 C.F.R. 3 204.5(h)(5). 
Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such 
as contracts, or a statement fi-om the petitioner detailing plans on how she intends to continue her work in the 
United States. On the Form 1-140, the petitioner failed to provide any information in Part 6, "Basic information 
about the proposed employment." Further, with her initial submission, the petitioner submitted no personal 
statement, no letters from prospective employers, contracts, or other information detailing her plans in the 
United States. Although some of the letters of recommendation submitted by the petitioner indicate that she has 
been training, the record demonstrates that the petitioner graduated from college in 2006 and contains no 
statement from the petitioner or other evidence to show what she has been doing since that time and how she 
plans to continue working in her area of expertise in the United States. Despite the director's specific request 
for evidence that the petitioner seeks to continue work in her area of expertise in the RFE, the petitioner failed to 
submit any probative evidence in response to the director's request. Although the director's decision 
erroneously referred to the petitioner's field of endeavor as water polo rather than competitive swimming, we 
find the error to be harmless. The director's RFE did not contain this error and as discussed above, despite the 
specific request for further information on this issue, the petitioner failed to respond to this issue after the RFE. 
Similarly, on appeal, even with the director's specific finding, the petitioner submitted no additional evidence 
regarding this issue. Counsel does not even address this issue in his appellate brief. Accordingly, we concur 
with the director's ultimate determination that the petitioner has failed to establish that she will continue work in 
her area of expertise in the United States. 
Finally, beyond the director's decision, we find the petitioner has failed to establish that her entry into the 
United States will substantially benefit prospectively the United States. As discussed above, the petitioner has 
failed to establish her extraordinary ability as demonstrated by the required sustained acclaim and has also failed 
to establish through extensive documentation that her achievements have been recognized in her field. In 
addition, the petitioner has failed to establish that she seeks to enter the United States to continue work in her 
area of extraordinary ability. Given her failure to satisfy any of these statutory requirements, the petitioner's 
substantial benefit cannot be automatically assumed. As previously discussed, the petitioner has failed to 
provide any description of her future plans in the United States. As she has failed to provide any probative 
details about her future prospects, opportunities, plans or intent, it is unclear how she will substantially benefit 
prospectively the United States. Moreover, it is unclear how, as a member of the Zimbabwean National team, 
she will substantially benefit prospectively the United States by training for and competing with a foreign 
national team. For this additional reason, the petition may not be approved. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. § 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his field. The evidence in this case 
indicates that the petitioner is a member of the Zimbabwean national swim team. However, the record does not 
establish that the petitioner achieved sustained national or international acclaim so as to place her at the very top 
of her field nor did she establish that she plans to continue work in her area of expertise while in the United 
States or that her entry will substantially benefit the United States. She is thus ineligible for classification as an 
alien with extraordinary ability pursuant to section 203(b)(l)(A) of the Act, 8 U.S.C. 8 1153(b)(l)(A), and her 
petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. § 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also Janka v. US. Dept. of Transp., NTSB, 
925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal 
courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 9 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.