dismissed EB-1A Case: Athletics

identifYing data deleted to 
prevent clearly unwarr mvas· anted IOn of personal ' pnvaq 
PUBLIC Copy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: JAN 21 2011 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the hnmigration and Nationality Act, 8 U.S.c. § IIS3(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Fonn I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 
203(b)(I)(A) of the hnmigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualifY for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.F.R. § 204.S(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualitying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, counsel submits a brief and evidence, much of which is already part of the record of 
proceedings. For the reasons discussed below, we uphold the director's ultimate conclusion that the 
petitioner has not established her eligibility for the benefit sought. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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. 
Page 3 
u.s. Citizenship and Immigration Services (USCrS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking inuuigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. [d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifYing evidence under at least three of the following ten categories of 
evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and any 
necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence submitted to meet a given evidentiary criterion.l With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." [d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfY the 
regulatory requirement of three types of evidence (as the AAO concluded)." [d. at 1122 (citing to 8 
C.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as the corollary to this 
procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 
8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. § 1153(b)(I)(A)(i). 
[d. at 1119-20. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In reviewing Service Center decisions, the AAO will 
apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a 
new analysis if the director reached his or her conclusion by using a one-step analysis rather than the 
two-step analysis dictated by the Kazarian court. See 8 C.F.R. 103.3(a)(l)(iv); SO/lane v. DOJ, 381 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), ajJ'd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de novo authority). 
II, Analysis 
The petitioner initially submitted evidence of her past activities as a tennis player but did not indicate 
her plans for future employment as required under 8 C.F.R. § 204.5(h)(5). In response to the director's 
request for additional evidence, the petitioner submitted evidence of prospective employment as a 
coach. 
The regulation at 8 C.F.R. § 204.5(h) requires the beneficiary to "continue work in the area of 
expertise." While a tennis player and a coach certainly share knowledge of tennis, the two rely on 
very different sets of basic skills. Thus, competitive athletics and coaching are not the same area of 
expertise. This interpretation has been upheld in Federal Court. See Lee v. 1.N.s., 237 F. Supp. 2d 
914,918 (N.D. Ill. 2002). 
uscrs recognizes that there exists a nexus between playing and coaching a given sport. To assume 
that every extraordinary athlete's area of expertise includes coaching, however, would be too 
speculative. To resolve this issue, a balanced approach is appropriate when reviewing the evidence in 
the aggregate in the final merits determination. Specifically, in a case where an alien has achieved 
recent national or international acclaim as an athlete and has sustained that acclaim in the field of 
coaching at a national level, we can consider the totality of the evidence as establishing an overall 
pattern of sustained acclaim and extraordinary ability such that we can conclude that coaching is 
within the petitioner's area of expertise. A coach who has an established successful history of 
coaching athletes who compete regularly at the national level has a credible claim; a coach of novices 
does not. 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The record contains evidence that the petitioner in 2004, 2005 and 
2006. The petitioner also won several national awards in China. Specifically, in 2003 the petitioner 
pla1ced third in a national championship in China, in 2002 the petitioner placed second in the _ 
2001 the petitioner placed third at an in 2001 the petitioner 
placed third in both mixed and women's doubles at the in 2000 the 
petitioner again placed third in mixed doubles at the in 2000 the petitioner 
placed third at in 1998 the petitioner placed third in the _ 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 6 
petitioner also submitted evidence of lesser place finishes as well as 
awards in student and youth events. 
In light of the above, we concur with the director that the petitioner has submitted qualifYing evidence 
that meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i). 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
Initially, the petitioner June 29, 2006 certificate from the ••••••••• 
as a "Professional 3." In a May 29, 2008 letter,_ 
-assents that the petitioner was currently ranked as a 
dU'ec1:or" s request for additional evidence, the petitioner submitted 
The card is dated "2008" and indicates that it would 
expire on December 31 of that year. The petitioner submitted general information about __ from 
its website, but these materials do not "Professional" rankings. Finally, the 
petitioner submitted her personal, self On this page, she discusses what was 
required to obtain a professional I ranking. The webpage, however, includes a disclaimer indicating 
that-' does not guarantee the accuracy of statements made by members on their individual pages. 
concluded that the petitioner had not demonstrated the membership requirements for 
On appeal, the petJtlOner submits evidence from 
member rankings. These materials provide: 
regarding Professional-level 
The majority of consists of Professional-level members who 
work full time in the Professionals are rated at three levels, with 
Professional I being the highest according to their scores on a five-part certification 
exam. 
The materials further provide that Professional 1 members must meet the following requirements: 
• Must be 22 years of age or older 
• Must pass all portions of the Certification Exam at the Pro 1 level or higher 
• Must have an NTRP [National Tennis Rating Program] of 4.5 or higher 
• Must have three years or five seasons of full-time teaching experience. 
First, the petitioner's 2008_ does not list a specific issue date. Thus, the petitioner has not 
established that she held the Professional I membership rank on June 13, 2008, when the petition was 
filed. The petitioner must establish her eligibility as of that date. See 8 C.F.R. §§ 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'!' Comm'r. 1971). 
Second, even if we accept assertion that the petitioner was already ranked as a 
"Professional 1" as of the date of filing, the petitioner has not established that ' 
_ must demonstrate outstanding achievements as judged by national or international experts. 
Age and experience are not outstanding achievements. In addition, simply passing a certification 
examination as a specific level is not an outstanding achievement. The petitioner has not established 
how many_ exist and 3 Thus, regardless of the petitioner's 
rating, she has not established that outstanding achievements for 
level membership. 
Finally, while the petitioner submitted information about the contents of the certification examination, 
this information does not indicate whether national or international experts judge the examinations. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
As noted by the director, the petitioner submitted newspaper articles, mostly about competitions she 
attended and her collegiate team although a single article is primarily about the petitioner as a student 
and player. As the director also noted, the petitioner did not provide evidence that the publications are 
professional or major trade publications or other major media in response to the request for such 
documentation. 
On appeal, the petitioner submits evidence that 
one of its articles. The petitioner also submits evidellce 
published by •••• 
19"1)11' of the petitioner in 
is a monthly magazine 
The petitioner was put on notice of required evidence and given a reasonable opportunity to provide 
it for the record before the visa petition was adjudicated. The petitioner failed to submit the 
requested evidence and now submits it on appeal. However, the AAO will not consider this evidence 
for any purpose. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 
I&N Dec. 533, 537 (BIA 1988). Regardless, the article in ADDvantage is not "about" the petitioner 
as required by the plain language at 8 C.F.R. § 204.5(h)(3)(iii). 
The petitioner submitted only a single article about her. Even if that article appeared in a 
professional or major trade journal or other major media, the regulation at 8 C.F.R. § 204.5(h)(3)(iii) 
3 According to the U.S. Tennis Association's website, the highest NTRP level is seven, world class player. A 
minimum of a six rating is required for national level junior or collegiate competition. Thus, a 4.5 rating 
would not appear to be an outstanding achievement. 
Page 8 
requires evidence of published material in publications in the plural. That requirement is consistent 
with the statutory requirement for extensive evidence. Section 203(b)(1 )(A)(i) of the Act. 
Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the 
regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a 
single high salary. Thus, we can infer that the plural in the remaining regulatory criteria has meaning. 
In a different context, federal courts have upheld uscrs' ability to interpret significance from whether 
the singular or plural is used in a regulation. 4 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
On appeal, counsel asserts that the petitioner's awards are evidence of her original contributions to the 
field. As stated above, the statute requires extensive evidence. Section 203(b )(\ )(A)(i) of the Act. 
Consistent with this statutory requirements, the regulation at 8 C.F.R. § 204.5(h)(3) requires evidence 
qualifying under three separate criteria. We have already considered the petitioner's awards under 
8 C.F.R. § 204.5(h)(3)(i), the criterion specifically addressing awards. Only a major international 
award can serve as the sole evidence of eligibility. 8 C.F.R. § 204.5(h)(3). Thus, we will not consider 
lesser awards as qualifying evidence under multiple criteria. Counsel has not explained how winning a 
tennis award is either original or a contribution of major significance to the field as a whole such that 
the petitioner's influence or impact on the field is apparent. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(v). 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The petitioner submitted photClgr:lpllS 
another female played pmim:ring 
"mennrt to be of an exhibition match the petitioner and 
The record 
does not reveal that this "~~~~\::~:~::;:;: petitioner's work as opposed to that 0 
In light of the above, the petitioner has not submitted evidence that meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
4 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCt) at 12 (D.C. Cir. March 26, 2008); Snapnames.com 
Inc. v. Chertof!, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the 
regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
Page 9 
Evidence that the alien has performed in a leading or critical role Jor organizations or 
establishments that have a distinguished reputation. 
the petitioner "was one of the lead tennis players 
tennis team." Counsel further asserts that BYU-H:1W:ui 
News and World Report. The unsupported assertions of counsel do not 
constitute evidence. Matter oJObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter oJLaureano, 
19 I&N Dec. 1,3 n.2 (BIA 1983); Matter oJRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
In support of counsel's the 
petitioner and again for also 
references a school newspaper article quoting the petitioner's coach as stating that the petitioner is "a 
coaches [sic] dream." The petitioner also material . 
teams in general on the school's website. asserts that his collegiate teams have won 11 
national collegiate championships. notes the petitioner's success on the team and asserts that 
she served as an assistant coach in the most recent season. 
While the petitioner may have played a critical role for the 
not an organization or establishment. A student athlete does not 
university simply by being a successful athlete. 
tennis tearn, the tennis team is 
a critical role for the entire 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Summary 
In light of the above, the petitioner has not submitted the requisite evidence under at least three of the 
evidentiary categories for which evidence must be submitted to meet the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. Nevertheless, we will review the 
evidence in the aggregate as part of our final merits determination. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20. 
The petitioner's awards, while qualifying under 8 C.F.R. § 204.5(h)(3)(i), are not consistent with 
sustained national or international acclaim in 2008 when the petitioner filed the petition. The 
Page \0 
petitioner's most recent accomplishments were at the Division II collegiate level. The petitioner has 
not demonstrated that the highest level of tennis competition nationally is Division II collegiate 
athletics. Significantly, even playing at the professional level, by itself, is insufficient to establish 
eligibility for the classification sought. Supplementary information at 56 Fed. Reg. 60899 (Nov. 29, 
1991). Moreover, the petitioner's awards all recognize her ability as an athlete. The record contains no 
evidence that athletes that have won nationally or internationally recognized awards while principally 
under the petitioner's tutelage. 
Assuming the petitioner was member of the _ as of the date of filing, we 
reiterate that the petitioner has not established that this membership requires outs~ 
achievements. The record contains no evidence that there are a very limited number of _ 
or other evidence that is uniquely 
aCI~laim or placement among the small percentage at the top of her field. 
The media coverage, as discussed above, is minimal. The petitioner has not demonstrated that there 
is published material "about" her in professional, trade or other major media. The published 
materials submitted, some of which appear to be in local publications, primarily cover specific 
competitions. The media coverage is not consistent with the petitioner's status as one of the small 
percentage at the top of her field as an athlete. The record contains no published material relating to 
the petitioner as a coach. 
The petitioner was a valuable team member of her collegiate tennis team and served as an assistant 
coach for one season. The record is not persuasive that her role is indicative of 
national or international acclaim or her placement among the small percentage at the top of her field, 
including professional tennis players. Moreover, a student assistant coach position is not indicative 
of any acclaim as a coach or placement among the small percentage at the top of her field. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of the small 
percentage who has risen to the very top of the field of endeavor either as an athlete or a coach. The 
petitioner, whose highest level coaching position as of the date of filing was an assistant coach position 
while a student, relies on her past accomplishments as an athlete, most recently at the Division II 
collegiate level. The petitioner claims that coaching is within her area of expertise, but the record 
. evidence of the accomplishments of any student primarily under her tutelage. By contrast, 
a former served in other major roles for . He 
reci.pient of the the and 
if we at of 
won Thus, it appears that the 
highest level of the petitioner's field in coaching and even athletics is far above the level she has 
attained. 
Page 11 
III. Conclusion 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished herself as a 
tennis coach to such an extent that she may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of her field. The evidence indicates that the 
petitioner shows talent as a tennis player, but is not persuasive that the petitioner's achievements set her 
significantly above almost 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 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.