dismissed EB-1A Case: Athletics

(b)(6)
DATE : JUL 1 4 2014 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
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 
FlLE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) ofthe Immigration and Nationality Act, 8 U.S.C. § 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establi sh 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
pol icy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-
2908) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
htip://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 1 03.5. Do not file a motion directly with the AAO. 
~~ (I-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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 of the beneficiary as an "alien of extraordinary ability" in athletics, 
pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(1 )(A). The director did "not find the beneficiary to be an individual 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. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the beneficiary's basic eligibility requirements. 
On appeal, the petitioner submits a brief and additional evidence. For the reasons discussed below, we 
uphold the director's ultimate conclusion that the petitioner has not established the beneficiary's 
eligibility for the exclusive classification sought. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers . -- Visas shall first be made available .. . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if--
(i) the alien has extraordinary ability in the sciences, arts, education , 
business, or athletics which has been demonstrated by sustained national or 
international acclaim and whose achievements have been recognized in the 
field through extensive documentation , 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
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U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 10 I 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 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 ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
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. USCJS, 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.1 With respect to the criteria at 8 
C.F.R. § 204.5(h)(3)(iv) and (vi), the comt 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 sufficie.ot evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of e vidence (as the AAO concluded)." !d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
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 this matter, we will review the evidence under the 
plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence on behalf of the beneficiary under at least three criteria, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. !d. 
II. ANALYSIS 
A. Prior 0-1 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude USCIS from denying an immigrant visa petition 
1 
Specifically , the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requir ements 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). 
. .. . . .. ········-··--- -------- ---- - -------
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based on a different, if similarly phrased, classification. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS 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. 1999); Fedin Broth ers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
We are 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'r 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, our 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 has approved a nonimmigrant petition on 
behalf of the alien, we would not be bound to follow the contradictory decision of a service center. 
Louisiana Philharmonic Orchestra v. I NS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that does not comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Ente1pri ses, Inc. v . United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (91h Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
B. Evidentiary Criteria2 
Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
Although the director 's decision did not address this criterion, the record does contain evidence of 
awards the petitioner submitted in response to the director 's request for evidence. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the alien 's 
receipt" of prizes or awards . USCIS may not utilize substantive or evidentiary requirements beyond 
those set forth at 8 
C.F.R. § 204.5. See Kazarian , 596 F.3d at 1221, citing Love Korean Church v. 
Chertoff, 549 F.3d 749, 758 (9th Cir.2008). 
The petitioner relies on a non-precedent AAO decision to assert that awards granted to individuals 
other than the beneficiary should be considered comparable evidence. An inability to meet a criterion is 
not necessarily evidence that the criterion does not readily apply to the beneficiary's occupation such 
that a petitioner may rely on comparable evidence pursuant to 8 C.P.R. § 204.5(h)(4). In addition, the 
petitioner has not demonstrated that awards in the beneficiary's occupation do not exist. 
2 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
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While the regulation at 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all 
USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Applications or petitions are not required to be approved where the petitioner has not demonstrated 
eligibility 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). USCIS or any agency need not 
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). 
The petitioner also asserts that the beneficiary's "Level 2 High Performance Coaching Certificate" is 
a "[n]ational [a]ward for [e]xcellence," and should be considered under this criterion, as well as the 
separate criterion regarding membership. 8 C.F.R. § 204.5(h)(3)(ii). Evidence relating to or even 
meeting the membership criterion is not presumptive evidence that the beneficiary also meets this 
criterion. To hold otherwise would render meaningless the regulatory requirement that a petitioner 
demonstrate that the beneficiary meets at least three separate criteria. Therefore, the beneficiary's 
status as a "Level 2 High Performance Coach" will be considered under the membership criterion 
below. Regardless, a credential based on passing practical exams is not a prize or award for 
excellence. 
Even if the petitiOner were to submit supporting documentary evidence showing that the 
beneficiary's status as a "Level 2 High Performance Coach" meets the elements of this criterion, 
which it has not, section 203(b)(1)(A)(i) of the Act requires the submission of extensive evidence. 
Consistent with that statutory requirement, the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) requires receipt of more than one nationally or internationally recognized prize or 
award for excellence. 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 a single 
instance of service as a judge or a single high salary. When a regulatory criterion wishes to include 
the singular within the plural, it expressly does so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) 
that evidence of experience must be in the form of "letter(s)." Thus, the plural in the remaining 
regulatory criteria has meaning. In a different context, federal courts have upheld USCIS' ability to 
interpret significance from whether the singular or plural is used in a regulation. Cf Maramjaya v. 
USCIS, Civ. Act. No. 06-2158 (RCL) at *1, *12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. 
Chertoff, 2006 WL 3491005, at *1, *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). 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
As stated by the director in his decision, it is the petitioner's burden to demonstrate that the beneficiary 
(b)(6)
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meets every element of a given criterion, including that membership requires outstanding achievements 
of its members, as judged by recognized national or international experts. Further, the overall prestige 
of a given association is not determinative; the issue here is membership requirements rather than the 
association's overall reputation. 
On appeaL the petitioner asserts that "[w]hile the requirements to become a coaching member of 
require meeting the 'application preresquisites' as you state in your denial letter, a Level 2 
certification is an outstanding achievement." According to the by-laws of 
"[ c ]oach members are those individuals who register as active coaches and who are certified as level 
one (1) through (4) coaches by ' Based upon the information in the record, there are two levels 
above the beneficiary's level 2 certification. In addition, the by-laws do not state that "outstanding 
achievements" are a requirement of membership. 
On appeal, the petitioner reasserts his initial claim that the beneficiary's positiOn at a 
badminton club in is evidence under this criterion. The petitioner, however, does not 
provide any documentary evidence that membership in the club requires "outstanding achievements of 
their members," or provide any explanation as to how a position as a coach is equivalent to 
membership in an association, as required by the plain language of the regulation. 
Although the petitioner initially claimed that the beneficiary satisfied this criterion based on additional 
coaching positions and sponsorship by the petitioner fails to specifically address any of these 
positions and sponsorship on appeal. Thus, the petitioner has abandoned any claim regarding these 
other accomplishments. See Sepulveda v. US Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005); 
Hristov v. Roark, No. 09-CV-2731, 2011 WL 4711885 at *9 (E.D. N.Y. Sept. 30, 2011). 
In addition, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(ii) requires "evidence of the 
alien's membership in associations" in the plural, which, as previously stated, is consistent with the 
statutory requirement for extensive evidence. Section 203(b )(1 )(A)(i) of the Act. 
In light of the above, 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 classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
Although the director's decision did not address this criterion, the record does contain evidence of 
evidence submitted in response to the director's request for evidence. The plain language of the 
regulation at 8 C.P.R. § 204.5(h)(3)(iii) requires "[p]ublished 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." In general, in order for published material to meet this criterion, it must be 
about the petitioner and, as stated in the regulations, be printed in professional or major trade 
publications or other major media. To qualify as major media, the publication should have 
significant national or international distribution. Some newspapers, such as the 
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nominally serve a particular locality but would qualify as major media because of significant national 
distribution, unlike small local community papers? 
The record does not contain any documentation that any of the submitted evidence for this criterion 
was published in professional or major trade publications or other major media, as required by the plain 
language of the regulation. The submission of articles and a television appearance without evidence 
that they constitute major media is insufficient to establish eligibility for this criterion. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
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 specification for which classification is sought. 
The director determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C .F.R. § 204.5(h)(3)(iv) requires "[e]vidence 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 specification for which classification is sought." A review of the record of proceeding, 
however, does not reflect that the petitioner submitted sufficient documentary evidence establishing 
that the beneficiary meets the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iv) for the 
reasons outlined below. 
Serving as a coach where part of one's job duties includes evaluating athletes on one's team does not 
equate to participation as a judge of the work of others in the field. The phrase "a judge" implies a 
formal designation in a judging capacity, either on a panel or individually as specified pursuant to the 
regulation at 8 C.P.R. § 204.5(h)(3)(iv). Informal instances of evaluating athletes as a coach do not 
meet the elements of this criterion. There is no evidence on record demonstrating that the petitioner 
actually served "as a judge of the work of others." 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director determined that the petitioner established eligibility for this criterion. A review of the 
record of proceeding reflects that the petitioner submitted sufficient documentary evidence 
establishing that the beneficiary meets the plain language of the regulation at 8 C.P.R. 
§ 204.5(h)(3)(viii). 
Accordingly, the petitioner meets this criterion. 
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the but in a section that is distributed only in 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
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Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field 
The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(ix) requires the petitioner to submit 
evidence of the beneficiary's "high salary or other significantly high remuneration for services, in 
relation to others in the field." On appeal, the petitioner states that the beneficiary "earned a total of 
$45,294.94 in 2010, $64,775.80 in 2011, and $64,228 in 2012" and that this included 
"compensation ... for private coaching lessons, which is a common practice by badminton coaches." 
As the amounts include remuneration other than salary, the submitted documents, including the 
information regarding the annual salary for a badminton player in a badminton coach in 
India, and the determination from with statistics relating 
to salary only is not a meaningful comparison. The petitioner must not only submit evidence of 
remuneration for services, but also submit documentary evidence of the earnings of those in the 
beneficiary's occupation performing similar work at the top level of the field. In this instance, the 
record lacks information regarding the total remuneration, rather than the just the salary, for other 
badminton coaches who perform similar duties. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. 
Commr. 1994) (considering professional golfer's earnings versus other PGA Tour golfers); see also 
Crimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus 
other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N.D. ill. 1995) (comparing salary of 
NHL defensive player to salary of other NHL defensemen). Furthermore, as stated by the director, 
according to the submitted FLC Wage report, the level 4 salary is $44,510 annually and the 
beneficiary's salary (not including money earned from private lessons) was $10,250 in 2010, 
$40,567.50 in 2011 and $29,375 in 2012, which is below the level4 wage. 
Regarding the beneficiary's offered salary of $48,000, the plain language of the regulation requires that 
"the alien has commanded a high salary." There is no evidence in the record to demonstrate that the 
beneficiary had already received the referenced remuneration. Eligibility must be established at the 
time of filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971). 
Finally, the regulation at 8 C.P.R. § 103.2(b)(2)(i) provides that the non-existence or unavailability 
of required evidence creates a presumption of ineligibility. According to the same regulation, only 
where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may the 
petitioner rely on secondary evidence and only where the petitioner demonstrates that secondary 
evidence is unavailable may the petitioner rely on affidavits. In the instant petition, the petitioner did 
not submit any documentary evidence demonstrating that neither primary evidence, nor secondary 
evidence, such as references to total remuneration, including money earned for private lessons, for 
top badminton coaches in the media, exists and is available. Furthermore, the letters in the record 
are not affidavits as they were not sworn to or affirmed by the declarant before an officer authorized 
to administer oaths or affirmations who has, having confirmed the declarant's identity, administered 
the requisite oath or affirmation. See Black's Law Dictionary 58 (9th Ed., West 2009). Nor, in lieu 
of having been signed before an officer authorized to administer oaths or affirmations, do they 
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contain the requisite statement, permitted by Federal law, that the signers, in signing the statements, 
certify the truth of the statements, under penalty of perjury. 28 U.S.C. § 1746. 
Without documentary evidence that the petitioner's total remuneration is high in relation to other top 
badminton coaches, the beneficiary cannot be found to meet this criterion. 
C. Summary 
As the petitioner did not submit qualifying evidence on behalf of the beneficiary under at least three 
criteria, the proper conclusion is that the petitioner has failed to demonstrate that the beneficiary 
satisfies the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
Had the petitioner submitted the requisite evidence on behalf of the beneficiary under at least three 
evidentiary categories, in accordance with the Kazarian opinion, the next step would be 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" 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.P.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While we 
conclude that the evidence is not indicative of a level of expertise consistent with the small percentage 
at the very top of the field or sustained national or international acclaim, we need not explain that 
conclusion in a final merits determination. 4 Rather, the proper conclusion is that the petitioner failed to 
demonstrate that the beneficiary has satisfied the antecedent regulatory requirement of three types of 
evidence. ld. at 1122. 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the 
Act and the petition may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
4 
We maintain de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004).381 F.3d at 145. In any future proceeding, we maintain the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 
103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 
C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) 
(holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).