dismissed EB-1A Case: Auto Racing

'identifying data deleted to 
prevent eli;:,':;; c:nwarranted 
invasion of personal privacy 
1'UBLIC COpy 
DATE: 
JAN 05 2012 
Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Benefic iary: 
u.s. nepartmcnt of Homeland S{'('uri{~ 
U.S. Citizenship and immigraIH)[} Sc]"\'icl':-. 
Administrative AppCdls Office (AAO) 
20 Massachusetts Ave., :-..l.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(I)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1 )(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 
information 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 Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I )(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
-'4." Q_­Cf-7r- ,0/-
.(;y" Perry Rhew 
Chief, Administrative Appeals Office 
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" as a "Race Car Driver/Team 
Manager," pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 u.s.c. 
§ 1153(b)(l)(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. § 204.5(h)(3): see also H.R. 723 101" Cong .. 2d Sess. 59 (1990). 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 basic eligibility requirements. 
On appeal, the petitioner submits a statement and offers additional evidence. For the reasons discussed 
below, the AAO upholds the director's ultimate determination that the petitioner has not established his 
eligibility for the 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 descrihed in this subparagraph if--
(i) the alien has extraordinary ability in the sciences, m1s, 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. 
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. 723 101" 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. hi.: 
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 pm1icipation, 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 establ ishments 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 
Page 4 
(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. USClS, 596 F.3d 1115 (9th Cir. 2010). Although the coun 
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.' 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)." Id. 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. § I I 53(b)(1)(A)(i). 
Id. at 1119-20. 
Thus, Kazarian sets forth a two-patt 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)(I )(iv); SO/lane \'. DO'!, 381 
F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de novo authority). 
, Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set fOlih in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
Page 5 
II. Continuing to work in the area of expertise in the United States 
The statute and regulations require that the petitioner seeks to continue work in his area of expertise 
in the United States. See section 203(b)(l)(A)(ii) of the Act, 8 U.S.c. § IIS3(b)(l)(A)(ii); 8 C.F.R. 
§ 204.S(h)(S). It is important to note that on the Form 1-140, Immigrant Petition for Alien Worker 
(Form 1-140), under Part 6, "Basic information about the proposed employment," the petitioner states 
the beneficiary's job title will be "Race Car Driverrream Manager" and it provides the following 
nontechnical job description: 
Continue to develop and manage the race car division within I the petitioner's company. I 
Duties will include developing and managing the race car team and its race cars and 
perform required duties incidental to car racing which include maintaining and repairing 
of company race cars and performing the necessary tests on the same. Will represent 
and promote company and provide publicity of our products to sponsors, potential 
sponsors and clients. As the team manager, he will be the owner's right hand man. He 
oversees the day-to-day administrative duties that kcep our team lUlming. He is required 
to work closely with the crew chief. who oversees all of the hands-on activities related to 
building and tweaking the car that will race on the track. These activities include 
designing the body, adjusting the suspension, turning the engine and more. 
It is apparent that a conflict exists between the job title and the job description, as the job description 
contains no reference to the beneficiary'S proposed employment in the United States relating to 
driving a race car. The beneficiary'S Form G-32SA, Biographic Information indicatcs thc 
beneficiary's occupation from March 2005 until the date he signed the form, December 18. 2008. 
was a race car driver. The vast majority of the beneficiary's recognition through awards. 
membership, and published material initially filed with the petition relates to his achievements as a 
driver. However, the evidence related to the alien's contributions of major significance primarily 
relates to his work as a shock and suspension specialist. Based on the information provided in the 
job description portion of thc Form 1-140, the record is clear that the petitioner intends for the 
beneficiary to continue to work as a team manager of a race car team in the United States. 
Aside from documentation establishing the petitioner's intention to employ the beneficiary as a race 
car team manager and for the beneficiary to continue to work in the United States as such. the 
petitioner submitted evidence of the beneficiary'S athletic accomplishments as a race car drivcr. It i.s 
not apparent when the beneficiary's primary profession as a race car driver ended; however. it is 
clear that the petitioner now intends for the beneficiary to serve the organization as a manager of the 
race car team. While a race car driver and a race car team manager may share knowledge of the 
sport, the two rely on very different sets of basic skills. Thus, competitive athletics and managing 
are not the same area of expertise. This interpretation has been upheld in Federal Court. In Lee 1'. 
Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court stated: 
Page 6 
It is reasonable to interpret continuing 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 docs 
not imply that he also has extraordinary ability in all positions or professions in the baseball 
industry such as a manager, umpire or coach. 
[d. at 918. The court noted a consistent history in this area. A more recent Federal Court provides a 
similar interpretation. In Hristov v. Rourk. 09-CY-2731, 2011 WL 4711885 (E.D.N.Y. Sept. 30. 
20 II), the court stated: 
ITlhe AAO accurately noted that the second requirement of 8 U.S.c. § 1153(b)(I)(A) 
I section 203(b)(I)(A) of the Act] necessitates that the plaintiff "continue [to] work in 
the area of extraordinary ability." It was reasonable for the uscrs to interpret 
continuing to work in one's "area" as actually working in the same profession and not 
merel y the same field. 
While the record demonstrates that the petitioner intends to continue working as a race car team 
manager, there is no evidence indicating that he intends to compete as a race car driver in the United 
States. The AAO acknowledges the possibility of an alien's extraordinary claim in more than one 
field, such as a race car team manager and a race car driver, but the petitioner must demonstrate "by 
clear evidence that the alien is coming to the United States to continue work in the area of 
expertise." See 8 C.F.R. § 204.5(h)(5). In the present matter, there is no evidence establishing that 
the beneficiary has achieved acclaim as a race car team manager. The record also lacks evidence 
that petitioner intends to continue employing the beneficiary in the United States as a race car 
driver. Accordingly, the petitioner must satisfy the statutory requirement at section 203(b)( I )(A)(i) 
of the Act as well as the regulations at 8 C.F.R. §§ 204.5(h)(2) and (3). 
USCIS recognizes that a nexus exists between competing and managing in a given sport. To assume 
that every extraordinary race car driver's area of expertise includes managing, however. would be 
overly speculative. To resolve this issue, a balanced approach is appropriate when reviewing the 
evidence on record. Specifically, in a case where an alien has achieved recelll national or 
international acclaim as a competitive athlete and has sustained that acclaim in the field of managing 
at a national level, the AAO can consider the totality of the evidence as establishing an overall 
pattern of sustained acclaim and extraordinary ability such that the AAO can conclude that 
management of the sports entity is within the alien's area of expertise. However, as the petitioner in 
the present matter has attempted to classify the beneficiary as a race car team manager, the petitioner 
must demonstrate the beneficiary's extraordinary ability as a manager. 
On the Form 1-290B, counsel presents an additional function for the beneficiary within the petitioner's 
organization. The beneficiary's duties within this new function revolve around the beneficiary leading a 
consultation division whereby the beneficiary provides off-site expertise for the petitioner's customers 
and distributors. The petitioner's statement accompanying the appeal states: 
Page 7 
The company has now created an entire department devoted to [the beneficiary]. IThe 
beneficiary j, as their master suspension consultant, works with all users of their 
products" . [the petitioner] created a division where they will provide consultation to 
their customer; this means that [the beneficiary] will go customer sites within the U.S. as 
well as international locations. [The beneficiary 1 is the Master Consultant and his 
knowledge in all technology aspects is sought after by race car drivers. Together with 
his mechanic, [the beneficiary] meets wilh customers and distributors. He is the one 
who instmcts the individual on how to assemble and disassemble the suspension to work 
with their vehicles. He fine tunes the suspension for the vehicle to perform at its best 
potential. Once the suspension has been fine tuned, he will test drive the vehicle to 
show the customer what can be done with the product. Race Car Drivers who have 
purchased [the petitioner's] suspensions for the race cars will have Ithe beneficiary I go 
to where they are racing prior to the race. IThe beneficiary I will then re-adjust the 
suspension depending on the terrain. IThe beneficiary!, as the company's consultant 
advises the customers in the different styles of suspension. At times he will vidco tapc 
the vehicle's performance and then review and analyze the video in order to provide 
accurate consultation to the user on how to make the vehicle perform to it's [sic] highest 
potential. As well, he recommends strategies to companies and provides information on 
how' to increase efficiency, productivity, ctc. Hc will then have his mechanic make the 
needed adjustments. [The beneficiary I is known internationally for his original ability 
and experience in his field. There are few individuals of his caliber who provide this 
type of expertise. 
The "field" in which the petitioner claims the beneficiary is an expert is vastly different and is unrelated 
to the occupation the petitioner presents on appeal, as a business consultant. The present case contains 
three occupations in the field of racing in which the beneficiary has worked within the petitioning 
organization; as a driver, a team manager, and the head of a business consultation division. These 
occupations within the field of racing are distinct from one another. The AAO recognizes that a nexus 
may exist between competing and managing in the beneficiary's sport; however, this nexus is abscnt 
between the occupations of managing a race team and serving as the head of a business division as the 
petitioner describes in the above quote. Due to the job description the petitioner presents at the time of 
filing the Form [-140, the AAO will consider the beneficiary's intended occupation to be as a race car 
team manager. 
Page 8 
III. Analysis 
A. Evidentiary Criteria2 
Documentation ()f the alien's receipt of lesser nationally or internationally recogni2ed prizes or 
awards!i)r excellence in the.fteld ofelldeavor. 
This criterion contains three evidentiary requirements the petitioner must establish. The first deri ves 
from the clear regulatory language that the alien be the recipient of the prizes or the awards (in the 
plural). The next requirement is that the evidence establishes that the prizes or the awards have 
received national or international recognition. The final requirement relates to the criteria required 
to receive the award, which would indicate if the issuing entity bases their award selection on 
excellence in the alien's field of endeavor. The petitioner must submit evidence satisfying all of 
these elements to meet the plain language requirements of this criterion. 
The petitioner asserts the beneficiary finished in first in _ vehicle class at the 2004 
the beneficiary's 
racer of the year award, four awards from 
2005, and a first place finish in vehicle class at the 2006 iilililililili ••• 
The director determined that the petitioner to establish the beneficiary meets this criterion. 
The petitioner also provides a website printout from terribleherbst.com. This printout appears to 
indicate the beneficiary is a two-time winner in 1996 and 2001. However, this printout fails to 
indicate which events the beneficiary allegedly won. As a result, this document will not he 
considered as evidence that establishes the beneficiary's eligibility under this criterion. 
Regarding the first place finish at the 2004 the petitioner suhmits 
conflicting evidence. One form of evidence . was first place finisher in 
the form of an undated press form indicates the petitioner's father was the first place 
finisher in the form of a letter The evidence relating to the beneficiary' s 
father bears no relevance to the present petition and it will not be considered in this decision. In 
reference to the press release, the petitioner, however, provides no evidence to establish the 
popularity of the website such that event coverage on the site is indicative of the national or 
international recognition of the event. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
-Page 9 
the year award is recognized beyond the FAIR organization. As it stands, this award will nol be 
considered as evidence here, nor in the final merits determination. 
~s also the recipient of four contingency awards from 
__ all in 2005. The petitioner fails to provide evidence deillonsl 
petitioner's contingency awards are recognized beyond the 
organization. As a result, these awards are not commensurate 
recognized prizes or awards for excellence in the field. 
the beneficiary's first place finish in vehicle class at the 2006 _ 
the petitioner offers evidence in the form of an Internet -based press release from 
terribleherbst.com. This coverage appears on a website. The petitioner, however, provides no 
evidence to establish the popularity of the website such that event coverage on the site is indicativc 
of the national or international recognition of the event. The record lacks evidence that 
terribleherbst.com is an online version of media with a national reach, e.g., the Cable News Network 
(CNN) is nationally and internationally broadcast, and as a result, the CNN website is significanl and 
content posted on the CNN web site can be considered to garner national recognition. The petitioner 
has not presented any evidence to establish that the content from terribleherbst.com can be 
considered to receive national or international recognition. The petitioner bears the burden to 
establish eligibility, and in this instance it failed to provide any evidence regarding the reputation of 
the website. National or international accessibility by itself is not a realistic indicator of a gi ven 
website's reputation. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically 
requires that the beneficiary's awards be nationally or internationally recognized in the field of 
endeavor and it is the petitioner's burden to establish the beneficiary meets every clement of this 
criterion. In this instance, there is no documentary evidence demonstrating that this first place finish 
is recognized beyond the presenting organization and terribleherbst.eom, and is therefore 
commensurate with a nationally or internationally recognized prize or award for excellence in the 
field. 
The petitioner provides a foreign language document, which appears to be an award. naming the 
beneficiary as the recipient. However, the petitioner failed to provide a translation of this document, 
which does not comply with the terms of 8 C.F.R. § 103.2(b)(3): 
Translations. Any document containing foreign language submitted to uscrs shall he 
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. 
As a result, this award will not be considered in this decision. 
It is important to note that the petitioner indicates that the beneficiary'S proposed employment is as a 
race car team manager rather than as a race car driver. Even if the petitioner filed the petition on 
behalf of the heneficiary as a race car driver, the documentation submitted by the petitioner fails to 
Page 10 
meet the plain language requirements set forth at 8 C.F.R. § 204.5(h)(3)(i). In light of the above. the 
petitioner has not established the beneficiary meets the plain language requirements of this criterion. 
Documentation of the alien's membership in associations in the field for which classificatioll is 
SOufiht, which require outstandinfi achievements ()f their members, as judfied by recogl1i;ed 
national or international experts in their disciplines or/ields. 
This criterion contains several evidentiary elements the petitioner must establish. First. the 
petitioner must demonstrate that the beneficiary is a member of more than one association in his 
field. Second, the petitioner must demonstrate that the associations require outstanding 
achievements (in the plural) of its members. The final requirement is that admittance is judged. or 
adjudicated, by nationally or internationally recognized experts in their field. The petitioner must 
submit evidence satisfying all of these elements to meet the plain language requirements of this 
cri teri on. 
In response to the director's for evidence (RFE), the petitioner submitted an unsigned letter 
purportedly confirming the beneficiary's 2005 award. 
which also mentions As the letter is unsigned. it has no 
evidentiary value. Nevertheless, the petitioner submitted a list of members from FAIR's website 
confirming the beneficiary's membership. The AAO notes that in response to the director's RFE 
pursuant to 8 C.F.R. § 103.2(b)(8), the petitioner failed to specifically identify under which criteria 
at 8 C.F.R. § 204.5(h)(3) it wished the additional evidence to be considered. The burden is on the 
petitioner to establish eligibility; it is not the director's responsibility to infer or second-guess the 
criteria under which the petitioner intended the evidence to apply. The director determined that the 
petitioner failed to establish the beneficiary meets this criterion. On appeal, the petitioner notes this 
membership in FAIR should be considered under the membership criterion at 8 C'.F.R. 
§ 204.5(h)(3)(ii). 
The beneficiary is a member of this association. The membership handbook in the record indicates 
the criteria to become a FAIR member are that the applicant attend at least three association 
meetings and work in the FAIR "pits" at two races during a probationary period. The mere acts of 
attending meetings and working in the pit area are not outstanding achievements. Thus. the 
petitioner has not established that the beneficiary meets this criterion. 
Additionally, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires evidence of 
membership in "associations" in the plural, which is consistent with the statutory requirement for 
extensive evidence. Section 203(b)(I)(A)(i) of the Act. Significantly, not all of the criteria at g 
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. 
When a regulatory criterion wishes to include the singular within the plural, it expressly does so as 
when it statcs at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of 
"Ietter(s)." Thus, the AAO can infer that 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. See Maramjaya v. USCIS, Civ. Act. No. 06-
2158 (RCL) at *1, *12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertojj: 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). 
It is important to note that the petitioner indicates the beneficiary's proposed employment is as a race 
car team manager rather than as a race car driver. Even if the petitioner filed the petition on behalf 
of the beneficiary as a race car driver, the documentation submitted by the petitioner fails to meet the 
plain language requirements set forth at 8 C.F.R. § 204.5(h)(3 )(ii). Consequently, the petitioner has 
failed to establish that the beneficiary meets plain language requirements of this criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien '.I' work in thefield for which classification is sought. Such cl'idcl1cC 
shall include the title, date. and author or the material. and allY necessary translation. 
In order to meet the requirements of this criterion, the published material must primarily be ahout the 
alien and the contents must relate to the alien's work in the field under which he seeks classificatioIl 
as an immigrant. The published material must also appear in professional or major tradc 
publications or other major media (in the plural). Professional or major trade publications arc 
intended for experts in the field or in the industry. To qualify as major media, the publication should 
have significant national distribution and be published in a predominant national language. The final 
requirement is that the petitioner provide each published item's title, date, author, and if the 
published item is in a foreign language, the petitioner must provide a translation that complies with 
the requirements found at 8 C.F.R. § 103.2(b)(3). The petitioner must submit evidence satisfying all 
of these elements to meet the plain language requirements of this criterion. 
Initially the petitioner submitted several articles that refer to the beneficiary, but that are not about 
the beneficiary and his work in the field. The director noted this shortcoming in his RFE. 
specifically naming two of the publications submitted with the initial' In response to 
the RFE, the petitioner provided information relating to monthly 
newspaper rather than addressing the shortcoming that the articles were not about the beneficiary. 
Under this criterion, the petitioner must demonstrate that each of these constitute a professional 
publication, a major trade publication, or major R. 
the petitioner submitted one article titled, 
dated May 30 - June I, 2008. The submitted article is about the upcoming race and 
discusses the beneficiary among eight other race teams. This article is not about the beneficiary and 
his work in the field. As a result, the petitioner failed to demonstrate that this evidence meets the 
plain language requirements of this criterion. In response to the RFE, the petitioner also affirms the 
longevity of the Dusty Times newspaper. The petitioner submits a letter 
Editor/Publisher of Dusty Times and five printouts from dustytimes.com. The petitioner must 
demonstrate that the Dusty Times newspaper is either a professional or major trade publication or 
other major media. The submitted evidence indicates that Dusty Times has been in business for 27 
Page 12 
years and dustytime.com asserts that it distributes the Dusty Times newspaper intemationally. The 
petitioner failed to provide corroborating evidence of the claimed distribution data. The petitioner 
has also failed to establish the circulation data of the Dusty Times newspaper to compare with the 
circulation statistics of other similar monthly off-road newspapers. Consequently, the petitioner has 
failed to establish the Dusty Times newspaper is a professional or major trade publication, or a form 
of major media. Additionally, the articles from the Dusty Times newspaper consists of five 
photocopied pages, none of which bear the title, date, or author of the material. None of these 
articles are about the beneficiary as he is only mentioned in passing among numerous other racers. 
Therefore, the petitioner failed to demonstrate that this evidence meets the plain language 
requirements of this criterion. 
The petitioner also submits several other forms of evidence related to the published materials 
criterion in response to the RFE. Two of the published articles are in a foreign language and are not 
accompanied by an English translation in accordance with 8 C.F.R. § 103.2(b)(3). Numerous other 
articles submitted in response to the RFE bear the same flaw noted by the director's RFE in that the 
article may be about the beneficiary's field, but it is not about the beneficiary and his work in the 
field. The director determined that the petitioner failed to establish that the beneficiary meets this 
criterion. 
On appeal, the petitioner submits several new articles and a blog posting, which it had not previousl y 
submitted under the published material criterion. The petitioner submitted four articles rep0l1ing on 
itself or on the beneficiary. The preceding information from the petitioner's website is insufficient to 
demonstrate that their own website constitutes major media. Additionally, USCIS need not rely on the 
self-promotional material of the petitioner. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 
6, 2007) alT d 2009 WL 604888 (9th Cir. 2009) (concluding that the AAO did not have to rei y on selt~ 
serving assertions on the cover of a magazine as to the magazine's status as major media). 
The petitioner submits a blog posting from race-dezert.com. The printout fails to display all of the 
blog's text as the wording is cut off and incomplete. As the printout is incomplete, it has no evidentiary 
value. Additionally, the petitioner failed to demonstrate that this blog constitutes major media, it is 
undated and the' failed to the author of the material. The also submits a 
printout 5," authored by Although the 
beneficiary is mentioned in this is not about the alien and his work in the field. Additionally, 
the material bears no date. As it does not meet the plain language requirements of this criterion. 
The off-road.com article titled, is not about the alien; it is about the petitioner's 
company and products. In fact the article does not even mention the beneficiary. Of additional 
importance, the petitioner provides no evidence to establish the popularity of off-road.com, such that it 
may constitute major media. The petitioner provides two additional articles from off-road. com that are 
about the alien and his work in the field, however, as previously noted, the petitioner has failed to 
provide any evidence to demonstrate that off-road. com constitutes major media. As such, this evidence 
fails to meet the plain language requirements of this criterion. The petitioner also submits two forms of 
advertisement from downsouthmotorsports.com and jpmagazine.com, neither of which mentions the 
beneficiary. None of the evidence submitted on appeal meets the plain language requirements of this 
criterion. 
Consequently, the petltloner has failed to submit evidence that meets the plain language 
requirements of this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic. or husinl!ss-re/(I{ci/ 
contrihutions of major significance in the fie/d. 
The petitioner provides several letters from members of the off-road racing community as evidence 
under this criterion in addition to the beneficiary promoting the petitioning entity through his 
expertise and technical knowledge. The director determined that the petitioner failed to establish the 
beneficiary meets this criterion. It is important to note that the beneficiary's contributions must be to 
the field as a whole rather than to the beneficiary's employer or its customers. 
~he letter fro~ the he indicates that he 
_ has won numerous races ~onships, all with the petitioner's shocks. and all 
with the assistance of the beneficiary . .--failed to provide any evidence to corroborate his 
claims of winning races or championships. He also does not explain how or to what extent the 
beneficiary contributed to his successful performances. He merely states that the beneficiary set up 
and tested the shocks on all of the cars in which he won the race. Additionally, _indicates 
that he and the beneficiary are personal friends. 
The letter states the beneficiary's 
"help and His value to his employer is 
irreplaceable. His expertise has increased my business and his employers [sic 1 business greatl y." 
Mr_oes not explain how the beneficiary'S knowledge contributed to a success of his own 
business, nor does he indicate what improvements the beneficiary has brought to the off-road 
industry. 
The letter fro~ owner . thanks the beneficiary for his 
support he provided to Team Dakar USA at the 2007 Dakar Rally. However, .... does not 
attribute any contributions the beneficiary may have made to the team other than the fact that he 
provided support. The remaining letters either avow the beneficiary's personal attributes or put forth 
claims of the beneficiary's excellent work ethic. 
and failed to sign their letters, even though the closing of the leller 
provides a space for each individual's signature. Thus, these letters have no evidentiary value. Each 
author makes general assertions of the beneficiary's part in their own or their anticipated futurc 
success. Neither provides examples of original contributions the beneficiary has made to his field in 
general rather than to individual race cars or to individual race teams. 
Page 14 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2(00) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." [d. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
Vague, solicited letters from local colleagues that do not specifically identify contributions or 
provide specific examples of how those contributions influenced the field are insufficient. Kazoria/l 
v. USClS, 580 F.3d 1030, 1036 (9th Cir. 20(9) "IT'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, 
the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors 
attesting to I the alien's 1 contributions in the field" was insufficient was "consistent with the relevant 
regulatory language." 596 F.3d at 1122. The opinions of experts in the industry are not without 
weight and have been considered above. While such letters can provide important details about the 
beneficiary's skills, they cannot form the cornerstone of a successful extraordinary ability claim. In 
its discretion, USC IS may use statements submitted as expert testimony as advisory opinions. See 
Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However. USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. [d. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility, as this decision has done above. See id. at 795; see also Matter o( V-K-. 24 
I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence 
as to "fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord 
with other information or is in any way questionable. [d. at 795; see also Matter of Sofjici. 22 I&N 
Dec. at 165 (citing Matter of Treasure Crafi of California, 14 I&N Dec. at 190). 
The beneficiary's contributions to his field do not appear to be original. While, his contributions 
may be notable, they are not of major significance. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v) requires that the contributions be "of major significance in the field" rather than 
limited to one's immediate employer and a few of its customers. Aside from the petitioner's 
customers, there is no documentary evidence showing the widespread commercial or industrial 
implementation of the petitioner's work or that it otherwise equates to an original contribution of 
major significance in the field. The beneficiary's achievements and accomplishments. as of the 
priority date, fail to be sufficiently broad to rise to the level of "major" significance. 
As a result, the petitioner has not submitted qualifying evidence relating to the beneficiary that meets 
the plain language requirements of this criterion. 
Evidence that the alien has performed in a leading or critical role .for orgal1i;atiol1s or 
establishments that have a distinguished reputation. 
This criterion anticipates that a leading role should be apparent by its posItIon in the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. A critical role 
should be apparent from the petitioner's impact on the organization's or establishment's activities. 
The petitioner's performance in this role should establish whether the role was critical. 
Initially the petitioner discusses the fact that several publications have recognized the beneficiary as 
a renowned race car driver, but fails to identify any organizations or establishments in which the 
beneficiary has performed in a leading or critical role. The director's RFE notified the petitioner 
that the record contained insufficient evidence to meet the requirements of this criterion. The 
petitioner's response to the RFE includes a second brief detailing the additional evidence submitted: 
however, this brief fails to indicate what evidence the petitioner was submitting relating to this 
criterion. The brief does not even mention the phrase "leading or critical role." As previously 
noted, in response to the director's RFE, the petitioner failed to specifically identify the criteria 
under the regulation at 8 C.F.R. § 204.5(h)(3) under which it wished the additional evidence to be 
considered. The burden is on the petitioner to establish eligibility: it is not the director's 
responsibility to infer or second-guess the criteria under which the petitioner intended the evidence 
to apply. The director determined that the petitioner failed to establish the beneficiary meets this 
criterion. 
On appeal, the petitioner only lists itself as an organization or establishment in which the beneficiary 
has performed in a leading or critical role. However, much like the response to the RFE. the 
petitioner failed to specify what evidence should apply to this criterion. As such, it is not the AAO's 
responsibility to infer or second-guess the criteria under which the petitioner intends the evidence to 
apply. The petitioner does not provide the organizational hierarchy for the AAO to analyze how the 
beneficiary fits into the organizational structure if it were claiming the beneficiary performed in a 
leading role for the organization. The petitioner does identify the impact the beneficiary has had on 
its organization; however, this impact is not associated with the beneficiary's area of expertise listed 
on the Form 1-140 as a race car driver or as a race car team manager. In its appellate statement on 
the Form 1-2908, the petitioner states: 
[The beneficiary's] contribution to the success of [the petitioner's organization] is 
unparallel [sic]. In fact, the company now offers a new division which is run by Jthe 
beneficiaryJ. The company now offers personal consultation to their distributors and 
customers who purchase and or sell their products. [The beneficiary J personal! y 
consults with these individuals at their own sites, be it in the U.S. or outside of the 
U.S. JThe beneficiaryJ has made considerable contributions to [the petitionerJ in the 
application. 
To assert that USCIS be compelled to determine an alien meets the plain language of this criterion. 
ignoring the fact that the alien's achievements submitted are not in the field for which classification 
is sought would result in an absurd outcome inapposite to the administrative intent of the regulation. 
While 8 C.F.R. § 204.5(h)(3)(viii) does not specify that the leading or critical role must be 
performed in the field of expertise, 8 C.F.R. §§ 204.5(h)(2) and (3) provides an overarching 
structure requiring that the "achievements have been recognized in the field of expertise." As such. 
al! of the regulatory criteria from (i) - (x) have to be in the field of expertise. According to the Form 
Page 16 
1-140, the beneficiary's field of expertise in the present petition is a race car team manager. As such, 
the critical role the beneficiary has performed for the petitioner, as a business consultant, cannot 
serve to qualify under this criterion. 
It is important to note that the petitioner indicated on the petition that the beneficiary's field, under 
which it seeks classification, is as a race car team manager rather than as a business consultant. The 
only evidence the petitioner presents under this criterion is as a business consultant. Even if the 
AAO were to recognize the petitioner's above claim of the beneficiary's critical role as qualifying, 
which it does not, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires 
evidence that the alien has performed in a leading or critical role for "organizations or 
establishments" in the plural. This is consistent with the statutory requirement for extensive 
evidence. Section 203(b)(I)(A)(i) of the Act; 8 U.S.c. § 1153(b)(l)(A)(i). As previously noted, the 
AAO can infer that the plural language in the regulatory criteria has meaning and that federal courts 
have upheld USCIS' ability to interpret significance from whether the singular or plural is used in a 
regulation. See Maramjaya, Civ. Act. No. 06-2158 (RCL) at * 12; Snapnames.com Inc .. 2006 WL 
3491005 at *10. 
Additionally, while it is unclear when the beneficiary's work as a consultant began, if his 
performance in these duties post-dates the petition filing, this represents an additional shortcoming 
as a petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts, See Matter of KatiRhak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). Therefore, a petitioner may not make material changes to a 
petition that has already been filed in an effort to make an apparently deficient petition conform to 
USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). 
Consequently, the petitioner has failed to submit evidence that meets plain language requirements of 
this criterion. 
Summary 
The extraordinary ability immigrant classification requires the petItIoner to submit the requisite 
evidence relating to the beneficiary under at least three of the evidentiary categories. In light of the 
above, the petitioner is unable to establish the beneficiary meets any of the initial evidentiary 
requirements related to this classification. Several of the criteria at 8 c.F.R. § 204.5(h)(3) were 
promulgated in a broad manner enabling the regulation to apply to as many professions or occupations 
as possible encompassed within the sciences, arts, education, business, or athletics. The agency took the 
additional steps to include an alternative means to qualify for this classification utilizing comparable 
evidence in the event the other broadly crafted categories do not directly apply to an alien's occupation. 
See 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The petitioner has failed to establish the 
beneficiary's eligibility for this restrictive classification and the present petition is not approvable. 
Notwithstanding this fundamental defect, the AAO will review the evidence in the aggregate as part of 
the final merits determination. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, the next step is a final merits detennination that considers all 
of the evidence in the context of whether or not the petitioner has demonstrated: (l) a "level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top of 
the[irJ 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.S(h)(3). See Kazarian, 596 F.3d at lI19~20. 
Due to a lack of national or international recognition regarding the beneficiary's first place finishes in 
2004 and 2006, these awards are insufficient to attribute him with any acclaim. The beneficiary's 2005 
racer of the year award received no national or international recognition, nor did four contingency 
awards, also from 2005. Two prizes or awards lacking a sufficient level of recognition. coupled with 
six other awards unsupported by evidence of recognition at the national or international level. arc not 
demonstrative of sustained acclaim or that the beneficiary is among that small percentage who have 
risen to the very top of the field of endeavor. 
This decision already addressed why the petitioner's membership in a single association docs not rise to 
the level of associations requiring outstanding achievements of their members. The fact that an 
association merely requires that its members attend three meetings and help in the pits during two races 
is insufficient to establish that the organization qualifies under the regulations as an entity that requires 
outstanding achievements of its members. Such a membership is not representative of one who IS 
among that small percentage who have risen to the very top of his field of endeavor. 
The petitioner submits inadequate evidence to establish the beneficiary meets the requirements relating 
to published material about the alien and related to his work in the field under 8 C.F.R. 
§ 204.5(h)(3)(iii). The petitioner provides numerous articles, however most only refer to the 
beneficiary. Brief references to the beneficiary, often in the context of reporting race results. do not 
demonstrate that the beneficiary has garnered a sufficient level of acclaim to warrant articles that focus 
on the beneficiary, relating to his work. This evidence is insufficient to establish sustained acclaim. 
The petitioner also makes assertions related to two of the publications in which the articles appear. but 
failed to provide corroborating evidence relating to the publications' reputation. Because the petitioner 
failed to establish the articles appeared in a professional or major trade publication or another form of 
major media, the evidence is not characteristic of sustained national or international acclaim. 
The letters from industry expe1ts credit the beneficiary with the author's success in motorsports. 
However, each author fails to provide evidence to corroborate their claims, and each letter fails to 
identify the beneficiary's original contributions to his field that have impacted his field to such an extent 
that the contributions are considered to be of major significance. Having satisfied customers docs not 
demonstrate national or international acclaim. The personal accomplishments of the beneficiary fall far 
short of establishing that he is one of that small percentage who have risen to the very top of the field of 
endeavor and that he has sustained national or international acclaim. 
The petitioner was unable to provide evidence that the beneficiary has performed in a leading or critical 
role for organizations or establishments in the beneficiary's area of extraordinary ability and intended 
profession rather than in another profession running a business division, which is not related to his field. 
Additionally, the petitioner provided insufficient evidence to demonstrate if the beneficiary's 
performance in this unrelated field occurred prior to or after the petition was filed. The petitioner also 
only put forth one organization or establishment in which the beneficiary might qualify. This level of 
accomplishment is not representative of one who has attained sustained national or international acclaim 
or status as one of that small percentage who have risen to the very top of their field of endeavor related 
to this criterion. 
Ultimately, the evidence in the aggregate does not distinguish the beneficiary as one of the small 
percentage who has risen to the very top of the field of endeavor. The beneficiary, through the 
petitioner, relies on nominal awards, membership in a nonexclusive association, published material that, 
with two exceptions, only mentions the beneficiary in passing, vague letters from industry experts, and 
no examples of performing a leading or critical role for an organization in the beneficiary's area of 
extraordinary ability. Thus, it appears that the highest level of the petitioner's field is far above the level 
he has attained. 
Finally, it is not clear that the outcome of this decision would have been any different if the petition 
listed the beneficiary as a race car driver rather than a manager of a race car team. The evidence related 
to prizes or awards at 8 C.F.R. § 204.5(h)(3)(i) is either insufficient to qualify as primary evidence. or 
the petitioner failed to establish the remaining awards are recognized beyond the issuing entity. The 
sole association of which the beneficiary possesses a membership to meet the requirements at 8 C.F.R. 
§ 204.5(h)(3)(ii) does not require outstanding achievements of its members. Additionally. the 
regulation requires membership in more than one association. The considered evidence related to 
published material at 8 C.F.R. § 204.5(h)(3)(iii) is not about the beneficiary and his work as a driver in 
his field, and therefore does not qualify under the regulation. Lastly, the evidence submitted under 8 
C.F.R. §§ 204.5(h)(3)(v) and (viii) relates to the beneficiary performing duties commensurate with the 
head of the petitioner's business division instead of as a race car driver. The petitioner also failed to 
demonstrate at what point the beneficiary began performing these duties. As a result, the petitioner 
would remain unsuccessful in establishing the beneficiary would meet at least three of the regulatory 
criterion enumerated at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). 
IV. 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 beneficiary is distinguished as a race car team 
manager to such an extent that he may be said to have achieved sustained national or intcmational 
acclaim or to be within the small percentage at the very top of his field. The evidence indicates that the 
beneficiary shows talent as a race car driver and suspension specialist, but is not persuasive that the 
Page 19 
beneficiary's achievements set him significantly above almost all others in his field. Therefore. the 
petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(I )(A) of the Act 
and the petition may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 
Accordingl y, the appeal will be dismissed. 
ORDER: The appeal is dismissed.