dismissed EB-1A Case: Business

identifying data deleted to 
prevent clearly unwarranted 
invasion nf personal privacy 
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 
DATE: Office: NEBRASKA SERVICE CENTER FILE: 
NOV Q 32fm 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(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)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~~~ 
herryRhew(J 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an 
alien of extraordinary ability in business. The director determined that the petitioner had not 
established the requisite extraordinary ability through extensive documentation and sustained 
national or international acclaim. 
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 )(1 )(A)(i) of the 
Act and 8 c.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.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.P.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, counsel argues that the petitioner has demonstrated a qualifying one-time achievement 
and that he meets the categories of evidence at 8 C.P.R. §§ 204.5(h)(3)(iii), (v), (viii), and (x). 
Por the reasons discussed below, the AAO will uphold the director's decision. 
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 ofthe 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 immigrant 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. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting 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 ajudge 
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 III the field, III 
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 
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. 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.! 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." Id. 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 )(1 )(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 Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d at 1043, afJ'd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d 
at 145 (noting that the AAO conducts appellate review on a de novo basis). 
II. Analysis 
This petition, filed on August 27, 2009, seeks to classify the petitIOner as an alien with 
extraordinary ability in business as an "authority on increasing vertical jumping ability." In Part 
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). 
Page 5 
5 of his Fonn 1-140, Immigrant Petition for Alien Worker, the petitioner listed his "Occupation" 
as "CEOlPresident." Under part 6 of the fonn, "Basic Infonnation about the proposed 
employment," the petitioner listed his "Job Title" as "Chief Executive Officer" and 
"Nontechnical Description of Job" as ' ,-,,'-"'u..,.'" 
At the time of filing, the petitioner was 
The petitioner states: 
In relation to my work in vertical jump and athletic perfonnance; I intend on continuing 
as sole owner and and developing the growth 
in sales of my world-renowned Double Your Vertical Leap v3.0 system, in addition to the 
consulting work I do with coaches, trainers and athletes. 
A. Major, internationally recognized award 
Initially and again on appeal, counsel argues that petitioner's discovery of the Uncompromised 
Perfonnance Number (UPN) algorithm, a method for athletes to plot and predict their 
perfonnance increases, is a qualifying one-time achievement. Counsel states: "Like Albert 
Einstein's famous discovery of E=MC2, Petitioner has achieved international recognition with his 
fonnulaic discovery of the UPN." Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions 
of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503, 506 (BIA 1980). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3) requires the alien's receipt of a major, 
internationally recognized "award." The petitioner has not established that his development of the 
UPN algorithm equates to his receipt of a major, internationally recognized "award.,,2 
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, specifically a major, 
internationally recognized award. Given Congress' intent to restrict this category to "that small 
percentage of individuals who have risen to the very top of their field of endeavor," the 
regulation pennitting eligibility based on a one-time achievement must be interpreted very 
narrowly, with only a small handful of awards qualifying as major, internationally recognized 
awards. See H.R. Rep. 101-723, 59 (Sept. 19, 1990), reprinted in 1990 u.S.C.C.A.N. 6710, 
1990 WL 200418 at *6739. Given that the House Report specifically cited to the Nobel Prize as 
an example of a one-time achievement, examples of one-time awards which enjoy major, 
international recognition may include the Pulitzer Prize, the Academy Award, and an Olympic 
Medal. The regulation is consistent with this legislative history, stating that a one-time 
achievement must be a major, internationally recognized award. 8 C.F.R. § 204.5(h)(3). The 
selection of Nobel Laureates, the example provided by Congress, is reported in the top media 
internationally regardless of the nationality of the awardees, is a familiar name to the public at large, 
2 The petitioner's UPN algorithm will be further addressed under the category of evidence at 8 C.F.R. 
§ 204.S(h)(3)(v). 
Page 6 
and includes a large cash prize. While an internationally recognized award could conceivably 
constitute a one-time achievement without meeting all of those elements, it is clear from the 
example provided by Congress that the award must be internationally recognized in the alien's field 
as one ofthe top awards in that field. 
In light of the above, the petitioner has failed to demonstrate evidence of a qualifying one-time 
achievement. 
B. Evidentiary Criteria 
The petitioner has submitted documentation pertaining to the following categories of evidence 
under 8 C.F.R. § 204.5(h)(3).3 
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. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of significant national distribution, 
unlike small local community papers.4 
The petitioner submitted photocopies of pages from the April 2008 and December 2008 issues of 
Slam magazine and the October 2008 issue of Golf Digest. None of this material includes 
articles about the petitioner. Rather, the petitioner submitted advertisements in Slam and Golf 
Digest for his Vertical Leap MasterClass Seminar Series and for the nutritional supplement 
Adenotrex. The Adenotrex advertisements in Slam and Golf Digest do not mention the petitioner 
by name or discuss his involvement as a creator of the nutritional supplement. For example, the 
advertisement in identifies Chief of Biochemistry at .. 
of Five " as the 
creators of Adenotrex. Further, the advertisement in Slam mentions only as the 
Laboratories and an online review submitted by the 
as the and' 
the 
3 The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this 
decision. 
4 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 7 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the published material be 
"about the alien." It cannot be credibly asserted that the preceding advertisements are "about" the 
petitioner. See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 7 (D. Nev. Sept. 8, 
2008) (upholding a finding that articles about a show are not about the actor). Moreover, paid 
advertisements, which are not the result of independent journalistic reportage, do not meet the plain 
language requirements of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(iii). The petitioner's 
initial evidence included general information about Harris Publications, but there is no evidence 
showing that this company publishes Slam or Golf Digest. According to the Slam magazine 
covers submitted by the petitioner, Slam is published by "Source Interlink Media," not Harris 
Publications. In response to the director's request for evidence, the petitioner submitted 
circulation information for Slam magazine from Wikipedia, an online encyclopedia. Regarding 
information from Wikipedia, there are no assurances about the reliability of the content from this 
open, user-edited internet site.5 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 
2008). Accordingly, the AAO will not assign weight to information for which Wikipedia is the 
source. In this case, there is no documentation (such as reliable circulation evidence) showing 
that the petitioner has been the subject of journalistic coverage in professional or major trade 
publications or other major media. 
anecdotal reviews posted on his company's website at 
his vertical leap enhancement The petitioner 
promoting "Jump Experts" 
jump enhancements compilation program of which the petitioner was a c . There is no 
evidence showing that the preceding websites qualify as major trade publications or other major 
media, or that the preceding promotional material meets the remaining requirements of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
The petitioner submitted an April 9, 2009 article entitled "[The petitioner] 
By [the 
petitioner] Reviewed - Increased That Vertical Jump Lately?" by posted at 
http://enzinearticles.com. According to the internet printouts submitted by the petitioner, the April 
5 Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a 
common resource of human knowledge. The structure of the project allows anyone with an Internet 
connection to alter its content. Please be advised that nothing found here has necessarily been reviewed by 
people with the expertise required to provide you with complete, accurate or reliable information. . . . 
Wikipedia cannot guarantee the validity of the information found here. The content of any given article 
may recently have been changed, vandalized or altered by someone whose opinion does not correspond 
with the state of knowledge in the relevant fields. 
See http://en.wikipedia.org/wiki/Wikipedia:General disclaimer, accessed on October 12, 2011, copy incorporated 
into the record of proceedings. 
Page 8 
9, 2009 article had "been viewed 230 time(s)" and the October 27, 2007 article had "been viewed 
1499 time(s)" as of August 13,2009. The petitioner has not established that such limited numbers 
of views are indicative of a significant level of internet readership. Further, there IS no 
documentation showing that qualifies as a form of major media. 
The petitioner's response to the director's request for evidence included a promotional brochure for 
the Hollywood Slim System that identifies the petitioner as a member of its Board of Advisors and 
discusses his qualifications. The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(iii) 
requires the submission of "[p Jublished material about the alien in professional or major trade 
publications or other major media" including "the title, date, and author of the material." The 
aforementioned promotional brochure does not meet these requirements. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The petitioner submitted letters of support from experts in the field discussing the significance of 
his original contributions in the fitness and health industry. The experts' statements do not 
merely reiterate the regulatory language of this criterion, they clearly describe how the 
petitioner's contributions are both original and of major significance in the field. For example, 
at the time he 
his own work stating: 
As a customer of [the petitioner's] for a number of years now, I find his insights on 
increasing vertical jump and explosive power to be highly unique and immediately 
effective, such that I have incorporated many of these unprecedented philosophies into 
the structure of how we develop workouts for our athletes. 
* * * 
Therefore, it is not to be taken lightly that I consider [the petitioner] to be one of the very 
few references that I look to, to help ensure that the Patriots remain on the cutting edge 
when it comes to our Strength and Conditioning protocols and the resulting on-field 
performance. 
In fact, in my professional opinion, [the petitioner] is the leading expert with specific 
regard to increasing vertical jumping ability, which is a very important aspect of 
performance enhancement. 
states: "I have known [the petitioner] for a number of years and have witnessed the 
Page 9 
amazing results athletes have realized from usmg his umque training procedures and 
methodology. " 
describes the petitioner's 
Significant of these include: launching v2.0 of [the petitioner's] Double Your Vertical 
Leap system to $100,000 in sales within 24 hours and launching [the petitioner's] 
Performance Inner Circle online seminar/coaching group in 2008 to 1,000 registrants 
within 48 hours. 
I, along with the numerous vendors, clients and professional athletes and coaches I work 
with, commonly consider [the petitioner] to be the world's premier expert when it comes 
to increasing vertical jumping ability .... 
The AAO notes that the record does not include documentary evidence (such as audited financial 
statements) to support_ claim that the petitioner's Double Your Vertical Leap system 
generated $100,000 in sales within 24 hours. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
states that he is a founding Vice-President of Experimental and Applied Sciences 
(EAS.com), a published and best-selling author of ABSolution and Strength For founder 
and CEO of Phillips Performance Nutrition, and a world-leading nutrition expert. 
further states: 
Not only do I consider [the petitioner] to be without peer when it comes to knowledge of 
increasing vertical leaping ability, I also consider his Double Your Vertical Leap system 
to be an unprecedented contribution to the sports performance world, obscure as this tiny 
niche may seem to the casual sports observer. The truth is, vertical leaping ability is the 
single best determiner of athletic performance and, therefore, increasing it is vital to all 
athletes. When it comes to this, [the petitioner] is #1. 
author and a 
contributor to Men's Fitness magazine, states: 
I am certainly not alone in regarding [the petitioner] to be nothing less than a pioneer 
when it comes to revolutionizing the way that athletes of today see performance 
enhancement. This is due largely to his discovery and development of his 
Uncompromised Performance Number algorithm and his Double Your Vertical Leap 
software. In addition to this, he is also considered a pioneer of fitness marketing and, as a 
forerunner in the online world, has personally advised me in the growth of my own online 
business, also. 
Page 10 
In my expert opinion, it is self-evident that [the petitioner's] contribution to the fitness 
industry and athletic performance enhancement is unprecedented. 
states that he is a "world-renowned, best-selling and award-winning fitness author, 
reSSlonal and life-coach." _ further states: 
Having reviewed his software product, I can say without hesitancy that the Double Your 
Vertical Leap system is absolutely second-to-none - no guesswork and no B.s. theories. 
In my professional opinion, it is a groundbreaking work because it allows an athlete to 
predictably improve, and it is the first system or regime to do that. 
The record reflects that the petitioner's original training methodologies are being widely applied 
throughout his field. Leading experts have acknowledged the value of the petitioner's work and 
its major significance in the fitness and health industry. Accordingly, the petitioner has 
established that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
Counsel initially argued that the petitioner performed in a leading or critical role as an Athletic 
Advisor for Elite Performance Laboratories, LLC, creators of Adenotrex. The petitioner 
submitted promotional material about Adenontrex in magazine advertisements and posted at 
The promotional material from identifies ••• 
as "Chief of Biochmistry" [sic], and the 
petitioner as "Athletic ·te Performance . LLC. As 
previously discussed, the advertisement in Slam magazine identifies as the 
"Marketing Director" for Elite Performance Laboratories and an online review submitted by the 
petitioner identifies as the "Creator of Adenotrex" and "President, Elite 
Performance Laboratories." The promotional material from states 
that the petitioner was hired to "test and prove" Adenotrex and that he assisted with the first 
. of fi athletes 13-50. The ·tioner also submitted a letter of support from 
stating: 
I have come to know [the petitioner] over the course of the past three years doing 
business with him. 
* * * 
I have formulated two products under the direction of [the petitioner], namely Hollywood 
Slim System and Adenotrex, both for Elite Performance Laboratories, LLC. 
* * * 
Page 11 
Working alongside [the petitioner], I have been impressed with the measured way he has 
developed the marketing of each of these products and there is no doubt in my mind that 
the commercial success of Adenotrex and the forthcoming launch of ••••••• 
_ is due to [the petitioner's] unique vision, his leadership talents, marketing 
wizardry and his extraordinary ability as a businessman. 
While the petitioner may have consulted and advised Elite Performance Laboratories, LLC on 
the development and testing of its products, there is no 
evidence demonstrating that his role was leading or critical for Elite Performance Laboratories, 
LLC. At issue is whether the petitioner performed in a leading or critical role for the company as a 
whole rather than limited to projects for two of the company's products. Not every employee who 
performs competently for an organization or establishment meets this criterion. The petitioner's 
evidence does not demonstrate how his position as advisor differentiated him from the other 
at Elite Performance let alone the company's leadership such as its 
, and President. For example, there 
is no organizational chart or other evidence documenting how the petitioner's position fell within 
the company's general hierarchy. The evidence submitted by the petitioner does not establish that 
he was responsible for Elite Performance Laboratories' success or standing to a degree consistent 
with the meaning of "leading or critical role." Further, there is no documentary evidence showing 
that Elite Performance Laboratories, LLC has earned a distinguished reputation in relation to 
other companies in the nutritional supplements industry. Regarding the online promotional 
material and advertisements featuring Elite Performance Laboratories' products, USCIS need not 
rely on self-promotional material. See Braga v. Poulos, No. CV 06 5105 SJO (c. D. CA July 6, 
2007) aff'd 2009 WL 604888 (9th Cir. 2009) (concluding that the AAO did not have to rely on self­
serving assertions on the cover of a magazine as to the magazine's status as major media). 
Initially and again on 
role as "the owner and 
counsel asserts that the petitioner has performed in a ''''''.UH''5 
_' The petitioner submitted 1"1"'\11"1"\1""""'-Po 
dated March 4, 2008, a Business Plan for 
in Australia 
'vity Review," and "2009-2012 Financial Projections" for the _ 
but there is no documentary evidence showing that 
have earned a distinguished reputation in relation to other 
companies in the health and fitness industry. As previously discussed, USCIS need not 
self-promotional material. Id. Counsel points to the letters of support from 
_ and others praising the petitioner and the success of his original products. These letters 
focus on the etitioner's individual talents and the fitness products he created rather than the 
reputation of The plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires evidence that the petitioner has performed in a 
leading or critical role for "organizations or establishments" that have a distinguished reputation. At 
issue here is whether the preceding companies are organizations or establishments that have a 
di" . Without documentary evidence showing that 
have earned a distinguished reputation, the petitioner has not 
established that he meets this criterion. 
Page 12 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
Counsel asserts that the petitioner meets this regulatory criterion based on his commercial 
success in business. The AAO notes that the petitioner works in the health and fitness industry 
rather than "in the performing arts." The plain language of this regulatory criterion clearly 
indicates that it applies to "the performing arts." The ten categories of evidence in the 
regulations are designed to cover different areas; not every criterion will apply to every 
occupation. Accordingly, the petitioner does not meet the plain language requirements of the 
regulation at 8 C.F.R. § 204.5(h)(3)(x). Nevertheless, in the interest of thoroughness, the AAO 
will address the evidence submitted by the petitioner for this regulatory criterion. 
The petitioner initially submitted corporate documents 
dated March 4, 2008, a Business Plan for 
"2008 Business Activity Review," and "2009-2012 Financial Projections" 
•••••••. The petitioner also submitted online promotional material for his products 
including online reviews. The documentation submitted by the petitioner did not include reliable 
documentary evidence (such as federal corporate tax returns or audited financial statements) 
demonstrating that he achieved commercial successes as shown by sales of his products as of the 
petition's August 27, 2009 filing date. 
In response to the director's request for evidence, the petitioner submitted Credit Card Merchant 
Statements from September 2009 through December 2009, Bank of America bank statements 
from 2009, and "Monthly Income Projection" statements for dated 
May 2009 to April 2012. The AAO notes that the Credit Card Merchant Statements from 
September 2009 through December 2009, the Bank of America bank statements from 
2009 and later, and the "Monthly Income Projection" statements for 
dated September 2009 to April 2012 reflect earnings that post-date the petition's August 27, 2009 
filing date. A petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Commr. 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts that come 
into being only subsequent to the filing of a petition." Id. at 176. Accordingly, the AAO will not 
consider sales or income generated after August 27,2009 in this proceeding. 
Regarding the "Monthly Income Projection" statements for dated 
May 2009 to August 2009, these statements are income projections and do not constitute evidence 
of actual sales or earnings. With regard to the Bank of America bank statements for the_ 
the January 2009 statement reflected credits of$23,598.21 and an ending balance 
of $26,585.63, the February 2009 statement reflected credits of $20,128.37 and an ending balance 
of $34,807.28, the March 2009 statement reflected credits of $25,055.52 and an ending balance of 
$31,897.76, the April 2009 statement reflected credits of $29,883.50 and an ending balance of 
Page 13 
$32,792.24, May 2009 statement reflected credits of $22,952.88 and an ending balance of 
$33,998.98, the June 2009 statement reflected credits of $37,167.09 and an ending balance of 
$44,794.95, the July 2009 statement reflected credits of $27,294.47 and an ending balance of 
$33,516.40, and the August 2009 statement reflected credits of$21,996.67 and an ending balance of 
$27,708.43. The petitioner does not explain how these monthly amounts demonstrate commercial 
successes or differentiate his company from the numerous other corporations and small businesses 
that generate sales revenue. Further, there is no documentary evidence showing that the preceding 
amounts demonstrate commercial success in relation to the plethora of products sold in the health 
and fitness industry. Regardless, the petitioner's field is not in the performing arts as required by 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x). 
In light of the above, the petitioner has not established that he meets this criterion. 
Summary 
In this case, the AAO concurs with the director's determination that the petitioner has failed to 
demonstrate his receipt of a major, internationally recognized award, or that he meets at least 
three of the ten categories of evidence that must be satisfied to establish the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). A 
final merits determination that considers all of the evidence follows. 
C. Final Merits Determination 
The AAO will 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." Section 
203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. In the 
present matter, many of the deficiencies in the documentation submitted by the petitioner have 
already been addressed in the AAO's discussion of the categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(iii), (viii), and (x). 
In regard to the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(iii), all of the petitioner's submissions were deficient in at least one of the 
regulatory requirements such as not including a date or an author, not being about the petitioner, 
or not being accompanied by evidence that they were published in major media. There is no 
documentation showing that the petitioner has been the subject of journalistic coverage in major 
trade publications or other major media. The documentation submitted by the petitioner is not 
indicative of or consistent with sustained national acclaim or a level of expertise indicating that 
he is one of that small percentage who have risen to the very top of his field. 
Regarding the documentation submitted for the category of evidence at 8 C.F.R. § 204.5(h)(3)(v), 
the AAO acknowledges the letters of support from experts describing how the petitioner's training 
Page 14 
methodologies are both original and of major significance in the field. While such letters can 
provide important details about the significance of the petitioner's work, they cannot form the 
cornerstone of a successful extraordinary ability claim. The statutory requirement that an alien 
have "sustained national or international acclaim" necessitates evidence of recognition beyond 
the alien's immediate acquaintances and business collaborators. See section 203(b)(1)(A)(i) of 
the Act, 8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). The commentary for the 
proposed regulations implementing section 203(b )(1 )(A)(i) of the Act provide that the "intent of 
Congress that a very high standard be set for aliens of extraordinary ability is reflected in this 
regulation by requiring the petitioner to present more extensive documentation than that required" 
for lesser classifications. 56 Fed. Reg. 30703,30704 (July 5, 1991). Moreover, USCIS may, in its 
discretion, use as advisory opinions statements submitted as expert testimony. 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. Id. 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. See id. at 795-796; see also Matter of 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"). 
Thus, the content of the experts' statements and how they became aware of the petitioner's 
reputation are important considerations. Even when written by independent experts, letters 
solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence that one would expect of business executive who has sustained national or 
international acclaim at the very top of the field. 
With regard to the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(viii), the petitioner has not established that he has performed in a leading or critical 
role for organizations that have a distinguished reputation. The documentation submitted by the 
petitioner is not indicative of or consistent with sustained national acclaim or a level of expertise 
indicating that he is one of that small percentage who have risen to the very top of his field. 
In regard to the documentation submitted for the category of evidence 8 C.F.R. § 204.5(h)(3)(x), 
there is no reliable documentary evidence showing that the petitioner has achieved commercial 
successes in "the performing arts" or business as shown by high sales of his products as of the 
petition's August 27, 2009 filing date. The petitioner does not explain how the monthly amounts 
in the bank statements demonstrate commercial successes or 
differentiate his company from the numerous other corporations and small businesses that generate 
sales revenue. Further, there is no documentary evidence showing that his company has 
generated high sales or an unusual amount of profitability in relation to the numerous other 
established companies that offer products in the health and fitness industry. The documentation 
submitted by the petitioner is not indicative of or consistent with sustained national acclaim or a 
level of expertise indicating that he is one of that small percentage who have risen to the very top 
of his field. 
In this case, the petitioner has not established that his achievements at the time of filing were 
commensurate with sustained national or international acclaim as a business executive in the health 
Page 15 
and fitness industry, or being among that small percentage at the very top of the field of endeavor. 
Merely demonstrating that the petitioner has started a small business enterprise or actively 
promoted his products online is not useful in setting the petitioner apart from other business 
executives through a "career of acclaimed work." H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). 
That page (59) also says that "an alien must (1) demonstrate sustained national or international 
acclaim in the sciences, arts, education, business or athletics (as shown through extensive 
documentation) ... " The conclusion we reach by considering the evidence to meet each category 
of evidence at 8 C.F.R. § 204.5(h)(3) separately is consistent with a review of the evidence in the 
aggregate. 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. 8 C.F.R. § 204.5(h)(2). 
III. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(1)(A) of the Act and the petition may not be approved. 
An application or petition that fails to 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 Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
ajJ'd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.