dismissed EB-1A Case: Business Consulting (Fitness Industry)

U.S. Citizenship 
and Immigration 
Services 
In Re: 7630282 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 2, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a business consultant for the fitness industry, seeks classification as an alien of 
extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 
1153(b)(l)(A) . This first preference classification makes immigrant visas available to those who can 
demonstrate their extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the petition, concluding that while the record 
established that the Petitioner meets the initial evidentiary requirement, it did not establish that he has 
sustained national or international acclaim or is one of the few at the very top of the field of business 
consulting. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l) of the Act makes visas available to immigrants with extraordinary ability 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. 
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." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of his or her achievements in the field through a one-time achievement 
(that is, a major, internationally recognized award). If that petitioner does not submit this evidence, 
then he or she must provide sufficient qualifying documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material 
in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). 
II. ANALYSIS 
The Petitioner indicates that he at the time of filing he was the executive director ofl~---~ 
.._ ______ __., a consultancy specializing in the fitness industry, and that he intends to come to 
the United States to continue to advise prospective and current gym owners. 1 
A. Background 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner met three of the evidentiary 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to his authorship of scholarly articles, service as a 
judge of the work of others, and leading or critical role for distinguished organizations. On appeal, 
the Petitioner asserts that he also meets three additional evidentiary criteria which he previously 
claimed. After reviewing all of the evidence in the record, we disagree with the Director that the 
Petitioner has satisfied the criterion relating to a leading or critical role, and withdraw that portion of 
the decision. Further, because we do not find that the Petitioner meets any of the additional claimed 
criteria, he has not met the initial evidentiary requirement. Accordingly we need not conduct a final 
merits determination. 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the.field of endeavor. 8 C.F.R. § 204.5(h)(3)(i) 
The evidence of the Petitioner's receipt of the .__ _______ __. at an event described as the 
I I International Convention on Physical Activity" consists of a letter and a brief article in 
Mercado Fitness, a fitness industry trade magazine serving the Latin American market. In the letter, 
I l president ofl I which organized the convention, states that the award' s 
purpose is "to reward professionals who excel in the area of business management and, through their 
actions, contribute to the market development." He further writes that the Petitioner received this 
award "based on the excellent evaluations of the participants at the events organized byl I' 
1 Several media a1iicles in the record refer to the Petitioner's consulting business as i I' and we note that the evidence 
submitted in support of his claim to a high salary refers to income received from I 1, As the evidence 
does not indicate whether any relationship exists between I I or.__ ______ ~' a~d 'I I I I' the Petitioner should address this issue in any further proceedings in this matter. 
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and notes that the Petitioner took part in six of those events as a speaker. The article, which confirms 
the Petitioner's receipt of this award, includes a photo of the Petitioner holding a trophy and a quote 
from him with much of the same language as appears inl Is letter. 
While the above evidence suggests that the award is given for excellence in the Petitioner's field, the 
record does not establish that the I I is nationally or internationally recognized. One 
additional article submitted focuses on the I I event, of which the convention was a part, and 
mentions the convention and the awards presented only in passing. A second article, which appears 
to be a description of the sixteenth occurrence of the convention produced b~ I, mentions 
the names of the award winners in that year. However, the record does not include a description of 
the nature of these websites or the organizations they are tied to, and the report from SimilarWeb 
which was submitted for each does not indicate that either has a widespread viewership or traffic rate 
on a national or international level. This evidence, including the brief article in Mercado Fitness, is 
insufficient to demonstrate that the I [ is a nationally or internationally recognized award. 
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. 8 C.F.R. § 204.5(h)(3)(iii) 
In his decision, the Director acknowledged several articles in the record that were published in Spanish 
and/or Portuguese language fitness industry trade magazines, including Mercado Fitness, Fitness 
Business Latin America, and Revista Empressario Fitness, but found that while these articles include 
quotations from the Petitioner, they were not "mainly" about him. 
On appeal, the Petitioner asserts that the articles were about him and his expert opinion. However, a 
review of the evidence shows that the articles were about topics relating to the fitness industry, and 
included opinions not just from the Petitioner but other industry experts as well. For instance, the 
article which appeared in the issue of Mercado Fitness is titled j I 
This article begins by describing the I lnarket 
segment, including a short definition of this type of lym from the Petitioner. However, it then goes 
on to describe a particular I I gym inl Brazil, and includes quotations from the gym's 
owner describing its services. Therefore, this published material is not about the Petitioner, but about 
I lgyms in general and this specific gym in particular. 
An article that more extensively quotes the Petitioner, titled.__ _______ ____.' was published 
in the'--~--~----' issue of Fitness Business. This article focuses on the management of 
finances for managers in the fitness industry, and includes several tips from the Petitioner and another 
consultant. Although the Petitioner is identified as a consultant and his professional opinion presented, 
no other information is given about him or his work in the field. 
While the Petitioner asserts on appeal that the Director's decision regarding this criterion "is a clear 
and material error" because it found that "not one of the articles presented was about the [Petitioner]," 
he does not identify a particular article which he feels most strongly supports his assertion. Upon 
review of all of the articles in the record, we agree with the Director that the Petitioner does not meet 
this criterion. 
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Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which 
class[fication is sought. 8 C.F.R. § 204.5(h)(3)(iv) 
The Petitioner submitted a letter from representatives of thel I Brazil trade show which 
confirms that he helped to select speakers for the show and served as a judge on the panel for the •c=J 
I ~ in 2016, 2017 and 2018. We therefore agree with the Director that he meets this 
criterion. 
Evidence of the alien's authorship of scholarly articles in the _field, in professional or 
major trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi) 
The record includes copies of several articles authored by the Petitioner, many in 2004 and 2005 but 
some more recently. These articles were written to provide professional business advice to current 
and prospective gym owners, and appeared in trade publications including Fitness Business Latin 
America and Mercado Fitness. Accordingly, we find that the Petitioner meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
In order to meet the requirements of this criterion, the Petitioner must demonstrate both that he played 
a leading or critical role, and that the organization or establishment for which that role was played is 
recognized as having a distinguished reputation. If a leading role, the evidence must establish that 
the Petitioner is or was a leader. A title, with appropriate matching duties, can help to establish if a 
role is or was, in fact, leading. If a critical role, the evidence must establish that the Petitioner has 
contributed in a way that is of significant importance to the outcome of the organization or 
establishment's activities. It is not the title of the alien's role, but rather the alien's performance in the 
role that determines whether the role is or was critical. 
The Petitioner submitted pages from the website of his business,,.__ __________ ___, which 
briefly describe the services offered and also include his professional profile, with a list of speaking 
engagements, articles written or contributed to, and consulting projects completed. However, the 
record does not include documentary evidence of the nature or size of this organization, and so does 
not provide sufficient information to determine whether the Petitioner acted as a leader, or played a 
critical role for an organization. We note that in the media articles authored by the Petitioner, as well 
as those in which he provided commentary or was mentioned, his is the only name mentioned in 
connection with his business or the consulting projects to which he contributed. In addition, the profile 
also references the Petitioner's establishment of a gym focused on aqua gymnastics and indicates that 
this grew into a business with six locations and over 150 employees, but the record lacks corroborating 
documentary evidence to support these claims. 
The record also includes evidence regarding the Petitioner's work on individual consulting projects 
for his consulting company, which were submitted as evidence of the companrs reputation~ 
fitness industry. For example, an article about a new fitness facility inl Brazil, calledl_J 
I ~ was published in Fitness Business and briefly mentions that he consulted on the project, 
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but does not describe the extent of his contribution. Further, while a similar article in Mercado Fitness 
indicates that he served as the "consultant and architect responsible for the project," a different article 
in the magazine Epoca names another person as the architect. In addition, the evidence regarding 
another project on which the Petitioner consulted,,.__ ________ ..., in~ Brazil, consists of 
several articles about its opening and operation, but only a brief mention in a single article noting that 
the owner "has the advice of the [Petitioner.]" Although this evidence demonstrates that the Petitioner 
had some role in these visible projects, it does not provide detail about the nature or extent of his or 
his company's contribution. It is therefore not sufficient to establish that 
I I has or had a distinguished reputation in the business consulting indus .... tr_y_. _______ _. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
The Petitioner bases his claim to this criterion on a document described as a copy of his 2017 Brazilian 
tax return, as well as salary surveys from several sources. We first note that the document presented 
as the Petitioner's tax return is only partially translated from Portuguese into English, with potentially 
relevant information missing from the translation. Any document in a foreign language must be 
accompanied by a full English language translation. 8 C.F.R. § 103.2(b)(3). Because the Petitioner 
did not submit a complete English language translation of the document, we cannot meaningfully 
determine whether the translated material provides an accurate picture of his remuneration and 
supports his claims. 
In addition, the translation provides no information regarding the preparation or filing of the tax return 
it is meant to represent. Without such information, we cannot determine whether the figure included 
in the original document and the translation represent accurate, verifiable figures which were reported 
to the appropriate Brazilian tax authority. 
We also note that among the figures shown are "taxable income" of R$ 11,244 and "exempt and non­
taxable income" of R$ 771,282, with the source indicated as ~---------~' in both 
cases. However, there is no further explanation in the record of the source of these funds, such as 
whether they resulted from salary paid, services rendered or other financial or business transactions, 
or whether they reflect payments for work completed in previous years. Therefore, the Petitioner has 
not established that this evidence and the figures reported represent an accurate basis for comparison 
to the remuneration of other similar professionals in his field of endeavor. While the record includes 
salary surveys for what appear to be similar positions, there is no indication of whether these figures 
also include taxable and non-taxable income, or whether these are national average salaries or 
particular to the Petitioner's location. 2 Therefore, for all of the reasons stated above, the Petitioner 
has not established that he meets this criterion. 
2 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted With Certain I-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14. at 11 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html, noting that it the petitioner's burden to provide 
geographical and position-appropriate evidence to establish that a salary is relatively high. 
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III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of his work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and that he is one of the small percentage who has risen 
to the very top of the field of endeavor. See section 203(b)(l)(A) of the Act and 8 C.F.R. § 
204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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