dismissed EB-1A Case: Chess

(b)(6)
DATE: AUG 2 3 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of Jaw nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
~,2) __ 
~ Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" as a chess player, pursuant to 
section 203(b)(1)(A) of the immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The 
director determined the petitioner had not established the sustained national or international acclaim 
necessary to qualify for the classification. 
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. 
The petitioner's priority date established by the petition filing date is March 19, 2012. On August 3, 
2012, the director served the petitioner with a request for evidence (RFE). After receiving the 
petitioner's response to the RFE, the director issued his decision on December 19, 2012. On appeal, the 
petitioner submits a brief with additional documentary evidence. For the reasons discussed below, the 
record supports 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 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 
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(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
U.S. Citizenship and hnmigration 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 101st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. 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. 1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." /d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. 
1 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). 
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II. ANALYSIS 
Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
This criterion contains several evidentiary elements the petitioner must satisfy. According to the plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(i), the evidence must establish that the alien is the 
recipient of the prizes or the awards (in the plural). The clear regulatory language requires that the 
prizes or the awards are nationally or internationally recognized. The plain language of the regulation 
also requires the petitioner to submit evidence that each prize or award is one for excellence in the field 
of endeavor rather than simply for participating in or contributing to an event or to a group. The 
petitioner must satisfy all of these elements to meet the plain language requirements of this criterion. 
The petitioner claimed that the success of the _ 
chess team sufficiently demonstrates his eligibility under this criterion in addition to his placement in 
various tournaments. The director determined that the petitioner failed to meet the requirements of this 
criterion. The record does not support the director's adverse eligibility determination related to this 
criterion for the reasons outlined below. 
The petitioner submitted photographs of trophies and plaques, all of which are either illegible, in a 
foreign language and lack translations as required under 8 C.P.R. § 103.2(b )(3), or are for awards for 
which the petitioner has riot documented their level of recognition in the field. This evidence is not 
probative of the petitioner's receipt of qualifying awards. Notwithstanding these deficiencies, the 
petitioner also documented that his collegiate chess team received the championship - in 
2009 and 2010. The event's website lists the five members of the team, including the petitioner, in 
announcing the final standings. As the petitioner was a credited member of the team that received this 
top-level collegiate award on two occasions, the petitioner has demonstrated that he is a recipient of 
these awards. The petitioner also individually finished first in the 2009 
event. 
As such, the petitioner has submitted evidence that meets the plain language requirements of this 
criterion. 
2 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
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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. 
This criterion contains several evidentiary elements the petitioner must satisfy. First, the petitioner must 
demonstrate that he is a member of more than one association in his field. Second, the petitioner must 
demonstrate both of the following: (1) that the associations utilize nationally or internationally 
recognized experts to judge the achievements (in the plural) of prospective members to determine if the 
achievements are outstanding, and (2) that the associations use this outstanding determination as a 
condition of eligibility for prospective membership. It is insufficient for the association itself to 
determine if the achievements were outstanding, unless nationally or internationally recognized experts 
in the petitioner's field, who represent the association, render this determination. It is also insufficient 
for the petitioner to claim that he was admitted to the association because of his outstanding 
achievements; the petitioner must show that the association requires outstanding achievements of all 
prospective members. The petitioner must satisfy all of these elements to meet the plain language 
requirements of this criterion. 
The oetitioner claimed that his 
' / 
· title constitutes a membership in the Federation 
The director 
determined 
that the petitioner failed to meet the requirements of this criterion. 
The petitioner did not provide evidence of his membership in admits 
individuals as members. The petitioner also failed to submit the membership requirements for or 
a member federation to demonstrate that it might satisfy the requirements under this criterion. The· 
petitioner's attainment of the also fails to meet the plain 
language requirements of this criterion. Specifically, a title from an association is not a membership in 
an association. Even if the petitioner established that the title was a membership 
within a qualifying association, this would only be a single membership when the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii) requires evidence of "membership in associations" in the plural, consistent with the 
statutory requirement for extensive documentation. See section 203(b )(1 )(A)(i) of the Act. 
Consequently, the petitioner has not submitted evidence that meets the 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 '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. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must be about the petitioner and the contents must relate to the petitioner's work in the field 
under which he seeks classification as an immigrant. The published material must also appear in 
professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
(b)(6)
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publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item's title, date, and 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. 
The petitioner provided several articles, primarily relating to the and events where 
the team competed. The director determined that the petitioner failed to meet the requirements of this 
criterion because the articles were not about the petitioner. 
The articles under this criterion must be about the petitioner and relate to his work in the field. The 
articles in the record are about the team or events where the team competed. Counsel's brief on 
appeal asserts that the articles should be read in concert with the team's results because the petitioner 
was an integral part of the team and the articles should be viewed as outlining the petitioner's personal 
success. The plain language requirements of this criterion, however, explicitly state that the published 
material must be about the petitioner. Articles that are not about the petitioner, and only mention him in 
passing, do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ 
at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show or a character within a 
show are not about the performer). 
Therefore, the petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who have risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
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final merits determination. 3 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. /d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition 
may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
3 
The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination 
as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of 
the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that 
legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).