dismissed EB-1A Case: Horse Breeding

identifying data deleted to 
JftVetlt clearly unwarranted 
invuioD of ~onal privac) 
PUBLIC COpy 
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: APR 27 2012 Office: NEBRASKA SERVICE CENTER FILE: 
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, 
Perry Rhew 
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 is a horse breeding farm. It seeks to classify the beneficiary as an employment­
based immigrant pursuant to section 203 (b)( 1 )( A) 0 f the Immigration and Nationality Act (the 
Act), 8 U. S. C. § lIS 3 (b)(1 )( A), as an alien 0 f extraordinary ability. The director determined that 
the petitioner had not established the requisite extraordinary ability for the beneficiary and failed to 
submit extensive documentation of his sustained national or international acclaim. 
Congress set a very high benchmark fur aliens 0 f 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.F.R. § 204.S(h)(3). The implementing regulation at 8 C.F.R. § 204.S(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.S(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence for the alien under at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. 
In his decision denying the petition, the director found that petitioner failed to demonstrate that the 
beneficiary meets at least three ofthe categories of evidence at 8 C.F.R. § 204.S(h)(3). On appeal, 
counsel does not challenge the director's finding in that regard. Instead, counsel asserts that the 
petitioner submitted comparable evidence of the beneficiary'S eligibility pursuant to the 
regulation at 8 C.F.R. § 204.S(h)( 4). Counsel requests oral argument "so that the AAO views the 
instant case( s) in a comprehensive light." The regulations provide that the requesting party must 
adequately explain in writing why oral argument is necessary. Furthermore, U.S. Citizenship and 
Immigration Services (USCIS) has the sole authority to grant or deny a request for oral argument 
and will grant argument only in cases involving unique factors or issues of law that cannot be 
adequately addressed in writing. See 8 C.F.R. § 103.3(b). In this instance, counsel identified no 
unique factors or issues of law to be resolved. Moreover, the written record of proceedings fully 
represents the facts and issues in this matter. Consequently, the request for oral argument is 
denied. 
For the reasons discussed below, the AAO will uphold the director's decision. 
1. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
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 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 a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
Page 4 
(v) Evidence ofthe alien's original scientific, scholarly, artistic, athletic, or business­
related contnbutions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles ill the field, ill 
professional or major trade publications or other major media; 
(vii) Evidence ofthe display ofthe 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 
(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 ofparsing the significance of evidence as part ofthe 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)). 
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. Id. 
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). 
PageS 
II. ANALYSIS 
A. Evidentiary Criteria at 8 C.F.R. § 204.5(h)(3) 
The petitioner's initial evidence consisted solely of a letter written by counsel unsupported by 
documentary evidence of the beneficiary's specific achievements and recognition in the field. 
As previously discussed, the director found that the documentation submitted by the petitioner 
did not establish that the beneficiary meets any ofthe regulatory categories of evidence at 8 C.F.R. 
§ 204.5(h)(3). On appeal, the petitioner does not contest the director's finding or offer additional 
arguments pertaining to the regulatory criteria at 8 C.F.R. § 204.5(h)(3). The AAO, therefore, 
considers this issue to be abandoned. Sepulveda v. U.S. Atty Gen., 401 F.3d 1226, 1228 n. 2 
(lith Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 
(E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he failed to 
raise them on appeal to the AAO). Thus, the AAO affirms the director's finding that the petitioner 
has failed to demonstrate that the beneficiary satisfies the antecedent regulatory requirement ofthree 
types of evidence. 
B. Comparable Evidence Under 8 C.F.R. § 204.5(h)(4) 
On appeal, counsel states: 
The Service down played Petitioner's letter brief which stated the legal and factual 
reasons why extraordinary ability was present with the beneficiary. The Service 
overlooked the fact that the industry itself commands employees who by their nature do 
not receive credit for their services even though the industry as a whole is glamorous. 
The Service failed to realize that the industry's world recognition and acclaim would not 
be possible if it were not for the employees behind the scenes. The Service erred in not 
considering the uniqueness of the abilities held by the Beneficiaries. While the 
beneficiaries lack formal education, they perform tasks that would require substantial 
formal education and in fact is performed by Veterinarians with said formal education 
and training. The Service overlooked this analysis. 
* * * 
Title 8, Code of Federal Regulations, Part 204.(5) (4) [sic] (hereinafter, the "Code") 
states: "If the above standards do not readily apply to the beneficiary's occupation, the 
petitioner may submit comparable evidence to establish the beneficiary'S eligibility." 
In its initial filing, Petitioner submitted evidence in the form a letter of support from. 
_ DVM evidencing the fact that beneficiaries gained his confidence in their ability 
to perform, inter alia, tasks involving rehabilitation of horses. Please the included [sic] 
attachment in this regard. 
In addition, the evidence in the record shows that the position of the beneficiary 
commands group national/international acclaim rather than individual acclaim. This is 
because in the [sic] horse breeding[,] a competition industry, it is the winning race horse 
and the contributions to the enhancement of horses as a whole that receives acclaim and 
attention. Petitioner avers that the successful race horse and the advancement of equine 
orthopedics are products of those professionals behind the scenes who are the engine of 
success and acclaim. It is the superior knowledge behind the breeding, rehabilitation, and 
training that yields the result of nationaVintemational acclaim. The significance of 
Beneficiaries' work is readily seen by the obvious success of the Farm and its operations, 
and also because of the uniqueness of the work they perform. 
Moreover, ... the Beneficiaries are an integral part of the success of the operation, and 
their skill levels are such that they command the trust of a licensed veterinarian. 
Although Beneficiaries do not have the formal education of a veterinarian, they can 
competently perform the important tasks of a veterinarian. As a result, Beneficiaries' 
skill should be classified as extraordinary. 
The AAO notes that the June 8, 2011 letter from on appeal does not 
mention the beneficiary or specifically identify his particular achievements in the field. Instead, 
discusses the duties and responsibilities of the horse groomers at the 
The plain language of the statute and regulations, however, 
require that ''the alien" has sustained national or international acclaim and that "his or her 
achievements" have been recognized in the field through extensive documentation. See section 
203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1 153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). Assuming 
the beneficiary's skills as a horse groomer are unique, the classification sought was not designed 
merely to alleviate skill shortages in a given field. In fact, that issue properly falls under the 
jurisdiction ofthe Department of Labor through the alien employment certification process. See 
Matter of New York State Department of Tr~, 22 I&N Dec. 215, 221 (Comm'r 1998). 
Further, with regard to the observations in _letter, 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"). 
~'s appellate submission included information about 
__ from Wikipedia, an online encyclopedia. With regard to information from 
Wikipedia, there are no assurances about the reliability of the content from this open, user-edited 
internet site.2 See Lami/em Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). 
2 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 
Page 7 
Accordingly, the AAO will not assign weight to information for which Wikipedia is the source. 
The petitioner also submitted information about posted on the websites of the 
None of the preceding online material 
mentions the beneficiary or demonstrates his specific achievements and recognition in the field 
of endeavor. 
The regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" 
only if the ten categories of evidence "do not readily apply to the beneficiary's occupation." 
Thus, it is the petitioner's burden to demonstrate why the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3) are not readily applicable to the alien's occupation and how the evidence submitted is 
"comparable" to the specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). The 
regulatory language precludes the consideration of comparable evidence in this case, as there is 
no indication that eligibility for visa preference in the beneficiary's occupation cannot be 
established by the ten criteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). Where an 
alien is simply unable to satisfy the plain language requirements of at least three categories of 
evidence at 8 C.F.R. § 204.5(h)(3), the regulation at 8 C.F.R. § 204.5(h)( 4) does not allow for the 
submission of comparable evidence. The petitioner's appellate submission does not include 
evidence demonstrating that the regulatory criteria are not readily applicable to the beneficiary's 
occupation. For instance, there is no evidence indicating that the published material, leading or 
critical role for a distinguished organization, and high salary categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(iii), (viii), and (ix) are not readily applicable to horse groomers. Moreover, counsel 
fails to explain how the documentation submitted by the petitioner is "comparable" to any specific 
objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). 
In this matter, the submitted documentation is simply not comparable to extensive evidence of the 
beneficiary's specific achievements and recognition as required by the statute and regulations. The 
nonexistence of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 
The classification sought requires "extensive documentation" demonstrating that ''the alien" has 
sustained national or international acclaim. See section 203(b)(1 )(A)(i) of the Act, 8 U.S.C. 
§ 1 153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). The commentary for the proposed regulations 
implementing the statute 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, the petitioner must show that the alien has demonstrated a "career 
of acclaimed work." H.R. Rep. No. 101-723,59 (Sept. 19, 1990). That page (59) also says that "an 
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/wikilWikipedia:General disclaimer, accessed on April 20, 2012, copy incorporated into 
the record of proceeding. 
Page 8 
alien must (1) demonstrate sustained national or international acclaim lin the sciences, arts, 
education, business or athletics (as shown through extensive documentationV." Primary evidence 
of the beneficiary's achievements and recognition is of far greater probative value than the 
unsupported claims made by counsel. 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). 
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 ofthe field of endeavor. 
Even if the petitioner had submitted the requisite evidence for the alien under at least three evidentiary 
categories or comparable evidence of his extraordinary ability, 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 ofthat small percentage who have risen to the very top ofthe[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 final merits determination.3 
Rather, the proper conclusion is that the petitioner failed to demonstrate that the beneficiary has 
satisfied the antecedent regulatory requirement of three categories of evidence. Id. at 1122. The 
petitioner also failed to submit comparable evidence ofthe beneficiary's extraordinary ability. 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(I)(A) ofthe 
Act and the petition may not be approved. 
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. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
3 The AAO maintains de novo review of all questions offuct 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)(I)(ii). See also section 103(a)(I) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March I, 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).