dismissed EB-1A Case: Horse Racing

U.S. Citizenship 
and Immigration 
Services 
In Re: 11876135 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 26, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a racehorse jockey, 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 the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria , as required. 
The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
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)(A) of the Act makes immigrant visas available to aliens 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 
international 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 criteria 
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) 
(discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner states that he "is thd I in the history of Venezuelan horse riding to reacrl._ ___ _. 
.__ __ ___.I" An online article in the record indicates that the Petitioner "won approximately 2,200 races" 
before relocating to the United States. The Petitioner states that he "was among the contenders to ride 
I l .. at the 20151 I." At the time of filing in December 2016, the Petitioner 
was riding in California, primarily atl O I He then briefly worked in New 
Mexico and then Minnesota. When he filed the appeal in 2020, he worked atl I in 
I I Florida. 
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 Petitioner claims to have met six criteria, summarized below: 
I (i), Lesser nationally or internationally recognized prizes or awards; 
I (ii), Membership in associations that require outstanding achievements; 
I (iii), Published material about the alien in professional or major media; 
I (vii), Display at artistic exhibitions or showcases; 
I (viii), Leading or critical role for distinguished organizations or establishments; and 
I (ix), High remuneration for services. 
The Director concluded that the Petitioner met the two criteria numbered (vii) and (ix). On appeal, 
the Petitioner asserts that he also meets the other claimed evidentiary criteria. 
After reviewing all of the evidence in the record, we conclude that the Petitioner has satisfied only the 
criterion relating to salary or other remuneration. We will address the other criteria below. 
Throughout this proceeding, the Petitioner has not specifically explained how he purports to have 
satisfied the various evidentiary criteria. Instead, the Petitioner identifies each criterion and lists the 
evidentiary exhibits which, he asserts, relate to that criterion. On appeal, the Petitioner quotes at some 
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length from the Director's decision, but instead of addressing that determination directly, the Petitioner 
simply identifies evidentiary exhibits. The relationship between those exhibits and the claimed criteria 
is more straightforward in some instances than in others. It is the Petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act; Matter of Skirball Cultural Ctr., 
25 l&N Dec. 799, 806 (AAO 2012). The Petitioner cannot meet his burden of proof simply by listing 
record materials without explaining their relevance. 
Furthermore, the appeal includes information and evidence about the Petitioner's activities after he 
filed the petition in December 2016. We will not discuss this evidence in any detail as the Petitioner 
must meet all eligibility requirements at the time of filing the petition. See 8 C.F.R. § 103.2(b)(1).1 
Subsequent developments cannot retroactively establish eligibility. See Matter of Katigbak, 14 l&N 
Dec. 45, 49 (Reg'I Comm'r 1971). Furthermore, the purpose of an appeal is to establish errors of fact 
or law in the underlying decision. See 8 C.F.R. § 103.3(a)(l)(v). Submission of entirely new claims 
and evidence on appeal does not show that the Director made an incorrect decision based on the 
evidence available to the Director at the time of that decision. 
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) 
As of September 2016, the Petitioner was thel l"Meet Leader" at~-------~ 
having wonl I races. The table of "Meet Leaders," ranking jockeys in order of number of 
races won, lists 57 jockeys, 45 of whom had won at least one race. The table also appears to indicate that 
349 races took place at that one racetrack up to that point in the 2016 season. 
Other materials in the record list every race in which the Petitioner has participated, and indicate where 
he finished in each race, but the Petitioner has not shown that he won nationally or internationally 
recognized prizes or awards in these races. Given the hundreds of races per year at each of countless 
racetracks, there is no presumption that the winner of any given race wins a nationally or internationally 
recognized prize or award. 
The Petitioner has not established that he received nationally or internationally recognized prizes or 
awards for excellence in his field of endeavor. 
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. 
8 C.F.R. § 204.5(h)(3)(ii) 
The Petitioner submits a photocopy of his jockey license, issued by the California Horse Racing Board, 
and various information about his riding career. This evidence shows that the Petitioner has a jockey 
license, but it does not establish that he is a member of any identified association. The California Horse 
1 The same regulation requires each petitioner to remain eligible for the benefit sought throughout the adjudication of the 
petition. In this respect, it is relevant that a 2020 printout of the Petitioner's statistics shows a significant decline in the 
Petitioner's annual winnings after 2016. 
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Racing Board is a government licensing authority, not an association of jockeys, and even then the 
Petitioner has not established that the Board requires outstanding achievement as a condition for Ii censure. 
On appeal, the Petitioner presents new information about his licensure in other states and his membership 
in the Jockeys' Guild, which he did not previously claim. The Guild's attorney states in a letter that the 
Petitioner has been a member since 2014, but the Petitioner did not claim Guild membership prior to the 
appeal. Therefore, the Director cannot have erred by failing to consider that membership. Furthermore, 
the attorney does not specify the Guild's membership requirements. The record describes the Guild as, 
essentially, a trade union that advocates for the interests of jockeys, rather than an association with highly 
restrictive membership requirements. 
The Petitioner has not satisfied the 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. 8 C.F.R. § 204.5(h)(3)(iii) 
The Petitioner submits several articles from various publications, but many of these articles are not about 
him; they mention him briefly, or not at all, and the Petitioner does not show that they appeared in 
professional or major trade publications or other major media. Other articles, submitted later, were 
published after the 2016 filing date and therefore cannot show eligibility at the time of filing. 
The initial submission includes two articles about the Petitioner: A 12016 piece on the website of 
I I Park called the Petitioner "an overnight sensation" who ~----~-----.---. 
and a 2016 article from the Paulick Re art statin that the Petitioner 
~-~I· The Petitioner has not established that either of these stories appeared in professional or major 
trade publications or other major media. 
The Petitioner submits photographs showing him racing horses, speaking to a television reporter, and 
posing with journalists and others. The photographs have unattributed captions, but the Petitioner does 
not show where the photographs were pub I ished, or whether the captions were pub I ished along with them. 
One photograph shows a copyright notice from Newsday inl I but a copyright notice 
is not evidence of publication. The record also does not provide further information about the broadcast, 
if any, of the Petitioner's interview with the aforementioned television reporter. 
On appeal, the Petitioner submits a Paulick Report article from 2015. He does not explain why he did 
not submit the article earlier, nor does he establish that the Paulick Report constitutes a professional or 
major trade publication or other major media. 
The Petitioner has not shown that the submitted evidence satisfies the regulatory criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii) 
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The Director concluded, without comment, that the Petitioner satisfied this criterion. We disagree. 
In claiming to satisfy this criterion, the Petitioner cited various exhibits without further elaboration or 
explanation. Some of the cited documents are website printouts of the Petitioner's "Jockey Profile" and 
a table of "2016 Meet Leaders" at thel !racetrack. These pages are informational listings of 
statistics rather than artistic displays or exhibitions. 
The other specified exhibits are photographs of the Petitioner, taken after (and in some cases during) horse 
races. A photograph is not inherently an artistic display or exhibition. Some of the photographs appear 
to have been taken by news photographers, for informational rather than artistic purposes. 
The exhibits all establish that the Petitioner has participated in horse races, but the Petitioner has not 
established that a horse race is an artistic display or exhibition. 
In the absence of any explanation as to how the specified exhibits constitute evidence of the display of 
the Petitioner's work at artistic exhibitions or showcases, we cannot conclude that the Petitioner has 
satisfied the requirements of 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) 
The Petitioner points to 21 exhibits in the record, submitted at various times during the proceeding, but 
does not explain how those materials satisfy the criterion. The Petitioner does not identify the 
organizations or establishments; demonstrate that they have distinguished reputations; or specify how his 
role for each was either leading or critical. 
The Petitioner cannot meet his burden of proof merely by submitting a number of documents and 
asserting, without explanation, that they establish a leading or critical role for unidentified organizations 
and establishments. It is not the Director's responsibility to fill in gaps in the record, for instance by 
inferring that the Petitioner must have performed in a critical role for a particular racetrack complex by 
winning a number of races there. 
The Petitioner has not established that he satisfies the regulatory requirements for this criterion. 
111. 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 conclusion 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. Here, the Petitioner 
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has not shown that he has earned the required sustained national or international acclaim or that his 
achievements are 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 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). 
The Petitioner has had some success as a jockey, but does not show that he has achieved sustained national 
or international acclaim, or that he has reached the top of his field. For example, he was the[] "Meet 
Leader" for races held arl O l in 2016, but he does not explain how this statistic 
is relevant at the wider national or international level. The Petitioner asserts that he had earned acclaim 
during his earlier career in Venezuela, but he submits no contemporaneous, documentary evidence to 
support this assertion. Some articles mention the Petitioner's earlier work in Venezuela, and letters from 
individuals who worked with him in Venezuela describe his skill in general terms, but the direct evidence 
all relates to his work in the United States. 
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. 
ORDER: The appeal is dismissed. 
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