dismissed EB-1A Case: Karate

U.S. Department oflIomeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
Date: JAN· 1 0Z008Office: VERMONT SERVICE CENTER
EAC 06131 51903
FILE:
INRE: Petitioner:
Beneficiary:
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:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~~
~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont 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
athletics. The director determined the petitioner had not established that he qualifies for classification as an alien
of extraordinary ability.
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.
Citizenship and Immigration Services (CIS) 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 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). As used in this
section, the term "extraordinary ability" means a level of expertise indicating that the individual is one of that
small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The specific
requirements for supporting documents to establish that an alien has sustained national or international
acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. § 204.5(h)(3).
The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner must show
that he has earned sustained national or international acclaim at the very top level.
This petition, filed on March 27, 2006, seeks to classify the petitioner as an alien with extraordinary ability in
karate. The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish sustained national or
international acclaim through evidence of a one-time achievement (that is, a major, internationally recognized
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of
which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of
extraordinary ability. A petitioner, however, cannot establish eligibility for this classification merely by
submitting evidence that simply relates to at least three criteria at 8 C.F.R. § 204.5(h)(3). In determining
whether the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether it is
indicative of or consistent with sustained national or international acclaim. A lower evidentiary standard
would not be consistent with the regulatory definition of "extraordinary ability" as "a level of expertise
indicating that the individual is one of that small percentage who have risen to the very top of the field of
endeavor." 8 C.F.R. § 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria.
Documentation ofthe alien's receipt oflesser nationally or internationally recognized prizes or
awards for excellence in the field ofendeavor.
The petitioner submitted evidence showing, inter alia, that he won first place at the 14
th
and 15th Annual
American International Karate Championships (2004 and 2005), second place at the European Kyokushinkai
Organization's European Tournament in Madrid (2001), and first place at the First Middle East International
KyoKushin Karate IK03 Tournament in Tehran (2002). The record also includes adequate infonnation to
demonstrate the significance of these awards. As such, we find that the petitioner meets this criterion.
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.
The petitioner submitted a certificate from the Georgian Joshin-Mon Karate-Do Federation reflecting that he
earned a white belt and a certificate from the North American Kyokushin Organization reflecting that he earned a
second degree black belt. While the petitioner has met the testing requirements to obtain these belt rankings,
there is no evidence that either of the preceding organizations require a white belt or a second degree black belt to
become a member.! Nor is there evidence identifying the specific requirements that must be satisfied to achieve
these belt rankings. On appeal, the petitioner submits a letter from the United States Muay Thai Association
stating that he is a member. The record, however, includes no evidence (such as membership bylaws or
official admission requirements) showing that the preceding organizations require outstanding achievements
of their members, as judged by recognized national or international experts in the petitioner's or an allied
field.
In light of the above, the petitioner has not established that he meets 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 ofthe 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. An alien would not
earn acclaim at the national level from a local publication. Some newspapers, such as the New York Times,
I There is no evidence that lower belt rankings are excluded from membership in the Georgian Joshin-Mon Karate-Do
Federation or the North American Kyokushin Organization.
nominally serve a particular locality but would qualify as major media because of significant national distribution,
unlike small local community papers?
The petitioner submitted four articles published in Sarbieli, Lela, and World Sport. Pursuant to 8 C.F.R.
§ l03.2(b)(3), any document containing foreign language submitted to CIS shall be accompanied by a full
English language translation that the translator has certified as complete and accurate, and by the translator's
certification that he or she is competent to translate from the foreign language into English. The English
language translations accompanying the petitioner's articles were not certified as required by the regulation.
Further, none of these articles were primarily about the petitioner. Nor is there evidence (such as circulation
statistics) showing that the preceding publications qualify as professional or major trade publications or other
form of major media. Finally, the authors of three of the articles were not identified as required by this regulatory
criterion.
In light of the above, the petitioner has not established that he meets this criterion.
In this case, the petitioner has failed to demonstrate receipt of a major, internationally recognized award, or
that he meets at least three of the criteria at 8 C.F.R. § 204.5(h)(3).
Beyond the regulatory criteria, the petitioner submitted several recommendation letters attesting to his talent,
dedication, and competitive victories. The petitioner's karate victories have already been addressed under the
regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i), a criterion the petitioner has met. The opinions of experts in
the field, while not without weight, cannot form the cornerstone of a successful extraordinary ability claim.
CIS 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. 1988). However, CIS 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; CIS may evaluate the
content of those letters as to whether they support the alien's eligibility. See id. at 795-796. While letters of
support may place the evidence for the regulatory criteria in context, they cannot serve as primary evidence of the
achievement required by each criterion. Pursuant to section 203(b)(1)(A)(i) of the Act, the classification
sought requires "extensive documentation" of sustained national or international acclaim, and the petitioner
cannot arbitrarily replace such evidence with attestations from the petitioner's acquaintances, who assert that
they find his abilities to be extraordinary.
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 or 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 the 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:
2 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.
Beyond the decision of the director, the regulation at 8 C.F.R. § 204.5(h)(5) requires "clear evidence that the
alien is coming to the United States to continue work in the area of expertise. Such evidence may include
letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a
statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the
United States." The record includes no such evidence.
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 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C.
557(b) (liOn appeal from or review of the initial decision, the agency has all the powers which it would have
in making the initial decision except as it may limit the issues on notice or by rule. "). See also, Janka v. Us.
Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989).
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.