dismissed EB-1A Case: Karate

U.S. Department of Ifomeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: I LIN 06 250 51438 Office: NEBRASKA SERVICE CENTER Date: 1 7 2009 
IN RE: 
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. 9 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. tj 103.5(a)(l)(i). 
Sohn F. Grissog Acting Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) summarily dismissed a subsequent appeal. The 
matter is now before the AAO on a motion to reopen and reconsider. The motion will be granted, the 
previous decision of the AAO will be withdrawn and the petition will be denied on its merits. 
The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualifj for classification as an alien of extraordinary ability. 
Prior counsel filed the initial appeal on March 14, 2007, asserting that she would file a brief or 
additional evidence within 30 days. On August 3,2007, counsel advised that she was now representing 
the petitioner and requested a copy of the record and additional time to submit a brief upon receipt of 
the record. On January 15,2008, the AAO summarily dismissed the appeal, concluding that there was 
not an "open-ended or indefinite period in which to supplement an appeal." 
On February 15,2008, counsel filed a motion supported by documentation of a grievance against prior 
counsel. Counsel supports the motion with a brief addressing the merits of the petition and additional 
evidence. While we continue to find that a request for a copy of the record does not stay the period 
during which a petitioner or counsel can supplement the appeal, we find that counsel's request for some 
additional time as the new attorney was generally reasonable. We reiterate, however, that there is no 
regulation that allows the petitioner an open-ended or indefinite period in which to supplement an 
appeal and there is no statutory or regulatory provision that allows for an extension of time to file an 
appellate brief while a Freedom of Information Act (FOIA), 5 U.S.C. 5 552, request is pending. 
While counsel asserts that the petition was denied based on information to which the petitioner did not 
have access, the petition was actually denied for lack of sufficient evidence of eligibility. The director 
did not rely on derogatory evidence that the petitioner himself had not provided. The full record of 
proceeding is now before the AAO and contains only those documents submitted by the petitioner and 
the director's notices, which counsel has seen because she resubmits them on motion. Counsel has now 
supplemented the record with a brief and new evidence, requesting that the matter be remanded to the 
director for consideration of the new evidence. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. fj 557(b) ("On 
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 new evidence submitted was not specifically requested previously and, thus, may be 
considered on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). As the AAO is competent to consider the new 
evidence on appeal, there is no need to remand the matter to the director. For the reasons discussed 
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below, however, the new evidence does not carry the evidentiary weight ascribed by counsel and 
cannot overcome the director's concerns. 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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. 
U.S. Citizenship and Immigration 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 56 Fed. Reg. 60897,60898-9 (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. 5 204.5(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. 5 204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
The petition, as initially completed, seeks to classify the petitioner as an alien with extraordinary ability 
as a karate instructor. In response to the director's notice of intent to deny the petition, prior counsel 
indicated that the petitioner would also compete and submitted an offer to sponsor the petitioner as a 
competitor. The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained 
national or international acclaim through evidence of a one-time achievement (that is, a major, 
international 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. Throughout the proceedings, prior counsel and 
counsel have asserted that the petitioner meets the following criteria.' 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
Page 4 
Documentation of the alien S receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The petitioner initially submitted certificates for participation and awards from various karate 
competitions. The petitioner also submitted a certificate from the President of the - 
-1 listing several awards not documented at the time. The director's notice 
of intent to deny the petition noted the lack of evidence regarding qualifications to compete in these 
competitions. In response, the petitioner submitted a letter from the General Secretary of the - 
. Mr. lists several awards and championships the 
petitioner won as a member of the Romanian national Shotokan Karate Do of United Nations 
(SKDUN) team. The petitioner also submitted the Constitution of SKDUN and the association's 
General Contest Rules. These documents do not indicate the qualifications for SKDUN competitors. 
The record contains Romanian newspaper articles covering the competitions. In addition, an article in 
Traditional Karate affirms that the attendance at a SKDUN event by 17 countries demonstrates the 
prestige of the competition. 
The director concluded that the petitioner had not demonstrated the significance of the competitions. 
On motion. counsel asserts that the ~etitioner "has won everv maior international com~etition in 
Shotokan karate, beginning in 1999."' The petitioner submits a letter from- 
for the World Traditional Karate Organization (WTKO). While 
 asserts that the 
petitioner has risen to the top of Shotokan Karate, he does not specify how many international Shotokan 
Karate affiliations exist and whether all international competitions in Shotokan are equally significant 
regardless of affiliation or, if not, how SKDUN compares with other Shotokan affiliations. 
The petitioner also submits several more awards at SKDUN, WTKO and Federalia Romh2 De Arte 
Martiale sponsored events. The photographs reveal that the competitions were held in gymnasiums 
rather than stadiums with makeshift award platforms. (One photograph shows a collection of soda 
cans, plastic bags and other personal items cluttered behind the award platform.) 
While the record would have been bolstered by evidence of how SKDUN events compare with events 
hosted by other Shotokan karate events, we acknowledge the large number of awards at international 
events that have garnered at least some media coverage. Thus, we are satisfied 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. 
In response to the director's notice of intent to deny the petition, prior counsel asserted that the 
petitioner meets this criterion through his "membership" on a SKDUN national team that permits 
decision. 
competition at invitational events. While the petitioner submitted SKDUN competition rules, they do 
not address whether the competitions are open or invitational. 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). 
The director concluded that the record did not support the conclusion that the petitioner was a member 
of an organization or association that requires outstanding achievements of its members. 
On motion, counsel no longer asserts that the petitioner's national team membership serves to meet this 
criterion. Rather, she asserts that the petitioner's Romanian title as "Merited Master of Sport" serves to 
meet this criterion. The record already contained a January 2 1,2002 certificate issued to the petitioner 
by the Romanian Ministry of Education and Sports certifying the petitioner's title as a Merited Master 
in Sport. On motion, the petitioner submits a letter from 
gymnast who is also a Merited Master of Sport. 
 asserts that the title is reserved for 
champions of official competitions. 
 In addition, 
 affirms that the award is based on 
"outstanding lifetime achievements." 
The record does not contain the official rules for designating an athlete as a Merited Master of Sport. 
While we do not question the sincerity of the petitioner's references, it remains that the official rules of 
designation constitute the primary evidence of "membership" eligibility requirements. Without 
evidence that such rules and secondary evidence of those rules are both unavailable, we cannot accept 
unsupported assertions. 8 C.F.R. 5 103.2(b)(2). More specifically, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg'l. Cornrn'r. 1972)). Without official evidence of the requirements 
for being designated a Merited Master in Sport, the petitioner cannot establish that he meets this 
criterion. Moreover, a title is not necessarily a "membership." Thus, the petitioner must establish that 
this title is sufficiently comparable to a membership such that it is equally indicative of national or 
international acclaim. 8 C.F.R. 5 204.5(h)(4). 
Finally, we are not persuaded that merely competing at the international level serves to meet this 
criterion. Thus, the petitioner's "membership" on the Romanian national team cannot be considered as 
evidence to meet this criterion. 
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 jeld for which classzjication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner initially submitted foreign language newspaper articles, some with translations. In 
response to the director's notice of intent to deny, the petitioner resubmitted the articles with certified 
translations. The petitioner did not provide the publication name or date as required by the regulation at 
8 C.F.R. fj 204.5(h)(3)(iii). Regardless, the articles all report the results of competitions generally. 
None of them can be said to be "about" the petitioner. 
On motion, the petitioner submitted new certified translations of the previously submitted articles and 
new articles, including an article in Traditional Karate. The new translations identify the publications' 
names. Some of the new articles, however, do not even mention the petitioner by name. Rather, they 
are "about" the Romanian national team in the aggregate. 
The regulation at 8 C.F.R. 5 204.5(h)(3)(iii) requires the submission of published material "about" the 
alien. None of the materials can be considered to be "about" the petitioner. If he is named at all, he is 
only listed in the chart of results that follow the article or in a photograph caption. 
Finally, the record contains no evidence regarding the distribution or circulation of any of these 
publications. Thus, the petitioner has not established that any of them constitute major media. 
In light of the above, the petitioner has not established that he meets this criterion. 
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 alliedjeld of speczfication for which classz~cation is sought. 
In response to the director's notice of intent to deny, prior counsel asserted that the petitioner was 
eligible to judge the work of others but could not referee because he continued to compete. While there 
may be a legitimate reason why the petitioner cannot meet this criterion, it remains that he does not. 
The regulation at 8 C.F.R. 5 204.5(h)(3)(iv) does not require evidence of eligibility to serve as a judge 
but rather evidence that the alien has participated as a judge. Counsel no longer asserts that the 
petitioner meets this criterion on motion and we find that he does not. 
Comparable evidence pursuant to 8 C. F. R. $204.5@(4) 
In response to the director's notice of intent to deny, prior counsel asserted that the reference letters 
served as comparable evidence pursuant to the regulation at 8 C.F.R. 9 204.5(h)(4). On motion, 
counsel asserts that the petitioner's "personal command appearance" before the Romanian Prime 
Minister serves to meet this criterion. Counsel further asserts that the petitioner was part of a team that 
attracted record attendance in Bucharest. 
The regulation at 8 C.F.R. 5 204.5(h)(4) provides that a petitioner may submit comparable evidence 
where the ten criterion set forth at 8 C.F.R. 5 204.5(h)(3) do not "readily apply." Neither prior counsel 
nor counsel has explained how the regulatory criteria do not apply. Rather, they both assert that he 
Page 7 
meets at least three of the criteria. Moreover, it is not clear that the evidence submitted is comparable 
to the objective evidence mandated under the ten criteria at 8 C.F.R. 5 204.5(h)(3). 
Subjective letters, while sincere, are not comparable to the objective evidentiary requirements set forth 
in the ten criteria at 8 C.F.R. fj 204.5(h)(3). Rather, expert letters are far more useful when they are 
well supported in the record and explain how the objective evidence of record serves to meet the 
regulatory criteria. Counsel's assertions on motion bear more discussion. 
asserts that the Romanian Shotokan team, numbering between 25 and 30, performed in a 
sold-out performance at the Sala Polivalenta in Bucharest. While the petitioner was a member of the 
team, there is no evidence that he was singled out in the promotional materials and served as the 
primary draw for the crowd. The regulatory criterion at 8 C.F.R. 5 204.5(h)(3)(x) relates to commercial 
success and requires evidence of box office receipts. The petitioner did not submit statistics from 
officials at the Sala Polivalenta confirming the box office receipts for this event. The record also lacks 
published material confirming the alleged record-breaking significance of this event. 
In light of the above, the petitioner has not demonstrated that the regulatory criteria are not readily 
applicable and the evidence submitted pursuant to 8 C.F.R. 5 204.5(h)(4) has not been demonstrated to 
be "comparable" to the objective evidence required under 8 C.F.R. 5 204.5(h)(3). 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased, standard. It must be noted that many 1-140 immigrant 
petitions are denied after CIS approves prior nonimmigrant petitions. See e.g. Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because CIS 
spends less time reviewing I- 129 nonimmigrant petitions than I- 140 immigrant petitions, some 
nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 
2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th 
Cir. 2004) (finding that prior approvals do not preclude USCIS from denying an extension of the 
original visa based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Page 8 
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 of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
karate competitor 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 
indicates that the petitioner shows talent as a karate competitor, but is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field. Therefore, the 
petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the 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.