dismissed EB-1A Case: Not Specified In Excerpt

· \ 
IdentifYing data deleted to 
prev~t clearly unWarranted 
lD'Y8SIon of ~naJ orivacy 
yUBUCCOP't 
FILE: 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
u.s. Citizenship and bnmigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: SEP! 8 2010 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(1)(A) ofthe 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 $585. 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, 
~
'MndL 
erryRhew 
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 seeks classification for the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(1 )(A) of the Immigration and Nationality Act (the Act), 8 US.c. § 1153(b )(1 )(A), as 
an alien of extraordinary ability. The director determined that the beneficiary had not established the 
requisite extraordinary ability through extensive documentation and sustained national or international 
acclaim. 
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.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement, 
specifically 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. § 204.5(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. 
On appeal, counsel argues that the beneficiary meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.5(h)(3) and that he submitted comparable evidence of his extraordinary 
ability. For the reasons discussed below, we uphold the director's decision. Specifically, the evidence, 
much of which relates to a different area of expertise, does not establish the beneficiary's sustained 
national or international acclaim in the field identified as the proposed area of employment listed on the 
petition. 
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 ofthe 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, 
Page 3 
(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 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 ofthe following ten categories of evidence. 
(i) Documentation of the alien's receipt oflesser 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; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the 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; 
-Page 4 
(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. March 4, 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." /d. 
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)." Id. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as the corollary to 
this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both 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," 
8 C.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.c. § 1153(b)(1)(A)(i). 
/d. at 1119 - 1120. 
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 reviewing Service Center decisions, the AAO will 
apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a 
new analysis if the director reached his or her conclusion by using a one-step analysis rather than the 
two-step analysis dictated by the Kazarian court. 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); see also Soltane v. 
! 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). 
-Page 5 
DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo 
basis). 
II. Analysis 
This petition, filed on July 1, 2008, seeks to classify the beneficiary as an alien with extraordinary 
ability as a media relations manager. 
The regulation at 8 C.F.R. § 204.5(h) requires the beneficiary to "continue work in the area of 
expertise." As the beneficiary intends to continue working as a media relations manager, he must 
demonstrate that this occupation is within his area of "expertise." The petitioner has not 
demonstrated that media relations manager is within the area of expertise of a competitive athlete. 
Thus, the beneficiary's athletic achievements are not relevant to this petition.2 
A. Major, internationally recognized award 
The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can establish sustained 
national or international acclaim through evidence of a one-time achievement, specifically a major, 
internationally recognized award. Given Congress' intent to restrict this category to "that small 
percentage of individuals who have risen to the very top of their field of endeavor," the regulation 
permitting eligibility based on a one-time achievement must be interpreted very narrowly, with only 
a small handful of awards qualifying as major, internationally recognized awards. See H.R. Rep. 
101-723, 59 (Sept. 19, 1990), reprinted in 1990 u.S.C.C.A.N. 6710, 1990 WL 200418 at *6739. 
The regulation is consistent with this legislative history, stating that a one-time achievement must be 
a major, internationally recognized award. 8 C.F.R. § 204.5(h)(3). The selection of Nobel Laureates, 
the example provided by Congress, is reported in the top media internationally regardless of the 
nationality of the awardees, is a familiar name to the public at large, and includes a large cash prize. 
While an internationally recognized award could conceivably constitute a one-time achievement 
without meeting all of those elements, it is clear from the example provided by Congress that the award 
must be internationally recognized in the alien's field as one of the top awards in that field. 
In her brief submitted with the 1-140 petition, counsel asserts that the beneficiary received the following 
international awards: 
Counsel submitted information about the beneficiary printed 
on July 21,2006, and what appears to be 
on July 21,2006, 
On August 4, 
2 See Lee v. IN.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002) (upholding a finding that competitive 
athletics and coaching are not within the same area of expertise). 
Page 6 
2010, the AAO attempted to view the infonnation submitted on the internet and could only access the 
infonnation printed from The AAO was able to confinn that the 
beneficiary received On appeal, counsel asserts 
that the beneficiary was the "recipient of countless major internatIOnally recognized awards throughout 
his career as a professional skateboarder.,,3 The assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503,506 (BIA 1980). The record of proceeding contains no evidence establishing that the X Games or 
ASA competitions are considered "major, internationally recognized awards." Further, the record 
contains no evidence that obtaining awards or prizes as an in-line skater is relevant to the beneficiary's 
proposed employment as a media relations manager. 
B. Evidentiary Criteria at 8 C.F.R. § 204.5(h)(3) 
The petitioner has submitted evidence pertaining to the following categories of evidence under 
8 C.F.R. § 204.5(h)(3).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 submitted evidence showing that he has achieved the following: 
As the petitioner did not establish that the beneficiary is the recipient of major, nationally or 
internationally recognized awards, the AAO will also consider the following awards under this 
criterion: 
3 There is no evidence in the record of proceeding that the beneficiary was a professional 
skateboarder, rather he previously competed in in-line skating competitions. 
4 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of 
evidence not discussed in this decision. 
Page 7 
Although the petitioner has submitted evidence that the beneficiary has received several awards, 
there is no evidence showing the level of recognition attributable to these achievements and 
therefore that they are nationally or internationally recognized. Significantly, in his request for 
evidence ("RFE") and in his decision, the director noted that the in-line skating awards received by 
the petitioner almost 10 years before filing the Form 1-140 are not in the beneficiary's field. Counsel 
did not address the director's concerns in her response to the director's RFE or on appeal. 
Accordingly, the petitioner has failed to establish that the beneficiary 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 of the material, and any necessary 
translation. 
In order for published material to meet this criterion, it must be about the beneficiary and, as stated in 
the regulation, be printed in professional or major trade pUblications or other major media. To qualify 
as other major media, the publication should have significant national or international distribution. 
Some newspapers, such as the New York Times, nominally serve a particular locality but would qualify 
as major media because of significant national distribution, unlike small local community papers.5 
In her brief dated June 26, 2008, counsel referenced the following articles as being relevant to this 
criterion: 
The record of 
published in the The article mentions the beneficiary 
and it includes a one-sentence quote from the beneficiary regarding the role of an athlete­
management agency. While the beneficiary is mentioned in the article, the article is not about the 
beneficiary but rather about extreme sports. 
The record of proceeding contains a photocopy of an article entitled 
_ published in _ on November 1, 2000. The AAO notes that the date of the article 
was handwritten on the face of the article. Also, the last line of the article has been cutoff making it 
impossible to determine if the record contains the entire article. Therefore, because it is unclear as to 
whether or not the file contains the entire article, the AAO is unable to determine if the article is 
5 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. 
Page 8 
about the beneficiary or about warning children about the dangers of tobacco use. Even if the article 
is primarily about the beneficiary, it does not relate to his work in the field for which classification is 
sought, media relations manager, as required under 8 C.F.R. § 204.5(h)(3)(iii). 
The record of proceeding contains an article entitled 
beneficiary article is about the beneficiary, 
the record of proceeding contains no evidence, such as circulation statistics, indicating that the 
_ qualifies as a form of major media. Moreover, it does not relate to the field for which 
classification is sought. 
article mentions the contains no as 
statistics, indicating that the qualifies as a form of major media. 
the beneficiary is mentioned III IS not about the beneficiary but rather about the 
modem Australian man. Again, the AAO notes that the record does not contain the entire article. 
Moreover, it does not relate to the field for which classification is sought. 
In addition, the record contains copies of the following: 
We note that the 12 articles above come from websites. In today's world, many news articles and 
printed materials, regardless of size and distribution, are posted on the Internet. To ignore this 
reality would be to render the "major media" requirement meaningless. We are not persuaded that 
international accessibility via the Internet by itself is a realistic indicator of whether a given 
publication is a professional or major trade publication or other "major media." The petitioner must 
still provide evidence, such as, a widespread distribution, readership, or overall interest in the 
publication in order to demonstrate that the publication is a professional or major trade publication 
or other major media in order for us to credit these articles. 
With the exception of the member profile interview on _ website, the articles only briefly 
mention the beneficiary and are instead articles about extreme sports. The plain language of this 
regulatory criterion, however, requires "[p ] ubli shed material about the alien." Accordingly, articles that 
are not about the beneficiary do not meet this regulatory criterion.6 In addition, the record contains 
several articles in which the authors are not identified as required by the plain language of this 
regulatory criterion. Again, such articles do not meet the regulatory criterion. 
Counsel also referenced the beneficiary's work as a host and reporter in the following as being 
relevant to this criterion: 
The beneficiary'S work as a host and reporter is not published material about the beneficiary and will 
be addressed under a separate criterion. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
On appeal, counsel states that the record contains evidence of the beneficiary's "original 
contributions of major significance to the field of extreme sports." In her response to the director's 
request for evidence ("RFE"), counsel stated that the beneficiary "has served as a pioneer for the 
world of extreme sports for well over 15 years, not only as an athlete but as a media relations 
genius." Counsel also states that the beneficiary's work "securing feature stories" and media 
coverage has helped to "propel the companies and athletes he represents into the mainstream." 
Although counsel states that the beneficiary has made original contributions of major significance to 
extreme sports, counsel statements are general and she does not provide examples of the 
beneficiary's original contributions. The plain language of this regulatory criterion, however, requires 
"original" contributions of "major significance." The assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. at 534; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
The petitioner submitted several letters of support praising the beneficiary's talent as an athlete and 
media relations manager. We cite representative examples below noting, however, that talent and the 
ability to secure employment in one's field are not necessarily indicative of contributions of major 
significance. 
6 See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 7 (D. Nev. Sept. 8, 2008) 
(upholding a finding that articles about a show are not about the actor). 
Page 10 
The record contains a letter from the petitioner's director of communications stating: 
[The beneficiary] demonstrates a level of accomplishment in his field that places him among 
the most renowned athletes and sports media representatives in the world. He has sustained 
an international reputation over a 16-year period, based on his work history with the most 
renowned sports organizations. He has distinguished himself from his contemporaries on a 
global level due to his original contributions to the field. 
also contains a letter from 
stating that the beneficiary "has made a significant impact on the whole 
action sports industry" and that the beneficiary'S "skills are unparalleled and especially exemplified 
in his over 16 years of experience as a participant and host in international extreme sports 
competitions. " 
states: 
[The beneficiary] has been a crucial figure in the action sports industry. He holds over 16 
years of experience as a participant and host in international action sports and is a veteran 
and industry leader. His experience with the media and intimate knowledge of how this 
business works is why he is one of the only people I trust to represent me within the media. 
<>nrh"l"r\1"p at the end of the letter 
While experience is evidence of exceptional ability in a lesser category under section 203(b )(2), 8 
C.P.R. § 204.5(k)(3)(ii)(B), however the beneficiary's experience is not relevant under 8 c.P.R. 
§ 204.5(h)(3)(v). 
The record also contains a letter from 
Throughout my career I have had the opportunity of working with the most renowned 
athletes, sports media representatives, and action sports commentators and I can undoubtedly 
state that [the beneficiary] is among the best in the world. He is a superb spokesperson who 
is well[ -]respected and highly admired in the action sports industry. His impressive talent has 
resulted in his receipt of numerous prestigious awards as well as his assignment to work as 
commentator for renowned organizations such as and __ . 
[The beneficiary's] international reputation as an extraordinarily talented action sports 
athlete, media representative and commentator, his in-depth understanding and experience 
within the field and his cutting edge approach to the job all make him critical to the world of 
sports. 
Page 11 
The record also contains a letter from a long snapper for the 
stating that the beneficiary is one of the "few athlete/media professionals whose celebrity status as 
an athlete, combined with his extensive knowledge of extreme sports, makes him one of the most 
sought after media spokespersons in the industry of extreme sports competition." 
The record also contains a letter from counsel for Cen~ 
Limited and previously the general manager __ 
states that the beneficiary "has made extreme sports and sports media representation his life's work 
and has only begun to bring his passion and knowledge of the skill [sic] to the American sports 
industry." 
The record contains a letter letterhead stating: 
[The beneficiary] has an extraordinary mind for this line of work, and has been instrumental 
in amplifying the media coverage for [the petitioner's] athletes (and, hence, for the X Games 
as well.) One demonstration of his ingenuity was that he was responsible for setting up a 
studio specifically for interviewing [the petitioner's] athletes at the Winter X Games. This 
encouraged media outlets to increase the amount of time they gave to the X Games, and 
substantially increased our media He also managed to convince NBC to air an 
interview with sponsored athlete who has won six gold 
medals in the competitions. This coverage by a major 
network was a terrific boom for the X Game's media exposure. 
The record also contains a letter from 
Magazine, stating: 
chief editor of 
[The beneficiary] is recognized in the field as an extreme sports media relations guru, and his 
contributions to the field are unparalleled. This is precisely why his talent is sought after by 
individuals such as myself, seeking to gain media exposure and collaborate on projects that 
will continue to bring worldwide attention to the extreme sports field. 
The record also contains a letter from a professional snowborder and winner of a Gold 
medal at the 
[The beneficiary] succeeded in making [the petitioner] one of the most prominent 
sponsorship organizations in extreme sports. He was respo:nSlOle 
for numerous [petitioner-sponsored] athletes in 
and a barrage of other preeminent extreme sports publications. He also made a dramatic 
impact on the amount of athletes received in mainstream 
media outlets, such as _, and _ 
Exposure of [the petitioner-sponsored] athletes on _ also increased dramatically, 
thanks to [the beneficiary]. 
Page 12 
_ adds that he and other athletes are able to concentrate on "honing [ their] athletic abilities" 
while relying on the beneficiary's "amazing media savvy to keep [them] in the public's eye." 
The record contains a letter from vice president of programming and development 
for Fuel TV, stating that the beneficiary's "initiative and perseverance" resulted in Fuel TV creating 
two shows focusing on [the petitioner-sponsored] athletes." that the beneficiary is 
"heads-and-shoulders above nearly everyone in his field." adds that the beneficiary's 
work has made the petitioner "one of the most sought[ -] after sponsors in the world of extreme 
sports" and the beneficiary's "vision has been a marvelous asset to this rapidly expanding area of 
sports." 
The record contains a letter from 
professional athlete, stating: 
an award-winning freestyle motocross 
I worked directly with [the beneficiary] in 200712008 in order to obtain worldwide media 
attention for my world[-] . Year's Eve at the_in Las Vegas. 
This event served as the first where the world's best athletes are given 
the opportunity to push the boundaries of what might be humanly possible and push the 
progression of their sport to unfathomable levels. This even went live on ESPN and was 
picked up by media globally. It was a huge success in all respects and in particular because 
of the media coverage that it garnered. lowe this achievement to [the beneficiary]. Through 
his media expertise, he ensured that all potential avenues for event exposure were secured 
and the media exposure was such that it carried over to my next world record event in 2009, 
where I jumped onto and off the 
The record also contains a letter from 
for Source Interlink Media. states that the beneficiary is responsible for a successful 
partnership between his company and the petitioner. The petitioner sponsors a dozen sporting events 
hosted by ASG. According to_ this partnership has "directly led to a dramatic increase in 
exposure for the [petitioner-sponsored] athletes." 
The record also contains a letter from vice president of VBS.tv, stating that the 
beneficiary is "in great part responsible for one of our most successful shows in 2008, _ 
_ which followed surfers competing for the This show ~ately 
3 million viewers, and has been picked up by" for a new season in 2009." _tates 
that the beneficiary will continue to represent the petitioner as a co-producer. 
The preceding letters describe the beneficiary as a dedicated and talented media relations manager 
who has represented athletes and sponsors, but they do not specify exactly what his original 
contributions have been, nor is there an explanation indicating how any such contributions were of 
major significance in his field. It is not enough to be talented and to have others attest to that talent. 
An alien must have demonstrably impacted his field in order to meet this regulatory criterion. 
According to the regulation at 8 C.F.R. § 204.S(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not 
Page 13 
superfluous and, thus, that it has some meaning. Moreover, the petitioner must demonstrate the 
beneficiary's contribution in the field rather than simply to an employer or client. While the 
petitioner has earned the admiration of those offering letters of support, there is no evidence 
demonstrating that he has made original contributions of major significance in the field. For 
example, the record does not indicate the extent of the petitioner's influence on media relations nor 
does it show that the field has somehow changed as a result of his work. Talent and success as a 
media relations manager, however, are not necessarily indicative of original contributions of major 
significance in the field. The record lacks evidence showing that the beneficiary has made original 
contributions that have significantly influenced or impacted his field. 
The opinions of experts in the field are not without weight and have been considered above. 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, as we have done above, evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795; 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"). 
USCIS may even give less weight to an opinion that is not corroborated, in accord with other 
information or is in any way questionable. Id. at 795; see also 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. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of widespread recognition and vague 
claims of contributions without specifically identifying contributions and providing specific 
examples of how those contributions have influenced the field. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. 7 The petitioner also failed to 
submit corroborating evidence in existence prior to the preparation of the petition, which could have 
bolstered the weight of the reference letters. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien IS authorship of scholarly articles in the field, in professional or 
major trade publications or other major media 
In her brief on appeal and in further detail in her response to the director's RFE, counsel listed a 
number of articles and media coverage "generated" by the beneficiary in his role as a media relations 
manager. In order to meet the plain language requirements of this criterion, the beneficiary must be 
the author of the articles. The beneficiary'S ability to "generate" interest from a publication to 
7 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. 
Cir. 1990); Aryr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS 
need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United 
States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Page 14 
interview and write an article on an athlete is not sufficient to meet this criterion. Further, the plain 
language also requires that the article be "scholarly." The record contains no evidence that the 
articles listed are considered "scholarly" such that they appear in scholarly publications, are aimed at 
scholars, or have garnered attention from scholars. 
The record contains one article written by the beneficiary entitled 
published on The record contains no evidence that this 
website is a form of "major media" or that the article submitted is "scholarly" in nature as required 
by the plain language of this regulatory criterion. Further, even if this article were sufficient, the 
regulation requires more than one article. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
On appeal, counsel states that the beneficiary has performed in a critical role for organizations that have 
distinguished reputations. In her brief dated June 26, 2008, counsel lists the following organizations 
and positions: 
Page 15 
At issue for this criterion, according to the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii), is the nature ofthe role the petitioner was hired to fill and the reputation ofthe entity 
that hired him. 
The list of positions above appears to focus on individual projects and the beneficiary's title for each 
project. This list does not provide detailed information regarding the beneficiary's role in each 
project, the dates that the beneficiary worked on these projects, or how such work is "leading" or 
"critical" for such companies as _, _ or _ The beneficiary's ability to secure 
employment and contribute to the overall content of a television show, film, or magazine article does 
not equate to a leading or critical role for the show, film, the production company, or the magazine. 
Further, the beneficiary has not established how his position fits within the overall hierarchy such 
that his role could considered "leading or critical role." 
The record of proceeding also contains reference letters addressing the beneficiary's role for 
different organizations. In his letter, states that the beneficiary was "involved with 
_ in many key capacities ever since the inaugural_in 1995." states that 
the beneficiary was an expert judge and became a part of a "commentary team." 
not explain how the beneficiary's roles as expert judge and member of a commentary team were 
leading or critical for_ or how those roles fit within the overall hierarchy of the organization. 
In his letter, _ states: 
[The beneficiary] was an integral part of the strategic team at _. He was involved 
in the strategic building of athlete careers from revenue generation to image building via 
extensive PR and communications. At he built and maintained relationships 
with athlete clients and developed key contacts with major industry leaders and mainstream 
global media. [The beneficiary] was also the crucial driver of revenue generating, specialist 
niche action sports events. His role included conceiving event ideas, gaining sponsorship, 
booking world recognized athletes and securing media partnerships and exposure. In his role 
he built and maintained strategic relationships with key industry stakeholders, city counsels, 
media and sponsors as well as executing entertaining events. 
Although the letter provides the beneficiary's duties while at does not 
explain how this role fit within the overall hierarchy of the organization or how many other people 
performed the same duties as the beneficiary. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field 
In his decision, the director noted that the record contains evidence of the beneficiary's salary. 
However, there is no evidence in the record indicating that the beneficiary's pay is high in relation to 
others in his field. Counsel did not address this criterion on appeal. 
Page 16 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
In this case, we concur with the director's determination that the petitioner has failed to demonstrate 
his receipt of a major, internationally recognized award specifically in his current field, or that he 
meets at least three of the ten categories of evidence specifically in his current field that must be 
satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. § 204.5(h)(3). 
C. Comparable Evidence Under 8 C.F.R. § 204.5(h)(4) 
On appeal, counsel states that the previously discussed letters and the media coverage generated by 
the beneficiary are also comparable evidence. Counsel states that the media coverage generated by 
the beneficiary is comparable evidence of the beneficiary's "critical roles for some of the most 
prominent figures in the industry." The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. at 534; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. The regulation at 
8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" only if the above 
standards "do not readily apply to the beneficiary's occupation." The regulatory language precludes 
the consideration of comparable evidence in this case, as there is no evidence that eligibility for visa 
preference in the petitioner's occupation cannot be established by the standards specified by the 
regulation at 8 C.F.R. § 204.5(h)(3). In fact, counsel's submissions specifically address 8 C.F.R. § § 
204.5(h)(3)(i), (iii), (v), (vi), (vii), and (ix). Where an alien is simply unable to meet three of the 
regulatory criteria at 8 C.F.R. § 204.5(h)(3), the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(4) does not allow for the submission of comparable evidence. 
Nevertheless, there is no evidence showing that the documentation the petitioner requests evaluation 
of as comparable evidence constitutes achievements and recognition consistent with sustained national 
or international acclaim at the very top of his field. We note that the beneficiary's letters of support 
have already been addressed under the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(v). While reference 
letters can provide useful information about an alien's qualifications or help in assigning weight to certain 
evidence, such letters are not comparable to extensive evidence of the alien's 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" of sustained national or international acclaim. See section 203 (b) (1 )(A)(i) of the Act, 
8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). The commentary for the proposed regulations 
implementing the statute provides 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). 
Primary evidence of achievements and recognition is of far greater probative value than opinion 
statements from individuals selected by the beneficiary. 
D. Final Merits Determination 
Page 17 
In accordance with the Kazarian opinion, we must next conduct 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," 8 C.F.R. § 204.5(h)(2); 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." See section 203(b)(1)(A)(i) of the Act, 8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. 
§ 204.5(h)(3). See also Kazarian, 596 F.3d 1115 at 1119 - 1120. The petitioner failed to establish 
eligibility for any of the criteria under the regulation at 8 C.F.R. § 204.5(h)(3), let alone the regulatory 
requirement of three. In this case, many of the deficiencies in the documentation submitted by the 
petitioner have already been addressed in our preceding discussion of the regulatory criteria at 
8 C.F.R. § 204.5(h)(3). Regardless, we will highlight some of the petitioner's claims of eligibility as 
they pertain to a final merits determination. 
With regard to the evidence submitted for the prizes and awards criterion at 8 C.F.R. § 204.5(h)(3)(i), 
most of the awards listed in the record were won more than 10 years before the petitioner filed the 
Form 1-140 on behalf of the beneficiary. Moreover, the awards were for the beneficiary's athletic 
ability and not for his abilities as a media relations manager. 
In addition, even though the petitioner failed to demonstrate eligibility for the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii), we also cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of sustained national or international acclaim. See section 203(b)(I)(A) of the Act. 
The commentary for the proposed regulations implementing section 203 (b)(1 )(A)(i) of the Act 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). Even if we would find that the four 
print articles met the plain language of the regulation, we do not find that four articles, one of which 
was published more than a decade prior to filing and another whose date is handwritten on the article 
itself, are sufficient to establish the sustained national or international acclaim as a media relations 
manager. The remaining materials appear on self-promotional websites of undocumented 
significance. 
Further, the petitioner claims eligibility for the regulation at 8 C.F.R. § 204.5(h)(3)(v) based entirely 
on recommendation letters, which are not sufficient to meet this highly restrictive classification. We 
note that the letters were all from individuals who have worked or interacted with the petitioner. 
While such letters can provide important details about the petitioner's role in various projects, they 
cannot form the cornerstone of a successful extraordinary ability claim. Vague, solicited letters from 
local colleagues or letters that do not specifically identify contributions or how those contributions 
have influenced the field are insufficient. The statutory requirement that an alien have "sustained 
national or international acclaim" necessitates evidence of recognition beyond the alien's immediate 
acquaintances. See section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(I)(A)(i), and 8 C.F.R. 
§ 204.5(h)(3). Further, USCIS may, in its discretion, use as advisory opinion statements as expert 
testimony. See Matter of Caron International, 19 I&N Dec. at 795. However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
!d. The submission of letters of support from the petitioner's personal contacts in not presumptive 
-Page 18 
evidence of eligibility; USC1S may evaluate the content of those letters as to whether they support the 
alien's eligibility. See id. at 795. Thus, the content of the writers' statements and how they became 
aware of the petitioner's reputation are important considerations. 
Finally, the petitioner has not established the requirements of 8 C.F.R. § 204.5(h)(3)(viii). The record 
of proceeding contains no document explaining the beneficiary's position within the hierarchy of the 
various organizations listed. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof.8 The AAO notes that while the letter written 
provided a description of the beneficiary's role and duties while working for 
provide sufficient information regarding the extent that the beneficiary's ro to 
_ Even if we would find that the beneficiary performed a critical role for 
petitioner has not established that _ has a distinguished reputation when compared to others 
in its industry. 
The conclusion we reach by considering the evidence to meet each criterion at 8 C.F.R. 
§ 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. Even in the 
aggregate, the evidence does not distinguish the petitioner as one of the small percentage who has 
risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). 
E. Prior 0-1 Nonimmigrant Visa Status 
While U.S. Citizenship and Immigration Services (USC1S) approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the beneficiary, the prior approval does not preclude USC1S 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 USC1S 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. Sava, 724 F. Supp. 11 03 
(E.D.N.Y. 1989). Because USC1S spends less time reviewing 1-129 nonimmigrant petitions than 1-
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 USC1S 
from denying an extension of the original visa based on a reassessment of beneficiary's 
qualifications ). 
Moreover, if the previous nonimmigrant petition was approved based on the same unsupported 
assertions that are contained in the current record, the approval would constitute material and gross error 
on the part of the director. Due to the lack of required initial evidence in the present record, the AAO 
finds that the director was justified in departing from the previous nonimmigrant approval by denying 
the present immigrant visa petition. 
8 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, affd, 905 F. 2d 41; Aryr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5. Similarly, USC1S need not accept primarily conclusory 
assertions. J 756, Inc. v. The Attorney General of the United States, 745 F. Supp. at 15. 
.. 
-Page 19 
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.), affd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
IV. Conclusion 
Review of the record does not establish that the beneficiary 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 
beneficiary's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, 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 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.