dismissed EB-1A Case: Physical Education

U.S. Citizenship 
and Immigration 
Services 
In Re: 18389347 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 22, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a physical education specialist, seeks classification as an individual of extraordinary 
ability . See Immigration and Nationality Act (the Act) section203(b)(l)(A), 8 U.S.C. § l 153(b)(lXA). 
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 although the Petitioner 
satisfied at least three of the initial evidentiary criteria, as required , the Petitioner did not establish his 
sustained national or international acclaim and demonstrate that he is among that small percentage at 
the very top of the field of endeavor. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes visas available to immigrants 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 sustained 
acclaim and the 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 
categories 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 
A. Evidentiary Criteria 
Because the Petitioner has not claimed 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 Director determined that the Petitioner met three of the claimed 
evidentiary criteria relating to judging at 8 C.F.R. § 204.5(h)(3)(iv), scholarly articles at 8 C.F.R. 
§ 204.5(h)(3)(vi), and leading or critical role at 8 C.F.R. § 204.5(h)(3)(viii). However, the Director 
concluded that the Petitioner did not show that he garnered sustained national or international acclaim 
and that his achievements have been recognized in the field of expertise, demonstrating that he is one 
of that small percentage who has risen to the very top of the field. On appeal, we will review the 
totality of the evidence in the context of the final merits determination below. 1 
B. Final Merits Determination 
As the Petitioner submitted the requisite initial evidence, we will evaluate whether the Petitioner has 
demonstrated, by a preponderance of the evidence, his sustained national or international acclaim, 2 
that he is one of the small percentage at the very top of the field of endeavor, and that his achievements 
have been recognized in the field through extensive documentation. In a final merits determination, 
we analyze a petitioner's accomplishments and weigh the totality of the evidence to detem1ine if his 
successes are sufficient to demonstrate that he has extraordinary ability in the field of endeavor. See 
section 203(b )(1 )(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-
20. We note that in conducting the final merits determination, the Director focused only on evidence 
related to those criteria which he had found that the Petitioner met. USCIS policy states that all 
1 See 6 USCIS Policy Manual F.2, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2 (providing that 
objectively meeting the regulatory criteria in part one alone does not establish that an individual meets the requirements 
for classification as an individual of extraordinary ability undersection203(b)(l )(A) of the Act). 
2 Id. (stating that such acclaim must be maintained and providing Black's Law Dictionmy 's definition of"sustain" as to 
support or maintain, especially over a long period of time, and to persist in making an effort over a long period of time). 
2 
evidence in the record be considered under the final merits determination, independent of the 
evidentiary criteria analysis performed previously. 3 Accordingly, we have analyzed the record in its 
entirety, which includes other relevant evidence such as the Petitioner's membership in professional 
associations, original contributions of major significance, and high salary. In this matter, we determine 
that the Petitioner has not shown his eligibility. 
The record reflects that the Petitioner received a bachelor's degree in physical education from the 
_______________ · 89, a specialization in exercise physiology from the 
in 1991, and a master's degree in collective health 
from __ in 2003. He has been employed by lsince 1987, most recently as coordinator 
of the exercise physiology laboratory of its pulmonary rehabilitation center since 2005. As indicated 
above, the Director determined that the Petitioner reviewed several papers, authored some scholarly 
material, and serves in a critical position for the Petitioner. However, the record does not demonstrate 
that the Petitioner enjoys a "career of acclaimed work in the field" as contemplated by Congress. HR 
Rep. No. 101-723, 59 (Sept. 19, 1990). 
Relating to the Petitioner's service as a judge of the work of others, an evaluation of the significance 
of his experience is appropriate to determine if such evidence indicates the required extraordinary 
ability for this highly restrictive classification. See Kazarian, 596 F. 3d at 1121-22. 4 The record 
reflects that the Petitioner's judging events included serving as an evaluator on the examination board 
for final papers related to physical education atl in November 2014; 
participating gas a member of the examining board for final works in the specialization course in family 
health at __ in May, July, and September 2015; and performing as an evaluator of student 
works in physical education during Physical Education Week at in November 
201 7. However , the Petitioner did not establish that these instances place him among the small 
percentage at the very top of his field. See 8 C.F.R. § 204.5(h)(2). The Petitioner did not show, for 
example, how his review experience compares to others at the very top of the field. 
In addition, the Petitioner did not demonstrate that these judging events, occurring approximately 
within four years from the filing of the petition in September 2018, contribute to a finding that he has 
a career of acclaimed work in the field or are indicative of the required sustained national or 
international acclaim. See H.R. Rep. No. at 59 and section 203(b )(l)(A) of the Act. The Petitioner 
did not establish, for instance, that he garnered wide attention from the field based on his review work. 
Moreover, participating in the peer review process does not automatically demonstrate that an 
individual has extraordinary ability and sustained national or international acclaim at the very top of 
his field . Without evidence that sets him apart from others in his field, such as evidence that he has a 
consistent history of completing a substantial number of review requests relative to others, served in 
editorial positions for distinguished journals or publications, or chaired technical committees for 
reputable conferences, the Petitioner has not shown that his peer review experience places him among 
that small percentage who has risen to the very top of the field of endeavor. See 8 C.F.R. § 204.5(h)(2). 
3 See 6 USCIS Policy Manual,supra, atF.2 (stating that USCIS officers should then evaluate the evidence together when 
considering the petition in its entirety to determine if the petitioner has established by a preponderance of the evidence the 
required high level of expertise of the immigrant classification). 
4 See also Id. (statingthatan individual's participation should be evaluated to detetminewhether it was indicative ofbeing 
one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or 
international acclaim). 
3 
Likewise, authorship and publication do notautomaticallyplace one atthe top of the field. 5 The record 
reflects that the Petitioner's article, was published by 
I 7 in 2003. The Petitioner also emphasizes that he has presented his research at national and 
international conferences. The record shows his three articles, 
I I" 
and 
were presented at 
l the 2016 International Convention on Science, Education, and Medicine in Sport 
(ICSEMIS), and the 40th International Symposium on Sports Sciences (2017), 6 respectively. The 
record does not show that conference presentation is a privilege reserved for those at the very top of 
the field. In addition, the Petitioner did not demonstrate that his publication record of four documents 
in a fifteen-year timeframe is consistent with having a career of acclaimed work and sustaining 
national or international acclaim. See H.R. Rep. No. at 59 and section 203(b)(l)(A) of the Act. 7 The 
commentary for the proposed regulations implementing section 203(b )(1 )(A)(i) of the Act 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" forlesserclassifications. 56 Fed. Reg. 30703, 30704(July 5, 1991). Here, the Petitioner 
did not establish that his authorships reflect being among the small percentage at the very top of his 
field. See 8 C.F.R. § 204.5(h)(2). The Petitioner, for instance, did not show the significance of his 
authorships or how his publications compare to others who are viewed to be at the very top of the 
field. 
Moreover, the citation history or other evidence of the influence of his written works can be an 
indicator to determine the impact and recognition that his publications have had on the field and 
whether such influence has been sustained. For example, numerous independent citations for an article 
authored by the Petitioner may provide solid evidence that his works have been recognized and that 
other researchers have been influenced by his work. Such an analysis at the final merits determination 
stage is appropriate pursuant to Kazarian, 596 F. 3d at 1122. Here, the Petitioner did not show that 
his written or presented material garnered him any national or international acclaim. See section 
203 (b )( 1 )(A) of the Act. The Petitioner did not submit corroborating citatory documentation or other 
evidence consistent with a very high standard requiring the petitioner to present more extensive 
documentation than that required for lesser classifications. See 56 Fed. Reg. at 30704. 
As it relates to the Petitioner's service in a leading or critical role, as mentioned above, the Petitioner 
has been employed by las coordinator of its exercise physiology laboratory since 2005. He 
5 See 6 USCJS Policy Manual , supra, at F.2 (stating that publications should be evaluated to determinewhethertheywere 
indicativeofbeingone of that small percentage who has risen to the very topofthe field ofendeavorandenjoyingsustained 
national or international acclaim). 
6 The record shows that theannuallntemational Symposium on Sports Sciences is organized by th 
1 l 
7 The record contains two additional articles andonee-bookindicatingthePetitioner's authorship. The Petitioner 's 2019 
article in the International Journal o Cardiovascular Sciences, 2022 article in thelnternational Journal of Health Science, 
and e-book __________ __,publish ed in 2019 were after the date when the petition was filed in 
September 2018 . The Petitioner must establish that a 11 eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication . 8 C.F.R. § 103.2(b )(1 ). Accordingly, we will 
not consider this evidence. 
4 
also has served as First Secretary of the since 2016. 
The Petitioner provided letters of recommendation from several colleagues that summarized his work 
withl _ and I 8 8 However, the Petitioner did not establish that his role with either 
organization resulted in attention or recognition from the field, reflecting a career of acclaimed work 
in the field or a very high standard to present more extensive documentation than that required. See 
H.R. Rep. No . 101-723 at 59 and 56 Fed. Reg. at 30704. For instanceJ I 
head of the pulmonary rehabilitation center at I highlights the Petitioner's development of a 
year-long, weekly improvement course for municipal physical education teachers, and asserts that the 
Petitioner's contributions have "permanently improved the Pulmonary Rehabilitation Center." In 
addition, 0 Second Secretary of I I confirms the 
Petitioner's role as First Treasurer ofl I since 2016, provides that he is responsible for the 
organization's financial department and "treasury file," and asserts that he has "contributed in a way 
that is of significant importance to the outcome" of I 
Although the above letters describe the Petitioner's duties and highlight several of his contributions, 
they do not discuss whether any of his professional achievements with those organizations garnered 
him any national or international acclaim. See section 203(b )(l)(A) of the Act. Further, the letters do 
not show the Petitioner's recognition on a national or international scale, consistent with being among 
that small percentage at the very top of the field. See 8 C.F.R.§ 204.5(h)(2). Here, the Petitioner did 
not establish how his roles resulted in widespread acclaim from his field, that he drew significant 
attention from the greater field, or that overall field considers him to be at the very top of the field of 
endeavor. See 8 C.F.R. § 204.5(h)(2) and 56 Fed. Reg. at 30704. Moreover, s letter does 
not explain or justify how the Petitioner's position with I I has resulted in his having, as he 
asserts, "sustained national acclaim and his achievements have been recognized in the field through 
extensive documentation ." Repeating the language of the statute or regulations does not satisfy the 
Petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
ajj'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
Beyond the three criteria thatthe Petitioner has satisfied, we have considered additional documentation 
in the record in order to determine whether the totality of the evidence demonstrates eligibility. For 
the reasons discussed below, the evidence does not establish that the Petitioner has sustained national 
or international acclaim and is among the small percentage of the top of his field. 
As it relates to his membership in associations in the field, on appeal the Petitioner highlights his 
memberships in the IParalympic Academy, the board of directors of and the local 
organizing committee of ICSEMIS 2016 . The Petitioner has not demonstrated how membership in 
those organizations reflects or results in national or international acclaim or is indicative of his 
placement among the small percentage of scientific researchers who have risen to the top of the field. 
Without this evidence, the Petitioner has not demonstrated that being a member of these associations 
reflects a level of sustained national or international acclaim necessary for this highly restrictive 
classification . See section 203 (b )( 1 )(A) of the Act. 
8 Although we do not discuss every letter submitted , we have reviewed and considered each one. 
5 
As it relates to his original contributions, the record contains several reference letters that briefly 
describe the Petitioner's past research projects but do not elaborate and explain any attention that he 
received from the field based on his written work and research. 9 For example, in two lettersJ I 
the Petitioner's co-author at and doctoral student discusses the ----------research methods and findin s of their article titled ' 
_____________________ ," which he characterizes as "an original 
contribution of major significance" in the field. He broadly claims that "other individuals of great 
renown in our areas of expertise have been utilizing the techniques and methodolo ies developed by 
[the Petitioner]." Similarly, in his above refer enced letter, claims that the 
Petitioner's article titled ' "was 
at congresses and "had an incredible impact," and the Petiitioner 's 
master's thesis advisor asserts that the Petitioner's stud titled " 
' had "such great 
impact" that it was presented at "one of the most important" conferences in the field, the 2017 
I I conference. 10 Although the letters of I andl I reflect 
the originality of the Petitioner's work and that it has received some attention, the Petitioner did not 
demonstrate that he has garnered recognition on a national or international scale, consistent with being 
among the small percentage at the very top of the field of endeavor. See 8 C.F.R. § 204.5(h)(2). 
Moreover, the letters did not provide specific information, such as identifying the authors, papers, and 
publications that cited to the Petitioner's written or presented research, or the number of citations to 
the Petitioner's published work, and explain how those citations sufficiently demonstrate a level of 
interest in the field commensurate with sustained national or international acclaim or represent 
attention at a level consistent with being among small percentage at the very top of his field. See 
section 203(b )(1 )(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
Moreover, ________________ the vice-dean of thel I extension 
program, states that the physical education extension courses taught by the Petitioner in the city of 
I lwere a significant contribution to the general population "who benefitted from more 
trained and ualified professionals."! I worked with the Petitioner in 
the program, a government program initiated in 2013 to address the shortage of doctors 
in _ by expediting the provision of training and certification to foreign doctors. He provides that 
the Petitioner was a supervisor in the program, monitoring the progress of doctors enrolled in a 
residency program in General Family and Community Medicine atthel !medical school, and 
claims that without the Petitioner's "original contribution of major significance .... the ability to hire 
foreign physicians in I would have suffered a considerable e delay , ." However, these letters do 
not explain how the Petitioner's teaching duties with the_ I extension program or his 
supervisory activities with the I I program support the assertion that he is considered 
________________________________ published in the 
International Journal of Cardiovascular Sciences, "provoked widespread public commentmy." However, this article was 
published after the date when the petition was filed in September 2018. As noted, the Petitioner must establish that all 
eligibility requirements for the immigration benefit have been satisfied from the time of the filing and continuing th rough 
adjudication. 8 C.F.R. § 103 .2(b)(l ). We, therefore , will not consider this evidence . 
6 
among that small percentage at the very top of his field of endeavor or that he has garnered sustained 
national or international acclaim. 11 
Finally, although the record reflects the Petitioner's income with I I the record does not 
establish that he commands earnings commensurate with sustained national or international acclaim. 
See section 203(b )(l)(A) of the Act. The Petitioner did not show that his wages are tantamount to an 
individual who is among that small percentage at the very top of the field of endeavor. See 8 C.F.R 
§ 204.5(h)(2). For example, the Petitioner did not demonstrate how his salary compared to others at 
the very top of his field, or that he received notoriety or attention based on his earnings separating him 
from others in the field or placing him in the upper echelon. 
The record as a whole, including the evidence discussed above, does not establish the Petitioner's 
eligibility for the benefit sought. Here, the Petitioner seeks a highly restrictive visa classification, 
intended for individuals already at the top of their respective fields, rather than those progressing 
toward the top. See Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994)(concludingthat 
even major league level athletes do not automatically meet the statutory standards for classification as 
an individual of "extraordinary ability"); Visinscaia, 4 F. Supp. 3d at 131 (internal quotation marks 
omitted) (finding that the extraordinary ability designation is "extremely restrictive by design"); 
Hamalv. Dep 'tofHomeland Sec. (Hamalll), No.19-cv-2534,2021 WL2338316, at *5 (D.D.C. June 
8, 2021) ( determining that EB-1 visas are "reserved for a very small percentage of prospective 
immigrants"). See also Hamal v. Dep 't of Homeland Sec. (Hamal I), No. 19-cv-2534, 2020 WL 
2934954, at* 1 (D.D.C. June 3, 2020) (citing Kazarian, 596 at 1122 (upholding denial of petition of a 
published theoretical physicist specializing in non-Einsteinian theories of gravitation) (stating that 
"[c ]ourts have found that even highly accomplished individuals fail to win this designation")); Lee v. 
Ziglar, 237 F. Supp. 2d 914, 918 (N.D. Ill. 2002) (finding that "arguably one of the most famous 
baseball players in Korean history" did not qualify for visa as a baseball coach). While the Petitioner 
need not establish that there is no one more accomplished to qualify for the classification sought, the 
record is insufficient to demonstrate that the Petitioner has sustained national or international acclaim 
and is among the small percentage at the top of his field. See section 203(b )(1 )(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(2). 
III. CONCLUSION 
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, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
11 Further althou h the Petitioner hi hlights his purported participation as thecoordinatorforthe 2018 seminar 
the documentation submitted from that seminar reflects that the coordinator was 
and does not indicate the Petitioner's participation. 
7