dismissed EB-1A Case: Swimming

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
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U.S. Citizenship 
and Immigration 
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FILE: Office: TEXAS SERVICE CENTER Date: 2 2 7flflC~ 
SRC 07 185 51638 
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. 5 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. 9 103.5(a)(l)(i). 
A/c & 2(sdifldci 
John F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability in 
athletics. The director determined that the record did not establish that the petitioner had achieved the sustained 
national or international acclaim required for classification as an alien of extraordinary ability. The director also 
found the petitioner had not established that she is one of that small percentage who have risen to the very top of 
her field of endeavor. Finally, the director determined that the petitioner failed to establish that she is corning to 
the United States to work on her area of expertise. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph if -- 
(i) 
 the alien has extraordmary 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. 
United States 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, 60898-99 (Nov. 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. 
204.5(h)(2). The specific requirements for supporting documents to establish that an alien has sustained 
national or international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. 
 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, 
that the petitioner must show that she has sustained national or international acclaim at the very top level. 
We note that although the record contains evidence of the petitioner's prior approval as an 0-1 nonimrnigrant, 
the prior approval does not preclude USCIS from denying a subsequently filed immigrant visa petition. It 
must be noted that many 1-140 immigrant petitions are denied after USCIS 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. 1103 (E.D.N.Y. 
1989). Because USCIS spends less time reviewing 1-1 29 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 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. 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). Eachpetitionmust 
be adjudicated on its own merits under the statutory provisions and regulations which apply. Thus, the 
petitioner's eligibility will be evaluated under the regulatory criteria relating to the immigrant classification as 
claimed by the petitioner. 
This petition, filed on May 30, 2007, seeks to classify the petitioner as an alien with extraor- ability as a 
swimmer. Initially, the petitioner submitted swim meet results and a letter from the All-Russian Swimming 
Federation. In response to a Request for Evidence ("RFE) dated October 22, 2007, the petitioner submitted 
letters of recommendation, additional swimming meet results, news articles, and information about Federation 
Internationale de Natation ("FINK'). On appeal, although the petitioner submitted results &om the 2008 
Olympic Games and the 2008 Swimming World Cup with news articles about both events, she does not 
specifically dispute any of the director's specific findings. Instead, on the Form I-290B, counsel simply refers to 
an unpublished May 12, 2008 decision of the AAO and contends that the unpublished decision overrules the 
director's decision in this unassociated case. Counsel does not indicate that the facts of the previous case are 
analogous to the instant case or provide any further information to support a finding that the AAO's previous 
decision (which was, in fact, not sustained but remanded for further review by the director) has any relevance to 
the current case. Counsel submits additional documents in which he generally asserts that the director's 
decision in this case was "an unlawful act" by the adjudications officer who rendered the decision, which we 
note was signed on behalf of the director and not the officer individually. Counsel also discusses the petitions 
filed by several of his other clients, none of which are currently before us in this proceeding. Counsel requests 
that the AAO investigate a specific adjudications officer at the Service Center, but provides no authority 
suggesting that the AAO is an investigative body. As discussed, we are not persuaded by any of counsel's 
arguments or allegations on appeal. Thus, the sole issue this decision will decide is whether the record supports 
the petitioner's claims of eligibility for the benefit sought as of the date of filing, May 30,2007. 
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, internationally recognized award). 
Barring the alien's receipt of a such an award, the regulation at 8 C.F.R. 5 204.5(h)(3) outlines ten criteria, at 
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an 
alien of extraordinary ability. A petitioner, however, cannot establish eligibility for this classification merely by 
submitting evidence that simply relates to at least three criteria at 8 C.F.R. 5 204.5(h)(3). In determining 
whether the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether it is 
indicative of or consistent with sustained national or international acclaim. A lower evidentiary standard would 
not be consistent with the regulatory definition of "extraordinary ability" as "a level of expertise indicating that 
the individual is one of that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. 
5 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria.' 
At the time of filing, the petitioner submitted a letter from the All-Russian Swimming Federation which stated 
that the petitioner has been a national champion and national record holder. The letter was accompanied by a 
list of dates, places, times and placement in competitions in which the petitioner has purportedly participated. 
The source of this list is not identified. It is noted that the list does not indicate the petitioner's competition in 
any national competition held within Russia as claimed by the petitioner. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998)(citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg. Comm. 1972)). Instead, the list indicates that out of 30 competitions, the petitioner fmished in 
first place on only two occasions; for the 100 meter individual medley at the 2006 World Cups in New York and 
 I 
the Belo-Horizonte in 2006. Neither of these competitions appear to be Russian National competitions. The 
petitioner also submitted computer generated printouts listing individual competitions that the petitioner has 
competed in, including her times and placement in the competitions, including the FINA World Cup and the 
European Short Course Swimming Championship, but no documentary evidence to support the claim that the 
petitioner is a national champion in Russia. 
In response to the director's WE 
 National Championships and Russian 
National records and submits 
 Owner and Head Coach of the King 
Aquatic Club in Milton, Washington. 
 for USA Swimming and the United 
States National Team coach. 
 asserts that the petitioner has been "the Russian 
National Champion, gold medal and national record holder from approximately 2003 until present." Again, 
however, no documentary evidence of her finish at any Russian National Championship has been provided. As 
previously noted, simply going on record with no supporting evidence is not sufficient to establish the 
petitioner's burden of proof. Matter of Sofici at 165. Moreover, while further claims that the 
petitioner won gold and silver medals at Russian National Championships in the 200 IM and the 400 JM, he 
indicates that the competition took place in July 2007. Therefore, even if documentary evidence had been 
submitted to support counsel's or claims regarding the July 2007 competition, because the 
competition took place after the filing of the petition, the awards purportedly received by the petitioner cannot 
be considered in this proceeding. A petitioner must establish eligibility at the time of filing. 8 C.F.R. 
$9 103.2@)(1), (12). A petition cannot be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Accordingly, we 
concur with the director's finding that the petitioner has failed to establish a one-time achievement. 
1 
 Only those criteria claimed to be applicable by the petitioner will be discussed, because neither the 
petitioner nor counsel claim to meet any of the remaining criteria and the record contains no evidence 
relevant to those criteria. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in the field of endeavor. 
The record establishes that the petitioner has had top place finishes in several international competitions, 
including the 2004,2005 and 2006 World Cups, the 2006 Belo-Horizonte, and the 2005 Mare Nostrum. Such 
evidence is sufficient to demonstrate the petitioner's eligibility for this criterion. 
Accordingly, we hereby withdraw the director's determination on this issue and find that the petitioner meets 
this criterion. 
(ii) Documentation of the alien's membership in associations in the field for which classijication is sought, 
which require outstanding achievements of their members, as judged by recognized national or 
international experts in their disciplines or fields 
In order to demonstrate that membership in an association meets this criterion, a petitioner must show that the 
association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or experience, 
proficiency certifications, standardized test scores, grade point average, recommendations by colleagues or 
current members, or payment of dues, do not satisfy this criterion as such requirements do not constitute 
outstanding achievements. Further, the overall prestige of a given association is not determinative; the issue 
here is membership requirements rather than the association's overall reputation. 
The letter £rom the All Russian Swimming Federation states that the petitioner has been a member of the 
Russian national team for four years and further evidence shows that the petitioner continued to represent Russia 
through 2008. In this instance, we find that the petitioner's competition as part of the Russian National team 
qualifies her for this criterion. Accordingly, we withdraw the determination of the director on this issue and 
find that the petitioner has demonstrated eligibility under this criterion. 
(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 classijkation is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner and, as 
stated in the regulations, be printed in professional or major trade publications or other major media. To qualify 
as major media, the publication should have significant national or international distribution. An alien would 
not earn acclaim at the national level Gom a local publication. 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.2 
2 
 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. 
For example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 6 
The petitioner submitted the following materials in support of the petition: "Four-time Olympic medalist 
Sandeno wins University Games gold," published August 11, 2007 in the Daily Times; "Records fall as 
Americans make a big splash," published August 1 1, 2007 in an unidentified publication; "A golden Kick," 
published on August 11, 2007 in The Nation; "Five Records Shattered as USA Win 3 Golds," published in 
The Nation after August 2007; a picture of the petitioner with a short caption dated July 1, 2007 on US 
Presswire; and "Hayden and Johns set meet records at Me1 Zajac Jr. International/Bell Swimming Grand 
Prix" in 2007 appearing on the Sport Research Intelligence sportive website. In addition, on appeal, the 
petitioner submitted the following additional materials about her 2008 World Cup performance: 
Wins Gold at World Cup," published November 12, 2008 on the King Aquatic Club ("Club") 
and - swimmers of the World Cup Moscow meet" 
and the recap of events fi-om the meet published on the FINA website. 
This evidence is deficient for several reasons. First, except for the materials from the Club website, none of 
the preceding articles were primarily about the petitioner as required by the regulatory criterion at 8 C.F.R. 
5 204.5(h)(3)(iii). Second, of the publications that were identified, the petitioner failed to submit evidence to 
establish that any of these publications are professional, major trade publications or other major media. We note 
that the majority of the petitioner's materials 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 "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 
major media in order for us to credit these articles. Regarding the photograph the petitioner submitted, we 
further note that as this criterion specifically requires an author, title, and translation, the publication of 
photographs does not qualify the petitioner under this criterion. Finally, it does not appear that any of the above- 
listed articles or the articles submitted on appeal were published at the time of filing. Therefore, they may not 
be considered. See 8 C.F.R. 88 103.2(b)(l), (12); Matter of Katigbak, 14 I. & N. Dec. at 49. 
Accordingly, the petitioner has not established her eligibility under this criterion. 
(v) Evidence of the alien's original scientijc, scholarly, artistic, athletic, or business-related 
contributions of major signtficance in the field. 
The letter from 
 recounts medals and races won by the petitioner and ar es that the petitioner is 
an alien with extraordinary ability under this visa category. The letter from a, a ~hainian 
swimmer, also recounts the petitioner's awards and states that the petitioner "possesses extraordinary athletic 
talent. She continuously growing her athletic potential and constantly improving her athletic achievements. She 
is extremely goal-focused, directed to the highest athletic results, and she is constantly growing her intellectual, 
technical and physical level." The letter fro-{, staff member of the Russian Federation Physical 
Education Ministry, states that the petitioner "has developed creative, exploratory approach to training process 
. . . and she thoughtfully [sic] introducing into her training new scientific developments in the fields of athletic 
swimming, physiology, psychology and other adjoining subject matters." The letter submitted from- 
, head coach of the University of Miami swimming and diving team, states that swimmers "who win at 
the National Championship level are the very best in their country." These letters focus on awards and 
achievements that have already been addressed under the regulatory criterion at 8 C.F.R. 204.5@)(3)(i). We 
emphasize that the regulatory criteria are separate and distinct from one another. Because separate criteria exist 
Page 7 
for awards and original contributions of major significance in the field, USCIS clearly does not view these 
criteria as being interchangeable. If evidence sufficient to meet one criterion mandated a fmding that an alien 
met another criterion, the requirement that an alien meet at least three criteria would be meaningless. 
In addition, the above letters are all from the petitioner's immediate circle of colleagues. While such letters 
are important in providing details about the petitioner's role in various competitions and teams, they cannot 
by themselves establish the petitioner's acclaim beyond her immediate circle of colleagues. The ten 
regulatory criteria at 8 C.F.R. 9 204.5(h)(3) reflect the statutory demand for "extensive documentation" in 
section 203(b)(l)(A)(i) of the Act. Opinions from witnesses whom the petitioner has selected do not 
represent extensive documentation. Independent evidence that already existed prior to the preparation of the 
visa petition package carries greater weight than new materials prepared especially for submission with the 
petition. Even when written by independent experts, letters solicited by an alien in support of an immigration 
petition are of less weight than preexisting, independent evidence of original contributions of major 
significance that one would expect of a swimmer who has sustained national or international acclaim. 
Without extensive documentation showing that the petitioner's work has been unusually influential, highly 
acclaimed throughout her field, or has otherwise risen to the level of original contributions of major 
significance, the petitioner has failed to establish that she meets this criterion. 
{viii) Evidence that the alien has peflonned in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
The petitioner asserts eligibility under this criterion by virtue of her participation on the Russian National team 
at various international swim meets. The petitioner's membership on the national team has already been 
addressed under the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(ii). We again emphasize that the regulatory 
criteria are separate and distinct from one another. Because separate criteria exist for a petitioner's membership 
in associations requiring outstanding achievement and a petitioner's leading or critical role for organizations and 
establishments that have a distinguished reputation, USCIS clearly does not view these criteria as being 
interchangeable. In this instance, at the time of filing the petition, the petitioner had failed to distinguish herself 
from other members of the team such that her performance can be said to have been leading or critical for her 
team. 
Accordingly, the petitioner has not demonstrated eligibility under this criterion. 
In addition, the director determined that the petitioner failed to establish that she seeks to continue work in her 
area of expertise in the United States. See section 203(b)(l)(A)(ii) of the Act, 8 U.S.C. $ 1153(b)(l)(A)(ii); 8 
C.F.R. $ 204.5(h)(5). Such evidence may include letter(s) from prospective employer(s), evidence of 
prearranged commitments such as contracts, or a statement from the petitioner detailing plans on how she 
intends to continue her work in the United States. On the Form 1-140, the petitioner failed to provide any 
information in Part 6, "Basic information about the proposed employment." Further, with her initial 
submission, the petitioner submitted no personal statement, no letters from prospective employers, contracts, 
or other information detailing her plans in the United States. Despite the director's specific request for 
evidence that the petitioner seeks to continue work in her area of expertise in the RFE, the petitioner failed to 
submit any probative evidence in response to the director's request. Similarly, on appeal, even with the 
director's specific finding on this issue, the petitioner submitted no evidence. Accordingly, we concur with 
the director's determination that the petitioner has failed to establish that she will continue work in her area of 
Page 8 
expertise in the United States. 
Finally, beyond the director's decision, we find the petitioner has failed to establish that her entry into the 
United States will substantially benefit prospectively the United States. In his "Second Emergency Motion," 
a document submitted by counsel subsequent to the appeal, counsel argues that it is USCIS policy to not 
require evidence regarding this benefit. Counsel cites to a letter written by- Chief, Immigration 
Branch, Adjudications in 1995, published in 72 No. 12 Interpreter Releases, 443. 
 First, letters and 
correspondence issued by the Office of Adjudications are not binding on the AAO. Contrary to counsel's 
assertion, letters written by the Office of Adjudications do not constitute official USCIS policy and will not 
be considered as such in the adjudication of petitions or applications. Although the letter may be useful as an 
aid in interpreting the law, such letters are not binding on any USCIS officer as they merely indicate the 
writer's analysis of an issue. See Memorandum from Thomas Cook, Acting Associate Commissioner, Office 
of Programs, SigniJcance of Letters Drafted by the Office ofAdjudications (December 7,2000). 
Moreover, it appears that counsel has taken the language of the letter out of context and inappropriately 
applied it to the instant case. Although the letter does initially acknowledge that the regulations do not 
require a petitioner to submit evidence to show that he or she will substantially benefit the United States, the 
letter goes on to state that "Congress did not intend for aliens of extraordinary ability to immigrate to the 
United States and remain idle" and that the language in section 203(b)(l)(A)(iii) cannot be "written off." 
The letter concludes that "ordinarily the 'substantial benefit' criterion is met through satisfLing the other 
statutory requirements, however, there may be very rare instances where an extraordinary alien's admission 
may be damaging or detrimental to the interests of the United States. In this instance, the petitioner has 
failed to establish that she meets three of the ten criterion and, in addition, that she seeks to enter the United 
States to continue work in her area of extraordinary ability. Given her failure to satisfy any of the statutory 
requirements, the petitioner's substantial benefit cannot be automatically assumed. As indicated above, the 
petitioner has failed to provide any description of her fkture plans in the United States. Given her failure to 
provide any details about her future prospects, opportunities, plans or intent, it is unclear how she will 
substantially benefit prospectively the United States. Moreover, it is unclear how, in her current position as a 
member of the Russian National team, that she will substantially benefit prospectively the United States by 
training for and competing with a foreign national team. For this additional reason, the petition may not be 
approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. $ 557(b) ("On appeal 
fiom 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 1 147, 1 149 (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). 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 8 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner has enjoyed moderate success as a swimmer on the Russian national swim 
team. However, the record does not establish that the petitioner achieved sustained national or international 
Page 9 
acclaim so as to place her at the very top of her field; that she seeks to enter the United States to continue work 
in competitive swimming, and if so, for whom; or that her entry into the United States will substantially benefit 
prospectively the United States. She is thus ineligible for classification as an alien with extraordinary ability 
pursuant to section 203(b)(l)(A) of the Act, 8 U.S.C. $ 1153(b)(l)(A), and her 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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. This decision is rendered without prejudice to the filing of a new petition with the requisite 
"extensive documentation'' required by section 203(b)(l)(A) of the Act, 8 U.S.C. $ 1 153(b)(l)(A). 
ORDER: The appeal is dismissed.