dismissed EB-1A Case: Swimming

U.S. Citizenship 
and Immigration 
Services 
In Re: 4597661 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC. 18, 2019 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a swimmer , seeks classification as an alien of extraordinary ability. See Immigration and 
Nationality Act (the Act) section 203(b)(l)(A) , 8 U.S.C. § 1153(b)(l)(A). 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 Nebraska Service Center denied the petition , concluding that the Petitioner had 
satisfied only one of the ten initial evidentiary criteria, of which she must meet at least three. 
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 nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b )( 1) 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 tenn "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). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Petitioner attends and swims for the University of .... 1 ----~lin .... l ______ __, 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that she has received a major, internationally 
recognized award, she must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner met one of the evidentiary 
criteria, awards at 8 C.F.R. § 204.5(h)(3)(i). The record reflects that the Petitioner received nationally 
and internationally recognized awards from swimming events, discussed farther below. Accordingly, 
we agree with the Director that the Petitioner fulfilled the awards criterion. 
Further, we find that the Petitioner demonstrated membership with the Uzbekistan .... ! _____ __, 
meeting the membership criterion at 8 C.F.R. § 204.5(h)(3)(ii). In addition, the record reflects that the 
Petitioner established published material about her in two major media publications, satisfying the 
published material criterion at 8 C.F.R. § 204.5(h)(3)(iii). Because the Petitioner has shown that she 
fulfills three criteria, we will evaluate the totality of the evidence in the context of the final merits 
determination below. 1 
1 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 13 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (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 under section 203(6 )(I )(A) of the Act). 
2 
B. Final Merits Determination 
As the Petitioner submitted the reqms1te initial evidence, we will evaluate whether she has 
demonstrated, by a preponderance of the evidence, her sustained national or international acclaim, 2 
that she is one of the small percentage at the very top of the field of endeavor, and that her 
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 
determine if her successes are sufficient to demonstrate that she 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. 3 In this matter, we determine that the Petitioner has not shown her eligibility. 
The Petitioner submitted evidence reflecting successes in some national and international swimming 
events, including at the youth and collegiate levels. In addition, she documented her membership with 
the 2012 Uzbekistan! ~ Moreover, she demonstrated that two media publications 
produced a few articles about her. The record, however, does not reflect that her achievements are 
reflective of a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 
101-723, 59 (Sept. 19, 1990). 
At the outset, the Petitioner has not sufficiently documented her swimming career. Specifically, while 
the Petitioner presented evidence showing her finishes in selected tournaments and championships, 
she did not demonstrate her standings or results in the majority of her other swimming events. For 
example, the Petitioner provided documentation showing that she received a bronze medal at the 2009 
I !Games; three gold medals, five gold medals, and one gold medal at the 2010, 2011, and 
2015 Uzbekistan I !Championships, respectively; and a gold medal and a silver medal at 
the 2016 I I Championships. However, she did not show her placements at any of her 
other swimming competitions. For instance, she submitted a letter froml I 
.__ _________ __.I the Uzbekistan Swimming Federation (USF), who indicated numerous 
swimmin competitions in which the Petitioner partici ated but did not disclose her finishes, such as 
the 2005 Championships 2006 ham ionshi s 2006 I !Games, 2007 
C rnpi7cships, 2007 World 
Championships, 2008 World Junior Swijming 
1
hampionships, 2009 ~----;:::====:::.' 
Championships, 2009 Championships, 2009 World Championships, 2009 
Indoor Games, 2010 First I !Games, 201 0c=] Ga\lles, 2010 World 
Championships, 20111 I World Championships, 2013l._ _ _.j World Championships, 20141 I 
Games, and 2015 D World Championships. 
Moreover, although the Petitioner participated at the 20121 I she did not establish her 
results or standings. In fact, she offered a letter from I I the 
Uzbekistan National I I, who briefly stated that the Petitioner "was one of 
2 See USCTS Policy Memorandum PM 602-0005.1, supra, at 14 (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). 
3 See also USCIS Policy Memorandum PM 602-0005.1, supra, at 4 (instructing 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). 
3 
---~'------~------ranking." Further, the record contains another letter 
from who claimed that the Petitioner "finished among the 
top 40 athletes in the world in the.__ _____ _.ranking." Inconsistencies in the record must be 
resolved with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). Because the Petitioner provided conflicting letters, neither of which is 
supported by documentation of her official results, she did not demonstrate whether she finished in 
the top 40 or 50 at the 20121 las claimed in these letters. 
In addition, at the collegiate level, she submitted a letter from head coach ofO who 
indicated that the Petitioner placed third at the 2014 ,___ _ _,Championships and second at the 2015 
L-----r:,,...u..........,.pionships. Further,! I stated that the Petitioner won medals during the 2015 
- 201 Cham ionships and was named CollegeSwimming.com'sl I swimmer of the Week. 
Whil ~-----' highlighted her swimming career atO the Petitioner did not show her complete 
swimming record with the university. 
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" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991).4 Here, the 
Petitioner's partial account of her swimming history does not meet this very high standard. 
Notwithstanding the above, the Petitioner has not demonstrated that her personal swimming 
achievements have garnered her sustained national or international acclaim and that they reflect a 
"career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723 at 59. 
In the case here, the Petitioner has not established that she received any awards since 2016. In fact, 
besides thel I Open Championships, she has not shown that she has competed against the top 
swimmers since 2015, let alone winning medals or awards, reflecting that she "is one of that small 
percentage who [has] risen to the very top of the field of endeavor." See 8 C.F.R. § 204.5(h)(2). 
USCIS has long held that even athletes performing at the major league level do not automatically meet 
the statutory standards for classification as an individual of "extraordinary ability." Matter of Price, 
20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). Rather, the Petitioner has been recently swimming at 
Oagainst other collegiate athletes. She has not shown that she has been competing against renowned 
or accomplished swimmers, demonstrating that her latest "achievements have been recognized in the 
field of expertise." See section 203(b)(l)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). 
Again, the Petitioner demonstrated that she was a member of the Uzbekistan I I for the 
20121 I. However, the Petitioner did not show that her single team membership over 
five years ago resulted in sustained national or international acclaim or reflects "that small percentage 
who [has] risen to the very top of the field of endeavor." See section 203(b)(l)(A)(i) of the Act and 8 
C.F.R. §204.5(h)(2) and (3). The record, for instance, does not contain any media coverage or other 
evidence showing that she received national or international recognition based on her membership 
with the Uzbekistan I I Furthermore, although the Petitioner provided a 2ress release 
from swimswam.org reflecting that she "has one more opportunity to post fast swims inl I 
4 See also USCTS Policy Memorandum PM 602-0005.1, supra, at 2. 
4 
meters and ualify for 20161 I competition," she did not establish that she qualified for the 2016 
_______ reflecting continued, sustained national or international acclaim on two consecutive 
See section 203(b)(l)(A)(i) of the Act and 8 C.F.R. §204.5(h)(3). 5 
Regarding published material about her, the Petitioner offered one article (2011) from the Uzbekistan 
National News Agency and three press releases (2015) posted on swimswam.org. 6 However, the 
Petitioner did not demonstrate that four pieces published about her are consistent with the sustained 
national or international acclaim necessary for this highly restrictive classification. See section 
203(b)(l)(A) of the Act. Further, the Petitioner did not show that her overall press coverage is 
indicative of a level of success consistent with being among "that small percentage who [has] risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). Moreover, the Petitioner did not 
establish that the limited media reporting reflects 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. at 
59 and 56 Fed. Reg. at 30704. 
Beyond the three criteria that the Petitioner satisfied, we consider additional documentation in the 
record in order to determine whether the totality of the evidence demonstrates eligibility. Here, for 
the reasons discussed below, we find that the evidence neither fulfills the requirements of any further 
evidentiary criteria nor contributes to an overall finding that the Petitioner has sustained national or 
international acclaim and is among the small percentage of the top of her field. 
The Petitioner asserts that she performed in a leading or critical role with USF D the I I 
University Swim Team, and thel I Swim Team. However, the Petitioner did not demonstrate 
that her role was reflective of: or resulted in, widespread acclaim from her field or that she is 
considered to be at the very top of the field of endeavor. See 8 C.F.R. § 204.5(h)(2). Again, besides 
letters of recommendation and a few media articles relating to ~ she did not offer evidence 
establishing that she garnered extensive acclaim or recognition from the field. Further, the record does 
not reflect that she held leading or critical roles for organizations or establishments with distinguished 
reputations, nor does it show that her roles represent sustained national or international acclaim or a 
"career of acclaimed work in the field." See section 203(b)(l)(A) of the Act and H.R. Rep. No. at 59. 
The record as a whole, including the evidence discussed above, does not establish her eligibility for 
the benefit sought. Moreover, the Petitioner did not fully document her swimming career. 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. Even major league level athletes 
do not automatically meet the statutory standards for classification as an individual of "extraordinary 
ability." Price, 20 I&N Dec. at 954. While the Petitioner need not establish that there is no one more 
accomplished to qualify for the classification sought, we find the record insufficient to demonstrate 
that she has sustained national or international acclaim and is among the small percentage at the top 
of her field. See section 203(b )(1 )(A)(i) of the Act; 8 C.F .R. § 204.5(h)(2). 
5 On appeal, the Petitioner claims that she "represented [USF] at two I I" However, as indicated above, the 
Petitioner did not submit independent evidence to corroborate her assertions. 
6 The Petitioner offered two additional press releases posted on swimswam.org that mentioned her as one of the competitors 
but did not reflect published material about her. 
5 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not demonstrated her 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. 
6