dismissed EB-1A Case: Swimming

U.S. Citizenship 
and Immigration 
Services 
In Re: 10027559 
Motion on Admini strative Appe als Office Decision 
Non-Pr ecedent Decision of the 
Administrati ve Appeals Office 
Date: SEPT. 24, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Abili ty) 
The Petitioner , a swimmer , seeks classification as an individual of extraordinary ability . This first 
prefe rence classification mak es immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or intern ational acclaim and whose achie vements hav e 
been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition , and we subsequently dismissed the 
appeal. 1 The matter is now before us on a motion to reconside r. Although she does not claim to file 
a motion to reopen , the Petitioner also submits new evidence. Accordingly , we will treat the new 
evidence as a motion to reopen. 
In these proceedings , it is the Petitioner ' s burd en to establish eligibility for the requested benefit. See 
section 291 of the Act, 8 U.S.C. § 1361. Upon review , we will deny the motions. 
I. LAW 
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 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 criteria 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 
1 See In Re: 4597661 (Dec. 18, 2019). 
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). 
Further, a motion to reconsider is based on an incorrect application of law or policy, and a motion to 
reopen is based on documentary evidence of new facts. The requirements of a motion to reconsider 
are located at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
II. BACKGROUND 
We determined that the Petitioner satisfied three of the initial evidentiary criteria: awards under 8 
C.F.R. § 204.5(h)(3)(i), memberships under 8 C.F.R. § 204.5(h)(3)(ii), and published material under 
8 C.F.R. § 204.5(h)(3)(iii). As such, we evaluated the totality of the evidence in the context of a final 
merits determination . 2 Based on this review, we concluded that the Petitioner did not establish her 
sustained national or international acclaim , 3 that she is among 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. See section 203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 
596 F .3d at 1119-20. 4 
III. ANALYSIS 
A. Motion to Reconsider 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceeding at the 
time of the decision . See 8 C.F.R. § 103.5(a)(3). The Petitioner argues that we "dismissed [her] 
appeal, in part, because she did not include evidence of her lesser placements in competitive 
swimming" that "is an improper application of law." We determined that the Petitioner did not 
sufficiently document her swimming career establishing a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). 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," and we 
provided several examples. Further, as the Petitioner seeks classification as an alien of extraordinary 
ability as a swimmer, the Petitioner's swimming record and history are relevant in showing whether 
she has sustained national or international acclaim and is one of that small percentage who has risen 
2 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 ADll-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(b)(l)(A) of the Act). 
3 Id. at 14 (stating that such acclaim must be maintained and providing Black's Law Dictionary'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). 
4 Id. 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) . 
2 
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)(3). 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 ). 5 Accordingly, the petitioner did not establish that we incorrectly applied law or policy. 
Similarly, the Petitioner contends that we "alleged that [she] lacked sustained acclaim for the time 
period starting after 2016," and [t]his is an improper application oflaw, as this time period cannot be 
considered." In addition, the Petitioner claims that "she filed her initial petition on August 18, 2017," 
and the inclusion of evidence occurring after this date "would have been unlawful and [we] erred in 
considering the time after August 18, 2017." The decision, however, does not reflect that we required 
the Petitioner did to submit evidence of her finishes and placements occurring after she filed her initial 
petition. Instead, we concluded that the Petitioner did not establish "that she received any awards 
since 2016" and "besides the I I Championships, she has not shown that she has competed 
against top swimmers since 2015, let alone winning medals or awards." Again, the Petitioner did not 
demonstrate that she received any swimming awards from 2016 until she filed her petition in August 
201 7, nor did she show that she competed against other top swimmers from 2015 until she filed her 
petition, except for the I I Therefore, the Petitioner did not show the required sustained 
national or international acclaim and career of acclaimed work in the field. See section 203(b )(1 )(A)(i) 
of the Act, 8 C.F.R. § 204.5(h)(3), and H.R. Rep. No. at 59. Therefore, the Petitioner did not establish 
that we erroneously applied law or policy. 
In addition, the Petitioner argues that she did not provide "conflicting letters" regarding her results 
from the 2012 Olympic Garnes. As discussed, the Petitioner submitted a letter from the secretary 
general for the I I Olympic Committee I I who indicated that the Petitioner 
"was one of the top 50 competitors in the Olympic Garnes ranking," and another letter from the 
president o~ I who indicated that the Petitioner "finished among the top 40 athletes in the world 
in the Olympic Garnes ranking." Although she states that these statements are "objectively true," the 
issue relates to where she finished at the 2012 Olympic Garnes, in order to show national or 
international acclaim, that she is one of the small percentage who has risen to the very top of the field 
of endeavor, and that her achievements have been recognized in the field of expertise. See section 
203(b )(1 )(A)(i) of the Act and 8 C.F.R. § 204.5(h)(2) and (3). Here, the letters, nor the record at the 
time of our decision, showed her placement at the 2012 Olympic Garnes. 
For the reasons discussed above, the Petitioner did not establish that we incorrectly applied law or 
policy in our latest decision. Accordingly, the Petitioner did not demonstrate that she meets the 
requirements of a motion to reconsider. Therefore, we will deny her motion. Furthe1more, the 
Petitioner does not contest or address any of our other conclusions relating to her other claims and 
evidence in our finals merits determination showing that we erred as a matter oflaw or policy. 
5 See also USCIS Policy Memorandum PM 602-0005.1, supra, at 2. 
3 
B. Motion to Reopen 
We will similarly deny the Petitioner's motion to reopen. A motion to reopen must state new facts 
and be supported by documentary evidence. See 8 C.F.R. § 103.5(a)(2). The Petitioner submits a 
screenshot from sports-reference.com showing that the Petitioner ranked Din the "Women'sc=] 
metres Backstroke" at the 2012 Olympic Games, and a document from an unidentified website 
showing her collegiate record from 2013 - 2017. Considering both the new evidence on motion and 
the evidence contained in the record, the Petitioner did not demonstrate that she garnered sustained 
national or international acclaim in the field and that her achievements have been recognized in the 
field of expertise, including finishing~ at the 2012 Olympic Games and competing for the 
University! I See section 203(b)(l)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). While the 
Petitioner offers an article from the usatoday.com regarding college swimmers who medaled and 
earned money from the 2016 Rio de Janeiro Olympics, she did not show how she compares to them 
or that she has distinguished herself in the field as being 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). 
In addition, the Petitioner provides three documents in a foreign language without any English 
language translations. Any document in a foreign language must be accompanied by a full English 
language translation. See 8 C.F.R. § 103.2(b)(3). Regardless, the documents appear to pertain to 
events occurring in 2018, and the Petitioner submits evidence relating to swimming competitions and 
finishes in 2018 and 2019. The Petitioner must establish eligibility at the time of filing the benefit 
request. See 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
Accordingly, we need not further address these documents on motion. 
The Petitioner's additional evidence on motion, including evidence in the record, does not show her 
sustained national or international acclaim, 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. Accordingly, we will deny her motion to reopen. 
IV. CONCLUSION 
The Petitioner has not shown that we incorrectly applied law or policy in our previous decision based 
on the record before us, nor does her new evidence on motion demonstrate that she qualifies as an 
alien of extraordinary ability for this highly restrictive classification. 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
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