dismissed EB-1A Case: Tennis Coaching

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
'PUBLIC COpy 
DATE:SEP 0 7 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 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 $630. 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, 
JjfJ{iJ{d/1cL 
(Perry Rhew 
r Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on February 16, 2010, and is now before the Administrative Appeals Office (AAO) 
on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), 
as an alien of extraordinary ability. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of 
the beneficiary's 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 beneficiary's "sustained national or international 
acclaim" and present "extensive documentation" of his or her 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 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 claims that the beneficiary meets at least three of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3). 
I. Intent to Continue to Work in the Area of Expertise in the United States 
The AAO notes here that in Part 6 of Form 1-140, Immigrant Petition for Alien Worker, the 
petitioner listed the beneficiary's job title as "Professional Tennis Coach." In addition, the 
petitioner indicated the beneficiary's job description as a "Professional Tennis Instructor." Thus, 
the record reflects that the petitioner is seeking to classify the beneficiary as an alien of 
extraordinary ability as a coach rather than as a competitor. Moreover, according to the letter 
submitted in support of the original petition, the petitioner stated that the petition was filed on 
behalf of the beneficiary "for a permanent position as a tennis coach" and "will coach rising 
junior stars." Even though the petitioner submitted documentation regarding the beneficiary's 
involvement in earlier tournaments as a competitor, which will be discussed later in this decision, 
the record reflects the beneficiary's intent to come to the United States as a coach. 
The statute and regulations require the beneficiary's national or international acclaim to be 
sustained and that he seeks to continue work in his area of expertise in the United States. See 
sections 203(b)(1)(A)(i) and (ii) of the Act, 8 U.S.C. §§ 1153(b)(1)(A)(i) and (ii), and 8 C.F.R. 
§§ 204.5(h)(3) and (5). While a tennis coach and a tennis player share knowledge of the sport, 
the two rely on very different sets of basic skills. Thus, tennis instruction and tennis competition 
are not the same area of expertise. This interpretation has been upheld in federal court. In Lee v. 
I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court stated: 
Page 3 
It is reasonable to interpret continuing to work in one's "area of extraordinary 
ability" as working in the same profession in which one has extraordinary ability, 
not necessarily in any profession in that field. For example, Lee's extraordinary 
ability as a baseball player does not imply that he also has extraordinary ability in 
all positions or professions in the baseball industry such as a manager, umpire or 
coach. 
Id. at 918. The court noted a consistent history in this area. In the present matter, there is no 
evidence showing that the beneficiary has sustained national or international acclaim through 
achievements as a tennis competitor subsequent to 2006 or that he intends to compete here in the 
United States. In fact, the petitioner submitted a letter from Association of Tennis 
Professionals (ATP), who stated that "[the beneficiary] used to compete as a professional tennis 
player of the A TP circuit [emphasis added]." While the AAO acknowledges the possibility of an 
alien's extraordinary claim in more than one field, such as tennis competition and tennis 
instruction, the petitioner, however, must demonstrate "by clear evidence that the alien is coming 
to the United States to continue work in the area of expertise." See the regulation at 8 c.F.R. 
§ 204.S(h)(S). 
Based on the petitioner's answers to the questions on Form 1-140 and the submitted 
documentation, the record reflects that the beneficiary intends to continue to work in the area of 
tennis coaching rather than the area of tennis competition. Ultimately, the beneficiary must 
satisfy the regulation at 8 C.F.R. § 204.S(h)(3) through his achievements as a tennis instructor or 
coach. 
II. 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 of the 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 4 
(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 101st 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 the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser 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 III the field, III 
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; 
Page 5 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(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. 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.l 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." Id. 
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)." [d. 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). 
Id. at 1119. 
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); 
1 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 6 
see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
III. Analysis 
A. Evidentiary Criteria 
The petitioner has submitted evidence pertaining to the following criteria under the regulation at 
2 8 C.F.R. § 204.5(h)(3). 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
A review of the record of proceeding reflects that the petitioner failed to specifically claim the 
beneficiary's eligibility for this criterion at the initial filing of the petition or in response to the 
director's request for additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8). 
However, in the director's decision, the director found that the beneficiary failed to meet this 
criterion as the petitioner failed to submit any documentary evidence supporting the claims on 
the beneficiary's curriculum vitae regarding his junior tennis career highlights and ATP 
professional career highlights, such as the national champion for boys under 14, 16, and 18, and 
winner of the Les Petit Tournament. On appeal, counsel argues that the petitioner previously 
submitted documentary evidence of the beneficiary'S tournament results in the form of 
recommendation letters, newspaper articles, and tournament draw results, as well as on appeal in 
the form of photographs of trophies purportedly won by the beneficiary. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence 
in the field of endeavor [emphasis added]." For this criterion, the director's findings and 
counsel's arguments on appeal are related to the purported prizes or awards won by the 
beneficiary as a tennis competitor rather than as an instructor or coach. Therefore, any prizes or 
awards that may have been garnered as a competitor are not within the beneficiary's field of 
endeavor as a tennis coach. See Lee v. l.N.S., 237 F. Supp. 2d at 914 (upholding a finding that 
competitive athletics and coaching are not within the same area of expertise). As the 
beneficiary'S eligibility for this criterion is based entirely on his purported prizes or awards as a 
tennis competitor, no further discussion of the beneficiary's eligibility for this criterion is 
necessary. Moreover, the petitioner does not claim, nor does the record of proceeding reflect, 
that the beneficiary has ever received any nationally or internationally recognized prizes or 
awards for excellence as a tennis coach. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 7 
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. 
In the director's decision, he found that the beneficiary's membership with the Slovenian Tennis 
Association (ST A) and the United States Professional Tennis Association (USPT A) failed to 
establish eligibility for this criterion. In his appellate brief for this criterion, counsel argues that 
sustained international acclaim is not required to qualify as an alien of extraordinary ability and 
refers to unpublished decisions by this office and three district court decisions - Buletini v. INS, 860 
F. Supp. 1222 (E.D. Mich. 1994); Muni V. INS, 891 F. Supp. 440 (N.D. 111. 1995); and Crimson v. 
INS, 934 F. Supp. 965 (N.D. Ill. 1996). In addition, counsel argues: 
Based on the evidence presented above, the Petitioner has established that the 
Beneficiary is an individual of that small percentage who have [sic] risen to the very 
top of the field of endeavor and has shown evidence of sustained national acclaim by 
the Beneficiary. Therefore, the Service should follow [the] plain language of Title 8, 
CFR § 204.5(h)(3), as well as the Courts [sic] rulings in Muni, v. I.N.S. and Grimson 
v. I.N.S. and reopen this case and approve the petition reference. 
As section 203(b)(I)(A)(i) of the Act and the regulation at 8 c.F.R. § 204.5(h)(3) both require the 
alien to demonstrate "sustained national or international acclaim [emphasis added]," the AAO 
agrees with counsel that international acclaim is not required for an alien of extraordinary ability. 
However, a review of the director's decision for this criterion fails to reflect that the director founed 
the beneficiary ineligible for this criterion based on the absence of sustained international acclaim. 
Regarding ST A, the petitioner submitted a letter from , who 
stated: 
In order to become a member, a player must demonstrate the ability to compete 
and win matches at the highes [sic] lavels [sic] of national and international 
competition. We place great emphasis on the number of wins that a player has 
amassed troughout [sic] his professional career. We also look at the world 
rankings that the player was able to rich [sic] in both sigles [sic] and doubles 
events, as well as the amount of exposure and fame that a player has nationally 
and internationally. 
At the time of his application, [the beneficiary] met all of the criteria that we 
require from our members. [The beneficiary] was, and still is, a big tennis star in 
our country. When he applied to be a member, he was the best young player that 
Slovenia had to offer to the world. [The beneficiary] competed at the highest 
levels of national and international competition and won many great matches. 
To this day, [the beneficiary] is still a member of our Association because he is 
now a tennis coach in the USA. Although [the beneficiary] lives and works in the 
United States, we still consider him to be a great representative of our Association 
Page 8 
and our country. We are aware that as a tennis coach, [the beneficiary] has helped 
improve the game and rankings of many professional tennis players who play on 
the World Circuit. We feel that [the beneficiary's] accomplishments as a player 
and now as a coach of tennis bring tremendous positive attention to our 
Association and help promote the growth and popularity of tennis in our country. 
The director found that "competing and winning matches at the highest levels of national and 
international competition" is not one of that small percentage who have risen to the very top of 
the field of endeavor. The AAO is not persuaded by counsel's arguments that the director 
required sustained international acclaim in his decision. The director was evaluating the letter 
from , who indicated that membership with ST A requires competing in and 
winning national and international competitions, as well as being exposed nationally and 
internationally. The director did not make a finding that the beneficiary failed to demonstrate 
sustained international acclaim. Regarding USPT A, the director found that the petitioner failed 
to establish that "the beneficiary joined the [USPTA] based on the judgment of recognized 
national or international experts in their disciplines or fields [emphasis added]." Again, the 
director did not make a finding that the beneficiary was ineligible for this criterion because the 
beneficiary's membership with USPTA was judged exclusively by national experts rather than 
international experts. Instead, consistent with the plain language of the regulation at 8 C.F.R. § 
204.5(h)(3)(ii), the director found that the beneficiary's membership with UPSTA was not 
judged by national or international experts. 
Notwithstanding the above, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) 
requires "[d]ocumentation of the alien's membership in associations in the field for which is 
classification is sought, which require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields." In compliance with 
Kazarian 596 F.3d at 1121, the AAO must focus on the plain language of the regulatory criteria. 
The beneficiary's national or international acclaim is not a relevant factor in determining 
whether the beneficiary meets the plain language of this criterion. 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, 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. 
Regarding ST A, at the initial filing of the petition, the petitioner submitted a letter from _ 
who confirmed the best tennis results of the beneficiary as 
a player. In response to the director's request for additional evidence, the petitioner submitted 
the _letter from _ On appeal, the petitioner submitted another letter 
from ho stated: 
Page 9 
When a player matures and is no longer competing as a junior, he needs to 
maintain his status as a member of the Slovenian national team Association by 
being selected as a member of the Slovenian Davis Cup team, achieving world 
rankings, receiving a great deal of national and international recognition and 
winning at least 100 matches. If a player is no longer participating in national ans 
[sic] international tournaments as competitor, then we look at the players [sic] 
current accomplisments [sic] as a professional coach, Slovenian ambassador of 
tennis, or employee of the [ST A]. 
As indicated above, the beneficiary became a member of STA as a junior player. Therefore, as 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "[ d]ocumentation of the 
alien's membership in associations in the field for which is classification is sought [emphasis 
added]," the beneficiary's membership with STA based on his achievements as a tennis player is 
not within the beneficiary's field as a tennis coach. See Lee v. I.N.S., 237 F. Supp. 2d at 914 
(upholding a finding that 've athletics and coaching are not within the same area of 
expertise). Moreover, stated that the beneficiary is still a member of STA 
"because he is now a tennIS USA," letter fails to reflect that 
outstanding achievements are required as a member of STAas a coach. The AAO is not 
persuaded that simply coaching at the professional level is demonstrative of outstanding 
achievements. Furthermore, the petitioner failed to establish that the beneficiary's membership 
with STAas a coach requires outstanding achievements, as judged by recognized national or 
international experts in their disciplines or field. 
Regarding USPT A, at the initial filing of the petition, the petitioner submitted a certificate from 
USPT A reflecting that the beneficiary received a Professional 3 rating. In response to the 
director's request for additional evidence, the petitioner submitted a copy of his USPT A 
Certification Exam Results indicating that the beneficiary received an overall Professional 3 
rating on October 31, 2009. The petitioner also submitted a document reflecting an overview of 
the USPTA certification process. In the director's decision, the director indicated that the 
petitioner claimed: 
Becoming a member of the USPT A is an achievement which is indicative of 
extraordinary ability. The three part examination, along with the necessity to 
show proof of coaching and playing experience on the professional level makes 
the achievement of USPT A membership a feat of great and revered 
accomplishment. 
The director also indicated that based on USPT A's website, which was accessed by the director 
on February 9, 2010, a Professional 3 rating is the lowest level of professional-level certification 
by USPT A. 3 In fact, Professional 3 is entry level compared to Professional 1, which is the most 
3 The AAO notes that the beneficiary's USPTA certification exam reflects the following overall rating: 
Professional I - Applicant must score Professional I on all three part of the Certification Exam. 
Professional 2 - Applicant must score at least a Professional 2 on all three parts of the Certification Exam. 
Professional 3 - Applicant must score at least a Professional 3 on all three parts of the Certification Exam. 
Page 10 
advanced. Furthermore, contrary to the petitioner's assertions, the director found that according 
to the website, "US PTA Professional 3 level explicitly negates the need for any tennis teaching 
experience.,,4 It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent, objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth 
lies. Matter of Ro, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Id. If USCIS fails to believe that a 
fact stated in the petition is true, USCIS may reject that fact. Section 204(b) of the Act, 8 U.s.c. 
§ 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery 
Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 
7,15 (D.D.C. 2001). 
On appeal, the petitioner submitted a letter from 
USPT A, who stated: 
To become a member of USPT A and receive a professional rating, one must 
demonstrate ability in a variety of areas. Applicants are required to show a 
mastery of stroke productions, grips, private lessons, group lessons, playing skills, 
rules of tennis, history of tennis, tennis business and programming. The exam is 
administered by a certified USPT A tester. To become a UPSTA tester, a member 
must be in good standing and hold the highest USPT A rating of Professional 1 for 
at least five years. The average length of time that divisional head testers have 
held the Professional 1 rating is 10 years or more. 
of 
Although 2 provided evidence of the qualifications of USPT A testers, the letter fails 
to overcome the inconsistencies regarding the petitioner's claim that certification requires "proof 
of coaching." . letter fails to reflect that the beneficiary's Professional 3 rating was 
earned, in part, based on his coaching experience. Again, the petitioner demonstrated that the 
beneficiary received a Professional 3 rating. However, according to USPTA's website, 
Professional 3 is "not required to have tennis-teaching experience" compared to Professional 2 
that requires "teaching ability through apprenticeship or testing experience" and Professional 1 
that requires "three years or five seasons of full-time teaching experience." As such, on appeal, 
the petitioner failed to resolve its contradictory claims made in response to the director's request 
for additional evidence. 
Nevertheless, the AAO is not persuaded that the beneficiary's Professional 3 rating reflects 
outstanding achievements. Regardless of the professional level, an applicant must meet the 
minimum age requirement, pass all portions of the Certification Exam, and have a National 
Tennis Rating Program (NTRP) of 4.0 or higher for Professional 2 and 3 and NTRP of 4.5 or 
4 See http://www.uspta.org/defau)t.aspx?MenultemlD= I 627 &MenuS ublD=278&MenuGroup=N ev'!-USPTA-
]oin&&AspxAutoDetectCookieSupport= I. Accessed on August 16, 20 I I, and incorporated into the record of 
proceeding. 
Page 11 
higher for Professional 1. The lowest NTRP is 1.5, reserved for limited experience and "working 
primaril~ on getting the ball in play," and the highest NTRP is 7.0, reserved for "a world-class 
player." The AAO notes that the record fails to reflect the NTRP of the beneficiary. 
Nonetheless, such prerequisites for USPTA certification ratings are not demonstrative of 
outstanding achievements. The AAO is not persuaded that passing standardized examinations 
and having at least medium ratings is tantamount to outstanding achievements, as they are not 
judged by recognized national or international experts in their disciplines or fields. Moreover, 
while USPTA testers must be at a Professional 1 rating and have three years of five seasons of 
full-time teaching experience, there is no evidence that USPT A testers are "recognized" national 
or international experts. Furthermore, even if Professional 1 reflected outstanding achievements, 
which the AAO clearly does not imply, the beneficiary's USPTA certification rating is 
Professional 3 - a level entry certification. Clearly, when compared to a Professional 1 rating, a 
Professional 3 rating does not reflect outstanding achievements. 
Accordingly, the petitioner 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. 
The director found that the petitioner failed to demonstrate the beneficiary's eligibility for this 
criterion. A review of the record of proceeding reflects that the petitioner submitted several 
articles, including photographs with captions, which were either published material about the 
beneficiary as a tennis player or simply mentioned the beneficiary as a tennis player. However, 
the petitioner failed to submit any documentary evidence reflecting published material about the 
beneficiary in professional or major trade publications or other major media, relating to the 
beneficiary's work in the field as a tennis coach. See Lee v. I.N.S., 237 F. Supp. 2d at 914 
(upholding a finding that competitive athletics and coaching are not within the same area of 
ex pertise). 
Accordingly, the petitioner failed to establish 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. 
In the director's decision, he found that the petitioner failed to establish the beneficiary's 
eligibility for this criterion. A review of the record of proceeding reflects that the petitioner 
claimed the beneficiary'S eligibility based on recommendation letters. On appeal, counsel argues 
that "the recommendation letters submitted sufficiently indicate how the Beneficiary has 
See http://www.usta.comJPlay- TennisIUSTA-League/Information! 1655 General Characteristics of Various 
NTRP Playing Levels/. Accessed on August 16, 2001, and incorporated into the record of proceeding. 
Page 12 
significantly impacted the tennis coaching field and established his extraordinary ability as a 
professional tennis coach." 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In compliance with Kazarian, the AAO must focus on the plain 
language of the regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original athletic-related contributions "of major significance in the 
field." The phrase "major significance" is not superfluous and, thus, it has some meaning. 
Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in 
APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15,2003). 
A review of the recommendation letters reflect that they refer to the beneficiary's experience and 
accomplishments as a tennis player. While the beneficiary's experience and talents as a player 
may provide him with the knowledge and skills to be a coach, the beneficiary must ultimately 
establish that he has made original contributions of major significance in the field as a tennis 
coach. See Lee v. I.N.S., 237 F. Supp. 2d at 914 (upholding a finding that competitive athletics 
and coaching are not within the same area of expertise). Moreover, assuming the beneficiary 
possesses unique skills as a coach, which the recommendation letters do not reflect, the 
classification sought was not designed merely to alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdiction of the Department of Labor through the alien 
employment labor certification process. See Matter of New York State Dep't. of Transp., 22 I&N 
Dec. 215, 221 (Comm'r 1998). 
Furthermore, the majority of the recommendation letters refer to the beneficiary's potential or 
possible impact in the tennis field. For example, the petitioner stated that it considers the 
beneficiary "to be an integral part in the development of up and coming talent for the future of 
the United States and its endeavors in tennis." Further, ted that the beneficiary 
"can definitely develop a player to t~ting on the highest level such as the ATP 
tour [emphasis added]." Moreover, ______ stated that the beneficiary "can develop a 
player to a very high level [emphasis added]." In addition,_ stated that the beneficiary 
"can develop a young player into a world class professional [emphasis added]." Also, _ 
_ stated that "he will develop these players to the best of their ability [emphasis added]." 
Finally, stated that "whoever [the beneficiary] works with will improve their 
level greatly in the sport [emphasis added]." The authors of the letters fail to reflect that the 
beneficiary has already made original contributions of major significance in the field. There is 
no evidence, for example, demonstrating that the beneficiary has already developed world class 
tennis players. A petitioner cannot file a petition for the beneficiary under this classification 
based on the expectation of future eligibility. Given the descriptions in terms of future 
applicability and determinations that may occur at a later date, it appears that the beneficiary's 
coaching has not significantly impacted the field of tennis. The actual present impact of the 
beneficiary's contributions to coaching has not been established. Rather, the beneficiary's 
references appear to speculate about how the petitioner's coaching may affect the field at some 
point in the future. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), 
Page 13 
(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be 
approved at a future date after the beneficiary becomes eligible under a new set of facts. Matter 
of /zummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter 
of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into 
being only subsequent to the filing of a petition." Id. at 176. The assertion that the coaching of 
the beneficiary is likely to be influential is not adequate to establish that his coaching is already 
recognized as major contributions in the field. 
Some of the recommendation letters also discuss the beneficiary's work with students. For 
example, the petitioner submitted a letter that listed eight students that were under the tutela~ 
the beneficiary. While the letter briefly indicated the individual accomplishments, such as _ 
_ being ranked number three in Florida, being ranked number one in 
Michigan, as being ranked in the top 20 in Florida, the letter fails to reflect 
the impact or influence of the beneficiary's work in the field as a whole beyond the students with 
whom he has coached. . submitted a letter from the (the 
beneficiary's brother), has helped them 
improve their well as a indicated that the 
beneficiary the letters onl beneficiary's coaching 
contributions son rather than the 
or significance in the field as a whole. Furthermore, the 
petitioner submitted a letter who made general assertions without providing 
any specific information to establish that the beneficiary's contributions have been of major 
significance. For instance, _stated that the beneficiary's "expertise has allowed many 
professional tennis players ir game and successfully improve their tennis game, 
winning many tournaments.' ailed to identify any players who were coached by the 
beneficiary, which tournaments were won by the beneficiary's students, and how the success of 
the beneficiary's students have impacted the field in a significant manner. 
While those familiar with the beneficiary generally describe him as "extraordinary," there is 
insufficient documentary evicdence demonstrating that the beneficiary's contributions are of 
major significance in the field. This regulatory criterion not only requires the beneficiary to 
make original contributions, the regulatory criterion also requires those contributions to be 
significant. The AAO is not persuaded by vague, solicited letters that simply repeat the 
regulatory language but do not explain how the beneficiary's contributions have already 
influenced the field. Merely repeating the language of the statute or regulations does not satisfy 
the petitioner's burden of proof.6 The lack of supporting evidence gives the AAO no basis to 
gauge the significance of the beneficiary's present contributions. 
Further, USCIS may, in its discretion, use as advisory opinion 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 
6 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 14 
alien's eligibility for the benefit sought. Id. The submission of letters of support from the 
beneficiary's personal contacts is not presumptive evidence of eligibility; USCIS may evaluate 
the content of those letters as to whether they support the alien's eligibility. See id. at 79S; see 
also Matter of V-K-, 24 I&N Dec. SOO, n.2 (BIA 2008). Thus, the content of the writers' 
statements and how they became aware of the beneficiary's reputation are important 
considerations. 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. 
Again, the plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in the field [emphasis added]." Without additional, specific evidence 
showing that the beneficiary's work has been unusually influential, has significantly impacted 
the field as a whole, or has otherwise risen to the level of contributions of major significance, the 
AAO cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish 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. 
In the director's decision, he found that the petitioner failed to establish the beneficiary's 
eligibility for this criterion. A review of the record of proceeding reflects that the petitioner 
claimed the beneficiary's eligibility for this criterion based on the beneficiary's role with the 
World Tennis Organization, LLC (WTO). The plain language of the regulation at 8 C.F.R. 
§ 204.S(h)(3)(viii) requires "[e]vidence that the alien has performed in a leading or critical role 
for organizations or establishments that have a distinguished reputation [emphasis added]." In 
general, a leading role is evidenced from the role itself, and a critical role is one in which the 
alien was responsible for the success or standing of the organization or establishment. 
At the initial filing of the petition, the petitioner submitted a letter from 
who stated that the beneficiary "is the head coach at WTO mainly in charge 
of fitness training, match play, and strategic coaching at tournaments." In addition, the petitioner 
. for WTO reflecting tha_is the WTO founder and tennis director, 
the manager and tennis and life coach, and is the fitness 
~~~'~". as well as reflecting that the beneficiary is the head coach. 
In response to the director's request for evidence, the petitioner submitted another letter from. 
_who stated: 
WTO has been training National juniors, college players, and professional players 
for over 12 years under the company title of WTO. ~he founder 
of WTO, had designed many revolutionary drills an~ts that have 
unmatched results in player development and improvement. [The beneficiary], 
Page 15 
the head coach at WTO structures the daily program to best utilize these drills and 
teaching concepts. He gives mini seminars to promote our program and is in the 
process of creating a web video with _ to further get our message to aspiring 
tennis players. 
Based two letters and the brochure, the petitioner failed to demonstrate that the 
beneficiary in a leading or critical role for WTO. The submission of two letters 
that simply indicate the job title and generally claim that the beneficiary performed in a leading 
or critical role is insufficient to establish eligibility for this criterion. In other words, it cannot be 
determined from the beneficiary's job title alone that his role is leading or critical. The 
documentary evidence submitted by the petitioner fails to distinguish the roles of the beneficiary 
from the other employees of WTO, so as to establish that the beneficiary performed in a leading 
or critical role. For the failed to demonstrate that the petitioner's role is any 
more leading or critical In fact, when compared to the 
roles of president, founder, and director of the beneficiary performs in a far more 
subordinate role. Moreover, according letter, he was the individual who 
"designed many revolutionary drills and coaching concepts" rather than the beneficiary who 
utilizes _drills in his coaching. Moreover, the petitioner submitted an article entitled, 
"WTO Training Center: Diamond in Rough" from Florida Tennis which indicated that Mr. 
.. "is one of a few coaches in the world with documented, developmental results for 
increasing countless junior tennis player rankings over the past few decades." Although the 
documentary evidence reflects that the beneficiary performs in a role with WTO, the record falls 
far short in establishing that the beneficiary has performed in a leading or critical role. Clearly, 
_performs in a leading or critical role for WTO when compared to the lesser role of the 
beneficiary. < 
Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires that the 
beneficiary performed in a leading or critical role "for organizations or establishments that have 
a distinguished reputation." In response to the director's request for additional evidence, the 
petitioner submitted the article from Florida Tennis discussed above, as well as an advertisement 
for WTO in Florida Tennis. While the article provides a general background and profile of 
WTO, the article does not reflect that WTO has a distinguished reputation. The petitioner failed 
to submit any documentary evidence, for example, that compared WTO to other tennis training 
organizations. Furthermore, the advertisement is simply an announcement for WTO that 
publicizes itself. See Braga v. Poulos, No. CV 06 5105 SJO (c. D. CA July 6, 2007) aff'd 2009 
WL 604888 (9th Cir. 2009) (concluding that the AAO did not have to rely on self-serving assertions 
on the cover of a magazine as to the magazine's status as major media). 
On appeal, counsel argues letter demonstrates that WTO has a distinguished 
reputation. Specifically, that WTO has trained "more than 50 ATP 
professionals including former World number 18 Vincent Spadea," as well as "developed no 
fewer than 100 junior that have succeeded at the top of the collegiate tennis." As previously 
noted, the AAO need not rely on self-serving statements regarding WTO's 
reputation. The petitioner also submitted screenshots from \vww.atpworldtouLcom reflecting that 
Page 16 
the ATP on February 28,2005. Notwithstanding that the record of 
proceeding fails to of training 50 ATP professionals and 100 junior 
players, as well as evidence was trained by WTO, the AAO is not persuaded that 
such claims are demonstrative a reputation. As WTO is an organization whose 
basic function is to train junior, collegiate, and professional players, the general, unsupported claims 
regarding WTO's achievements do not establish that it has a distinguished reputation as required by 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Finally, even if the petitioner were to submit supporting documentary evidence showing that the 
beneficiary meets the elements of this criterion, which it has not, section 203(b)(1)(A)(i) of the 
Act requires the submission of extensive evidence. Consistent with that statutory requirement, the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires a leading or critical role in 
more than one organization or establishment. In the case here, the petitioner only claimed the 
beneficiary's eligibility based on his role with WTO. Significantly, not all of the criteria at 8 C.P.R. 
§ 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) 
and (ix) only require service on a single judging panel or a single high salary. When a regulatory 
criterion wishes to include the singular within the plural, it expressly does so as when it states at 8 
C.P.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, the 
AAO can infer that the plural in the remaining regulatory criteria has meaning. In a different 
context, federal courts have upheld USCIS' ability to interpret significance from whether the 
singular or plural is used in a regulation? 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opmlOn, the AAO 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.P.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 at 
1115. The beneficiary failed to meet any of the criteria, in which at least three are required under 
the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the deficiencies in the 
documentation submitted by the petitioner have already been addressed in the AAO's preceding 
discussion of the regulatory criteria at 8 C.P.R. § 204.5(h)(3). 
7 See Maramjaya v. USc/S, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26,2008); Snapnames.com Inc. v. 
Chertoff, 2006 WL 3491005 at * 10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory 
requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 c.F.R. § 204.5(1)(2) requires a single 
degree rather than a combination of academic credentials), 
Page 17 
In evaluating the AAO's final merits determination, the AAO must look at the totality of the 
evidence to conclude the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the Act. In 
this case, the petitioner established that the beneficiary is a former professional tennis player who 
is now a head coach and has instructed various levels of players. However, the personal 
accomplishments of the beneficiary fall far short of establishing that he "is one of that small 
percentage who have risen to the very top of the field of endeavor" and that he "has sustained 
national or international acclaim and that his or her achievements have been recognized in the 
field of expertise." See 8 C.F.R. § 204.5(h)(2), 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 regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. 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. § 204.5(h)(2). 
The AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the beneficiary'S sustained national or international acclaim. See section 
203(b)(1)(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). In the case here, the petitioner claimed the beneficiary'S eligibility for the 
awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i) and the published material 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) based entirely on the 
beneficiary'S previous occupation as a tennis player rather than the beneficiary's current field of 
expertise as a tennis coach. Moreover, the petitioner became a member of STAas a junior level 
player. See Lee v. I.N.s., 237 F. Supp. 2d at 914 (upholding a finding that competitive athletics 
and coaching are not within the same area of expertise). In fact, the petitioner failed to submit 
any documentary evidence regarding any nationally or internationally recognized prizes or 
awards for excellence that were garnered by the beneficiary as a coach or any published material 
about the beneficiary relating to his work as a tennis coach in professional or major trade 
publications or other major media. The lack of awards or published material as a tennis coach 
fails to reflect that the beneficiary "is one of that small percentage who have risen to the very top 
of the field" and a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. 
No. 101-723,59 (Sept. 19, 1990). 
The petitioner also failed to demonstrate that the beneficiary's membership with USPT A as a 
Professional 3 (entry level) requires outstanding achievements of their members, so as to reflect 
Page 18 
that his "achievements have been recognized in the field of expertise." See section 
203(b)(1)(A)(i) of the Act and 8 C.P.R. § 204.5(h)(3). 
Regarding the original contributions criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(v), the petitioner based the beneficiary's eligibility entirely on recommendation 
letters. It must be emphasized that the favorable opinions of experts in the field, while not 
without evidentiary weight, are not a solid basis for a successful extraordinary ability claim. 
Again, USCIS may, in its discretion, use as advisory opinions statements submitted 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. Id. Again, none of the letters submitted on behalf of the beneficiary reflect any 
original contributions of major significance made by the beneficiary. 
As it relates to the leading or critical role criterion pursuant to the regulation at 8 C.P.R. § 
204.5(h)(3)(viii), the petitioner claimed the beneficiary'S eligibility based solely on his role with 
WTO, a single organization whose distinguished reputation the petitioner failed to establish. 
Evidence of multiple leading or critical roles as a tennis coach for nationally or internationally 
acclaimed tennis training institutions would constitute more extensive documentation and is far 
more indicative that the petitioner is one of "that small percentage of individuals that have risen to 
the very top of their field of endeavor." 8 C.P.R. § 204.5(h)(2). 
The AAO notes that the beneficiary's references' accomplishments are far more impressive than his 
own. For "trained and worked with five players that have reached 
Number One in tennis world on the Men's and Women's Tour including: 
In 
the USPT A Coach of the Year seven times. 
In contrast, the beneficiary relies on his accomplishments as a coach of junior level players. 
Specifically, according to the petitioner, the following are the accomplishments of the 
beneficiary's students: 
1. Ranked 3rd in Florida, Florida sectional champion, and top 
20 blue chip recruit; 
2. __ Reached the round of 16 at the Boys 18's National Clay 
Court Championships; 
3. Runner-up in the North Florida Designated, 
winner of Extreme Tennis Academy junior tournament, and finalist at the 
Miramar Super Series; 
4. - Top 20 currently in Florida for Girls 10 and under; 2 
time Super Series winner; 
Page 19 
5. •••••• 1- Number 1 12 year old in Michigan, Girls 14's Super 
Series winner; 
6. __ Qualifier at the Boys 12's Tallahassee Designated; 
7. Top 100 in the Boys 12's in Florida; and 
8. - Orange Bowl participant in 2008 Boys 14's. 
The accomplishments of the beneficiary's students are limited to regional and junior level 
tournaments and competitions. USCIS has long held that even athletes performing at the major 
league level do not automatically meet the statutory standards for immigrant classification as an 
alien of "extraordinary ability." Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994); 
56 Fed. Reg. at 60899.8 Likewise, it does not follow that the beneficiary who has coached junior 
level players who have achieved minimal to moderate regional success should necessarily 
qualify for approval of an extraordinary ability employment-based visa petition. To find 
otherwise would contravene the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa 
category be reserved for "that small percentage of individuals that have risen to the very top of 
their field of endeavor." 
In this matter, the evidence of record falls short of demonstrating the beneficiary's sustained 
national or international acclaim as a tennis coach. The conclusion the AAO reaches by 
considering the evidence to meet each category of evidence at 8 C.F.R. § 204.5(h)(3) separately 
is consistent with a review of the evidence in the aggregate. Ultimately, the evidence in the 
aggregate does not distinguish the beneficiary as one of that small percentage who has risen to 
the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(h)(2). While the petitioner need not 
demonstrate that there is no one more accomplished than the beneficiary to qualify for the 
classification sought, it appears that the very top of his field of endeavor is far above the level he 
has attained. The petitioner seeks a highly restrictive visa classification for the beneficiary, 
intended for individuals already at the top of their respective fields, rather than for individuals 
progressing toward the top at some unspecified future time. In this case, the petitioner has not 
8 The AAO notes that in Matter of Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not a 
comparison of Racine's ability with that of all the hockey players at all levels of play; but rather, 
Racine's ability as a professional hockey player within the NHL. This interpretation is consistent 
with at least one other court in this district, Crimson v. INS, No. 93 C 3354, (N.D. Ill. September 
9, 1993), and the definition of the term 8 c.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that USCIS' interpretation of the regulation at 8 c.F.R. § 204.5(h)(2) is reasonable. 
Page 20 
established the beneficiary's achievements at the time of filing the petition were commensurate 
with sustained national or international acclaim as a coach/instructor, or that he was among that 
small percentage at the very top of the field of endeavor. 
IV. P-l Nonimmigrant Admission 
The AAO notes that at the initial filing of the petition, the petitioner indicated on Form 1-140 that 
the beneficiary was last admitted to the United States on November 29, 2009, as a P-1 
nonimmigrant, a visa classification that requires the alien to perform as an athlete, either 
individually or as part of a team, at an internationally recognized level of performance, and that 
the alien seeks to enter the United States "temporarily and solely for the purpose of performing 
as such an athlete." See section 214(c)(4)(A) of the Act, 8 U.S.C. § 1184(c)(4)(A). The current 
record is devoid of any evidence to indicate that the petitioner is performing as an athlete at an 
internationally recognized level or that he is in the United States "temporarily and solely" for the 
purpose of performing as such an athlete. However, while USCIS has approved at least one P-1 
nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does not preclude 
USCIS from denying an immigrant visa petition based on a different standard. 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 1-129 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 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, 191&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 has approved a 
nonimmigrant petition on behalf of the alien, 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.), aifd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
aifd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
Page 21 
v. 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 and 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 eligibility pursuant to section 
203(b)(1)(A) of the 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.