remanded EB-1A Case: Acrobatics

PUBLIC COPY 
U.S. Department of -Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
--- 
EAC 05 112 51776 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
Thls is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any fbrther inqulry must be made to that office. 
jhl[~~x ,yJ [gdl /(,I( , 
-. WL 
I '~obert P. Wiemann, Chief 
'r Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Adrmtllstrative Appeals Office (AAO) on appeal. The decision of the director will 
be withdrawn and the petition will be remanded for further action and consideration. 
The petitioner seeks classification as an "alien of extraordinary ability," pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U. S .C. $ 1 1 5 3(b)(l)(A). The director determined the petitioner had 
not established that he qualifies for classification as an alien of extraordinary ability. 
On appeal, counsel argues that the director's "denial fails to give proper weight" to certain evidence and ignores 
other evidence entirely. For the reasons discussed below, we find that the director's decision fails to explain the 
deficiencies in the evidence submitted consistent with the regulations such that the petitioner could file a 
meaningful appeal addressing those deficiencies. The director's decision contains errors of law and ignores or 
incorrectly evaluates much of the petitioner's evidence and arguments. Thus, we must remand the matter to the 
director for issuance of a new request for evidence that properly addresses the deficiencies in the record. If the 
director concludes that the petitioner's response to such a notice does not overcome the specified deficiencies, the 
director must issue a decision that applies the applicable statutory and regulatory requirements to the evidence 
submitted. We provide the following guidance in complying with this remand order. 
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, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit prospectively the 
United States. 
Citizenship and Immigration Services (CIS) and legacy Immigration and Naturalization Service (INS) have 
consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant 
visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 60898-9 (November 29, 1991). As used in 
this section, the term "extraordinary ability" means a level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). The 
specific requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. 
Page 3 
!$ 204.5(h)(3). The relevant criteria are listed below. It should be reiterated, however, that the petitioner must 
show that he has sustained national or international acclaim at the very top level. 
This petition, filed on March 10,2005, seeks to classify the petitioner as an alien with extraordinary ability as an 
"acrobat." The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international recognized 
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which 
must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary 
ability. The criteria follow. 
(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 recogmzed 
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 whch 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 in the field, in 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; 
(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 commerrcial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 
In a March 4, 2005 letter accompanying the petition, counsel asserts that the petitioner has won major 
internationally recognized awards through his national championship victories in China in 1 984, 1985, 1 986, and 
1987 and through his frrst place at the International Acrobatics Championship in Poland in 1986. As indicated 
Page 4 
above, the regulation at 8 C.F.R. 5 204.5(h)(3) states that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international recognized 
award). The plain language of ths regulation requires major "international" recognition rather than national 
recognition. As such, the "national" championships won by the petitioner in China do not satisfy the plain 
language of the regulation. Regarding the petitioner's first place at the International Acrobatics Championship 
in 1 986, there is no supporting evidence showing that this event commanded substantial international 
recognition. 
Given Congress' intent to restrict this category to "that small percentage of individuals who have risen to the 
very top of their field of endeavor," the regulation permitting eligibility based on a single award must be 
interpreted very narrowly, with only a small handful of awards qualifying as major, internationally recognized 
awards. See H.R. Rep. 101-723 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 1990 WL 200418 at *6739. 
Given that the House Report specifically cited to the Nobel Prize as an example of a one-time achievement, 
examples of one-time awards whlch enjoy truly international recognition may include the Pulitzer Prize, the 
Academy Award, and (most relevant for athletics) the Olympic Gold Medal. These prizes are "household 
names," recognized immediately even among the general public as being the highest possible honors in their 
respective fields. In this case, there is no evidence showing, for example, that the International Acrobatics 
Championship in Poland was broadcast on television to a substantial international audience or that it attracted 
significant major media coverage at the international level (in the same manner as events such as the Summer 
Olympics or the World Cup of Soccer). The record does not establish that the petitioner's first place at this 
acrobatics championship, which should be evaluated by the director as a lesser nationally or internationally 
recognized prize or award under the criterion at 8 C.F.R. 5 204.5(h)(3)(i), commands international recognition 
comparable to the Nobel Prize. Thus, the petitioner's evidence fails to demonstrate that he is the recipient of 
a maj or, internationally recognized award. 
At the time of filing, the petitioner submitted evidence of various awards, published material about his troupe's 
acrobatic accomplishments, an October 15, 2004 "Certification" fi-om the Sichuan Province Literature and Arts 
Association stating that he judged four competitions during the 1990's, and evidence of hs authorshp of articles 
pertaining to acrobatics. In the March 4,2005 letter accompanying the petition, counsel argued that this evidence 
satisfies the regulatory criteria at 8 C.F.R. $5 204.5(h)(3)(i), (iii), (iv), and (vi). 
On June 7, 2005, the director issued a request for additional evidence. Specifically, the director requested 
evidence of the petitioner's awards, membershps, published material about the petitioner, and hs salary. The 
director provides no explanation for singling out these four criteria. Nothing in the regulation implies that an 
alien must meet any specific criterion as long as the alien meets at least three of the ten criteria at 8 C.F.R. 
§ 204.5(h)(3). The director also noted that the record lacked letters "from well-known persons" in the 
petitioner's field although most of the criteria require objective evidence of achievements as opposed to letters of 
support fiom recognized experts, however credible their opinions may be. 
In response, the petitioner submitted additional information about his awards, testimonials fiom acrobatic troupes 
that he coached, further articles authored by hm, and evidence of hs salary. The petitioner's response also 
included an August 3 1, 2005 letter fi-om counsel requesting that the recommendation letters submitted in the 
petitioner's behalf be considered as "other comparable evidence of extraordinary ability." The regulation at 
8 C.F.R. 5 204.5(h)(4) allows for the submission of comparable evidence, but only if the ten criteria "do not 
readily apply to the beneficiary's occupation." The regulatory language precludes the consideration of 
comparable evidence in this case, as there is no indication that eligibility for visa preference in the petitioner's 
occupation cannot be established by the ten criteria specified by the regulation. Of the ten criteria, counsel 
has argued that at least five readily apply to the petitioner's occupation.' Where an alien is simply unable to 
meet three of the regulatory criteria, the plain language of the regulation does not allow for the submission of 
comparable evidence. 
In the November 2, 2005 decision denying the petition, the director listed all ten of the regulatory criteria, but 
only discussed awards, salary, and membership, a criterion not addressed by the petitioner. The director 
acknowledged that the petitioner based his eligibility claim on his awards but concluded that he had not 
demonstrated whether the awards were individual or "as a member." Nothing in the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) precludes team awards. Further, as noted by counsel, a number of the awards submitted by the 
petitioner were individual awards, not team awards. As such, the director's focus on that issue was in error. The 
director also stated that the petitioner had not submitted "objective evidence, such as affidavits fi-om well-known 
U.S. organizations or individuals, to support your claims of prestige and ability." While affidavits may serve as 
valid evidence, they are far more subjective than objective. Evidence that addresses the regulatory criteria, such 
as awards and independent journalistic coverage of the alien, is far more persuasive than the subjective opinions 
of experts in the field. Thus, the implication that expert letters from U.S. sources are required to establish 
eligibility under this classification is in error. Finally, the director's decision included no discussion of the 
evidence submitted for the criteria at 8 C.F.R. §tj 204.5(h)(3)(iii), (iv), and (vi). 
Beyond the decision of the director, section 203(b)(l)(A)(i) of the Act and the regulation at 8 C.F.R. 
§ 204.5(h)(3) require the petitioner to demonstrate that his national or international acclaim has been 
sustained. The record, however, includes no evidence showing that the petitioner has competed as an acrobat 
subsequent to May 2002. There is no evidence showing that the petitioner, age 34 at the time of filing, remains 
active at the national or international level as a competitive acrobat. The director's decision failed to address this 
deficiency. 
Further, the regulation at 8 C.F.R. 5 204.5(h)(5) requires "clear evidence that the alien is coming to the United 
States to continue work in the area of expertise. Such evidence may include letter(s) fi-om prospective 
employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary 
detailing plans on how he or she intends to continue his or her work in the United States." The record 
includes no such evidence. Counsel states that the petitioner was employed as a coach of the Chongqin 
Acrobatics Troupe fi-om 1996 to 1998 and as a coach of the Yun-nan Province Acrobatics Troupe fi-om 1998 to 
2000. A July 5, 2005 letter from the Hunan Province Acrobatics Troupe states that this organization employed 
the petitioner from 2000 to 2004. The record, however, does not include clear evidence showing that the 
petitioner intends to work as a coach in the United States. The director's decision failed to address this 
deficiency. 
Assuming that the petitioner does intend to work as an acrobatics coach in this country, he must show that he has 
sustained national or international acclaim based on his achievements as a coach rather than his prior 
1 
Counsel has argued that the petitioner's evidence meets the regulatory criteria at 8 C.F.R. $$204.5(h)(3)(i), 
(iii), (iv), (vi), and (ix). 
reputation as a competitive acrobat. While a competitive acrobat and a coach certainly share knowledge of 
acrobatics, the two rely on very different sets of basic skills. Thus, competitive acrobatics and coaching are 
not the same area of expertise. This interpretation has been upheld in Federal Court. In Lee v. IN. S., 237 F. 
Supp. 2d 914 (N.D. Ill. 2002), the court stated: 
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. Thus, if the petitioner intends to work as an 
acrobatics coach in the United States, he must demonstrate sustained national or international acclaim as a 
coach. The director's decision, however, does not address this issue. 
In this matter, we find that the director's decision failed to explain the deficiencies in the evidence submitted 
consistent with the regulations such that the petitioner could file a meaningful appeal addressing those 
deficiencies. Thus, whle we agree with the director that the petitioner has not demonstrated eligibility pursuant 
to section 203(b)(l)(A) of the Act, we must remand the matter to the director for issuance of a new request for 
evidence notice that properly addresses the deficiencies in the record. The director should request the following: 
1. 
 Originals of all award certificates submitted in support of the petition. 
 Pursuant to the 
regulation at 8 C.F.R. 5 103.2(b)(5), CIS has the discretion to request the originals of any 
photocopies submitted. 
2. Primary evidence of the petitioner's 1984, 1985, 1986, and 1987 "National Champion" awards 
and his "1" Place" award fkom the International Acrobatics Championship in Poland in 1986. 
Presently the record includes only an October 8, 2004 certification from the Sichuan Sports 
Technical Institute attesting to their existence. Contemporaneous evidence of the petitioner's 
actual award from each of the preceding competitions is of far greater probative value than an 
October 8, 2004 certification issued almost two decades after these competitions allegedly 
took place. 
3. The complete address and telephone number through which the Sichuan Sports Technical 
Institute may be contacted. 
4. Circulation statistics or other evidence showing that the publications that have covered the 
petitioner or his acrobatics troupes had significant national distribution to the extent that they 
would qualify as major media. 
5. The complete address and telephone number through which the Sichuan Province Literature and 
Arts Association may be ~ontacted.~ The petitioner should also submit evidence showing the 
names of the individuals he judged and their level of expertise. Contemporaneous evidence 
of the petitioner's participation as a judge at each competition is of far greater probative value 
2 
 The petitioner submitted an October 15, 2004 "Certification" from the Sichuan Province Literature and Arts 
Association stating that he judged four competitions during the 1990's. 
Page 7 
than an October 15, 2004 "Certification" issued several years after these competitions 
allegedly took place. 
6. Original issues of the publications that featured articles authored by the petitioner submitted in 
support of the petition. Pursuant to the regulation at 8 C.F.R. § 103.2(b)(5), CIS has the 
discretion to request the originals of any photocopies submitted. 
7. Circulation statistics or other evidence showing that the publications featuring articles authored 
by the petitioner had significant national distribution to the extent that they would qualify as 
rnaj or media. 
8. National salary statistics fkom an official source showing that the petitioner's compensation was 
significantly high in relation to others in his field. 
9. Clear evidence that the petitioner is coming to the United States to continue work in the area 
of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of 
prearranged commitments such as contracts, or a statement from the petitioner detailing plans 
on how he intends to continue his work in the United States. 
10. If the petitioner intends to work as a coach in the United States, he must submit evidence 
showing that his national acclaim as a coach has been sustained. The record, however, includes 
no evidence showing that acrobats coached by the petitioner have won nationally or 
internationally recognized awards subsequent to 1 998. 
1 1. If the petitioner intends to work as an acrobat in the United States, he must submit evidence 
showing that his national acclaim as an acrobat has been sustained. The record, however, 
includes no evidence showing that the petitioner has competed for awards subsequent to May 
2002. 
The director may request any additional evidence deemed warranted. Pursuant to 8 C.F.R. 5 1 03.2(b)(12) and 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comrn. 1 97 I), any evidence submitted by the petitioner in response 
to the director's request must demonstrate his eligibility at the time of filing (March 10, 2005). If the director 
concludes that the petitioner's response does not overcome the deficiencies in the record, the director shall issue a 
decision that addresses all of the petitioner's evidence and that applies the pertinent statutory and regulatory 
requirements in the analysis of the evidence. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the alien 
has achieved sustained national or international acclaim, is one of the small percentage who has risen to the very 
top of the field of endeavor, and seeks continue work in hs area of expertise in the United States. The evidence 
of record does not establish that the petitioner meets these requirements. 
As always, the burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 4 1361. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for further action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the AAO for review.