remanded EB-1A Case: Athletics

identifying data deletedto 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
WAC 05 071 51497 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
/~U,P*~'I?[&*(,{ ;i & 
^ >&be* P. Wiemann, chief - 
Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office 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director will be withdrawn and the petition will be remanded for further action and consideration.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" in athletics, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 1 53(b)(l)(A). The director 
determined the petitioner had not established "that he is an alien of extraordinary ability who is self- 
employed AND who has been receiving significantly high remuneration for his services in relation to 
others" and had not submitted "convincing evidence that he will be working in a position on a full-time 
basis." (Emphasis in original.) The director further stated that the petitioner had not established "the 
sustained acclaim necessary to qualify as an alien of extraordinary ability." (Emphasis in original.) 
The director, however, provides no analysis of the evidence submitted to show sustained acclaim under 
the regulatory criteria. 
On appeal, counsel asserts that the petitioner is not required to demonstrate 111-time employment or 
high remuneration provided he meets three additional criteria. Counsel further asserts that the director 
failed to consider the evidence regarding the petitioner's intent to open and operate his own training 
facility. We concur with counsel that the director misapplied the regulation at 8 C.F.R. 5 204.5@)(5) 
relating to the petitioner's future employment in the United States. Moreover, the director failed to 
include any analysis or explanation for his conclusion that the petitioner has not demonstrated sustained 
acclaim, precluding a meaningful appeal on that issue. Moreover, if it is the director's position that an 
alien cannot qualify for the classification sought without meeting the regulatory criterion at 8 C.F.R. 
5 204.5(h)(3)(ix), that position is not justified by the pertinent regulation in this matter. 
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. 
Job Offer 
The regulation at 8 C.F.R. 8 204.5(h)(5) provides: 
No offer of employment required. Neither an offer for employment in the United States 
nor a labor certification is required for this classification; however, the petition must be 
accompanied by 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) from 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. 
director's first request for additional evidence, the petitioner submitted a letter from 
Manager of Mountain Adventure Seminars asserting that the company would like to 
hire the petitioner to train their current backcountry snow instructors on the specific techniques of 
traveling with clients on snowboards in the backcountry and as a backcountry instructor for 
snowboarding courses. indicates that their season typically runs fiom December through 
April. 
On November 29, 2005, the director requested additional evidence stating that the petitioner had not 
demonstrated that his entry into the United States would benefit the United States prospectively 
because he has not submitted evidence that he is coming to the United States to continue working in his 
area of expertise or evidence of "past, present, or future remuneration." The director then requested 
evidence "in the form of statements and contracts from current andlor prospective employer AND a 
statement from the petitioner detailing plans on how he intends to continue work in the United States." 
(Emphasis in original.) This request exceeds the requirements set forth in the regulation at 8 C.F.R. 
8 204.5(h)(5), which uses the disjunctive "or." 
In response, the petitioner submitted a new letter fro 
 asserting that in 2004, the company 
had extended to the petitioner an offer to head their snowboarding classes and expeditions but that the 
petitioner was not authorized to work. More recently, however, the petitioner accepted a contract to 
train the backcountry snowboarding instructors and coach advanced clients. The terms would have the 
petitioner working December through April at $15 per hour. The petitioner also submitted his own 
statement indicating that he eventually intended to open his own school and establish a training base for 
elite level competitors who compete on an international level. 
On March 23, 2006, the director issued a third request for additional evidence, noting the petitioner's 
failure to submit an actual contract. The director also stated that employment fiom December through 
April is not "fbll-time." The director questioned why Mountain Adventure Seminars' website does not 
list the petitioner as an instructor. The director also requested statements fiom the athletes the 
petitioner proposes to train at his own facility, once opened. 
In response, counsel asserts that the statute and regulations do not require evidence of future full-time 
employment but an intent to "work." The petitioner submitted a third letter from - 
reiterating their inten 
 e petitioner December through April or November through May if 
the weather permits. 
 asserts that she anticipates that the petitioner "will be able to 
conduct training and safety seminars in the off-season of June thru October." Finally, - 
asserts that they have not listed the petitioner as an instructor on their website due to the temporary 
nature of his immigration status. The petitioner also submits letters fiom Bulgarian snowboarders 
and asserting that they were 
previously coached by the petitioner until he moved to the United States in 2000 and would "seek the 
necessary temporary visa" to train with the petitioner if he opened his own facility. 
The director then denied the petition, asserting that the "highly restrictive" nature of the classification 
sought implies that an alien who is not self employed and earning significantly hgh remuneration 
should be required to submit evidence of full-time employment. The director concluded that the 
petitioner had not demonstrated that his employment would be full-time or year round. Finally, the 
director concludes that counsel's assertion that documentation of full-time employment is not necessary 
indicates that such evidence cannot be produced in this matter. 
On appeal, counsel asserts that the statute and regulations do not require evidence of full-time 
employment and that the director failed to consider the evidence submitted. 
We concur with counsel that the statue and regulations do not expressly require full-time year round 
employment. Clearly, we would not reject an extraordinary baseball, hockey or football player solely 
because the teams do not compete year round. That said, the visa classification is an employment- 
based visa classification and the alien is expected to continue working in his area of expertise. Thus, 
we would expect that the alien would be able to support himself within his area of expertise. 
The director's concerns are understandable, especially as the petitioner provides very little explanation 
as to how creating a training facility in the United States for Bulgarian snowboarders to attend on 
nonirnmigrant visas will prospectively benefit the United States. That said, we cannot ignore the plain 
language of the regulation at 8 C.F.R. 8 204.5(h)(5), which only requires the submission of one of 
several types of evidence. Counsel's correct observation that the language in 8 C.F.R. 5 204.5@)(5) 
does not require the evidence requested by the director should not be considered an admission of 
ineligibility, as the director implies. The petitioner has submitted the evidence required under that 
regulation, letters fiom prospective employers and his own statement. The petitioner even complied 
with the director's request for letters fiom snowboarders willing to train with the petitioner. We are 
satisfied, for the reasons discussed above, that the petitioner has met his burden under 8 C.F.R. 
8 204.5(h)(5). 
Extraordinary Ability 
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@)(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. 5 204.5@)(3). The relevant criteria will be addressed 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 seeks to classify the petitioner as an alien with extraordinary ability as a snowboarding 
coach. 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. Nothing in the regulation at 8 C.F.R. 5 204.5(h)(3) suggests that 
any one particular criterion must be met provided an alien meets at least three of the ten criteria. 
The petitioner has submitted evidence that, he claims, demonstrates his receipt of awards pursuant to 
8 C.F.R. 5 204.5(h)(3)(i),' his memberships pursuant to 8 C.F.R. €j 204.5(h)(3)(ii), that he has judged 
the work others in the same or allied field pursuant to 8 C.F.R. 5 204.5(h)(3)(iv), that he has made 
contributions of major significance pursuant to 8 C.F.R. 5 204.5(h)(3)(v) and that he has performed in a 
leading or critical role pursuant to 8 C.F.R. 5 204.5(h)(3)(viii). The only criterion discussed by the 
director, however, is high remuneration pursuant to 8 C.F.R. 5 204.5@)(3)(ix), a criterion the petitioner 
does not claim to meet. 
The director emphasized that the petitioner had not demonstrated sustained acclaim but failed to 
provide a basis for that statement. We acknowledge that the petitioner entered the United States in 
2000, five years prior to filing the petition. The petitioner must demonstrate that he continued to enjoy 
sustained acclaim as of the date of filing. The director, however, did not clearly explain this concern in 
the final decision. If the sustained nature of the petitioner's acclaim is to be a basis of denial, the 
director must elaborate on why the petitioner has not sustained any acclaim he may have enjoyed in 
Bulgaria during his five years in the United States. 
Finally, the director must evaluate the evidence under the regulatory criteria claimed. The director shall 
advise the petitioner that the evidence relating to one criterion does not appear consistent with evidence 
1 
The petitioner seeks classification as a snowboarding coach with extraordinary ability. The petitioner has 
been coaching for many years; thus, he must meet the criteria as a coach not as an athlete. See generally Lee 
v. I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002). A coach, however, can meet this criterion through comparable 
evidence pursuant to 8 C.F.R. 5 204.5(h)(4) by demonstrating that athletes under his tutelage have won 
nationally or internationally recognized prizes or awards while under the alien's tutelage. 
relating to another. Specifically, four award-winning snowboarders assert that th ' coached 
them ''until he moved to the U.S." in 2000. In a joint letter, and directors 
of the Bulgarian Snowboarding Federation, assert that "athletes coached by [the petitioner] have 
participated andlor won titles at the Balkan Cups, the European Cups, and the Olympics games in 
Nagano, Japan and many other outstanding talents." They continue: "Between 1994 and 1998, under 
[the petitioner's] tutelage members of the national team established themselves as elite competitors 
with national and international acclaim." , Director of the Snowboard Section of the 
Bulgarian Ski Federation, confirms that the petitioner served as a judge in the national championships 
during 1993 through 1998 and as a head judge during the championships' finals where specific athletes 
won, many of whom the petitioner is alleged to have coached during this period. The petitioner has 
never explained how he was permitted to judge athletes in national competitions that he was currently 
coaching. 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 Ho, 19 I&N Dec. 582,59 1-92 (BIA 1988). 
Therefore, this matter will be remanded for consideration of the petitioner's eligibility under the 
regulatory criteria, including an analysis of whether the petitioner enjoyed sustained acclaim as of the 
date of filing. As always in these proceedings, the burden of proof rests solely with the petitioner. 
Section 291 of the Act, 8 U.S.C. tj 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 Administrative Appeals Office for 
review.