remanded EB-1A Case: Athletics

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: 
 Imrmgrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Imgration and Nationality Act, 8 U.S.C. 9 1 153(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 hrther inquiry must be made to that office. 
U 
%obert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, initially approved the preference visa petition. 
Subsequently, the director issued a notice of intent to revoke the approval of the petition (NOIR). In a 
Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for 
Alien Worker (Form 1-140). The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The AAO will withdraw the director's decision; however, because the petition is not 
approvable, it is remanded for Mher action and consideration. 
Section 205 of the Act, 8 U.S.C. 5 1155, states, in pertinent part, that the Secretary of Homeland 
Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval 
of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter ofEstime, 19 I&N Dec. 450 (BIA 
1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient 
cause for the revocation of the approval of an immigrant petition. Id. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary 
step in the visa application process. Id. at 589. The beneficiary is not, by mere approval of the 
petition, entitled to an immigrant visa. Id. 
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 1 153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualify for classification as an alien of extraordinary ability and that he sought to continue in his area 
of expertise. 
On appeal, counsel submits copies of a complaint filed by counsel with the United States District 
Court, Southern District of Florida and counsel's "Third Emergency Motion and Memorandum of 
Law" and Service Center decisions relating to counsel's other clients. None of this evidence relates to 
the eligibility of the petitioner in this matter. Counsel also submits a supplemental brief asserting that 
the director's decision is contrary to an expert opinion submitted and asserting that the director did not 
inquire in the notice of intent to revoke whether the petitioner sought to continue in his area of expertise 
but that the petitioner nevertheless submitted such evidence. Counsel does not address the director's 
specific concerns. 
The opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
success~l claim of sustained national or international acclaim. Citizenship and Immigration 
Services (CIS) may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 79 1, 795 (Commr. 1988). However, 
CIS is ultimately responsible for making the final determination regarding an alien's eligibility for 
the benefit sought. Id. The submission of letters fiom experts supporting the petition is not 
presumptive evidence of eligibility; CIS may evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795. CIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. at 795; See also 
Matter of Sofici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
Moreover, counsel is factually wrong that the director's August 23, 2007 notice of intent to revoke 
the approval of the petition was not concerned with whether or not the petitioner continues to 
compete as a swimmer. The director noted: "In fact, it appears the [petitioner] has not swam 
competitively since graduating fiom college in 2005 and has been employed for a rental company as 
a salesman since graduation." 
While counsel's assertions on appeal are not persuasive, we find that the director failed to accord 
proper weight to the petitioner's Olympic participation and bronze medal. Moreover, the director 
failed to consider evidence that the petitioner has continued to train as a swimmer since graduating, a 
fact that is not contradicted by his adjustment of status interview, the videotape of which appears in 
the record. Nevertheless, we cannot ignore that the petitioner is training to compete on the Brazilian 
national team. Thus, for the reasons discussed below, we must remand the matter to the director for 
an inquiry as to whether the petitioner will substantially benefit prospectively the United States as 
mandated by section 203(b)(l)(A)(iii), quoted below. 
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. 
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 (Nov. 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. 5 204.5(h)(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 swimmer. The 
regulation at 8 C.F.R. tj 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). As acknowledged by the director, the petitioner competed in the Olympics in 2000 
and 2004. He received a bronze medal in 2000. The director dismissed the significance of this medal 
because it is a bronze medal and because it was a relay race involving a team of swimmers. We are 
satisfied that an Olympic medal, even a bronze, constitutes a one-time achievement. Moreover, we do 
not find that the significance of this award is diminished because it was a relay rather than an individual 
medal. The petitioner was personally awarded the bronze medal and was one of the relay swimmers to 
compete in the relay race. It is not a case where the petitioner was on the sidelines while his team won 
without his participation. Thus, we are satisfied that the petitioner has the one-time achievement 
necessary to establish the required national or international acclaim as an athlete. 
The next issue is whether the petitioner seeks to enter the United States to continue working in his area 
of expertise pursuant to section 203(b)(l)(A)(ii) of the Act. The director noted that the petitioner stated 
at his adjustment of status interview that he had not competed since graduating from college in August 
2005 and acknowledged the petitioner's assertion that he is training for the 2008 Olympics. The 
director concluded, however, "there is insufficient evidence to demonstrate the petitionerheneficiary is 
continuing his participation as a swimmer as of the filing of the instant petition on June 14, 2006 or 
anytime thereafter." 
In response to the director's notice of intent to revoke the approval of the petition, counsel assert 
the etitioner had won a bronze medal at Swim Miami in 2006 and references a letter from 
Head Swimming and Diving Coach at the University of Miami. 
 asserts that 
Page 5 
swimmers get little financial compensation for swimming and must make a living in another field. 
Counsel references exhibit 12 as evidence that the petitioner has won "back to back bronze medals" at 
Swim Miami. Exhibit 12 includes a Certificate of Excellence issued to the petitioner by Swim Miami 
2006. It does not confirm any award at this competition in 2006 or any other year. The petitioner also 
ted Internet materials about Swim Miami that do not list any results and a letter from - 
, Director of Operations at Swim Gym / Miami Sports International, purporting to confirm that 
the petitioner won a bronze medal at Swim Miami, a Swim Gym event, in 2005 and 2006. 
The non-existence or unavailability of required evidence creates a presumption of ineligibility. 
8 C.F.R. 5 103.2(b)(2)(i). Primary evidence of an award is the award itself. Secondary evidence of an 
award may include news coverage of the award. Only where the petitioner demonstrates that primary 
and secondary evidence are both unavailable or do not exist can the petitioner rely on affidavits. Id. 
The petitioner has not submitted primary or secondary evidence documenting his bronze medals at 
Swim Miami or evidence that ~rimaw and secondarv evidence of this award does not exist or is 
J 
unavailable. Thus, the letter fro 
 is insufficient evidence that the petitioner won bronze 
medals at these events. 
 does establish that the petition 
event in 2006. Moreover, the record contains a September 14, 2007 letter from 
Technical Director of the Brazilian Swimming Federation, confirming that federation's interest in the 
petitioner's participation in the 2008 Olympics as part of Brazil's national team. 
The director does not appear to have taken this evidence into consideration. We find that this evidence 
adequately demonstrates that the petitioner continues to participate in competitive swimming. 
While we withdraw the director's bases of revocation, the record does not, at this time, demonstrate 
that the petitioner meets section 203(b)(l)(A)(iii) of the Act. Specifically, the director shall inquire as 
to how the petitioner will substantially benefit prospectively the United States by training for a foreign 
national team. The director shall inquire as to the petitioner's ultimate intentions in the United States. 
We acknowledge the assertion by 
h 
that the petitioner is a "great asset" to Swim Gym as a 
coach and mentor to members oft at center s various swim programs. In considering the petitioner's 
intentions, however, the director shall take into account that coaching does not nece~saril~~fall within 
an athlete's area of expertise. See Lee v. I.N.S., 237 F. Supp. 2d 91 4 (N.D. Ill. 2002).' If it is the 
petitioner's intention to benefit the United States through coaching, the petitioner would need to 
demonstrate that he enjoys extraordinary ability as a coach or that coaching falls within his area of 
1 
That court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary ability" as 
worlung 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. 
expertise such as through the submission of evidence that he has coached swimmers at the national 
level. 
Therefore, this matter will be remanded. The director must issue a new notice of intent to revoke 
regarding the petitioner's ability to substantially benefit the United States prospectively. As always in 
these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. 
ORDER: 
 The director's decision is withdrawn; however, the petition is currently unapprovable 
for the reasons discussed above, and therefore the AAO may not approve the petition at 
this time. Because the petition is not approvable, the petition is remanded to the 
director for issuance of a new, detailed decision which, if adverse to the petitioner, is to 
be certified to the Administrative Appeals Office for review.