remanded EB-1A Case: Athletics (Tai Chi)

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
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 and Immigration 
Services 
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PUBLIC COPY 
FILE: EAC 04 003 50180 Office: VERMONT SERVICE CENTER Date: MAY 0 9 7.W 
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)(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 
thwffice that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
, i 
' I 
EAC 04 003 50 180 
Page 2 
DISCUSSION: The Director, Vermont 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director will be withdrawn and the petition will be remanded for further action and consideration.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. 4 1153(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. 
On appeal, counsel asserts that the director erred in failing to consider all of the regulatory criteria 
claimed and by finding that the evidence submitted was not objective. We concur with counsel on both 
accounts. 
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. 
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 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 seeks to classify the petitioner as an alien with extraordinary ability as a Tai Chi instructor. 
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 
EAC 04 003 501 80 
Page 3 
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 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 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 commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
Initially, counsel asserted that the petitioner met eight of the above regulatory criteria. The petitioner 
submitted the type of documentation pertaining to some of those criteria, such as photographs of award 
certificates, appointment certificates and copies of news articles. 
EAC 04 003 50180 
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On December 2, 2004, the director issued a request for additional evidence. Specifically, the director 
requested evidence of the petitioner's awards, memberships, published material about the petitioner and 
his remuneration. 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. The director also requested expert letters although most of the criteria require 
objective evidence of accomplishments as opposed to the subjective opinions of experts, however 
credible such opinions may be. 
In response, the petitioner submitted additional certificates, letters, publications and attestations 
regarding his remuneration. The petitioner also submitted evidence of the accomplishments of his 
students. Much of the new evidence postdates the filing of the petition. 
In the final decision, the director lists all ten of the regulatory criteria, but only discusses awards and 
memberships. Moreover, the director's analysis of the awards criterion is flawed as he asserts that the 
petitioner had not demonstrated whether the awards were individual or "as a member." Nothing in the 
regulation at 8 C.F.R. tj 204.5(h)(3)(i) precludes team awards. As such, the director's focus on that 
issue was in error. Regardless, the martial arts are not typically team sports. All of the awards appear 
to be issued to the petitioner individually. 
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 can 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 that the subjective opinions of experts in the field. Thus, the implication that 
expert letters are required to establish eligibility is in error. 
In light of the above, the matter is remanded to the director for reconsideration. Any adverse decision 
must address all of the evidence as it relates to all of the regulatory criteria claimed. The director 
should evaluate the evidence under each criterion as to whether it is indicative of or uniquely consistent 
with national or international acclaim. The director should consider the following: 
1. The regulation at 8 C.F.R. tj 204.5(h)(3)(i) requires that the awards be nationally or 
internationally recognized, not merely that they resulted from a competition that happens to be 
open to athletes nationally or internationally. Thus, the director should consider whether the 
petitioner has demonstrated the significance of the award competitions where he won awards, 
such as by providing evidence that the competitions are covered in the national or international 
media. Moreover, the petitioner seeks entry into the United States to work as a coach, not an 
athlete. 
 Coaching and competing, while related, are separate areas of expertise. 
 More 
persuasive evidence to meet this criterion would be evidence of nationally or internationally 
recognized awards won by the petitioner's students while under his tutelage. 
2. The regulation at 8 C.F.R. tj 204.5(h)(3)(ii) requires evidence that the associations of which the 
alien is a member require outstanding achievements of their members, not simply evidence of 
EAC 04 003 50 1 80 
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the prestige enjoyed by the associations. 
 Thus, the director should consider whether the 
petitioner has provided the official bylaws of these associations or comparable evidence 
demonstrating the official membership requirements. Moreover, the director should consider 
whether a position within an association is a "membership" as that word is commonly 
understood. Further, counsel asserts that the petitioner's Dan level can serve to meet this 
criterion. The director should consider whether the record correlates higher Dan levels with 
notoriety in the field as opposed to the normal progression consistent with years of experience. 
3. The regulation at 8 C.F.R. 9 204.5(h)(3)(iii) requires published materials that appear in major 
media. Typically, major media coverage indicative of national or international acclaim must 
occur in a publication with at least a national distribution. Thus, the director should consider 
whether the Fushan publications submitted constitute major media. 
4. The petitioner has submitted evidence that he has refereed competitions. If the director believes 
this evidence is insufficient to meet the criterion set forth at 8 C.F.R. 9 204.5(h)(iv), he must 
provide specific reasons for that conclusion. We note that the evidence submitted to meet a 
given criterion must be indicative of or consistent with national or international acclaim. It is 
inherent to the occupation of coach to evaluate the work of one's students. Thus, the mere fact 
that the petitioner has worked as a coach is not evidence of his acclaim as a coach. 
5. The regulation at 8 C.F.R. 3 204.5(h)(3)(v), an alien's contributions must be not only original 
but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. See Waiters v. Metro. Educ. Enters., 519 
U.S. 202, 209 (1997); Bailey v. US., 516 U.S. 137, 145 (1995). Thus, the director should 
consider whether the petitioner has established contributions that are both original or unique 
and have had a demonstrable impact on the field. 
6. The regulation at 8 C.F.R. 5 204.5(h)(3)(vi) requires evidence of scholarly articles published 
in major trade journals or other major media. It is the petitioner's burden to demonstrate that 
the publication is a major trade journal or other major media. Thus, the director should 
consider whether counsel's assertion that the petitioner's article appeared in "a major 
newspaper for Tai Chi in China" is corroborated in the record.' In addition, the director 
should consider whether counsel's assertion that the petitioner's compact disc and video tape 
are widely used as training materials is corroborated in the record. 
7. The regulation at 8 C.F.R. 5 204.5(h)(3)(viii) requires evidence of a leading or critical role 
for an entity with a distinguished reputation. Thus, the director should consider whether the 
petitioner has established that the associations for which he serves as a director enjoy a 
8. The regulation at 8 C.F.R. 3 204.5(h)(4)(ix) requires evidence that the alien's remuneration is 
significantly high in comparison to others in the field. Thus, the director should consider 
whether the petitioner has demonstrated that his income as a coach, the field he intends to 
1 
 The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 
534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503,506 (BIA 1980). 
EAC 04 003 50180 
Page 6 
pursue in the United States, is not merely more than the "common national-level," but 
compares with the highest income for coaches in China. 
9. Finally, the regulation at 8 C.F.R. 5 103.2(b)(12) requires that any evidence submitted in 
response to a request for additional evidence establish the alien's eligibility as of the date the 
petition was filed. See also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). 
Thus, the the director should consider whether the evidence submitted in response to his 
request for additional evidence relates to the petitioner's eligibility as of the date of filing, 
October 1,2003. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 1361. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for 
Mher 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.