remanded EB-1A Case: Martial Arts

idenwing data deleted to 
prevent clearly unwmtd 
invasion of pe~sonal priv~y 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
WAC 01 087 54978 
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) 
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. 
A~obert e* P. Wi mann, 
/ Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was initially approved by the Director, 
California Service Center. On further review of the record, the director determined that the petitioner was not 
eligible for the benefit sought. Accordingly, the director served the petitioner with notice of intent to revoke 
the approval of the immigrant visa petition, and the reasons therefore, and ultimately revoked the approval of 
the petition on July 20, 2006. The matter is now before the Administrative Appeals Office on appeal. The 
director's decision will be withdrawn, and the petition will be remanded for further action and consideration. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. fj 1 1 5 3(b)(l)(A), as an alien of extraordinary ability in 
athletics. The director determined that the evidence submitted by the petitioner was not adequate to 
demonstrate his "extraordinary ability in martial arts" or that he had "reached the very top in [his] field of 
endeavor." 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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 ths 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 into the United States will substantially benefit prospectively 
the United States. 
Section 205 of the Act, 8 U.S.C. fj 1155, states, in pertinent part: "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 of Estime, 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 
issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. at 582, 590. 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. The beneficiary is not, by mere approval of the petition, 
entitled to an immigrant visa. Id. at 582. 
The Form 1-140, Immigrant Petition for Alien Worker, was filed on March 8, 2001 seelung to classifjr the 
petitioner as alien of extraordinary ability as a Judo coach. 
On August 22,2001, the director issued a notice requesting the petitioner to submit evidence that he is coming to 
the United States to continue work in his area of expertise. 
The regulation at 8 C.F.R. 9 204.5(h)(5) states: 
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. 
The petitioner responded by submimng a May 18, 2001 fi-om the president of the- 
., Springfield, Massachusetts, stating: We, the college committee plan to hire you as soon as 
you receive your legal residence or legal worlung visa. You will then become professor of our Judo and Taich 
classes. At that time we will provide health insurance. Your pay will start at $35,000 annually." The petitioner 
also submitted a 2001 flyer promoting student registration for a Judo camp offered by him in Wilbraham, 
Massachusetts. 
On December 3, 2004, the petitioner appeared at the Los Angeles, California District Office for an interview 
pertaining to his eligibility for adjustment of status to permanent resident. In support of his Form 1-45, 
Application to Register Permanent Residence or Adjust Status, the petitioner submitted an undated letter from 
Director, Asia-America Martial -Arts ~xchan~e Association, stating: 
 "Currently [the 
petitioner] serves as President and chief instructor of Asia-America Martial Arts Exchange Association which 
was established in May 2004. His monthly salary is $3000."' The petitioner also submitted a filing receipt 
from the New York State Department of State, Division of Corporations and State Records reflecting not-for- 
profit incorporation of the Asia-America Martial Arts Exchange Association as of May 18, 2004 and the 
organization's Certificate of Incorporation. The petitioner's documentation 
Wage and Tax Statement, and his U.S. Income Tax Return identifying " 
interviewing officer concluded that the petitioner had failed to provide sufficient evidence of his employment 
in the martial arts field since his entry into the United States on October 4, 2000. The petition was then 
forwarded to the California Service Center for issuance of a notice of intent to revoke the approval of the 
petition. 
On April 18, 2006, the director of the California Service Center issued a notice of intent to revoke the 
approval of the petition. The director's notice stated, in pertinent part: 
In December, 2004, the district officer during his interview with the beneficiary indicated that the 
beneficiary has failed to meet statutory requirements under section 203(b)(l-(A) [sic] of the Act. The 
beneficiary has not worked in his field of extraordinary ability in martial arts since he entered the U.S. 
The beneficiary indicated that he came to the U.S. on October 4, 2000 to travel all over the U.S. 
coaching a Judo Team. 
 current employment letter is from Asia-America Martial 
Arts Exchange signed by 
 who points out that the beneficiary is the president and 
chief instructor. The 
 addresses, one in California, the second one in New 
York and the third one in Massachusetts. When asked if he ever god [sic] paid for coaching he said 
that he worked for a non-profit organization and never got paid, as everything was as a volunteer. 
On August 2003 he opened a company in New York with 2 other co-owners, one of whom is - 
-he beneficiary provided a copy of his taxes for 2003 with a W-2 from Northeast 
INC Mandarin Gourmet with the same address from the letterhead of the Asia-America Martial Arts 
Exchange Association's employment letter. He stated that he only worked part time at this location. 
The beneficiary cannot provide any pay stubs from his current employer. Applicant's current address 
is in Hacienda Heights, CA. He stated that his partners are talung care of his business in New York. 
While the beneficiary/petitioner, is not required to have an employer, he is required to be coming to 
the U.S. to continue work in his field of expertise. 
There is no evidence in the record that the beneficiary/petitioner is employed in his field of expertise. 
As such, the USCIS proposed [sic] to revoke the petition. 
The director's notice of intent to revoke is problematic in that it failed to address the May 18,2001 letter fkom 
registration for a Judo camp offered by the petitioner in Wilbraham, Massachusetts. Further, the regulation at 
8 C.F.R. 9 204.5(h)(5) states that "letter($ from prospective employer(s)" are acceptable forms of evidence, 
but it does not require an individual to submit "pay stubs from his current employer" as indicated in the 
director's notice. Finally, the director's notice states that the petitioner "is not required to have an employer" 
and then contradicts this statement by concluding that "[tlhere is no evidence in the record that the 
beneficiary/petitioner is employed in his field of expertise" [emphasis added]. 
Despite the preceding deficiencies, the director's notice does raise an important issue pertaining to the 
petitioner's eligibility pursuant to 203(b)(l)(A)(ii) of the Act. The fact that the petitioner's sole employer for 
Page 5 
2003 was 3' raises a valid concern as to whether the petitioner will 
work as a Judo coach in the United States or whether he will work as a restaurant employee. Section 203(b) 
of the Act requires that "the alien seeks to enter the United States to continue work in the area of extraordinary 
ability." As the petitioner seeks an employment-based immigrant classification based on sustained national or 
international acclaim and extraordinary ability as a Judo coach, it is reasonable for the director to require 
evidence that he has been and will continue to be employed principally as a Judo coach (rather than worlung 
only occasionally as a Judo coach and supporting himself primarily through unrelated employment as a 
restaurant worker). We cannot ignore that the plain language of the regulation at 8 C.F.R. $ 204.5(h)(5) 
requires "clear evidence that the alien is coming to the United States to continue work in the area of 
expertise." 
On May 12, 2006, the California Service Center received the petitioner's response to the notice of intent to 
revoke and this documentation was incorporated into the record of proceeding. The petitioner's response 
included a May 2, 2006 letter fkom the Asia-America Martial Arts Exchange Association confirming the 
petitioner's employment as its president and chief instructor and copies of several checks issued to the 
petitioner by the association. The petitioner also submitted copies of his U.S. Income Tax Returns for 2004 
and 2005 and their corresponding transcripts (issued by the Internal Revenue Service) establishing that the tax 
returns were filed and processed. The W-2 Forms filed with the petitioner's 2004 and 2005 tax returns reflect 
that the Asia-America Martial Arts Exchange Association was the petitioner's primary employer during those 
years. The petitioner also submitted two letters of support fro- President, Judo America, and 
Chairman, Junior Development, USA Judo, describing how the petitioner has worked with USA Judo and 
Judo America. We find that the preceding evidence adequately satisfies the regulation at 8 C.F.R. 
5 204.5(h)(5). Thus, the petitioner's evidence has overcome the grounds for revocation cited in the notice of 
intent to revoke. 
On July 20, 2006, the director of the California Service Center revoked the approval of the petition. While 
the director's notice of revocation identified the evidence submitted by the petitioner in response to the notice 
of intent to revoke, it failed to offer a conclusive finding as to whether the evidence had satisfied the 
regulation at 8 C.F.R. 5 204.5(h)(5). After listing the petitioner's evidence, the director's notice of revocation 
then stated: 
Classification as an alien of extraordinary ability you [sic] must prove that you are a person who has 
risen to the very top of your field. 8 C.F.R. 204.5(h)(2) defines extraordinary ability to mean "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." 
However, the documentation you have submitted has failed to provide convincing evidence that you 
have reached the very top in your field of endeavor. 
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 that the alien's entry into the United States 
would substantially benefit prospectively the United States. 
The evidence in this instance indicates that the petitioner has achieved some measure of success. 
However, the evidence falls far short of clearly demonstrating the petitioner's extraordinary ability in 
martial arts. Accordingly, the petition filed for the above named beneficiary is revoked as of the date 
of approval. 
On appeal, counsel argues that the director's "decision is inconsistent with notions of fundamental fairness 
and procedural due process." Counsel further states that "the decision is so vague that it did not offer a 
meaningful discussion on the petitioner's deficiencies as they related to the pertinent criteria and it did not 
present the petitioner with an opportunity to mount a meaningful rebuttal on appeal." We concur with 
counsel's observations. As discussed previously, the April 18, 2006 notice of intent to revoke was based on 
the petitioner's failure to submit clear evidence that he was coming to the United States to work as a Judo 
coach. The ultimate grounds for revocation cited in the director's July 20, 2006 notice of revocation, however, 
differ from those cited in the notice of intent to revoke. 
The regulation at 8 C.F.R. 5 205.2 states, in pertinent part: 
Revocation on Notice. 
(b) Notice of intent. Revocation of the approval of a petition or self-petition under paragraph (a) 
of this section will be made only on notice to the petitioner or self-petitioner. The petitioner or 
self-petitioner must be given the opportunity to offer evidence in support of the petition or self- 
petition and in opposition to the grounds alleged for revocation of the approval. 
(c) Notifcation of revocation. If, upon reconsideration, the approval previously granted is 
revoked, the director shall provide the petitioner or the self-petitioner with a written notification 
of the decision that explains the specific reasons for the revocation. . . . 
The petitioner has not been given the opportunity to offer evidence in opposition to the grounds for revocation 
cited in the July 20, 2006 notice of revocation. A revocation can only be grounded upon, and the petitioner is 
only obliged to respond to, the allegations in the notice of intent to revoke. 8 C.F.R. 5 205.2(b); Matter of Arias, 
19 I&N Dec. 568, 570 (BIA 1988). Furthermore, the director's notice of revocation fails to adequately explain 
the specific reasons for the revocation. 
As the director has found that the petitioner's evidence does not meet the requirements set forth at 8 C.F.R. 
$5 204.5(h)(2) and (3), we must remand the matter to the director for the purpose of issuing a new notice of 
intent to revoke advising the petitioner of the specific deficiencies in the evidence as it relates to these 
regulatory criteria. If the director concludes that the petitioner's response does not overcome the deficiencies in 
the record, the director shall issue a decision that specifically addresses the petitioner's evidence and that applies 
the pertinent statutory and regulatory requirements in the analysis of the evidence. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The burden remains with the petitioner in revocation proceedings to establish eligibility for 
the benefit sought under the immigration laws. Matter of Cheung, 12 I&N Dec. 71 5 (BIA 1968); Matter of 
Estime, 19 I&N Dec. at 452 n. 1 ; Matter of Ho, 19 I&N Dec. at 589. 
C Page 7 
ORDER: 
 The director's decision is withdrawn. 
 The petition is remanded for further action and 
consideration consistent with the above discussion and entry of a new decision which, if adverse 
to the petitioner, is to be certified to the Administrative Appeals Office for review.