remanded EB-1A Case: Swimming

U.S. Department of fIomeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
identlf~in~ dat2 &leted to 
prevent cle& tmwmanted 
invasicm of~d privacy 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
Services 
- 
Office: TEXAS SERVICE CENTER 
 Date: AUG 2 7 2008 
EAC 06 092 52754 
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. $ 1 153@)(1)(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 
zobert P. Wiernann, Chief 
Administrative Appeals Office 
Page 3 
(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 whch has been demonstrated by sustained national or international acclaim 
and whose achevements 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. 
Citizenship and Immigration Services (CIS) and the legacy Immigration and Naturalization Service (INS) 
have consistently recognized that Congress intended to 'set a very high standard for individuals seelung 
immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 60898-99 (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. fj 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. 
fj 204.5(h)(3). 
The regulation at 8 C.F.R. fj 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, internationally 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. 
On May 12, 2008, the AAO withdrew the director's initial decision and remanded the petition for further 
action and consideration. In its decision, the AAO found that the petitioner's medals at the European 
Championships and membership on the Hungarian national team at three Olympics (Atlanta, Sydney, and 
Athens) satisfied the regulatory criteria at 8 C.F.R. $9 204.5(h)(3)(i) and (ii). An alien, however, must meet 
at least three regulatory criteria to be eligible for the classification sought. Therefore, the AAO instructed the 
director to consider the petitioner's eligibility as defined at 8 C.F.R. fj 204.5(h)(3). 
With regard to the grounds for revocation cited by the director in the September 13, 2007 NOR, the AAO 
determined that the petitioner had submitted evidence establishing that he would continue to participate in 
competitive swimming.* See section 203(b)(l)(A)(ii) of the Act, 8 U.S.C. $ 1 153(b)(l)(A)(ii), and 8 C.F.R. 
The director's grounds for the initial revocation were based solely upon the petitioner's full-time employment as a 
Technology Consultant for Advanced Automation Consulting, Inc. The petitioner submitted a letter indicating that he 
commenced employment with this company on July 1, 2006, but he also submitted evidence showing that he continued 
to train for the European Championships in which he competed later that summer. The director failed to consider the 
latter evidence and concluded that the petitioner was not seeking to enter the United States to continue swimming. The 
Page 4 
5 204.5(h)(5). For example, at the time of filing, the petitioner submitted a November 3, 2005 letter stating 
that he was training in South Carolina for the 2006 European Championships. The petitioner also submitted 
an August 28, 2007 letter from the Hungarian Swimming Association stating that he was a member of the 
Hungarian National Team and that he was preparing for the 2008 Olympic Games. The preceding evidence 
indicated that the petitioner was continuing to compete in a manner consistent with sustained national or 
international acclaim at the very top level of his sport. As such, the director's initial basis of revocation was 
withdrawn. 
The AAO's decision also instructed the director to "inquire as to how the petitioner will substantially benefit 
prospectively the United States by training for a foreign national team." The AAO further stated: "The 
director shall also inquire as to the petitioner's ultimate intentions in the United States. In considering the 
petitioner's intentions, however, the director shall take into account that coaching does not necessarily fall 
within an athlete's area of expertise. See Lee v. I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002)." With regard to 
prospective national benefit, the AAO concluded: "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 expertise such as through the submission of evidence that he 
has coached swimmers at the national level." Any such evidence must establish eligibility at the time of 
filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Comrnr. 1971). 
On June 18,2008, the director issued a second NOIR to the petitioner requesting evidence establishing that he 
satisfies the regulation at 8 C.F.R. 5 204.5(h)(3). The petitioner was also requested to submit "clear 
evidence" of his plans to continue work in his field in the United States and evidence that he will substantially 
benefit prospectively the United States. The petitioner's response was incorporated into the record of 
proceeding and will be addressed below. 
On July 24, 2008, the director again revoked the approval of the petition. In the second NOR, the director 
determined that the petitioner had not satisfied at least three of the regulatory criteria at 8 C.F.R. 4 204.5(h)(3). 
The director also determined that the petitioner had not submitted clear evidence that he would continue to 
work in hs area of extraordinary ability in the United States. Finally, the director concluded that the petitioner 
had not demonstrated that his entry into ths country will substantially benefit prospectively the United States. 
On certification, counsel argues that the petitioner meets the statutory and regulatory requirements for 
classification as an alien of extraordinary ability. In a supplemental brief counsel cites M.B. v. QuarantiZZo, 
301 F. 3d 109 (3d Cir. 2002), in which the court held that INS did not act arbitrarily and capriciously in 
denying an alien's request to have his dependency status determined by a state juvenile court. In the cited 
matter, the court agreed with the District Director that the alien did "not satisfy one of the statutory eligibility 
requirements." Counsel states: "This case upholds the Petitioner's position in regard to the plain language of 
the statute and recognizes that all decisions are based in the plain language of the statute . . . ." We concur 
director also concluded that the petitioner's employment as a technology consultant would not prospectively benefit the 
United States because it did not constitute a "pursuit in the arena of swimming." In withdrawing the director's initial 
grounds for revocation, the AAO stated: "While employment in an unrelated field may, on a case-by-case basis, suggest 
that an alien is no longer pursuing employment in the field of extraordinary ability and certainly justifies further inquiry 
by the director, we are satisfied in this matter . . . that the petitioner continues to compete as a swimmer." 
Yage 5 
with counsel that CIS decisions should follow the plain language of the statutory eligibility requirements. A 
statute should be construed under the assumption that Congress intended it to have purpose and meaningful 
effect. Mountain States Tel. & Tel. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985); Sutton v. United 
States, 819 F.2d 1289, 1295 (5' Cir. 1987). 
The first issue to be determined in this matter is whether the evidence submitted by the petitioner satisfies the 
regulation at 8 C.F.R. 
 204.5(h)(3). In determining whether the petitioner meets a specific regulatory 
criterion, the evidence itself must be evaluated in terms of whether it is indicative of or consistent with 
sustained national or international acclaim. A lower evidentiary standard would not be consistent with the 
regulatory definition of "extraordinary ability" as "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. § 204.5(h)(2). The 
relevant criteria at 8 C.F.R. § 204.5(h)(3) follow below. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The petitioner submitted evidence showing that he was a gold medalist (2000) and a silver medalist (2002) in 
the 400 Individual Medley at the European Championships. As such, the petitioner has established that he 
meets this criterion. 
Documentation of the alien's membership in associations in the field for which classzfication 
is sought, which require outstanding achievements of th eir members, as judged by recognized 
national or international experts in their disciplines or fields. 
The petitioner submitted evidence showing that he participated in three Olympic Games (1996, 2000, and 
2004) as a member of the Hungarian national swim team.' As such, the petitioner has established that he 
meets this criterion. 
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 necessaly translation. 
In general, in order for published material to meet ths criterion, it must be primarily about the petitioner and, as 
stated in the regulations, be printed in professional or major trade publications or other major media. To qualif4r 
as major media, the publication should have significant national or international dishbution. An alien would not 
earn acclaim at the national level from a local publication. Some newspapers, such as the New York Times, 
Membership on an Olympic Team or a major national team such as a World Cup soccer team can serve to meet this 
criterion. Such teams are limited in the number of members and have a rigorous selection process. We reiterate, 
however, that it is the petitioner's burden to demonstrate that he meets every element of a given criterion, including that he is 
a member of a team that requires outstanding achievements of its members, as judged by recowed national or international 
experts. We will not presume that every national "team" is sufficiently exclusive. 
Page 6 
nominally serve a particular locality but would qualify as major media because of significant national distribution, 
unlike small local community papers.4 
The petitioner submitted swimming results posted at http://s~ortsillustrated.cnn.com reflecting that he competed 
in Heat 7 of the qualifying round at the 2000 Olympics. The petitioner also submitted a July 27, 2003 article 
posted at http://usatoday.com entitled "Phelps finishes with another world record." At the conclusion of the 
article, the petitioner's name appears in the results section among dozens of other swimmers who competed in the 
men's 400 individual medley at the 2003 World Swimming Championshps. The petitioner's initial submission 
also included results for the European Swimming Championshps (I926 to present) posted at 
http://gbrsports.com. The petitioner's name appears among the medalists for the 2000 and 2002 European 
Championshps. The petitioner submitted similar event results posted at http://swimnews.com, http://fina.org, 
and http:Nsportsfacts.net for other international competitions in which he participated. In response to the 
director's second NOIR, the petitioner submitted a listing of top times for the 2000-01 University of South 
Carolina men's swimming season posted at http://~amecocksonline.cstv.com.5 The preceding internet postings 
merely list the petitioner's name among numerous competitive participants and are not primarily about hm. The 
plain language of this regulatory criterion, however, requires that the published material be "about the alien." 
Further, the plain language of ths criterion requires the title, date, and author of the material. We cannot 
conclude that the preceding documentation meets these requirements. 
The petitioner also submitted the University of South Carolina "Men and Women 2003-04 Media Guide" for 
swimming and diving. The media guide mentions the petitioner in various sections, but there is no evidence that 
ths promotional item fi-om the university's athletic department constitutes a professional or major trade 
publication or some other form of major media. 
In response to the director's second NOIR, the petitioner does not address this regulatory criterion. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien S original scientijic, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 
There is no evidence establishing that the petitioner has made original athletic contributions of major significance 
in the field. In response to the director's second NOIR, the petitioner does not address this regulatory 
criterion. Thus, the petitioner has not established that he meets this criterion. 
Evidence of the display of the alien 3 work in the field at artistic exhibitions or showcases. 
There is no evidence establishing that the petitioner meets this regulatory criterion. The petitioner's field is 
not in the arts. The plain language of this regulatory criterion indicates that it applies to visual artists (such as 
4 
Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
The petitioner posted the fastest time for the men's team in four swimming events. 
Page 7 
sculptors and painters) rather than to competitive athletes. The ten criteria in the regulations are designed to 
cover different areas; not every criterion will apply to every occupation. The petitioner's participation and 
success in competitive events has previously been addressed under the awards criterion at 8 C.F.R. 
$ 204.5(h)(3)(i). Virtually every athlete "displays" his or her work in the sense of competing in front of an 
audience. In response to the director's second NOR, the petitioner does not address this regulatory criterion. 
Evidence that the alien has peformed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
In response to the director's second NOR, counsel argues that the petitioner meets ths criterion by swimming for 
the Hungarian national team at the Olympics and at international events such as European Championships. The 
petitioner previously submitted a September 4,2007 letter from ~ead Diving Coach, University 
of Miami, stating that "all swimmers and divers . . . " satisfy the regulatory criteria at 8 C.F.R. $5 204.5(h)(3)(i), 
(ii), and (viii) " . . . when the athlete wins his or her national championship." Here it should be emphasized 
that the ten regulatory criteria at 8 C.F.R. 5 204.5(h)(3) are separate and distinct from one another. Because 
separate criteria exist for awards, memberships, and performing in a leading or critical role for distinguished 
organizations, CIS clearly does not view the three criteria as being interchangeable. If evidence sufficient to 
meet one criterion mandated a finding that an alien met another criterion, the requirement that an alien meet at 
least three criteria would be meaningless. The plain language of the statute requires "extensive 
documentation" of sustained national or international acclaim. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
9 1153(b)(l)(A)(i). CIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony.6 See Matter of Caron International, 19 I&N Dec. 791, 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 from 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. Thus, the content of the experts' statements and how they became aware of the petitioner's reputation 
are important considerations. Even when written by independent experts, letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of achievements 
and recognition that one would expect of a swimmer who has sustained national or international acclaim. 
In order to establish that he performed in a leading or critical role for an organization or establishment with a 
distinguished reputation, the petitioner must establish the nature of his role within the entire organization or 
establishment and the reputation of the organization or establishment. 
Counsel states: "The Petitioner has performed in a leading and critical role for the Hungarian National Swim 
Team since 1995." Counsel then discusses the petitioner's awards and Olympic team membership which 
have already been addressed at 8 C.F.R. $5 204.5(h)(3)(i) and (ii). Counsel further states: 
The Hungarian Swim team leads all nations of the World with 24 Olympic Games appearances. 
Hungary first competed in the Olympic Games in 1896, winning two gold meals in track and field. 
The 1896 swimming competitions were held in the open seas and Hungary became 
the first Olympic champion (gold medal) in swimming. Hungarian gold medal at the 
According to his letter, coaching expertise is diving rather than swimming. 
Page 8 
Olympics in Atlanta[,] and 
 gold medal at the Olympics in Sydney are both teammates 
of the Petitioner. . . . The Hungarian Swim Team is the powerhouse team in Europe. 
Counsel argues that the Hungarian Swim Team has a distinguished reputation, but the record lacks evidence 
(such as published media reports) to substantiate his claims. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions 
of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
With regard to the petitioner's role for the Hungarian swim team, we find that the petitioner's evidence does not 
establish that his role as a team member was leading or critical. The petitioner, who specialized in the 
individual medley, submitted an August 28, 2007 letter fkom the Hungarian Swimming Association stating he 
"has been a valuable member of the Hungarian National Swimming Team since 1995." A March 10, 2005 
letter from the Hungarian Swimming Association states: "Since 1995 [the petitioner] is one of the most 
valuable member of the Hungarian national swimming team." These letters, however, do not provide specific 
information differentiating the petitioner's role from that of the other national team members, including its 
Olympic medalists (such as 
 For example, the record lacks evidence 
comparing the petitioner's results at swim competitions to those of the other members of the team (such as a 
comprehensive tally of the men's first place finishes or medals won) during the years he competed. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sof$ci, 22 I&N Dec. 15 8, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Without objective evidence showing that the 
petitioner's achievements differentiated him from those of his team members, we cannot conclude that he was 
responsible for his team's success or standing to a degree consistent with the meaning of "leading or critical 
role" and indicative of national or international acclaim. While all team members certainly play a vital role in 
swimming competition, the evidence submitted by the petitioner does not demonstrate that his role 
significantly differentiated him from the other members of the team (including those competing in freestyle, 
backstroke, breaststroke, butterfly, and relay events), or indicate how his role was leading or critical for the 
team as a whole. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salaiy or other signiJicantly high remuneration 
for services, in relation to others in the field. 
In response to the director's second NOIR, counsel argues that the petitioner meets this criterion by receiving a 
sports scholarship from the University of South Carolina (USC). The petitioner submitted letters from the Office 
of Student and Financial Ad at USC reflecting that the petitioner received an "athletic grant-in-aid" of full tuition 
and fees fi-om Fall 2001 through Spring 2005. The petitioner also submitted a May 22,2008 letter fi-om - 
Swimming Coach during the four years the petitioner attended USC, stating: 
As a head coach, one of my responsibilities was to determine who received scholarship monies based on 
their ability to impact the overall program. Like every other Division I school that was fully funded, I 
had 9.9 scholarships to distribute among our male swimmers for a squad that numbered a least eighteen 
Page 9 
members and more often more. It is the individual schools discretion to decide how they wish to use the 
9.9 scholarships, however, my personal experience is that only exceptional swimmers (top 5% of 
Division I swimmers) are likely to receive a "full ride." 
Counsel states: 
[The petitioner] had a full swimming scholarshp at USC which "is significantly high remuneration for 
services as an athlete." There are 1,000,000 registered swimmers in the United States. There are 142 
Universities in division I, [the petitioner's] division, that offer swimming scholarships to men. There are 
9.9 scholarships in general per University for men swimmers. Not all scholarships are full scholarships 
like [the petitioner's] full ride. 
There is no evidence comparing the dollar amount of the petitioner's total scholarship to the amounts received by 
other collegate swimmers. Further, we cannot conclude that a "grant-in-aid" limited to collegiate athletes is 
evidence that the petitioner "is one of that small percentage who have risen to the very top of the field of 
endeavor." See 8 C.F.R. 8 204.5(h)(2). CIS has long held that even athletes performing at the major league 
level do not automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Cornmr. 1994); 56 Fed. Reg. at 60899.~ Likewise, it does not follow that a collegiate swimmer who 
receives financial aid at the discretion of his university should necessarily qualify for an extraordinary ability 
employment-based immigrant visa. To find otherwise would contravene the regulatory requirement at 8 C.F.R. 
8 204.5(h)(2) that ths visa category be reserved for "that small percentage of individuals that have risen to the 
very top of their field of endeavor." There is no indication that top swimmers' remuneration is limited to 
collegiate scholarships rather than paid endorsements or other compensation. The plain language of this 
criterion requires the petitioner to submit evidence of a high salary "in relation to others in the field" (rather 
than restricted to those at the collegiate level). The petitioner offers no basis for comparison showing that his 
remuneration was significantly high in relation to others in his field. 
In light of the above, the petitioner has not established that he meets this criterion. 
In this case, we find that the petitioner meets only two of the regulatory criteria, three of which are required to 
establish eligibility. 8 C.F.R. 8 204.5(h)(3). The petitioner has failed to demonstrate his receipt of a major, 
' While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of Racine, 1995 
WL 153319 at *4 (N.D. Ill. Feb. 16, 1995)' the court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is not a comparison of 
Racine's ability with that of all the hockey players at all levels of play; but rather, Racine's ability as a 
professional hockey player within the NHL. This interpretation is consistent with at least one other court in this 
district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
4 204.5!h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that CIS' interpretation of the regulation at 8 C.F.R. 5 204.5(h)(2) is reasonable. 
internationally recognized award, or that he meets at least three of the criteria that must be satisfied to 
establish the sustained national or international acclaim necessary to qualify as an alien of extraordinary 
ability. 
The remaining issues to be determined are whether the petitioner will continue work in his area of 
extraordinary ability in the United States and whether his entry will substantially benefit prospectively the United 
States. See sections 203(b)(l)(A)(ii) and (iii) of the Act, 8 U.S.C. $5 1153(b)(l)(A)(ii) and (iii), and 8 C.F.R. 
$8 204.5(h)(5). Part 5 of the Form 1-140 petition, filed on February 2, 2006, lists the petitioner's occupation 
as "Swimmer." The November 3,2005 letter submitted by the petitioner states: 
This is to certify that I graduated fiom the University of South Carolina in May of 2005 Bachelor of 
Science in Computer Information Systems. I am currently living and training in Columbia, South 
Carolina. 
I have been a member of the Hungarian National Swim Team fi-om 1995 until the present. I currently 
hold 22 Hungarian National Championship titles. 
I am currently training with my college coach, I am practicing for the 2006 European 
Championship, which will be held in my home city Budapest, Hungary this summer. 
I have participated in the past three Olympic Games and I also plan on qualifying for the next one in 
2008 Beijing, China. 
On June 18, 2008, the director issued a second NOIR to the petitioner requesting him to submit "clear 
evidence" of his plans to continue work in his field in the United States and evidence that he will substantially 
benefit prospectively the United states.' 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) fiom prospective employer(s), evidence of prearranged commitments such as contracts, or a 
statement fi-om the beneficiary detailing plans on how he or she intends to continue his or her work in the 
United States." 
In response, the petitioner submitted a May 12,2008 letter stating: 
After graduation I stayed in Columbia, South Carolina to train for the 2006 European Championship and 
for the 2008 Olympics. At the same time I was a Volunteer Assistant Coach assisting Head m 
with the training of USC swimers. 
As discussed, the AAO's decision instructed the director to "inquire as to how the petitioner will substantially benefit 
prospectively the United States by training for a foreign national team." The AAO further stated: "The director shall 
also inquire as to the petitioner's ultimate intentions in the United States." 
Page 11 
Because I have been suffering from a shoulder injury, after parhcipating in the 2006 European 
Championship, I decided to focus on my physical well-being, and only trained but did not compete for a 
year. Due to two Mher injuries in the fall of 2007, and in the Spring of 2008, a broken foot and a knee 
injury, I realized the my Olympic preparation could not be continued and decided to shift my focus to 
participate in Masters Swimming and coachng. 
Because my injuries prevent me from swimming as much as it is necessary for my Olympic preparation, 
I found another way to share my shlls and my knowledge of swimming with young swimmers. I started 
working with . . . at Mecklenburg Aquatic Club and assisting him with the training of all 
level of swimmers including Team Elite Carolina, a group of swimmers preparing for the 2008 
Olympics. 
Currently I am training for the 2008 [United States Masters Swimming] Long Course Meters National 
Championship where I am expected to finish on top of my league. 
The preceding statements indicate that the petitioner no longer intends to compete as a swimmer in a manner 
consistent with sustained national acclaim at the very top level of his sport. A petitioner must demonstrate 
eligibility from the time of filing continuing until the alien obtains lawful permanent residence. See Matter of 
Great Wall, 16 I&N Dec. 142, 145 (Acting Reg. Comm. 1977); Matter of Wing's Tea House, 16 I&N Dec. 
158 (Act. Reg. Comm. 1977); Chi-Feng Chang v. Thornburgh, 719 F.Supp. 532 (N.D. Tex. 1989). The 
director's second NOR stated that it was unclear as to whether the petitioner would be able to continue 
swimming "in a capacity that would exhibit extraordinary ability." We note here that United States Masters 
Swimming is a recreational league open to swimmers of all ability levels at the local level and that 
competition is limited to one's age group.9 The petitioner has not established that participation in this age- 
based recreational league constitutes continuing work in his area of expertise. While training for and 
competing in the European Championships and the Olympics is consistent with sustained national or 
international acclaim at the very top of the field, training for a recreational age-group competition is not. 
Thus, the petitioner's intention to train for the United States Masters Swimming competition is not clear 
evidence that he will continue work in his area of extraordinary ability or evidence that his participation will 
substantially benefit prospectively the United States. 
As evidence of his intention to work as a swimming coach in the United States, the petitioner submitted 
letters of support from the Mecklenburg Aquatic Club. 
A May 10,2008 letter from mead Elite Coach, Mecklenburg Aquatic Club, states: 
See http://www.usms.ordcomp/, accessed on August 18, 2008. For example, the 2008 Long Course Meters National 
Championships involved multiple age group competitions ranging from the male 18-24 category up to the male 85-89 
category. 
I was the head swim coach for Auburn University from 1990 to 2007. In 2003 both my men's and 
women's teams won NCAA, national titles in swimming. In 2004, 2006 and 2007, we also won 
NCAA, national titles. In 2004, at the Athens Olympic games, my swimmers won two gold, a silver, 
and two bronze medals. . . . I have coached over 22 Olympians and many national and world 
champions. . . . I have been named National Coach of the Year eight times. 
As a head coach my responsibilities include the preparation of a small group of elite swimmers for the 
2008 Olympics. 
At this club we train all levels of swimmers, and [the petitioner] proved to be a great asset. . . . I 
greatly appreciate the petitioner's assistance, since there are very few swimmers with his outstanding 
international results and experience who are able to teach the young athletes. 
A May 10, 2008 letter signed by members of Team Elite Carolina, the Mecklenburg Aquatic Club's select 
group of accomplished swimmers, states: "Team Elite Carolina is an extraordinary group of swimmers 
training for the Olympics at Mecklenburg Aquatic Club. The team was formed in the summer of 2007 . . . . 
[The petitioner] has been assisting Team Elite Carolina with their preparation to the Olympic Games.'' 
A subsequent letter fiom mated July 30, 2008 states: "[The petitioner] is personally responsible 
for the continuous growth of training and development of our national and world champion swimmers and his 
continued coaching at our facility is crucial for the continued success of our swimmers." 
The record, however, lacks clear information detailing the extent of the petitioner's participation and 
involvement as a coach of the Mecklenburg Aquatic Club's elite swimmers. Nevertheless, none of the 
preceding letters demonstrate that the petitioner, rather than r a prior coach, was primarily 
responsible for the national successes of Team Elite Carolina s~irnrners.'~ 
The petitioner also submits an August 18, 2008 letter fiom 
 Executive Director, College 
Swimming Coaches Association of America, stating: "[The petitioner's] specialized knowledge is in the area 
of coaching swimming at the highest international level, knowledge derived from his own experience as an 
Olympic swimmer for his native Hungary . . . and his post-competitive coaching experience with some of the 
world's most knowledgeable and successful coaches." Coaching experience gained under a top coach, 
however, does not automatically establish that the petitioner himself has extraordinary ability as a swimming 
coach. 
While the petitioner may have recently began providing coaching assistance at the Mecklenburg Aquatic Club, 
there is no evidence in existence at the time of filing demonstrating that he enjoyed extraordinary ability as a 
coach or that coaching was within his area of expertise. A petitioner must establish eligibility at the time of 
filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of kirtigbak, 14 I&N Dec. at 49. The director's second NOR 
10 
achievements as a coach indicate that the very top of the field is a level far above the petitioner's own 
level of coaching achievement. 
Page 13 
stated that there was no evidence establishing that the petitioner "has coached swimmers that have reached the 
national level as a result of his coaching."" 
 We concur with the director's finding. 
 Further, while a 
competitive swimmer and a coach certainly share knowledge of the sport, the two rely on very different sets 
of basic skills. Thus, competing as a swimmer and working as a coach are not necessarily the same area of 
expertise. This interpretation has been upheld in Federal Court. In Lee v. I.N.S., 23 7 F. Supp. 2d 9 14 (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,i.'xtraordinary 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 91 8. The court noted a consistent history in this area. In the present matter, nothing in the record 
establishes that the petitioner intended to work principally as a swimming coach in United States as of the 
petition's filing date or that coaching, rather than competitive swimming, constituted the petitioner's "area of 
extraordinary ability." According to Part 5 the Form 1-140 petition and the initial supporting documentation, 
the petitioner seeks extraordinary ability classification as a "Swimmer," not as a coach. Further, the record 
includes no evidence showing the petitioner's nationally or internationally acclaimed coaching achievements 
as of February 2, 2006. As discussed previously, a petitioner must establish eligibility at the time of filing. 
8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. Aside from our finding that coaching 
is not the petitioner's area of expertise, the request that he now be considered as a coach based on his 2008 
involvement with the Mecklenburg Aquatic Club constitutes a material change in the petition. A petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). If the petitioner now seeks to coach at the 
Mecklenburg Aquatic Club and to provide substantial prospective national benefit to the United States as a 
swimming coach, then he should file a new petition requesting classification as a coach of extraordinary ability. 
The petitioner previously submitted an unpublished decision in which the AAO held that an Olympic medalist 
synchronized swimmer's intention to coach was sufficiently related to her area of expertise. Counsel has 
furnished no evidence to establish that the facts of the instant petition are analogous to those in the 
unpublished decision. For example, in the cited matter, there is no evidence the alien was employed full-time 
in an unrelated occupation such as a technology consultant.12 Further, while 8 C.F.R. $ 103.3(c) provides that 
AAO precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
Review of the record does not establish that the petitioner has distinguished himself to such an extent that he may 
be said to have achieved sustained national or international acclaim or to be withn the small percentage at the 
11 
 For example, nothing in the record demonstrates that the petitioner was primarily responsible for the development and 
coaching of swimmers who achieved success at the national or international level in the same manner as - 
12 
As discussed, the record includes a January 10, 2007 letter from Advanced Automation Consulting, Inc. stating that 
petitioner is a full-time "Technology Consultant" who "started on July 1, 2006 and works a minimum of 40 hours per 
week." 
Page 14 
very top of his field. Nor is there clear evidence that the petitioner will continue work in his area of expertise 
in the United States and that his participation in his sport will substantially benefit prospectively the United 
States. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and 
the petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 199 1). The AA07s de novo authority has been long recognized by the 
federal courts. See, e.g., Dor v. INS, 89 1 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 3 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. 715 (BIA 1968); Matter of 
Estime, 19 I&N Dec. at 452 n. 1; Matter of Ho, 19 I&N Dec. at 589. Here, the petitioner has not sustained that 
burden. 
ORDER: 
 The director's decision of July 24, 2008 is affirmed. The approval of the petition remains 
revoked.