sustained EB-1A Case: Athletics

identifying data deleted to 
prevent clearly unw~ted 
invasion of personal pnvacy 
PUBLlCCOPY 
FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529~2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER DatefEB 2 8 2011 
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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
dYerryRhew 
~ Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
sustained and the petition will be approved. 
The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 
203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § lI53(b)(1)(A). The director 
detennined the petitioner had not established the sustained national or international acclaim necessary 
to qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(I)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, counsel submits a brief and additional evidence. Considering the evidence in the aggregate, 
including the evidence submitted on appeal, the petitioner has established his eligibility for the benefit 
sought by a preponderance of the evidence. 
I. Law 
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 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 into the United States will substantially benefit 
prospectively the United States. 
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U.S. Citizenship and Immigration Services (USerS) 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 H.R. 723 101 ,t Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. Id.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifYing evidence under at least three of the following ten categories of 
evidence. 
(i) Documentation ofthe alien's receipt oflesser 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 ajudge 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. 
On appeal, counsel relies on Galen v. ChertofJ, 2008 WL 2779001 (E.D. Penn. July 16, 2008), a case 
involving a religious scholar rather than an athlete, for the proposition that meeting three of the above 
regulatory criteria establishes eligibility. In contrast to the broad precedential authority of the case law 
of a United States circuit court, the AAO is not bound to follow the published decision of a United 
States district court in cases arising within the same district. See Matter of K-S-, 20 I&N Dec. 71S 
(BIA 1993). The reasoning underlying a district judge's decision will be given due consideration 
when it is properly before the AAO; however, the analysis does not have to be followed as a matter 
oflaw. Id. at 719. In addition, as the published decisions of the district courts are not binding on the 
AAO outside of that particular proceeding, the unpublished decision of a district court would 
necessarily have even less persuasive value. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, S96 F.3d IllS (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence submitted to meet a given evidentiary criterion.l With respect to the criteria at 8 C.F.R. 
§ 204.S(h)(3)(iv) and (vi), the court concluded that while US CIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 
8 C.F.R. § 204.S(h)(3)). The court also explained the "final merits determination" as the corollary to 
this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.S(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 
8 C.F.R. § 204.S(h)(3). Only aliens whose achievements have garnered "sustained 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
Page 5 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. § 1153(b)(l)(A)(i). 
!d. at 1119-20. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In reviewing Service Center decisions, the AAO will 
apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a 
new analysis if the director reached his or her conclusion by using a one-step analysis rather than the 
two-step analysis dictated by the Kazarian court. See 8 C.F.R. 103.3(a)(I)(iv); Soltane v. DOJ, 381 
F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de novo authority). 
II. Analysis and Conclusion 
The petitioner is an athlete with numerous awards and press coverage in Spain who has also 
competed at the highest level in the United States where he was one of the five top performing 
athletes on his team's large roster of players. The petitioner also maintains his acclaim in Spain. 
Not all of the petitioner's evidence carries the weight imputed to it by counsel. Moreover, the 
commentary at 56 Fed. Reg. 60899 (Nov. 29,1991) states: 
The Service disagrees that all athletes performing at the major league level should 
automatically meet the "extraordinary ability" standard .... A blanket rule for all major 
league athletes would contravene Congress' intent to reserve this category to "that small 
percentage of individuals who have risen to the very top of their field of endeavor." 
Nevertheless, consistent with Matter of Price, 20 I&N Dec. 953 (Act. Assoc. Comm'r. 1994), we find 
the evidence of record, including evidence not discussed above, sufficient to establish that the petitioner 
has demonstrated his eligibility for the classification sought. Specifically, upon careful review of the 
record, it is concluded that the petitioner has demonstrated by a preponderance of the evidence that he 
is within the small percentage of individuals who have risen to the very top ofthe field of Iai-alai. The 
evidence submitted establishes that the petitioner has sustained national or international acclaim and 
that his achievements have been recognized in his sport. As a result, the petitioner qualifies as an alien 
of extraordinary ability. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.c. § 1361. The petitioner has sustained that burden. 
ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.