sustained EB-1A Case: Athletics

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prevent clearly unwarranted 
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pmuc COPY 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
*:3 \? .$ > a. 
'21' 
FILE: WAC 99 068 52283 Office: CALIFORNIA SERVICE CENTER Date: 
 1 0 2006 
IN RE: Petitioner: 
Beneficiary: 
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 
the office that originally decided your case. Any further inqu~ry must be made to that office. 
Administrative Appeals Office 
(1 
WAC 99 068 52283 
Page 2 
DISCUSSION: The Director, California Service Center, approved the employment-based immigrant 
visa petition. On October 16, 2003, the U.S. Consulate, Guangzhou, returned the approved petition 
with the recommendation that it be revoked. The director served the petitioner with 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 appeal will be sustained and the 
petition will be approved. 
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. 5 11 53(b)(l)(A), as an alien of extraordinary 
ability in athletics. The director determined the petitioner had not established international acclaim or 
that he would substantially benefit prospectively the United States. 
On appeal, counsel asserts that the director did not have good and sufficient cause to revoke the 
approval of the petition. Counsel notes that the Foreign Affairs Manual indicates that consular officers 
should not readjudicate the petition, but should only question the approval of a visa petition by 
Citizenship and Immigration Services (CIS) where the consular officer has specific evidence generally 
unavailable to CIS suggesting that the beneficiary may not be entitled to status. Counsel further notes 
that the consular notice relies on an incorrect standard, international acclaim, while the statute requires 
only national or international acclaim. 
Section 205 of the Act, 8 U.S.C. 5 1 155, states: "The Attorney General 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." 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. 582,590 (BIA 1988). 
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. at 590 (citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
In order to properly revoke a petition on the basis of a consular report, however, the report must have 
some material bearing on the grounds for eligibility for the visa classification. The consular report 
WAC 99 068 52283 
Page 3 
must establish that the petitioner failed to meet the burden of proof on an essential element that 
would warrant the denial of the visa petition. Observations contained in a consular report that are 
conclusory, speculative, equivocal, or irrelevant do not provide good and sufficient cause for the 
issuance of a notice of intent to revoke the approval of a visa petition and cannot serve as the basis 
for revocation. Matter of Arias, 19 I&N Dec. 568,570 (BIA 1988). 
As quoted by the director, the consular report states: 
Review of [the petitioner's] case has been complicated by information received 
against [the petitioner's] petition and also by the fact that [the petitioner] had a 
previous CLASS hit for possible misrepresentation. 
[The petitioner's] background and current situation, in addition to sworn statements 
made during the interview and evidence presented in the petition, compel the U.S. 
Consulate General Guangzhou to conclude that [the petitioner] does not qualify for an 
El visa. 
The record does not include the "information received against" the petitioner, the "CLASS hit," any 
explanation of what such a "hit" entails or an explanation of the petitioner's "background and current 
situation" or copies of the "sworn statements made during the interview." As such, the consular 
report is entirely conclusory and cannot serve as a good and sufficient basis for revocation. 
In addition to relying on the consular report, the director also raised issues as to the sufficiency of the 
evidence. Typically, an application or petition that fails to comply with the technical requirements of 
the law may be denied by the AAO even if the Service Center does not identify all of the grounds for 
denial in the initial decision. See 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); see also Dor v. INS, 891 F.2d 997, 1002 
n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). Where the petitioner is 
unaware and has not been advised of derogatory evidence, however, revocation of the visa petition 
cannot be sustained. Matter of Arias, 19 I&N Dec. at 570. Thus, in revocation proceedings, we are 
limited to reviewing the director's bases for revocation. 
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 -- 
WAC 99 068 52283 
Page 4 
(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. 
(Emphasis added.) As noted by counsel, the statute requires national or international acclaim. As such, 
the consular report errs in concluding that the petitioner cannot qualify for this classification without 
international acclaim. Moreover, the consular report acknowledges that the petitioner has an 
"international honor" but discounts it because the honor was limited to "Asia." The consular report 
does not explain why acclaim in "Asia" is not international. Certainly nothing in the statute requires 
worldwide acclaim. Thus, the concern in the consular report that the petitioner has never "competed 
outside of Asia" is not material to his eligibility. 
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. § 204.5(h)(2). 
An alien, or any person on behalf of the alien, may file for classification under section 203(b)(l)(A) of 
the Act as an alien of extraordinary ability in science, the arts, education, business, or athletics. Neither 
an offer of employment nor a labor certification is required for this classification. 
The specific requirements for supporting documents to establish that an alien has achieved sustained 
national or international acclaim are set forth in regulations at 8 C.F.R. § 204.5(h)(3). The relevant 
criteria will be discussed below. It should be reiterated, however, that the petitioner must show that the 
beneficiary 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 swimming coach. 
The regulation at 8 C.F.R. 5 204.5(h)(3) presents ten criteria for establishing sustained national or 
international acclaim, and requires that an alien must meet at least three of those criteria unless the alien 
has received a major, internationally recognized award. Review of the evidence of record establishes 
that the petitioner has in fact met three of the necessary criteria. 
Documentation of the alien S receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
WAC 99 068 52283 
Page 5 
The director rejected the petitioner's awards as "local in nature" and, based on the petitioner's age at 
the time, "academic" awards whose significance is "limited to the individual school making the 
awards." 
We acknowledge that some of the competitions are "regional" or are specifically designated as 
"teenager" competitions. None of the competitions, however, are limited to a single school. As such, 
the director's comment that the awards are "academic" and limited in scope to a single school is not 
consistent with the record. Moreover, the petitioner was 17 in 1985 when he won a gold medal at the 
Asia Pacific Area Swimming Tournament. The competition is not designated as a "junior" or "youth" 
competition and included 380 athletes from 21 countries and districts. Seventeen does not appear an 
unreasonable age to compete at the highest level in the petitioner's sport. Moreover, in 1986, at age 18, 
the petitioner won two gold medals and a bronze medal at the Seventh Beijing Games, which included 
500 athletes from 31 provinces. As such, the award does not appear to be a local Beijing award. 
Further, in 1992, at age 24, the petitioner won a gold medal and a silver medal at the Eighth Beijing 
Games against 480 athletes from 28 provinces. Finally, in 1995, at age 27, the petitioner won a silver 
medal and a bronze medal at the Ninth Beijing Games against 330 athletes from 23 provinces. 
Thus, the director's characterizations of the petitioner's awards as "local" and "academic" are 
inaccurate and, as such, cannot be considered "good and sufficient cause" to support the revocation. 
In addition, the petitioner seeks to enter the United States as a coach. The director, however, failed to 
consider the awards won by the petitioner's students. As this criterion is not readily applicable to 
coaches, we will accept evidence of awards won by a coach's students while under his tutelage to 
constitute "comparable evidence" pursuant to the regulation at 8 C.F.R. 5 204.5(h)(4). The petitioner 
submitted certification from the Qian Hong Swimming School that two of the petitioner's students have 
won first, second and third prizes at national and international swimming championships. 
Evidence of the alien S participation, either individually or on a panel, as u judge of the work of 
others in the same or an alliedfield of specrjcation for which classrjcation is sought. 
The director concluded that without "the actual evaluation sheets with the self-petitioner's personal 
comments," the petitioner could not establish that he had actually judged a competition. The director 
provides no explanation for why the evaluation sheets are the only evidence that can serve to meet this 
criterion. The director cites no basis for concluding that athletic judges and referees use evaluation 
sheets and have access to their evaluation sheets once the competition is completed. Thus, we find no 
reason to draw a negative inference from the lack of evaluation sheets. 
Finally, the director concludes that the petitioner has not established the significance of the work judged 
and the criteria used to choose the self-petitioner as a 'judge."' The director continues: 
Thus, it is questionable as to whether there is a formal selection process and the jurors 
are truly qualified to judge. Normally, jurors or reviewers have distinguished 
WAC 99 068 52283 
Page 6 
themselves in their professions to qualify as jurors or reviewers. Thus, the evidence 
does not support the claim that the self-petitioner served, either individually or on a 
panel, as a judge of the works of others in the field(s) of Swimming. 
Some inquiry as to whether the type of judging performed is inherent to the petitioner's occupation is 
reasonable. For example, the petitioner could not meet this criterion simply by observing that as a 
coach, he "judges" the work of his students. The petitioner, however, is relying on evidence that he has 
refereed competitions. The first two sentences of the director's reasoning, quoted above, are inherently 
contradictory. If jurors or reviewers normally have distinguished themselves in order to qualify as 
judges or reviewers, it is not clear why it is the petitioner's burden to demonstrate not only that he 
judged, but also that he was qualified to do so. 
In light of the above, the director's analysis under this criterion cannot serve as a good and sufficient 
basis for revoking the approval of the petition. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The petitioner has authored articles in the Journal of Beijing Institute of Physical Education and in 
Swimming Quarterly. The consular report states that the petitioner's articles all appeared in "small 
local magazines." The report provides no source for this statement and the record includes no 
corroboration of the report's conclusion. 
Despite the lack of corroboration, the director relied on the consular report to reject the evidence 
submitted to meet this criterion. In response to the director's NOIR, the petitioner submits Internet 
materials regarding both journals. The materials reveal that the Journal of Beijing University of 
Physical Education is distributed internationally and that Swimming Quarterly is jointly sponsored by 
the Scientific Research Committee of the China Swimming Association and the Guangzhou Sports and 
Physical Education College. It is the petitioner's burden to establish not only his authorship, but that 
the articles appeared in professional or major trade publications. While the petitioner's claim would 
have been bolstered by circulation data for the publications, we are satisfied that the petitioner has 
overcome the unsubstantiated conclusion by the consulate that both journals are "local." 
In light of the above, the director's analysis under at least three criteria does not rise to the level of good 
and sufficient cause to revoke the approval of the petition. As only three criteria are necessary to 
establish eligibility, the director's analyses under the remaining criteria are no longer material to this 
proceeding. 
Finally, the consular report acknowledges that the petitioner has worked as a swimming coach and 
concludes that his stated ambition to continue in this occupation "does not meet the requirement in NA 
203(b)(l)(A)(iii) that his entry into the United States will substantially benefit prospectively the United 
WAC 99 068 52283 
Page 7 
States." The basis of the consular report's conclusion appears to be that the petitioner lacks a job offer. 
The director repeats this concern in the NOR. 
The consulate appears to be conhsing section 203(b)(l)(A)(iii) of the Act with section 203(b)(l)(A)(ii) 
of the Act. Section 203(b)(l)(A)(iii), raised by the consulate, has no regulatory evidentiary 
requirements and, while not beyond inquiry, is generally presumed where an alien demonstrates 
extraordinary ability. The consulate provides no basis for singling out the occupation of swimming 
coach as not being beneficial to the United States. 
Given the consulate's concern over the lack of a job offer, the section of law more appropriate for 
consideration is section 203(b)(l)(A)(ii), which requires that the alien seek to continue working in his 
area of expertise. The regulation at 8 C.F.R. § 204.5(h)(5), however, makes very clear that this 
classification does not require a job offer. That regulation 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. 
Neither the consulate nor the director explain why the petitioner's stated intention to work as a coach in 
the United States does not constitute evidence to satis@ this regulation. 
In revocation proceedings before Citizenship and Immigration Services (CIS), the burden shifts to 
the petitioner "once [CIS] has produced some evidence to show cause for revoking the petition." 
Tongatapu Woodcrafr Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th cir. 1984). The court continued 
that it was clear "that [CIS] retains at least the burden of producing substantial evidence supporting 
its determination." In this matter, the director never produced substantial evidence supporting its 
determination. 
ORDER. 
 The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.