sustained EB-1A Case: Athletics

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U.S; Departmeiltof.Homeland Seairity 
u:s: cftiiensiiipiuid immigration ser\riees 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration . 
Services 
OAT~: APR 3 0 2013 OFFICE: TEXAS SERVICECENTER FILE: 
INRE: . PETITIONER: 
BENEFICIARY: 
' . 
PETITION: Immigrant' Petition for Alien ·worker as an Alien of Extraordinary Ability Pursuant to Section 
203(h)(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 decis~on 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, 
~u:_ 
Ron Rosenberg 
fo-
Acting Chief, Administrativ~ Appeals Office 
.. ·· .·· · •· l ' ' .www.usc. s.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on December 6, 2012. The petitioner, who is also the beneficiary, appealed the decision to the 
Administrative Appeals Office (AAO) on January 7, 2013. The appeal will be sustained and the 
petition will be approved. J 
According to parts 2 and 5 of the petition, filed on May 24, 2012, the petitioner seeks Classification as 
an alien of extraordinary ability in athletics, ·as a professional water skier, pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director 
determined that the petitioner has not established the sustained national or international acclaim 
necessary to qualify for classification as an aliin of extraordinary ability in athletics. The AAO 
disagrees. 
' I 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the· statute 
that the petitioner demonstrate the beneficiary's "sustained national m international acclaim" and. 
present "extensive documentation" of the beneficiary's a~hievements. See section§ 203(b)(1)(A)(i) of 
the Act; 8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.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 te11 categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i)-(x). The 
petitioner must submit qualifying evidence under at least three of the ten regulatory categories of 
evidence to establish the basic el.igibility requirements. . 
On app~al, counsel files a 17-page brief, dated January ·2, 2013, and additional supporting documents. 
Counsel asserts that the petitioner meets the nationally or internationally recognized p~es or -awards 
criterion under the regulation at 8 C.P.R. § 204.5(h)(3)(i),' the membership in associations that require 
outstanding achievements criterion under the regulation at 8. C.P.R. § 204.5(h)(3)(ii), the published 
material about the alien criterion under the regulation at 8 C.P.R. § 204:S(h)(3)(iii), the participation as 
a judge of the work of others criterion under the regulation at 8 C.P.R. § 204.5(h)(3)(iv), the original 
contributions of major significance criterion under the regulation at 8 C.P.R. § 204.5(h)(3)(v), and the 
leading or critical role for organizations or establi.shments criterion under the regulation at 8 C.F.R. § 
204.5(h )(3)( viii). 
For the reasons discussed below, the petitioner has established her eligibility for the exclusive 
classification sought. · 
I. THELAW 
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 al~en is described in this subparagrap~ ... if-
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(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or international acelaim and whose achievements have been recogn~ed · 
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. 
U.S. Citizenship and Immigration Services (USCIS) 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 101st 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. 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, internationally recognized award) 
. or through the submission of qualifying evidence under at least three of the ten categories of evidence 
·listed at 8 C.F.R. § 204.~(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under 
this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld the 
AAO's decision to deny the petition, the court took issue with the AAO's Jevaluation of the evidence 
submitted to meet a given evidentiary criterion: 1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded th&t while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted ·to meet those two crit~ria, those concerns should have 
been raised ina subsequent "fmal merits determination." Kazarian, 59_6 F.3d 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)." Kazarian, 596 F.3d at 
1122 (citing to 8 C.P.R.§ 204.5(h)(3)). ·· ' 
Thus, Kazarian sets forth a two-part approach where the evidence is first coul)ted and then considered 
in the context of a final merits determination. ·In this case, the petitioner has met at least three of the 
1 Specifically, the court stated that the AAO had. unilaterally imposed novel substantive · or evidentiary requirements 
beyond those set forth in the reglilations at 8 C.F.R. § 204.5(h)(3)(iv) and (vi). · 
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ten regulatory criteria under 8 C.F.R. § 204.5(h)(3)(i)-(x), and in the final merits determination, the 
petitioner has. shown that she is 
one of a small percentage who ha~e risen to the very top of the field 
.and that she has sustained national or international acclaim. See Section 203(b)(l)(A) of the Act; 
8 G,.F.R. §§ 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119~20 . . · 
· II. ANALYSIS 
· A. Evidentiary Criteria 
Based on the evidence in the record, the AAO affirms the director's findings that the petitioner meets 
the nationally or internationally recognized prizes or awards criterion under the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i), and the participation as a judge of the work of others criterion under the regulation at 
8 C.F.R. § 204.5(h)(3)(iv). 
In addition, the. petitioner has. shown that she meets the 'published material about the alien criterion 
under the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Specifically, the record contains: (1) a March 2012 
article in entitled ' ," in which the petitioner discussed her participation in 
waterskiing; (2) an October 6, 2008 article in entitled "[The Petitioner] _ 
_ which discusses the' petitioner's injuries and 
competition results; and (3) a July 28, 2009 article in · entitled "[The Petitioner] 
' which discusses the petitioner's competition accomplishments in the 
On aJ:>peal, counsel has submitted evidence showing that constitutes a 
professional publication. and _ constitute · national 
newspapers and major media in Accordingly, the petitioner has met ~his criterion. 
B. Final Merits Determination 
Based on the evidence in the record, the petitioner has submitted the requisite evidence under at least 
three evidentiary categories. See . 8 C.F.R. § 204.5(h)(3)(i)-(x). In accordance with the Kazarian 
opinion, the AAO will conduct a fmal merits determination that considers all of the evidence in the 
context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that [she] 
is one of [a] small percentage who have risen to the very top of the field of endeavor," and (2) that she 
"has sustained national or international acclaim and that [] her achievements have been recognized in 
the field of expertise." Section 203(b)(1){A) of the Act; 8 C.F.R. §§ 204.5(h)(2), (3); see also 
Kazarian, 596 F.3d at 1119-20. · . 
Based on the evidence in the record and consistent with Matter of Price, 20 I&N Dec. 953 (Act. Assoc. 
Comm' r 1994 ), the petitioner has made the requisite showing. Specifically, President of 
the _ . , stated . in his December 20, 2012letter, 
"[i]n the sport of waterski, one['s] biggest achievement is the breaking of records. Just like a sprinter 
who breaks a record by setting a new time; a watei: skier sets records by running more buoys in slalom, 
or tricking more points than ever before in tricks, or jumping a further distance than ever before in 
jump. [The petitioner] has set all of these records in her ~ation. She has broken every Open (no age 
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category) record in and has had enormous impact on the water skiing community by doing· 
so." Executive Director oj stated in his December 21, 2011letter, the 
petitioner "is recognized as the National Champion of ..., in the sport of classical water skiing. 
She is ranked within the top and ranked within the top The evidence 
further shows that the.petitioner was the overall winner of three water skiing events at the 
held in · According to , President of 
the " are nearly as important as [the] Olympic 
Games." and -. confirms not only that the petitioner has performed as a judge of the work of 
others, but that she is one of judges out of coumries who "is entitled to judge at the very highest 
level, including all 
Accordingly, the petitioner has shown that she is one of the ~mall percentage who are at the very top of 
the field and has- demonstrated ·her sustained national or international acclaim. See 8 C.F.R. 
§§ 204.5(h) (2), (3). 
III. CONCLUSION 
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 have risen to the very top of his or her field of endeavor. 
In review, while not all of the petitioner's . evidence carries the W:eight imputed to it by counsel, the 
petitioner has submitted evidence qualifyip.g .under three of the evidentiary criteria and established 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" and "sustained national or intematiomil acclaim." The petitioner's 
achievements have been recognized in her fi~ld of expertise. The petitioner has established that she 
seeks to continue working in the same field in the United States. The petitioner has established that 
her entry into the United States will substantially benefit prospectively the United States. Therefore, 
the petitioner has establiShed eligibility for the benefit sought under section 203 of the Act. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act; 8 U.S.C. § 1361. Here, that burden has been met. 
ORDER: The <;lec~sion of the director is withdrawn. The appeal is sustained and the petition is 
approved.