sustained EB-1A Case: Athletics

(b)(6)
U.~. DcpartiiJeot of Homelaod Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washineton . DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 1 4 2013 Office: TEXAS SERVICE CENTER FILE: , 
INRE: Petitioner: 
Beneficiary: 
PETIT~ON: . 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 fi.p.d 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, 
·""'\ . 
() ... 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSS~ON: The employment-based immigrant visa petition was · denied by the Director, 
Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be sustained. ' · · 
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. § 1153{l))(l)(A), as an 
alien of extraordinary ability in athletics. The director determined that the petitioner had not 
established :the requisite extraordinary ability through extensive documentation and sustained 
nationaJ or interpational acclaim. 
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 document~tion" of the alien's achievements. See section 203(b)(l)(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 c~ establish sustained national or international acclaim through evidence of a one-time 
~chievement, specifically a major, internationally recognized award. Absent the receipt of such an 
aw&rd, the regulation outlines ten categories of specific objective evidence. 8 C.F.R. 
§ 204.5(h)(3)(i) through (x). The petitioner mQst submit qualifying evidence under at least three of 
the ten regulatory cat~gories of evidence to establish the basic eligibility requirements. 
On appeal, counsel asserts that the petitioner meets the categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(i) - (iii), (v), (viii), and (ix). For the reasons discussed below, the AAO fmds that 
the petitioner meets the statutory and regulatory requirements for classification as an alien of 
· extraordin~y abiHty. . 
I. Law 
Section 203(b) of the Act states, in pertinent part; that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 
ar~ aliens qescribed i,n any ~f 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 lmntigration 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. 723 101 st 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. /d. and 8 C.P.R. § 204.5(h)(2). 
; 
The regulation at 8 C.P.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
. acclaim ~d the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Oocumentation 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 medja, relating to the alien's work in the field for which classification is 
sought. Such. ~vidence 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 a judge 
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 fieid at artistic exhibitions or 
slJ.owcases; · 
(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 tl1e field; or 
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(X:) EvideQce of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
J;n 2010, the U.S. Court ofAppeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed llfider this classification. Kazarian v. USC IS, 580 F.3d 1030 (9th Cir. 2009) aft' d in 
part 596 P.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 evaluation of evidence submitted to meet a given 
evidentjary criterion.1 With respect to the ·criteria at 8 C.P.R. § 204.5(h)(3)(iv) and (vi), the court 
conclucled that while USCIS may have raised legitimate concerns about the significance of the 
evidence submittecl to meet ·those two criteria, those concerns should have been raised in a 
subsequent "fmal merits determination." /d. 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 failecl to submit suffici(mt evidence, "the proper conchision is that the applicant has failed 
to s~tisfy the regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 
1122 (citing to 8 C.P.R. § 204.5(h)(3)). The court also explained the "fmal merits determination" as 
the corollary to this procedure: · · 
If a p~titioner }las submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of rJtat small percentage who have risen to the very top of the[ir] field of endeavor," . 
8 C.P.R. § 204.5(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.P.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
''sustained national or international acclaim" are eligible for an "extraordinary 
ability'' visa. 8U.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 c~ntext of a fmal merits determination. 
II. · An~ysis 
A. E11identkuy Crit.eria 
This petition.,· filed on July 18, 2012, seeks to classify the petitioner as an alien with 
. . extr~ordinary ability as a squash player and instructor. The AAO affirms the director's fmding 
that the petitioner's evidence meets the regulatory criterion at 8 C.P.R. § 204.5(h)(3)(i). Upon 
review of the petitioner's appeal and the documentation of record, the AAO finds that the 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond Ulose set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.P.R. § 204.5(h)(3)(vi). 
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petitioner's evidence meets the additional regulatory criteria at 8 C.F.R. §§ 204.5(h)(3)(ii) and 
(iii). Accordingly, the petitioner meets at least three of the ten categories of evidence that must 
be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. § 204.5(h)(3). 
B. Final Merits Determination 
The AAO will next 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 
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. § 204.5(h)(2); and (2) "that the alien has sustained national or intemation~l 
acclaim and that his or her achievements have been recognized in the field ~f expertise." Section 
203(b)0)(A) ofthe Act; 8 C.F:R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. 
' In the present matter, the petitioner has submitted extensive documentation of his achievements 
ip. the sport of squash and has demonstrated a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence 
is sufficient to demonstrate the petitioner's sustained ·national and international acclaim and that 
his achievements have been recognized in the field of expertise. Moreover, the submitted 
document~tion shows that the petitioner is among that small percentage who have risen to the 
very top of the field of endeavor. For instance, according to documentary evidence submitted 
from the _ ___ _ -. • . Therefore, the AAO's fmding 
of eligibility in this matter is consistent with Mauer of Price, 20 I&N Dec. 953, 955 (Assoc. 
Comm'r 1994). 
IQ . . Conclusion 
. In review, while not all of the petitioner's evidence carries the weight imputed to it by counsel, 
the petitioner has submitted evidence qualifying under at least three of the ten categories of 
evidence 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[ir] field of endeavor" and "sustained national or 
international acclaim." His achievements have been recognized in his field of expertise. The 
petitioner has established that he seeks to continue working in the same field in the United 
States. The petitioner has established that his 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. 
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. ·