dismissed EB-2 NIW Case: Athletics

(b)(6)
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigrati on Services 
Administr ativ e Appeals Offic e (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: OFFICE: NEBRASKA SERVICE CENTER FILE: 
JUN 1 8 2014 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:ljwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
)Ron Rosen 
Chief, Administrative Appeals Office 
www.uscis.goY 
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Page 'L 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative 
Appeals Office on appeal. We will dismiss 
the appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b )(2), as an alien of exceptional ability in the sciences, the arts, or business. The 
petitioner seeks employment as a long distance runner. The petitioner asserts that an exemption from 
the requirement of a job offer, and thus of a labor certification, is in the national interest of the United 
States. The director found that the petitioner has not established that (1) he qualifies for classification as 
an alien of exceptional ability, and that (2) an exemption from the requirement of a job offer would be 
in the national interest of the United States. 
On appeal, the petitioner submits a legal statement and copies of previously submitted letters. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions , or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
I. Exceptional Ability 
The first issue in this proceeding is whether the petitioner qualifies for classification as an alien of 
exceptional ability. The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, 
at least three of which an alien must meet in order to qualify as an alien of exceptional ability in the 
sciences , the arts, or business: 
(A) An official academic record showing that the alien has a degree, diplom a, 
certificate , or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
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(B) Evidence in the form of letter(s) from current or former employer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he 
or she is being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; and 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
If the above standards do not readily apply to the beneficiary 's occupation, the petitioner may submit 
comparable evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
If a petitioner has submitted the requisite evidence, U.S. Citizenship and Immigration Services 
(USCIS) determines whether the evidence demonstrates "a degree of expertise significantl y above 
that ordinarily encountered " in the arts. 8 C.F.R. § 204.5(k)(2). Kazarian v. USCIS, 596 F.3d 1115 
(9th Cir. 2010), sets forth a two-part approach 
where the evidence is first counted and then 
considered in the context of a final merits determination. While involving a different classification 
than the one at issue in this matter, the similarity of the two classifications makes the court 's 
reasoning persuasive to the classification sought in this matter. 
The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, on October 1, 2012. In 
Part 6 of the petition form, the petitioner indicated that he seeks employment both as a runner and as 
a coach, but the record contains no evidence regarding his intended future coaching work, and no 
evidence that he has worked as a coach in the past. A cover letter submitted with the petition reads, 
in part: 
The documentation we have submitted meets the criteria for second preference for 
exceptional ability aliens/national interest waiver: 
1) published articles in major media about [the petitioner] and relating to his 
field of endeavor; 
2) evidence of contributions of major significance in his field of endeavor 
3) evidence of the showcasing of her [sic] work in the field in more than one 
country 
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4) evidence of performance in a lead, starring or critical role for organizations or 
establishments with distinguished reputations. 
The criteria listed above do not appear in the regulations at 8 C.F.R. § 204.5(k)(3)(ii), pertaining to 
exceptional ability. Rather, they quote or paraphrase criteria found in the regulations at 8 C.F.R. 
§§ 204.5(h)(3) and 214.2(o)(3)(iii), relating, respectively, to immigrant and nonimmigrant petitions 
for aliens of extraordinary ability. 
The petitioner's initial submission included witness letters (to be discussed further below, in the 
context of the national interest waiver) and news articles showing that the petitioner finished first or 
otherwise placed highly in various long-distance races in 2011 and 2012. A printout from All­
Athletics.com indicated that the petitioner's "Men's Overall Ranking" as of June 19, 2012 was 
On June 18, 2013, the director issued a request for evidence (RFE), listing the exceptional ability 
standards from the regulation at 8 C.F.R. § 204.5(k)(3)(ii). The director stated that the petitioner had 
met only one of the six regulatory standards, specifically the "recognition for achievements" 
criterion at 8 C.F.R. § 204.5(k)(3)(ii). In response, the petitioner submitted new letters and evidence, 
including an updated printout from All-Athletics.com, showing that the petitioner's "Men ' s Overall 
Ranking" had declined to as of July 16, 2013, down more than a thousand places since June 
2012. The petitioner claimed to have satisfied the following three additional criteria: 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or 
she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The petitioner did not claim or establish any past experience as a running coach. All of his claimed 
past experience is as a runner. 
In a letter submitted with the petition, , chief executive officer of and 
stated that the petitioner is ner company · s "team captain." She stated that she "came to 
know lthe petitioner] in 2008 when he was running for less than five years before the 
petition's October 2012 filing date. 
The petitioner's response to the RFE included the assertion that the petitioner "has been running and 
training for over ten years in a field which ordinarily does not have a single employer," thereby 
engaging the "comparable evidence" clause at 8 C.F.R. § 204.5(k)(3)(iii). 
The petitioner submitted a second letter from Ms. , dated July 7, 2013, stating: "I knew about 
[the petitioner'sl running ability through his Aunt m ecember 2001. At that time, he was under a 
contract with Once he left in 2009, I signed him quickly .... I swear and confirm that 
[the petitioner] has ... been running full time for well over ten years as a professional runner." The 
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires the employer(s) to attest to the employment 
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rage ::> 
experience. The record does not establish that Ms. 
beneficiary's employment before 2009. 
is in a position to attest to the 
The regulation at 8 C.F.R. § 103.2(b )(2)(i) states: 
The non-existence or other unavailability of required evidence creates a presumption 
of ineligibility. If a required document, such as a birth or marriage certificate, does 
not exist or cannot be obtained, an applicant or petitioner must demonstrate this and 
submit secondary evidence, such as church or school records, pertinent to the facts at 
issue. If secondary evidence also does not exist or cannot be obtained , the applicant 
or petitioner must demonstrate the unavailability of both the required document and 
relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed 
by persons who are not parties to the petition who have direct personal knowledge of 
the event and circumstances. Secondary evidence must overcome the unavailability 
of primary evidence, and affidavits must overcome the unavailability of both primary 
and secondary evidence. 
In this instance, the required evidence is a letter from confirming that the petitioner was under 
contract and competing prior to 2009. The petitioner has not submitted that required evidence or 
demonstrated that it does not exist or cannot be obtained. Likewise, the petitioner has not submitted 
secondary evidence or established that it does not exist or cannot be obtained. Instead of two or 
more affidavits from parties who have direct personal knowledge of the petitioner 's employment 
before 2009, the petitioner submitted one letter from a witness whose direct knowledge of the 
petitioner's work began in 2008 at the earliest. Conversations with the petitioner's unnamed aunt do 
not give Ms. direct personal knowledge of the beneficiary's pre-2009 activities. 
With regard to the claim that running is "a field which ordinarily does not have a single employer," 
we note that Ms. referred to the petitioner as "a loyal employee." 
The director denied the petition on November 1, 2013, stating that the petitioner had documented 
"approximately five (5) years of experience." The director acknowledged Ms. claim that 
the petitioner was previously "under contract with but found this claim to be unsupported 
because "no letter of reference was submitted fron " Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California , 14 I&N Dec. 190 (Reg 'l Comm 'r 1972)). 
The appellate statement includes this assertion: "The letter from indicated [the 
petitioner's] experience and that she had sponsored his nonimmigrant visa based on 
his experience. 
A letter from is not necessary to confirm what an expert in the filed [sic] had already 
established when she placed him under contract as a professional runner." The issue here is not why 
Ms. placed the petitioner under contract and petitioned for him as a nonimmigrant. Rather, 
the regula wns at 8 C.F.R. § 204.5(g)(l) and (k)(3)(ii)(B) require evidence of past experience to take 
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the form of "letter(s) from current or former employer(s)." Ms . was not the petitioner's 
employer prior to 2009 
and therefore she is not in a position to attest to his earlier employment. 
The petitioner has not submitted letters from current and former employers showing that he has at 
least ten years of full-time experience in the occupation sought. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.P.R. § 204.5(k)(3)(ii)(D) 
In the petitioner ' s initial submission, the only information regarding his compensation was that he 
won $17,500 for his second-place finish at the 2011 In 
the RFE, the director instructed the petitioner to submit evidence to establish that the petitioner's 
remuneration demonstrates exceptional ability. 
The petitioner's response to the RFE includes uncertified partial copies of federal income tax 
returns, showing gross income of $31,700 in 2011 and $42,600 in 2012 as a "marathon runner. " The 
cover 
letter submitted with the RFE response stated that these tax returns show that the petitioner has 
earned his income "solely from running and he has already [been] found to be one of [the] top 
runners in his field." The letter also included the claim that "it is unusual for a runner to live from 
his competitive earnings alone without some other form of sponsorship." The record does not 
support these claims. See Matter of Soffici , 22 I&N Dec. at 165. With respect to the "spon sorship" 
assertion, the petitioner did not show that sponsorships normally go to less skilled athletes, rather 
than to highly skilled athletes whose higher profile would benefit the sponsors. 
The tax returns show the petitioner's gross income in 2011 and 2012, but the petitioner did not 
establish that his remuneration was at a level that demonstrates exceptional ability as the regulation 
requires. The petitioner did not show that his earnings are significantly above what is ordinarily 
encountered in his occupation. 
To support the claim that the petitioner "has alread rbeen] found to be one of [the] top runners in 
his field ," the petitioner submitted a letter fro who identified himself as chair of the 
Mr. 
listed the petitioner 's first, second, and third place finishes from 2010 to 2013, and stated: 
"His performances during the last four years have shown that he is one of the top road racers based 
in the United States. " Mr. did not mention the petitioner's earnings or provide any basis to 
compare them with those of other runners. 
In the November 2013 denial notice, the director stated: "The evidence does not 
reference the 
earnings of other professional runners, or how [the petitioner's] earnings compare to others , with or 
without some form of sponsorship ." 
On appeal, the petitioner states that the director's finding was in error, because ' had 
called the petitioner "one of the top road racers based in the United States . .. . [The petitioner's] 
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earning[ s] are only from racing and therefore if he is at the top of his filed [sic] his earnings are also 
of that nature, for this sport." This assertion does not meet the regulatory requirements . The 
petitioner must demonstrate that his compensation demonstrates exceptional ability. It cannot 
suffice to assert that the petitioner is exceptional and that, therefore, his earnings must reflect 
exceptional ability. This assertion presumes the conclusion that the petitioner seeks to prove, i.e., his 
exceptional ability in his field. 
The petitioner has not established that his remuneration demonstrates exceptional ability. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
In response to the RFE, 
standing of the 
stated that the petitioner "has been a member in good 
since 1/14/2012." 
In denying the petition, the director stated that Mr. 
from the 
·'letter is not on official letter head 
and therefore, this membership cannot be 
verified." 
On appeal, the petitioner submits a copy of Mr. letter on the organization's letterhead 
(the date and content of the letter are unchanged). The appellate statement includes the assertion that 
the best evidence of the petitioner's membership is not the omanization's letterhead, but his 
"participation in the running events ... [sponsored] by [sic] which is the 
National Governing Body for Track and Field, Long Distance Running and Race Walking." 
The submission of the new letter addresses the specific concern that the director raised in the denial 
notice. The etitioner has established that he is a member of the 
The question of whether this membership demonstrates exceptional ability would be an issue for the 
final merits determination. Because the petitioner has not satisfied the plain wording of at least three 
of the regulatory standards at 8 C.F.R. § 204.5(k)(3)(ii), we need not conduct a final merits 
determination in order to determine that the petitioner has not established that he qualifies as an alien 
of exceptional ability. 
Throughout the proceeding, the petitioner has pointed to his performance at various races, stating 
that his first, second, and third place finishes demonstrate that he is an exceptional runner. The 
director took this information into account, finding that the petitioner has received recognition for 
achievements under 8 C.F.R. § 204.5(k)(3)(ii)(F). The regulations, however, do not state that an 
athlete who has won several competitions necessarily qualifies as exceptional. 
Clearly, the winner of a given race tends to be the best runner in that particular race, but the record 
does not show that the petitioner has competed in high-profile races that routinely attract top runners. 
As the petitioner has acknowledged, amateurs routinely participate in marathons and other long 
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distance foot races. For them, the race is a hobby or a personal challenge rather than an occupation 
or field of endeavor, and therefore there is no valid comparison between such amateurs and those, 
like the petitioner, who run for a living. 
The petitioner's own documentation shows that his "Men's Overall Ranking" was when he 
filed the petition, and has fallen since that time. This ranking is the closest thing in the record to an 
objective evaluation of the petitioner's standing in his field. The record does not show how many 
runners are included in the ranking, but the raw number does not intrinsically suggest that he is 
among the "top runners in his field" as the petitioner has clmmed. The petitioner has not established 
a degree of expertise significantly above that ordinarily encountered among those who run for a 
living rather than for recreation. 
The petitioner has not met at least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) . 
Therefore, the petitioner has not established exceptional ability in the sciences, the arts, or business. 
II. National Interest Waiver 
The second and final issue in this proceeding is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. The petitioner cannot 
qualify for the national interest waiver without an underlying finding of exceptional ability, but the 
director addressed the merits of the waiver claim and we will therefore discuss the issue here. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
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substantial intrinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. /d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. /d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. /d. 
The cover letter submitted with the petition includes a discussion of the three prongs of the NYSDOT 
national interest test: 
1) [The petitioner's] proposed employment is in an area of substantial intrinsic merit 
as the area of outstanding athletic achievement artistic [sic] is of importance and 
the ability of [the petitioner] to train and compete freely in the United States 
fosters an important national goal of promoting athletic excellence and freedom; 
2) The proposed benefit will be national in scope as [the petitioner] has competed 
nationally and internationally and will continue to do so; 
3) The significant benefit derived from [the petitioner ' s] participation in the 
"national interest" field of endeavor "considerably" outweighs the "inherent" 
national interest in protecting US workers through the labor certification process 
as there are no US workers of [the petitioner's] unique talent and background in 
his field who we [sic] be harmed as his achievement is always determined by his 
competitive excellence. 
The petitioner's initial submission included several witness letters. Many of the witnesses' 
comments concerned the petitioner's success as a runner, for instance identifying races that he has 
won. Because winning races is not a sufficient basis for a national interest waiver , our discussion of 
the letters will focus on other claims. 
stated: 
[The petitioner] has not only led our team in running, but he has also led our team in 
several community service events (see attached article). The running community, 
media, and I highly praise him. Moreover, his athletic contributions to our United 
States Wounded Warrior Program were also impressive. For example, in 2010 after 
fthe petitionerl came in (out of 30,000 runners) at the world ' s largest · 
... [the petitioner] 
offer[ ed] encouraging words to U.S. Wounded Warriors and children who 
participated in the race. Several of the children and Wounded Warriors came up to 
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me after the race and told me how [the petitioner] and our team mates '] words of 
encouragement made them want to better themselves at the and 
beyond. 
Ms. mentioned an "attached article" regarding "community service events." The petitioner 
submitted copies of several articles about races in which the petitioner participated , but the articles 
do not mention "community service events" except in passing, such as the proceeds from some 
events going to charity. 
general manager and race director of the 
finished first in 2011), stated: 
(in which the petitioner 
I have found [the petitioner] to be a responsible athlete and he has also been a great 
champion speaking on behalf of and our title 
sponsor. He has taken time to speak to middle school children here in Miami who 
participate in our to encourage them to lead an 
active and healthy lifestyle. 
a photographer and journalist who has "been involved with the local runnmg 
commumty smce 1983," stated that the petitioner "brings a positive impact to the local running 
community through his running ability ," and that he "brings along the ability to share a different 
culture from his native country of Ethiopia with the residents of the [sic] Washington, DC who may 
have not been beyond the state lines." 
Dr. , executive director of 
signed a letter on the petitioner ' s behalf , dated August 4, 2011. office manager of 
the signed an almost identical letter 
dated August 18, 2011; both contain the same misspelling of "San Diego" as "San Diageo." The 
letters contain the following passages: 
1 ln Ms. 
(The petitioner] would be an ideal role model for all minorities in the United States in 
gener al and for about one million Ethiopian immigrants in particular. . .. The 
importance of the ideal role model
1 
for the youth will be particularly important and 
may even be crucial since at present a substantial number of them are negatively 
influenced and do not earn their livelihood through hard work. ... 
[H]is overriding goal is noble. He wishes for the opportunity to represent the United 
States in an internation al marathon competition and win the race for his personal 
satisfaction and for the country 's national glory . 
letter, the phrase "ide al role models" replaces "the ideal role model." 
- - ------ - - --- - - - -------··· -··--- ·-··--·- ················- ···········--·- ····--· 
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A similar assertion appears in a letter from Dr. . associate professor at 
[The petitioner's] contribution as a positive role model to minorities in general and to 
about one million Ethiopians in particular is fairly obvious. Since at present a 
substantial number of minorities are incarcerated partly due to lack of positive role 
models, [the petitioner] will be extremely useful in this regard. Finally his goal of 
representing the United States in an international marathon competition is admirable. 
Dr. whose academic field is "Finance and Economics," claimed no expertise in the above 
matters, and cited no evidence to show that the petitioner's presence in the United States since 2010 
has had any demonstrable effect on minority incarceration rates. Without such evidence, the claim 
that the petitioner will eventually have such an effect amounts to unsupported speculation. 
In the June 2013 RFE, the director acknowledged the intrinsic merit of the petitioner's occupation, 
and instructed the petitioner to submit documentary evidence to establish that the benefit from the 
petitioner's work will be national in scope, and to establish the petitioner's influence on the field as a 
whole. 
In response, Ms. stated: 
The and the Wounded Warrior Transitional Command has 
specifically asked [the petitioner] and the team to run this race every year in an 
effort to help encourage United States Wounded Warriors like myself to stay active 
and in the present vs. committing suicide .... 
In an effort to be proactive about this issue, [the petitioner] gives back to the sport by 
running this race and by personally motivating, training and encouraging wounded 
warriors to participate in the Warrior Games .... This is something that [the 
petitioner] has been passionate about since 2010 after his first visit to Walter Reed 
Medical Facilities .... 
As a wounded warrior/service disabled veteran, coach and agent, I can honestly say 
that not only is [the petitioner] a world class athletes [sic], he (1) constantly gives 
back to troops every year at his own expense (2) he encourages soldiers to: get up, 
active and out as he show cases his talent on the road and at the expo. But most 
importantly, he (3) leads from the front hoping that everyone follows in an effort to 
bring awareness to PTSD [post-traumatic stress disorder] and the suicide rate of US 
soldiers who fight for the right to be free .... 
[The petitioner] has changed lives by helping wounded warriors overcome challenges 
and barriers. I can honestly say that he has encouraged me to lace up my spikes and 
compete in the next 2014 Warrior Games. 
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The petitioner did not submit the requested documentary evidence to show how he has influenced 
his field as a whole. His employer's personal assertions are anecdotal, and they do not establish that 
the petitioner has had a discernible impact on the problems that Ms. : described, or that the 
petitioner's impact has exceeded that of other long distance runners who have competed in the 
and similar events. 
In the denial notice, the director stated: 
(Y]ou have not submitted any documentation of your employment as a coach, 
therefore, your employment as a professional runner must be determined to meet [the 
national scope] prong . ... It is not enough for a professional runner to compete at the 
national and international levels if the benefit is not to the national interest. Running 
and placing at races at these levels is obviously an achievement to be proud of, 
however, it has not been determined that the nation benefits from your success .... 
(The evidence submitted] has not sufficiently documented that you have a degree of 
influence on your field as a whole , or that you would serve the national interest to a 
substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
The petitioner's appellate statement includes a discussion of the broad appeal of track and field 
competitions, and the assertion that "[r]oad running is unique among athletic events because in many 
cases first time amateurs are welcome to participate in the same event as members of running clubs 
and even current world-class champions." The petitioner has established that there is wide public 
interest in marathons and other long distance foot races, and that some high-profile events attract 
national and international attention. These events, in turn, focus on the competitors , without whom 
there would be no events. The "national scope" prong of the NYSDOT national interest test revolves 
not around the petitioner's individual achievements, but on traits inherent in his occupation , whether 
or not he manifests those traits. 
The appellate statement addresses the third NYSDOT prong with this assertion: 
The quality of the beneficiary's talent and his ability to compete and win in these 
national events are unusual. ... The evidence submitted (demonstrates] through his 
achievements that he is superior to other individuals in the field. He would not have 
won the races he competed in if he was not superior in his abilities .... It is because 
he is one of the best that he will in fact serve critical US needs in promoting US 
athletics nationally and internationally. 
The above assertion lacks clarity and detail. The petitioner relies, essentially, on the assertion that 
he should receive the national interest waiver because he has won, or nearly won, several races. The 
general assertion that the United States gains prestige when an American wins a long distance foot 
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rage .l.J 
race is not sufficient to warrant blanket approval of waivers for foreign runners who win such races. 
The record shows that many of these events involve thousands of competitors. By nature, every race 
run to completion has a winner. The petitioner does not explain how the United States benefits more 
when he, rather than another runner, wins a particular race, or how his involvement is more 
influential on the field than that of other successful long distance runners. 
The petitioner submits a copy of Ms. July 7, 2013 letter, indicating that the petitioner "has 
changed lives by helping wounded warriors overcome changes and barriers." The record does not 
establish that the petitioner's impact in this regard has been significant at a national level or 
influenced his field as a whole. The record offers no objective means to compare the petitioner ' s 
community service work to that of other athletes in his sport. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole."). 
On the basis of the evidence submitted, the petitioner has not established that a waiver of the 
requirement of an approved labor certification will be in the national interest of the United States. 
Furthermore, the petitioner has not met the requirements for the underlying classification of an alien of 
exceptional ability. 
We will dismiss the appeal for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.